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Lee Sesh Summer 2009 Evidence
Contents
Introduction to the Law of Evidence: Sources, Objectives & Trial Context ............................................ 3
Evidence: Sources, Objectives, and Trial Context ................................................................................... 3
Burdens of Proof = onus + standard ..................................................................................................... 4
How to explain “BRD” to jury? ............................................................................................................ 4
Trial Process ......................................................................................................................................... 4
COMPETENECE and COMPELLABILITY of witnesses ...................................................................... 5
Prerequisites to a witness testifying at trial .......................................................................................... 5
RELEVANCE........................................................................................................................................... 6
CHARACTER EVIDENCE ..................................................................................................................... 7
Exceptions to the General Rule of Exclusion ....................................................................................... 7
Ways in which A can adduce “good character” evidence .................................................................... 8
How can the Crown rebut? ................................................................................................................... 9
Similar Fact Evidence (Character of the Accused Cont’d) ...................................................................... 9
Similar Fact Evidence in Civil Cases ................................................................................................. 11
The Character of 3rd Party Suspects and Victims ................................................................................... 11
Identity – Character of 3rd Party Suspects(McMillan) ........................................................................ 11
Affirmative defences – Character of Victims (Scopelliti) .................................................................. 11
BUT if A introduces bad character of other person, A’s character is put in issue ............................. 11
Complainants in Sexual Offences ........................................................................................................... 12
s. 277 ................................................................................................................................................... 12
s. 276 ................................................................................................................................................... 12
CREDIBILITY ....................................................................................................................................... 12
Supporting Your Own Witness’s Credibility (“Oath Helping”) ............................................................. 13
1. Re-direct examination .................................................................................................................. 13
2. Expert Evidence ........................................................................................................................... 13
3. Prior Consistent Statements ......................................................................................................... 13
4. General Reputation for Veracity .................................................................................................. 14
Impeaching Creditability ........................................................................................................................ 14
1. Cross-Examination ...................................................................................................................... 14
2. Evidence of Prior Inconsistent Statement .................................................................................... 15
3. Impeaching w/ Expert Evidence .................................................................................................. 15
4. Impeaching w/ Prior Convictions (s. 12, s. 666, Corbett) ........................................................... 15
5. Impeaching w/ Evidence of Bad Reputation ............................................................................... 16
Impeaching your own Witness, Children and “Unsavoury Witnesses” ................................................. 16
Impeaching your own Witness ........................................................................................................... 16
I. S. 9(1) ....................................................................................................................................... 17
II.
S. 9(2) ................................................................................................................................... 17
Unsavoury Witnesses (Vetrovec Warning) ........................................................................................ 17
HEARSAY ............................................................................................................................................. 17
Is evidence being offered for truth of its contents? ............................................................................ 18
Hearsay by Implied Assertions ........................................................................................................... 18
Principled Approach to Hearsay ............................................................................................................. 18
Principled Approach to Hearsay ......................................................................................................... 19
Categorical Exceptions to Hearsay ......................................................................................................... 19
Relationship b/w Principled Approach and Categorical Exceptions .................................................. 19
E.g. of PA Exception: Prior Inconsistent Statements ......................................................................... 20
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Lee Sesh Summer 2009 Evidence
Traditional Hearsay Exceptions .......................................................................................................... 20
Exception 1: Prior Judicial Proceedings (Prior Testimony) ............................................................... 20
Common Law Approach................................................................................................................. 20
Statutory Approach in Criminal law ............................................................................................... 21
Statutory Approach *Civil* Proceeding ......................................................................................... 21
Exception 2: Statements Made in the Course of Duty / Business Records ........................................ 21
Statutory Approach ......................................................................................................................... 21
Justifications for Exception ............................................................................................................ 22
Categorical Exceptions to Hearsay Continued ....................................................................................... 22
Exception 1: Excited Utterances / Spontaneous Declarations ............................................................ 22
EXCEPTION 2: STMNTS OF PRESENT-SENSE IMPRESSION (US exception, not recognized in Cda) ....... 22
Exceptions 3: Statements of Present Mental State ............................................................................. 23
Exception 4: Statements against Interest (Pecuniary and Penal) ........................................................ 23
Test to admit statements against penal interests ............................................................................. 23
Exception 5: Dying Declarations ........................................................................................................ 23
OPINION EVIDENCE ........................................................................................................................... 24
Lay Opinions: Conditions for admissibility (Graat): ..................................................................... 24
2. Expert Opinion............................................................................................................................. 24
3. Novel Science .............................................................................................................................. 25
CLASS PRIVILEGE .............................................................................................................................. 26
Introduction to Privileges ................................................................................................................... 26
Certain factors to keep in mind:...................................................................................................... 26
2. LITIGATION PRIVILEGE ......................................................................................................... 27
CASE-BY-CASE PRIVILEGE .............................................................................................................. 28
Introduction......................................................................................................................................... 28
Production of 3rd Party Records .............................................................................................................. 29
PUBLIC INTEREST IMMUNITY and CABINET SECRECY ............................................................ 30
1. Public Interest Immunity and National Security ......................................................................... 30
New Provision: s. 38.13 .................................................................................................................. 31
2. Cabinet Secrecy ........................................................................................................................... 31
S. 39(1) of CEA............................................................................................................................... 31
PRIVILEGE AGAINST SELF-INCRIMINATION .............................................................................. 32
1.
s. 5 of CEA (Note: s. 5 has been superceded by s. 13 Charter) ........................................... 32
ABORIGINAL LAW and evidence ....................................................................................................... 33
Proving Aboriginal Rights .................................................................................................................. 33
Evidentiary Issues in Aboriginal Litigation ........................................................................................ 33
CONFESSIONS and STATEMENTS OF THE ACCUSED – Common Law ...................................... 34
CL Confessions Rule ...................................................................................................................... 34
Statements of an Accused – The Charter ................................................................................................ 35
Scenario 1 → What if A Speaks? ....................................................................................................... 35
Scenario 2 → is there a limit on police questioning after A has spoken w/ counsel? ........................ 36
Scenario 3 → if A’s Charter rights are breached, is the statement excluded?.................................... 36
New Test for s. 24(2) – R v. Grant ..................................................................................................... 37
Scenario 4: If evidence is excluded, can it be used for other purposes? ............................................ 38
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Lee Sesh Summer 2009 Evidence
Introduction to the Law of Evidence: Sources, Objectives & Trial Context
General approach to Evidence:
1. Relevant evidence is generally admissible
- Logical → whether evidence tends to prove a fact
- Materiality → is that fact at issue in the trial?
2. However, relevant evidence whose probative value is outweighed by its potential for prejudice is not
admissible → intrinsic exclusionary rule
3. The law can create reasons for excluding otherwise relevant, admissible evidence for policy or process
reasons totally unrelated to its value or potential use → extrinsic exclusionary rule
Must ask: What is the principled function of this rule?
 What good does it pursue or what evil does it address?
 Values: Truth, Fairness, Efficiency, Policy
 Charter principles
Circumstantial vs. Direct Evidence
- Circumstantial → evidence provides some information which might suggest/allow inference that a
fact is true or not – e.g. Watson – “chain of relevance”
- Direct → information directly says whether a fact is true or not
EVIDENCE: SOURCES, OBJECTIVES, AND TRIAL CONTEXT
Definition: means by which any alleged matter of fact is established or disproved (Blacks Law Dict.)
Objective: to discover the truth BUT in a fair and just manner
Common law approach: use of strict rules to determine whether evidence is admissible (contrast Continental
approach where everything is put before trier of fact)
o Free proof principle  all information should go to the jury and TJ actively participates in
this process
- High degree of complexity → an array of disconnected rules developed over time; gap b/w common
sense and CL approach
- Prophylactic → fixated on keeping out bad information
- Dedication to structuring of evidence → CL controls HOW reasoning should happen (depicts what
uses can be put to evidence)
Admissibility vs. Weight
- Rules of evidence mostly about the former – whether evidence can come in
o Question of law → decided by the judge
o Issues regarding “use” of evidence addressed under admissibility
- Weight is decided upon by trier of fact (jury or judge)
o Question of fact → how much reliance is placed on evidence?
Sources of Evidence Law
- Common law (judge-based)
- Statutes: Criminal Code; Canada Evidence Act
- Const.: s. 7 of Charter (right to life/liberty, not to be deprived unless in accordance w/ PFJ)
- Aboriginal
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Burdens of Proof = onus + standard
-
Onus = who has to prove something; standard = how much proof required
1. Evidentiary Burden  burden to raise enough evidence to bring issue into play
- Criminal – burden is very low – need to just point to “some” proof
o Onus on Crown to raise any issue it wants tried (i.e. competence)
o Onus on accused to bring an air of reality to defence
- Civil – burden is very low – parties must point to “some” evidence
2. Persuasive burden  ultimate burden that must be met
- Criminal – onus on Crown to prove beyond a reasonable doubt all elements of the offence (A’s
guilt)
o Criminal higher b/c of presumption of innocence – liberty of a person is at stake and high
stigma associated with being found guilty of a crime
- Civil – normally onus on P to prove on balance of probabilities all elements of action
o Standard may be ↑ in some cases b/c of gravity (i.e. quasi-criminal misconduct)
HOW TO EXPLAIN “BRD” TO JURY? → Case: Lifchus
•
•
•
•
•
It is inextricably intertwined w/ the presumption of innocence
the burden lies with the prosecution and never shifts to A
It is not based on sympathy or prejudice, but rather on reason and common sense
Doubt ≠ frivolous or imaginary, but rather is logically connected to the evidence or lack thereof
Does not require proof of absolute certainty; but requires more than probable guilt
Things to Avoid in Explaining BRD to jury:
• Not an ordinary expression but something distinct to criminal law
• Not the same as the way that we decide important decisions in our everyday lives
• Not a “moral certainty”
• Must ≠ throw in other adjectives like “serious” or “substantial” or “haunting doubt”
• Do not instruct jurors that they can convict if they are “sure” that the accused is guilty without first
giving them a proper definition of “beyond a reasonable doubt”
Trial Process
1. Motions
- Whether evidence should be admitted or excluded – mini trials or “voir dires” – outside of the main
trial (occurs in the beginning or any time during the trial)
o If qualification issue (i.e. experts), then jury can stay
o If evidence may lead to prejudice, then jury leaves
2. Crown or plaintiff’s case in chief
- Opening statement
- Case in chief – offers all of evidence for case (comes through witness on a stand)
o Direct examination by party offering witness – bound by 2 rules:
 Relevant
 Cannot lead evidence – i.e. ask questions you know the answer to
o Cross examination
 If new issues arise, then plaintiff or Crown may re-direct
 There may also be an opportunity for sur-rebuttal (accused or defendant)
o Rinse and repeat
o Crown or plaintiff closes case
3. Motions for directed verdict
- Accused or defendant have a right to claim that there is no evidence
o Insufficient evidence motion (civil)
o Motion for a directed verdict of acquittal (criminal) i.e. failing to identify accused
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4. Defence’s case in chief
- Opens; Case in chief (same order as plaintiff/Crown); Closes
5. Crown/Plaintiff can reopen
- Discretionary procedure used only if something has come up that needs to be addressed
6. Closing statements
- In civil, Defendant closes; in criminal, A closes unless A offered evidence, then Crown
COMPETENECE AND COMPELLABILITY OF WITNESSES
All facts in issue must be proven through the oral evidence of witnesses
Prerequisites to a witness testifying at trial
1. Competent → can the person testify?
- Question of law determined by judge
- Contrast: compellable → can witness be forced to testify?
2. Swear an oath (or give solemn affirmation)
- Under the CL had to swear an oath to God in order to give witness in Court.
- Now s. 14 of the CEA (s. 20 of BCEA) allows for solemn affirmations to be used instead
o Requirement of some formal indication that witness will tell the truth  S. 13 of CEA
(power to administer witness to take an oath)
I. Competency of children and adults of limited mental capacity
- Concerns (Kendall)
o Their capacity to observe, recollect, and understand questions and frame intelligent
responses; moral responsibility
- If challenging capacity:
o s. 16 → adults;
o s.16.1 → children
o NB: s. 5 of BC Evidence Act, same procedure for children/mentally challenged adults –
applies to provincial matters
Competency of Children under 14: s. 16.1
- (1) presumed to have capacity;
o (4) onus on challenger to prove otherwise;
o Test: (3) able to understand and respond to questions? (Dissent, Marquard)
- (2) no longer required to swear an oath/give affirmation, but (6) must promise to tell truth
- (8) evidence has same weight as sworn evidence
o s. 16.1(7) → cannot inquire into whether child understands what telling truth means (may
do so when determining weight of evidence during C-E)
- Constitutionality of s. 16.1 upheld: doesn’t restrict accused’s rights b/c safeguards: presumed
innocent, need proof BRD, and ability to cross-examine later – R. v. JZS
Competency of Adults: s. 16
S. 16(5)  competency is presumed thus onus on party challenging to prove there is an issue.
 If threshold is met, court conducts s. 16(1) inquiry:
- Whether individual understands the nature of the oath/solemn affirmation?
o i.e. appreciates what it means to take an oath of affirmation – Case: Khan
 Must understand what it means to tell the truth
- Capacity: is individual able to communicate?
o Communicate = capacity to observe, recollect, and communicate – Case: Marquard
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
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High standard; not just the ability to respond to questions
NOTE: lower standard was proposed by the dissent and was later adopted in s.16.1
amendment (for children under 14), could argue lower standard should apply for
adults of limited mental capacity…
If individual does not understand nature of oath/affirmation but can communicate, then may give
unsworn evidence under a promise to tell the truth (s. 16(3) - same weight as sworn evidence)
If witness does not understand nature of oath and cannot communicate, then cannot testify - (4)
II. Spousal Incompetency
Rationales: matrimonial harmony, “natural repugnance” of compelling a spouse to the other’s condemnation Couture
Competency and compellability of spouses
- Under CL spouses were not considered competent
o S. 4(1): in criminal trials both the accused and the spouse are competent for the defence
- Exceptions to s. 4: Spouses are competent for the crown when:
o 4(2) → if A charged w/ sexual crimes/kidnapping/offences related to children
o 4(5) → CL exceptions preserved (includes exceptions ct creates) and spouse is competent to
testify about their person, liberty and health – this is important when dealing with abusive
relationships  see Salituro
- s. 4(3)  privilege
o Even though compellable and competent to Crown, communications during marriage may
be protected by privilege
o Privilege held by hearer – thus if A says anything to spouse (hearer), this is protected by
privilege
o Privilege may be pulled back if exception arises (same exceptions for S-C)
 Fact that offence is one listed in (2) is not enough to pull back privilege
Who is a spouse?
- Irreconcilably separated? NOT a spouse, compellable – Salituro (b/c no matrimonial harmony to
uphold)
- Spouse’s person, liberty, health, or that of her children’s threatened by A? then spouse is
competent and compellable – Salituro
- Sham marriage? NOT a spouse, compellable
o BUT just b/c a marriage happens between a preliminary hearing and the trial does not mean
it is a sham  spouse not compellable – Hawkins
o Ditto if reconcile mid-trial, even if statement made prior to trial but after marriage and
separation - Couture
- Same-Sex Marriage? Likely not compellable CEA s. 4(3) may seem problematic (“husband and
wife”) but French translation makes no discrimination; superior in light of Charter values of equality
- Common Law Spouses? Likely are competent and compellable – Duvivier and Thompson
o HOWEVER: policy: growing trend of C/L spouses may support applying C/L rule to them;
counter-policy too many ppl would be no longer compellable…
Civil Trials: BC Evidence Act ss. 6 & 7: both sides and their spouses are competent and compellable
III. Accused
- To the Crown: not competent/compellable b/c s. 11(d) of Charter
- To the Defence: Competent via CEA s. 4
- If A chooses not to testify, silence cannot be used against him during trial – CEA s. 4(6)
RELEVANCE
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Overarching rule of evidence
Everything that is relevant to a fact in issue (materiality), is admissible unless there is a legal reason for
excluding it (Morris)
Criminal trials – the standard of proof is beyond a reasonable doubt. This is because of the presumption of
innocence enshrined in s. 11(b) of the Charter. R v. Lifchus
Civil trials – the standards of proof is a balance of probabilities. This is because there is no presumption of
innocence in civil actions. FH v. McDougall
Evidence is Admissible if:
1. The evidence is Relevant to a fact in issue
i) Relevance → factual significance (based on logic and experience R v. Collins)
o Does the evidence make a fact in issue make it more or less likely to be true
o Does the evidence render the probable inference more or less probable
o Common sense based on experience
ii) Materiality → legal significance: is that fact at issue in the trial
o Criminal – constituent elements of an offence
o Civil – what is raised in pleadings
2. AND there is no exclusionary rule applicable
a. extrinsic exclusionary rule  when the law creates reasons for excluding otherwise relevant,
admissible evidence for policy or process reasons
b. intrinsic exclusionary rule  probative value must outweigh prejudicial effect
Direct evidence – evidence which if believed resolves a matter in issue
Circumstantial evidence – evidence which tends to prove a factual matter by proving other events or
circumstances from which the matter in issue can reasonably be inferred.
R v. Watson – Watson is charged with aiding and abetting murder. Crown tries to adduce evidence of habit of
always carrying a gun.
- Notion of chain of relevance – whether fact A makes the existence of fact B more probable 
evidence doesn’t have to be relevant to a particular element of the crime, it can be relevant to parts
of the crown or defence theories
- Relevance needs to be assessed by the case in the entire context
CHARACTER EVIDENCE
Definition: evidence that suggests that b/c of a particular trait/habit of a person, he or she is more or less likely
to have acted in a particular way
- can be directly in issue (element of crime) or relevant to conduct or credibility
Forbidden/Prohibited Inference: Character evidence that only shows that the A is the type of person likely to
be guilty is inadmissible (Rowton: PE would be too great; Handy: bad character ≠ a crime)
General rule: evidence offered to show the bad character of A is generally inadmissible (even though evidence
may be relevant)
Exceptions to the General Rule of Exclusion
1. Where directly relevant to an issue in the trial – evidence is admissible
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eg. dangerous offender – B/c of who A is (based on past behaviour), so dangerous that we should
keep them in custody
2. Where relevant to credibility w/ an incidental effect on character (dual purpose)
- eg. A states that he was not at the scene of the crime but witness takes the stand and states that A
visits brothel on that street at that time
3. Similar fact evidence – see below
4. For the sole purpose of suggesting that A is a person of bad character when A puts their good
character in issue
- Open door exception
Open Door Exception: Bad Character evidence may be admissible if A puts his character in issue
- TEST: A opens the “door” when they expressly/implicitly assert that they could not have done the
things alleged against them b/c they are a person of good character
o e.g. Asserting that A is a person of integrity and of honest moral disposition (“like a company
should be run, legally”) – Case: McNamara
- Rationale: Crown is not offering evidence for the FI, but merely a rebuttal (fairness – Rowton)
- Crown’s Rebuttal:
o no limit to what Crown can admit once doors open, but subject to PV/PE balance
o no trickery: Crown can’t, in cross-exam, ask accused Qs on character to force the issue
(Bricker); ethical obligations not to prosecute but to administer justice
o Crown’s rebuttal can’t be used for guilt b/c of the forbidden inference but can be used generally
for credibility (general character + lying on the stand) – McNamara
Ways in which A can adduce “good character” evidence
1. General reputation evidence
- Witness cannot give their personal opinion of A or specific acts of A
o Evidence of witnesses stating that A is of moral character inadmissible; to adduce reputation
evidence, it must be the opinion of the residential community overall –Rowton
o Scope of Community: evidence of reputation w/in business community admissible b/c
“community” includes any community that knows def well – Lavasseur (alleged theft at
workplace where 15 coworkers = witnesses)
2. Accused’s own testimony
- Includes incidents of specific prior good acts – McNamara
o However, Crown cannot induce/trick A or any witness to raise evidence of A’s good character –
Baxter
3. Expert Character Evidence
- A can, through expert psychiatric evidence, adduce information that he had a distinctive psych. trait that
the real offender would not have had (or vice versa)
- Initial Threshold (Mohan): to even be considered potentially admissible, psychiatric evidence must be:
o (1) relevant to an issue,
o (2) of appreciable assistance to the trier of fact (PV), and
o (3) would be otherwise unavailable to layperson
- Admissibility Test: can be admitted when judge is satisfied as matter of law that perp or accused has
distinctive behavioral/psych characteristics such that a comparison of one with the other would be of
material assistance in determining guilt/innocence – Mohan
o consider the crime and the disposition of the def to determine value of evidence
4. Attacking someone else’s character (e.g. character of a third party suspect of victim) – see below
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Stating that X is a person of bad character is inferring that you are person of good character
HOW CAN THE CROWN REBUT?
Refer to “Open Door Exception” (above): when A expressly/implicitly assert that they could not have
done the things alleged against them b/c they are a person of good character …
1. General reputation evidence
2. Cross examination, including on prior bad acts
- B/c A invited inference that he was a good person, Crown entitled to C-E him on previous charge of
income tax evasion – McNamara
3. Prior convictions
- s. 666 of Criminal Code → once A’s character is put in issue, criminal record is open to Crown
- s. 12 CEA: any witness may be questioned on prior convictions (but up to ct discretion, and solely a
credibility provision)
4. Expert character evidence
- Crown can introduce expert evidence in a similar way that A can under Mohan – Tierney
SIMILAR FACT EVIDENCE (CHARACTER OF THE ACCUSED CONT’D)
Defn: Despite forbidden inference for character evidence (ie. A is type of person to commit offence), similarity
b/w prior bad acts and current charge goes to PV
- starts proving something other than character  circumstantial evidence to guilt (eg. identity,
MR, AR, etc.)
- other uses: rebut defence of legit association for honest purposes - Guay
GR: Evidence of prior bad acts are presumptively inadmissible (falls under Bad Character evidence) unless
Crown proves on a balance of probs that in the context of the particular case, PV>PE – Handy
- rule not restricted to evidence of “similar” facts; applies in other circumstances,
eg. evidence that the A tampered with witness (admitted) goes to witness’ credibility
and perp identity - Mahalingan
STEPS FOR SFE ANALYSIS
1. Identify non-character issue
2. Evaluate PV of the SFE
3. Evaluate the PE of the SFE
4. Balance PV against PE
5. Charge to jury re permissible and impermissible (character) uses of SFE
1. Identify Non-Character Issue
-
Must prove something other than character  circumstantial evidence to guilt
E.g. (non-character points):
o Mens rea → Makin
 Evidence of other bodies found on A’s property admitted to prove that deaths in current
charge could not be accidental (as argued by Defence)
 Establishes that offence is not a mere coincidence; it would be an insult to common
sense to deem it otherwise
o Actus reus → Smith
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
o
Evidence of ex-wives being found dead in bath admissible b/c the similarity b/w current
charge and previous acts suggested that it was objectively improbable that this was
merely a coincidence.
 Admissible for the purpose of showing the design of A – that the acts were not an
accident
Identity → Straffen
 Fact that A had admitted to killing other children in exactly the same manner as current
charge prevented court from not admitting evidence
 Also: Arp, Mahalingan
2. Assessing PV – Handy (rape similar to allegation from ex-wife but potential collusion supported new
trial; issue: credibility of claimant consent under AR)
- degree of connection (nexus) b/w prior act and current offence
o Collusion can undermine SFE’s nexus
 test: if there is an air of reality to alleged collusion, Crown must show on balance of
prob otherwise
o Spectrum: General Propensity (inadmissible)  --- Situation-Specific Propensity
(Admissible if PV>PE)
o Factors: Proximity in time, similarity in detail, # of occurrences, intervening events,
circumstances, etc.
o the nexus of SFE for a gang is insufficient to implicate an individual member - Perrier
3. Assessing PE → 2 components
- Moral prejudice → potential for jury to slip into Forbidden Inference
o E.g. past act is a lot worse, would lead jury to convict not on current charge
- Reasoning prejudice → potential for jury to become distracted with past acts
o E.g. past act would draw too much attention or be too involved, thus distracting jury wrt current
charge
4. Balancing PV vs. PE → is it objectively improbable that this could be a mere coincidence?
- If admitted, b/c of PE, can only use evidence to prove non-character issue (FI) and could not infer
that A is a bad person who is likely to have committed offence – Arp
5. Charge to jury re permissible and impermissible (character) uses of SFE
- “Arp Charge” – special jury instructions when admitting SFE (p. 498, para 80):
a. Judge instructs jury that manner of commission of the offense is so similar that it is likely they
were committed by same person
b. Judge reviews similarities
c. If conclude that likely same person who committed both offenses then evidence on each of those
counts should instruct them on whether the accused committed offense in Q
d. Accepts evidence of similar acts, it is only relevant for purpose which it is admitted
e. FI warning cannot infer that A is a bad person therefore committed offence
f. Do not conclude that it is likely that the same person committed similar offenses, then must
consider evidence of each offense separately and put out of their minds the evidence on any
other counts.
g. BRD
SFE Application: Handy (Crown failed to meet burden)
- PV → broad similarity b/w events (initial consent but retracted with increasing violence); high # of past
occurrences; short proximity
o Dissimilarities → long term (ex-wife) vs. short term (C) relationship
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o Other → potential for collusion (ex-wife had spoken to C)
PE: jury may lean towards FI, may be appalled by pattern of prior sexual assault and convict based on
this alone
Similar Fact Evidence in Civil Cases
General rule: evidence that shows the mere character of a person is not admissible by either side during
litigation (more strict)
Rationales:
- Character evidence is inefficient and costly – each party could have an unlimited number of witnesses
introduce evidence of this kind
- Distracts court from main issue at bar
Exception: “Handy-lite” – Mood Music (prior acts of music plagiarism admissible)
- Rationale → more efficient
- Evidence must be relevant (logically probative) & must meet a relaxed SFE std
- Admission must not be oppressive or unfair to other side and other side must have had notice
THE CHARACTER OF 3RD PARTY SUSPECTS AND VICTIMS
General Rule: bad character evidence of 3rd party is admissible when it is relevant to an issue at bar
- Not as concerned w/ non-A witnesses since no presumption of innocence or potential for wrongful
conviction
- There is always balancing of PV against PE
When is it relevant? When A argues that 3rd P is the kind of person likely to commit crime
IDENTITY – CHARACTER OF 3RD PARTY SUSPECTS(MCMILLAN)
-
Suggests that A is not the person who committed crime but rather another party – McMillan
o Req: link b/w 3rd party and offence (eg. evidence of opportunity, motive) and must be
Relevant (eg. raising doubt wrt identity of perp, that 3P is kind of person likely to commit)
 E.g. Wife had opportunity and after child died, admitted that she did not want the baby
anyways
AFFIRMATIVE DEFENCES – CHARACTER OF VICTIMS (SCOPELLITI)
-
A asserts a defence that depends on bad conduct of 3rd P – e.g. self-def, duress, provocation
o Evidence wrt 3rd party’s previous threatening and violent acts against other people (not A)
admissible b/c relevant to proving A’s claim of self-defence – Scopelliti
 req air of reality to theory before the bad character evidence can be introduced
 PE: should instruct jury not to decide based on what victim deserved
BUT IF A INTRODUCES BAD CHARACTER OF OTHER PERSON, A’S CHARACTER IS PUT IN ISSUE
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If A introduces bad character of another person (e.g. suggests that 3rd P is more likely to have committed
offence), A has put their own character into issue by implicitly stating that A is of a better character than
3rd P
o A asserting that he was a person of normal makeup and that 3rd P was not. Thus Crown entitled
to prove that both A and 3rd Party were psychopaths – McMillan
o Once evidence of 3rd P’s previous bad acts are admitted, bad character of A (i.e. that he has
propensity to overact) is fair game for Crown – Scopelliti
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COMPLAINANTS IN SEXUAL OFFENCES
Historically: past sexual conduct (reputation) of C was admissible b/c relevant to consent/credibility
- problems: perpetuates stereotypes, rape myths, prejudices victims, promotes under-reporting
Common law: Darrach
- Past sexual acts not relevant to (no logical link) propensity to consent or worthiness of belief (“twin
myths”) – thus inadmissible unless:
o Evidence is not related to twin myths, not used by reason of its sexual nature, and has
significant PV which is not substantially outweighed by PE (last part from Seaboyer)
Criminal Code → s. 276/277:
S. 277 → evidence of sexual reputation, whether general/specific, is not admissible for the purpose of
challenging/supporting creditability of C
S. 276 → two step process: must pass (1) and (2)
-
-
(1) Evidence that C has engaged in sexual activity ≠ admissible to support inference that by reason of
sexual nature of that activity, C more likely to have consented or is less worthy of belief (i.e. that she
did in fact consent)
 If evidence passes this part then…
(2) To admit, TJ must assess whether evidence has significant PV that is not substantially outweighed
by PE
o s. 276(2)(c) – Evidence must only be of “specific instance(s) of sexual activity”; and
 Note: contrast with reputation evidence  only general reputation admissible…
o (3) Relevant to an issue at trial
 TJ considers factors listed in s. 3 to balance PV against PE:
 Interests of justice, incl. the right of A to make a full answer and defence;
 Society's interest in encouraging the reporting of sexual assault offences;
 Whether there is a reasonable prospect that the evidence will assist in arriving at a
just determination in the case;
 Need to remove from fact-finding process any discriminatory belief/bias;
 Risk that the evidence may unduly arouse sentiments of prejudice, sympathy or
hostility in the jury;
 PE to C’s personal dignity and right of privacy;
 Right of C and of every individual to personal security and to the full protection
and benefit of the law; and
 Any other factor that TJ considers relevant.
CREDIBILITY
Credibility is at issue for every witness who takes the stand
- Definition: the quality, capability, or power to illicit belief
- Relates to the issue of weight → how much weight should be placed on evidence
- Includes both issue of truthfulness and quality of perception and recollection
- Appellate courts generally defer to trial courts assessment of credibility b/c they get to see their
demeanour on the stand (Buhay), but can reverse when unreasonable (R. v. W.(R.))
Are they telling the truth? Always relevant
Are they a truthful person? Relevant, but often not allowed b/c would make trial too long
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Direct examination → job is to elicit info that supports your case & to get trier of fact to believe your witness
b/c she seems credible –
- May recover/bolster credibility in re-direct examination
Cross-examination → job is to undermine creditability of other side’s witness; create a reas doubt, etc
3 ways creditability comes into play:
1. Support your own witness’ creditability
2. Impeach creditability of other side’s witness
3. Other creditability issues
SUPPORTING YOUR OWN WITNESS’S CREDIBILITY (“OATH HELPING”)
General rule: lawyers are not allowed to put questions or lead evidence solely to bolster the credibility of their
own witness (aka: rule against “oath-helping”)
Rationales:
- Don’t want series of witnesses testifying about a person’s credibility only (compurgation) – leads to
jury confusion and prolonged trials
- Presumption that a competent witness is also credible
- Determination of credibility is duty of jury (trier of fact)
Exceptions: You can question or lead evidence to bolster your witness’ credibility through:
1. RE-DIRECT EXAMINATION → respond to sense of unreliability generated during C-E / clear up points of
confusion (normal process of trial)
- Example: ask for more details, motivations, etc.
2. Expert Evidence
-
-
3 Requirements for Admitting Expert Evidence – Marquard
i. Relevant: The witness must be an expert in the particular area of human conduct in question
- Must be relevant to (i.e. human conduct and psychological/physical factors helpful to
assess) but not directly about (i.e. personal opinion on) witness’ credibility
ii. Necessary: The evidence must be of the sort that the jury needs because the problem is beyond
their ordinary experience, and
- Most important!
iii. Jury Charge: jury must be carefully instructed as to its function and duty in making the final
decision without being unduly influenced by the expert nature of the evidence
Application:
o Evidence offered by doctor that C was not imaginative enough to concoct stories not
admissible b/c it was a personal opinion, as opposed to general information of C’s credibility –
Kyselka
o B/c Dr. not only explained the tendencies of children to lie to people of authority, but also
commented that it was her personal opinion that D’s second account of the facts was more
likely to be true, she crossed the line b/w expert evidence on human behaviour and assessment
of credibility of witnesses – Marquard
3. Prior Consistent Statements
-
Generally inadmissible b/c it looks like “oath helping” and may not be helpful (i.e. witness could be a
consistent liar)
Exception 1: to support witness’ prior identification of A or another witness
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Exception 2: to rebut allegation of “recent fabrication” (other than in a sexual assault)
o If opposing party suggests that your witness concocted story on the stand (and thus ≠ be
believed), PCS admissible to rebut allegation -- e.g. Giraldi
o Allegation of recent fabrication ≠ have to arise from C-E but rather, may be reasonably implied
by or explicit to jury – Giraldi
o While PCS is admissible to prove that a story was not recently fabricated (i.e. b/c of trial),
doesn’t mean that story is true (reliable) – Stirling
 PCS not admissible for truth of their contents  just shows that witness would not
make something up b/w event and trial
Exception 3: Narrative – if it helps to explain the sequence of events that took place
o Admissible if PCS is necessary to help Trier of Fact understand the way in which the events
happened
o However, TJ cannot rely on PCS (ie. on its truth) to corroborate C’s testimony at trial and jury
must be told that they should not use the PCS to confirm the truth of the testimony – Dinardo
Note: Doctrine of recent complaint (relates to exception 2)  abolished by s. 275 CC
o CL – PCS of complainants automatically admissible b/c there was a requirement of recent
complaint (complainant had to come forward ASAP or TJ could tell jury that they could infer
from her failure to do so that she was lying)
o Now – C can still be asked about delay in reporting and C can respond w/ PCS (since Defence
implying recent fabrication)
4. GENERAL REPUTATION FOR VERACITY (applicable to A only to ensure right to full A&D)
-
A can call witness to testify that A has a general reputation for veracity in the community
IMPEACHING CREDITABILITY
1. CROSS-EXAMINATION  main way in which creditability is impeached
** Importance of PMNS in C-E**
Perception: Power of observation
Memory: Alcohol? Drugs? Long time ago?
Narration: Difficult articulating story, confusing inferences with facts (what exactly they saw)
Sincerity: Demeanour – how do they react to being questioned? Are they evasive?
Limitations (Lyttle)
- Questions must be relevant (logical and material)  no fishing expeditions
- Counsel cannot resort to misrepresentation or be too repetitious or mislead
- Question must be asked on good faith basis
o However, question does not require evidence to support it in order to be asked
Duty to C-E Witness when you Plan on Impeaching their Credibility (Browne v. Dunn)
- If somewhere in your case, whether through another witness or through other evidence or in final
address, you will be suggesting that another witness is mistaken or lying (impeach creditability), you
MUST direct witness’ attention to this by appropriate questions during C-E
o This is done to give witness the opportunity to explain their ambiguities/ inconsistencies
- What if you fail to do this?
o Recall witness in order to give witness the opportunity to address this point
o If not able to recall witness, TJ will instruct jury that while it heard evidence of an
inconsistency, failure of counsel to properly put issue before witness results in perhaps little
weight being put on evidence of inconsistency
*Collateral Facts Rule* → bar on introducing extrinsic evidence on C-E to show an inconsistency
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Rule: in adducing extrinsic evidence on C-E, counsel is limited to proving inconsistencies wrt substantial
issues in case or major issue of creditability
- If question wrt collateral matter is asked and you think answer is dishonest or W mistaken, response ≠
be contradicted w/ extrinsic evidence → counsel is stuck with that answer - Rafael
- TJ decides whether issue is substantial to creditability
- Rationale: to keep trial focus on important issues
Collateral Facts: Tests (Consider both!)
1) The Wigmore Test: Could the fact, as to which the error is predicated, have been shown in evidence for
any purpose independently of the contradiction? This test includes facts relevant to a material issue and
facts that go to discredit a witnesses’ credibility.
2) The Phipson Test: Proof may only be given on matters relevant directly to the substantive issues in the
case. Proof of contradiction going to credibility is prohibited unless it falls within these exceptions:
(a) bias, interest or corruption,
(b) previous convictions,
(c) evidence of reputation for untruthfulness, or
(d) expert evidence on problems that could affect the reliability of the witnesses’ evidence
3 kinds of impeachment – Case: A.G. v. Hitchcock
a) Evidence that relates to a substantive issue and a credibility issue not collateral
b) Evidence that ≠ relate to substantive issue but relevant to credibility and is more than a mere
contradiction not collateral
c) Evidence relevant to creditability but is a mere contradiction is collateral
2. EVIDENCE OF PRIOR INCONSISTENT STATEMENT → information is useful; however, need to play fair by
giving witness the chance to explain themselves; goes only to credibility, not truth
 S. 10 – prior recorded statements
i. Witness may be cross-examined as to a previous statement recorded, but if you want to
contradict witness, need to direct witness’ attention to statement first and give them the
opportunity to explain
 S. 11 – prior oral statements
ii. To contradict witness on POS, counsel must first draw witness’ attention to statement in
question (give enough circs to help them remember) and give them chance to explain
 Must give notice to witness before raising PIS – give witness a chance to explain –Browne
3. IMPEACHING W/ EXPERT EVIDENCE → only if evidence is relevant to jury assessment of creditability in a
general way
- Remember: 3 reqs for admitting expert evidence (see “Supporting Your Own Witness’ Credibility”)
- Expert ≠ give personal opinion on creditability of particular witness
o Evidence which shows that W suffers from some disease or abnormality of the mind that may
affect the reliability of their evidence is admissible – Toohey v. Metro Police Commissioner
4. IMPEACHING W/ PRIOR CONVICTIONS (S. 12, S. 666, CORBETT) → relevant b/c amongst the things jury
considers, evidence that shows a manner of life or mode of being are important (Corbett)
- Being offered not to suggest that witness is kind of person to act in certain way (character) BUT rather,
offered to assess whether witness is telling the truth
o If witness is breaking the law, then there is reason to believe that witness may not respect the
process, the trial, their oath, etc. similar to how they don’t respect the law – Case: R. v. Corbett
- If criminal record is introduced, TJ must charge jury that they can still believe witness despite the
criminal record
Application: Non-accused Witnesses
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At CL, could ask witness about prior convictions but collateral facts rule prevented counsel from
contradicting this if witness lied – NOW:
S. 12(1.1) CEA → if witness denies record, opposing party may prove conviction by adducing
certificate of conviction and proof of identity
TJ must provide jury charge that they can use it for creditability but not for character
Application: Accused
A. S. 12(1) CEA → if A takes the stand (but ≠ put character into issue) and denies record TJ MAY order
disclosure of some/all/none of A’s criminal record – Case: R. v. Corbett
o TJ given discretion to balance PV wrt creditability of A against PE wrt prohibited character
inference
o Four factors for TJ’s to consider under s. 12 (Corbett - dissent, adopted by majority):
1. Nature of convictions
 e.g. crimes of dishonesty vs. violence  dishonesty would go to credibility
whereas violent crimes are shocking, not generally relevant to credibility, and
have high PE
2. Degree of similarity on present charge before the court
 if previous conviction for same offence, be careful of forbidden inference
3. Remoteness in time between prior conviction and present charge
 How long ago did first offence occur? How old was A?
4. Conduct of parties at trial
 If A is attacking prosecution, leaves it open to prosecution to inquire into A’s
credibility
 Should err on the side of inclusion rather than exclusion...
- Corbett application (s. 12) is important factor to consider when determining whether A should take the
stand – Rationales:
o Doesn’t infringe s.11(d) [pres. of innocence] b/c jury needs a complete and undistorted picture
o Need to balance A’s interests and the state’s interests (protect integrity of system)
 PFJ to protect integrity of the system itself
B. S. 666 (CC) → if A puts character into issue (i.e. person of good character), then Crown can introduce A’s
criminal record (including the facts underlying the convictions)
o Distinction:
 s. 12 of CEA relates to pure creditability and thus TJ has discretion
 s. 666 of CC relates to character and application is automatic
5. IMPEACHING W/ EVIDENCE OF BAD REPUTATION (available for A only)
Rule: A can impeach a Crown witness by calling another person to testify that witness has bad reputation for
truth telling in community
- However, A’s reputation witness cannot express an ultimate opinion on whether Crown witness is
currently telling the truth – R. v. Clarke
o Must be general (not specific act) and reputation (not conclusion)
o PE will almost always outweigh PV; TJ given balancing discretion but very rare circumstances
where TJ will allow witness to provide their ultimate opinion
- TJ must charge jury that whatever they hear about Crown witness is just another factor to consider –
Case: R. v. Clarke
IMPEACHING YOUR OWN WITNESS, CHILDREN AND “UNSAVOURY WITNESSES”
IMPEACHING YOUR OWN WITNESS
Rule: generally, not allowed to impeach/lead your own witness, b/c as YOUR witness, you have vouched for
their creditability
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s. 9 of CEA → declare witness adverse
- Adversity→ when witness assumes by his testimony a position opposite to that of party calling him (i.e.
changes story, ≠ want to give evidence, reluctant, etc.)
- Counsel CAN lead or C-E witness but cannot make general creditability attacks
2 situations:
I. S. 9(1) → If witness proves adverse (in opinion of court), then may contradict with other evidence or
admit Prior Inconsistent Statement. Can CE at large.
 Wawanesa: Need only show that they are "opposed in interest". Need not prove adversity
before introducing contrary evidence.
- If going to contradict, need to follow Browne rule to let witness know and give
them opportunity to explain.
 CL rule was witness needed to be hostile, which is a higher burden (Coffin)
II. S. 9(2) → if witness gives inconsistent testimony, and counsel has prior written/recorded proof of that
inconsistency, SHORT CUT
o Don’t need to declare witness adverse
o Allows you to C-E witness w/ prior recorded statement that is inconsistent w/ testimony → can
go right ahead and draw attention to inconsistency
 NB: only goes to creditability; truth of stmt depends on hearsay rule
o Inconsistency can then be used as evidence of adversity under s. 9(1) if counsel wants to
impeach witness at large – T.(T.E.)
UNSAVOURY WITNESSES (VETROVEC WARNING)
-
No general “accomplice rule” anymore – HOWEVER, if Crown witness is suspect by reason of being
unsavoury, then TJ may charge jury
o Clear and sharp warning ≠ to adopt witness’ testimony unless supported by other evidence –
Case: Vetrovec v. The Queen
 In situation of jailhouse informers, b/c potential for PE is ↑, TJ should charge jury w/
Vetrovec warning – Case: Brooks
 If very unsavory, might be an error of law not to charge
o TJ may also highlight to jury evidence that may be corroborative
Vetrovec Warning
- Worried about liars, people with incentive to lie (i.e. jailhouse informants), and children.
- May need to give clear and sharp warning to jury about credibility of unsavoury witness
- Applies whenever there is an unsavoury witness or circs where there is reason for W to lie
- Warning (Khela) – In instructing the jury, TJ must:
1. Draw attention to part of testimony that deserves attention,
2. explain why evidence is subject to special scrutiny,
3. caution that it may be dangerous to rely on W’s evidence alone, though jury is entitled to do so,
4. in determining reliability of evidence, should look for evidence from another source tending to
show accused is guilty
HEARSAY
Hearsay = an out of court statement offered for the truths of its contents (Subramaniam)
- Out of court → statement made by a person not on the stand (declarant)
- Statement → oral stmnts & docs; incls. ‘intentional communicative actions’ (Perciballe)
- Offered for its truth → hearsay if offered to urge finders of fact to accept as true
o It is not hearsay if a statement is offered to prove that it occurred (i.e. that there was a
statement)
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General rule: hearsay is presumptively inadmissible
- Why? B/c not reliable; we want evidence to come from someone on the stand who (1) has given an
oath, (2) has direct evidence, and (3) can be observed by a jury during (4) cross-examination (“C-E”)
-
4 Rationales Against Hearsay:
1. Declarant made statement at an earlier time while not under oath
2. it is not the best evidence because someone else is giving it
3. Offends ability of jury to observe the declarant (i.e. their demeanor, language, style,
interaction with counsel, perceptibility, etc.)
4. ** It offends our desire to test evidence through C-E **
 Khelawon: central reason for exclusion = inability to test reliability
Test to Determine Whether Statement is Hearsay
a. Identify: what is the statement that I might object to?
b. Is the declarant of that statement currently on the stand?
o If yes, not hearsay; if no, it may be hearsay, proceed to (c))
c. Is the statement being offered for the truth of its contents?
o If yes, hearsay and inadmissible subject to an exception
o If no, may be admissible – e.g. circumstantial evidence (Wysochan)
IS EVIDENCE BEING OFFERED FOR TRUTH OF ITS CONTENTS?
-
Statement offered to prove that it could have occurred, which then may help in determining a fact in
issue (e.g. duress), is not hearsay b/c it is not being offered for the truth of its contents – Case:
Subramaniam v. Public Prosecutor
o The truth of the statement did not matter (i.e. that the bandit was a communist)
-
Statement offered to provide an explanation of A’s mental state of mind (e.g. why A knew that murder
had occurred w/ a hatchet) is not hearsay – Case: R. v. Wildman
o ≠ matter whether ex-wife’s claim that A and McIsaac killed child was true
o Note: At trial the statements were omitted; Nonetheless, Wildman’s conviction was upheld on
appeal, but due to Code s. 688(1)(b)(iii) – no substantial wrong or miscarriage of justice (i.e. A
would have been convicted even w/out the error)
HEARSAY BY IMPLIED ASSERTIONS
-
Rule: statement offered for the truth of a fact that it implies is inadmissible hearsay
o While declarants did not explicitly state that M was competent, they implied this and b/c W was
admitting letters to prove that M was in fact competent, inadmissible – Case: Wright v. Tatham
-
However, court may find that stmnt is circumstantial evidence as opposed to hearsay
o Admission of utterance (i.e. a cry for help) to prove a state of mind (implied that deceased
would not have asked for help from a killer) – circumstantial use – is admissible b/c not offered
for the truth of its contents – Case: R. v. Wysochan
 While it is indirectly being offered to prove that A did in fact kill, crt went the other
way saying it was circumstantial evidence from which a jury could infer what it saw fit
(way to get around implied hearsay)
 Note: problem with this case: court assumes the deceased saw her shooter
PRINCIPLED APPROACH TO HEARSAY
Two Hearsay Dangers:
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1. It is not the best evidence to use  relates to necessity
2. We are not sure if it is safe b/c no oath / opportunity to observe / C-E  relates to reliability
PRINCIPLED APPROACH TO HEARSAY → when the dangers of hearsay are overcome, evidence should be
admitted as an exception to the general exclusionary rule (Case: R. v. Khan)
Principled Approach (Khan):
1.
2.
3.
4.
-
Starting point: hearsay evidence is presumptively inadmissible
Is the evidence necessary?
o
Is the direct evidence from the declarant not reasonably available?
o
i.e. death, medical condition, out of jurisdiction, incompetent, psychological harm,
others…

In this case, not available since child was incompetent to testify
Is the evidence reliable?
o
Concerned w/ lack of oath, ability for jury to observe witness, C-E

In this case, was reliable since child ≠ motive to lie and ≠ be expected to
have knowledge about sexual acts
Does its PV > PE?
o
Residual discretion of TJ to exclude evidence
Khan (principled) approach applies to all hearsay evidence (not just to children) – Smith
How is Reliability Satisfied? 2 options:
-
“Circumstantial guarantee of trustworthiness” (Smith) → no concern wrt whether statement is
trustworthy b/c of the circs in which it came about
o Circumstances which suggest that declarant may have been mistaken or dishonest or capable of
deceit does not satisfy requirement of stamp of reliability – Smith
-
Functional substitute → truth and accuracy can be tested by other means (K.G.B.)
Threshold vs. Ultimate Reliability
- For purposes of PA, only concerned w/ threshold reliability  to be able to consider the evidence; not
to determine the weight to give that evidence
- While in Starr the court said not to consider corroborating evidence to determine threshold reliability,
Khelawon overturned this and said you could
o However, underlying fear in doing this: will turn process of determining threshold stage into a
trial of itself
CATEGORICAL EXCEPTIONS TO HEARSAY
Why do we have categories of exceptions?
1. Underscores the importance of Necessity and Reliability
2. If you can fit hearsay into categorical exceptions, presumptively admissible
3. Because some of these rules are so strong, if hearsay fits one of the exceptions, then it will probably
satisfy principled approach as well
RELATIONSHIP B/W PRINCIPLED APPROACH AND CATEGORICAL EXCEPTIONS
Starr/Mapara Framework:
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1. Hearsay evidence is presumptively inadmissible unless it falls under a traditional exception
- Exceptions were developed based on circs which suggest that the evidence is necessary
and reliable  thus evidence which fits them is presumptively admissible, BUT...
2. Traditional exceptions can be challenged if they do not meet PA indicia (reliable & necessary)
3. Even if a traditional exception applies, the evidence itself is inadmissible if it fails the PA
- E.g. Starr: Stmnt of deceased ≠ fit PA b/c not reliable – deceased could lie to G
- Note: very rare that an exception will be upheld but the evidence is inadmissible (Starr)
4. If no exception applies, the evidence may be admitted via PA (if in a voir dire Crown can show
reliability and necessity of admitting the evidence)
THUS: while PA overrules, categories still very useful  indicate presumptive admissibility
E.G. OF PA EXCEPTION: PRIOR INCONSISTENT STATEMENTS
-
-
GR: We cannot admit a prior inconsistent statement (PIS) as “true” b/c it is hearsay → no one on stand
to prove the truth of its contents (no oath/ observation/ C-E)
Exception: PIS may be admissible for its truth if it meets the PA (necessary & reliable) – K.G.B.  in
KGB, no one adopted the stmnt previously made to & videotaped by police
 Necessity  b/c no other way to get the info; prior stmnt is not being adopted
 Reliability  3 requirements:
i. PIS made under oath/affirmation, is voluntary, + given warning re: importance to tell
the truth and that if they change their story = perjury;
ii. Statement is videotaped in its entirety (i.e. view demeanor);
iii. Party is available for C-E on change in testimony (fairness to opposite party)
NB: in KGB 2nd trial, the 3 W’s adopted the statement – thus “prior statement” was no longer hearsay
b/c it was adopted by W’s and included in their oath
TRADITIONAL HEARSAY EXCEPTIONS
Remember Starr: Hearsay evidence which falls under traditional exception is presumptively admissible, but
may be challenged to determine if it is supported by PA indicia (necessity/ reliability); It may be excluded it
rare cases
***Note: If evidence does not meet an exception, can still try to get it admitted under PA!***
EXCEPTION 1: PRIOR JUDICIAL PROCEEDINGS (PRIOR TESTIMONY)
Statement made at a past proceeding offered for the truth of its contents is hearsay
- Out of (current) court statement and declarant is not available for C-E
Common Law Approach → could admit prior testimony if:
1. Witness is unavailable
2. Required that the (i) issues and (ii) parties in both proceedings be substantially the same [“Identity of
parties/issues”]
3. In the prior proceeding, the party against whom the evidence is being tendered had an adequate
opportunity to cross-examine the witness
Note: CL displaced by Code s. 715, below
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Statutory Approach in Criminal law → s. 715(1) CC
Evidence from a witness at a prelim. inquiry or a previous trial of same charge is admissible if:
1. Witness is unable to testify → refuses to take stand/provide evidence or (a) is dead, (b) has become
insane, (c) ill or unable to travel, (d) absent from Canada
2. Evidence was given in the presence of A and A had full opportunity to cross-examine the witness
at the time evidence was given
Application of s. 715 (R. v. Potvin)
- S. 715 guarantees the opportunity for A to C-E
o Strategic reasons for not C-E during preliminary inquiry do not effect the rule wrt hearsay → do
not justify giving A another opportunity to do so
- TJ has discretion to exclude hearsay evidence if:
o It would be unfair
 i.e. if Crown knew in advance or thought it was a possibility that a witness would not be
available at trial but didn’t alert Defence wrt this possibility
o PV outweighed by PE
Statutory Approach *Civil* Proceeding → R40(4) (BC Supreme Court Rules)
1. Where a witness is dead or is unable to testify, the court may permit a transcript of any evidence of that
witness taken in any proceeding, whether or not involving the same parties, to be put in as
evidence, but reas. notice shall be given of the intention to do so
2. TJ has discretion to exclude evidence (i.e. if unfair or evidence is unreliable)
Note: This is very broad and does not require an identity of parties/issues (as in crim proceedings)  b/c a
person’s liberty interest is not engaged there is less concern about allowing in this evidence
EXCEPTION 2: STATEMENTS MADE IN THE COURSE OF DUTY / BUSINESS RECORDS
Rationales behind CL Exception:
a. Records are made in a mechanical way and thus little opportunity/motive to lie
b. Businesses relied on these records and it is job of the recorder to ensure they’re accurate
c. These entries are made relatively contemporaneously with the events they record
Statutory Approach – ss. 29 and 30 of CEA
Note: We glossed over s. 29, probably not important...
s. 29 → records of a financial institution: In the absence of evidence to the contrary, records made by
financial institutions, even if hearsay, are admissible
s. 30 → Business Records
- Test: Declarations, oral or written, are admissible for their truth where they are (1) made reasonably
contemporaneously (2) in the ordinary course of duty, (3) by persons with personal knowledge of the
matters (4) who are under a duty to make the record or report, and (5) there is not motive to
misrepresent the actions recorded
- Definitions - s. 30(12):
- ‘record’ = book, doc, paper, card, tape, etc (Note: not an oral stmnt, unless recorded)
- ‘business’  very broad
- Notice - s. 30(7)  must provide notice (7 days) to other side of intention to admit record
- Evidence inadmissible (s. 30(10)) if… e.g. (a)(iii) – privilege exists/is claimed for the doc
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**EXCEPTION 3: PARTY ADMISSIONS ** (“statements of a party to a litigation exception”)
Rule: if you are D, P, or A and you said / did something, this is admissible under hearsay
- Anything the other party ever said or did will be admissible against him or her if it is relevant to
something in the case
o If witness is lying, this goes to creditability and weight of evidence – automatic admission
Justifications for Exception – Case: Evans (SCC)
- Admissible based “on the theory of the adversary system that what a party has previously stated can be
admitted against the party in whose mouth it does not lie to complain of the unreliability of his or her
own statements”
- No concern w/ reliability b/c:
o Party making statement cannot argue that she lost opportunity to C-E herself
o Party cannot complain that the statement was not made under oath b/c essentially that would be
saying that she was/is lying
o Party can take the stand and explain herself
- This has never been trumped by principled approach
CATEGORICAL EXCEPTIONS TO HEARSAY CONTINUED
EXCEPTION 1: EXCITED UTTERANCES / SPONTANEOUS DECLARATIONS
-
Statements made before or after an event of such spontaneity that the possibility of concoction or
fabrication could be excluded  stmt’s immediacy supports its reliability
Admissible if – Case: R. v. Clark
a. Statement relates to startling event or condition
o D made statement after being stabbed by A which was startling
b. Made by declarant under stress / excitement caused by the event or condition – an “immediate and
uncontrolled befalling of the senses”
o D made statement under extreme stress as a reaction to being stabbed
- Also: always subject to Principled Approach
o Necessary? D dead...
o Reliable? Was the statement trustworthy given the fact that it was made under stress w/ no time
to fabricate it...
Problems w/ Exception:
-
Stress of a situation may distort the way in which words are expressed
Might be fabricated and ≠ C-E
Declarant could be mistaken
A Note on Khan: Court rejected this exception. Why? B/c statement was not an immediate reaction to what
happened; lacked emotional impact b/c child did not comprehend situation
EXCEPTION 2: STMNTS OF PRESENT-SENSE IMPRESSION (US exception, not recognized in Cda)
-
-
-
When person claims to be experiencing a human condition, statement made of someone complaining is
admissible but only to prove that person was experiencing that condition and to establish its duration
o E.g. statement made by D to A that his back hurt admissible to prove that D’s back hurt
This exception does not cover past expressions of past physical discomforts
o Doesn’t cover the explanation of WHY you were experiencing physical discomfort – this is b/c
not a reaction to pain or physical discomfort, but rather speculating about causes (i.e. must be
current / immediate discomfort)
Note: this is not a recognized exception in Canada. However, it could be used to get a statement in via
the Principled Approach as its rationales go to reliability of statement
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Problems w/ Exception:
-
People may have other motives and may lie / fake / exaggerate pain
EXCEPTIONS 3: STATEMENTS OF PRESENT MENTAL STATE
-
Statements of mental state are admissible where person explicitly describes their present state of mind
(i.e. an emotion/ motive/ intent/ plan)
Admissible if – R. v. P.(R.) – stmnts re: wanting to leave and fearing boyfriend made to friends
- Statement is relevant  tends to prove a fact in issue; describes mental state (when in issue)
o Relevant b/c it could be used to suggest that D intended to and did in fact leave A, which
consequently gave A motive to kill
- Made in a natural manner, not under circumstances of suspicion
o No reason to believe that D would make this up
EXCEPTION 4: STATEMENTS AGAINST INTEREST (PECUNIARY AND PENAL)
Historically, statements against pecuniary interests admissible if:
- Declarant is not available
- Statement made against declarant’s interests
- Declarant had personal knowledge of facts stated
Rationale: reliable b/c we assume that someone would not make something up if it would hurt them financially
Exception applies for penal interests as well
- If you can assume that people do not lie where it affects their pocketbook, all the more so when it
affects their liberty
o However, concern in the law → false confessions
Test to admit statements against penal interests – Demeter Factors
i. The declarant must have apprehended a vulnerability to penal consequences
ii. The vulnerability to such consequences must be immediate – not remote
iii. The situation must be taken into account as a whole – if it is not contrary to penal interest in its
totality, the statement is not admissible
iv. If unclear, the court must consider whether there are other circumstances linking the declarant with
the crime or between the declarant and the accused
v. The declarant must be unavailable – not sufficient if declarant refuses to testify
Application: R. v. Pelletier
- Can only be used for exculpatory statements (to clear oneself), not inculpatory (implicate other)
- Only the Defence can use this exception; Crown cannot (Lucier)
o Crown ≠ introduce statements to incriminate A. Not fair to A b/c ≠ C-E and not reliable – e.g. if
going down for crime, may want someone to go down w/ you – Case: R. v. Lucier
- Lucier: Statement of D was necessary (since not available at trial) and reliable since it was, in total,
made against his penal interests (even if claiming self-defence)
EXCEPTION 5: DYING DECLARATIONS
-
Historical rationale: person who knows that she is about to die would not lie when facing final judgment
Admissible if:
a. Deceased has a settled, hopeless expectation of almost immediate death
b. Statement must be about circs of the death – e.g. how the death came about
c. Statement has to be admissible had the deceased been able to testify
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Hearsay doesn’t overcome other admissibility concerns – i.e. if attacks character of A, not
admissible
d. Offence involved is the homicide of the deceased (applies only to criminal law)
o First and second degree, manslaughter
o
NB: hearsay exception does not get over admissibility concerns – still need to consider character, opinion, etc.
OPINION EVIDENCE
Generally, opinion evidence inadmissible
- Why → Fundamental principle of our justice system that it is up to the trier of fact (jury) to draw
inferences from the evidence and to form his or her opinions on the issue in the case – R. K.(A.)
o Witnesses ≠ usurp jury’s role
What is opinion?
- Inference from observed fact – however it is very difficult to separate fact from opinion
- Opinion evidence often gets offered under the cloak of facts
Historical Rule: Ultimate Issue
- An opinion, lay or expert, ≠ be received on the ultimate issue before the court
- However, this rule is now dead
Now: opinion that is helpful to jury is admissible – Graat
- Exceptions:
o Cannot give opinion on questions of domestic law  judge’s domain
o Cannot given opinion on ultimate creditability of a witness  jury’s domain
1. Lay Opinions – Graat
- There are many things that the law has allowed non-witnesses to give their opinion
o Age, handwriting, speed, identity, emotional states → all of these are opinions rather than a fact
observed (Cherrard)
Lay Opinions: Conditions for admissibility (Graat):
a. Evidence must be helpful in the sense that witness is in a better position to form the conclusion → if
jury is equally placed to draw conclusion, then ≠ helpful
o Police in better position than jury since they were there at the time of the crime – however need
to warn jury that the perceived expert is acting as a lay person
b. It must be sort of thing upon which a non-expert can form an opinion → an “everyday” thing
o Intoxication is something that is in the normal experience of a lay person
c. Opinion must be an abbreviated version of the witness’ factual observations in a situation in which it
would be cumbersome or impossible to break down the facts→ compendious statement of facts rule
o Conclusion that someone is impaired is a collection of observations
d. NB: PE>PV, ≠ offend another exclusionary rule, weight is still to be determined by the jury
2. Expert Opinion
-
“When trier of fact is unable to form his or her conclusions w/out help” then an exception to the
opinion rule may be made and expert evidence admitted
o Rule applies only when dealing w/ opinions/inferences offered by expert (not observations or
when expert is testifying as to facts)
 NB: when expert giving evidence wrt creditability / character, still need to satisfy
requirements below
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When can expert evidence be adduced? – Case: R. v. Mohan
1. Evidence is sufficiently relevant
o This a cost/benefit analysis
 Costs: time it takes to go through expert evidence, distraction, potential for usurpation
and overwhelming jury
 Benefits: value of the evidence – thus is it reliable enough?
 Evidence ≠ reliable enough b/c no acceptable body of evidence to support
psychopathic theory proposed by expert
2. Evidence must be necessary in assisting trier of fact → **Core of rule**
o Something that ordinary people cannot make proper assessments unless given some sort of
assistance / additional
3. Evidence must not be caught by other exclusionary rule → i.e. ≠ personal opinion on creditability
4. Must qualify the expert
o Witness must be more expert than the jury
o Need to establish that person is indeed an expert – and has a special knowledge or an area of
expertise through study or experience in respect of the matters on which he or she undertakes to
testify (the knowledge has not been gained from life experience).
The burden of proof to show that expert evidence can be adduced needs to be proved by the person who wants
to adduce evidence.
Application – Case: R. v. Lavallee
- Deciding whether A was under reasonable apprehension or had reasonable alternatives in case of
battered women’s syndrome requires additional info for jury
o World of experience/impact that ordinary juror is not equipped to reason w/
o Alters meaning of self-defence
- While most people would reason that A had an opportunity to leave, BWS explains that women subject
to this violence often feel trapped and helpless
3. Novel Science
Science “isn’t always frozen in time” and some types of scientific data may turn out to be less reliable down the
road – thus novel science is subject to strict scrutiny.
When is Science “Novel”? (What matters is if it is novel to the courts)
- Theory or technique is not sufficiently established
- Courts have ≠ established a practice of admitting it
- Established technique but applied in a new way
- Established technique but under new scrutiny b/c of changes in our knowledge
To admit novel science evidence – Case: R. v. J.L.J. (SCC) and applied in R. v. Trochym
-
Consider test from Mohan but w/ the following adjustments:
o 1st criteria  “relevance” must be higher
 This means a higher degree of reliability must be satisfied
 Consider the following factors [From Daubert in the US]:
-
Whether technique can be or has been tested
o Difficult to test whether hypnosis results in accurate recollection of facts
Whether technique has been subject to peer review and publication
o Has been subject to peer review and results are dismal
-
What is the known or potential rate of error; and
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Potential rate of error wrt inaccurate/false memories is high
High potential for “memory hardening” → feel that strength of memory is stronger compared
to other memories
-
Whether the theory/technique used has been generally accepted
o Technique ≠ generally accepted due to its flaws
 The closer evidence is to the “ultimate issue” the higher the costs (usurpation of jury)
and thus, the higher the benefits required
-
2nd criteria  evidence must be essential in assisting trier of fact
Overriding concern is trial fairness – and court doesn’t want to open the door to re-examining all
scientific techniques, i.e. having to consider whether fingerprinting, etc is reliable.
CLASS PRIVILEGE
Introduction to Privileges
- Relates to extrinsic exclusionary rule → we exclude based on policy reasons
- If info is privileged, it doesn’t matter how important evidence is, it will never get before trier of fact
- Person who holds privilege is the person who can waive it
Certain factors to keep in mind:
- Rationale or purpose of privilege
- When/how privilege is created
- Who holds the privilege
- Scope of privilege (what it covers) and how long it lasts
- Exceptions
Class or Blanket Privileges → once relationship fits category, it is prima facie protected by the privilege
1. SOLICITOR – CLIENT PRIVILEGE
- highest privilege known to law – Case: Smith v. Jones
Rationale → to allow people to have effective access to justice and quality legal advice
- To preserve relationship of trust b/w lawyers and clients
- To preserve full and frank communication b/w lawyer and client
- To preserve the existence and effective operation of Canada’s legal system – seen as a PFJ – Case:
Foster Wheeler
Test: When is privilege created – Case: Canada v. Solosky
1. The communication must be b/w solicitor and client
o Don’t need to have exchanged money (no retainer necessary)
2. The communication must entail the seeking of legal advice
o Only communication privileged are those in the form of seeking, forming or giving of legal
advice
3. The communication has to be intended to be confidential
Who holds privilege – Case: Pritchard v. Ontario (HR Commission)
- Client holds right to privilege and thus only client can waive this right
- Right attaches to all types of lawyers whether sole practitioner, gov’t lawyer, in-house counsel
Scope of Privilege
- All communications b/w client and lawyer and any information that arises from communication
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Includes client communications w/ EE’s of lawyer (agents → doctors, articling students, secretaries,
etc.)
Temporal scope
o Survives the death of the client w/ one exception: wills
Exceptions → even w/ exceptions, only applies to the extent absolutely necessary
- Absolute necessity should be taken as meaning as restrictive of a test that may be formulated short of
an absolute prohibition – Case: Goodis
o If client lies about financial situation (i.e. to get legal aid), communications are NOT privileged
– Case: Descoteaux
1. Privilege does NOT protect communications that are in themselves criminal or made to facilitate
the commission of an offence
o Example: lawyer planning to do crime w/ client OR helping client commit crime
 Lawyer must be a conspirator or a duper – Case: Campbell
2. Public Safety → Case: Smith v. Jones
Clarity of risk → does this involve an identifiable group/individual at risk?
o Can also view this in terms of likelihood that the risk will materialize
ii. Seriousness of risk → bodily harm, death, or severe psychological trauma (McCraw)
iii. Imminence of risk → this is the most flexibly applied factor
o Is there a sense of urgency such that it should be reported right away?
i.
3. Innocence at Stake → Case: McClure and applied in Brown
- very narrow, when you have material that may raise a reasonable doubt but is protected b/c of privilege
- Best to wait until Crown finishes their case to determine whether enough evidence has been established
to prove A’s guilt; if not, then McClure unnecessary
- McClure Test (to set aside privilege if accused’s innocence is at stake)
o Threshold (accused must establish):
i. Information sought NOT available from another admissible source of evidence (how
“good” source is does NOT matter)
ii.A needs to demonstrate that he is otherwise unable to raise reasonable doubt wrt his guilt
(no other defence available)
o 1st Substantive Stage: A must establish some evidentiary basis on which to conclude that there is
a communication that could raise a reasonable doubt
o 2nd Substantive Stage: if established, Trial Judge must examine file to determine whether there is
something in communication that is likely to raise a reasonable doubt as to A’s guilt
-
In Brown, A failed to meet threshold since evidence (that B could have killed D) was available from
another source (witness – B’s girlfriend)
o If privilege is pulled back and statement is admitted to acquit A, statement cannot then be
used to convict person who made statement to lawyer
2. LITIGATION PRIVILEGE
- Protects confidential work done for/by a lawyer in preparation of litigation
o NB: statutory rules have eroded this a bit → i.e. examinations for discovery
Rationale
- To ensure the efficacy of the adversarial process
- To achieve this purpose, parties must be given opportunity to prepare in private – need liberty to explore
and research w/out worrying that it may be leaked to public
When privilege is created
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Litigation does NOT require S-C relationship → it is about the lawyer/unrepresented party doing their
own work in preparation for litigation
unrepresented party has same protection as one with solicitor
Who is it held by?
- Seems to be held by client (Hodgkinson)
Scope of Privilege
- Communications b/w solicitor and the file or 3rd party preparing for litigation
o Must be created for the dominant purpose of litigation
Duration (Case: Blank)
- Ends when the litigation – and when closely related proceedings – are done
- Issue: when has litigation ended?
o Gov’t argued that closely related proceedings had not ended b/c A was now suing gov’t –
however, proceeding must include same parties and same cause of action to be protected by
litigation privilege. See paras 26-28 in particular which go over litigation and solicitor-client
privilege
3. SPOUSAL PRIVILEGE
Rationale  protect spousal harmony
Who holds it the receiver of communication (arbitrary).
How it is created  upon marriage (codified under s. 4(3) of Canada Evidence Act)
– see page 6 of Outline for more on s. 4(3)
Duration  privilege ends when spouses are irreconcilably separated
Scope  covers communications during marriage (not before or after)
- must be intentionally communicated
CASE-BY-CASE PRIVILEGE
Introduction
- Involves situations where circumstances of case warrant the protection of the information but policy
concerns not strong enough to push into class privilege
o Applies to that INFORMATION, that RELATIONSHIP, that SPECIFIC CASE
-
Example of trend towards putting more and more evidence before jury – thus, court doesn’t like class
privileges (narrower in application)
o List of class privileges presumably closed – Case: M.A. v. Ryan
Test to determine whether CBC Privilege exist → Wigmore criteria as adopted in Slavutych
1) Communication must originate in confidence that they will not be disclosed
o Confidential communication
2) Element of confidentiality must be essential to the full and satisfactory maintenance of the relation b/w
parties
o Confidentiality important part of relationship
3) Relation must be one which in the community’s opinion ought to be sedulously fostered
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o
Relationship must be one that community thinks is really important to protect → and thus,
communications should be protected
o NB: weird that we are protecting communications post facto even if though it is a
relationship that society highly values
4) Injury from disclosure which would inure to the relation is greater than benefit
o Basically a cost/benefit analysis  benefit of disclosing and harm of disclosing
Application: Spiritual Advisor → Case: Gruenke
- Failed stage 1 → no expectation of confidentiality since A had told pastor that she was going to take the
blame for the crime
- Note: Presumably in a different factual circumstance, spiritual advisor communications could be
privileged
Application: Medical Practitioner → Case: M.A. v. Ryan
- Stage 1 → Communication originated in confidence
- Stage 2 → Confidentiality essential to relationship in ensuring proper treatment of M
- Stage 3 → It is in the community’s best interest to foster this relationship – to ensure that victims of
sexual abuse receive proper treatment so that they can take their place as healthy members of society
- Stage 4 → risks wrt disclosure protected by limited/partial use of notes
o NB: now psychiatrists take very minimal or no notes
PRODUCTION OF 3RD PARTY RECORDS
-
In Criminal cases, Crown is constitutionally required to disclose to A all relevant information, subject to
irrelevant evidence or privileged (Case: Stinchcombe)
If 3rd party has record not w/ Crown & offence not listed in s. 278.2 (non sexual abuse) O’Connor applies
1. A must prove likely relevance of document
- Evidentiary basis to prove that there is a reasonable possibility that information is logically probative to
an issue at trial or to the competence of a witness to testify
2. If likely relevant, Trial Judge must look at evidence and decide if it should be produced (in whole or in
part) to A
- This involves balancing salutary and deleterious effects of production → consider whether nonproduction would constitute a reasonable limit on full A&D
- 5 factors to consider:
i. The extent to which the record is necessary to make full A&D
ii. PV of record in question (how reliable)
iii. Nature and extent of the reasonable expectation of privacy vested in that record
iv. Whether production of record would be premised upon any discriminatory belief or bias
v. Potential prejudice to complainant’s dignity / security of person / privacy
If offence is one of sexual abuse (listed in s. 278.2) then s. 278.5 of CC applies – based on dissent in
O’Connor (NB: Applies whether document is in hands of Crown or 3rd party)
1. i. A must prove likely relevance of document
o S. 278.3(4) → 11 factors that are insufficient on their own to establish likely relevance
ii. Production of record must be necessary in the interests of justice → thus balancing must be done by
TJ before looking at document (s. 278.5(2))
o Factors to consider include 5 above and:
 Extent to which production of records of this nature would frustrate society’s interest in
encouraging the reporting of sexual offences
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

o
Effect on the acquisition of treatment by victims
Effect on the integrity of the trial process of producing/failing to produce the record
having in mind the need to maintain consideration in the outcome
Note: s. 278.5(2) says judge shall take following factors into account -- this does not mean these
factors must be met, but only that they must be considered! Furthermore, judge can give more
weight to (a) necessity of record for accused to make a full answer and defence, and thus judge
retains a great deal of discretion to apply this legislation (This is what the court said in Mills,
wherein the SCC clawed back some of their discretion over the matter from the legislatures)
2. TJ must inspect record and determine whether it should be produced in whole or in part (s. 278.6)
o Balancing that occurred at 1 takes place again but this time w/ judge looking at record
Interpretation of court of s. 278 → Case: R. v. Mills
- In terms of likely relevance, assertion of 11 factors alone, w/ no other evidence, ≠ sufficient to
establishing LR
- 8 factors described must merely be taken into account
o None in particular has controlling weight
- Any uncertainty wrt production should be resolved in the interest of disclosure
Note: Ryan case still applies to the disclosure of information that is not a record but is an oral statement. s.
278 only applies to records…
PUBLIC INTEREST IMMUNITY AND CABINET SECRECY
1. Public Interest Immunity and National Security
Conflicting concerns
- Gov’t should have some ability to protect its information (e.g. Duncan – submarine design)
- Gov’t should be open and accountable to the public
CL Test (still applies if no legislation in place – i.e. in province):
- Public official could object to disclosure on some public interest ground
- TJ looks at information and determine whether PI in disclosure > PI in secrecy – Case: Conway &
Rimmer
- Carey v. the Queen: factors for balancing test for disclosure under CL:
o The level of decision making
o The nature of the policy discussions
o The particular contents of the documents
o The time when the document or information is to be revealed
o The importance of the case
o The need or desirability of producing the documents to ensure that the case can be adequately
and fairly presented
o Whether or not the allegations involve government misconduct
o The ability to ensure that only the particular facts relating to the case are revealed
s. 37 of CEA → broad provision
- Official may object to disclosure on specified grounds of public interest that gov’t has
- Once object, information is w/held pending hearing by SC or federal court judge
o s. 37 cannot be used in Provincial court
- Judge will balance interests of disclosure w/ interests of gov’t
o Would be wise to use Carey v. Queen factors here for balancing interests, even though not in
CL situation
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Can order for: (1) information to be disclosed wholly/partially; or (2) prevent disclosure
o Parties can appeal decision, however
If in criminal proceeding and info not disclosed, TJ can make any order necessary (i.e. stay of
proceedings / charge only for lesser included offence) to ensure trial fairness
s. 38 of CEA → narrow: national security
- Protects:
o Potential injurious info
 Info of a type that if disclosed could injure international relations or national
defence/security
o Sensitive info
 Info relating to int’l relations or national defence that gov’t is taking the steps to
safeguard
- Determination done by designated judge or CJ of federal court
Application
- Everyone is under a duty to report to federal AG if they think info might be disclosed in a proceeding
somewhere in the country
- Once alerted of issue of national security/int’l relations, AG seeks an order for non-disclosure
- Judge looks it over, weighs PI in disclosure against PI in non-disclosure, then orders full, partial or no
disclosure (see s. 38.06(1))
- Note: provision refers to sensitive information... relating to...etc, which is much broader than potentially
injurious information...
New Provision: s. 38.13
- Once a judge has done this balancing and if judge has decided to disclose, the AG may personally
overrule judge’s decision by issuance of a certificate under s. 38.13
o If certificate is issued, can only be reviewed by court in manner and form – also, no appeals
to SCC
o May not be constitutional – seems to violate rule of law and open-court principles...
2. Cabinet Secrecy
Rationale – Case: Babcock v. Canada (DOJ lawyers in Van making less than TO)
- Those charged with heavy responsibility of making gov’t decisions must be free to discuss all aspects of
the problems that comes before them and to express all manners of view/opinions w/out fear that what
they say or act on will later be subject to public scrutiny
CL → same as test above
S. 39(1) of CEA
- Minister of Crown or Clerk of PC (Chief Bureaucrat – link b/w gov’t and public service) can object to
disclosure of confidence of the Queen’s PC
- If minister objects, certificate issued under s. 39 and info CANNOT be disclosed – there is no hearing,
examination of the info, ABSOLUTE PROTECTION
- Judge ≠ look at the information, let alone balance competing PI interests
When can Clerk/Minister object – Where is the Balancing? → Case: Babcock
- Balancing done by Clerk/Minister only; need to decide:
o Is information a cabinet confidence? Does it fit the statute?
o Is info that gov’t wants to protect, considering competing interests, info we really want to
protect?
For certificate to be valid → Case: Babcock
1. Must be executed by the clerk or minister
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2. Must relate to information in s. 39(2)
o Memo, discussion papers, agendas, briefing records, draft legislation
3. Must be done in bona fide exercise of power – cannot be abuse of discretion
o Balancing done here, though not explicitly required by statute – allows courts to point to
situations of bad faith (e.g. Roncarelli) to argue against the privileging of questionable
material...
4. Must be done to prevent disclosure of new information – does not apply to info already disclosed
a. All state power must be authorized – thus courts can review to ensure that these 4 criteria are
met
b. Judge does not look at the information – may receive a summary to ensure that it was the right
kind of document and issued by the right person
a) May be able to point to circumstances to prove bad faith – Roncarelli
Note: refusal to give documents can be used to draw an adverse inference (see para 52 in Babcock)
PRIVILEGE AGAINST SELF-INCRIMINATION
Relates to presumption of innocence → if A’s evidence pushes Crown to be able to prove guilt beyond a
reasonable doubt, then this offends premise underlying criminal justice system
1.
s. 5 of CEA (Note: s. 5 has been superceded by s. 13 Charter)
- While witness must answer question put before her by Crown, she also has immunity wrt her response
Nature and Operation
- Unlike at CL, one doesn’t get to refuse to answer, instead you must object to question on those grounds
(activate statute) and then answer the question
o Invoke s. 5 when you apprehend risk of incrimination and before you answer
- Why different approach?
o Under US/CL model, information never gets out – b/c witness has huge control and ≠ disclose,
will probably mess up current trial
Shortfalls → few witnesses have counsel and thus have no idea that they have to invoke s. 5 and thus are not
protected and potential for derivative uses
2. Response → s. 13 Charter
- Witness who testifies has the right not to have any incriminating evidence used to incriminate them in
another proceeding
o **S. 5 of CEA is still useful b/c don’t need to prove that you are being incriminated; once
invoked that is it, so long as it is exercised in good faith
Nature and Operation
- Automatic → If Crown tries to introduce incriminating evidence based on testimony given by A at a
prior proceeding, s. 13 bars this
- Rationales:
o In exchange for being forced to testify, A should be protected – Case: Noel
o To prevent Crown from being able to indirectly do what they can NOT do directly under s.
11(c) (cannot compel A to take the stand) – Case: Dubois
a) Issue 1: Does s. 13 Protect Prior Trials for Same Offence? → Case: R. v. Dubois
Rule: if A refuses to take stand at new trial (even if for the same offence), then testimony from previous trial
may NOT be used
- “Proceedings” under s. 13 includes prior trials on the same charge
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It does NOT matter that A testified at 1st trial; choosing not to testify at this trial and then using previous
testimony is essentially requiring A to incriminate him or her self
b) Issue 2: Does s. 13 Protect A if he takes the Stand at 2nd Trial? → Case: R. v. Henry
Rule: if A chooses to testify at 2nd trial, then testimony from 1st trial admissible
- S. 13 is about compulsion → about protecting A from being forced to incriminate against him/her self
- THUS if A chooses to take stand at 2nd trial, they are NOT being forced to testify but rather choosing to
do so
c) Issue 3: Does s. 13 apply if A was witness (not accused) at 1st trial, and chooses to take stand at 2nd
Trial (where accused)? → Case: R. v. Noel
Rule: if A compelled as witness at previous trial, cannot use that testimony in later trial in which they choose
to testify
- Applies if state is trying to use evidence against A that it would NOT have found but for the earlier
compelled testimony of A (compelled b/c A was a witness at 1st trial only)
o If Crown can prove on BOP that evidence was discoverable, then admissible
- NB: if breach occurred, then consider s. 24(2) exclusion of evidence test
ABORIGINAL LAW AND EVIDENCE
SCC (Delgamuukw) → Rules of evidence must be contextually applied and should accommodate the sui
generis nature of Aboriginal rights
Proving Aboriginal Rights
-
In order to qualify as an Aboriginal right, activity must be an element of a practice, custom, or tradition
integral to the distinctive culture of the Aboriginal group at the time of European contact (Case: Van
der Peet)
o Integral → one of the things that truly made the society what it was
o “A court should approach the rules of evidence w/ a consciousness of the special nature of the
Aboriginal claims, and of the evidentiary difficulties w/ proving a right which originates in
times where there were no written records”
-
In order to prove Aboriginal title, Aboriginal nation must establish that it occupied the land
exclusively at the time of sovereignty (1846)
o Burden of proof lies w/ Aboriginal group asserting rights
o If present occupation is relied upon as proof, there must be a continuity b/w present and presovereignty occupation
Evidentiary Issues in Aboriginal Litigation
Mitchell:
 General rules of evidence still apply, but are relaxed due to special nature of Aboriginal claims, promise
of reconciliation from s.35, and evidentiary burden.
A. Admissible: Test on oral evidence:
1. Useful
1. Evidence not otherwise available (necessity)
2. Aboriginal perspective on right claimed.
2. Reliability
1. Do they represent a reliable source of people’s history? Seek answers to who they are
and why they have knowledge. (can go to weight as well).
B. Weight and interpretation Test:
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1. Balance between straining Canadian evidentiary system and devaluing Aboriginal perspective.
2. Give equal weight with general evidence. Not less worthy b/c oral.
Also note:
- Experts become critical when facts in question are historical facts → need some sort of “outsider” proof
(i.e. historians)
- C-E of elders is a sign of disrespect; however, this is the ultimate way our system gets at the “truth” of
something
- People who interpret oral history often have different ideological and cultural orientation than
Aboriginal peoples – since culture shapes all messages and people are unaware of the culture, message
may not be interpreted as they should be
o Thus, important for Aboriginal peoples to help interpret their history
CONFESSIONS AND STATEMENTS OF THE ACCUSED – COMMON LAW
Remember: under hearsay, statements made by a party (i.e. A) to any other person was admissible against that
party
Note: if being detained, then Charter applies to all statements of the accused (see below)
Ways in Which Statements of A (besides under hearsay) Come Up...
1. A not compelled to testify at trial and no use can be made of A’s silence – Noble
2. A’s statements at past judicial proceedings can NOT be used against him at current trial under s. 13 of
Charter (so long as A does NOT take the stand) – Henry
3. What about statements of A (or lack thereof) during investigative process?
What if A speaks?
CL Confessions Rule
- Rationale → state has particular coercive power that society wants to guard against
Who does it apply to / protect against?
- Persons in Authority
o Person who A subjectively and reasonably believed was in a position to control or influence the
proceedings against him – Case: Hodgson
 Typically, those involved in arrest, detention, prosecution.
 Ex: Wells – angry father putting knife to throat MAY be a person in authority
because he talked to RCMP first.
 CL rule does NOT help A if A does NOT subjectively believe that he is speaking to a
PIA
 Ex: Grandinetti – undercover cops/Mr. Big scenario
o Not found to be person in authority
o Concern = reliability of A’s statement
THE RULE: A has to prove that receiver is PIA. Crown must prove Beyond Reasonable Doubt that
statement was voluntary in the sense that it is NOT the product of a will overborne by T/P/I, oppressive
circumstances, or lack of an operating mind.
- Crown can also argue that receiver is not a Person in Authority
When is a statement voluntary?
- Based on dual concerns of reliability and fairness
- 4 components (Case: R. v. Oickle):
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Component
Concern being Protected
Threats/promises/inducements
(Case: Ibrahim)
Oppression (Case: Hobbins)
Operating Mind (Case: Ward)
Police Trickery (Case: Oickle)
Reliability – b/c there has been an exchange (quid pro quo) cannot
determine whether statement reflects the actual truth
Reliability – people might fabricate their story solely to relieve
themselves of oppression occasioned by the force of the state (fairness
starting to creep in...)
Reliability and fairness – A should be aware of the words she is speaking
(cognitive ability) AND must appreciate the context and consequences of
making such a statement
Fairness – prohibits trickery that would “shock the conscience of the
community”
What is the standard of voluntariness that Crown must prove?
- Quid pro quo not enough for statement to be considered involuntary (in context of T/P/I)
o What matters is the strength of the inducement
- For will to be overborne: influence of PIA must be so overbearing that A has lost any meaningfully
ability to choose to remain silent and has been reduced to nothing more than a tool in the hands of the
police – Case: Spencer
o Essentially, the issue is whether A had an effective choice
-
Strong dissent in Spencer → if statement would NOT have been made but for T/P/I, then will is
overborne
o To require that will be entirely overwhelmed would mean that A is deprived of an operating
mind and this is a separate test – T/P/I presupposes an operating mind
Effect of CL Rule → if statement is involuntary and thus inadmissible, cop may take statement and find other
“derivative” evidence from it
STATEMENTS OF AN ACCUSED – THE CHARTER
Charter shifts the focus firmly on concern of FAIRNESS
- Rationale: society wants to the state to stand up to certain types of rights protection
Scenario 1 → What if A Speaks?
When does Charter protection apply?
- When individual is detained  can you leave?
- Contrast CL rule  applies any time person is speaking to anyone in authority
Who is A protected against under the Charter?
- A person who is objectively (actually) a person in authority or an agent of the state
o Only worried if in fact person is agent of state not whether A thinks she is an agent
o Contrast CL rule → person who A subjectively believed was a PIA
Who holds the burden of proof?
- A must prove breach of Charter right on BOP
o Contrast CL rule → onus on Crown to prove statement was voluntary BRD
s. 10(b) → everyone has a right to retain and instruct counsel w/out delay and to be instructed of that
right
- Obligations:
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Cease questioning until A has had reasonable opportunity to exercise right – Clarkson
Give A reasonable and meaningful opportunity to exercise right and until A has exercised right
(consulted w/ lawyer) must cease questioning – Case: Manninen
State must make available counsel at any time – Case: Bridges
A must be reasonable in exercising right – Case: Tremblay
s. 7 → right to life, liberty, security of a person
- One’s right to silence is a PFJ – Case: Hebert
o When under state authority, A must be given right to choose whether to speak to police or
remain silent
o If an undercover cop actively persuades and elicits A to speak, then A has essentially been
deprived of this choice
 NB: pre-Charter (Rothman) concern is reliability so presumably active elicitation is
still okay
 NB: helpful when it is an undercover cop
-
Limits on s. 7 protection
o Police can continue to question and persuade A to speak once he has received counsel
 Counsel ≠ be present during questioning
o Only applies post detention (once in A is under state control)
o Only concerned w/ situation where the state undermines A’s choice → “active elicitation”
Scenario 2 → is there a limit on police questioning after A has spoken w/ counsel?
S. 7 right to silence, in a setting where someone is in custody and clearly speaking to PIA, is indistinguishable
from CL confessions rule – Case: Singh
- Under s. 7 what matters is whether statement is voluntary
- Thus if the statement made is voluntary then police ≠ gone too far
o Voluntariness based on Spencer and Oickle → an “effective choice” to speak
 If A could choose, then statement voluntary
- Strong dissent by Fish J.
o Charter protection needs to go further than CL rule
o A right ≠ respect after it has been asserted a number of times is a constitutional promise not kept
o Otherwise, A’s ability to choose has been deliberately frustrated
Scenario 3 → if A’s Charter rights are breached, is the statement excluded?
s. 24(2) → where in a proceeding, a court concludes that evidence was obtained in breach of A’s Charter
rights, evidence can be excluded if admission could bring admin of justice into disrepute
OLD Test for Exclusion under s. 24(2) – Case: Collins (see HO – onus on A)
Was evidence obtained in violation of a Charter right?
o If yes...
1. Trial Fairness → continued effects of unfair self-incrimination – Case: Stillman
o
Conscriptive → evidence where A, in violation of their rights, was compelled to incriminate
against himself at the bequest of the state by means of a statement, bodily sample, use of the
body.
 If not conscriptive consider 2 and 3
 If it is conscriptive assess whether it is discoverable
o
Discoverable → would the evidence have been discovered anyway either through inevitably
discoverable (bound to happen)or it is capable of being found by legal means
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

If not discoverable, evidence is generally excluded
o Nature of the police conduct (similar to 2nd stage)
If yes discoverable – consider seriousness of breach
2. Seriousness of breach → Case: Buhay
 Did it happen in good faith, was it inadvertent or deliberate, was it urgent/necessary, could it have
been obtained by other means, was the search obtrusive or was there an expectation of privacy, were
there reasonable grounds for what the police did
3. Would exclusion bring administration of justice into disrepute?
-
Seriousness of the offence and importance of evidence to Crown’s case
a. The more serious or important the offence, the more its exclusion would bring administration of
justice into disrepute
i. Would exclusion of evidence exert too great a toll on the truth seeking goals of the
criminal trial – Case: Kitaitchik
Court must balance seriousness of breach (2nd stage) and effect exclusion would have (3rd stage) to determine
whether excluding or admitting evidence would be better for the repute of the justice system
New Test for s. 24(2) – R v. Grant
Criticism of Stillman/Collins approach
- Rigid – the old test automatically excluded conscriptive evidence
o The rigid approach ran contrary to the wording of s. 24(2) which states that you need to
consider all circumstances and whether it brings the admin of justice into disrepute
- Speculative to apply
o it can be hard to determine whether the evidence would have been discoverable
o Under new test, discoverability is just one part of the test (Lee cautions that this might make it
more speculative).
- It wrongly equated bodily evidence with statements from the accused – meanwhile the concern is less
about statements and more about bodily integrity and dignity
- The underlying assumption that use of conscriptive evidence renders trial unfair is open to challenge
[para 65 Grant]
Court is upfront that they want to re-jig the balance between what evidence is included and what evidence is
excluded, because the current test creates anomalous results leading to exclusion of evidence that should in
principle and policy be admitted.
Court Takes a Systemic Approach
- Admin of justice system and the rule of law in Canada
- Perspective view – how it will protect things going forward (not remedial)
- The societal needs for functioning justice system
- Long term need for functioning justice system
New Test From R v. Grant
Self-incrimination is being given less weight under new test than was in place under old test.
- Court steps back a little from notion of conscription – it can still be determinative – however it’s not a
categorical exclusion any more
The most crucial distinction - trial fairness is removed as a distinct part of the test, because it was causing too
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much confusion.
This means that analysis no longer ends after the first step of the test (as was happening under the trial fairness
analysis in Collins). Now court must consider all three parts of the test.
1. The seriousness of the charter infringing state conduct
a. Spectrum approach – focus on the deliberateness of state action whether charter breach was
inadvertent or intentional
i. Was it a good faith/honest mistake or does the court need to disassociate themselves
from the behavior
ii. Or was it willful/flagrant disregard – the court will dissociate itself – court also
doesn’t like willful blindness, ignorance of charter rights
2. The impact of the breach on the charter protected interests of the accused
a. Don’t want to trivialize the accused rights
b. Spectrum approach – what type of breach was it - “fleeting and technical” or “profoundly
intrusive”
i. Very discretionary
3. The society’s interest in the adjudication of the case on its merits
a. Consider the reliability of the evidence and linking it to the state and societal interest in
prosecuting the crime.
b. If evidence is extremely reliable and crucial to the Crown’s case then it the courts will lean
toward including it.
c. Note: court moved away from considering the seriousness of the offence  focus is on longterm repute of justice system, and prosecuting based on a crime’s seriousness and public outcry
would do injustice over the long-term. See para 84 if necessary
The new Grant test is a balancing test akin to the reasonable person test for the type of action which brings the
admin of justice into disrepute.
o Disrepute will reflect community views - which pretty much becomes the reasonable person
test (R v. Collins)
 The test will be considered correct if it doesn’t get overruled on appeal.
Deschamps dissent: it should just be a two part test
1. Societal interest in protecting constitutional rights
2. Societal interests of adjudication on its merits
Scenario 4: If evidence is excluded, can it be used for other purposes?
No, if evidence is excluded under s. 24(2) b/c it could bring administration of justice into disrepute then it is
excluded for ALL purposes – Case: Calder
If inadmissible cannot use evidence (i.e. statement) for derivative purposes, unless Crown can prove that it was
discoverable (under s. 24(2))
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