INTRO.—RELEVANCE, PROBATIVE VALUE, PREJUDICIAL EFFECT
R v. Watson (ONCA 1996): no minimum PV required; assess relevance in context of all evidence
R v. Seaboyer (SCC 1991): exclude defence evidence only if PE substantially outweighs PV
TEST: admiss., relev., PV vs. PE
CHARACTER EVIDENCE
A. character evidence to prove propensity of the accused (directly in issue; credibility; circumstantial evidence. why limit use?)
RULES: use of evid. of accused’s character + propensity—Crown can’t lead unless SFE; 3 ways for defence to lead, then Crown can rebut to neutralize
R v. McNamara (ONCA 1981): “businesses should be run legally”; what does accused need to do to put character in issue?
B. methods of proving character: accused persons
(i) reputation witnesses: can testify only about accused’s reputation in the community
R v. Rowton (Eng. 1865): if accused brings reputation witnesses, Crown can rebut with reputation witnesses; reputation only, not particular facts
R v. Levasseur (ABCA 1987): reputation testimony can come from any of the accused’s communities (residential, workplace, etc.)
R v. Profit (ONCA 1992; SCC 1993): reputation testim. can support credib. or unlikelihood of committing offence (but not for crimes done in private)
(ii) specific acts (led by the accused’s own testimony)
R v. McNamara (ONCA 1981): if accused testifies about prior good acts, Crown can cross-ex. on prior bad acts (to rebut and prove that he’s lying)
prior convictions: CEA s. 12 allows Qs only about being convicted; CC s. 666 allows Qs about specifics (b/c accused has already put character in issue)
(iii) psychiatric evidence of disposition
R v. Lupien (SCC 1970): if offence/offender is extraord., expert psych. evidence can identify relevant qualities; helpful to jury when outside normal exp.
R v. Robertson (ONCA 1975): expert psych. evidence inadmiss. if the crime doesn’t require a distinctive perpetrator (e.g., murder 9yo girl)
R v. Mohan (ONCA 1994): rubric for (extra)ord. crime, (extra)ord. person; expert evid. can go to character when outside jury’s exp.; ‘no std. profile’
TEST: admissibility of expert evidence, generally—(i) relevant to mat. issue; (ii) of apprec. assist. to trier of fact; (iii) evid. unavail. to regular layperson
C. methods of proving character of third parties (less concern about prohibited inference)
(i) other suspects
R v. McMillan (ONCA 1975): if third party is suffic’ly connected for her charact. evid. to have PV, can bring it to show she likely committed offence
(ii) victims
R v. Scopelliti (ONCA 1981): for self-defence claim, showing previous violence by deceased is admissible (but conditions, limits on purposes)
 TEST: when/how accused can adduce bad character evidence about third parties (other suspects or victim)
D. accused’s prior bad acts: similar fact evidence
(i) old approach
Makin v. A-G New South Wales (Eng. 1894): can’t use SFE to show propensity, but can use to rebut a defence of accident/mistake, to show intent, etc.
R v. Smith (Eng. 1915): need prima facie evid. that the accused committed the crime charged before SFE becomes admissible; again rebutting accident
R v. Straffen (Eng. 1952): can use SFE to show pattern that will identify the accused (i.e., same person who did SFE did the current crime charged)
(ii) new approach
R v. B(CR) (SCC 1990): abandon the categories for SFE; use PV vs. PE; propensity evidence can be admitted exceptionally (heavy PE, need HIGH PV)
R v. Arp (SCC 1998): evid. on concurrent charges is admiss. as SFE going to identity on each one; need objective improbability of coincidence
R v. Handy (SCC 2002): PV (which issue? how much similarity req’d? is SFE approp’ly connected to facts alleged?); PE (moral, reasoning); weigh.
 includes TEST for SFE (+ Klein’s reformulation)
CREDIBILITY
A. supporting credibility: the rule against oath-helping (don’t lead evid. just to show that witness is credible)
 4 exceptions: defence can lead evid. of accused’s reputation for truthfulness (limited PV); or after opposing counsel attacks; or (i) or (ii) just below
(i) expert evidence on credibility (if beyond ToF’s ordinary experience, i.e., unusual witness; but can’t say whether they’re likely telling the truth now)
R v. Kyselka (ONCA 1962): general rule against oath-helping; psych. evidence re: complainant’s mental capacity (incapable of lying): inadmiss.
R v. Marquard (SCC 1993): expert evid. on witness credib. is ok if informs ToF about behaviours relevant to certain type of witnesses; stay general
(ii) prior consistent statements (inadmiss. for enhancing witness credib., but 3 exceptions)
 support witness’s identification of accused
 rebutting allegation of recent fabrication (i.e., been telling the same story since before motive to lie cropped up)
R v. Giraldi (BCCA 1975): suggestion of recent fabric. can arise implicitly; prior consist. statements ok to rebut suggestion of recent fabric.
R v. D(D) (SCC 2000): did not need expert evid. to rebut suggestion of recent fabrication (sexual assault, child complainant, delay in reporting)
R v. Stirling (SCC 2008): the alleged fabrication needn’t be very ‘recent’; when admitted to rebut ‘recent fabric’, can also bolster overall credib.
 ‘part of the narrative’ (i.e., enable witness to tell story in a natural way; esp. in sex. assault, esp. w/ child witnesses)
R v. Dinardo (SCC 2008): PCSs as narrative evid.: ok to show fact+timing of complaint (bkgrnd info), not for confirming truth of allegations
B. impeaching credibility (can do way more: contrary evid., suggest bias/fabrication, prior inconsist. statements, and (i)-(iii) just below)
(i) witness’s bad reputation for veracity
R v. Clarke (ONCA 1998): when defence wants to attack Crown witness’s credib., can call witnesses and ask re: Crown witness’s reput. for truthfulness
(ii) expert evidence on witness’s abnormal reliability
Toohey v. Metro. Police Commissioner (HL 1965): can use expert evid. to show that witness’s abnormality makes his evid. unreliable; can get specific
(iii) prior convictions
CEA s. 12: bring up prior convictions to undermine credibility; no details, just name of crime, penalty, place of conviction, substance/effect of indictm.
R v. Corbett (SCC 1998): Crown can cross-ex. a testifying accused on his crim. record, only for credib.; trial judge can exclude if PE > PV (4 factors)
C. some aspects of cross-examination (if going to contradict a witness, must cross-examine them first (when possible))
(i) necessary foundation for cross-examination
R v. Lyttle (SCC 2004): can cross-ex. witnesses on matters that don’t need to be proved, so long as good-faith basis: info. avail., belief in accur., purpose
(ii) collateral facts bar (how far can you go in disproving, with independent evidence, tangential statements made by opposing party’s witnesses in cross-ex.?)
A-G v. Hitchcock (Eng. 1847): can’t impugn credib. by adducing evid. only to show that witness is lying about something unrelated to offence/defence
R v. Melnichuk (ONCA 1995): can ask witness about collateral issues (for credib. purposes), but can’t contradict his answers with reply evidence
 exceptions: bias, witness’s prior convictions, prior inconsistent statements, medical evid. re: lack of credib., witness reputation for dishonesty
(iii) corroboration
R v. Baskerville (Eng. 1916): accomplice’s uncorroborated evid. is ok, but judge must warn jury that dangerous to convict based on that alone
Vetrovec v. The Queen (SCC 1982): nothing special about ‘accomplices’; make a clear+sharp warning when credib. of any witness testim. is in doubt
OPINION EVIDENCE (lay witnesses s’posed to testify re: facts of which they have personal knowledge—but exceptions below)
A. lay opinion evidence (can communicate perceptions as opinions when matters are (i) within common knowledge; or (ii) based on multiple perceptions best
communicated in compendious format)
R v. Graat (SCC 1982): opinion evid. on ultimate facts in issue is ok if the facts on which observation is based are too complicated to narrate sep’ly
B1. expert opinion evidence
R v. Mohan (SCC 1994): [‘necessary’ means beyond experience/knowledge of ToF—something technical]
 reformulation in R v. Abbey: expert opinion evid. ok if (i) necess.; (ii) expert’s qualified; (iii) evid. is logically relev. to mat. issue; (iv) no exclus. rule
R v. Lavallee (SCC 1990): expert evid. ok for challenging Q-able assumptions about human nature [here, battered wife synd.]; double hearsay here!
B2. reliability of novel areas of expertise (what extent of acceptance among community of experts is req’d before opinion based on technique/methodol. is ok?)
Daubert v. Merrell Dow Pharma. Inc. (US 1993): don’t need ‘general acceptance’, just reliab. and relevance—4 indicia; assist ToF
Béland v. The Queen (SCC 1987): polygraph evid. adduced only to show credibility—this is the jury’s job (esp. b/c non-technical)
HEARSAY (out-of-court statement tendered for the truth of its contents)
A. what constitutes hearsay + rationale for exceptions (can have high PV, but hard to assign weight without testing reliab. through demeanour/oath/cross-ex.)
Subramanian v. Public Prosecutor (Eng. 1956): not hearsay when purpose of tendering it is just to show the fact that it was made
R v. Wildman (ONCA 1981): “someone put an axe in Tricia’s head”—adduced to show that wife knew circums. of death before body discov’d: ok
B. implied hearsay
Wright v. Tatham (Eng. 1837): implied hearsay—treating mentally disabled guy as fully able, in letters (letter writers all dead)
R v. Wysochan (SCA 1930): “Stanley, I’m cold; bullet in me”—not meant to prove truth, but rather a state of mind (not implied hearsay)
R v. McKinnon (ONCA 1989): wife’s presence when cops discovered body’s location can’t be understood as an assertion/statement/communication
C. principled approach to hearsay (necessary + reliable: if one is very high, the other needn’t be)
R v. Khan (SCC 1990): necessity (“reas’ly necess.”) + reliab. (timing? demeanour? declarant’s intellig./personality? disinterest or reason to fabricate?)
R v. Smith (SCC 1992): even if necess. and reliable, trial judge has residual discretion to exclude when PV is slight and undue PE might inhere
R v. B(KG) (SCC 1993): prior inconsist. statements by witnesses other than accused are admissible for truth of their contents; need suff. guars. of trust.
D. traditional exceptions to rule against hearsay
(i) res gestae (‘part of the transaction’)
 excited utterances / spontaneous declarations (mind is so overwhelmed that no time to make anything up in one’s own interest!)
R v. Clark (ONCA 1983): “help! I’ve been murdered/stabbed!”; surprised utterance reflecting sensation/perception, no time to make anything up
 statements of present physical condition: must be contemporaneous (“oh, I’m hot in here”; “ow, that hurts”)
 statements of present mental state: a third party relating someone saying, “I’m upset,” is the same as third party saying, “she looked upset”
 statements of present sense impressions: mind needn’t be overwhelmed, but must be contemporaneous (“wow, fast car!”)
(ii) statements by parties: statement made by a party, offered by an opposing party, is admiss. for its truth (b/c cross-ex. is possible)
(iii) business records
(iv) statements against penal interest
R v. Pelletier (ONCA 1978): 5 factors for determining whether a statement made (by a party who’s not at trial) is one against penal interest
Lucier v. The Queen (SCC 1982): statements against penal interest are admissible only if exculpatory of the accused
(v) statements of intention
R v. P(R) (ON 1990): statements of intent (by a party who’s not at trial) are admiss. as direct evid. of declarant’s state of mind + circum. evid. that she
acted in acc. with her intentions
(vi) testimony from prior crim. proceedings
R v. Potvin (SCC 1989): evid. given at prelim. inquiry can be admitted at trial (when witness is no longer avail./willing), if accused had opp. to cross-ex.
E. relationship between the principled approach and the traditional exceptions
R v. Starr (SCC 2000): evid. of state of mind or present intention can’t be made under circums. of suspicion or be used to show someone else’s state of
mind or subseq. conduct
 reformulation in R v. Mapara
R v. Khelawon (SCC 2006)—TEST; no more distinction between ‘intrinsic’ and ‘extrinsic’ circums. when determ’ing threshold vs. ultimate reliability
PRIVILEGES
A. class privileges
(i) solicitor-client privilege (communic. btw s+c, involving legal advice, intended2Bconfid.) + exceptions (facilit’ing crim. purpose; public safety; innoc.@stake)
Pritchard v. ON (Human Rights Commission) (SCC 2004): opinion from staff counsel is legal opinion; enabling statute doesn’t require full disclosure
Smith v. Jones (SCC 1999): lift s+c priv. if facts raise concerns that identifiable person/group is in imminent danger of death or serious bod./psych. harm
R v. Brown (SCC 2002): innoc. at stake is very narrow exception—see test
(ii) informer privilege (3 exceptions: informer is material witness or agent provoc., or accused wants to show unreasonable search under Charter s. 8)
R v. Liepert (SCC 1997): strongest privilege; if tip is anon., shouldn’t edit+disclose unless accused falls within innocence at stake exception
B. case-by-case privilege
Slavutych v. Baker (SCC 1976): tenure form subject to privilege; Wigmore test
R v. Gruenke (SCC 1991): no class priv. for relig. communications; Wigmore test (here, wasn’t intended to be confidential)
M(A) v. Ryan (SCC 1997): Wigmore test; partial privilege is possible (here, balancing plaintiff’s privacy against defendant’s right to make full defence)
C. privilege against self-incrimination (prevent accused from being conscripted against self)
CEA s. 5; Charter ss. 11(c), 11(d), 13; Charter s. 7. [use immunity, etc.]
Dubois v. The Queen (SCC 1985): if you don’t testify at second trial, (voluntary/accused) testimony from first trial can’t be used against you
R v. Henry (SCC 2005): if you testify at second trial, testimony from first trial (as accused, so voluntary) can be used to impeach your credib. or incrim.
 see rubric of Charter s. 13 protection
COMPETENCE AND COMPELLABILITY OF WITNESSES
A. accused’s competence to testify
R v. Noble (SCC 1997): accused’s silence can’t be used against him; problem: judge can’t comment to jury on accused’s silence (but defence can)
B. spousal incompetence (it’s the recipient of the communication who’s the holder, and who can waive)
CEA s. 4 [spouse can be compellable if accused is charged with certain offences; spouse can’t be compelled to disclose communics. made in marriage]
R v. Salituro (SCC 1991): irreconcilably separated spouses can testify against each other; spousal incompet.: marital harmony, block ‘natural repugn.’
R v. Couture (SCC 2007): spousal incompetence also applies to out-of-court statements made by spouse, during marriage, to police
C. general competence of witnesses
CEA s. 16 (witnesses 14 or older—mental capacity); CEA s. 16.1 (witnesses under 14)
R v. Marquard (SCC 1993): maj.: need, at time of trial, capacity to observe/interp., recollect, communicate; diss.: just need to understand/answer Qs