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Evidence
Introductory Concepts and Principles ................................................................................. 4
The Role of Evidence Law ......................................................................................... 4
The Fundamental Rule of the Law of Evidence ......................................................... 4
The Sources of the Law of Evidence .......................................................................... 5
Relevance .................................................................................................................... 7
Reasons for Excluding Relevant Evidence ................................................................. 9
M.A.D. v. Hill – Class Example ........................................................................... 10
Admissibility and Weight ......................................................................................... 12
Juries ......................................................................................................................... 13
Assessing Oral Evidence........................................................................................... 16
The Examination of Witnesses ................................................................................. 16
Burden and Standard of Proof................................................................................... 21
Credibility ................................................................................................................. 23
R. v. Pelletier, 1995 ABCA (Code 76) ................................................................. 24
R. v. N.S., 2010 ONCA (Code 80) ....................................................................... 24
Evidentiary and Persuasive Burdens ......................................................................... 27
R. v. Lifchus, 1997 SCC (CB 988) ....................................................................... 28
Morin v. The Queen, 1988 SCC (CB 995) ........................................................... 29
Judicial Notice .......................................................................................................... 31
Admissibility and Exclusion of Evidence ......................................................................... 33
R. v. Watson, 1996 ONCA (CB 85) ..................................................................... 33
R. v. Morris, 1983 SCC (Code 128) ..................................................................... 36
R. v. Seaboyer, 1991 SCC (CB 94) ...................................................................... 38
Opinion Evidence...................................................................................................... 42
Compendious Evidence ............................................................................................ 43
R. v. Graat, 1982 SCC (CB 271) .......................................................................... 43
Expert Opinions ........................................................................................................ 45
R. v. Mohan, 1994 SCC (CB 277) ........................................................................ 46
R. v. Lavallee, 1990 SCC (CB 281 & 317) .......................................................... 47
R. v. Abbey, 1982 SCC (CB 312) ......................................................................... 50
Hearsay ............................................................................................................................. 51
Ares v. Venner, 1970 SCC (Printed) .................................................................... 52
Note Case: Teper v. R., 1952 P.C. (CB 131) ........................................................ 54
Note Case: R. v. Williams, 1985 ONCA (CB 132) .............................................. 54
Subramaniam v. Public Prosecutor, 1956 P.C. (CB 132) ..................................... 55
Implied Assertions and Hearsay by Conduct ............................................................ 56
R. v. Wildman, 1981 ONCA (CB 134) ................................................................. 58
R. v. Wysochan, 1930 SKCA (CB 145) ............................................................... 59
R. v. Evans, 1993 SCC (Code 140) ...................................................................... 60
R. v. Ferris, 1994 ABCA (Code 156) ................................................................... 62
Some Exceptions to the Hearsay Rule .......................................................................... 64
Res Gestae ................................................................................................................. 64
Ratten v. The Queen, 1972 P.C. (CB 157)............................................................ 64
R. v. Clark, 1983 ONCA (CB 162) ....................................................................... 66
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Statements against interest ........................................................................................ 68
R. v. O’Brien, 1978 SCC (CB 166) ...................................................................... 68
R. v. Pelletier, 1978 ONCA (CB 170) .................................................................. 69
Lucier v. The Queen, 1982 SCC (CB 172) ........................................................... 70
Business records.................................................................................................... 71
The Principled Approach .............................................................................................. 71
R. v. Khan, 1990 SCC (CB 55) ............................................................................. 72
R. v. Smith, 1992 SCC (CB 212) .......................................................................... 73
Note Case: R. v. Mapara, 2005 SCC (CB 267) .................................................... 74
K.G.(B.) – Class Example..................................................................................... 74
R. v. Kehlawon, 2006 SCC (Code 182) ................................................................ 75
R. v. Griffin, 2009 SCC (Code 205) ..................................................................... 77
Credibility ......................................................................................................................... 78
Means of Assessing Credibility ................................................................................ 80
Limits on Supporting Credibility .............................................................................. 80
Accused’s Reputation for Veracity ........................................................................... 81
R. v. Clarke, 1998 ONCA (CB 338) ..................................................................... 81
Prior Consistent Statements ...................................................................................... 82
R. v. Giraldi, 1975 BCCA (CB 343) ..................................................................... 83
R. v. Campbell, 1977 ONCA (CB 344) ................................................................ 84
Impeaching Credibility ............................................................................................. 86
R. v. Clarke, 1998 ONCA (CB 357) ..................................................................... 86
Prior Inconsistent Statements .................................................................................... 88
Wawanesa Mutual Insurance Co. v. Hanes, 1961 ONCA (CB 364) .................... 88
Prior Convictions ...................................................................................................... 91
R. v. Corbett, 1988 SCC (CB 374) ....................................................................... 92
Aspects of Cross-Examination .................................................................................. 96
R. v. Lyttle, 2004 SCC (CB 388) .......................................................................... 97
Collateral Facts Bar................................................................................................... 98
R. v. Rafael, 1972 ONCA (CB 391) ..................................................................... 98
Corroboration .......................................................................................................... 100
R. v. Baskerville, 1916 Engl. (CB 397) .............................................................. 100
Vetrovec v. The Queen; Gaja v. The Queen; 1982 SCC (CB 399) .................... 100
Character ................................................................................................................. 102
Similar Fact Evidence ..................................................................................................... 103
Makin v. Attorney-General for New South Wales, 1894 P.C. (CB 466) ........... 103
R. v. Smith, 1915 Engl (CB 468) ........................................................................ 103
R. v. Straffen, 1952 Engl (CB 469) .................................................................... 103
R. v. Handy, 2002 SCC (CB 499) ....................................................................... 104
R. v. Scopellitti, 1981 ONCA (CB 459) ............................................................. 105
Voluntariness .................................................................................................................. 106
R. v. Oickle, 2000 SCC (CB 580)....................................................................... 107
R. v. Serack, 1974 BCSC (CB 579) .................................................................... 109
Persons in authority................................................................................................. 110
R. v. Rothman, 1981 SCC (CB 548) ................................................................... 111
R. v. Hodgson, 1998 SCC (CB 556) ................................................................... 111
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Grandinetti v. The Queen, 2004 SCC (Code 254) .............................................. 112
Unger................................................................................................................... 112
Fear of Prejudice/Hope of Advantage..................................................................... 113
Ibrahim v. The King, 1914 PC (CB 570) ............................................................ 113
Voluntariness: Oppression ...................................................................................... 114
R. v. Spencer, 2007 SCC (Code 297) ................................................................. 114
R. v. Sinclair, 2010 SCC (BBoard) ..................................................................... 114
R. v. S.G.T., 2010 SCC (Not in materials) ......................................................... 115
Privilege/Principle against Self-Incrimination ........................................................ 116
R. v. Henry, 2005 SCC (Code 329) .................................................................... 116
Right to Silence under s.7 ....................................................................................... 120
R. v. Hebert, 1990 SCC (CB 606) ...................................................................... 120
R. v. Singh, 2007 SCC (Code 388) ..................................................................... 120
Improperly obtained evidence................................................................................. 122
R. v. St. Lawrence, 1949 Ont. H.C. (CB 595) .................................................... 122
R. v. Wray, 1970 SCC (Code 313) ..................................................................... 122
Bringing the Justice System into Disrepute ............................................................ 123
R. v. Collins, 1987 SCC (CB 637 & 700) ........................................................... 123
R. v. Stillman, 1997 SCC (CB 711) .................................................................... 123
R. v. Grant, 2009 SCC (Code 413) ..................................................................... 123
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Introductory Concepts and Principles
Reading Notes:
The Role of Evidence Law
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Evidence is concerned primarily with the means of proof that can be put before
the trier of fact at trial, the permissible uses the trier of fact can make of the proof,
and how the means of proof may be presented and tested
The law of evidence operates at trial, but in other contexts too:
o Jurisdictional law (to determine if a court or tribunal has jurisdiction)
o Procedural law (to determine issues arising out of the procedure of a court
or tribunal)
o Remedial law (to determine the appropriate remedy)
The Fundamental Rule of the Law of Evidence
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One overarching rule of evidence law: Everything that is relevant to a fact in issue
is admissible unless there is a legal reason for excluding it.
Evidence must be both 1) relevant, and 2) not subject to any exclusion (from The
Law of Evidence in Canada)
There are three questions that arise when considering this rule:
o First, what does it mean for something to be relevant?
o Second, what kind of reasons justify the exclusions of relevant evidence?
o Third, what is the significance of a piece of evidence being admitted?
Opening Remarks:
- technical rules and matters that are morally driven
- There are behavioural assumptions that exist in evidence, based on certain cultural
norms; new, female judges and younger judges, have changed the way evidence is
dealt with in the law
- Civil evidence – Levy says that it’s being “relegated to the scrap heap”; the focus
on civil in evidence law has been diminished
- When you’re looking at sources in the future – keep in mind that the British
sources aren’t used as often as American sources (Whigmore is what Levy
recommends); Levy says you should look at Whigmore if you’re interested in
litigation, you should have a look at it this semester, b/c it’s infuriating
- Statutes – the Criminal Code has the Canada Evidence Act in it, and you should
have it available (online?); Alberta Evidence Act too
o Levy doesn’t like certain aspects of the AEA;
o S.9, for example, pisses him off
o Children issues – AEA has an older way of dealing with it; Canada’s is
more modern
 In AB: children can only give sworn evidence if it can be
demonstrated that they understand the nature of the oath;
theological inquiries need to be made – does that make sense?
Levy doesn’t think so. If the child doesn’t understand the oath, you
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o
o
o
o
have to take them through a set of questions about understanding
the truth. Otherwise, if the judge is satisfied that the child
understands the secular conception of “truth”, then he can accept
the evidence w/o an oath
 Levy suggests that if the child doesn’t take an oath, then the court
will be suspicious of the evidence, and the matter won’t be
determined on that child’s evidence
 The law of evidence is quite suspicious of certain categories of
people, and the AEA still reflects this (lunatics, for example, and
women!)
Many of the issues that existed historically have disappeared, such as
requiring a woman’s evidence be corroborated; some have not
 Breaches of promises to marry, for example
Federally, when dealing with children, the statute is much more modern
 There is no concern about the nature of an oath, for example
 Children of 14 or more are capable of giving evidence, just as if
they are an adult
This is likely an important distinction between the criminal and civil
context; think about it – the federal act will govern criminal law, so
children are more likely to be accepted in the criminal context; in the civil
context, which is likely governed by the provincial act, then children
won’t be as permissible in terms of the evidence they’re going to give
S.91/92 of the CA1867 – so my point above is generally right regarding
which Act applies to what
 Levy says this is true in principle
 The federal gov’t has the ability to use its jurisdiction to apply
provincial rules, but that’s up to Parliament to decide
 So, criminal law, family law (when dealing with divorce),
bankruptcy, are all federal matters – the CEA will apply
The Sources of the Law of Evidence
Common Law:
- One key point here is that the rules of evidence, which stem primarily from the
common law, are merely means to the ends of truth and fairness; the rules aren’t
ends unto themselves
Statutes:
- Common law rules of evidence can be modified by statute; in Canada, they have
been modified, but not codified as they have been in other jurisdictions
- Individual statutes may contain provisions concerning the evidentiary rules
applicable to the matters they govern, e.g. The Criminal Code
- Although there is generally Parliamentary supremacy in Canada, the SCC has
acknowledged that they are prepared to read statutory evidence requirements as
being subject to the court’s general common law discretion to exclude evidence if
it’s prejudicial, whether the evidence is an infringement on the Charter or not.
(See R. v. Corbett, and R. v. Potvin)
Aboriginal Law
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Nothing of note
The Constitution:
- the law of evidence is constrained by constitutional requirements
- the divisions of legislative authority under ss.91 and 92 of the CA1867 apply to
evidence
- The Charter also has an impact on the law of evidence in a number of ways:
o First, the Charter provides express constitutional protection for some
evidentiary principles in criminal proceedings
o Second, s.7 is important for evidence. Because criminal matters must be
dealt with according to the principles of fundamental justice, the question
becomes whether the common law rules of evidence are so basic to the
justice system that they have become principles of FJ
o Third, the Charter protects important rights in the investigation of
offences
o Fourth, if evidence is obtained in a matter that infringes on a protected
right, the Charter provides for a remedy
Where does the law of evidence come from? See above, generally
- common law, statute, Constitution, aboriginal law
- Aboriginal law – impact on the law of evidence:
o The oral tradition of aboriginal society is important; there may not be
written sources of evidence
o The Delgamukw case – normally, oral evidence is inadmissible, b/c it’s
hearsay; but in aboriginal contexts it should be admissible b/c the culture
is oral
o This has arisen and impacted aboriginal rights cases and title claims
- Constitution – division of powers impacts evidence
o If the substance is Federal, then the Federal evidence Act should be
followed
o What about the Charter? We will be looking at the Charter quite a bit in
the case
o In civil cases – the Charter doesn’t have much application, not nearly as
much as it does in criminal cases (involving police powers, quite often)
- Common law – evidence isn’t very old, as a subject
o Substantively, it wasn’t addressed in law until the 18th century
o At that time, legal scholars began trying to systematize the law of
evidence (the focus was on who could give evidence, not what evidence
they were allowed to give)
o This brings up a “core concept” according to some people – the idea of
competence of a witness
o Competence = What we are talking about is whether someone is allowed
to give evidence. For example, parties to the action weren’t allowed to
give evidence for a long time (imagine what that was like – an accused
wasn’t competent to give evidence)
 There was an assumption that spouses of parties weren’t
competent, either
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
Children, as discussed above, were excluded under this heading;
they were deemed not competent
 People who wouldn’t take a Christian oath were deemed not
competent (in the Commonwealth, this was a huge issue – consider
the imperial reach of Britain, in India and SE Asia); atheists were
out, too – the battle by atheists and non-Christians to be allowed to
testify led to the practice of affirming (a secular form of oath)
 Currently – competence isn’t a huge issue; we care less about who
the witness is – we care more about what they’re going to say
o Content – a more important concern for modern evidence law
o Canada – followed the American trend of learning evidence law at law
schools, rather than waiting until practice to learn evidence (as was the
case in Britain)
 The values that arise in evidence law often arise out of the
historical context
o Historical context – values that underline evidence law are often based on
the time that the law arose
Relevance
Reading Notes:
- Two considerations determine whether a piece of evidence is relevant:
- First, there is “factual relevance”
o This is a matter of experience or cognition, or based on empirical
knowledge or belief
o Does the evidence make a fact in issue more or less likely to be true?
o The test suggested: “does the evidence offered render the desired inference
more probable than it would be without evidence?”
- Second, what are the issues to which the facts are relevant?
o The purpose of trial is to determine the facts and apply the law, but not
just to any facts. The facts must be those that are legally significant.
o Evidence that deals with facts lying outside the facts necessary to
sustaining the cause of action, or to defending against it, will be legally
irrelevant
Class Notes:
A key issue: Relevance
- evidence must be relevant to be admissible; if it’s not relevant, it’s not admissible;
if it’s relevant, it is prima facie admissible
- What policy factors will influence the court to listen to irrelevant evidence?
o For example – if a confession is obtained involuntarily (through violence),
the court is more likely to consider how the confession is obtained, as
opposed to just the confession itself
- Evidence may be admissible due to relevance in some instances, while
inadmissible for policy reasons in other instances – all possibly in the same case!
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o Credibility – relevant information, such as a criminal record, may be used
to reflect on a witness’ credibility
o Character? Evidence may be used to draw inferences regarding character
o Levy says, though, that evidence used for credibility shouldn’t be used for
anything else – using it to draw inferences regarding character is a no-no,
even though it appears that it is likely to happen anyway
- So, there must be a connection between the evidence and the issues of the lawsuit;
we may think there’s a connection, but we’ll be required to follow the principles
of evidence and the law!
- Levy gives an example of a confession reviewed in a voir dire; if a judge reviews
the issue of whether a confession is voluntary, and finds it’s not, the judge will
exclude it, and then has to ignore it even though they have reviewed it!
We want to keep in mind that the values that underlie evidence include this idea of
contextual relevance – when something is relevant in one context, but not in others. It’s
sometimes tricky to determine when it’s the former and when it’s the latter.
Think back to Civ Pro – discovery
- for relevance – we’re looking for a connection between the evidence being
offered and the lawsuit
- Why does counsel want to use the evidence?
o This question could be based on a factual question (related to an aspect of
the trial)
 This also relates to the question about human experiences, and the
impact their background has on their view of evidence (women, or
aboriginal judges, for example)
o Or it could be a legal question
Common sense and human experience
- admissibility of evidence rules have changed over the course of the years
- largely the female judges (Justice Wilson and Justice L’Heureux-Dube) have
changed the rules
- the old position: the way a victim of a sexual offence dressed was relevant to
whether she consented to sexual activity
o our current view is that this isn’t the case, but this has only changed
recently
- another example – does it matter who you choose to sleep with and when? If you
sleep with one person one day, and another person the next day, is that relevant?
o It would have been relevant – if you were a “tart” then you were available
o It was so routine, that no one batted an eye, not the judge, not the Crown
o Today, it’s not.
- Levy says that relevance is essentially a moving target.
So here’s the flow chart:
Relevance:
1) Factual
a. Relevance
i. Exclude = not admissible; usually based on Policy grounds
b. Legal Relevance
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i. A stronger connection test is required; common sense isn’t going
to be enough
2) Legal – Materiality
Reasons for Excluding Relevant Evidence
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There are several grounds for exclusion:
First, relevant evidence may be inadmissible because to admit it would distort the
fact-finding function of the court
- Second, evidence may be inadmissible b/c its admission would unnecessarily
prolong a trial or confuse the issues
o This is where the collateral facts bar comes in
- Third, evidence may be inadmissible b/c its admission would undermine some
important value other than fact-finding
o Examples: preventing trial by surprise; where evidence hasn’t been
properly disclosed in a civil action; etc.
- Fourth, evidence may be excluded b/c the manner in which it is acquired, or
presented, is inconsistent w/ the nature of the trial process
o Further to this, it’s noted that the trier of fact isn’t supposed to do their
own investigation
- Finally, in criminal cases, evidence should be excluded where its “probative
value” is outweighed by its “prejudicial effect.”
o “Prejudicial effect” = the possibility that the evidence may distort the factfinding process
o The authors note that sometimes the rule excluding prejudicial evidence is
treated as an aspect of the test for relevancy, but it’s better to view it as a
balance between probative value and prejudicial effect.
In summary, a piece of evidence must pass the following tests:
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 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?
The answers to #1 & 2 must be yes, while the answers to #3 & 4 must be no. If the 4
questions aren’t properly answered, then the evidence is inadmissible.
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do we want to admit evidence to determine if something that we used to have that
has now been changed caused an injury?
What’s important?
Letting it in – you may have a policy against letting the evidence in. Why?
o If you allow improvements after an injury to be used as evidence of past
negligence, that may proof – you may be admitting liability
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o If that’s the case, then it might be better to let the public suffer under the
poor conditions, rather than change it and admit liability
o In Alberta, this wasn’t the case – In AB, they said they would let this sort
of evidence in, but only to supplement other evidence. In AB, they
wouldn’t allow cases to be determined against a party based solely on
subsequent repairs; it’s more important that the improvements be done,
and so we don’t want to deter parties from doing that.
So, we have the basic understanding of factual relevance, and there are policy
issues that come into play under that heading
Alternatively, we may concede the relevance of the evidence, but it may be
excluded due to policy reasons anyway
The question: do I want the evidence included? Yes. Why? Insert reason here… Is
there an exclusory rule? Consider policy.
o Consider involuntary confessions: they would clearly be relevant, but
policy reasons will exclude the confession. The policy might be
preventing improper police practices, for example.
There is a second component to factual relevance: legal relevance. It’s not the
same thing as legal relevance as noted in the diagram above.
o It is sometimes used as an aspect of factual relevance, as opposed to legal
materiality
o What legal relevance indicates under the factual heading = a stronger
connection test is required; common sense isn’t enough
o When is it important? If the trial is big and it’s going to get out of hand…
M.A.D. v. Hill – Class Example
 Example: M.A.D. v. Hill – smallpox sufferers were confined into
asylums; when a City decided to build a new hospital, the
neighbours weren’t happy b/c they didn’t want smallpox in their
area. The argument was that the hospital increased the likelihood
of a smallpox outbreak.
 The Pltfs were trying to show a connection between the presence
of a hospital and an increase in the incidence of smallpox in the
area.
 They were looking for evidence to support that assumption. They
wanted to look into the incidence of smallpox in particular
neighbourhoods.
 At issue – if we have to look at the conditions around each of 10
hospitals, the trial is going to explode in size. If the Pltfs can put
this kind of evidence in, the Def will also be able to put evidence
in saying that the incidence was always higher. By requiring this
kind of evidence or allowing it, by not allowing generalizations,
the trial will get ridiculous.
 H.L. ended up saying that they wouldn’t let some evidence in, even
though they could see the common sense and human experience
connection. They wanted a stronger personal connection to the
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case. Paris asylums were excluded b/c it was connected strongly
enough.
 This line of reasoning remains – something may be connected at a
basic level, but it may not be admitted unless a stronger connection
is made
o This principle = similar fact evidence (comes up mostly in criminal cases)
o We want someone to infer something happened in our current case based
on something that happened in another case
 Drawing inferences based on past circumstances; the idea that
prior incidents should be allowed into evidence b/c they indicate
something about the person being questioned
 There may be concerns on the other side, though – what about
prejudice? You may want a certain amount of prejudice, but how
much? Do you want a jury to convict based on the type of person
involved, or do you want them to convict based on the facts of the
case?
o You want to look at the similar facts of the two incidents. When will we
have an additional strength to the evidence?
o Basically – similar fact evidence isn’t admissible unless there is more
connection than is usually required. We’ll see later how courts determine
this.
Is there evidence that meets the basic relevance test that we may want to exclude?
o Yes, if we’re trying to keep the trial from exploding, and also if we’re
trying to prevent too much prejudice.
o Policy can operate as an exclusionary factor (this type of evidence won’t
be allowed in, for example) OR policy can operate on the basis of
requiring the evidence to meet a stronger connection test before we will let
it in
o “Legal relevance” might be better termed “enhanced connection”
Legal Relevance – Materiality
- at the factual level, we want to see a connection between evidence and an issue
- at the legal level, we want to ensure that the issue is actually before the court; if
you have evidence that’s great, it has to go towards an issue that the court is
dealing with – if that issue isn’t before the court, then the evidence won’t be
relevant
o for example – if the evidence goes to mens rea, but you’re dealing w/ a
dangerous driving charge, will it be admitted? Probably not, b/c the test is
objective and mens rea isn’t an issue being determined in the case
- When dealing with relevance – you need to address the factual connection, and
also ask WHAT IS THE ISSUE, does the law allow it to be raised, and have the
pleadings actually raised the issue?
Often, all three are rolled together (common sense and human experience; connection;
and there’s an issue in the case)
- but what happens if the judge says that your evidence isn’t relevant
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unless you distinguish between the three levels, you may not get it!
If the judge says – not relevant; he may be saying – it doesn’t meet the connection
test. The judge could be saying – the issue that you want to put this evidence to
isn’t an issue that’s legally permissible.
On appeal, you have to figure out which of these things the judge has said.
Are you appealing the connection test? Or are you appealing the question of the
issue being raised?
So, no relevance = 1) not enough of a connection; 2) the issue you want to deal
with isn’t an issue at all; 3) the issue is an issue, but you haven’t raised the issue
in the pleadings
1) Connection test; 2) Stronger connection test; 3) Issue not really an issue; 4)
Issue is an issue, but you haven’t raised it
You need to be able to understand the difference between these four matters; you
need to get what the judge is saying; you need to understand what relevance
means in each of these three contexts.
So now – what is evidence worth?
Admissibility and Weight
If evidence is admitted, the trier of fact must consider it in reaching their factual
determination, but they don’t have to accept it or believe it. This is the concept of weigh.
Relevance is a matter of law and can be appealed as a right. Weight, on the other hand, is
different – weight is a question of fact.
- weight, then, isn’t appealable as a right
- so, the evidence is admissible, potentially relevant, but weight focuses on
credibility, reliability of the witness, etc.
- if a judge says that a witness doesn’t inspire confidence, and so the judge doesn’t
accept the evidence entirely – it’s admitted, but given little weight. Appealability?
Not likely!
- You might try to attack it on the principles applied to how weight is determined
(i.e., how important is eye contact to credibility), but that’s going to be HARD
- Weight is going to be put to the trier of fact; they may tell you how they feel
about weight (usually a judge will indicate it in their reasons), or they may not
(such as in a jury situation)
- There may be judges who will try to push things under the “weight” category that
may be better suited to the admissibility category
o Judges may say things like – they’re not sure if they should admit and
consider something, so they do it conditionally. I’ll look at it, and I’ll tell
you later whether or not I think I should or shouldn’t have listened to it.
That’s trouble for you b/c it’s harder to deal with.
o A judge may decide who should win the trial, and he’ll work the evidence
in such a way to prevent an appeal. A judge might admit evidence that he
normally wouldn’t have in order to eliminate a ground of appeal. He’ll
admit it, give it little weight, and then the loser can’t appeal on that point.
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o You see this often w/ hearsay; hearsay is generally inadmissible unless
there’s an exception. There are lots of exceptions and Levy says about 7080% of hearsay gets in anyway
This sort of behaviour is key in the adversarial system
The key notion is that the judge is entitled to say that he will look at it, but rule
later on whether it is admissible
o Is this a proper aspect of the adversarial system? Should this be allowed?
If you object to admissibility, should the judge be allowed to say – well
let’s listen to it and I’ll decide after the fact whether it’s admissible
o This doesn’t happen in jury trials – judges have to decide at the time
whether it’s in or out
o Judges do this so they don’t have to make a considered ruling on evidence,
so they can manipulate the evidence after the fact
Consider what a huge problem this is for counsel!
o Judges doing this can make it hard for counsel to plan their trial strategy
o If you don’t know whether the judge will accept something, how far can
you go? It’s hard for those challenging the evidence too.
The current state of advocacy is that counsel go along with judges when they do
this.
In the criminal context, the key question is if you don’t have a jury, should a
judge be required to rule? Especially if you have witnesses that are going to be
called based on the answer to certain questions. If the judge doesn’t say yes or no
to the question, what are you going to do?
Keep in mind – most of our rules come from jury trials in evidence.
o We assume that judges are better able to manage their prejudices
o We are fearful that juries can’t. That’s why we have more rules for juries!
o We don’t ask ourselves about the implications are for judge-only cases!
What a pain in the ass.
o Sometimes the rules are modified for judge-only cases, sometimes not.
Juries
Looking at the jury charges
p.21 – Section 3.5(5), 3.6
- what are the implications for a judge-only?
- Consider the case in R.(D.S.)
o A black judge made comments about who white police officers interact w/
the black community
o Was Judge Sparks entitled to bring this experience/opinion up?
- In this case, the SCC talked about judges and their opinion. How do we address
juries in this matter? What if there had been black jury members in this case? Can
we ask them to set aside their personal knowledge and experience? We did ask the
judge to do that!
- If a juror has a personal experience that may lead to a certain point of view that
may be viewed as “prejudice”, should they be disqualified? Is that fair?
Looking at the Canadian Judicial Council standards for jury charges
- the CJC is the regulatory body for judges in Canada
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they have a committee that writes the charges for use w/ juries
they write model instructions for specific types of criminal charges, for example
the charges have no force of law – they are merely recommendations
but, do you think a CA judge, who wrote the charge and is hearing an appeal
arguing that the charges are wrong, will they overturn this?
- Levy says the attitude is similar to the SCC’s attitude towards their obiter – it may
be obiter, but you better take it seriously, b/c the SCC said it!
- The jury charges carry a lot of weight
Jury charges continued:
p.20 – s.3 of the Jury Instructions in our materials
- 3.3 – judges can take judicial notice of things, but juries can’t
- juries must only consider what’s before them at trial
- 3.3 – facts (take note that these charges are mainly for criminal cases)
o Admissions – facts can be admitted prior to trial in civil litigation
o In criminal litigation – the accused can agree to or admit facts; in the
Criminal Code, it says that the accused may agree to facts; however, the
Crown doesn’t have to accept this, and may in fact reject it!
o They may reject this so that they have the opportunity to call witnesses
o There would be strategy on both sides – say the accused admits something
to keep a sympathetic complainant off the stand; the Crown doesn’t have
to accept this, so they can do that very thing!
o If the Crown rejects something, then any admission given by the accused
will be struck from the record
- So, juries should only consider what’s in the courtroom; includes what witnesses
say.
- Only the answers to questions must be considered (unless of course the question
is merely agreed to)
- 3.4 – looking at evidence for some purposes but not others
o Such as a prior criminal charge; can go towards credibility, but not
towards facts of the past charge as they are related to the current matter
- 3.5 – direct v. circumstantial evidence
o Direct = testifying to that which I saw
o Circumstantial evidence = an assumption based on the circumstances in
which something occurred
o So, even if the evidence is circumstantial, it can still be relevant
o If you’re going to use C.E., you’ll need to prepare for the judge to ask you
why you’re putting the evidence in?
- 3.7 – irrelevance of the sentence; it’s not for the jury to decide what the sentence
is, or consider it
o But in reality, juries consider these things!
o Consider the Latimer case – at the first trial, the jury convicts of 1st degree
murder but it’s set aside b/c of jury tampering by the Crown; at the second
trial, there was also a conviction of murder but only after they came back
and asked about the sentence
o In that case, you can see what the jury is thinking – they want to accused
to go to jail, but not for life!
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o The judge in the case knew that there was going to be a life sentence, and
he’s wondering if he can give a constitutional exemption. Allows for a
judge to exempt parties in particular cases, under particular facts, to be
exempted from a valid law for constitutional reasons.
o The judge told the jury that they didn’t have to worry about the mandatory
life sentence. At the SCC, this was overturned – and they said that the
judge shouldn’t have answered the question anyway!
o Consider also – Jury nullification
 Can a jury say – we know that someone’s guilty, but the law is
bad. So, the jury says they won’t apply the law and essentially
trump legislative supremacy. This happens in the U.S.
 In Latimer, our SCC says absolutely not. Jury nullification isn’t
allowed, judges shouldn’t talk about it and counsel shouldn’t
suggest it.
What about in civil matters?
- If we’re asking for punitive damages at a jury trial, what happens?
- The jury asks the judge about punitive damages; eventually the judge will have to
advise them on the law anyway (in this case, that it’s the civil equivalent of
punishment)
- The structure of potential remedies is something juries should be concerned about
in civil matters, but shouldn’t be worried about in criminal matters. Why is that?
- Keep in mind that the dynamics between the two different systems are very
different. That being said, the structure of evidence and process is often driven by
the criminal side of things.
Continuing on…
- 4.6 – Questioning of witnesses by jurors; a big no-no
o This hasn’t always been the case; in the past, this was allowed
o Now, it’s forbidden; this has been a change in practice
o Now, if a jury person wants to ask a question, it must be written and
submitted by the judge. If it is put to the witness, it must be asked by the
judge.
o Juries are now being treated more and more like judges in terms of being
neutral, passive triers of fact
- In the past, juries were made up of people who were locals, knew the place, likely
knew the accused. They were encouraged to ask questions. But this is much
different than what the jury has evolved into
- 4.3(3) – everyone is presumed innocent; they don’t have to testify or present
evidence
o The judge is saying to the jury that they may not hear from the accused at
all!
o Why is this significant?
o 100 or so years ago, an accused wasn’t allowed to give trial (due to
competence). They were considered biased, and courts didn’t want to hear
biased witnesses. In 1893, the Canada Evidence Act changed this.
o Policy trade-off: s.4(6) of the Canada Evidence Act – this says that neither
judge nor prosecutor shall comment on the failure of the accused or the
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accused’s spouse to give evidence; Def Counsel can comment on it if
he/she wants. The jury isn’t supposed to consider this, anyway – though
they often will.
o So under this section of the model jury charge isn’t a violation of the
above provision; this section is that there will be no comment on the
actual failure of the accused to testify. Here – this gives the jury a
hypothetical where the accused doesn’t, and affirms that this is okay.
o Is it a good idea to tell a jury this?
Going back to 4(6) of CEA – maintains that a spouse testifying shouldn’t be
considered either; I can’t find what he’s talking about…
Anyway, Ex. Parte Cote: deals with wives testifying against their husbands
o The Crown wanted to call the wife, even though Def Counsel didn’t.
o Under s.4 of the Canada Evidence Act, husband and wife are considered a
single legal entity, so in this case, the Crown wouldn’t be able to call the
wife
o The Crown argued that the couple hadn’t been officially married under a
Christian religious ceremony or under a civil ceremony.
o In Cote, the judge agreed that the wife had to testify (she ultimately
refused and was imprisoned for contempt) – stupid.
Assessing Oral Evidence
The Examination of Witnesses
Examination and Cross-Examination:
- When questioning a witness at trial, the party offering a witness will question
them first, eliciting information that is helpful to their case. This is called the
“examination in chief.”
- The other side will then question the same witness and try to elicit responses that
are helpful to their own side. This is called the “cross-examination”
- Questions during the examination in chief must be open-ended, while questions
during cross-examination may be, and usually are, leading
- When cross-examining a witness, the questions can be wide-ranging
o They may be questioned not only as to facts relevant to the case, but as to
matters that might cast doubt on their credibility, such as discreditable
conduct and associations unrelated to the case at hand
- When crossing an accused the rules are somewhat different, as there are rules in
place to protect an accused from being prejudiced
Refreshing and Recording Memory:
- Witnesses are permitted to refresh their memory prior to and during testimony
- There are no special rules relating to the device that the witness uses to refresh
their memory
- This is likely so b/c, as noted by Binnie J. in R. v. Fliss, it isn’t the device that is
entered into evidence, it is the witnesses’ recollection
- This needs to be distinguished from the concept of “recorded memory”
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-
Recorded memory is used where a witness cannot remember the events in
question, but he or she may testify from a record of his or her past recollection
(the record is usually, but need not be, made by the witness himself or herself)
- The conditions for the admissibility of past recollection recorded are from R. v.
Meddoui, summarized by Kerans JA:
o The past recollection must have been recorded in some reliable way.
o At the time, it must have been sufficiently fresh and vivid to be probably
accurate.
o 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.”
o The original record itself must be used, if it is procurable.
- This has been adopted by the SCC in R. v. Fliss
- The question then arises: “How can a witness who offers his or her evidence in
the form of a past recollection recorded be properly cross-examined?”
From Class:
We’re going to talk about the difference between Examination in Chief and CrossExamination. We’ll also talk about types of questions you can ask.
Leading questions:
- sometimes defined as one that can be answered yes or no
- more specifically, it’s when you give the witness the information that you want
them to parrot back to you
- this is in contrast to open-ended questions
Example:
1) What did you see next? (Open-ended)
2) Then you saw a car, didn’t you? (Leading)
Why do we care about leading questions?
- a witness who is led may be thought less credible than a witness who volunteers
the information themselves
- you can object if someone is leading their own witnesses, but strategically you
may not want to b/c it destroys the credibility of that witness
Question: What do you do with an honest, but forgetful witness?
- So, you get a will-say statement that indicates what they’re going to testify to
- Then, you get them on the stand and they can’t remember anything!
- There are different responses to this problem, but the more extreme the response
the less credible your witness will seem
o So, for example: “Are you sure that’s all you saw?” – you jog the
witnesses’ memory without leading them
o The next step: you don’t want to have to cross-examine them, but you may
have to get into a more leading question: “Did you see anything lying on
the floor?” – you’re directing them in part. This may damage their
credibility, because you’re pushing them towards something that you want
them to say.
o What happens next? Push them towards the will-say statement – ask them
whether the will-say statement is an accurate statement of what they saw.
Hopefully, that’s enough to get them on track.
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-
o At this point, you’ve done all you can to get the info w/o cross-examining
your own witness. In order to take that next step, you need to get the
judge’s permission to do so. You can ask the judge to have the witness
review their own statement to confirm it’s the statement they made.
o You’re going to ask them to acknowledge that the statement was theirs,
that it was true, and then you’re going to ask to put the statement into
evidence. Most judges won’t allow this, fyi.
o If the judge doesn’t allow it, what next? Now, you’ll need to crossexamine the witness on the statement: point out exact things that the
witness put in their own statement. Can you do this? Yes – see Canada
Evidence Act, s.10 (Cross-examining a witness on a previous statement);
s.9 – adverse witnesses, s.9(2) talks about written statements of witnesses
who aren’t adverse; as counsel, you’ll prefer to use 9(2) rather than 9(1),
which uses the term adverse (in the U.S., this is referred to as “hostile
witness”) – this is a witness who essentially denies telling the truth
o The key to remember is that the closer you get to leading, the worse it is
for credibility. You’ll have to weigh the credibility of your witness against
the value of the evidence you’re trying to get into the record.
o One alternative was suggested above, the idea of having the statement of a
witness put into evidence in order to prove the truth of the content. See R.
v. K.G.B. (SCC case), though Levy suggested this applies only to the
Crown. Also, in that case, the record was audio/video, not written. This is
sometimes allowed as an exception to hearsay, and you can use it if the
witness refuses to testify to what they had previously said.
o Question – can a witness ask to see the statement they gave, while they’re
on the stand? Yes – refreshing memory is allowed
Refreshing memory!
o Consider RCMP officers, who use notebooks to recall incidents
o Witnesses may bring any record or stimulus to jog their memories; they
have to either have made it personally, or they must verify it if it’s made
by someone else; the record should be made as soon as reasonably
possible after the incident occurred.
o However, will-say statements are more problematic b/c they are often
made much later, in anticipation of trial. Witnesses aren’t able to use willsay statements to refresh their memory.
o This is what applies to refreshing that occurs at trial.
o If the document is looked at in court, it must then be produced to opposing
counsel.
o In criminal matters, where there is a Crown witness, that won’t be a
problem b/c it’s already been disclosed. However, with a defence witness,
this may be more problematic! The Crown will want some time to look it
over, and see whether the witness is actually saying what is in the
statement
o What if they’re giving evidence that’s extremely on point, but they don’t
have a statement before them. It’s likely that they just read whatever
memory tool exists right before trial. What do you do? If a witness admits
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to refreshing their memory out of court, and the document hasn’t been
produced, that it should be – the judge will often agree to this. If the
witness says something to the effect that they’ll never forget the details,
that can be problematic – they may not be actually refreshing their
memory, then!
o Present recollection revived – I have an existing memory today, but only
because I’ve been reminded from something outside of my mind.
 In this case, it’s the oral evidence that’s the evidence.
o Past recollection recorded – where the witness doesn’t actually remember
the incident, but they made a record and they are now reading it to the
court and affirming that they made it.
o In the latter, consider – the witness says they always make accurate notes.
So, then, shouldn’t the note itself just be made evidence? The cases say
that the officer may read the notes to the court, and they say that it was
their accurate recollection at the time, then counsel should ask to have the
notes entered into evidence
 In this case, it’s not the oral evidence that you’re entering, it’s the
document that goes into evidence
- Testimonial factors – for next class
Testimonial factors:
Testimonial Factors:
- The trier of fact must make inferences about four things:
o 1) The witnesses’ use of language
o 2) The witnesses’ sincerity
o 3) Their memory
o 4) Their perception
- These are referred to as “testimonial factors”
Class:
- things that influence the assessment of credibility of testimony
- Under memory:
o Psychological impairments to memory?
o Is there a medical complaint that has bearing on a person’s memory?
- Perception – is there an impediment to their ability to see/hear the incident?
o Example: how do you tackle an accused who has been picked out of a
line-up?
o Perhaps you’ll ask the complainant/witness about the lighting at the
place/time of the incident
o How long were the accused and complainant in contact? The shorter
amount of contact may lead to less reliable perception. If there are no
particular characteristics that leave a strong impression, this is useful for
defence counsel.
o Does the complainant/witness require glasses? Can impact eye-sight!
- Consider too – what if the accused confesses?
o Remember ethics – you can’t put questions to the court that suggests that
the accused didn’t do it.
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o Can you still ask about eye-sight? You are suggesting her eye-sight is bad,
but aren’t you also in turn suggesting that she didn’t see the accused?
o Some lawyers suggest that these questions link to the burden of proof, not
whether or not the accused did it. You are suggesting that the proof
provided by the complainant isn’t sufficient to meet the burden of proof
beyond a reasonable doubt.
- What about allowing an accused to sit in the gallery rather than at the counsel
table? Levy gives this as an example of a tactic to use when challenging the
perception and memory of the witness. Judges deal with this differently.
o Some judges won’t allow it
o Some judges will allow it based on the accused still maintaining his
innocence (although, this might be problematic in itself b/c a judge
probably shouldn’t be placing this sort of condition on your action)
- What about an alibi? Keep in mind that what your client tells you isn’t always
accurate. Or, the alibi might be embarrassing or problematic for the accused.
o Do you tell the Crown? What if you don’t?
o What if the first time it comes out is on the stand?
o Can the Crown cross-examine the accused on the honesty of his alibi?
o This could be problematic too!
*Something to keep in mind – you want to be sure to understand the context that
evidence exists in.
Testimonial factors cont’d…
- Demeanour – does it matter how the witness acts?
- Does it matter that they don’t maintain eye contact, that they spoke quietly or
diminuitively?
- How important is this?
- Can a judge ensure they are judgment proof by saying that they “saw” the witness
on the stand, and then use observation of demeanour as a basis for their
judgment?
- Consider Pelletier and what the ABCA said in that case! They didn’t like that at
all.
- Consider how you, as an individual, evaluate demeanour. Most people make
judgments about credibility cold, which is what judges and juries do.
- Levy talks about a case that is similar to Pelletier:
- Def counsel said that judge couldn’t place complete weight on the demeanour of
the accused!
- They also said that the judge wasn’t relying on demeanour, she was relying on her
notes. This was wrong b/c by the time she got around to writing the judgment the
judgment, it was 18 months after the trial so she wasn’t relying on demeanour
anymore, she was relying exclusively on their notes.
- Levy asks – how do you deal with this? Is it right for a judge to place so much
weight on demeanour?
o Levy mentions aboriginal culture and how their demeanour differs from
Judeo-Christian Canadian culture
- In this case, ABCA agreed w/ Def counsel that she couldn’t rely on her notes to
determine demeanour
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o ABCA said they were in just as good a position as the trial judge! (Is that
right, considered that they didn’t see the accused AT ALL)
Consider Pelletier now – it also says that judges should be careful when making
decisions based on demeanour
- See para. 20 in particular
- The ABCA also quotes the approach of Justice MacKenna from the Irish courts
- Demeanour isn’t as simple as it is made out to be in our textbook; consider in
light of Pelletier
- Test – does a “reasonable jury” test apply when there is no jury?
o This comes up b/c there are often tests that come out of cases where there
were juries
o Should a judge be bound by the same considerations that apply to juries?
That’s really the question.
o It’s not entirely clear – some courts say yes, and some say no.
o The courts may be keeping it murky b/c they don’t necessarily want to tie
judges to the same tests that are required of juries.
Burden and Standard of Proof
o Levy says look at p.977 – Proof on a Balance of Probabilities
 The question – what is a “balance of probabilities”?
 Continental Insurance Co. v. Dalton Cartage Co. (1982)
 At issue in that case – the balance changes based on the nature of
the claims. So, if you’re dealing w/ an MVA, is the balance the
same as if you’re dealing w/ civil fraud?
 In this case, the court said that judges can differentiate, but it’s too
confusing for juries. Judges can alter the BOP, but not juries.
 You end up with differences between cases and how they’re heard.
 SCC has reversed this (not explicitly) in F.H. v. McDougall, 2008
SCC 53
 In F.H. the court addressed this split in standards between judges
and juries. Is it right? If yes, why can’t you tell the jury?
 If SCC affirmed Continental, then they had to explain the different
standards. Or, they had to say = one standard. In F.H. they went
with the latter.
 That being said, it still happens (they just don’t talk about it).
o So, Levy asks – when you’re dealing w/ a civil standard that has to be
proven on BOP – can you suggest that b/c the matter before the court, the
BOP should be weighted differently b/c the issue is more serious? Say,
you want the judge to use BOP differently in a sexual battery case than
you would in an MVA. Does this violate F.H.?
 Do you argue that an acquittal in a criminal case? You don’t want
to try to get it into evidence. But is it relevant?
 Look at the Alberta Evidence Act (s.26)
Admissibility of previous court proceedings
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26(1) In this section,
(a)
“conviction” means a conviction
(i) that is not subject to appeal or further appeal, or
(ii)
in respect of which no appeal is taken;
(b) “finding of guilt” means the plea of guilty by an accused to an offence or the
finding that an accused is guilty of an offence made before or by a court that makes an order directing that
the accused be discharged for the offence either absolutely or on the conditions prescribed in a probation
order, when
(i) the order directing the discharge is not subject to further appeal, or
(ii)
no appeal is taken in respect of the order directing the discharge,
and “found guilty” has a corresponding meaning.
(2) When
(a)
a person has been convicted of or is found guilty of an offence anywhere in
(b)
the commission of that offence is relevant to an issue in an action,
Canada, and
then, whether or not that person is a party to the action, proof of the conviction or the finding of guilt, as the
case may be, is admissible in evidence for the purpose of proving that the person committed the offence.
(3) A certificate containing the substance and effect only, omitting the formal part, of the charge and of the
conviction or finding of guilt, as the case may be, purporting to be signed by
(a) the officer having the custody of the records of the court in which the offender
was convicted or found guilty, or
(b)
the deputy of the officer,
is, on proof of the identity of a person as the offender, sufficient evidence of the conviction of that person
or the finding of guilt against that person, without proof of the signature or official character of the person
appearing to have signed the certificate.
(4) When proof of the conviction or finding of guilt of a person is tendered in evidence pursuant to
subsection (2) in an action for defamation, the conviction of that person or the finding of guilt against that
person is conclusive proof that the person committed the offence.
(5) When proof of a conviction or a finding of guilt is admitted in evidence under this section, the contents
of the information, complaint or indictment relating to the offence of which the person was convicted or
found guilty is admissible in evidence.
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(6) Subject to subsection (4), the weight to be given the conviction or finding of guilt shall be determined
by the judge or jury, as the case may be.
-
British case that says criminal convictions are irrelevant: Hollington v. Hewthorn
o Then, in Alberta…
o The Latta v. London Life case – a law professor; he wants to sue the life
insurance company who won’t pay the proceeds b/c they say that they
won’t pay coverage for an insured who is murdered by the claimant
o The issue in the civil action is whether Latta killed his partner. Who has
the BOP? The Insurer – they want to prove that he killed the partner. They
want to use the conviction from the criminal case. But Hollington says that
criminal convictions are inadmissible. In this case, the Insurer has to prove
that Latta killed the partner, even though he’s been convicted of it! And
they can’t use the criminal transcript either!
o The Great Train Robbery case – defamation case b/c a newspaper called a
group convicted of robbery, “robbers” and the people named said that this
was defamation. The newspaper had to go back and prove the case all over
again!
- In the Latta case, the court amended the Act to allow criminal convictions to be
used! So distasteful
o Then, Latta was found to be a vexatious litigant. Wow.
*So how does this all tie together?
- next class, we’re looking at admissibility and exclusion of evidence; you need to
think about the relevance of convictions and acquittals
- Levy says – keep in mind that this area of law is like a web and it all ties together
- You may be able to see the core issue, but you need to also be able to identify the
peripheral issues and how they tie together
A further aspect of demeanour – in R. v. N.S.
Credibility
When discussing questions of credibility, keep in mind the following distinction:
1) Is the witness telling the truth?
2) Is the witness a truthful person?
Means of Assessing Credibility:
In White v. R (1947, and cited w/ approval by R. v. Norman, (1993) ONCA), Estey J.
noted that the following factors were important to assessing credibility:
1) the general integrity and intelligence of the witness
2) his powers to observe
3) his capacity to remember
4) his accuracy in statement
5) is he honestly endeavouring to tell the truth
6) is he sincere and frank
7) or is he biased, reticent and evasive
*One reason why hearsay evidence is prima facie inadmissible is because when the
declarant’s statement is reported to the court by another witness, the trier of fact is
deprived of the opportunity to observe the declarant making the statement themselves.
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keep in mind, though, that a witnesses’ demeanour may not always be a reliable
or sufficient indicator of credibility
- there may be cultural factors at play
*Further, when assessing a witness in the context of all the evidence, the trier of fact must
ask whether the evidence is in harmony with the probabilities that might be recognized as
reasonable arising from the rest of the evidence?
-
R. v. Pelletier, 1995 ABCA (Code 76)
Parties, Positions, History: Accused: Pelletier, charged and convicted of sexual assault.
*Pelletier’s appealed on the grounds that the trial judge neglected to consider the defence
theory that the complainant held an honest but mistaken belief that she had been sexually
assaulted.
Facts: Accused and complainant were at a party together; C got very drunk and was put
to bed at the house where a few party-goers had gone; during the night, it was alleged that
A went to C’s room and sexually assaulted her while she was passed out; she awoke
during the assault; after the assault, the phone rang and was answered within 2 rings; A
admitted to answering the phone and it was alleged that the only way he would have been
able to answer it that quickly was if he was in C’s room; further, the son of the
homeowner was in the room below C’s and heard a noise; it was argued that it could have
been footsteps or it could have been someone rolling over in bed.
Issues: Did the trial judge err by not considering the defence theory? Could a properly
instructed jury reject the defence theory?
Holding & Reasons: No and Yes.
*The TJ didn’t accept the evidence of the accused. TJ focused primarily on the
demeanour of the accused and rejected his evidence apparently on his manner.
*There was other evidence that the TJ did accept, namely the evidence of the son who
was in the room below. She also mentioned that she found the son to be an honest
witness.
*The C.A. focuses on the fact that the TJ appears to have based much of her decision on
her assessment of the demeanour of the accused and the witnesses. They adopt a quote by
Justice MacKenna of the Irish court which cautions against the overreliance on the
assessment of demeanour by judges.
*C.A. notes that the law requires that a court ask “whether any reasonable properlyinstructed jury could convict on this evidence.” If the answer is yes, then that’s it.
*Further, the reasons of the trial judge must be read as a whole. In this case, there was
enough for the C.A. to decide that the judgment should be left alone, in spite of the TJ’s
reliance on demeanour.
Ratio:
Main Principles:
Comments/Obiter/Questions:
R. v. N.S., 2010 ONCA (Code 80)
Parties, Positions, History: Appellant: N.S., a Muslim woman who appealed an order by a
preliminary inquiry judge regarding the removal of her veil in order to testify.
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*During the preliminary inquiry, the judge held that N.S. should be required to remove
her veil during trial while she was giving evidence.
Facts: N.S. alleged she was sexually assaulted by two family members, an uncle and a
cousin. One of the men, M.D.S., moved during the preliminary inquiry that N.S. be
obligated to give evidence with an uncovered face so that he may be able to exercise his
right to make full answer and defence to the charges against him. The judge questioned
N.S. casually, and did not permit her to consult counsel. After the questioning, the judge
held that N.S. would be required to remove her veil while answering questions. N.S.
appealed.
Issues:
1) Did the preliminary inquiry judge have jurisdiction to decide whether N.S. should
be required to remove her niqab before testifying?
2) If the preliminary inquiry judge had that jurisdiction, did he err in law in requiring
N.S. to remove her niqab?
3) Should this court decide whether N.S. should be required to remove her niqab
before testifying?
Holding & Reasons:
Issue #1 – Yes, the preliminary inquiry judge had jurisdiction.
*Preliminary inquiry judges have the statutory power, under the Criminal Code, to
determine whether the Crown has sufficient evidence to justify a trial. Under that
statutory provision, they may consider Charter principles and values when they are
exercising that power. Any order they make will be pursuant to the provisions of the
Code.
*This is not a Charter remedy. It’s a statutory power that the judge is exercising so that
he/she may make an order. Charter values will come into play
Issue #2 – Yes, the judge erred in requiring N.S. to remove her niqab.
*In determining whether or not to make an order requiring N.S. to remove her niqab, the
inquiry judge ought to have performed an analysis of the rights of each of the parties, and
then weighed and balanced them accordingly.
Fair Trial: The right to cross-examine witnesses is fundamental to an accused’s right to
make full answer and defence to the charges against him/her.
*However, cross-examination is a means to an end. Trial fairness is not just about the
accused. Judges will also take account of broader societal interests.
*“Departures from the traditional face to face public confrontation between accused and
witness will run afoul of the Charter only if they result in a denial of a fair trial to the
accused.”
*Courts should not be so obsessed with demeanour evidence that they should require a
person to show their face at trial. Higher courts have acknowledged the fallibility of
demeanour evidence.
Freedom of Religion: This right on the part of a witness is not inherently triggered by
participation in the criminal justice process. A witness seeking to exercise this freedom
must establish that their practice fits into the right described in the Charter.
*The court, when faced with this issue, should also consider alternatives that will allow
for accommodation of the right.
Reconciling the rights: Here are the steps:
26
1) Determine whether the constitutional values underlying both parties’ claims are
actually engaged in the circumstances.
2) Evaluate whether the right of the witness imposes an impediment to the right of
the accused to cross-examine the witness.
3) If both rights are engaged, the judge should attempt to reconcile the rights by
giving them both effect. Context is key here – how a judge goes about reconciling
will be very specific to each scenario.
*There are some key underlying concerns for this issue. First, there is a concern about
how denial of N.S.’s right would reflect on the greater society of Canada. Allowing N.S.
to wear the niqab would promote more inclusion for those who are currently fearful that
they would be required to compromise their religious beliefs in order to participate in the
justice system. Second, it also acknowledges N.S. as an individual who is in a particularly
vulnerable position.
Application: The preliminary inquiry judge’s decision was inconsistent with the Charter
tests laid out in the current jurisprudence. Further the judge erred in not allowing N.S. an
opportunity to consult with counsel before questioning her about her religious beliefs.
Issue #3 – Yes, the C.A. may make a definitive order.
*The defence argument that the wearing of the niqab at the preliminary inquiry would
interfere with the assessment of credibility or the ability to cross-examine would fail.
*The court notes that this case has narrow application, and if this were a jury trial it
would be up to the jury to assess whether seeing the complainant’s face would be
required.
Ratio:
Main Principles:
Comments/Obiter/Questions:
Class Notes:
- central to this case – demeanour as an aid to credibility
- this case highlights the problems with “demeanour evidence”
- defence objects b/c they say the judge and jury won’t be able to examine the
complainant’s demeanour
- fair trial issues b/c you won’t be able to examine the complainant in the way that
is traditional
- constitutional issues in play – right to a fair trial v. right of religious freedom
- the ONCA didn’t allow one right to trump the other; they developed a more
nuanced decision
- so: the niqab didn’t totally interfere w/ the cross-examination; body language,
tone of voice, hesitations in timing, eye expression were all still available to the
judge and jury
- this initially suggested that the court favoured freedom of religion, but that’s not
the result
- they indicated that what really mattered was the seriousness of the issue on which
they were testifying; if the evidence is peripheral, then the niqab won’t be a
problem at all b/c credibility of the witness isn’t going to matter; further, even if
the evidence itself is important, it’s not about the witness at that point, it’s about
the record they may by producing
27
-
they say that the case would be different in an instance such as this one; the
charge is serious, and the credibility of the complainant is VERY important
o bluntly, there would be no conviction unless the jury believed the
complainant
- the court says that the balance to be struck between the constitutional rights would
be based on the facts in question; Levy says that the ONCA copped out here by
saying that the person to decide would be the trial judge, and they send it back (in
the end, the trial judge said that the niqab should be removed)
- Keep in mind that witnesses do have rights when they are engaged in the judicial
system; they may have Charter rights that are impacted by their involvement
Q: What role can the jury play?
- the ONCA made an assumption about the role of the jury
- juries are supposed to absorb the info, and then spit out their decision
- juries can take notes, but they don’t have to; they aren’t always provided with the
means to do so
- the ONCA in this case puts forward a controversial view – how would a jury
convey that they wanted to see a complainant’s face? They would have to, under
their own initiative, send a note to the judge asking to see the complainant’s face.
- Perhaps the ONCA intended to say that a TJ could ask the jurors whether they
want to see the complainant’s face. But then you have the problem of 12 different
people who may have different opinions based on the different situations of the
jurors! What if one of the jurors is a Muslim themselves?
- This is an open issue that does need to be clarified by the SCC!
Consider Seaboyer
- a case regarding considering the complainant’s past sexual history in a sexual
assault case
- the rights in conflict – right to fair trial v. right to privacy
A little bit of info! Contempt!
- two kinds; contempt in court and contempt outside of the court
- the latter may involve something like a lawyer saying something in the media for
the purpose of bringing an officer of the court or the legal system into disrepute
Evidentiary and Persuasive Burdens
*The persuasive burden of proof is on the party who, in law, is required to establish the
relevant facts to succeed.
*The evidentiary burden of proof is on the party whose duty it is to raise the issue.
Burden and Degree of Proof in Civil Proceedings
*In civil proceedings, the plaintiff typically bears both the evidentiary and persuasive
burden on all the elements of the action.
*Motion for a Non-Suit: At the close of the plaintiff’s case, the defendant may argue that
the plaintiff has not met his or her evidentiary burden.
*The test to be applied: “the Judge must weigh the evidence given, must assign what he
conceives to be the most favourable meaning which can reasonably be attributed to any
ambiguous statements, and determine on the whole what tendency the evidence has to
establish the issue… whether, assuming the evidence to be true, and adding to the direct
28
proof all such inferences of fact as in the exercise of a reasonable intelligence the jury
would be warranted in drawing from it, there is sufficient to support the issue.”
*In order to avoid a non-suit, the plaintiff must only establish a case fit to go to the trier
of fact; the plaintiff doesn’t have to actually prove anything.
R. v. Lifchus, 1997 SCC (CB 988)
Parties, Positions, History: Accused: Lifchus, a stockbroker, convicted of fraud.
Facts: Lifchus appealed his conviction on the ground that the trial judge had not properly
explained the concept of reasonable doubt to the jury.
Issues:
Holding & Reasons:
*What is the meaning of proof beyond a reasonable doubt?
*The court contemplates whether the expression “reasonable” should be used. “Moral
certainty” isn’t a good term to use, and it shouldn’t be equated w/ evidentiary certainty.
The court doesn’t want jurors to convict based on moral certainty even if the Crown has
failed to prove its case beyond a reasonable doubt.
*What should be included in the definition? Does the court want the reason to be
logically connected to the evidence? It’s a good idea, except that the definition works to
the detriment of the “inarticulate” juror. Some doubts, though reasonable, are simply
incapable of articulation. Jurors shouldn’t feel that the intangible effect of a witness’
demeanour can’t be taken into consideration in an assessment of credibility.
*“It will suffice to instruct the jury that a reasonable doubt is a doubt based on reason and
common sense which must be logically based upon the evidence or lack of evidence.”
But consider – the “lack of evidence” – is that what we want jurors to consider?
*The court discusses the charge to the jury. When reviewing the judge’s charge, the
whole charge should be considered.
Ratio:
Main Principles:
Comments/Obiter/Questions:
Class:
-
-
-
Cory J. dismembers reasonable doubt and reshapes it;
Juries should be told what “reasonable doubt” means
“Likely, we’re not going to explain that, it’s self-evident what it means!”
Review the case to refresh your memory about how reasonable doubt works, and
what you need to do…
The court does discuss demeanour (p.991); they discuss how the reasonable may
be based on a gut feeling based on seeing someone on the stand. This goes against
the proposition that we should tell juries that their reasonable doubt must be based
on a reason they can explain or articulate. This is dangerous b/c there might be
something that a juror can’t explain, but it still creates a reasonable doubt.
Levy suggests – is it, perhaps, dangerous to allow a juror to base their decision on
a gut reaction to demeanour? Demeanour seems to be the only aspect of evidence
that is permitted to be based on gut reaction.
The SCC accepts it!
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-
-
One other point to consider from this case: the directions on “reasonable doubt”
don’t work if there is a reverse onus for burden of proof; Oakes;
In the suggested jury charge, there is nothing about how to address a jury about a
reverse onus!
In addition – the model jury instructions that are endorsed by the Canadian
Judicial Council mirror this
The Suggested Charge:
o Is it a good idea to get juries to think about the “absence of evidence”?
Aren’t you asking the jury to draw inferences from the absence of
evidence, such as when the accused doesn’t testify?
o We don’t want juries to follow a line of reasoning that might contradict
the presumption of innocence.
o What if there’s a witness who saw the incident, but no one calls that
witness. Do we want juries to infer something from this?
 There is a principle of evidence that allows for an inference that if
you don’t call a witness, the other side can draw an adverse
inference and can put that to the court. We saw this in Civ Pro
 This procedure isn’t available in criminal law; if the Crown doesn’t
call a witness that you thought they would call, a judge can be
asked to order on an inference
o The problem in Lifchus is that the statement is general – juries should
consider the absence of evidence! Essentially, if there is no evidence, you
can’t draw a positive inference – that makes sense. But, by being allowed
to take into account a lack of evidence presents a problem.
Court says – you need to “substantially comply” the standard in Lifchus, but what
the hell does that mean?
Morin v. The Queen, 1988 SCC (CB 995)
Parties, Positions, History: Accused: Morin, charged with the murder of a young girl.
Facts: Morin was acquitted by the jury of murder. The Crown appealed to the ONCA,
who allowed the appeal. Morin appealed to the SCC.
Issues: How is the jury to consider the evidence? In part, based on what they deem to be
believable, or as a whole?
Holding & Reasons: As a whole.
Sopinka J:
*The defence raises the point that the evidence of the accused doesn’t need to be
believed; it must merely raise a reasonable doubt. And the court emphasizes that this
doesn’t mean a trier of fact should evaluate it piecemeal.
*When directing a jury, the judge must be careful to instruct that while they need not
believe the defence evidence on a vital issue, it is sufficient that if, viewed in the context
of all the evidence, that they have a reasonable doubt as to the accused’s guilt.
*If each piece is considered on its own, and disregarded if the trier of fact doesn’t believe
it at the time it is presented, this can be problematic. “…the case is not decided by a
series of separate and exclusive judgments on each item or by asking what does that by
30
itself prove, or does it prove guilt? That is not the process at all. It is the cumulative
effect.”
*This piecemeal approach, also referred to as the two-stage approach, has supporters who
say that there is a concern that a determination of guilt will be based on facts that are
doubtful. But “the answer to this concern is that a chain is only as strong as its weakest
link. If facts which are essential to a finding of guilt are still doubtful notwithstanding the
support of other facts, this will produce a doubt in the mind of the jury that guilt has been
proved beyond a reasonable doubt.”
*During deliberation, the trier of fact must consider the evidence as a whole, and evaluate
whether the prosecution has proved their case beyond a reasonable doubt.
Wilson J:
*Wilson’s approach: “the jury must be instructed at some point in the charge that in
making a determination as to the guilt of the accused they must have resort only to facts
which, when assessed in the context of all the facts, have been proved to their satisfaction
beyond a reasonable doubt.”
Ratio: When determining whether the prosecution has proven their case, the trier of fact
is to consider the evidence as a whole, rather than piecemeal during the trial.
Main Principles:
Comments/Obiter/Questions:
Class Notes:
Facts: the accused was wrongly accused of murder
- his case was eventually overturned b/c of DNA testing
- but it took forever to have this resolved!
- DNA evidence – Levy raises some questions about DNA testing… he says that
the issue comes up in civil matters when trying to determine who is the father of a
particular child; this sort of evidentiary issue comes up in family and wills &
estates law
o The range of factors involved results in a 95-96% chance of accuracy in
Canadian labs; they only test 3 points of similarity
o There’s a British lab that tests 70-80 points of similarity!
- Keep this question about the accuracy of scientific evidence in mind. Should we
really bow down to the accuracy of “hard science”?
o Consider statistical evidence…
o This came up when President Clinton was in a civil trial – what was the
likelihood that someone would have the same DNA as him?
o The question of the statistical likelihood that two people would have an
identical genetic profile: there are statisticians who are wide apart on this
sort of analysis. Some say it’s practically impossible, others say it’s
1:200,000. That’s pretty far apart.
What’s the point to this case?
- how do we want a jury to evaluate evidence?
- This case shows two different schools of thought
o First, the majority says that evidence should be considered in total. They
should ask whether all the evidence before them, even stuff that’s not
reliable, does the evidence give rise to a reasonable doubt.
31
-
o Second, the minority view is that each piece of evidence should be tested
and ask whether the particular piece of evidence was reliable. They should
only ask the question about reasonable doubt in the context of the
evidence that they believe beyond a reasonable doubt. This would result in
a lot of evidence being excluded from the final stage of consideration
The SCC adopts the idea that evidence should be considered in total.
What does this do to our notion of reasonable doubt?
Judicial Notice
Reading Notes:
Judicial Notice: How Much is Too Much? – by Mr. Justice Ian Binnie
*Judicial notice isn’t an exceptional procedure; rather it is the rule.
*Many facts in cases aren’t established, they are just assumed. Where do these “facts”
come from?
*There are weaknesses to the whole practice of judicial notes:
1) What everybody knows may be wrong.
2) What about trial fairness?
3) Judges sometimes contradict each other about some “fact” that “everybody”
knows.
*There are three schools of thought when it comes to judicial notice:
*The Thayer-Wigmore School
*This school subscribes to judges taking notice of facts which are known to “intelligent
persons generally.”
*The School of Edmund Morgan
*Morgan was of the view that the Thayer-Wigmore school of thinking was too broad.
*The Morgan view has been adopted in the Sopinka, Lederman, Bryant text The Law of
Evidence: judicial notice is limited to “facts which are (a) so notorious as not to be the
subject of dispute among reasonable persons, or (b) capable of immediate and accurate
demonstration by resorting to readily accessible sources of indisputable accuracy…”
*Binnie suggests that these two school are complimentary.
*According to Binnie: “…unlike Professor Thayer, for whom judicial notice created a
rebuttable presumption of accuracy, Professor Morgan necessarily concluded that if
certain facts were properly made subject to judicial notice, they were, by definition, not
open to rebuttal.”
*The School of Kenneth Culp Davis
*There is a distinction between different kinds of facts: “adjudicative” facts, “legislative”
facts, and “social” facts.
*Adjudicative facts: “those that concern the immediate parties, who did what, where,
when, how and with what motive or intent.”
*Legislative facts: “those that establish the purpose and background of legislation,
including its social, economic and cultural context.”
*Social facts: “social science research that is used to construct a frame of reference or
background context for deciding factual issues crucial to the resolution of a particular
case.”
*In Canada, according to Binnie:
32
*Adjudicative facts are largely governed by the Morgan criteria
*For legislative and social facts, the prudent course of action is to call an expert witness
at trial.
*If counsel fails to call expert evidence with respect to historical or social science
research, they may find some judges doing the research for them.
- for cases involving this kind of evidence, there are problems b/c often the original
parties to the action are no longer before the court – the appeal takes on greater
social implications
- My question: if this is so, why not make it a rule that adverse research of any kind
be put before the court?
*The criteria for judicial notice are applied less stringently to social facts and legislative
facts
*For the most part, the SCC has limited judicial notice of social and legislative facts to
relatively non-controversial matters
*The fundamental principle = parties should be able to meet all facts that influence the
disposition of the case.
*Finally, judges reserve unfettered discretion to exercise judicial notice in their lawmaking function.
Class Notes:
*Different schools of thought about judicial notice!
*How far can a judge go to accepting something as a fact, even if there’s no evidence to
prove it?
*It’s generally agreed that some facts are so well known, so obvious, that you don’t need
to call evidence to prove them.
*We divide the types of facts as so:
- First, adjudicative facts; these are facts that are relevant to the question of guilt or
innocence (in a criminal context); facts that relate to the decision that needs to be
made
- Second, social and legislative facts; these arise most often in constitutional
litigation – what factors underlie the Parliament’s decision to pass particular
legislation? The facts have a broader significance than adjudicative facts, which
are narrow and specific to the trial.
o Social evidence comes up in some weird situations, such as sentencing,
where a Crown will introduce statements like “this is now a prevalent type
of crime, and sentencing should be more severe” – is this true? Prove it!
*Under Adjudicative facts, there are two schools:
- Thayer/Wigmore
- Morgan (Davis)
- The distinction is a matter of degrees
- Thayer/Wigmore = the more judicial notice, the better. It saves time and
resources. Why do we need to prove the obvious?
o A more liberal view of what is obvious.
- Morgan (Davis) = judicial notice may be taken, but it must be of notorious facts;
this suggests a higher degree of certainty that the fact is accurate.
*Social Facts:
33
- Thayer/Wigmore is more accepted under this heading
- The tendency is to be more liberal in this area
- The two schools of thought are quite close together under this heading
In Canada, where do we stand?
- Until recently, you could stand just about anywhere you please!
- We had authority for everything!
- Justice Binnie, in his article, is saying:
o More consistency and coherence!
o And, especially in adjudicative facts, be cautious (run more closely to the
Davis school of thought). You don’t want there to be room for dispute if
you want to take judicial notice
o Social facts, though, should still be approached flexibly
- R. v. Spence, 2005 SCC 71 – Binnie wrote the decision, it talks about judicial
notice and he finds his article persuasive. Imagine that!
- Binnie cautions regarding social facts and judicial notice – the courts will take
notice of social facts, but it’s safer and better to call an expert. He says that you
run the risk of a judge either a) not taking judicial notice, or b) having the judge
do their own research!
So, how should a judge advise a jury about a fact that they have taken judicial notice of?
- It’s clear to the judge that he/she has taken judicial notice.
- What’s the status of the fact to the jury?
- If a judge takes notice, MUST the jury accept it as fact, or MAY they accept it? Is
it compulsory or optional?
- The model jury instructions use the word MAY, and Binnie agrees, too.
- So, even if the fact is notorious, and EVERYONE knows it, a judge should still
tell a jury that they MAY accept it as fact.
Admissibility and Exclusion of Evidence
Relevance, continued
- common sense and human experience
- In Watson – “logic and human experience” – Levy doesn’t like this term b/c it
implies a philosophical connection
- How does this expression play out in the cases? Is it clear?
R. v. Watson, 1996 ONCA (CB 85)
Parties, Positions, History: Accused: Watson; charged with first degree murder. The trial
judge convicted the accused. The appeal by the accused was allowed.
Facts: The victim was shot while on the premises of his business. The accused was there
during the shooting with two other men, Headley and Cain. There was a conflict
regarding how many bullets struck the victim. The pathologist testified the victim was
shot seven times, while the firearms expert testified that the victim was shot five times.
At trial, the defence put forward a theory that there was a possibility that either Headley
or Cain, or both of them, engaged in a spontaneous gun fight with the deceased.
Issues: Is the evidence of Clive Mair admissible? Is it relevant?
Holding & Reasons: Yes and yes.
34
*In the abstract, the principle goes like this: “Whether as a matter of human experience
and logic and existence of “Fact A” makes the existence or non-existence of “Fact B”
more probable than it would be without the existence of “Fact A.” If it does then “Fact
A” is relevant to “Fact B.” AS long as “Fact B” is itself a material fact in issue or is
relevant to a material fact in issue in the litigation then “Fact A” is relevant and prima
facie admissible.”
*In this case, there was a two-step inquiry that needed to be made: 1) Does the fact that
the deceased always carried a gun make it more likely he was in possession of a gun
when he was shot? 2) Does the fact of gun possession when he was shot make it less
likely that Watson was party to a pre-arranged plan to kill or harm the deceased?
*Just b/c a direct connection is absent doesn’t mean the evidence isn’t relevant. If a piece
of evidence triggers a “chain of inferences” that leads to the required conclusion, then the
second stage of the inquiry can be satisfied.
*What about evidence of habit or disposition? Evidence of habit = an inference of
conduct based on an established past pattern of conduct. Evidence of disposition = an
inference of the existence of a state of mind from a person’s conduct on one or more
previous occasions and a further inference of conduct on the specific occasion based on
the existence of that state of mind. Both can constitute circumstantial evidence.
*The general of the nature of a habit doesn’t affect relevance of the evidence, but could
go to the weight to be given to the evidence.
*The evidence in this case that the deceased habitually carried a gun wasn’t introduced to
justify the shooting of the accused or to imply he was of bad character, but to extricate
the appellant from any involvement in that shooting.
Ratio:
Main Principles:
Comments/Obiter/Questions: REVIEW THIS CASE CAREFULLY. It’s tricky.
Class Notes:
- Watson – relevance is difficult
- Analysis – a) what the issues actually are; b) what is the connection between the
evidence and the issue
o That’s what’s going on in Watson
o It’s easy to get sidetracked into thinking that there’s only one issue, and
that it’s simple
- Watson’s position was that he was just the driver; if the other parties are
murderers, his position was that he didn’t know anything about it, and he wasn’t
involved
- But, what is the evidence that was in contention? DC wants to call Mair; DC
wants judge to rule on the admissibility of Mair’s evidence
- What’s the connection between Mair’s evidence and the case?
o TJ didn’t think there was any connection, so he disallowed the evidence
o He took the position: it might be relevant if the accused had said that the
other two parties didn’t commit murder, b/c they were acting in selfdefence. Then it would be relevant that the deceased had a gun.
o Mair’s evidence was based on routine/habit of the deceased – habit
evidence is permissible as circumstantial evidence.
35
-
-
-
Watson appeals – he argues that the evidence should have been admitted
Levy suggests we may want to know a bit more about the evidence.
o There was some controversy about the number of guns that were
discharged in the back room; the two experts gave evidence and it
conflicted
o If there were 5 gunshots, then one of the parties that Watson brought had a
gun that could have done this (it had 6 shots)
o If there were 7 gunshots, and there was no time reload, then they would
have had to come from 2 guns
o The latter might suggest that the deceased pulled a gun. The C.A. says this
might support the idea that this wasn’t a planned kill, i.e. the defence
theory.
The key to admissibility – you can only take into account what is known in the
trial at the time that the evidence is offered. You can’t assume that the witness
will follow their witness statement (it’s possible that Mair wouldn’t have said
what he put in his statement anyway). You can’t make the judgment after the fact,
either.
o But note, the Court of Appeal isn’t restricted to the ex post facto analysis
One thing we take away – the potential connections between issues and evidence
is very fine, so we need to think in a refined manner
Second – judges may not see connections that are obvious to us. Further, we will
see connections that aren’t actually there! Thus, don’t talk about logic.
Logic v. common sense: common sense is more subjective, whereas logic
connotes something more objective
Third – the idea of habit/routine evidence: this principle applies to civil cases too
o An Aussie civil case to consider – woman has surgery; she’s walking in
the hospital; she falls on the floor; she says at the time that she slipped on
a banana peel; no one could find the peel; she sued the hospital using a
duty of care argument
o How do you approach this if you are counsel for the hospital? How do you
prove there was no peel?
o You may want to introduce hospital maintenance records – was there a
cleaner who was assigned to that hall on that day? What time would the
cleaner actually clean the hall?
o Then, you have a cleaner to question. If she was following the log, she
would have cleaned the corridor about 30 minutes prior to the accident.
o You ask the cleaner if they have a recollection of cleaning that hall on that
day? They’ll likely say no – so where does that leave you?
o You’re working towards establishing a pattern for the cleaner. The
personnel file – are they diligent, do they do things on time, do they do a
good job of cleaning?
o So, you need to do a bit more work to get the evidence to do what you
want it to do. You have to put the pieces together for the judge/jury. You
are trying to establish her habit – she could testify to it, but it’s not likely
as strong as pulling out the evidence and laying it all out.
36
-
-
-
Consider – evidence of children; we don’t accept that their evidence will prove
anything. We will look for corroboration for their evidence. If we DO let them
testify, we still need corroboration. What a pain in the ass.
Breach of promise to marry – you need more than the evidence of plaintiff; you
need corroboration.
There are cases that say this principle extends to animals, too! HAHAHAHA
Consider the dog idea – a dog is allowed its first bite, but not its second b/c the
first hasn’t established a pattern
Consider also, the Effert case – a mother who committed infanticide, but
confessed to the police saying that she couldn’t pay for the child, and the killing
was intentional
o She said that she was willing to accept a plea of infanticide; Crown
refused, charged her w/ murder
o Psych evidence indicated that she had post-partum depression and that’s
why she acted that way
o Jury convicted her of murder
o C.A. set aside the trial
o During the retrial, she was convicted again, based on the same reason –
jury rejected the psych evidence and accepted her confession
o The fact that a jury rejects an expert isn’t a ground for appeal; rejection of
expert evidence is common when you have more than one expert (consider
the oil baron’s wife case – Joudery (I think the spelling))
Existence of contradictory evidence – not enough to raise reasonable doubt; what
you need is irreconcilable contradictory evidence – you need the trier of fact to
not be able to make up their mind!
R. v. Morris, 1983 SCC (Code 128)
Parties, Positions, History: Accused: Morris; convicted of conspiracy to import heroin
from Hong Kong; BCCA upheld the conviction; SCC upheld the conviction, but split 4-3.
Facts: In a search of Morris’ house, the police discovered a newspaper clipping that
discussed the heroin trade in Pakistan. Morris was charged w/ conspiracy to import
heroin from Hong Kong.
Issues: Did the trial judge err in admitting the newspaper clipping into evidence?
Holding & Reasons: No.
McIntyre: An inference could be drawn from the unexplained presence of the newspaper
clipping among the possessions of the appellant that he had an interest in and had
informed himself on the question of sources of supply of heroin.
*McIntyre agrees that the probative value is low, but this shouldn’t be confused with
weight. “If the article had concerned the heroin trade in Hong Kong, it would of course
have had greater probative value.” But whether the article is about Pakistan or Hong
Kong goes to differences of weight, not of admissibility.
Lamer (dissent): Lamer agrees with the dissenting judge of the BCCA (Anderson J.A.)
who reasoned that the article was inadmissible b/c it was completely irrelevant. The
suspicion raised is that someone who reads or keeps clippings is more likely to commit
the offence in question than someone who doesn’t.
37
*Lamer quotes Thayer’s statement of the law:
“(1) that nothing is to be received which is not logically probative of some matter
requiring to be proved; and (2) that everything which is thus probative should come in,
unless a clear ground of policy or law excludes it.” Lamer adds, regarding the
discretionary power judges exercise to exclude logically relevant evidence “as being of
too slight a significance, or as having too conjectural and remote a connection; others, as
being dangerous, in their effect on the jury, and likely to be misused or overestimated by
that body; others, as being impolitic, or unsafe on public grounds; others, on the bare
ground of precedent. It is this sort of thing, as I said before, - the rejection on one or
another practical ground, of what is really probative, - which is the characteristic thing in
the law of evidence; stamping it as the child of the jury system.”
*Lamer says that the primary rule of exclusion (disposition that the accused is the sort of
person who would likely commit the offence) is that the evidence, though relevant, is
inadmissible.
*This doesn’t mean that just b/c evidence may tend to prove disposition that it will be
excluded; if it relevant to some other given issue then it may be admitted if the judge
finds that its probative value outweighs the prejudicial effect.
*The ratio for Lamer: The evidence is relevant, but inadmissible based on an exclusion.
*In the case at bar, the sole relevancy of the clipping is that it goes to disposition, namely
that traffickers are more likely to keep such information than people who aren’t
traiffickers.
Ratio: A trial judge has the ability to exclude evidence offered by the Crown where the
prejudicial effect of the evidence exceeds the probative value (though the appeal courts
agreed that the judge was correct here in not excluding the evidence).
*It appears the Majority and Dissent don’t disagree on this principle, but they disagree
about whether or not the information was of sufficient probative value to include.
Main Principles:
Comments/Obiter/Questions:
Class Notes:
- the article does talk about heroin, but it doesn’t talk about Hong Kong, it talks
about Pakistan
- Does the evidence have some connection with the case? If yes, then you get into
the balancing act
- If relevant, then prima facie admissible; but if the prejudice is high, and the
probative value is low, then exclusion is likely
- Prejudicial = if the evidence achieves something which it is not supposed to do,
then it may be prejudicial. A criminal record, for example, may be admitted, so
that the accused can be cross examined on it. This would go to credibility. But
now the trier of fact knows the accused has a record – does that taint the view of
the accused? It can’t be used as evidence of bad character, for example.
o How you use evidence differs depending on what the evidence is and what
you’re trying to prove by using it
- Corbett – excluding evidence b/c of the prejudicial effect is worse than the
probative value
38
-
-
-
-
-
o A Corbett order allows you do try to exclude certain evidence (the
example we’re using is a criminal record – not sure if it’s used for other
type of evidence)
Consider – what if your client is accused of sexual assault, and he has a criminal
record for criminal assault? You apply for a Corbett application. If you’re denied,
you don’t put the accused on the stand b/c you don’t want that evidence to be
presented.
So, why is it that a criminal record is AUTOMATICALLY relevant to your
credibility?
o What’s the issue? If your record is for a crime of dishonesty – theft, fraud,
filing a false affidavit – then maybe. But what about other crimes?
o What if the person being cross-examined is a witness? You have no
recourse to prevent a past record from being revealed.
So, back to the point – is the newspaper clipping relevant?
o SCC splits 4-3;
o Majority says it is relevant – the interest in importation of heroin
expressed in the article is enough
o Minority says that there needs to be a stronger tie to Hong Kong
One of the cases cited – Cloutier – there was a connection that was trying to be
drawn between using and trafficking
o Evidence that the accused was a user wasn’t relevant to the question of
whether he was a trafficker
o The difference between Cloutier and Morris – too thin to be real or a true
distinction?
o So ask yourself – if you want evidence in, ask yourself why you want it
in? You need to be able to defend the evidence that you want to put in.
When using the Morris case, be careful about using it for the scope of probative
value; the adoption of Wray in this case is questionable. This is reformulated in
Seaboyer – that case says that there’s a balance between probative value and
prejudicial effect.
o If a judge is satisfied that the prejudicial effect outweighs the probative
value, that’s enough.
o This is the commonly used practice for this test
o The change of language hasn’t change the practice that much.
o Usually, the test is used mostly when the probative value is VERY low
and the prejudicial value is VERY high. It’s very close to Morris and
Wray, but the language in Seaboyer is different
R. v. Seaboyer, 1991 SCC (CB 94)
Parties, Positions, History: Accused: Seaboyer (this case was heard alongside the Gayme
case); at the preliminary inquiry, the judge refused to allow the accused to cross-examine
the complainant on her sexual history; Accused appealed saying he should have been
permitted; the SCC dismisses all the appeals on the matter, reaffirms the C.A. order that
the matter should proceed to trial.
39
Facts: Seaboyer was charged with sexual assault of a woman with whom he had been
drinking in a bar.
Issues: Do the restrictions on cross-examining a complainant in a sexual assault case
offend the guarantees accorded to an accused under s.7 of the Charter?
Holding & Reasons: Yes.
McLachlin:
*There are two sections in question: ss.276 & 277. The main purpose of these sections
was to abolish old common law rules that allowed DC to lead evidence regarding a
complainant’s sexual conduct which was often of little probative value. The evidence was
entered to mislead the jury.
*There were three subsidiary purposes of the legislation: 1) “the preservation of the
integrity of the trial by eliminating evidence which has little or no probative force but
which unduly prejudices the judge or jury against the complainant”; 2) to encourage
victims of sexual crimes to report them; 3) to protect the privacy of the witness.
*The accused argues that the provisions infringe his right to present evidence relevant to
their defence, and thus violates his right to a fair trial.
*The court goes through the principles that govern the right to call defence evidence:
- First, from Morris and Corbett: “nothing is to be received which is not logically
probative of some matter requiring to be proved and everything which is
probative should be received, unless its exclusion can be justified on some other
ground.”
- Relevance isn’t the only factor – judges must ask whether the value of the
evidence is worth its cost. There are several factors that must be balanced:
o First – the danger that the facts will arouse a jury’s emotions of prejudice
o Second – will the evidence create a side issue that distracts the jury
o Third – will the evidence and the counter-proof take up an undue amount
of time
o Fourth – will the evidence create a situation that surprises the other side,
unfairly
- The formulation that is now accepted: “admissibility will depend upon the
probative effect of the evidence balanced against the prejudice caused to the
accused by its admission.”
*If an exclusion of probative evidence occurs for some reason other than the prejudicial
effect, then s.7 will be infringed.
*What evidence is excluded?
- s.276 is the problem – it creates a blanket exclusion, subject to three exceptions
- evidence of an honest but mistaken belief in consent would be excluded; so would
a defence strategy that attacks the complainant based on bias or a motive to
fabricate evidence; evidence of pattern of conduct may be excluded (even though
it would be admitted in non-sexual crime cases)
- The concern is that this evidence would be automatically excluded w/o giving the
trial judge the ability to engage with it to weigh the probative value against the
prejudicial effect. Accepting that probative evidence can categorically be omitted
doesn’t conform to the principles of fundamental justice.
*Can s.276 be saved under s.1? No – it fails on the point of whether there is minimal
impairment.
40
*Does striking s.276 revive the old common law rules? No. The common law rules of
evidence must be adapted to conform to current reality. So what is a judge to do?
- First – judges must assess, sensitively, whether the evidence meets the test of
demonstrating a degree of relevance which outweighs the damages and
disadvantages presented by the admission of such evidence
- Second – if it is determined that the evidence ought to be admitted, then the judge
must instruct the jury fully and properly as to its appropriate use
L’Heureux-Dube (dissent):
*L’H-D emphasizes that the mythology surrounding rape is alive and well, and the
provisions of the Code developed to combat this mythology should be kept in place.
*“when one realizes that sexual assault cases are extensively screened prior to trial
according to their conformity with mythology, it is surprising that there is much of any
“deviant” behaviour left to trigger the application of stereotype and myth at trial.”
*The traditional distaste for an “unchaste female accuser” can lead to a shift in focus of a
criminal trial from the actions of the accused to the moral worth of the complainant.
*Similar conduct or pattern behaviour shouldn’t be used in sexual assault cases. “It is
impossible, in my view, to draw an analogy between this behaviour and volitional sexual
conduct. The rationale underlying the admissibility of habit evidence has no application
in this context.”
Ratio:
Main Principles:
Comments/Obiter/Questions:
Class Notes:
*The rape shield case
- Examines the constitutional question around the rape shield laws
- Note that the criminal code provisions have been amended, post-Seaboyer
- The new provisions attempt to capture the thinking that came out of this case
- In the current Code, there’s an elaborate procedure that was developed to deal
with questioning of a sexual assault complainant
- The view of the majority was that s.276 excluded too much in terms of probative
evidence
o The dissent said that the exceptions in s.276 would have let in the
evidence that the majority was speaking of, anyway
- So, when is it appropriate to question a person about their prior sexual behaviour?
o With the accused?
 Can an accused draw an inference from a prior event where there
was consent to say there was consent the second time? Can they
apply an honest but mistaken belief argument? The majority says
yes.
o With other people?
o And also – the majority said it was weird that the type of evidence
excluded in a sexual assault case would be allowed in another type of
criminal case.
41

-
-
-
The example is given in the case – the evidence that someone is a
prostitute would be okay in an extortion case, but not in a sexual
assault case. Both involving the same parties!
o S.276 went too far by banning situations where excluded evidence might
be relevant.
This case suggests that there may be probative value for the defendant, but the
prejudice is to the witness
This case also talks about probative value for the Crown and prejudice to the
accused, but that’s not all.
Restricting cross examination in sexual assault cases
Note that s.277 remains in the current Code, but pursuant to Seaboyer, the statute
has been altered, especially s.276 (although the section numbers have changed)
There is a complicated procedure involved in determining the relevancy of a
witness’ prior sexual history, and for examining the effect of prejudice
o The process seems to work, suggests Levy
s.278.1-278.9 – consider in the context of Seaboyer – designed to prevent access
of Def counsel to the counselling records of the complainant
o DC may want to know a) did they seek counselling, and b) what version of
events did they give to the counsellor?
o What you’re getting in court may not be the raw material – counselling
may alter the way the complainant perceives the situation; it may implant
a suggestion into the mind of the complainant
o Consider – rape crisis centres likely don’t want their records subpoenaed;
at the time, they destroyed records to prevent an accused from getting at
the material!
What’s the balance? DC wants a fishing expedition – are there two different
versions of the story? DC wants the records to find out.
o From the victim’s perspective – the benefits of therapy would be
undermined if the records are produced. Victims may not want to subject
themselves to the disclosure process of the criminal justice system.
o This was persuasive to Parliament. Now, an accused must apply for
specific information – they have to outline specifically what they think is
relevant. You have to come up with what you think is ACTUALLY
relevant without having seen the records.
o The judge will review the records for that purpose, but can still deny DC
from seeing them.
o Note the parallels between this and civil procedure re: privilege. The
lawyer may assert confidentiality – they list it, but under the privileged
section. This is especially relevant when you’re dealing w/ Crown
privilege b/c the Crown can assert that what you want must be kept
confidential. In this case, again, the judge may end up making the
determination as to what is or isn’t relevant.
o Levy is pointing out that this situation isn’t unique to sexual assault cases.
You want something, but you can’t see it until you persuade the court that
you should be allowed to see it, and that relies on you being able to
convince them that it’s relevant.
42
-
-
-
-
-
o Counsel is permitted to apply for evidence, but they must argue that it’s
relevant. A tough way to get at the information. Is this an appropriate
balance? Is this the right balance between probative value and prejudice?
o Consider too – prejudicial to whom?
Levy – the swing in evidence law is to lean strongly towards protecting the
victim, especially in criminal law, and away from protecting the accused
On civil side, the balance is more and more against the government; if a
government is trying to assert confidentiality, it is less likely to be granted
Keep in mind that evidence law is often based on social values – if it is legislated,
then it is often frozen in time and the social values can change before the law
does; also, judges change the law all the time!
The social impact, the judgment as to social values, is very evident in evidence
law
Consider – what if the victim can identify the accused. We need to consider
probative value v. prejudicial value in terms of scale. If the victim can identify the
accused, that’s highly probative, it would have to be highly prejudicial for it to be
excluded!
Consider also – Corbett – the case used by DC who is debating whether to put the
accused on the stand. If the accused has a criminal record, and it’s a jury trial,
what do you do? The Crown can’t bring up the criminal record, but if the accused
testifies, then the Crown can cross the accused on it. Remember, the purpose is to
test the credibility – the criminal record in and of itself ISN’T relevant.
o DC is risking a jury viewing the accused as questionable b/c of the
criminal record
o There are issues w/ what the charges are – some are more damning than
others.
o Probative value will vary based on what the criminal record shows
o The impact of the criminal record in terms of credibility – DC will argue
that the impact on credibility is minimal, but that the prejudicial effect of
the criminal record is very high
See p.100 of the text – the test for probative v. prejudice
Consider the problem w/ trial by judge alone – judges see all the evidence and
then decide whether it ought to be excluded. In jury trials, the triers of fact truly
don’t get to see the evidence. Judges – not to be trusted.
Note that the judges will have different social values themselves! If the legislation
is in place, they are more limited. In general, judges bring their experiences to the
table.
Opinion Evidence
Class Notes:
General rule – witnesses testify to things that have come to them through their own
senses. Facts – what have they seen? Touched? Smelled? Heard?
- witnesses aren’t allowed to express opinions
- But! EXCEPTIONS!!!
- 2 basic exceptions
43
-
-
o First – we allow lay people to give an opinion when it is the most
convenient way of putting forward a “compendious thought”
 Within common knowledge, or
 Based on multiple perceptions that can best be communicated in a
compendious format
o Second – in certain circumstances, we’ll allowed someone qualified as an
expert to express certain opinions
The social worker example
o Child welfare case – home where the child was staying was filthy, not fit
for a child to stay in
o The social worker here has given an opinion!
o If the house is dirty, that might be grounds for removing a child, but we
shouldn’t assume, based on the opinion of the social worker, that it meets
a standard
o Should you cross examine a witness who puts forward their opinion?
What’s the risk? If you don’t – can you argue that the witness’ opinion
isn’t helpful?
In cross – remember, the vice is asking too much!
Compendious Evidence
R. v. Graat, 1982 SCC (CB 271)
Parties, Positions, History: Accused: Graat; at trial, the judge allowed in the opinions of
the police officers; the SCC upholds the trial judge’s decision and dismisses the appeal.
Facts: Graat was charged with impaired driving. Evidence at trial was brought by police
officers who witnessed Graat immediately prior to his charge – they stated that he
smelled of alcohol, that he was stumbling and had difficulty producing his wallet. They
said that they concluded that he was impaired.
Issues: Can a court admit opinion evidence of a police officer on the question of whether
the accused’s ability to drive is impaired by alcohol?
Holding & Reasons: Yes.
*The court reviews the list of matters upon which a non-expert witness may give
evidence:
- identification of handwriting, persons and things
- apparent age
- bodily condition, including death and illness
- emotional state of a person
- the condition of things – worn, shabby, used or new
- certain questions of value
- estimates of speed and distance
*The court acknowledges that “intoxication is not such an exceptional condition as would
require a medical expert to diagnose it.”
*However, whether or not the evidence given by police or other non-expert witnesses is
accepted is a different matter. The weight is up to judge and jury.
*The court concludes with two caveats: 1) judges must exercise a large measure of
discretion when determining whether an opinion is admissible; 2) judges and juries may
44
allow the opinion of police witnesses to overwhelm the evidence of other witnesses, and
should be careful when doing so, as there’s no special reason to prefer it.
Ratio: Non-experts may give opinion evidence on a wide range of matters. However,
judges and juries must be careful of the weight they are to give such evidence.
Main Principles:
Comments/Obiter/Questions:
R. v. Graat
- Should we allow the opinion of a lay witness?
- Can a police officer testify not only to what may have been sensed by him (an
odour of alcohol, couldn’t walk steadily, etc), but what conclusion that officer
came to on the basis of what he perceived?
- Remember, in Graat, the police officers aren’t experts. They weren’t qualified as
experts (they could have been, but the Crown didn’t proceed that way).
- SCC allows it. The lay witness can express “compendiously” their conclusion
based on a range of perceptions.
- But think tactically:
o You’re counsel for DC – assume police officer just gives the opinion that
accused was impaired. The Crown leaves it at that. Would you want to
cross? Why bother? If you ask why they concluded that, then the police
officer gets to provide the facts.
o If Crown uses this as a shortcut, then let them! Rely on the fact that the
evidence is vague (not inadmissible).
o Flip to Crown – surely the Crown should have tried to get more out of the
witness, no?
- Remember – how you use these rules for the benefit of your client, this is
important. You need to consider the ethical aspect of the way you will use the
rules of evidence.
- Levy says – read Rumpole.
- Consider, in light of Graat and Lavallee – could the police officers have been
certified as an expert?
o Who qualifies as an expert? How does this work?
o Is it useful to have an expert?
o Consider – much social science evidence is controversial. Is it useful to
have a PhD give evidence about their findings and their opinion on what
that says about human behaviour?
o If the other side brings an expert, you’ll likely want to bring one too.
o Think about what is expertise as well as who qualifies as an expert?
Continuing on problems of opinion evidence – what is to be done if the person is not an
expert
- “The house was dirty” – an opinion; admissible, but will carry more weight if the
witness can give reasons why they think that
- Police officers – in what circumstances can a police officer be considered an
expert?
45
Expert Opinions
Experts can give an opinion, but within limits
- most usefully set out in Mohan
- it must be relevant; it must be necessary to assist the trier of fact
- necessity and proper qualifications are the points that Levy highlights as the most
important factors when determining whether to allow an expert to be heard
- remember – expert evidence may distort the trial; if there’s a scientific matter,
will jurors be overwhelmed by the scientific jargon?
o Will having that expert make it more difficult for the jury to properly
weigh the evidence
o Judges alone are less likely to have this problem – the risk is most likely in
a jury trial
- The idea that you need to have the expert evidence on the ultimate issue of the
case isn’t considered anymore; the court will assess the risk to the accused if the
evidence goes to the fundamental issue (prejudice may arise), but this is a
different consideration than whether or not the evidence should be admitted at all
- Judges retain an overriding discretion to limit the scope of expert testimony if
there’s a significant prejudice to the accused
- What is a “duly qualified expert”? Qualified either by study or experience or both
in respect of a particular matter
o Don’t assume that just b/c someone is a teacher that they are an expert
o You need to have a particular area of expertise
o Consider – a family doctor, may have lots of OB/GYN experience, but
does that make them an expert? Not likely
o Say, for example, you need to prove the law of a foreign jurisdiction, who
would you call? You may want to ensure that the person is qualified to
practice in that jurisdiction, and that they have experience with the
particular area that you are litigating. A lawyer might work. But you may
need to flex these requirements a bit.
o How do you establish expertise? In the example above, what if the person
isn’t a lawyer, but is a professor who isn’t qualified to practice? What if
they teach the area that is at issue in the case? These factors vary a lot.
- You need to set out the qualifications of the expert and send it to the other side –
the other side then can accept or deny the qualifications. If they deny it, then you
can argue it.
- When certifying an expert at trial, you call a voir dire, and the expert will go
through their qualifications. Counsel will have an opportunity to cross.
- Some problems – are they focused enough? Do they have enough experience?
- Another point – you may have someone who is CLEARLY an expert on
something, but the evidence that they are dealing with involves the area where
they are an expert, but also involves areas where they aren’t expert!
o For example – what if you call a forensic psychiatrist, but the evidence
you’re dealing with requires an expert in forensic psychology?
o You need to think about these fine lines
o Note too that someone with NO education can be qualified as an expert
b/c experience is an aspect of expertise, too. For example, if you’re a
46
construction worker and you’ve been doing that for 30 years, you may
have something useful to say about construction matters…
R. v. Mohan, 1994 SCC (CB 277)
Parties, Positions, History:
Facts: This excerpt had no facts; it dealt merely w/ the requirements for admissibility of
expert evidence.
Issues:
Holding & Reasons:
*Admission of expert evidence depends on the application of the following criteria:
- Relevance
- Necessity in assisting the trier of fact
- The absence of any exclusionary rule
- A properly qualified expert
*Relevance: although something may be prima facie admissible if it is so related to a fact
in issue that it tends to establish it, the court must also balance this against the impact on
the trial process. The balance of probative value v. prejudice isn’t an aspect of relevance;
rather it is a true exclusion. Further, if the evidence is scientific, the determination of
relevance is especially important b/c of the potential of the jury to be overwhelmed by the
“mystic infallibility” of the evidence.
*Necessity of Assisting the Trier of Fact: “An expert’s function is precisely this: to
provide the judge and jury with a ready-made inference which the judge and jury, due to
the technical nature of the facts, are unable to formulate.” Experts assist where the
information is outside the experience and knowledge of the Judge or Jury.
*The Absence of Any Exclusionary Rule: Compliance with the other factors won’t
guarantee the admissibility of expert evidence if it falls afoul an exclusionary rule of
evidence separate and apart from the opinion rule itself.
*A Properly Qualified Expert: The witness must be “shown to have acquired special or
peculiar knowledge through study or experience in respect of the matters on which he or
she undertakes to testify.” If the expert evidence is advancing a novel scientific theory or
technique, it will be subject to special scrutiny.
Ratio:
Main Principles:
Comments/Obiter/Questions:
Q: Is this standard applicable to expert evidence in civil trials, too?
*Note that expert witnesses can still give an opinion on things of which they are not
experts if it falls into a category of opinion that is allowed for non-expert witnesses.
*The test, as outlined by the authors: The party calling the expert must establish
- that the trier of fact needs assistance;
- that the expertise is relevant and reliable;
- that the witness is in fact qualified;
- that the probative value of the evidence is not outweighed by its capacity to cause
distortion, confusion or delay of the trial process
47
R. v. Lavallee, 1990 SCC (CB 281 & 317)
Parties, Positions, History: Accused: Lavallee, common law spouse of the deceased;
Lavallee was charged for the murder of her common law spouse; L was acquitted at trial,
and the Crown appealed; CA allowed the appeal and noted that the expert evidence ought
to have been excluded; the SCC overruled the CA and reinstated the acquittal.
Facts: Lavallee was abused over the course of 4 years by her common law spouse; on the
night of his death, he threatened to kill her and told her if she didn’t kill him, he would
kill her; he gave her a gun and she shot him with it; expert evidence was brought at trial
to establish that Lavallee was a battered wife, and to prove that she should be able to
claim self-defence.
Issues: Were the trial judge’s instructions to the jury regarding expert evidence
sufficient? Further, was the expert evidence brought useful in assisting a jury faced with
the claim of self-defence in this situation?
Holding & Reasons:
*The C.A. felt that the expert evidence of Dr. Shane, the battered woman syndrome
expert, ought to have been excluded entirely. The question that the SCC asks is whether
the C.A. erred.
*Expert evidence is admissible if “the subject-matter of the inquiry must be such that
ordinary people are unlikely to form a correct judgment about it, if unassisted by persons
with special knowledge.” (from Kelliher v. Smith, 1931 SCC)
*The psychological effect of battering on wives is clearly relevant and necessary in the
present case.
*There are two elements to self-defence: 1) the temporal connection; 2) the magnitude of
the force used by the accused. Normally, the provision only provides a defence if the
person “apprehended death or grievous bodily harm from the assault he was repelling and
if he believed he could not preserve himself from death or grievous bodily harm
otherwise than by the force he used.” The problem is that this is based on what an
“ordinary man” would do and, clearly, battered wives are not in the circumstances of an
ordinary man.
*The rationale of the imminence rule is designed to ensure that use of defensive force is
really necessary. It justifies the act b/c the defender reasonably believed that he or she
had no alternative but to take the attacker’s life. However, societal assumptions about
battered wives make applying the imminence rule in the normal way discordant with
what we would do in other scenarios. The usual reasoning would make it unreasonable to
apprehend death or bodily harm until the physical assault is actually taking place. Expert
testimony is important here b/c it can cast doubt on these assumptions.
*The court says that the principles to apply are as follows:
- expert testimony is admissible where the expert has relevant knowledge or
experience beyond that of a lay person that will assist the fact-finder in drawing
inferences
- expert evidence can assist the jury in dispelling these myths
- expert testimony in this situation can assist the jury in assessing the
reasonableness of the defender’s belief that killing her batterer was the only way
to save her own life.
*Under expert evidence & hearsay:
48
-
neither the accused nor her mother testified at trial; the statements they made to
Dr. Shane were thus hearsay when presented by Dr. Shane
- it is noted that before any weight can be given to an expert’s opinion, the facts
upon which the opinion is based must be found to exist
- if there is some admissible evidence to establish the foundation for the expert’s
opinion, the trial judge can’t subsequently instruct the jury to completely ignore
the testimony
- the court reviews the problems with the Abbey decision when it comes to
admissibility and weight of expert opinion evidence; if that case is applied, then
what ends up happening is that an expert opinion that is relevant in the abstract
will be admitted even if based entirely on unproven hearsay, but will then be
given no weight whatsoever
- the court considers situations where hearsay is permitted in professional contexts,
such as with doctors at a hospital; hearsay is often the basis for sound medical
practices
*The court will allow an expert opinion “based upon evidence “…of a general nature
which is widely used and acknowledged as reliable by experts in that field.” Where,
however, the information upon which an expert forms his or her opinion comes from the
mouth of a party to the litigation, or from any other source that is inherently suspect, a
court ought to require independent proof of that information.”
Ratio:
Main Principles:
Comments/Obiter/Questions:
*Expert opinion may be used to challenge questionable assumptions about human nature
that are embedded in our societal perceptions. This falls under the category of the Trier of
Fact’s Need for Expert Assistance.
Class Notes:
- prior to Lavallee, the U.S. had started to accept battered woman syndrome, but it
wasn’t ubiquitous
- What is, in effect, occurring in this case is that there is a new common law
defence in cases of abused wives; clearly, you’ll need to bring expert evidence to
do this!
- The court was considering whether this should be considered as a defence. Should
they in this case?
- This was a new area of study by psychologists and social scientists – was there
enough study to demonstrate that this was a real phenomenon? The further
question is whether Lavallee fit the profile, but the courts were grappling with the
former
- When will the courts let in a new area of expertise? If something is brand new,
when will courts let the new area of expertise into court?
- The risk w/ social science experts – something may get in, and be accepted, and
then will eventually be refuted and thrown out. This is problematic, it creates a
risk in litigation. It also happens often b/c social science is considered “soft” – not
a lot of objective evidence…
- Levy discusses the community standard issue in obscenity cases – R. v. Butler,
and the infamous Dr. Check!
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Q: Are you allowed to cross-examine on an expert’s penchant for supporting one
side or another more frequently in their history?
Also something to note is that expertise can sometimes be one-sided – in matters
dealing w/ individuals who tend to be poor, they won’t be able to afford an expert;
so personal law will often have this issue…
What Levy is getting at is that if there is a new trend of social science thinking, it
may be too hastily qualified as expertise, and then will be subsequently
overturned at a later date.
o Alan Gold – the admissibility of “junk science”
o A defence lawyer who takes issue with this problem, where courts
embrace something, and then soon after refute it
o An example – repressed memory syndrome, where victims will suppress
memories for years, and then they come back up later… the doctor who
put this idea forward eventually refuted herself – very embarrassing for
the courts that had accepted it! She noted that the case still could exist, but
that it would be rare. However, there were judgments all across N.
America that accepted this as normal!
How far should courts go in accepting social science research? We don’t want to
impede new developments in science, but on the other hand we don’t want to
accept every scientific fad that comes along!
o Daubert v. Merrell Dow (CB 299) looks at this – the polygraph
o The question was whether polygraph results should be admitted. In the
U.S., they’ve said yes – in Canada, the courts have said no.
o
Battered woman’s syndrome – an example of something that has stood up to
scrutiny, in terms of a new area of social science
Consider – should we accept DNA evidence? Is it reliable?
o There are two components – the number of points you analyze, and also
the statistical calculation of the likelihood that more than one person will
have the same profile; these are inversely connected, clearly
o Crowns use DNA evidence a lot.
o We have seen a lot of cases where DNA evidence has resulted in cases
being thrown out altogether
o We also rely on DNA evidence in paternity cases – if paternity is an issue,
the potential father is forced to take a paternity test; Levy points out that
for this in Calgary, the analysis is only of 3 points; in the U.K. for criminal
cases, it can go as high as 90 points!
o Doctors acknowledge that the 3 point test is only 90-95% reliable… if
that’s true, should we accept it?
When would expertise become overbearing? If we’re bringing forward DNA
analysis, will the jury (or even a judge) be glamoured by that evidence?
o Levy says that this is becoming more and more an issue in evidence law –
as these areas of expertise get pushed into the courtroom, there are risks
presented!
o Alan Gold – says that social science ISN’T science – it’s what’s
fashionable
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Note for next class, we’ll continue Lavalle, and Abbey… The next material deals w/ how
far you can rely on expert evidence if it’s based on evidence that’s not before the court?
This leads into hearsay. We’ll be trying to figure out what IS and ISN’T hearsay, which is
a hard concept…
R. v. Abbey, 1982 SCC (CB 312)
Parties, Positions, History: Accused: Abbey, accused of importing cocaine and unlawful
possession of cocaine for the purposes of trafficking; TJ acquitted; CA dismissed Crown
appeal; SCC allowed the Crown appeal.
Facts: Abbey imported cocaine from South America. He believed that he wouldn’t be
caught b/c his mind had already arrived back in North America and his body was merely
following suit.
Issues: Did the trial judge improperly rely on hearsay evidence provided by the expert
witness?
Holding & Reasons:
*Hearsay evidence is an exception to the rule that relevant evidence is admissible. There
is also an exception to the hearsay exception, which is that expert witnesses may testify to
their opinion on matters involving their expertise.
*With psychiatrists, it is often true that they form their opinions on second-hand
evidence, specifically information they receive from the person they are interviewing.
*Courts must be careful, though, to ensure that when admitting an expert opinion, that the
statements on which such an opinion are based are distinguished as being inadmissible as
proof of truth of the statement. Courts must recognize that they are merely the basis upon
which the medical opinion is formed in accordance w/ recognized professional
procedures.
*It is an error for a judge to accept as having been proved facts upon which a doctor has
relied in forming their opinions.
Ratio: Expert evidence that is based on hearsay is admissible, however it the facts upon
which the opinion are based are inadmissible for their truth unless they are proved to be
actual facts.
Main Principles:
Comments/Obiter/Questions:
*The authors note that a hearsay problem will arise in cases involving expert evidence if,
in accordance with the standards of her profession or specialization, the expert bases her
opinion in part on information relating to the facts of the particular case that have not
been admitted in evidence.
Experts – continued…
- The doctor in Lavallee relied on another expert who wasn’t before the court – is
this a problem?
o This doesn’t cause a problem for evidence. The reason – b/c the other side
can call their own expert if they had any concerns about the use of the
expert who wasn’t present and their opinions. If the underlying science is
in dispute, then each side will want to tender their own expert…
- Another issue that surfaces in Lavallee – the accused (Lavallee) didn’t testify.
This was a key problem in the case – when Dr. Shane, the expert, was giving
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testimony about battered woman’s syndrome, he had to fit Lavallee into a profile.
How do we know that she fits the profile? The expert evidence that Lavallee is a
battered woman is only useful if it can be shown that the facts underlying that
opinion are in fact true.
o What do doctors rely on when you visit with them? They ask you
questions, and they’ll diagnose you based on what you have told them.
o Later, at trial, it may be an issue about whether you actually suffered that
condition. If the doctor testifies to that, it presupposes that what was said
by you was true. If you say it yourself at trial, then you can be crossexamined on that point. What if you don’t? Can the doctor still use that
information as the basis for his own evidence at trial???
o Levy says – this is a problem. Lavallee DIDN’T TESTIFY! She didn’t
make any statements under oath, and she wasn’t cross-examined. But the
doctor had to rely on what she told him in order for his opinion to be of
any value.
o At trial, you need to determine if what the patient told the doctor is
accurate. Can a doctor attest to that? This is where we get into hearsay.
In Lavallee, what the doctor attested to in terms of what Lavallee said was
hearsay. The person who actually sensed the things in question (the symptoms of
battered woman’s syndrome) wasn’t testifying to it at trial. The doctor was
relating that sensed information second-hand.
Expert opinion – predicated on underlying facts. THOSE FACTS MUST BE
PROVED AT TRIAL. The only way you can connect the doctor’s opinion to the
case if the facts underlying the doctor’s opinion are proved.
Note also that there’s a distinction between what the patient SAYS they’re
experiencing, and what they are ACTUALLY experiencing. Most of the time this
will be the same, but not always. We want to cross-examine in order to test this.
The adversarial system doesn’t like evidence that can’t be tested by crossexamination.
You need to know whether what the patient told the doctor is true. The fact that
the patient told you something, and now you’re telling us, doesn’t make a
difference to the determination of whether what the patient said was true.
If the patient is dead – you run into different issues.
Hearsay
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Levy says that hearsay makes us agitated in our system b/c you can’t test it.
When you’re dealing w/ an expert, and you deal with them before the facts are
proven, you’re asking them questions assuming that the facts will be proven
o You used to have to ask experts strictly hypotheticals b/c of this problem
o You don’t have to do this now… but, the opinion is still contingent on the
facts being proven.
o You need to recognize, though, that if you have an expert opinion given
before the facts are proven, that that opinion is predicated on the facts
being proven.
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Hearsay – general rule = inadmissible. BUT!!! Tons of exceptions. Civil litigators
rarely run into an issue of hearsay b/c most of the time in civil situations, it’s
acceptable anyway.
Dr. Shane (Shand?) – says Lavallee was scared. For the purposes of this trial, is it
useful to counsel to be able test Lavallee on whether she actually was scared?
Ares v. Venner, 1970 SCC (Printed)
Parties, Positions, History: Pltf/App: Mr. Ares; Def/Resp.: Dr. Venner; TJ found for the
Pltf; C.A. overturned and allowed Resp’s appeal; SCC allowed Pltf’s appeal.
Facts: Mr. Ares had surgery on his leg, which subsequently turned blue. His doctor
referred him to a specialist, who did further surgery on his leg. In the end, Ares lost his
leg. At trial, the App read in the nurses’ notes as part of the Resp’s discovery evidence.
The Resp objected to the notes being received in evidence, but the TJ allowed them in as
an exception to the hearsay rule. The the night following the application of a plaster cast
to the App’s leg, the cast had partially split and the Pltf’s toes were numb and blue. The
cast continued to split, and the Pltf continued to complain that his toes were numb. The
night after the cast had originally been applied, the nurse’s record indicates that the cast
was split and the toes were blue and numb. The question at trial was whether the doctor
had waited too long to consult an expert despite the observations by him and the nurses.
Issues: Were the nurses’ notes admissible?
Holding & Reasons: Yes.
*The C.A. noted that the nurses themselves had been present throughout the trial and
could have been called on to testify as to whether or not the Pltf’s toes had turned blue.
This is despite the fact that TJ had acknowledged that notes, which are hearsay, are relied
on all the time by the medical profession to indicate important details about a patient. TJ
noted that having to call every single person who attended to the patient would be a waste
of time.
*Counsel for the Resp argued that accepting the notes as prima facie proof of what the
nurse purported to have happened would be unfair b/c then counsel would not be able to
test what she meant by “blue”.
*The SCC decides that they’re going to settle whether the practice of admitting notes is
going to continue, whether those notes will be admissible or inadmissible under the
hearsay rule.
*The Court says: “Hospital records, including nurses’ notes, made contemporaneously by
someone having a personal knowledge of the matters then being recorded and under a
duty to make the entry or record should be received in evidence as prima facie proof of
the facts stated therein.”
Ratio:
Main Principles:
Comments/Obiter/Questions:
*Medical malpractice case, where nurses notes were at issue – was that hearsay?
- consider – when examining the opposite party for discovery, you can discover and
get all the hearsay you want during that process
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the purpose is to get useful info, though not necessarily info that can get put into
evidence
in Ares – the parties were asked about the nurses notes
Pltf wanted to get the nurses notes into evidence so that they wouldn’t have to call
the nurses. How do you do that? You have the nurses notes brought to discovery.
You show the notes to the person being discovered, and ask them whether they
are the notes in the case at hand. Shouldn’t be a problem if they were part of the
LOD
Following discovery, you now have them in the XFD transcript, and you can read
in the response to the question and also produce the notes as evidence.
So, the problem – nurses notes were in evidence. What did the notes go to?
o Counsel said that the nurses notes were hearsay. Not calling the nurses –
just putting in the notes. Notes can’t be cross-examined!
o They didn’t mind the notes going in as they existed. The problem was that
the notes were going in for the purpose of proving that what was written in
them WAS TRUE!!!
o Differentiate – 1) It says the toes were blue, and we agree that that is what
it says. 2) It says the toes were blue, and the notes prove that this was true.
#2 was the problem that counsel was trying to highlight – they objected to
the fact that the nurses didn’t testify to that fact themselves.
o Are the notes evidence to the truth of the statement that the toes were
blue?
o Is this a hearsay problem or not? Levy says it might depend on how you
drafted your pleadings. What did the Pltf allege was Dr. Venner’s
negligence? They say that he didn’t follow the standards of a prudent
physician when dealing with toes that have turned blue. They are asserting
the negligence based on the toes ACTUALLY turning blue.
o What if the pleadings had been drafted differently? What if they alleged
negligence based on the fact that the notes said the toes had turned blue,
and that the doctor should have responded to that note; the doctor should
have reacted in a certain way if the nurses notes said that.
Will say statements – similarly, you can’t use them to establish the truth of what
is being said in the statement. What if the party is dead? There may be an
exception…
We’ll come back to Ares when we look at exceptions to the hearsay rule
Consider – first case dealing with exceptions to the hearsay rule is Ares; all the
criminal cases that come after are just reiterations of Ares
There may be times when we can’t call the original witness, and so there may be
allowances for hearsay
Necessity and trustworthiness – the two ideas on which the exceptions to hearsay
are based
o Levy says he REALLY likes Ares – it’s a good case that looks at hearsay
and its exceptions; it also does a good job of explaining the basis for the
hearsay rule
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Depending on the formulation of the evidence you could have hearsay in some
situations, and no hearsay in others… the same information could be either,
depending on the situation in which the info is introduced
Note Case: Teper v. R., 1952 P.C. (CB 131)
*Accused charged w/ setting fire to his wife’s store.
*Fire had clearly been set deliberately; the factual question was whether the accused had
set the fire.
*P.O. had testified he heard a woman speaking to a man who looked like the accused,
saying something about the house burning and the man going away from the fire.
*This was clearly hearsay. P.C. held it wasn’t admissible, and that its admission was
“highly prejudicial” to the accused.
- accused charged w/ arson; police officer testifies at trial
- p.o. says that 30 minutes after the fire had started, he heard a woman say to a man
who looked like the accused, a statement that he relayed to the court
- so, what the woman said is being put into evidence by someone who heard it
second hand
- if the woman had been present to testify that would have been different
- For what purpose was the statement put into evidence? Think about why it’s there
– it’s circumstantial…
- If what she said was true, that would carry a lot of weight in the arson allegation.
However, it’s pure hearsay – the charge is overturned by the Privy Council b/c the
trial judge let in prejudicial hearsay evidence.
Note Case: R. v. Williams, 1985 ONCA (CB 132)
*Accused charged w/ arson. She denied that she started the fire. Defence theory was that
the neighbour, Miller, had set the fire.
*Accused and two other witnesses testified that Miller had admitted to them that he set
the fire. TJ ruled that this evidence was inadmissible hearsay.
- Another arson case – theory was that the fire had been set by the accused’s
neighbours; Defence called Miller, the neighbour, as a witness – risky (DC can
only perform examination-in-chief)
- Accused has witnesses (including herself) that say that Miller had told them that
he had set the fire
- The issue at trial – can that evidence be admitted?
- Why is this connected to the trial? It’s relevant b/c it suggests that there was
someone else who started the fire. If you can show that someone else started the
fire, what’s the problem? DC isn’t putting in the person who actually made the
statement. But DC does do this – Miller.
- Another possible argument of entering this evidence – criminal law requires proof
beyond a reasonable doubt. If someone else can be pointed to as the person who
may have done it, doesn’t that raise a reasonable doubt? Our courts won’t accept
this. The connection between the evidence and the issue has to be that someone
else did IN FACT commit the crime. Just raising the fact that someone SAID they
did wouldn’t be enough.
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The issue here was whether DC could call a witness to disprove Miller – court
said no.
This is confusing, so review carefully
Q: Why can’t DC call someone in order to question Miller’s credibility?
Subramaniam v. Public Prosecutor, 1956 P.C. (CB 132)
Parties, Positions, History: Accused: Subramaniam, a man found carrying ammunition
contrary to Malaysian law.
Facts: Subramaniam was found by police carrying a pouch containing 20 live rounds of
ammunition. He was not carrying a weapon, and no weapon was found in his vicinity. S
claimed that he had been captured by communist terrorists, and that he was carrying the
ammunition under duress. He claimed that the terrorists had threatened to kill him, and he
was fearful for his life. He had formed the intent to escape and if he came across security
forces he intended to surrender.
Issues: Are the statements made by S regarding what the terrorists said inadmissible b/c
of the hearsay rule?
Holding & Reasons: No.
*The trial judge had ruled that the statements made by the terrorists were hearsay and the
conversation between S and the terrorists would be inadmissible unless the terrorists were
called to testify.
*“It is hearsay and inadmissible when the object of the evidence is to establish the truth
of what is contained in the statement. It is not hearsay and is admissible when it is
proposed to establish by the evidence, not the truth of the statement, but the fact that it
was made.”
*In this case, the truth of the statements doesn’t matter. What matters is whether S
believed them, and whether that would have reasonably induced in him an apprehension
of death if he disobeyed the terrorists.
Ratio:
Main Principles:
Comments/Obiter/Questions:
Non-Hearsay Words:
*Out-of-court statements offered for some other purpose AREN’T hearsay, and so aren’t
subject to the general exclusionary rule.
*In this case, the statement was relevant even though it may have been false.
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Story to police was that S had been crawling away from kidnappers, and the
ammunition he was carried had been planted on him by the communists
Crown objected to the evidence that S provided in terms of statements made by
one of the communists that he was with
The reason S was scared was b/c the communist was going to kill him; S wanted
to use the communist statements to prove that – this is hearsay
This is a case where the fact that something was said is itself significant. The
court says that in a case like this, it doesn’t matter whether the statement by the
communist was true. The fact that it was said, and that S BELIEVED it, is enough
– it created a situation of duress.
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So, ask – when does it really matter a) when something was said, v. b) that what
was said was true. If it’s (a), then you don’t have a hearsay problem. If it’s (b),
then you have a hearsay problem. (But see above, that in some cases this may not
be true… I think…)
So what do you need to think about?
- Why are you bringing a witness to give evidence? Are you asking them to testify
about a statement being made? Or are you asking them to testify to the fact that
what was said was true? This is the distinguishing feature of hearsay v. no
hearsay. It’s a tricky distinction.
- Consider – conduct v. speech/writing. Why do we want to put in evidence about
conduct? Is it to show that the conduct was interesting? Or do we want to
demonstrate that the underlying reason for that conduct was the true underlying
reasoning?
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Implied Assertions and Hearsay by Conduct
*The distinction between hearsay words and non-hearsay words doesn’t cover all the
situations in which an out-of-court statement might be considered hearsay.
*What about non-verbal, out-of-court conduct? Would evidence of this amount to
“hearsay by conduct”? Why would the court be reluctant to recognize a broad category of
hearsay by conduct?
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Levy discusses Manchester Brewery v. Coombs – Coombs is supposed to get all
beer from M.B.; M.B. sues Coombs. Coombs argued that the beer he was being
supplied w/ wasn’t drinkable – didn’t make the implied terms of Sale of Goods
Act (not fit for the purposes for which it was sold). A client of Coombs, who was
not called at trial, apparently spat out beer that he was served and yelled “Piss!”.
Why was this evidence called? Was the evidence that this word spoken, or that
the fact that the client spat the beer out, was the conduct communicative? Is
Coombs trying to show that the client was communicating that the beer was not fit
to drink? Is he entering this evidence on the basis that he is trying to prove the
TRUTH behind the idea that the beer isn’t worth consuming?
Should behaviour be treated differently than statements? Is entering in the
behaviour hearsay? How do you argue this?
“Beer doesn’t make a desperately good shampoo. It’s good to drink!”
Think about behaviour – going back to the customer above
o If the behaviour was actually a statement (“This beer is terrible”), then it
would likely be hearsay if you’re using it for the truth of that statement;
o The statement can’t be generalized to everyone, all the customers
o So, why would it be different if the customer acts, rather than saying
something
o Will the hearsay line of reasoning apply to behaviour that intends on being
communicative?
o Some definitions of hearsay say that the rule should extend to conduct,
and there are cases that say that it should.
o Could there be an alternative way of looking at it when we’re dealing with
conduct?
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o You could testify to seeing the conduct yourself. But what about
relevance?
o Could you bring it in as first hand evidence of seeing a customer not
drinking the beer? You could argue that common sense suggests that
there’s a plausible inference that the beer was undrinkable.
o Customer behaviour is being used as circumstantial evidence.
o You may say that the evidence isn’t directly admissible to show the beer
was undrinkable, but you use it to found an inference in a process to use
circumstantial evidence.
o Letting this evidence in to use it for circumstantial evidence. It’s a fraud
on the hearsay rule.
o This is exactly what happened in the Manchester Brewery case
o Circumstances that common sense leads us to infer that the customer
didn’t think it was drinkable.
- Treating something that was done is as an independent fact is easier than when
you’re dealing with something that was said.
- This is a difficulty we will come across in a lot of hearsay cases
- Does conduct amount to communication in the same way that speech does? Does
the hearsay rule apply in the same way?
o If the answer is yes – conduct can amount to hearsay b/c it’s intended to
be communicative – you’ll have the support of the cases
o But keep in mind that conduct isn’t always communicative, and inferences
of fact can be drawn from conduct
Example: Provincial Court case from Calgary (Judge Harvey)
- Charge was for defrauding
- man went to finance company to borrow money; he filled out the forms; he used
his address
- this was all proved by the Crown
- but man had put down an address that didn’t exist
- How do you prove that an address doesn’t exist? They would be full of hearsay
problems. If you testified that you walked down the street and the house wasn’t
there, you’re giving weight to the street numbers, for example.
- They had sent a letter that was returned to sender; envelope said “no such
address”; this was admitted – defence objected to the admissibility
- What’s the problem with this? You’re accepting the information as true, but you
haven’t tested it.
- But isn’t this the very issue that the SCC discussed in Ares?
- Presuming the truth of the statement based on the behaviour is ultimately an
exception (I think)
- The Crown didn’t call any witnesses to testify about the way the envelope came to
be delivered and returned
- Is there a way around this? Judge was concerned in this case b/c he was looking
for a hearsay exception.
- He said – the fact that this envelope exists is a fact that exists in its own right. It
permits an inference to be drawn that there was no such address.
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So, Levy says that this is analogous to the conduct hearsay rule that we saw in
Manchester Brewery.
This permitted the hearsay rule to be bypassed in favour of using the fact of the
envelope’s existence as a basis for an inference to be drawn
Levy says that the SCC has avoided addressing the hearsay rules, so there’s
limited high court precedent to help us
See Wigmore if you need a bibliography of U.S. authorities; the Coombs case in
the U.K. is still good law, according to Levy
Cases in the materials:
R. v. Wildman, 1981 ONCA (CB 134)
Parties, Positions, History: Accused: Wildman, stepfather of Tricia Paquette, a young girl
who was murdered.
Facts: Wildman and Joyce Paquette were married and their relationship was stormy.
Joyce had a child, Tricia, from a previous marriage. During the course of their break-up,
there were issues about who would keep the kids, etc. At one point, Joyce took the kids
and all of Wildman’s furniture and moved out of the house. She then went ahead w/
divorce proceedings. Wildman wasn’t agreeable to Joyce having custody over the two
children of their marriage. A month after divorce proceedings started, Tricia went
missing. Her body was found a few days later. She had been killed by blows to the head,
the injuries consistent with her being hit with a hatchet.
Issues: On appeal, did the trial judge err in excluding evidence that DC sought to adduce
through witnesses Beverley and Ronald McIsaac?
Holding & Reasons: Yes.
*Joyce had allegedly telephoned the McIsaacs and accused them and Mr. Wildman of
killing Tricia with a hatchet. Mrs. McIsaac then allegedly related this conversation to Mr.
Wildman.
*DC advised that he wanted the evidence tendered not for the truth of the statement, but
to prove the statement was made and its effect on the state of mind of the appellant.
*C.A. holds that TJ erred in refusing to permit DC to question Mrs. McIsaac about the
telephone call from Joyce. The purpose of tendering that evidence wasn’t to establish the
truth of what was said; further, Mrs. McIsaac was present, and could have testified as to
what she said to Mr. Wildman.
*In the end, though, the principal issue was whether Mr. Wildman knew that Trisha had
been killed w/ a hatchet before the information had been released to the public. Had the
McIsaacs been able to testify, the jury would have had evidence supporting the defence
theory about how Mr. Wildman knew about the hatchet.
*The evidence of his guilt was so overwhelming that C.A. dismissed the appeal.
*SCC overturned C.A. ruling, and ordered a new trial, but approved of the analysis
regarding the hearsay evidence.
Ratio:
Main Principles:
Comments/Obiter/Questions:
Class Notes:
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Mrs. MacDonald testified that Wildman told her that someone had “put an axe in
Tricia’s head”; the police at that time hadn’t released any info about how Tricia
had died
So, how is it that Wildman knew that she had died due to blows by an axe? He
would have to know it from a non-public source (most likely). Crown has strong
evidence that either Wildman was the killer, or he knew the killer.
Wildman wanted to call evidence in response. He wanted to suggest that there
was evidence that after Tricia had disappeared, but before her body was found,
that Wildman had been at the McIsaac household and that there had been a phone
call from Mrs. Wildman. If he could have put the question to Mrs. McIassac about
what the phone call was about, she would have said it was from Mrs. and that she
had accused the McIsaacs that they had killed Tricia with a hatchet
Wildman only knew what he heard on the one side of the phone call, but he also
could have testified to what Mrs. McIsaac had told him about the phone call
Judge wouldn’t let evidence in – hearsay; the evidence is that McIsaac heard Mrs.
Wildman say something, and you’re using it for the truth of the statement, and
you’re not calling Mrs. Wildman. Judge essentially says – call Mrs. Wildman, or
you don’t get the evidence in.
Levy says that this isn’t a hearsay problem – judge shouldn’t have invoked the
hearsay rule, so says the C.A. The statement isn’t being used for the truth of the
statement – it’s being used to give a reason for the accused saying that a hatchet
had been used. DC is trying to give a reason for why the accused made the
statement about the hatchet… If accused heard about a hatchet being used as a
likely weapon through this telephone call, that’s enough – it doesn’t matter
whether or not that was true, it gives a reason why the accused would say that a
hatchet was used.
What’s the difference between something existing v. something being used for the
truth of it…
R. v. Wysochan, 1930 SKCA (CB 145)
Parties, Positions, History: Accused: Wysochan
Facts: Mrs. Kropa had been murdered. There were two suspects. One was her husband.
The other suspect is Mr. Wysochan. It appears that Mr. Wyshocan and Mrs. Kropa were
having an affair. After Mrs. Kropa was shot, she asked for her husband and made a few
other statements.
Issues: Are the statements made by Mrs. Kropa admissible?
Holding & Reasons:
*The argument was that Mrs. Kropa wouldn’t ask for her husband if he had shot her. The
Crown was seeking to have the statement entered.
*“Wigmore, in his work on Evidence, points out very fully the difference between the
admission of utterances as proof of the truth of the facts stated and their admission to
prove a state of mind which he terms their circumstantial use as oppsed to the other or
testimonial use, and states, in par. 1790, that to use circumstantially the hearsay rule
makes no opposition ‘because the utterance is not used for the sake of inducing belief in
any assertion it may contain’…”
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Ratio:
Main Principles:
Comments/Obiter/Questions:
Class Notes:
- Why is the accused arguing that the evidence should not have been admitted?
- Why is this case looked at under the hearsay rules?
- Court – if it is hearsay, there are two exceptions that don’t apply: dying
declaration, and res gestae. So, if these exceptions don’t apply, what are we
dealing with here?
- Court is moving towards saying that this isn’t hearsay. This is evidence of her
state of mind. Why is her state of mind relevant? Because it contains an implied
proposition as to who killed her, which IS a hearsay problem.
- If this is admissible as not being hearsay b/c it deals solely w/ state of mind of the
deceased, ask why that’s relevant. The Crown says it’s b/c it tends to show that
her husband didn’t shoot her. She wouldn’t have spoken that way if her husband
had shot her.
- Court is arguing – not hearsay b/c it goes to state of mind, not to the truth of what
they have stated; and we can draw an inference from what they have stated that
the husband didn’t kill the wife
- If she had said “Wysochan shot me” it would have been hearsay. But wouldn’t
that statement accomplish the same thing as what is actually being put in?
- The result: this becomes affirmative evidence of something that’s been implied.
Isn’t that ultimately the truth of the statement???
- Think about this: is Mrs. Kropa’s state of mind relevant in this case? Only if
you’re using it to assert the truth of the implication to be drawn from her
statement!
- This case really highlights how fine the differences between hearsay and nonhearsay are, and how those differences are actually quite fraudulent.
- This might be used as an exception that can allow you to get around hearsay.
- Remember – courts may create exceptions, or even circumvent the rule altogether,
to obtain the result they want
- How do you tell something is hearsay or is an exception? It’s hard to tell! There
may not be a clear answer…
o Ask yourself – what do you want this evidence to do? How can I argue
that this evidence can achieve what I want it to do without it being
hearsay? If it is hearsay and I’m stuck with that, how do I find an
exception?
o Really, you may or may not know whether the evidence falls under the
hearsay rule, or an exception. You want to look at your evidence and see
how you are going to get it in for the purpose you need it in for.
o Go back to relevance – what relevance does this evidence have?
R. v. Evans, 1993 SCC (Code 140)
Parties, Positions, History: Evans was convicted at trial. C.A. upheld the conviction.
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Facts: Evans is charged w/ robbery and attempted murder. A man fitting Evans’
description had purchased a vehicle from the Boutets a few days prior to the robbery.
That man said that he had a pregnant dog and worked as a chain-link fencer. The vehicle
was later found at Evans’ residence, after the robbery had occurred. Evans also had a
pregnant dog and worked as a chain-link fencer.
Issues: Can the statements that the purchaser made to the Boutets (as retold by the
Boutets) be admitted as evidence?
Holding & Reasons:
Sopinka (Majority):
*The person who purchased the vehicle said to the Boutets that he was an installer of
chain link fencing, and that he had a pregnant dog. The Crown had evidence to show that
Evans was an installer of chain link fencing, and that he had a pregnant dog. The Court
wanted to use the testimony of the Boutets and the fact that the appellant provided the
hide-out for the robbers when they were planning the robbery to infer his involvement in
the robbery.
*The court notes that there is no proof that the person who purchased the vehicle actually
did have a pregnant dog or that he did work in fencing. Therefore the Boutets’ statements
can’t be used for the truth of what they relayed.
*However, “…the fact that certain representations are made is probative as it narrows the
identity of the declarant to the group of people who are in a position to make similar
representations… The statement has probative value without assuming the truth of the
statement because the mere fact that it was made tells us something relevant about the
declarant that connects him to the accused.”
*Since the truth of the statement isn’t in issue, deprivation of the right to cross-examine is
of no consequence.
McLachlin (dissent): McLachlin is concerned that the information on which the class of
persons is based is information that was not uniquely known to the accused. “It was, on
the contrary, information which could have been obtained by anyone who had cared to
observe or inquire into the accused’s affairs.”
Ratio:
Main Principles:
Comments/Obiter/Questions:
Class Notes:
- Can the Crown prove that the accused purchased the getaway car a few days prior
to the robbery?
- Boutets statements aren’t great in terms eye witness identification. They have
given a description that could be Evans, but they’re not sure it was Evans.
- Why is the Crown putting in the evidence? Think about what they’re trying to
accomplish? Standing alone, the info is clearly irrelevant to the case. Who cares if
the purchaser had a pregnant dog?
- As DC, are you going to object? The fact that these things were said isn’t
relevant. They’ll only be relevant if they can be linked to evidence that the Crown
has that’s true.
- Sopinka – statements aren’t hearsay. The other facts had been independently
proved. The ultimate value was to prove that the purchaser and the accused were
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-
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the same person. Levy suggests that the SCC should have said that this was
hearsay and should have been subjected to an exception.
Probative value as non-hearsay, suggests Sopinka. On the issue of identity… you
can put in the statement if you plan on proving by other evidence that it’s true.
Should you be able to circumvent the hearsay rule in that way?
Remember – why do we have the hearsay rule? It’s in place to ensure that we are
testing the true source of the information.
o Here, we have the source we think to be the true source. Evans had said
something to the Boutets. Crown can’t call Evans. Boutets are called to
say what the accused said. The accused could give evidence.
o This is the Crown getting around their inability to call the accused to give
evidence.
o Evans had the ability to probe this, but it’s risky.
o Questions – admissions and confessions: true exceptions to the hearsay
rule? That’s what gets opened up in this case.
o Admission – something said by a party to the lawsuit that will be put into
evidence against them. Some admissions are confessions – test: if the
context is criminal, and the statement is made by the accused to persons in
authority.
o Admission – not always conclusive. Omissions may be taken as
admissions, too. They can be by positive conduct.
Admissions – Levy says we always let them in. Confessions, on the other hand,
are subject to certain rules b/c of the criminal context.
o One difficult issue that the SCC has had to deal with is how far the police
can go in obtaining a confession.
You may want to treat admissions and confessions separately. Ask also why
they’re treated as exceptions to hearsay, and why they go afoul of the principles
that underlie the hearsay principle
In Evans – the statements are problematic as hearsay, but still probative going to
identity
R. v. Ferris, 1994 ABCA (Code 156)
Parties, Positions, History: Ferris was accused of murder. TJ convicted. C.A. overruled.
(SCC upheld C.A. decision)
Facts: Accused asks to make a phone call. Police overhear a portion of the phone call
(even though they aren’t supposed to listen in, even inadvertently). Police officer gives
evidence that he only overheard a portion of the phone call, but the words were “I killed
David.” Police officer notes that there had been conversation before and after the
statement which he had not heard.
Issues: Is the statement relevant and admissible?
Holding & Reasons: No.
*“To be relevant, the evidence must be probative of some fact in issue. Words do not
become admissible merely because they are uttered out of the mouth of the accused. It is
for the party tendering the evidence to prove the connection between the evidence
tendered and the fact.”
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*“In the case at bar, Sergeant Schmidt testified that he did not know what words preceded
or followed the statement. To allow the statement into evidence would be to make the
highly prejudicial assumption that the words were uttered as an admission.”
*In confession cases, there is usually someone who can testify to the gist of the
statement, even if the statement is unclear or incomplete. In this case, the person who
could testify to that, the father of the accused, wasn’t called as a witness.
*The court must be sure that there is some evidence upon which a trier of fact could
conclude the meaning of the uttered words. Without it, the words won’t be relevant, no
matter what they are.
*Breach of hearsay rule: Under the categorical approach, the exception that would apply
would be admissions, and this statement doesn’t qualify.
*Under the principled approach, the statement must be both relevant and necessary. In
this case, b/c no meaning can be attributed to the utterance it is impossible to say that it is
reliable. Additionally, the evidence isn’t necessary – the Crown could have called the
accused’s father to give more details.
*Recall that the onus for admissibility is using the balance of probabilities. The Crown
obligation here is to “establish that these words spoken in these circumstances are
capable of being an admission.”
*Note that this case also deals with adequacy of jury charges.
Dissent:
*“The voir dire was held to determine if the statement was free and voluntary, and
whether there was some evidence that it was made by the accused. The trial judge had no
obligation to decide how it had been made, whether it was true or any other questions
touching its weight.” The evidence should have been allowed in, and then it could have
been challenged, modified or confirmed within the context of the trial.
*This would be more inline with the basic principle of evidence that evidence should be
included.
Ratio:
Main Principles:
Comments/Obiter/Questions:
*At the SCC, Sopinka says: “its meaning was so speculative and its probative value so
tenuous that the trial judge ought to have excluded it on the ground its prejudicial effect
overbore its probative value.”
Class Notes:
- Keep in mind – the words were out of context; how could the Court even consider
them relevant?
- The Court doesn’t – they’re out of context, fragmented – not enough to determine
relevance
- No putting in fragments of statements – is this an exception to hearsay? No. Court
talks about this, and other possible exceptions to hearsay rule
- An intro to exceptions
o If there is a hearsay problem (which there isn’t in this case),
o Exceptions – necessity and reliability, the two factors for which we will
make exceptions to the hearsay rule.
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o We need a guarantee that the evidence is accurate (I think) – the modern
approach
o The necessity and reliability are conversely correlated: More need for the
evidence, the less reliable it will need to be; the more reliable the
evidence, the less we will require that it be necessary.
o This is the “principled approach” to hearsay, the “modern approach”. Not
hard to understand, but sometimes hard to apply
o There are older, common law exceptions to hearsay that haven’t been
abolished. The SCC says they remain the law, but that it is open to
counsel, against whom evidence would be entered using the old rules, to
argue that the evidence doesn’t fit into the modern approach.
There are about 30 common law exceptions that remain. Most litigators run into
only a few. Most of them are very obscure.
A third category of exceptions to be aware of: statutory exceptions to hearsay
rule. These aren’t touched by the principled approach.
o Often, the exceptions are very technical and specific.
o It often gives documents the status as prima facie evidence of the truth of
what’s in it.
o Alberta Evidence Act, Canada Evidence Act, for example
o Family law and wills law, there are exceptions under Vital Statistics Act
that are relevant to those areas of law
Some Exceptions to the Hearsay Rule
Res Gestae
Ratten v. The Queen, 1972 P.C. (CB 157)
Parties, Positions, History:
Facts: Murder case; the wife of the accused is killed at their home. There was a short
timeframe within which the wife was killed (1:12 and 1:20 p.m.). There was a telephone
call at 1:15 p.m. to the local switchboard. In this case, the operator gave evidence at the
murder trial about what was said to her during that telephone call. The operator testifies
that it was a female voice, the voice was hysterical and sobbing, and the voice said “get
me the police”.
Issues: Was the evidence given by the telephone operator hearsay, and if so did it come
within any of the recognized exceptions to the rule against hearsay evidence?
Holding & Reasons: Yes and Yes.
*The court noted that there were five elements in the evidence of the telephone call:
1) The operator received the phone call.
2) She opened the speak key and said “Number please.”
3) A female voice answered.
4) The voice was hysterical and sobbed.
5) The voice said “Get me the police please.”
*Numbers 1-3 show that the call was made. Numbers 4 & 5 are relevant as possibly
showing (if the jury drew the inference) that the deceased woman was at this time in a
state of emotion or fear.
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*“To confine the evidence to the first [#1-3] would be to deprive the act of most of its
significance. The act had content when it was known that the call was made in a state of
emotion.”
*The court surveys the possible meanings of res gestae as an exception to the hearsay
rule. They conclude that you can apply it to a situation where a hearsay statement is made
either by the victim of an attack or by a bystander that indicates, directly or indirectly, the
identity of the attacker. In terms of the exact wording, the accused has the ability to refute
the statement. But a more significant concern is that the statement could be concocted.
*If there is a possibility of fabrication, this may be a reason to exclude the evidence. This
is the test that should apply – the temporal aspect of whether the statement was part of the
event or transaction should not be the basis of the judge’s test.
*Statements made after the event: “…it must be for the judge, by preliminary ruling, to
satisfy himself that the statement was so clearly made in circumstances of spontaneity or
involvement in the event that the possibility of concoction can be disregarded.”
*In this case, the statements were permitted b/c they were statements made arising out of
“an overwhelming pressure of [a] contemporary event.”
Ratio:
Main Principles:
Comments/Obiter/Questions:
Class Notes:
- deceased was a female; it appears the Crown was assuming that the phone call
was placed by the deceased – no evidence of any other woman in the house
- Crown wants to have it inferred that there was a female in the house who was
scared (and it was fact that there was only one female in the house)
- Is the testimony of the operator hearsay? Part of it clearly isn’t – the description
of what the operator had done was of her own behaviour. But what about the
voice on the line?
- Is the question of whether the voice is male or female a hearsay problem? Or is it
a situation where a lay person gives an opinion of compendious facts? (Graat)
- Privy Council says that none of this is hearsay; it’s just part of the circumstances
surrounding the shooting
o This makes sense to me – nothing is being presented for the truth of the
statement
- The problem – the appellant says that the evidence is being entered as an assertion
of the fact that she was being attacked by the accused
o Operator didn’t say that the voice reported an attack. That would very
clearly give rise to hearsay
- Think – what does the Crown want to do with this evidence? The Crown appears
to be trying to get the jury to draw an inference that: the wife was scared (and
she’s dead); and from that point that the accused did the killing.
- On its face, the Crown isn’t trying to use the evidence of the truth on its face. But
they are using it so that the jury can draw an inference.
- Is it okay that they can draw the inference that the Crown is trying to point out? Is
this merely circumstantial evidence? It seems that the answer is yes – this isn’t
likely hearsay.
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Is the Crown trying to use circumstantial evidence, implicit in which is the
proposition that the wife, the only female in the house, had called and that she
was scared by the only man in the house, her husband?
- Why is the court worried about hearsay here?
- They move on – let’s assume that it is hearsay; they go on to the res gestae rule
o 3 meanings of that statement
o They conclude that the third of the possible explanations is the appropriate
meaning
o We shouldn’t be worried so much about the precise temporal boundary of
the incident. The key is that the more detached a statement is, temporally,
from the incident the less reliable it is
o Think of it this way – an immediate reaction is likely more honest than a
statement that comes after some time, in which you could have thought
about it and fabricated a story
- So keep in mind – this case is confusing b/c of the difficulty of what is/isn’t
hearsay. However, it’s useful for its definition of the res gestae rule.
Necessity & Reliability – the two scales of the “principled approach”
- It’s tricky – courts want evidence in, but how far will they go?
- Weak necessity, but high reliability – they may let it in; and vice versa
R. v. Clark, 1983 ONCA (CB 162)
Parties, Positions, History: Clark accused of killing her ex-husband’s new spouse. TJ
convicted her of second degree murder; she appealed. C.A. dismissed the appeal.
Facts: Neighbour hears someone saying “Help, I’ve been murdered! I’ve been stabbed!”
Accused allegedly stabbed her ex-husband’s new wife. Neighbour heard the commotion,
and came over and saw the deceased after she had been stabbed, making those statements
Issues: Should the statement made by the neighbour be excluded as hearsay?
Holding & Reasons: No.
*The court says that this evidence is hearsay – it is being tendered as evidence of the
truth of what was stated. The general principle of the exception on which the admission
of the evidence is made is as follows: “…under certain external circumstances of physical
shock, a stress of nervous excitement may be produced which stills the reflective faculties
and removes their control, so that the utterance which then occurs is a spontaneous and
sincere response to the actual sensations and perceptions already produced by external
shock.”
*Spontaneous hearsay statements will be admitted as evidence if the risk of concoction or
distortion “can be excluded.” The statement may relate to any relevant matter – for
example, in Ratten, the statement “Get me the police, please” wasn’t brought as evidence
to prove the identity of the accused. Rather, it was brought to show that the attack itself
had occurred, rather than a mere accident.
*In this case: the words spoken by the deceased “were such as to exclude the possibility
of concoction or distortion and, if Miss Pitcher’s evidence were accepted by the jury, the
words spoken, “Help! I’ve been murdered! I’ve been stabbed!” were evidence of the
belief of the deceased as to what had occurred and evidence as to the truth of the facts
stated by her as a true exception to the hearsay rule.”
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Ratio:
Main Principles:
Comments/Obiter/Questions:
*Consider – does this exception have a temporal aspect? How long after the incident can
the statement be made and still be considered to be a true statement, one unaffected by
concoction?
Class Notes:
- one of the issues that came up in this case is that at the trial, there was no
objection to these statements; C.A. let counsel argue it on appeal, but note that
that may not always be the case
- So: is this hearsay? If yes, is it subject to a hearsay exception?
- Court says that it is hearsay – the statement is being used to help prove that the
victim had been stabbed (although, clearly there was other evidence)
- How close is this to Ratten? The statements are clearly different… But is the
different sufficient to create the opposing opinions? In Ratten, it’s not hearsay. In
Clark, it is hearsay.
- Court is saying that as long as the statement was spontaneous, then it will come
under the exception – it’s more reliable
- note the reference to Mahoney v. R – they provide a sample of a statement that
doesn’t fall under an exception to the hearsay rule; why is this considered a verbal
act, and thus admissible?
- Clark is useful to help clarify Ratten, but the addition of Mahoney confuses the
issue
- The general exception that comes out of these cases: statements made that are
against the pecuniary or property interests are generally admissible
- The underlying reasoning: we value money and property so greatly that if we
admit we owe something to someone else, it must be true
- Remember – this rule is based on the assumption that this is true; this value has
never been proven
- The example that Levy gives is where someone admits that there’s an equitable
mortgage on their property: why would someone admit this unless it were true?
- These statements will be admissible even if the party who admitted it was dead; it
used to be that you had to be dead for it to be admitted (necessity)
- This is still an exception, but we don’t see it used very often
- For example – if someone says: “I owe you $100, but you owe me $10k!” we take
it to be admissible for the truth of the statement as an exception to the hearsay rule
- This most often comes up in civil, rather than criminal, litigation
- This premise is the background to O’Brien, Pelletier and Lucier
- What if you admit to something that’s against your penal interest? Why wouldn’t
you apply the same principle?
- Someone is charged; they furnish a witness who gives evidence that they heard
someone else admit to the crime. It is unlikely that a person who admitted to the
crime will actually testify themselves.
o Think about jail cell admissions. Lawyers, too, may receive confessions of
this nature.
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o Should these sorts of declarations against interest be permitted when
someone is trying to exculpate themselves? Sussex Peerage said no, and
this was the historical position for a long time
o In Canada, now, this has been departed from
These three cases – in principle, a declaration against one’s penal interest can be
admissible. The question is, when will that happen?
Statements against interest
R. v. O’Brien, 1978 SCC (CB 166)
Parties, Positions, History: Accused, O’Brien, convicted of trafficking narcotics.
Facts: O’Brien is convicted of a drug crime. The co-accused flees the jurisdiction after
O’Brien is convicted. Jensen goes to O’Brien’s counsel and admits to doing the crime
alone. Jensen agrees to testify, but then he dies of a drug overdose. Appeal is to reopen
the case and adduce new evidence; the evidence is to be entered by Mr. Simons, the
lawyer.
Issues: Is the evidence of the statements made by Jensen, which is to be entered by Mr.
Simons, inadmissible as hearsay?
Holding & Reasons: Yes.
*It was contended that a hearsay statement by a deceased person against his interest
constitutes such an exception. “The exception rests upon necessity and the presumed
trustworthiness.” It was said that declarations made by persons against their own interests
are “extremely unlikely to be false.”
*This case gets rid of the distinction between statements adverse to a pecuniary interest,
as opposed to statements adverse to a penal interest. In the past, one could be used but not
the other. In this case, the court moved to align both under the exception for Canadian
common law.
*What qualifies as a declaration against penal interest? There are three requirements:
1) The fact stated must be one within the peculiar knowledge of the declarant. (Note
that this requirement wasn’t mentioned in the O’Brien case)
2) It is essential that such fact should have been “to the deceased’s immediate
prejudice”, that is against his interest at the time when he stated it.
3) It is essential that the deceased should have known the fact to be against his
interest when he made it, because it is on the guarantee of truth based on a man’s
conscious statement of a fact, “even though it be to his own hindrance,” that the
whole theory of admissibility depends.
*In this case, the court notes that the circumstances surrounding Jensen’s confession
negative the conclusion that he understood that he was exposing himself to prosecution.
*“To be admissible there must be a realization by the declarant that the statement may
well be used against him.”
Ratio:
Main Principles:
Comments/Obiter/Questions:
*There is an excellent formulation of the hearsay rule in this case:
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“It is settled law that evidence of a statement made to a witness by a person who is not
himself called as a witness is hearsay and inadmissible when the object of the evidence is
to establish the truth of what is contained in the statement; it is not hearsay and is
admissible when it is proposed to establish by the evidence, not the truth of the statement
but the fact that it was made.” This is based on Subramaniam.
Class Notes:
- this is clearly hearsay; should we let it in under an exception?
- Sussex Peerage would have said, automatically, no
- The question here – was this particular statement made within the rules of this
exception?
- SCC says no.
- They open up the exception to this type of evidence, but in this particular case the
evidence doesn’t have the degree of reliability needed
- Why would Jensen’s statement not really hurt Jensen? Because if he gave the
evidence in court, it wouldn’t be able to be used against him in a trial later – s.13
of the Charter. This is also in the Canada Evidence Act, s.5.
- Note that CEA and provincial Evidence Acts bind all the governments, but
Charter covers everyone now.
- Essentially – witnesses are required to answer ALL questions truthfully, even if
they’re going to incriminate themselves, but that evidence won’t be used against
them. This at least gets the info out there (unlike the 5th Amendment in the U.S.)
- In this case, Jensen wasn’t actually at risk – his statement wasn’t sufficiently
against his interest, and thus didn’t have the required degree of reliability
R. v. Pelletier, 1978 ONCA (CB 170)
Parties, Positions, History: Accused, Pelletier, was charged with manslaughter following
the death of his roommate.
Facts: Pelletier was roommates with the deceased, Cormier, and a man named David.
Cormier was killed and David was arrested. He gave a statement to the police: On the
night in question, David and Cormier got drunk and got in a fight. David pushed Cormier
to the ground, where he lay for the rest of the night. David thought he was sleeping.
David was charged with manslaughter, but following the preliminary hearing the charges
were withdrawn and Pelletier was charged instead. The Crown and defence both sought
David to attend Pelletier’s trial to testify but he couldn’t be found.
Issues: Are the statements made by David to the police inadmissible as hearsay?
Holding & Reasons: No.
*In this case, David made the admission of the assault to the police when they were
investigating the manslaughter by assault, and his statement also places the body in the
spot where it was found by police. Considering that there was no direct evidence that
Pelletier assaulted the deceased, and David’s admission, a jury might well infer that it
was David rather than Pelletier who followed up the initial assault with the fatal blow.
*The court also looks at the use of statements against interest in cases when the witness is
unavailable: “Any reason why the declarant cannot be brought in at the trial should
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suffice, such as physical incapacity, absence of the witness from the jurisdiction or
inability of the party to find him…”
Ratio:
Main Principles:
Comments/Obiter/Questions:
The court cites the “five tests” from R. v. Demeter:
1) The declaration was made in such circumstances that the declarant should have
apprehended a vulnerability to penal consequences as a result.
2) The vulnerability would have to be not remote.
3) The declaration sought to be given in evidence must be considered in its totality.
4) In doubtful cases, the Court should consider whether or not there are other
circumstances connecting the declarant with the crime AND whether or not there
is any connection between the declarant and the accused.
5) The declarant would have to be unavailable.
Class Notes:
- death of the person whose interest is in question – not required
- penal interests v. financial/property interests
- what if the statement can’t be determined if it’s against interest? What do you do?
This case allows them to look at the whole context
- in proprietary interests – if just a little bit of the statement goes against interests,
then the whole thing does
Lucier v. The Queen, 1982 SCC (CB 172)
Parties, Positions, History: C.A. had determined that Dumont’s statements were
admissible.
Facts: Lucier’s house was destroyed by fire while he was out of town. Lucier’s friend,
Dumont, had been in the house at the time of the fire and he suffered severe burns. He
escaped and was taken to hospital. While he was in the hospital, he gave a statement that
he had set the fire and had been paid by Lucier to do so. Dumont later died from the
burns.
Issues: Were the statements made by Dumont admissible as an exception to the hearsay
rule?
Holding & Reasons: No.
*“…it must now be recognized that in a proper case statements tendered on behalf of the
accused and made by an unavailable person may be admitted at trial if they can be shown
to have been made against the penal interest of the person making them; but neither the
two cases to which I have just referred [Demeter and O’Brien] nor any wealth of
authority cited in the courts below apply such a rule to statements which have an
inculpatory effect on the accused.”
Ratio:
Main Principles:
Comments/Obiter/Questions:
- interesting, but nothing striking – Levy
We were considering what the SCC started doing to hearsay
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recall: the rule is that hearsay is inadmissible
there are still common law rules relating to hearsay and admissibility
the rules can sometimes be overriden by the principled criteria, but something is
still going to get in if it fits under the exception rules
Business records
*Statements made by a deceased person in the course of his duty and in the ordinary
routine of his business are admissible in certain circumstances.
*In AB, there is no statutory business records exception, as is common in other
jurisdictions. The C.A. has defined the common law business records exception: “…the
modern rule can be said to make admissible a record containing (i) an original entry (ii)
made contemporaneously (iii) in the routine (iv) of business (v) by a recorder with
personal knowledge of the thing recorded as a result of having done or observed or
formulated it (vi) who had a duty to make the record and (vii) who has no motive to
misrepresent.” (R. v. Monkhouse, 1988)
Class Notes:
- most evidence acts have provisions dealing w/ business records
- in AB, there’s no such rule under the act – the common law has been modified to
allow those records to get in
- courts are going more towards common law b/c the notice required by the Acts is
cumbersome; if a party forgets to give notice, the relevant evidence could be
excluded
The Principled Approach
-
-
you can see principled approach, and the approach in Ares in many cases before
the approach was formalized
recall: main problem w/ hearsay is that you can’t test its accuracy
cross-examination is the traditional way of testing evidence; in hearsay situation,
you can’t cross the source
you want to ensure that the evidence you get is reliable (not an absolute
guarantee, of course)
So, what replaces cross-examination? A circumstantial guarantee, for example…
There’s no absolute template for reliability; it always has to be examined based on
all the circumstances of the case
Necessity: you may need someone’s evidence, but what if they’re dead? Then it is
necessary to rely on hearsay – someone else who can attest to what they said
What if we don’t know who the source of the statement is? Think about hospital
records – will you know exactly who entered the info? Once info has been
processed, and forwarded, etc. it’s possible that it will be hearsay many times
over. It may be necessary to use these documents b/c they might be the only
documents/information available!
Example: CPR v. Calgary – there was a train wreck following a rain storm; the
culvert, built by the city, wasn’t able to hold all the run off from the rain. The
issue was whether the city was negligent when they built the culverts
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-
o But, the key for us – how was the CPR going to prove what was in the
train that crashed, and how much were the cars of the train worth?
o There was a lot of potential relevant info related to the quantum of the
questions above. There clearly wasn’t one person who was going to have
all the relevant info – CPR was going to have to rely on documents
o The docs had been put together by dozens of people, many of whom were
unidentifiable
o This was all still hearsay – should it be let in?
o The court said yes – they understood that this was probably multiple
hearsay; there were likely many people who were relaying information,
and we’ll never know who said what and who actually recorded it?
o These are routine business records – there are risks of letting them in, but
there are an equal number of risks if you leave them out
Consider your transcript – multiple hearsay! Is it reliable? Is it necessary to
provide it as evidence? What if the person who gave you the grade is dead?
We are having to rely on sources of info when we don’t know who gave the
evidence
R. v. Khan, 1990 SCC (CB 55)
Parties, Positions, History: Accused, Khan, charged with sexual assault.
Facts: Khan was a doctor. The complainant and her mother were attending at Khan’s
office for an exam of the mother. While the mother was changing into her gown, Khan
and the girl were in another room. Khan coerced the girl into performing oral sex. After
the mother and girl left the office, the mother asked the girl what she and Khan had been
talking about. The girl explained that Khan had ejaculated in her mouth, though using
child-like language.
Issues: Did the trial judge err in rejecting the mother’s statement of what the child told
her after the incident?
Holding & Reasons: Yes.
*Using the test for spontaneous declarations, the statement was properly rejected. The
court notes, though, that the rule about spontaneous declarations is unduly inflexible, and
a more flexible approach is needed.
*The new principled approach is based on two general requirements for hearsay
evidence: that they be reliable, and that they be necessary.
*In this case, the court found that the declarations were both reliable and necessary. The
child was disinterested, and considering the nature of the act it is unlikely that she could
have concocted the story. This gives it a strong air of reliability. There was difficulty in
obtaining corroborating evidence, so her statement was clearly necessary in order to get
at the truth of what happened.
*The court ultimately holds that the mother’s statement should have been received: it was
necessary b/c the child’s viva voce evidence had been rejected, and it was also reliable.
Ratio:
Class Notes:
- Assault of a 4-year-old girl
- Girl tells her mother of the abuse, about 15 minutes after the fact
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Can the girl give evidence of what happened to her?
TJ said no – she’s too young; this is a bit controversial, b/c there’s no magic age
under which a child can’t give evidence
So, Crown still has the statement from the mother. Mother could tell the court
what the daughter told her.
We have necessity – TJ has said no to the girl’s evidence, it’s necessary to get
mom’s evidence in order to get any statement in
What about reliability? Are children more or less likely than adults to speak the
truth? Social science says that lying is an acquired skill – children are less likely
to lie than adults
Is there reliability in mother repeating the statements? Consider – the mother is
likely very upset.
Factors to consider –
o What’s the temporal difference? The longer after the event that the
statement is made, the more likely that the statement will be questionable
(did the child forget something, did someone suggest something to the
child)
o There was forensic evidence – Khan’s semen was on the girl’s clothing.
The evidence wasn’t conclusive, but it gives reliability to the statement
made by the mother. It corroborates the girl’s statement, too.
These factors don’t give us reliability, but they point to it.
The themes in these cases – we’ll be dealing with reliability and necessity, but
each case turns on its own facts. There’s no categorical list of factors that are
determinative for reliability and necessity.
R. v. Smith, 1992 SCC (CB 212)
Parties, Positions, History:
Facts: Smith and the complainant, King, were in a relationship. They drove from their
home in Detroit to London, ON where they spent the weekend. The last night of the trip,
they got in a fight and Smith left King at the hotel. King phoned her mother in Detroit to
say that Smith had left her, and then called about an hour later to say that Smith had come
back. About half an hour after that, she called her mother again from a gas station pay
phone to say that she was “on her way”. King’s body was found the next day in a ditch
near the gas station in a sheet from the hotel where she and Smith had been staying.
Issues: Are the deceased’s statements inadmissible as hearsay?
Holding & Reasons: Some were, some weren’t.
*Even though the statements were not admissible under the “present intentions” or “state
of mind” exceptions, Lamer says that this isn’t fatal to the case. The adoption of the
principled approach means that the evidence could still make it in.
*One of the problems with the categorical approach is that it’s black and white in terms
of whether something will or won’t be accepted. Further, if statements are made in
circumstances where are trustworthy, it would be silly to insist on a categorical test where
the chief objective – trustworthiness – has already been established.
*What sorts of situations will substitute for testing evidence by cross-examination? Some
broad categories are suggested:
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1) “Where the circumstances are such that a sincere and accurate statement would
naturally be uttered, and no plan of falsification be formed;
2) Where, even though a desire to falsify might present itself, other considerations,
such as the danger of easy detection or the fear of punishment, would probably
counteract its force;
3) Where the statement was made under such conditions of publicity that an error, if
it had occurred, would probably have been detected and corrected.”
*Now, using the principled approach, hearsay evidence must meet the criteria of
necessity and reliability.
*Necessity: There are two suggested categories. 1) If the person whose assertion is
offered is now dead, or out of the jurisdiction, or insane, or otherwise unavailable for the
purposes of cross-examination. 2) If the assertion is such that we can’t expect to get
evidence of the same value from the same or other sources (goes more to expediency than
necessity, really).
*Finally, the court asserts that “the approach that excludes hearsay evidence, even when
highly probative, out of the fear that the trier of fact will not understand how to deal with
such evidence, is no longer appropriate.”
Ratio:
Main Principles:
Comments/Obiter/Questions:
Note Case: R. v. Mapara, 2005 SCC (CB 267)
*The relationship between the traditional exceptions and the principled approach:
“(a) Hearsay evidence is presumptively inadmissible unless it falls under an exception to
the hearsay rule. The traditional exceptions to the hearsay rule remain in place.
(b) A hearsay exception can be challenged to determine whether it is supported by indicia
of necessity and reliability, required by the principled approach. The exception can be
modified as necessary to bring it into compliance.
(c) In “rare cases,” evidence falling within an existing exception may be excluded
because of the indicia of necessity and reliability are lacking in the particular
circumstances of the case.
(d) If hearsay evidence does not fall under a hearsay exception, it may still be admitted if
indicia of reliability and necessity are established on a voir dire.”
K.G.(B.) – Class Example
- Crown had compelling evidence implicating the accused. One of the friends of the
accused had implicated the accused
- Crown videotaped the friend’s statement to the police. There was no question of
the tape’s veracity
- At trial, the friend doesn’t testify to the statement that he had previously made
- Now, the Crown has nothing to go on! Crown got permission to cross-examine
their own witness.
- Crown asks whether what the friend said in the video tape was true. Friend says
no – he was only doing what the police wanted him to do.
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The only thing the Crown has now established is that the friend isn’t credible on
oath. But they have no evidence to prove what he said. They apply to have the
tape entered, not just to dispute friend’s credibility, but to prove the truth of what
was said in the video
This is worse than a witness who is dead! Witness is alive, and is saying that what
he said on the tape is unreliable!
What’s the Crown to do? Voir dire – police officers are called. They testify to the
circumstances under which the video was made.
TJ – there’s some degree of reliability to the video; video was let in – SCC
upholds the decision
Q: does there have to be a video before you can use this case? Could the defence
do this? These questions are still open at law
Court is stretching – why does this video have some degree of reliability? Why
would the trier of fact believe it? What underlies it that makes us believe it’s
reliable?
R. v. Kehlawon, 2006 SCC (Code 182)
Parties, Positions, History: Accused, Kehlawon, charged with aggravated assault. At trial,
the central issue was whether the statements of each complainant were sufficiently
reliable to meet threshold reliability; TJ held that they were. C.A. excluded all statements
and acquitted accused. SCC upheld dismissal, as none of the evidence that they would
have let in in the first instance met the reliability test.
Facts: Kehlawon was the manager of a retirement home. In 1999, five residents told
various people that they were assaulted by Kehlawon. At the time of trial, four of the
complainants had died, and one was no longer competent to testify. Only one
complainant had testified at the preliminary inquiry.
Issues: Is the statement of the resident, Skupien, admissible as hearsay?
Holding & Reasons: No.
*The court sets out that the statement isn’t sufficiently reliable to overcome the dangers it
presented. The circumstances surrounding the statement don’t provide reasonable
assurances of inherent reliability.
*The court walks through a number of the principles of hearsay…
*“There are a number of exceptions to this basic rule. One of the main exceptions is the
rule against hearsay: absent an exception, hearsay evidence is not admissible.” Recall that
the keys to hearsay is that they are statements adduced for their truth, and that they can’t
be tested by contemporaneous cross-examination.
*“When the witness repeats or adopts an earlier out-of-court statement, in court, under
oath or solemn affirmation, of course no hearsay issue arises. The statement itself is not
evidence, the testimony is the evidence and it can be tested in the usual way by observing
the witness and subjecting him or her to cross-examination.” Normally, out-of-court
statements aren’t permitted if the witness doesn’t testify.
*Exceptions – the Principled Approach: the rigid application of the categorical
exceptions often led to “needless exclusion of evidence in some cases, or its unwarranted
admission in others.” The principled approach has been adopted to counter these
problems. The court reminds us that in terms of precedent “these cases provide guidance
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– not fixed categories – on the application of the principled case-by-case approach by
identifying the relevant concerns and the factors to be considered in determining
admissibility.”
*Where do the twin principles come from? Necessity – stems from society’s interest in
getting at the truth. “Because it is not always possible to meet the optimal test of
contemporaneous cross-examination, rather than simply losing the value of the evidence,
it becomes necessary in the interests of justice to consider whether it should nonetheless
be admitted in its hearsay form.” Reliability – ensuring the integrity of the trial process.
Evidence, though needed, is not admissible unless it’s sufficiently reliable to overcome
the dangers arising from the difficulty of testing it.
*Reliability will generally be met on the basis of two circumstances: 1) contents of the
hearsay statement may be so reliable that cross-examination would add little; 2) the
evidence may not be cogent but the circumstances will allow for sufficient testing of
evidence by means other than cross-examination. However, even if the criteria are met,
the TJ can still reject hearsay evidence if its probative value is outweighed by its
prejudicial effect.
*Threshold v. Ultimate Reliability: whether hearsay evidence will ultimately be relied
upon is a matter for the trier of fact to determine. “Threshold reliability is concerned not
with whether the statement is true or not; that is a question of ultimate reliability. Instead,
it is concerned with whether or not the circumstances surrounding the statement itself
provide circumstantial guarantees of trustworthiness. This could be because the declarant
had no motive to lie, or because there were safeguards in place such that a lie could be
discovered.”
*“Relevant factors should not be categorized in terms of threshold and ultimate
reliability. Rather, the court should adopt a more functional approach as discussed above
and focus on the particular dangers raised by the hearsay evidence sought to be
introduced and on those attributes or circumstances relied upon by the proponent to
overcome those dangers.”
*In this case, the police video was the only evidence available. There were no adequate
substitutes that could be used to test the evidence.
Ratio:
Main Principles:
Comments/Obiter/Questions:
Class Notes:
- The key problem – two levels of reliability; 1) Is there enough reliability that we
should let the jury listen to it? 2) Is there statement actually reliable?
- Under #1 – the judge lets it in, and the jury could say under #2 that, no, it’s not
reliable
- But under #1 – the TJ is having to decide whether something is reliable enough to
let in to be considered
- Abstractly, this is workable – but try applying it to a real life scenario
- What factors will we consider under #1? #2? Are they different?
- Consider – R. v. Starr: that case had drawn this distinction. Threshold v. ultimate
reliability
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o In Starr – they said that the evidence didn’t mean the threshold, even
though it would have been let in to support something at trial. WHAT?
o They said – extrinsic evidence can’t be used to determine ultimate
liability. Holy crap… what a mess.
Khelawon – tries to undo the mess that is Starr
There is still threshold v. ultimate, but there is no real restriction on the type of
evidence that might be relevant to the threshold inquiry; extrinsic v. intrinsic
distinction is gone
Just b/c something is admitted for trial doesn’t mean they will consider it as
meeting the threshold requirement under the voir dire
This is the basic gist of what we need to get out of this case. It doesn’t answer the
question about what evidence we can use in the voir dire, etc.
Are these cases precedents based on facts? Probably not… but the SCC is using
them to put forward the principles that ought to be applied.
Charron also reminds us – we don’t get to hearsay exceptions UNTIL we
establish that the evidence is actually hearsay. This case doesn’t contradict what
we’ve already seen on this point
R. v. Griffin, 2009 SCC (Code 205)
Parties, Positions, History:
Facts: It was undoubted that the deceased, Mr. Poirier, owed Mr. Griffin money. Griffin
was seeking Poirier, who went into hiding. Poirier told his girlfriend, Ms. Williams that if
something happened to him it would be because of her cousin’s family. Williams’ first
cousin had a child with one of Griffin’s first cousin. Ms. Williams said that she
understood this to refer to Griffin.
Issues: Is the statement made by Poirier to Williams inadmissible b/c it’s hearsay?
Holding & Reasons: No, it’s admissible.
Charron (Majority):
*The problem in this case was whether the evidence of what Poirier said is being used as
proof of Griffin’s state of mind. This is a big problem!
*When dealing with utterances: “The evidence is not, however, admissible to show the
state of mind of persons other than the deceased (unless they were aware of the
statements), or to show that persons other than the deceased acted in accordance with the
deceased’s stated intentions.” (From Smith)
*It is established that a deceased’s mental state may be relevant to the question of an
accused’s motive. It’s a link in the chain of reasoning that could point to a motive. This
connection arises if there’s a pre-existing relationship – without it, the link doesn’t arise.
*One of the other issues that arose was that the trial judge told the jury that it could use
the statement to “eliminate other potential people who would want to do him harm, as far
as he was concerned.” This is inaccurate, and is an error on the part of the trial judge.
LeBel & Fish (Dissent):
*The dissent provides an excellent hearsay framework:
We begin by recalling that hearsay evidence, like any other, must be relevant to be admissible (R. v.
Blackman, 2008 SCC 37). It must tend to “increase or diminish the probability of the existence of a
fact in issue” (R. v. Arp, [1998] 3 S.C.R. 339). Under the rule against hearsay, the presumption is that
out-of-court statements are inadmissible to prove the truth of their contents (Blackman, at para. 33),
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absent an exception. One should first look to the traditional exceptions (R. v. Mapara, 2005 SCC 23),
and then to the principled exception (R. v. Khan, [1990] 2 S.C.R. 531). The traditional exceptions are
presumptively valid, though they are still subject to modification in light of the principled analysis of
necessity and reliability (R. v. Starr, 2000 SCC 40). The admissibility decision is also informed by the
judge’s residual discretion to exclude evidence where its probative value is outweighed by the potential
prejudicial effect (R. v. Hawkins, [1996] 3 S.C.R. 1043; R. v. Smith, [1992] 2 S.C.R. 915). On appeal,
the trial judge’s decision is entitled to deference, and should only be disturbed where there is an error
in principle or the decision is not supported by the evidence (Blackman).
*Four purposes for which the statement might have been admitted. They all fail:
1) To prove Griffin’s state of mind;
2) To eliminate others who may have wished Poirier harm;
3) To establish Poirier’s state of mind;
4) To bolster other circumstantial evidence of motive.
*The dissent says that the problem w/ hearsay when it comes to reliability is that there is
no way to inquire about the declarant’s “perception, memory, narration or sincerity.”
Ratio:
Main Principles:
Comments/Obiter/Questions:
Class Notes:
- 5-4 split at SCC; a heavily criticized case
- Drug circle case – a trafficking ring
- What is the Crown trying to achieve with the statement made to Ms. Williams? It
would give evidence that Poirier was afraid that Griffin would kill him.
- But, this is evidence of Poirier’s state of mind; does this prove that Griffin was
actually out to kill Poirier?
- TJ let the statement in, and gave a limiting instruction to the jury. He told them
that the evidence couldn’t be used to prove what Griffin was thinking, it’s only
evidence of what Poirier was thinking. It’s helpful only b/c it may point,
circumstantially, to Griffin actually being after Poirier.
- The dissent says that this is a problem – TJ was letting evidence in b/c it went to
deceased’s state of mind, but once it was in and once it was connected to other
circumstantial evidence, it gave a picture of who was the killer
o The problem is that there’s circular reasoning – the evidence is being let in
to prove Poirier’s state of mind, and is providing circumstantial evidence
that it was Griffin, and then we’re letting it in b/c … (not sure what I’m
getting at here)
o Does letting this info in impair the trial process? 4 judges thought so
- Majority – we’re not to worry about what the jury does with the evidence. We
must defer to their common sense. But how far can we trust a jury? Should judges
be able to control the ultimate disposition of the case through their rulings on
admissibility of evidence?
Credibility
What is credibility?
- Can we call witnesses to testify to someone’s credibility? Can you support your
own witness? Can you anticipate that support?
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Can you testify to telling the same story consistently?
Generally – you have to wait until the credibility is attacked to bring evidence to
reinforce it. Even once it’s attacked, there are limits to what you can do to
reinforce it
- How do you attack credibility? Are there rules about it? Can you call witnesses
that will question your reliability?
- Will this sort of matter distract from the main issue of the case?
- What about prior consistent statements? Prior convictions?
Oral evidence:
Credibility
What can we do or not do to help us assess the cred of witnesses?
What can we do or not do to attack the cred of witnesses?
Supporting witness testimony
 Can we call other Ws to say that the W is truthful?

It is common to ask your own w to situate them in the world – often by leading
the W – b/c the answers are not controversial – “Levy you have been living in
Calgary since 1976, and are a law professor?” is this controversial? Well not
relevant or probably not especially relevant – but truthfully it lends support for the
truth of their testimony – so you are really saying that this is a credible w. –

The general rule is that you cannot anticipatorily reinforce the credibility of your
W – you must wait for the attack before you fire any guns back.

Exceptions: when you may reinforce the credibility of your witness.
o if there is some sort of attack you may: call an expert W to give evidence
professionally to show why your w is telling the truth – but this is only if a
certain kind of attack is made.


1. If the w is testifying to his health – mental or otherwise, you
could bring an expert in the particular area to support the assertion
that he is okay.

2. A w may have been addressed in such a way to suggest that they
were making up the story. – if it is alleged or inferred in some way
that we were going to lengths to create a story our credibily can be
shored up if we can show that there was a “prior consistent
statement” –

3. If you have an attack you can adduce evidence in reply showing
that the w has a reputation for veracity – what is the reputation of
the w in the community?
What if the W is the A? Then what can you do?
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o You may do the following and you may do the following before the
character attack – though only if you are putting him on the stand

1. Give evidence to show that he has good character – there are
some things you can do to reinforce the cred before it is attacked

This is risky – b/c if you put the A’s character in issue that
means that it is now an issue in the case and the crown may
have nasty surprises for you – you should really think and
be sure you are dealing w a relatively virtuous person
Means of Assessing Credibility
*When assessing credibility two distinctions need to be kept in mind: 1) Is the witness
telling the truth? 2) Is the witness a truthful person? “Credibility in sense (1) is what is at
stake in the trial; credibility in sense (2) is a relevant but collateral issue.”
*There are limits on the means by which a party may seek to establish that its own
witness is a truthful person,
*Means of assessing credibility: The demeanour of the witness
*From R. v Norman: “The general integrity and intelligence of the witness, his powers to
observe, his capacity to remember and his accuracy in statement are important …
whether he is honestly endeavouring to tell the truth, whether he is sincere and frank or
whether he is biased, reticent or evasive.”
*One of the reasons hearsay evidence is prima facie inadmissible is because when the
declarant’s statement is reported to the court by another witness, the trier of fact is
deprived of the opportunity to observe the declarant making the statement.
*But, a witness’s demeanour won’t always be a reliable or sufficient indicator of
credibility. The assessment can be affected by cultural assumptions and stereotypes.
Limits on Supporting Credibility
*Accrediting questions about a person’s employment, length of residence in the
community, etc. are permitted and admissible (R. v. Clarke).
*However, “a party may not lead evidence as part of its case where the relevance of the
evidence is limited to showing that another of its witnesses is a truthful person. Nor can
the party lead evidence that the witness has made prior consistent statements. This type of
evidence is sometimes called “oath-helping.””
*There are four main exceptions to the rule against “oath-helping”:
1) Expert evidence: evidence where the assessment is beyond common experience;
2) Defence in a criminal case may lead evidence of the accused’s reputation for
veracity, along with other good character evidence;
3) A witnesses’ prior consistent statement will be admissible to support his or her
identification at trial of the accused or another, or to rebut an explicit or implicit
allegation of recent fabrication. The fact that the statement was made may be
admissible where it forms part of the witnesses’ narrative and is significant in
understanding the witnesses’ account of events;
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4) Where credibility of a witness has been attacked, the party can adduce evidence in
rebuttal to support the credibility of the witness, including reputation for veracity
and evidence of a prior consistent statement to rebut an allegation of recent
fabrication.
Accused’s Reputation for Veracity
*DC may lead reputation evidence to establish the good character of the accused for the
purpose of raising a reasonable doubt that he or she committed the crime. DC can also
lead this sort of evidence to enhance the accused’s credibility if the accused testifies.
R. v. Clarke, 1998 ONCA (CB 338)
Parties, Positions, History: Accused: Clarke, who had been dating the complainant.
Charged with forcible seizure, assault with a deadly weapon, and possession of a weapon
for the purpose of committing forcible seizure.
Facts: Clarke was a widower. He and the complainant began dating in 1995 and were
together for several months. They broke it off when the complainant discovered that
Clarke was cheating on her. The charges arose out of a confrontation the parties had in
Clarke’s van, which he had parked outside the complainant’s building.
Issues: Was the reputation evidence called by DC inadmissible b/c it was merely oathhelping (DC proposed to ask the witnesses whether they would believe the accused if he
was under oath)?
Holding & Reasons: Yes.
*DC was going to ask questions to impeach the credibility of the complainant by asking:
1) Did they know the reputation of the complainant as to truth and veracity in the
community in which she lived?
2) Is the reputation good or bad?
3) Based on that reputation, would you believe her if she was under oath?
*“The general rule of evidence is that a party may not bolster the character of his or her
witness until the opposite party has attempted to impeach the witness’ character. Socalled oath-helping evidence is inadmissible.” (R. v. Beland and T. v. B.(F.F.))
*The court was not referred to any authority that would permit an accused to lead
evidence from a witness about whether or not that witness would believe the accused
under oath. The only time that question is permitted is if the witness had first stated that
the witness as a bad character for veracity. The character of the accused may be put in
issue in the cross-examination of prosecution witnesses, or by calling defence witnesses.
However, the evidence must be evidence of general reputation only. DC may not ask
witnesses for their opinion whether they would believe the accused under oath.
*When charging juries, judges should cover two points peculiar to this kind of evidence:
“First, whatever the witness’ reputation for veracity in the community, testifying in court
under oath is a very different circumstance and the jury will want to bear this in mind.
Second, the character witnesses have not heard all the evidence, and are not sworn to the
heavy duty of the juror to render a true verdict. The jury may find the reputation evidence
helpful in determining the credibility of the witnesses, but they should not automatically
defer to that evidence.”
Ratio:
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Main Principles:
Comments/Obiter/Questions:
R v Clarke
Facts: C was charged w .... was a member of the Caribbean community . the tj said that
the community is the community of Trenton – not erroneously even though all the Ws
were from the Caribbean community in Trenton. If you wished to address the q of the
A’s veracity you would call a W and ask them the reputation of A in the community. If
they say yes then you may continue to ask if it is a good reputation. – which is what the
D lawyer did in this case. The third question is more ‘questionable’ – “from that
reputation would you believe this person under oath?” – What the CA says in this case is
that generally speaking the third question is not a good one to ask – it is personal opinion
based on personal opinion based on reputation. – So they won’t actually be answering the
question they are be asked. CA says that counsel must ask if they can ask this question
and give reasons why they want to.
Prior Consistent Statements
*Prior consistent statement of a witness is generally not admissible to enhance credibility.
The traditional rationale is threefold:
1) The mere fact that a witness has previously given a statement consistent with their
testimony is not probative of its truth;
2) Even if the prior consistent statement is probative, the value is minimal and
doesn’t justify the time required for the statement to be presented and tested by
cross;
3) If the trier of fact is expected to accept the statement for its truth, it’s hearsay.
*There are exceptions to the rule excluding prior consistent statements:
1) They will be admissible to support his or her identification at trial of the accused
or another;
2) Where it is suggested, explicitly or implicitly, that the complainant has recently
fabricated the complaint, or the accused has recently fabricated an exculpatory
explanation, defence can lead evidence of a prior consistent statement to rebut the
suggestion (this is forbidden in sexual assault cases);
3) Even if the content of the prior statement isn’t admissible, the fact that the
statement was made may be admissible where it forms part of the witness’
narrative and is significant in understanding the witness’ account of the events.
*Prior identification: evidence that the witness previously identified the accused is
admissible to permit both parties to explore the reliability of the identification.
*Recent fabrication: The principal exception to the exclusionary rule is that a prior
consistent statement is admissible to rebut an explicit or implicit allegation of recent
fabrication. … the witness’ prior consistent statement is admissible to show that the
witness has consistently maintained the same position for some time.
83
R. v. Giraldi, 1975 BCCA (CB 343)
Parties, Positions, History: Accused: Giraldi. Acquitted of two charges – theft of a VW
Van, and possession of the van knowing that it was stolen. Crown appealed on the ground
of wrongful admission of evidence tendered by the defence.
Facts: Giraldi testified that he had been crossing the street when a man drove up to him in
the VW van and asked him if he wanted a ride. He took the ride, and after a short time
they switched places b/c the driver admitted that he was intoxicated. He was chased by
the police in the van, and was apprehended. Giraldi gave a statement to the police after he
had been apprehended. The statement was not entered into evidence. At trial, Giraldi
denied that he stole the van or had any knowledge or suspicion that the van was stolen.
Issues: Did the trial judge err in allowing Giraldi to mention the statement he had made to
the police?
Holding & Reasons: No.
*Before the respondent had been cross-examined by Crown counsel, TJ allowed Giraldi
to testify about his conversation with the police. Giraldi gave evidence that story he told
the police was the same as the story he told when he gave his testimony. The evidence
admitted was not allowed in for the truth of what was said, but rather for the purpose of
showing consistency between the prior statement and Giraldi’s current story.
*The Crown argued that the exception of allowing in a prior consistent statement can
only occur after the Crown has cross-examined the individual in such a way that raises
the inference that his story was contrived.
*CA says that this is incorrect – the foundation for thinking that a prior statement is
inconsistent could be done in a number of ways, and an accused won’t be precluded from
demonstrating that his or her statements are consistent.
*It is up to the Crown to contend or the jury to consider whether the statements were
concocted – the evidence won’t be prima facie excluded.
Ratio:
Main Principles:
Comments/Obiter/Questions:
Class Notes (Gabrielle):
 For W’s only when a cred attack

The cts have expanded this slightly

The cts will admit this type of statement on the issue of whether or not a w’s id of
the A is accurate eg. That the w gave a description of the A on a prior occasion or
id’d the A directly on a previous occasion.
o If the A denies that he was there or conducts his case in such a way that
infers a denial then you know that this kind of evidence is going to be let
in – it is not hearsay – it is not going in as truth of the id, but for credibility
of the id.
84

Recent Fabrication: a little more complicated due to Giraldi – which has never
been overruled and is the law in BC and the SCC didn’t overrule it – all the CAs
have cited it
o h/e most of the time Giraldi is the law and then it is distinguished from the
case at hand.
R v Giraldi
Fact: G was found driving a van – G claims that he took a lift from a guy and that guy
was getting drunk and asked G to drive it.
 G had made a previous statement to the police –“I didn’t know the van was stolen
and I was driving it b/c the guy who picked me up asked me to drive for a while”

The crown didn’t put this statement into evidence b/c it didn’t help them

The A took the stand - b/c there would be no other wya to get the story into
evidence

If the crown had crossed and suggested that this story was made up – then

Is it ethical for crown counsel knowing that A made a statement to the police
saying certain things to put it to the A that they have just made up the story – even
though they know that the A told the police immediately

So before the cross started the D asked to put into evidence the prior consistent
statement – the BCCA says yes – this is admissible. The tj allowed this to happen
and the correctness of the ruling was challenged on appeal – why?

The best one can extract: the ct is saying in all the circumstances of this case it
was obvious that the crown had to be questioning the A’s credibility – if the
reality is that his cred is being questioned then we should treat the situation as one
in which his cred has been questioned

This is not an easy ruling –
R. v. Campbell, 1977 ONCA (CB 344)
Parties, Positions, History: Accused: Campbell, charged w/ attempted murder of his wife.
Facts: Campbell shot the victim five times and burned her with gasoline. The victim gave
evidence of the attack. DC theory was that Campbell had acted in self-defence, or
alternatively that he used excessive force in self-defence or was provoked. DC wanted to
support the claim of self-defence by eliciting from certain Crown witnesses evidence of
prior statements made by the accused. DC then tried to call the accused as a witness, but
the TJ refused to permit certain statements to be led.
Issues: Did the trial judge err in refusing to permit DC from eliciting the accused’s
previous statements from the Crown witnesses prior to the accused testifying?
85
Holding & Reasons: No.
*There are two separate rules of evidence that relate to previous statements made by an
accused:
1) The rule which precludes an accused from eliciting from witnesses self-serving
statements which the accused previously made.
2) The rule which provides that a witness may not repeat his own previous
statements concerning the matter before the Court which were made out of Court.
*Statements made by an accused under Rule #1 are excluded as hearsay. Statements
excluded under Rule #2 are excluded b/c of the general lack of probative value of such
evidence, save in certain circumstances, in support of the credibility of the witness.
*DC argued that the accused’s statements should be admissible in this case b/c of the
exception to Rule #2, namely that prior consistent statements made by a witness are
admissible to rebut an allegation of recent fabrication. DC argued “… the trial Judge
ought to have permitted him to cross-examine the Crown witnesses with respect to the
appellant’s previous statements to them, notwithstanding the appellant had not then
testified, since it was clear, from the cross-examination of the complainant, what the
appellant’s version would be when he testified, and it was implicit in the Crown’s case
that such version was a recent fabrication.”
*C.A. disagrees with this proposition. The ability to cross-examine a Crown witness on
the basis of an agreement to call the accused as a witness can’t be permitted b/c the
accused has the ability to change his or her instructions to counsel at a later time.
*The scope of this exception was stated as follows: “Perhaps the clearest case for the
application of the exception is where it is suggested that the witness and a third person at
some particular point in time together concocted the false story to which the witness
testified. In those circumstances, evidence may be given that at an earlier date, before the
witness and the third person had an opportunity of concocting the story, the witness gave
the same account as that to which he testified.”
*DC’s assertion amounted to a broad interpretation of the exception, namely that in every
case where the accused denies the truth of the Crown’s case, there is an implicit
allegation that his story has been recently contrived. The Court doesn’t think the
exception should be construed this broadly.
Ratio:
Main Principles:
Comments/Obiter/Questions:
*Recent Fabrication in cases of Sexual Assault: If the accused suggested that the
complainant had recently fabricated the allegations, then the complainant’s statements
following the alleged assault were admissible to rebut the accused’s suggestion. But note
that prior consistent statements were not relevant (and hence not admissible) if the
accused’s suggestion was that the complainant’s evidence was fabricated from the outset.
*At common law there had been a presumption that a woman who had been sexually
assaulted would complain at the first available opportunity. This has been altered by
s.275 of the Criminal Code.
Class Notes (Gabrielle):
R v Campbell
Facts: the A shoots, and burn his wife – charged w attempted murder – pleads self-D
86

D wants it admitted that the A had claimed self-D to those prior – they wanted
this admitted before an attack –

The ct point out that an undertaking by the D counsel that the A will testify is not
enforceable - the A can always say no or the A could discharge his counsel

So there are some differences b/t Giraldi and Campbell

If C does testify he will be questioned to suggest that his defence is nonsense and
so what would have to happen is a recalling of the crown w’s and then ask for the
prior consistent statements
o The ct could have done some foot work to ensure that the w’s could be
used in this way – the crown could have tendered the w’s himself

At the end of the day the tj said no- there has been no attack on the A’s cred – and
I can’t be certain that the A was going to give evidence –

The CA agreed w the tj.

So, is Giraldi different from Campbell
o G had already given evidence, here the D counsel just tried to give an
undertaking that he would give evidence
Impeaching Credibility
*What are the specific means by which the credibility of witnesses can be impeached?
1) Counsel can lead expert evidence to establish that the witness’s psychological
abnormality renders him or her unreliable.
2) Counsel can lead evidence of the witness’s bad reputation for veracity.
3) Counsel can cross-examine an opposing witness on a prior inconsistent statement.
This method can also be used against counsel’s own witness w/ the judge’s
permission if that witness is deemed “adverse.”
4) Counsel can cross-examine the witness on his or her record of convictions
pursuant to s.12 of the Canada Evidence Act.
R. v. Clarke, 1998 ONCA (CB 357)
Parties, Positions, History: Although the C.A. held that witnesses shouldn’t have been
asked about whether they would believe another witness on oath, the Crown’s appeal was
ultimately dismissed b/c the Crown didn’t meet its burden of showing that the verdict
would not necessarily have been the same had the impugned evidence not been admitted.
Facts:
Issues: Should a witness be permitted to testify as to whether they would believe another
witness on oath?
Holding & Reasons: No.
87
*This case deals with oath-attacking evidence.
*The court reviews the four factors a court ought to consider when determining whether
evidence has some probative value that meets the test for legal relevancy:
1) The danger that the evidence will arouse the jury’s emotions of prejudice,
hostility or sympathy.
2) The danger that the proposed evidence and any evidence in response will create a
side issue that will unduly distract the jury from the main issue in the case.
3) The likelihood that the evidence will consume an undue amount of time.
4) The danger of unfair surprise to the opponent who had no reasonable ground to
anticipate the issue and was unprepared to meet it.
The court adds a fifth:
5) The danger that the evidence will be presented in such a form as to usurp the
function of the jury.
*The prejudicial effect of the answer to the question of whether a witness would believe
another witness on oath will outweigh the probative value. The answer to this question
would usurp the function of the jury.
*The witness may know the Crown witness’ reputation for telling the truth in everyday
affairs, but their ability to predict the witness’ behaviour in court is limited and entitled to
no special deference. The jury may overvalue this opinion b/c the witnesses know each
other personally.
*Courts should exercise their discretion when allowing in oath-helping or oath-attacking
witnesses, while keeping in mind the ruling in Seaboyer and the dangers that come with
excluding relevant evidence.
*When charging the jury, TJ should remind them: 1) the witness’ reputation for veracity
in the community and their veracity in court are different things; 2) the character witness
who is testifying hasn’t heard al the evidence, and isn’t sworn to the duty that the jurors
have.
Ratio:
Main Principles:
Comments/Obiter/Questions:

Now, how do I call you a liar w/o calling you a liar – or ... mistaken
o We can call an expert

Ie. An eye w who is called on to id the A – the incident occurred
late at night and the A was wearing a facemask

So .. do you wear glasses? – they seem thick –are they? Do
you happen to know what your last prescription is?
(hearsay bells ding dong ding dong...) could you then call
the doc?
o Can you attack a w’s character for veracity? Yes, you can ask the first two,
but the third??? Generally speaking you should not allow the third
question.
88
Prior Inconsistent Statements
*Other party’s witness – the procedure for cross-examining using a prior inconsistent
statement is found in the Canada Evidence Act (ss.10-11) and the Alberta Evidence Act
(ss.22-23).
*A party’s own witness – the presumptions are different in both the federal and
provincial acts.
*In the Canada Evidence Act, it says: “…but if the witness, in the opinion of the court,
proves adverse…” whereas in the Ontario Evidence Act it says: “…but the party may
contradict the witness by other evidence, or, if the witness in the opinion of the judge or
other person presiding proves adverse…” For the wording in the Alberta Act, see s.25.
*In the following case, the court distinguishes between a witness who is “hostile” or a
witness who is “adverse”.
Wawanesa Mutual Insurance Co. v. Hanes, 1961 ONCA (CB 364)
Issues: Does the term “adverse” mean “unfavourable” in the sense of opposite in position
or is it a more restrictive term, closer to “hostile”?
Holding & Reasons: Adverse = unfavourable.
*There was some question about the term “adverse” following the codification of the
common law rules regarding cross-examination of a party who is adverse in interest. The
codification created a problem in interpretation of the legislation.
*The word “adverse” is more comprehensive than the word “hostile.” It includes the
concept of hostility of the mind, but also includes what may be merely opposed in interest
or unfavourable in the sense of opposite in position.
*The problem of saying that the word “adverse” means “hostile” is that it creates a
narrow range of circumstances in which counsel could cross-examine their own witness.
The witness would have to be truly “hostile” in the eyes of the judge to qualify as
adverse, whereas if the interpretation meant that the witness was “unfavourable” there
would be more opportunity for counsel to challenge what the witness says.
*Just because a judge declares a witness to be “adverse” does not mean there is automatic
allowance for prior inconsistent statements. The judge has discretion, and if he or she
gives leave to allow for the statement to be entered, the judge will want to instruct the
jury that the statement is not evidence of the facts contained therein.
Ratio:
Main Principles:
Comments/Obiter/Questions:
o You have a prior inconsistent statement by a W: can you question the w
on this? What hoops do you have to jump through to do this?

It’s okay when you are dealing w the other side’s w’s – all you
have to do is say:

“do you remember XX occasion?” if they say yes then you
continue “do you remember saying XXX (while holding
some piece of evidence that this was said) – then you can
89
go ahead and start hammering them with why did you
change your story. – keep in mind you may not actually
want to ask them which is true – unless the earlier one is
accurate – though this is still risky – they could say that
they are now telling the truth b/c they are under oath –
often you are best left with establishing the inconsistent
stories
o How do you go about questioning your own witness on a prior
inconsistent statement?

Evidence Acts: for over 140 year have been in a mess and

CEA: s. 9: people think it is a mess and different

AEA: s. 25: people think it ought to be the law

The are different – though you think they are the same

When can I
o A)contradict my own w by other evidence
o B) C/E on a prior inconsistent?
o C) engage in a general c/e of my own W as if they
had been called by the other side


Lev says that the prov. Acts get it right – they say that you
can always call a W to contradict another W even if it is
your own. – a little embarrassing – so provincially you just
do it

On the Fed act you have to prove that the the prior
inconsistent is adverse to do B, and hostile to do C. – some
cts have said hostile and adverse are the same.... wait get
clarification on this.....

What the CEA has done is to say that you could only do A
based on adverse as well.
Now they don’t think that adversity and hostility are the same
thing – and hostility is more
o Ya, but what are adversity and hostility?
90
Ws who do not tell you on the stand what they told you off – what do you do?
 If a w you call says s/t that you would rather they hadn’t – you can call another W
to contradict them – don’t worry about asking – though it doesn’t look good and
avoid it if you can

If you want to c/e your own W on their prior inconsistent statement – for the
purpose of showing simply that they are inconsistent t/f not credible or less
credible – what do you have to establish to do this
o That the W has made the prior inconsistent – often not problematic – but
you will have to prove this and the judge has to rule that it is in fact
inconsistent
o Then you have to establish to the judge that the W is adverse. What does
that mean? And what is the connection b/t an adverse W and a hostile W?

If a W is hostile you can c/e them on anything – and you can
essentially treat them as your opponent’s W

Relationship b/t adverse and hostile

Some Judges have said that they are the same

But what does it mean to be hostile

Those that see the distinction say you are adverse when you
are not giving the answers that are expected of you on a
particular matter – you are then adverse on that point

Hostility then is re a W who is demonstrating a strong
propensity not to help you in any respect – generally they
are out to get you.

In Alberta we tend to think there is a difference and so adversity is
not getting the answer you expect and hostility as the W is trying
to do you as much damage as they can.

In order to engage in the c/e is to show adversity by showing the
prior inconsistent so you can show that the W is not giving you the
answer that you had expected to get.

Treated this way it is no big deal – but it will
o It will always be difficult to get one of your Ws labelled hostile –
91

Often if you are a prosecutor who has called a w of dubious
character – who doesn’t really want to help at all

So as a crown at this point what do you do?

If the W is going to give more than one piece of evidence go the
hostility route, but if it is only one issue you need the W for then
go the adversity route and get the judge to let you bring in the prior
inconsistent –

If the W still denies after presentation w the prior – then the crown
may want to go the KGB exception to hearsay – you are still left in
the awkward position that you have a W that says that I don’t
remember...

So often as a prosecutor you will probably want to go the adverse
route as opposed to the hostility route – it will be effective most
often.
Prior Convictions
*s.12 of the Canada Evidence Act states that a witness may be questioned as to whether
the witness has been convicted of any offence.
*“… a witness’s prior convictions are admissible only for the purpose of undermining his
or her credibility on the theory that a person who has committed a criminal offence is less
likely to be a truthful person than a person who has not.”
*s.12 only applies if the accused chooses to testify.
*Cross-examination under s.12 is limited – the Crown may not cross-examine the
accused about the details of the offences.
*“Convictions” under s.12 may not be as straight-forward as one might think in terms of
definition. Juvenile records, for example, were dealt with in Morris v. The Queen (1979,
SCC). The dissent thought that juvenile records should be excluded from the rule under
s.12. The majority disagreed, holding that a juvenile conviction still qualifies as a
conviction.
*Note that there is a distinction as to how prior convictions are used:
1) “Cross-examination as to prior convictions is not directly aimed at establishing
the falsity of the witness’s evidence; it is rather designed to lay down a factual
basis – prior convictions – from which the inference may subsequently be drawn
that the witness’s credibility is suspect.”
2) “By comparison, where the cross-examination is directed at eliciting from the
witness answers that are contrary to his evidence-in-chief, the attack on credibility
is no longer based on an inference of unreliability of the witness, but on the actual
proof of the witness’s unreliability in the case itself.”
92
R. v. Corbett, 1988 SCC (CB 374)
Parties, Positions, History: Accused: Corbett, convicted of first-degree murder of an
associate in the cocaine trade. Corbett appealed on the ground that he had been deprived
the right to a fair hearing. He sought a ruling that s.12 of the CEA wouldn’t apply to him.
TJ properly instructed the jury that Corbett’s prior convictions could be taken into
account only in assessing his credibility as a witness, and not for determining whether the
Crown had proven their case BARD.
Facts:
Issues: Is the risk of a jury misusing evidence about prior convictions so great that
Parliament is not entitled to permit an accused to be cross-examined on their prior
convictions?
Holding & Reasons: No.
Dickson J. (Majority)
*There are a number of problems with the court holding that s.12 is inappropriate.
*It would be impossible to explain to a jury that one set of rules applies to ordinary
witnesses, while another rule applies to the accused.
*Considering that it is best for the trier of fact to have all the information, the best way to
balance the risks presented by this scenario is to give the jury all the info, but at the same
time give them clear direction as to the limited use they are to make of this information.
*It’s wrong to make too much of the risk that the jury might use the evidence for an
improper purpose. This is especially true considering that the right to trial by jury has
been codified in the Charter. “[I]t is logically incoherent to hold that juries are incapable
of following the explicit instructions of a judge.”
*The court provides a list of limits that have been placed on the Crown when using prior
convictions:
1) An accused may be examined only as to the fact of the conviction itself and not
concerning the conduct which led to that conviction.
2) An accused may not be crossed on whether he testified on the prior occasion
when convicted in order to show that he is one who was not believed by a jury on
a previous occasion.
3) The Crown may not go beyond the convictions to cross on conduct or association
with disreputable individuals to attack his credibility.
4) Unless the accused takes the stand, the Crown may not adduce evidence of prior
convictions, even if DC has launched an attack on the character of Crown
witnesses.
5) An accused may only be crossed on actual convictions, not in circumstances
where the accused was found guilty and granted a conditional discharge,
conditions subsequently having been fulfilled.
*“…the law relating to the use of prior convictions strives to avoid the risk of prejudicing
an accused’s trial by introduction of evidence of prior misdeeds. Taken as a whole, this
body of law is entirely protective of the right of the accused not to be convicted except on
evidence directly relevant to the charge in question.”
*The court is trying to ensure that the jury isn’t misled, but is rather aided by any
exclusions of evidence. In this case, such an exclusion wasn’t appropriate.
La Forest J. (Dissent)
93
*The accused’s submission focuses on the potential prejudice of introducing the
accused’s prior convictions.
*“… the trier of fact is entitled to infer that because the accused committed criminal acts
in the past he or she is now more likely to lie, but that same trier of fact is not entitled to
infer therefrom that the accused is also more likely to have committed the evil act for
which he is now on trial.”
*La Forest introduces several concerns about the potential for prejudice: 1) It relaxes the
standard of proof necessary for finding guilt; and 2) empirical evidence suggests that s.12
does operate unequally to affect the ability of accused persons to defend themselves,
particularly if the past and current crimes are similar in nature.
*Rather than list factors that ought to be considered when assessing the relevancy of the
prior conviction, it is better to consider the nature of the previous conviction and its
remoteness or nearness to the present charge.
*The nature of the conviction, such as theft or fraud, will reflect on honesty and integrity.
Also, the more similar the past conviction is to the current offence, the greater the
prejudice. However, the court should be wary of admitting evidence of a pervious
conviction of a similar crime, especially when the rationale for the similar fact evidence
test is kept in mind. Finally, the fairness to both the accused and the prosecution must be
considered – is the prohibition fair when one considers attacks on the credibility of
Crown witnesses?
*La Forest notes that cross-examination on a previous conviction may be permitted if it
would render the trial more, not less, fair.
*The exercise of judicial discretion over when a previous conviction may be admitted
and cross-examined ensure that s.12 is constitutionally valid. In this case, when you read
s.12 in conjunction w/ the common law discretion to exclude prejudicial evidence when
the prejudice outweighs the probative value, an accused’s right to a fair trial won’t be
violated.
Ratio:
Prior Convictions
What use can we make of these
 CAE s. 12: any W may be questioned as to whether he has been convicted of a
crime? –
o For what purpose? It doesn’t say in the leg, but the cts say it is only to
attack the cred of the W. The underlying assumption is that the person
convicted previously is generally less reliable or credible.
o In the case of an ordinary W (not the A) it is a peril of being a W – which
you may be totally unaware of. – it is not always done, s/t the counsel will
have the sense to realize that it will not look good to put it to the W
especially if it is a long time ago, or totally irrelevant to the issue at bar. –
if the counsel does bring this sort of thing up it will look bad and the
judge may think you are an asshole w no case. – if the W
94
o If the W admits them fine, if they deny then you must go and prove the
conviction –the section allows you to, and if you don’t there will be some
questions as to why you wouldn’t – it would be rare that you wouldn’t be
in a position to prove it if you are asking the question

s. 12 provides for the proof of this, and also for proof of identity –
and this may be more difficult especially in the case of John Smith.

They used to use fingerprints a lot to id, though most people admit
the conviction.
o If you are going to call a w who you know has a prior conviction and you
have a suspicion the other side may c/e on it – can you try and reduce the
sting of the c/e? By quickly asking about it? The jury may get the
impression that leaving this to the c/e is questionable – technically it is
inadmissible, practically it is allowed.
o This most often is an issue when the A is on the stand – can you try and
reduce the sting of those by drawing them out your way, openly, honestly
“and slightly light heartedly”.


An A’s record may be so bad that you wouldn’t even put them on
the stand.
Prior convictions again: how deeply can they probe into the facts?
o Not much: The offence and the basic information that was in the
indictment – by nothing else.

What is a conviction?
o Juveniles: you can be c/e on that Morris v the Queen (pg 370)\
o In a criminal case the crown has complete access to the records, so if they
are going to call a W then Stinchcomb and they have to disclose this to the
D.
o D doesn’t have to tell all the Ws they are calling, but as soon as you do
they will check
o What about a discharge? Absolute or conditional?

Absolute – no you have not been convicted in this case – there has
been a finding that there is enough evidence to convict you but you
have not been conviction
95

Conditional discharge: this becomes a discharge after conditions
are met – so once the condition is fulfilled you cannot be c/e on it
- but when the condition is still pending you can be c/e on it –
according to some Ont. Authorities.
o Foreign convictions?

Case in Lethbridge: guy pretending to be a qualified pharmacist –
he had come from California and he had also been charged for
falsely representing himself as a pharmacist there as well. Plea of
nolo contendere – available in the US but no longer in US> it
means I am unwilling to contest the charge and you accept the fact
that you will be sentenced. The issue that arose was whether the
crown could c/e him on the basis of a prior conviction to which he
pled ‘no contest’. And in the end Levy says yes – you can c/e on
foreign convictions, you have to be able to prove them though.
o Provincial convictions?

Yep, no prob – under municipal bylaws will work as well
The problem: We aren’t too fussed about hurting non-accused’s feelings.
 S. 12 applies to As – but there is a fair trial issue here

Is there some arg that s. 12 doesn’t apply to As at all? – Corbett tells us it does –
so no dice.

Should the tj have the discretion not to allow c/e of the A on certain convictions?
In order to preserve the right to a fair trial and the right to C/e on cred.
o Corbett says yes – the tj can: Corbett Application

When you want to find out whether the c/e can be allowed or controlled what are
the risks of putting a guy up – so prior to putting your client on the stand you
would bring a Corbett application (probably only if you have a jury) you don’t
want the jury there while it is made and you will ask the tj to rule on whether the
A can be c/e on certain convictions – as a D counsel you are arguing that some or
all will be too prejudicial to the A to allow for a fair trial. There are a number of
ideas of when you should make the Corbett Application. Many D counsel prefer
to wait until the close of the Crown’s case - you may want to see what their case
is – this is a tenable and respectable position, others think you should make the
appl to the tj before the trial. – there doesn’t appear to be a clear rule about when
one should do this, Levy prefers to wait until the Crown has closed – so you can
determine if it is at all worth putting the A on the stand.
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o These applications often do not succeed.
Corbett
Facts: C is charged w murder and has a long laundry list of convictions one in particular
non-capital murder.
 So there are real risks of putting C on the stand, the Crown had a lot of evidence
against C and the D didn’t have much evidence except for C - so the D would
have to put C on the stand – but obviously there is a problem w the record

Interestingly many of the Crown w’s were also bad criminals who had been
discredited by the D counsel quite vigorously. Asserting essentially that the
Crown was having to rely on this hodge-podge of criminals.

Then he asks the tj to allow him to put his own client on the stand and suppress
his criminal record.

There is a risk that the murder conviction would go to more than his credibility.

The crown also has a right to a fair trial –and b/c the Crown’s ws all have records
and C would appear clean to a jury this would be unfair

We cannot list factors – it will always be a balance of probative value and
prejudice

It is one thing to say that we are not going to allow the A to appear in his true
colours, but it is another to say that we are not going to allow others to be shown
in their true colours and then not the A.

What is the general risk in the record – take the homicide conviction away and on
the whole the record is not that offensive –

So what we really want to know is – what is the risk to the trial or charge at hand
w re to the record?
Aspects of Cross-Examination
*Cross-examination can extend to any matter at issue in the action, including the
credibility of the witness, and is not limited to matters that have been covered in the
examination-in-chief.
Obligation to Cross-Examine a Witness Whom One Intends to Contradict
*The rule regarding this issue is from Browne v. Dunn (1893, H.L.): “… where it is
intended to suggest that a witness is not speaking the truth on a particular point, to direct
his attention to the fact by some questions put in cross-examination showing that that
imputation is intended to be made, and not to take his evidence and pass it by as a matter
altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he
might have been able to do if such questions had been put to him, the circumstances
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which it is suggested indicate that the story he tells ought not to be believed, to argue that
he is a witness unworthy of credit.”
R. v. Lyttle, 2004 SCC (CB 388)
Parties, Positions, History:
Facts: Victim who had been beaten identified accused as the only unmasked attacker of
the 5 men who beat him up. Victim claimed beating was due to the theft of a gold chain,
but DC theory was that the beating was related to a drug debt, and victim had named
accused to protect the real assailants.
Issues: Is a good faith basis sufficient when counsel wants to cross-examine on a theory
for which they have no evidence?
Holding & Reasons: Yes.
*TJ had improperly interfered w/ DC right to cross-examine.
*There are many situations where counsel will believe a fact to be true, but the only way
to prove it is through cross-examination. “Information falling short of admissible
evidence may be put to the witness. In fact, the information may be incomplete or
uncertain, provided the cross-examiner does not put suggestions to the witness recklessly
or that he or she knows to be false.”
*If there is a disputed factual predicate that is tenuous or suspect, the TJ has the ability
(through a voir dire) to obtain counsel’s assurance that a good faith basis exists for asking
the questions.
*The whole point is that DC has a right to cross-examination, and that right should be
protected.
Ratio:
Some Aspects of Cross-Examination
Pg. 386-387: assume you are D-counsel and you know you are going to call a W who will
say certain things. When the Crown is calling ws they say s/t that is opposite to what you
W will say. Must you c/e a W on the point on which you intend to call a W later to
contradict them? And if you don’t cna you still allow your W to contradict them?
 Brown v Dunn: yes – you must c/e the w.

You run a risk in not c/e the w before you question your own w who contradicts –
but should we really go so far as to say that you cannot question the w at all on
things that you didn’t c/e on?

McNiel pg 387: in appropriate circumstances where this happens it may be right
to allow the Crown to recall the W – this is from Ont. Where Brown v Dunn has a
life still.

In the west we are not that concerned about the Brown v Dunn issue

Just keep in mind the McNiel case – yes you should have probably c/e on the
issue, but there is another way of dealing with it perhaps.
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What sort of basis must you have for asking a question in Cross-examination?
 Do you have to have an evidential foundation for asking the question – s/t that is
in evidence or s/t that you could put in evidence - this is one extreme

The other extreme – I can run any hunch I want as long as I have a basis fro it.

The true position is between the two:
R v Lyttle
 Wide latitude in c/e ... it is more a question of professional ethics

So “I have a hunch” isn’t enough,

But you don’t need an evidential foundation –

You need to have s/t to back you up –

Some cases say that it is enough that you have received information, even if you
couldn’t put that information into evidence

So they kinda put this one on the law societies rather than

But what about an anonymous note

Fox v medical... (Privy Counsel): Dr. Fox had given evidence ad had been asked a
question that wasn’t very nice and categorically denied it and then complained about
counsel for having asked the question – turns out counsel for the meds had received
an anonymous note and counsel took the view that the note provided him sufficient
basis for asking the question – Privy Council agreed –

The Fox case puts an emphasis on the law societies to govern ...
Collateral Facts Bar
R. v. Rafael, 1972 ONCA (CB 391)
Parties, Positions, History:
Facts: Accused convicted of fraud. Crown called evidence to prove accused ran an
immigration consulting business, and falsely represented about his ability to get landed
immigrant status to his clients. Though accused’s appeal was allowed, C.A. considered
admissibility of evidence tendered to contradict answers given by accused on cross.
Issues:
Holding & Reasons:
*At trial, the accused gave evidence during cross-ex about whether he had filed tax
returns. He answered that he had. Crown then called evidence in reply to prove that
accused hadn’t filed tax returns. “We are all of the opinion that the accused had been
cross-examined upon a collateral matter relating only to his credibility and that the
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Crown was bound by the answer received and was not entitled to call evidence to
contradict it.”
*Normally, this wouldn’t lead to a mistrial, but C.A. notes that this line of questioning
and evidence added to the TJ’s confusion over credibility.
Ratio:
Main Principles:
Comments/Obiter/Questions:
*Courts won’t accept counsel undermining a witness’ credibility w/ collateral matters.
There are different basis for the collateral facts bar:
1) Contradicting a witness on irrelevant matters is forbidden
2) No impeaching credibility by calling witnesses to contradict on matters of credit
or other collateral matters. “The test whether a matter is collateral or not is this: ‘if
the answer of a witness is a matter which you would be allowed on your own to
prove in evidence – if it had such a connection with the issues, that you would be
allowed to give it in evidence – then it is a matter in which you may contradict
him.’”
3) Could the evidence have been introduced for any other purpose other than
contradicting the witness?
*Exceptions to collateral facts bar:
1) To prove a charge of bias or partiality in favour of the opposite party;
2) To prove that the witness has previously been convicted of a criminal offence;
3) Where a proper foundation has been laid, previous inconsistent statements may be
proved to contradict a witness;
4) Medical evidence to prove the witness is incapable or unlikely to tell the truth;
5) Independent evidence that an adverse witness has a general reputation for
untruthfulness and that the witness testifying to such reputation would not believe
the impugned witness under oath.
The Collateral Facts Rule
 When I ask you a question on c/e which is intended to test your cred – and you deny
it. Eg. Were you a member of the Lions? Yes. Why are you no longer? We had a
disagreement. – you have evidence that he was suspected of theft.
R v Rafeal
 Is the Ws cred a substantial issue in the law suit? – well no it is an evidentiary aid – a
collateral issue.

You can ask the questions, but generally speaking you are forced to accept the answer
you are given and you are not permitted to call other Ws to expand on the matter

The concern which the Collateral facts rule seeks to address about keeping the trial
focussed and in balance

There are some exceptions:
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o s. 12 of the CEA: where you have c/e a W on a prior conviction – you can
very easily prove the conviction so that is why it is permitted.
o If you are asking questions aimed at revealing bias – the cts have said that
allegations of bias Ws can be brought to prove this

It all comes back to relevance in the end – why are you asking the question?
Corroboration
*The word has two meanings:
1) The common sense idea that a witness’ evidence is easier to accept if there is
other admissible evidence supporting it;
2) Alternatively, it refers to a highly technical doctrine that once existed in evidence
law.
R. v. Baskerville, 1916 Engl. (CB 397)
Parties, Positions, History:
Facts: Accused convicted of offences with two boys (I’m assuming some sort of
homosexual offence). Accused appealed on the ground that there was no corroborative
evidence as is required by law of the testimony of the boys who were called for the
prosecution.
Issues: Is there sufficient corroborating evidence?
Holding & Reasons: Yes.
*The traditional view with juries is that they must be warned of the dangers of convicting
a person on the uncorroborated testimony of an accomplice.
*The evidence in corroboration must be independent testimony which affects the accused
by connecting or tending to connect him with the crime.
*The court refuses to enumerate what would constitute corroborating evidence.
Corroborative evidence “is evidence which shows or tends to show that the story of the
accomplice that the accused committed the crime is true, not merely that the crime has
been committed, but that it was committed by the accused.” It need not be direct
evidence; it can be merely circumstantial.
Ratio:
Vetrovec v. The Queen; Gaja v. The Queen; 1982 SCC (CB 399)
Parties, Positions, History:
Facts:
Issues: Court review general principles relating to the law of corroboration of
accomplices.
Holding & Reasons:
*The common law has long harboured suspicions about the trustworthiness of an
accomplice’s testimony. The question, then, is whether we should have a special rule for
accomplices at all?
*Untrustworthy testimony can happen with any witness! But rather than created rigid
categories, “the trial judge might better direct his mind to the facts of the case, and
thoroughly examine all the factors which might impair the worth of a particular witness.”
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*The Baskerville case did weird things to the idea of corroboration. It divorced it from
the concept of credibility. It made it a legal term of art unconnected from the reasons why
we are concerned about accomplice evidence.
*“The reason for requiring corroboration is that we believe the witness has good reason
to lie. We therefore want some other piece of evidence which tends to convince us that he
is telling the truth. Evidence which implicates the accused does indeed serve to
accomplish that purpose but it cannot be said that this is the only sort of evidence which
will accredit the accomplice.”
*Court determines there’s no special category for accomplices. All witnesses will be
governed by the general rules of collateral evidence.
*Court says it may still be appropriate to give “a clear and sharp warning to attract the
attention of the juror to the risks of adopting, without more, the evidence of the witness.”
Ratio:
Main Principles:
Comments/Obiter/Questions:
*“Vetrovec” warnings are now typically included in a jury instruction if the TJ thinks that
it is unsafe to rely on the evidence b/c of a lack of corroborating evidence.
Problem of Corroboration
 Historically this was a big issue: the cts used to require s/t more – corroboration
o Corroboration requirements
o Corroboration warnings

We have largely done away w corroboration requirements

From the perspective of statutes we have largely done away with c.warnings.
o In Alberta there is stil a corroboration requirement for breach of promise
to marry
o Provincially we are still suspect of children – though the requirements ar
totally gone from the fed leg.

Children and woman were traditionally requiring of corroboration

One aspect of warning has survived:
o Jailhouse informants - they have an obvious self-interest
o Accomplices –

Vetruvec
Keep in mind that if the Crown put an accomplice on the stand he
or she will get c/e and that could prove dangerous b/c it will
definitely come out that s/he has s/t to gain from their testimony.
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
This case says: Situationally there will be cases of this nature that call for a
corroboration warning – saying that it would be wise of the jury to look for
additional evidence which is supportive –

This case does away w the requirement of the judge to spell out exactly what it
would mean to be corroboration in this particular case and says that the judge may
just need to say – look this is a concern and one should not convict purely on this
evidence and be careful of the motives of the people testifying

Corroboration now essentially comes down to this case alone and has been much
simplified as a result – juries should be warned and to think about the credibility
of the witnesses when they may have s/t to gain from saying X in ct.
Character
*A person’s propensity or disposition to act in a certain way. This is different from habit.
*Character evidence is concerned w/ behavioural traits.
*This type of evidence is usually circumstantial in nature – “the trier of fact is asked to
infer that a person behaved in a certain way at a certain time because that behaviour
would be consistent with that person’s character.”
*There are strict limitations on the use of character evidence.
*Sometimes, the character of a person may be directly at issue, such as when the accused
has been declared a dangerous offender, or some other character related offence.
*As circumstantial evidence, character may be used to point to the likelihood of a person
doing something in a certain way on the occasion in question b/c of their disposition to
behave that way.
*The Crown may not lead evidence on the accused’s character unless the accused has
“put their character in issue” – that is, unless the accused himself has led evidence
supporting the inference that he was unlikely to have committed the offence by virtue of
a character trait.
Character Evidence
The general rule is that character evidence is not admissible – rarely it may be an issue at
trial. – if for example Levy calls one of us a person of ‘Evil Repute’ and we sue for
defamation
 A)The Crown is not allowed to lead evidence of bad character

B)In a criminal matter the A can if he wishes put his character in issue – the A is
allowed to say “what a good boy am I” by testifying, or calling a W, or the
counsel may c/e a Crown W to show the A’s good character.
o Having done so he invites the Crown to respond w evidence showing that
he isn’t a good boy. – you better know an awful lot about your client

The situation that causes problems is where there is some evidence which might
be evidence of bad character, but which may also have some probative value
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Building up to Handy: (but all you need to do is focus on Handy)
Similar Fact Evidence
Makin v. Attorney-General for New South Wales, 1894 P.C. (CB 466)
 Baby farmers – residential daycares – paid to look after babies s/t for short
periods of time, s/t’s permanently, s/t’s the babies disappeared.

In this case there were some baby’s bodies found in the backyard and the Makins
were charged w murder – essentially they were accused of taking the babies for
money and killing the bodies and taking the money – there were lots of dead
babies.

The precise charges that the Crown laid – the Crown wanted to bring into
evidence the whole batch of children’s bodies – saying that everywhere the M’s
go they leave dead babies – a bit of an attack on their character? Ya.

Where is the balance here that bad character evidence is not admissible, and
evidence which shows bad character, but which shows a lot more as well – is
there too much bad character evidence here?
R. v. Smith, 1915 Engl (CB 468)
 S has a penchant for wealthy older ladies who also have a penchant for dying in a
bathtub

The Crown charges S w killing one of his wives

Munday married S and dies of accidental drowning and S gained financially from
her death – this is the wife for which he is on trial for killing

There were two later circumstances where his wives died in the same way.

Can the Crown submit this – or is it too much to the bad character? Or is it
enough of s/t more than bad character evidence?
R. v. Straffen, 1952 Engl (CB 469)
 Just been released from the criminal lunatic asylum – charged w murdering a
young girl (B)

Other girls found to have been found killed in the same way – manual strangle

They have a jailhouse confession (J) – J said that S had admitted to killng other
girls, but that he didn’t kill B
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
Crown wants this admitted – saying that the circumstances are so similar that it
would show he killed B – D counsel says no- this is character.
You have to ask what is the balance – the probative value v prej effect?
R. v. Handy, 2002 SCC (CB 499)
Similar fact evidence
- Not too many SCC cases since Handy, so that case is the best statement of the law
on this issue that’s out right now
- Courts are trying to strike a balance – they want to let evidence in for the most
part, but sometimes that’s not fair to the parties involved
- Courts don’t want to get in the way of the Crown when they are trying to put in
their evidence; and they don’t want to interfere w/ the fair trial of the accused
- The principal issue coming up in these cases – the Crown has evidence that shows
similarities in the past to the case before the court at that time. Is the similarity
probative? Does it have a bearing on the issue that is being heard at that time?
- Is it so prejudicial that it will distort the trial? Will the jury read in more than they
should?
- What sort of prejudice is the court worried about?
o Reasoning prejudice: we can’t be sure that the jury won’t give too much
weight to the evidence. If it looks similar enough to that the jury will
assume it’s the same, but in reality there may be some very significant
differences
 A lot of this goes to the actual distrust of juries (despite what the
jurisprudence says!)
o Moral prejudice:
- The similar categories of uses for similar fact evidence – this is what we see in a
number of past cases. But the SCC is trying to get away from a categorical
approach. They want to get at the underlying principles.
- So what do they want us to do? There’s a general starting point that this evidence
is excluded.
- Then, we have some exceptions – how do we identify them? They arise when the
probative value outweighs the prejudicial effect. So to figure this out, you need to
consider what issue is at play, to which the evidence relates?
- For example, in Handy we see this discussion
o Identity – we saw this issue in Makin; the couple said it wasn’t them, but
the bones showed up in the yards of a number of houses where they lived.
Is this mere coincidence? Is the probative value high? Yes… But consider
that this is a human judgment; it’s evaluated subjectively! Is the prejudice
going to outweigh the probative value?
o Identity was also at issue in Sweitzer; the accused was caught while
perpetrating a rape, and was subsequently charged with about 15 other
rapes. Evidence connecting the accused would be prejudicial. Can the
accused be connected? In 3 of the 15 rapes, there is some evidence that
implicates the accused (not very strong evidence). In the other cases, there
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is no evidence implicating him. Court says – if you want to bring in
similar fact evidence, you actually have to attach the incidents to the
accused. Court said that if there was no evidence implicating the accused
then they couldn’t be brought in as similar fact evidence.
What is the issue to which this evidence directed? Next – how connected is the
evidence to that issue? There are a number of considerations (I think these are
from Handy)
o Time frame?
o Proximity in detail – how similar and in what respect is it similar?
Consider Handy…
o In Handy, the issue wasn’t identity. It wasn’t even about initial consent,
b/c both parties agreed to that. The issue was whether consent had been
revoked. So that’s the issue to which we want to attach similarities.
In Handy, what about the risk of collusion? The ex-wife doesn’t like the accused
– did she put the complainant up to the action? Was there just the opportunity of
collusion, or does the evidence point to more than that?
o Judge held voir dire and found there was a risk of collusion on the
question of admissibility, but decided to leave it to the jury. WRONG!!!!
o The judge should have addressed it at the voir dire.
Handy – difficult case; on one hand, they say this is all about principles. On the
other hand, they say that things will balance differently depending on the issue.
And then won’t we be sliding back into a categorical approach? This is the
biggest problem that lower courts seem to have w/ Handy
Consider – what happens if you apply relevance test to this info? It would all
likely make it in… but courts aren’t using this approach. We want a higher
threshold for similar fact evidence b/c of the various policy reasons mentioned in
Handy!
Ultimately, the balance is between probative value and prejudicial effect.
This type of evidence has a framework, which is useful, but it’s very vague so it’s
not very useful!
The best strategy is likely to approach the case trying to guide the judge on this
balance between probative value and prejudicial effect. You need to be prepared
on the facts in order to get this in! If you’re DC, get a voir dire, and consider what
is actually being said by witnesses – how similar is the evidence? Similar enough
to be probative??? If not, that’s your attack point!
Note that other than the fact patterns, the earlier cases are not particularly useful.
R. v. Scopellitti, 1981 ONCA (CB 459)
- S is accused of murder; his defence is self-defence
- Let’s start with this fact scenario: I know the deceased, and I know the deceased
has a penchant for violence. Is this evidence admissible? Will it be allowed to
help prove that you were defending yourself? YES.
o To do this, you can produce evidence that the deceased or the complainant
is violent
- In Scopellitti, the issue was whether the deceased’s violent character could be put
into evidence even though the accused knew nothing about it!
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Could such evidence be admitted? Yes – see p.463. But as noted by the court, we
wouldn’t let this evidence in if it was evidence against the accused – the test is
much more stringent.
But why is this allowed here, but not in sexual assault cases? Because of the
particular issue – in sexual assault cases, there is no situation in which the
propensities of the victim should be used to stereotype a victim of sexual assault –
it’s not always said explicitly, but it’s gender stereo-typing. This hasn’t spilled
over into violence cases.
Voluntariness
We’re concerned about balancing fairness to the accused and fairness to society
o How much should we fetter the police when gathering evidence b/c we
think it’s unfair that they are acting in a particular way?
o Consider the Unger case – accused was convicted of murder based on his
own confession given to an undercover cop in the context of a bunch of
undercover police officers who were acting as a gang, and the testimony
of a co-accused who testified that Unger had committed the crime, not
him.
o Both parties appealed. Horton, the co-accused, succeeded, but he
committed suicide before it was settled
o Unger was put away for 10 years until a lawyer got a hold of the case.
o When DNA evidence was tested 10 years later, it was clear that the DNA
didn’t belong to Unger. Further, there was some hair evidence that the
police later admitted they had wrongly used!
o Could the fact that Horton had committed suicide be used as evidence?
- How do we feel about this? Consider the result! Look at the Manitoba QB
decision, and what is said by the judge. “Crooks are crooks – they don’t play by
the rules, so why should the police?” Is that what we want from our justice
system?
- Consider – police interrogation: what do the police have to tell you? To warn you
of? What about your right to counsel (s.10(b))?
- Right to counsel – police interrogation – admissibility of evidence: how are these
connected?
- What about the right to not self-incriminate? We say that citizens have a right not
to self-incriminate? How is this related to confession rules?
- Right to silence – limited right exists under s.7. How limited is it?
- And what about search and seizure (s.8)?
- Consider the recent case from the SCC – R. v. Simpson (the headnote will be on
Blackboard).
Balancing the rights of the accused with the rights of society…
- In addition to the stuff above, how do we deal with:
- Fruit from the poisoned tree – evidence obtained illegally will be excluded, but
what about info obtained using that illegally obtained evidence?
- In the U.S. – this evidence wasn’t let in. In Canada, we tend to go the other way.
- We look at s.24(2) for exclusion of evidence under the Charter (a Charter remedy)
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How does that remedy work? How are the courts balancing rights under that
provision of the Charter?
Also – striking the balance between rights has ALWAYS been a problem!
As we get more structured policing, the problems that we will be dealing with
become more noticeable
English law, circa 1870 – law is CHAOS!!! Some judges exclude anything said to
the police. Some judges say that anything said to police is admissible!
At that time, courts realized that the fate of an accused came to depend on which
judge the accused drew. So they came up with a practice direction, called “The
Judges’ Rules”. QB judges in about 1900 put this out – a compromise that they
were all willing to adhere to in trial rulings. Certain types of evidence would be
excluded, but not all.
The balance in those rules was predicated on voluntariness. They understood that
some police tactics distorted voluntariness. Police may induce fear of prejudice,
or give hope of advantage. The Rules are still in force in England.
In Canada, we started adopting them, and by 1920s some provinces had drafted
their own
Our Criminal Code came into existence in a similar way (Britain drafted it and
then sent it to us to be adopted); evidence was treated this way in India, etc.
The laws would be modified to the local climate, and then put into place
Going back to “fruit of the poisoned tree” – a problem that has existed for a long
time.
There hasn’t always been consistency in the way we have struck the balance in
these cases.
Our SCC is split 5-4 on how to strike the balance on a lot of the issues dealing w/
the balance. Minority is more for the accused: LeBel, Abella, Binnie and Fish. If
they agree with majority, it’s usually on facts, not on principle.
Sinclair is an example of this.
Don’t worry too much about pinpointing particular points, try to get a sense of the
overall view on the balance that is coming out of the courts
Levy gives the example of the U.S. Warren Court – started out as pro law and
order, but ended up being for the accused after some time on the bench. This
could happen in Canada!
if something isn’t voluntary, it may not be reliable
There’s an element of controlling the police – what is permissible? This is an
inherent element of voluntariness
Oickle – a very important case, be sure to read it.
R. v. Oickle, 2000 SCC (CB 580)
Oickle – very important!
- still referred to in the cases
- uncertainty about what it means – appeal courts seem to put a gloss on it that
might not be entirely accurate
- the case makes a number of points
o First, don’t worry so much if it’s voluntary, or the product of an operating
mind, or the product of oppression. What’s better is to look at
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voluntariness as a contextual question – what has happened in the
situation?
o This case gives a broader idea of what might be encompassed under
voluntariness
o Policing the police is also a relevant point in this case
o Useful taxonomy (p.584) of types of confessions, and the sorts of issues
that may come up in a voluntariness voir dire based on the sort of question
we’ll be talking about at the voir dire.
o P.589 – emphasis on the necessity of the causal connection.
In this case, there is an exceptionally long interrogation. The conditions of the
interrogation, though, aren’t really described. Levy suggests that the judgment is a
bit sanitized considering what is more likely to have happened.
Polygraph was used – perhaps a useful investigative tool, but not admissible. But
ask, the accused is accused of lying based on the polygraph, and then the accused
confesses. Are we okay w/ that, considering that polygraphs aren’t always
accurate.
SCC lets it in. No inducement, no threat. Not strictly accurate, but not oppressive,
right?
This case helps by expanding the range of evidence that might be admissible
under voluntariness. It uses the more contextual approach. These are generally
viewed as positive changes
The problem with this case is that the SCC said it was okay for the police to lie to
an accused.
This case points us to the question of what are the rules that are to govern police
when they are collecting evidence?
Does this case worry you just by the fact that the interrogation went on for so
long?
reliability and controlling the police; both central issues
to this has been added on the “operating mind” notion (the confession has to be
based on the operating mind of the accused – there may be a concern of reliability
if there is mental illness; it can also shade closely to the idea of controlling police
– did they exert significant pressure that, in effect, destroyed the accused’s
autonomy – torture)
the third aspect - oppression
Are confessions being excluded b/c of police oppression? This slides away
reliability and towards police control
So think of it this way – there’s an overall idea of voluntariness, with three
intersecting aspects:
o Traditional voluntariness rules (Ibrahim)
o Operating mind (not argued often)
o Oppression
These are all common law principles that were developed to control the police.
Let’s turn now to trial procedures…
The sort of statements that concern us are ones made to “persons in authority”
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If a statement is made by an accused to someone not in authority, it gets in to be
heard as evidence (the normal rule of evidence); the only test in that case is
relevance – these are admissions
The voir dire – in these cases, if there is a question that a statement may have
been made to a person in authority, normally the Crown will ask for a voir dire
and will be required to prove that confession is voluntary. This is unusual – if
admissibility is challenged, normally the burden of proof is BOP. In this sort of
voir dire, it’s BARD. It only applies to these “persons in authority”
circumstances. It gets more complicated b/c the accused might not object!
In many of these cases, no one asks for these voir dires. Courts are ambivalent – if
accused agrees to statement going in w/ no admission, it will be hard for C.A. to
say one should have been held anyway.
Why would an accused waive a voir dire? There could be lots of stuff that would
hurt the accused. The Crown may avoid it b/c there could be a statement that is
exculpatory. The statement could be mixed in terms of who it favours.
What if the police write the statement, using their own words about what
happened? What if the accused signs it, but it is found that the accused isn’t very
literate?
Now, police are using more audio and video for interrogation.
When voluntariness isn’t just about what is said, but also about how it is said,
then video and audio will be of use. A transcript of something you said may be
very damning, but what if voice tone suggests otherwise? This sort of thing is
important.
What happens if accused denies that the statement was made? This question won’t
be dealt with on the voir dire. We may consider the question of “if it was made,
was it voluntary” but the issue of whether it was made or not is left to the trier of
fact (goes to credibility, perhaps?)
In the voir dire, the officer who participated in questioning, or who came in
during questioning, will all be called. If a PO came in but wasn’t part of
questioning, we’ll want to know why.
R. v. Serack, 1974 BCSC (CB 579)
- police bring in person for questioning; clothing is sent away for forensic analysis
- accused strips in the cells; police don’t give him change of clothes, give him
blanket instead
- few hours later, police want to interrogate him; to get to interrogation room, he
has to walk through station in just the blanket
- he’s interrogated for quite some time and makes some adverse admissions
- Admissible?
- Police have to explain why, at the point of interrogation, the accused was still
without clothes. This was hours after his clothing was removed. No efforts had
been made by the police.
- This didn’t appear to be deliberate cruelty, but the effect of the action was
questionable. So, will this have an effect on admissibility?
- If the people in power don’t understand that they are acting discriminatorily, or
cruelly, if the effect is this, should there be an issue?
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Serack suggests that you can look at consequences.
This would all come out at the voir dire – if you are trying to prove the statement
is voluntary BARD, you will have to show that this evidence didn’t impact
voluntariness at all
Police can be questioned in the voir dire. Accused can also be put on the stand in
the voir dire and that evidence won’t go into the trial proper. (If it’s a trial by
judge alone, the consideration is different. If it’s a jury, then it may not be as big
an issue.)
Evidence in voir dire only goes to admissibility; it doesn’t go to the final finding
of guilt or innocence. However, often Crown and DC will agree to the evidence
heard in voir dire being used in the trial proper if the trial is by judge alone.
Sometimes not calling a witness can be used against you (used to draw an adverse
inference). This works in the voir dire. If Crown doesn’t call a particular PO, for
example, DC can ask judge to draw adverse inference.
If DC doesn’t call voir dire, there can often be a question of competency, etc. if
DC doesn’t call it. If you want to attack the “tactical decision” on appeal, it’s
really hard to do. Arguing incompetency is touchy.
Lots of things can happen in a voir dire on the question of voluntariness
o Crown has burden BARD on this issue
o How far we dig into the issues could be dependent on how DC sets up
cross
Persons in authority
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Who is this person? Normally it’s the police
What if the confession is made to an undercover PO? What if my client doesn’t
know that it’s a police officer? Do confession rules still apply? NO!!!
Test for persons in authority – subjective from accused’s perspective. Did the
accused know that the person they confessed to had some control the accused or
the case against him?
What’s the position of a private prosecutor? What about a parent of a
complainant? What if that parent goes to the accused for a chat? What if the
parent pulls a knife on the accused? Person of authority?
Person isn’t a person of authority unless accused is aware of the status.
What if the person isn’t, objectively, in authority (no control over accused or
proceedings) but the accused believes they do. Does the subjective test still apply?
Not many cases deal w/ this last…
o If a lawyer comes to see a criminal who has been arrested, and the lawyer
is actually an undercover police officer, and that person got a confession.
o Is this confession admissible? Is this a person in authority situation?
Accused thought that this person was a lawyer!
o But if this person was actually a lawyer, there would be solicitor-client
privilege. That means, it wouldn’t be permissible as evidence w/o the
consent of the client/accused.
o So, what do we do with this situation. Person isn’t a lawyer, so no
solicitor-client privilege. Accused doesn’t think that this is a police officer,
so no voluntariness issue.
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o Do we still apply the subjective test anyway?
R. v. Rothman, 1981 SCC (CB 548)
This last point was considered in Rothman.
Another one:
- self-incrimination; one of the reasons we worry about this is that accused people
shouldn’t have to incriminate themselves
- this case says that self-incrimination is something that guarantees a witness
certain protections; it only attaches at the point that a person becomes a witness
(s.13 of Charter)
- if you’re still in jail, the protection doesn’t apply
R. v. Hodgson, 1998 SCC (CB 556)
- 559-560, and 562 focus on the idea of self-incrimination
- A clear statement by majority that part of the rationale underlying voluntariness is
the privilege against self-incrimination
- How does that work, considering what they said in Rothman?
- There’s a distinction drawn between the testimonial protection noted in Rothman,
and a broader usage to the right of silence – you are not generally compelled to
answer questions by the police on the street (with a few exceptions)
- This rationale isn’t consistently dealt w/ by the SCC
- In addition, SCC has begun to evolve a right to silence in the Charter under s.7;
Levy says there’s a link between the stream of jurisprudence that finds this under
s.7, and the moral idea of a right to no self-incriminate
- And finally, this all links up with the idea of voluntariness
- So, moving along – this case also deals with the general idea of who a person in
authority is
- Facts: complainant’s family approaches accused after complainant says that she
was sexually assaulted. Accused confesses to parents. Are the parents persons in
authority?
- The question isn’t actually answered by the SCC – this is b/c the case is on a
procedural ground; no voir dire was held to deal with the question of
voluntariness
- Majority says that court should respect DC’s autonomy not to hold a voir dire
- But, majority does give a short list on circumstances in which a person who isn’t a
police officer of will be considered a person of authority or not
- Social worker example – was a person of authority b/c the SW role was
investigatory
- What about a private security guard? They have private citizens’ powers of arrest,
a high level b/c they are hired to protect property. If you see someone committing
a crime on that property, a private security guard can pursue that person. Consider
the Chu incident in Toronto – store owner who pursued a thief, tied him up and
put him in his truck.
o But if there’s a confession to a security officer, are they a person in
authority? We’re not sure.
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The next point to consider in this case – it slightly modifies the subjective belief
test. It suggests, without deciding, that the argument about the subjective test
being exclusive (excluding those who the accused didn’t know was in authority)
and inclusive (including those who the accused thought were in authority), is
based on reasonability. The test is what the accused thinks – the effect is that the
evidence will be let in. But what happens if they aren’t in authority, but the
accused thinks that they are? Will the subjective test be used? This case mentions
this issue based on reasonability
o So, if I believe that someone’s in authority, and that belief is reasonable,
then they will be treated as a person who is in authority.
For a good summary of all this info: 565-566 in our case book; Cory’s judgment in
Hodgson
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Grandinetti v. The Queen, 2004 SCC (Code 254)
- looking at a particular type of police investigation
- “Mr. Big” technique
- A number of police get together and go undercover to target a particular person
who is suspected of a crime
- Police identify themselves as criminals, and try to pull in the suspect to their
criminal doings
- They try to get information about the past misdeeds of the suspect, in order to get
at the particular misdeed (usually a murder)
- In this case, the issue was whether a confession made to these undercover officers
was admissible. Court said yes.
Unger
- Police using the Mr. Big technique
- In the QB judgment, TJ is for the balance of society; he is wrongly convicted
- He served 14 years, and then was released following a re-trial where the Crown
brought no case.
- This case shows that there are cases where the judge will be convinced, but they
are dead wrong.
- The key piece of evidence here was the confession following the Mr. Big sting,
and it was what swayed the conviction!
- The forensic analysis that was used turned out to be incorrect, too!
- So the question: how confident can we be that the processes produce the right
results? It’s a human process – we can never be 100% confident.
- We accept this type of technique, and generally the fruits are admissible. But we
have to keep in mind that these sorts of things can go wrong.
- Other aspects of this case worth noting:
- Interception of communications –
o The confession that led to the conviction was surreptitiously recorded.
Don’t worry too much about this point.
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o You should know that there’s a distinction between third party intercepts
(a third party records the conversation between two other people) and
direct intercepts. The wire tap legislation deals w/ third party wiretaps.
o If a party to the conversation gives permission for the recording to be
used, then it can be used. If one party records and agrees to admissibility,
then it can be used (s.183.1 and 183.2 in the Code are useful if we’re
interested)
o Wire tap litigation is now a specialized area of law b/c it’s so complicated
o The court here just wants us to know that the wire tap legislation doesn’t
apply
What if two accused are accused of the same offence? Two options – they are
charged jointly (1 trial) or they are charged separately (2 trials)
o Does this make a difference in voluntariness?
o If there’s a joint trial – you and H to be tried together. H confesses. H’s
confession implicates H and you. Can the Crown seek to put the
confession as a voluntary confession as evidence against H? As evidence
against you?
o In relation to H, the answer is yes. As against you, though, the answer is
no.
o What is Crown to do? How can they get evidence of one accused against
another?
o The best way is to split the trial. This lets you call the accused A in the
trial of accused B, and vice versa.
o How will this impact on other issues of hearsay evidence?
o Finally – how does this relate to the problem of similar fact evidence?
This can arise when 2 parties are jointly charged, and one party has a bad
past, and the other party has a clean past. Is there a risk in a joint trial, and
similar fact evidence is admitted against one will taint the outcome for the
other?
o The best thing as DC is to watch for this if your client is the one with the
clean slate background.
Note that these are issues that are only going to come up in criminal law. You’ll
still split and consolidate trials in civil trials, but the issue of prejudice isn’t going
to be as big a deal in civil litigation.
Fear of Prejudice/Hope of Advantage
Ibrahim v. The King, 1914 PC (CB 570)
- “Wretched case”
- The narrow application of the voluntariness rule – hope of advantage or fear of
disadvantage held out by a person of authority
- This case isn’t super useful for much
- Court is not inclined to be favourable to the accused – appeal to P.C. from Hong
Kong
- A soldier in the Indian army, who was serving at a British base in China. He
allegedly killed a superior officer. Soldier was kept tied up in custody. Another
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superior officer came to speak with I, and claims he asked him why he did it, but
didn’t provide any inducement or any fear.
Court accepted that the interrogating officer was a person in authority.
No inducements, no threats, says the court. Levy says he’s not sure that that
would actually be the case.
The court is adamant that the inducement or threat must be there, and that there is
a causal connection between that inducement/threat and the confession.
This two part consideration comes up in later cases.
Voluntariness: Oppression
R. v. Spencer, 2007 SCC (Code 297)
- a number of robberies occur; Spencer’s house (where he lives w/ his girlfriend) is
searched; stolen property is found at the property; Spencer and his GF are both
questioned
- two issues are discussed w/ police: Spencer asks about his GF – how is she? Is she
going to get a break in the case? He’s asking if he confesses will she be treated
more lightly. He also asks whether he can speak with her.
- Police suggest that they might be able to make an arrangement of that kind, and
he is allowed to visit her.
- Problem? Do the police go too far? Is this a different situation than when the
police are trying to induce you? If you volunteer that you may provide info if you
get something in return? Can police accept an invitation to be induced?
- TJ said statements were admissible. C.A. said inadmissible. SCC majority
overturned and said that they were admissible.
- SCC makes some interesting comments:
o they discuss Oickle;
o they discuss Ibrahim;
o and they discuss the relationship between those cases, and they suggest
that there is a strong link between the cases – they are dealing w/
essentially the same problem
o but doesn’t this go against the apparent interpretation of Oickle? Doesn’t it
return to a narrower interpretation of voluntariness? Are they closing the
door to some of the contextual aspects that they opened up?
o They suggest that you should read the two cases as equals, not as one
building on the other. But what the hell does that mean?
- So, is this case a modification of Oickle? It’s not too clear
R. v. Sinclair, 2010 SCC (BBoard)
See headnote you downloaded from BBoard
- a long interrogation; murder case, and Sinclair was charged
- Sinclair advised of his right to counsel (s.10(b)); he was cautioned; he was
allowed to call a lawyer, who told him not to speak to the police
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Sinclair stayed quiet for quite some time; he said “I have nothing to say” –
insisting on his right to remain silent
Interrogation continues anyway. Sinclair asks to speak to his lawyer again, and
police say no.
No traditional voluntary problem here; majority says no oppression – accused is
autonomous (accused has the right to choose to speak or not, and he can change
his mind if he wants). No pressure to talk.
Dissent disagrees, especially Binnie J. What about the related problem of the
accused being prevented from speaking to his lawyer?
Majority says – lawyers aren’t permitted to be physically present during an
interrogation.
Is accused entitled to speak to a lawyer again during an interrogation, especially if
it is long? No, unless there has been a significant turn of events (though what this
means is unclear). There’s nothing new to talk about, so why would the police
allow an accused to speak to their lawyer again?
Dissent – points to s.10(b)!
Majority isn’t saying that police can do whatever they want, but they are taking a
narrow view of the restrictions that will be imposed on police.
Dissent takes a broader view – a long interrogation is oppressive, and can lead to
a reliability problem. There is a higher likelihood that the accused will say
whatever the police want if it means that the interrogation will end.
R. v. S.G.T., 2010 SCC (Not in materials)
- the relationship between statements – if an accused makes more than one, how do
they relate?
- Accused had been married. When the couple got married, wife had daughter from
previous marriage. Prior to the couple’s divorce, the daughter was adopted.
- Daughter said to mom she preferred not to spend time with Mr. T. Suggestion is
there of improper sexual conduct or assault
- Daughter talks to school counsellor about the conduct. Counsellor contacts police.
After an interview w/ police, accused writes out apology to step-daughter
- Context of interview: police suggested that criminal proceedings may not
necessarily take place if accused apologized. Once the apology occurred, police
started criminal proceedings
- Police related a lie – police said that he had slapped his son in public while
traveling in U.S., and told that if he wrote out an apology the matter would be
dropped, and said that he had written the apology and the matter was closed. This
was an outright lie.
- The apology letter of the accused is read as a confession.
- Admissible?
- TJ said no. This was upheld all the way to the SCC.
- Involuntary b/c of the inducement.
- But this wasn’t the end of this. After this all went down, the ex-wife sent an email
to the accused saying she wanted to take the daughter to the U.S. and she needed
his written consent.
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Mr. T delayed replying, and eventually gave consent, despite thinking that he
didn’t want to do it b/c it would be an inconvenience for her.
- In the email, Mr. T apologized again to the step-daughter. It was vague about
what he was apologizing for – no statement about what he was specifically
apologizing for.
- The ex-wife isn’t a person in authority, so no traditional voluntariness issue here.
- Crown can connect it to sexual assault charge. No need for voir dire from their
pov
- DC thought that this was connected to the apology that had already been given to
police, which had been deemed as inadmissible. They argued that they were
sufficiently connected that the person in authority issue attaches – you can’t
separate them and say one is out, but the other is in b/c it wasn’t to a person in
authority.
- Court wouldn’t go this far. In some cases, the taint may cause both statements to
be omitted. But that wasn’t what occurred here. The second apology was
completely autonomous on the part of the accused.
- So, the taint can flow over, but it will be fact specific. The majority was implying
that in order for there to be flow over, there would have to be a very strong
indication that there was a connection.
Continuing with admissibility of info obtained by police during interrogations and by
other means.
- next set of cases – we see the balance leaning more towards letting info obtained
by police in to trial
- police may resort to things that are distasteful, but courts are reluctant at going to
far when it comes to second guessing police
Privilege/Principle against Self-Incrimination
R. v. Henry, 2005 SCC (Code 329)
- context – right to not incriminate yourself; what is it? When does it crop up? How
do we handle the aspects of that right?
- Right of the accused not be compelled to give evidence against himself – consider
in light of s.13 and s.11(c) of Charter
o This right has always existed, really
o Prior to 1890s, accused wasn’t even allowed to give evidence, partially for
this reason (the other reason, competency, is something we covered
earlier)
o After 1890s, accused allowed to give evidence but was not required to
(now a protected right under Charter); accused is now “competent” to give
evidence (though the criminal bar thinks this is ultimately a bad idea)
- Different but parallel problem: what if someone isn’t a party to the lawsuit, but is
instead a witness?
o If we’re going to force a witness to testify, are we okay with forcing them
to incriminate themselves? At common law, this was forbidden –
witnesses weren’t required to answer questions if they honestly believed
that the answer would incriminate them (the common law test).
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o There is a risk that they will be incriminated in a matter different than the
one before the court
In Canada – slightly different than other Commonwealth countries.
o During 1890s, when the question of whether the accused could give
evidence came up in these countries, Canada was also wondering about
witnesses.
o Canada – we want to get at the truth of the matter, but witnesses have the
right to not self-incriminate. So, what can we offer the witness?
o CEA – s.5 (equivalent exists in each province)
o The interplay = if you’re called as a witness, you’re required to answer
incriminating questions, but the law guarantees that the answers won’t be
used in any other proceedings against you.
o This trade-off is unique to Canada – witnesses have no right to refuse to
answer.
o However, there were problems – what EXACTLY were you protected
against if you gave evidence that self-incriminates?
Problems that arose:
o Who was a witness? Presumably someone who gave evidence in a
proceeding. But what is a proceeding?
o In Alberta Evidence Act, there’s a definition of “witness” – it includes
someone who is being examined for discovery. Includes someone giving
evidence before a tribunal.
o Are these people covered under the EA? Or are proceedings only trials? In
CEA, there’s NO definition of “witness”. Are definitions going to be able
to cross over? (I would think no, but Levy says this is an unresolved
question)
o What about preliminary inquiries?
o What about an accused giving evidence at a preliminary inquiry? Imagine
a trial that’s split – same charge, but two different people. Can you call
each of them at the other’s trial, and then use that evidence b/c it’s a
separate proceeding?
o It’s unclear in the statute what “another proceeding” is.
o What about civil liability? Are you protected against that? I think Levy
said no, but how does that fit in to the common law – there are some
things that were criminal that aren’t now.
No clear SCC decision on the point of issues that were criminal, but are now civil
So, the core rights under the statute are clear, but the peripheral matters are at
issue
o Consider – witness gives evidence. Police officer is attending, and hears
the evidence, and gets a clue that leads to other evidence that results in
your arrest. Your testimony isn’t used to convict you, but it’s what
ultimately is used to bring you down!
o Courts have said that this ISN’T protected! Only immune from DIRECT
use
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Another older point – use immunity wasn’t automatic. Just b/c you answered an
incriminating question didn’t automatically give you immunity. You had to claim,
and you had to do so before you answered the question.
So – evidence acts: clear core, you had to claim your right, but the edges were
very blurry
When Charter came in, many people thought that s.13 was going to solve the
issues that arose out of the Evidence Acts
Experts thought that Charter gave the protection automatically.
o There were still a few issues, like the extent of what “incriminate” meant
o But experts thought that there was a broadening of the group of people
who would be covered
There was a supposition that s.13 was related to evidence acts
DC began to question whether there were differences? Would the evidence acts
give you protections that the Charter wouldn’t? And vice versa?
o Defence lawyers pushed the question – are these things related, but not
“co-terminus” as Levy puts it
Henry:
- Charter is wider than Evidence Acts
- That’s the issue: will the Charter do something that the Evidence Acts won’t?
- Facts: Henry was tried for murder. He testified at his trial, gave a version of
events. He went through a set of proceedings, and an appellate court ordered a
new trial. At the second trial, Henry testified but gave a significantly different
version of events.
- Think back to credibility –
o An opponent’s witness can be crossed on prior inconsistent statements to
attack credibility; this right is given under Evidence Acts
- On second trial, Crown wanted to cross-examine on this testimony in order to
question credibility
o Sounds reasonable, right?
o Perhaps the accused has a good explanation!
- It’s conceded that under the Evidence Acts, Crown would be entitled to cross on
this issue for credibility. Under the EAs, it was of the view that the new trial was
the SAME PROCEEDING as the first trial.
- Counsel tries to argue that s.13 prohibits what the EAs do not – that it forbids
cross on credibility in new trial if cross is based on testimony given by accused in
first trial.
- SCC – they say that s.13 is designed to reflect the same balance as the EAs
o EAs were based on trade-off to get at the truth
o S.13 is based on this, too, says SCC
o In other words, if we require you to answer questions we won’t use those
answers against you
o If you’re accused, and you elect to testify, then you have no right (and
have never had any right) to object to answer questions to the offence you
are charged with. If you become a witness at your own trial, you have no
protection – your election to testify is your abandonment of whatever
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rights you have to prevent self-incrimination as related to the offence
you’re charged with.
o Witnesses are different.
Henry at the first trial elected to answer the questions. Crown says, he can’t object
to the answers being used at the subsequent trial
o The trade-off of protection via use immunity isn’t there
o Historical right to silence is only related to OTHER offences for which
accused is not yet charged
So, if you’ve already agreed to talk (but weren’t required to) NO USE
IMMUNITY
Be careful – distinguish between rights of witness qua witness, and witness isn’t
facing charges VERSUS accused as a witness who IS facing charges (you aren’t
required to talk – but if you choose to, NO IMMUITY)
Accused isn’t protected b/c the trade-off in the Evidence Acts deals with
compulsion. Only if you’re compelled to testify will you receive protection. If
there’s no compulsion, as is the case when an accused testifies, there’s no tradeoff, so no protection
S.11(c) – accused can’t be compelled, at his own trial, to give evidence. THIS was
the basis for the reason that the statement was excluded (I think). By including the
testimony as evidence in chief for the Crown in the second trial, the Crown is
ultimately conscripting the accused, against the accused’s will, to give evidence.
SCC is clearly distinguishing between the use of the testimony
o First is the cross-examination aspect, credibility, etc. Self-incrimination
theory doesn’t stop this cross
o BUT, second, bringing the evidence in chief is compelling the accused to
give evidence against himself (s.11(c))
Q: why don’t we talk about confessions in this light? S.11(c) is concerned w/
accused being compelled to give evidence at trial. And s.13 is concerned w/
evidence at trial, too. Both sections deal w/ evidence AT TRIAL
o Police questioning – not at trial, so doesn’t fall under these constitutional
protections
SCC then says – we can talk about the privilege against self-incrimination, and
this is narrow. There’s a broader concept: the “principle” against selfincrimination
o Moral values that arise in the history of the common law
o Does self-incrimination have anything to do with a police context? As a
PRIVILEGE (RIGHT) under legislation, the answer is NO.
o But, is there a notion at common law of this principle that might be a
factor in police questioning contexts?
o Levy says that courts aren’t consistent on the answer to this question.
Where does the idea of “principle” come from? PFJ – s.7
o So, if there’s a “principle”, and that principle has a legal history, and that
history is connected to police interrogation, is there room for s.7 to be
considered in this equation?
o Do rights to silence fall outside of s.13 and the Evidence Acts, and s.11(c)
of the Charter? Do they exist in s.7?
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o See the Stevens article, and the Hebert and Singh cases
Right to Silence under s.7
R. v. Hebert, 1990 SCC (CB 606)
R. v. Singh, 2007 SCC (Code 388)
Hebert and Singh, and the Stevens article
- Deal w/ s.7 – is there something that’s different about s.7? That provides
protection that the other rights don’t?
- Interesting thing in these cases is that they recognize that there is a limited right to
silence in s.7
o It’s a right that isn’t addressed elsewhere in the Charter OR at common
law
- What does s.7 add to the idea of restraining law enforcement? How does it add to
the balance between accused and society, and how law enforcement deals with it?
- Courts have been reluctant to strike down legislation that requires people to give
info to the police; consider Highway Traffic Acts that requires you to report
accidents
o Levy asks – can a provincial gov’t in a statutory scheme that requires you
to give info to the province that that report will not be admissible to a
federal (read: criminal) proceeding.
o Shouldn’t the reaction be NO? Federal gov’t has the right to legislate what
is and isn’t allowed in for federal proceedings.
o If SCC upholds this scheme – nothing wrong with requiring people to fill
out accident reports – and we know that provinces are giving use
immunity. So, are you still protected?
o This is a situation where the province is acting as an investigatory arm for
the federal government!
- Consider – teams of provincial and federal officials (fire marshals and police)
investigating; there’s a situation of provincial officials feeding criminal
investigations in ways that are generally forbidden to police officers
- Levy says that s.7 may tell us something about this interplay – there may be
constitutional problems with it.
- Both of these cases, though, seem to impose a limitation on the s.7 right
o If there’s an absolute limitation, then s.7 will be taken away as an option
o The cases say – very limited right to silence that’s not otherwise protected
when an individual is detained. So, if the police detain someone and then
get something from them that is, presumably, voluntary (Oickle).
o Is there room for s.7?
o The cases suggest the following:
o First, we’re looking at detention – so the first question is, what is
“detention”? What if you don’t know you’re being detained?
o Singh – yes, you can be detained and not know it – it’s not necessary for
you to be arrested for you to be detained.
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Grant: In one of the cases – police stop accused to question him. He’s not under
arrest; he’s asked some questions. He’s then searched – drugs, loaded gun is
discovered
- Singh – police investigation. Singh asserts right to silence after he’s picked up by
police. He later confesses to a second police officer. Singh concedes on appeal
that the statement he made was voluntary – TJ was entitled to find that the
statements were voluntary. What he tries to argue is that there is a right to silence
under s.7 (Hebert recognizes this, and it expands Oickle).
o Court says no – if he knows the person is in authority, and the statement is
voluntary, then no s.7 right.
- Hebert – s.7 might apply. Accused is detained, asserts right to silence, is
questioned by police and he doesn’t confess. He’s then put in a cell with a person
who he believes is a detainee, but is an undercover police officer. Hebert tells
undercover police officer about the crime for which he is charged. Court says –
yes, there’s probably a s.7 protection here. Oickle won’t apply here – Hebert
didn’t know that the person was in authority. If you don’t know, then the common
law confession rule doesn’t apply.
o Court is concerned w/ this style of police interrogation
o It’s important that Hebert successfully exerted his right to silence w/ the
uniformed police officer
o Court says that undercover officer didn’t extract the info; Hebert
volunteered it. But, in a case such as this, there may be a s.7 right
o If the agent of the state elicits the statement, then s.7 may arise (it’s
different if the accused volunteers the statement). Now, POs will CYA, a
lot.
o So, this isn’t “privilege” against self-incrimination, but may qualify under
the “principle” against self-incrimination
o Hebert is the only case that deals with this point. Evidence was ultimately
excluded in Hebert for this reason. The case hasn’t been overruled, but is
rarely applied.
Principle against self-incrimination
•
Reflects itself in the CL confessions rule and may adhere in certain
Charter rights
Privilege against self-incrimination
•
Narrowly set out in s. 13,
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S. 5 of the CEA
•
S. 10(b)
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S. 9: arrest and detention
•
Values inhering in s. 7 – non-compellibility
•
How these fit to/g is not easy to discern - they all have s/t to do w how authorities
collect evidence
S. 8: Search and Seizure
•
We will have to talk about this
•
Derivative evidence – where some right either CL or Charter has been violated and
and A is granted a remedy for the violation and evidence may be excluded which was
directly related, but what about evidence not directly related
-
122
•
Where the police take 2 confessions and the first one is tainted – should we be
cautious in letting in the second confession in?
•
Does any Charter stuff mean a/t at all if we let the evidence in?
•
S. 24(2):
•
Grant? Strikes a significantly different balance.
Improperly obtained evidence
R. v. St. Lawrence, 1949 Ont. H.C. (CB 595)
R. v. Wray, 1970 SCC (Code 313)
Not Charter cases – both CL
•
Both cases the police had taken a confession from the As that the ct found was not
voluntary so they excluded the confessions
•
The police then as a result of the confession find further evidence
•
The A after making the confession took the police to where he threw the gun – when
the gun was analyzed it turned out the gun was the one used in the crime – the police
would have never gotten anywhere near the gun if the A hadn’t told them about it – so the
finding of the gun flowed from the confession
•
Is there any CL rule which excludes real hard evidence that is found as
a result of an inadmissible confession?
o
No.
o
There is some argument that the tj may have some discretion to exclude the
evidence, but Wray throws this out the window – the tj is aloud to deterimine the prej
prob balance, but they cannot exclude outright evidence
•
Shouldn’t a confession become admissible when the derivative evidence establishes
the reliability of the confession?
•
The confession is involuntary and reliable – the Crown would like to say it is now
admissible if we are concerned about reliable?
•
Part of an otherwise inadmissible confession will become admissible when it is
confirmed by otherwise admissible evidence. – the gun.
•
But it is only that part of the confession that is directly confirmed by the derivative
evidence.
•
Wray said he threw the gun at a certain place – the ct found that this only confirms
that W knew the gun was there, not that he threw the gun there – so only a small part of
the confession will be inadmissible – not quite so devastating, but bad for Wray
nonetheless.
•
The CL appears to admit small portions of a confirmed confession.
•
Has anything happened to change that CL rule? So far the SCC hasn’t changed that
– they have acknowledged that the overall approach in Wray is too narrow.
•
Might the charter impact this?
•
Is this a violation of an A’s right to be free from unreasonable search and seizure?
Is s/t you have thrown away in the protected ground of search and seizure? Grant – can
we allow evidence that has been obtained derivatively when it has been thrown away by
the A? –the answer seems to be no.
•
Where a Charter Right is violated it may be possible to exclude derivative evidence
- s. 24(2).
123
•
o
What is happening to 24(2)?
Initially all was disorder
Derivative Evidence
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St. Lawrence and Wray = confirmation by subsequent facts These are NOT charter cases though.
Issue in both cases had a confession the trial judge found was NOT voluntary under the common law test, so the confession
was excluded. Police discovered as a result of confession other evidence.
in one case the gun he mentioned in his confession was found and had his fingerpritns all over it. The finding of the gun flowed
from the confession.
2 questions in Wray: is there any common law that excludes real/hard evidence that is found as a result of an inadmissible
confession. Answer is NO, common law never did exclude that type of evidence. MAY be some residual discretion, and the
common law position is that the court actually does not have any discretion to exclude evidence based on the WAY it was
obtained, though they can exercise discretion to exclude based on prejudicial value.
The WAY it is obtained, is not something that is necessarily prejudicial at trial.
R: derivative evidence is admissible at common law.
2d question in Wray is - danger of unreliability of police induced confession (pre-Oickle,
where reliability is still key to the admissibility of confessions)
If confession is excluded based on voluntariness and this is a concern of reliability ought
it not to be admissible once reliability has been confirmed? SCC says , YES, part of it
will become admissible where it is confirmed by derivative evidence.
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if reliability is the rationale, does that make otherwise inadmissible evidence admissible once reliability is established???
what is confirmed once Ray takes them to the gun? SCC says it only confirms that he KNEW the gun as there, not HOW the
gun got there. Therefore only a very small and heavily edited part of the confession will be admissible. Despite this it is still
damaging.
SCC has NOT changed the common law rule, though they have acknowledge the overall criteria is too narrow (Hebert) and
Oickle shows that the common law criteria should be more restrictive.
exclusion of the confession is a common law matter, NOT a CHARTER argument?
o the possibility exists, that s.8 MIGHT kick in if the police are able to sezie a piece of evidence by virtue of an
involuntary statement directing and taking them to it. Difficult but could be made.
o though s.8 seems to be about a particular zone of privacy. is something you’ve thrown away within a protected zone
of privacy?
o if you’ve thrown something away then it is not part of your privacy?
Bringing the Justice System into Disrepute
R. v. Collins, 1987 SCC (CB 637 & 700)
R. v. Stillman, 1997 SCC (CB 711)
R. v. Grant, 2009 SCC (Code 413)
o
Collins case: first attempt by the SCC to impose some order on this section.
o
Collins and Stillman still have some limited legitimacy, but we have to be cautious
about using them for the basic principles
•
What is the Grant Position?
o
** para 71 (pg 426 – or the headnote): The 3 criteria that have to be
evaluated in the context of s. 24(2) exclusion.
*How serious is the charter violation? – there may be minor violations or serious
violations. What sort of message is going to be sent to society that might impact on its
confidence in the criminal justice system?
•
Prior to Grant exclusion was not uncommon – but it is quite clear that exclusion has
dropped dramatically.
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*The impact of the breach on the A – how much is the A being hurt by the breach?
•
We don’t want to keep letting information in when it is obtained through police
misconduct; Society’s interest in having the case decided on the merits of the evidence –
let there be acquittals on the strength of the evidence, not on the exclusion of the
evidence
•
Collins, Stillman
o
Interest of society in creating a fair trial – this is a factor excluded in Grant
o
Rather Grant states that the global goal of 24(2) is a fair trial
o
Also, c-S drew a major disctinction b/t conscripted evidence (where the charter
violation forced the A to provide the evidence – not necessarily in a physical way) and
non-conscripted.
o
Whenever evidence was conscripted there was a presumption that the evidence
should be excluded - - much stronger than Grant – Grant says no longer do we say
conscription is irrelevant, but it is merely on of the factors we call into play when
assessing the seriousness of the Charter breach; you can no longer place a lot of weight
on conscription – some say this should no longer be discussed at all.
•
How are these exclusionary principles going to play out in re to different kinds of
evidence
o
Grant – page 430 – 438 – this divides the info in 4 clumps
o
1. Statements by the A: s. 10(b), 11(c), and princ against self incrim have some
bearing on this – the ct is generally favourable to the exclusion of statements. Pg 431:
“the three lines of inquiry above support the presumptive general, though not automatic...
but we know that most statements are excluded as a result of CL
o
2. Bodily evidence: the history of our constitutional attitude improperly taking
bodily substances - in c-s – it was conscripted and excluded. Here they say that we have
to watch when the cops use force or trickery – but we don’t have to be too fussed abut
that anymore b/c the cc is amended and we can now get a search warrant for the
provision of DNA samples – 487.05: provides the basic framework for getting DNA –
you can do it quickly b/c we can now get the telephone warrant any time. – if the police
comply w the leg framework then there is no cause for complaint, if they don’t then there
may be a cause for complaint... but... we don’t need to get fussed about s. 8 of the
Charter... Para 110 even where .. the effect of taking the evidence and having the case
adjudicated on the merits will tend to favour admissibility
o
3. Non-bodily physical evidence – the gun – pretty reliable. Well they would
discover it anyway – the CL powers of search as a result of arrest – pat down... the ct is
sending out a message that on the whole non-bodily evidence will tend to be let in. – the
3 criteria will tend to favour admissibility
•
4. Derivative evidence: Generally speaking deriviative evidence will have some
degree of reliability and the public will have a greater interest in having the case heard on
its merits – we might exclude occasionally but basically let it in – this is the position that
Grant puts us in – most
•
So essentially charter breaches don’t mean much – damages might be awarded
•
3 questions on the exam – 1 will be similar fact evidence, attacks on cred, 1 will be
hearsay, 1 will deal w exclusion of evidence – this question which is not totally unlike q.
3 from last year – will be shorter than last year.
s.24(2)
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some cases DO suggest that where a charter right is violated, it may be possible to exclude derivative evidence
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in US the starting point is exclusion, in Canada the starting point is that it MAY be possible to exclude derivative evidence. No
resumption of exclusion. Law & Order, not in Canada :(
Collins and Stillman is the culmination of this section
in Stillman it was a frank lie on the part of the police officer, therefore it should be excluded. Facts were strong in that case for
exclusion, clear 10(b) violation.
these cases on the basic principles underlying 24.2. cannot be relied upon, Grant has essentially reformulated the principles
under 24(2). Threads of though in them are not irrelevant. Be cautious about using them since Grant is the law now on the
basic principles of 24(2).
The Grant position = para.71 of the judgment
The NEW TEST for 24(2). 3 distinct criteria that must be evaluated in the context of a
possible 24.2 exclusion.
- 1. How serious is the Charter violation?: what sort of message is going to be sent to society that might impact its confidence to
the justice system following this violation. This criteria alone has clearly changed the courts approach, and this is manifest in
drunk driving which finds that even if breathalyzer is obtained in violation of 10(b) rights it is now admissible, where before it
would have probably been excluded. How will the public interpret police conduct what the court is saying they can or can’t do.
-
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2. Impact of the Charter breach on the rights of the accused.
3. Society’s interest in the adjudication of the case on its merits.
Grant eliminates 2 of the criteria of Collins-Stillman analysis:namely societies interest in obtaining a fair trial. Grant says instead
that fair trial is the global goal of the criteria, as opposed to a criteria in its own right.
drew distinction between conscripted vs. non-conscripted evidence.
C-S had a presumption conscripted evidence would be excluded. Grant eliminates this distinction and conscription is merely
ONE of the factors we consider when assessing the Charter breach. Comes close to eliminating the relevance of conscription in
general.
What about different categories of evidence?
o
o
o
o
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Grant gives us some p.430-438.
it divides the sorts of evidence we might be asked to exclude in 24(2) into 4 clumps. 1) statements by the accused;
p.431 presumptive general though not automatic exclusion of statements obtained in breach of the charter, 2) Bodily
evidence; we need to watch and analyze carefully when police use force or trickery to obtain bodily substances.
Parliament has amended the code so we can get warrants to get such a sample, section 487.05 provides the basic
framework for getting search warrant to get DNA. Provincial court judge always on roster to issue telephonic
warrant, 3) Non-bodily physical evidence; the gun is generally easily discoverable during a pat down, s.8 not rally a
problem in this case. On the whole it seems that world of non-bodily physical evidence will tend to generate
admission (contextually, though Levy says context will favour admissibility).
para 110 even where police do not comply with new statutory criteria in violation , the 3rd criteria of the test will tend
to favour admissibility because physical evidence is RELIABLE!! It is real and no concocted. RELIABILITY flows
through all.
court feels public will feel better that an accused was acquitted or guilty on the merits of the case with a potentially
uncharter evidence, more than an acquittal because there was exclusion of evidence.
what would the remedy be for violation of 24(2), damages? what good would that be