Sources, Objectives, Trial Context ............................................................................................................... 4
Trial Process and Structure ....................................................................................................................... 4
Trial Structure ....................................................................................................................................... 5
Witnesses: Oaths, Competency and Compellability ..................................................................................... 7
Oath ........................................................................................................................................................... 7
Competency and Compellability ............................................................................................................... 7
Spousal Incompetency .......................................................................................................................... 8
Competency of Children and Adults w/ Limited Mental Capacity (See handouts) ............................ 10
Accused’s Competency and Compellability ....................................................................................... 12
Relevance, Materiality, and Probative Value .............................................................................................. 13
Relevance and Materiality ...................................................................................................................... 13
The Balancing Test: PV vs. PfP .............................................................................................................. 15
Character: Basics at Play ............................................................................................................................ 17
Accused Putting in Own Character at Issue (see handout) ..................................................................... 17
Similar Fact Evidence ......................................................................................................................... 20
Analytic Path for SFE ......................................................................................................................... 21
Character and SFE in Civil Cases ....................................................................................................... 23
Character of Non-Accused Witnesses ..................................................................................................... 23
Identity ................................................................................................................................................ 23
Affirmative Defences .......................................................................................................................... 24
Complainants in Sexual Offences ....................................................................................................... 24
Credibility ................................................................................................................................................... 26
Supporting Your Own Witness’ Credibility (Rule Against Oath Helping) ............................................ 27
Four Exceptions .................................................................................................................................. 27
Impeaching Credibility of Other Side’s Witness (Cross-Examination) .................................................. 30
Collateral Facts Bar – Legal Limit ...................................................................................................... 31
Adducing Extrinsic Evidence to Impeach ........................................................................................... 31
Impeaching with Prior Inconsistent Statements .................................................................................. 32
Impeaching with Expert Evidence ...................................................................................................... 32
Impeaching with Prior Convictions .................................................................................................... 33
Impeaching with Evidence of Bad Reputation for Veracity ............................................................... 35
Other Credibility Issues .......................................................................................................................... 36
Impeaching Your Own Witness (Hostile/Adverse Witnesses) ........................................................... 36
Rules of Corroboration ........................................................................................................................... 37
1

Hearsay ....................................................................................................................................................... 39
Implied Hearsay ...................................................................................................................................... 40
Hearsay Exceptions ................................................................................................................................. 41
Principled Approach ........................................................................................................................... 41
Categorical Approach ......................................................................................................................... 43
Reconciling Categorical Approach with Principled Approach- Analysis ........................................... 43
Concrete Categorical Exceptions ........................................................................................................ 44
Exotic Categorical Exceptions – not as strong as above ..................................................................... 46
Opinion Evidence ........................................................................................................................................ 49
Ultimate Issue Rule and Remnants of It Today ...................................................................................... 49
Remnants of Ultimate Issue Rule Today ............................................................................................ 50
Lay Opinion ............................................................................................................................................ 50
Expert Opinion ........................................................................................................................................ 50
Evidence and Aboriginal Rights and Title .................................................................................................. 53
Aboriginal Oral History and Challenges of CL of Evidence .................................................................. 54
Proof of Aboriginal Rights and Title ...................................................................................................... 55
Introduction to Privileges and Class Privileges .......................................................................................... 56
Class/ Blanket Privileges ........................................................................................................................ 57
Litigation/ “Work-Product” Privilege ................................................................................................. 60
Informer Privilege ............................................................................................................................... 60
Spousal Privilege ................................................................................................................................ 61
Case-by-Case Privilege and Other Means of Protecting Privacy ............................................................ 62
Criteria ................................................................................................................................................ 62
Protection of Third Party Records (
O’Connor
) .................................................................................. 63
Public Interest Immunity and Crown Privilege ....................................................................................... 65
Federal Immunity ................................................................................................................................ 65
Cabinet Secrecy: s. 39 of CEA ............................................................................................................ 66
Privilege Against Self-Incrimination ...................................................................................................... 67
Section 5 of CEA ................................................................................................................................. 67
13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence ............................................................................ 68
Statements by Accused and Exclusion of Evidence in Common Law ....................................................... 69
Accused and Right to Silence ................................................................................................................. 70
Accused Speaking at Common Law – To Persons In Authority ............................................................ 71
1. Person in Authority?; 2. Voluntary statement? ............................................................................... 71
1. Persons in Authority ....................................................................................................................... 71
2

2. Voluntariness .................................................................................................................................. 71
Current Standard for Voluntariness .................................................................................................... 72
Derivative Evidence ............................................................................................................................ 72
Exclusion of Evidence under s. 24(2) ..................................................................................................... 73
Proof Without Evidence .............................................................................................................................. 75
Formal Admissions of Fact ..................................................................................................................... 75
Civil Context ....................................................................................................................................... 76
Criminal Context ................................................................................................................................. 76
Judicial Notice ........................................................................................................................................ 77
Adjudicative Facts .............................................................................................................................. 78
Legislative and Social (Framework) Facts .......................................................................................... 79
3

All relevant evidence is presumptively admissible unless subject to some exclusionary rule
 evidence is relevant if: o Logical Relevance : does the evidence tend to prove or disprove the fact for which it was intended? o Legal Relevance : is the fact that the evidence proves or disproves a fact legally significant in establishing an element of the cause of action, offence or defence? admissibility: is a question of law for the judge

potential for appeal
 weight: how much stock is put into the evidence, determined by the finder of fact (judge or jury)
Law can create reasons for excluding otherwise relevant admissible evidence:

Intrinsic Exclusionary Rule: Evidence whose probative value is outweighed by its potential for prejudice is inadmissible (residual discretion)

related to the quality of the evidence o potential for prejudice exceeds probative value will distort reasoning of the finder of fact

Extrinsic exclusionary rule: Exclusion b/c of policy or process reasons totally unrelated to value o Value or social goal trying to be protected through rule of evidence (privilege, reputation of judiciary, etc)
Objectives of the Law of Evidence

Truth – ensuring that the true story comes out

Fairness – to the witnesses, parties, etc

Social and Structural Values – complexity to the law of evidence
Sources of the Law of Evidence
1.
Common Law: developed piecemeal in response to issues  dynamic area of CL b/c of change
2.
Statutes: Tend to be broad procedural type rules – structural issues; codification of existing CL rules, or revisions of old/outdated socially unacceptable CL rules
3.
Constitution: Ensure admin of justice ≠ disrepute  ss. 24(2), 11(b), 13, 7
4.
Aboriginal law: allows for oral traditions
Continental vs. CL: continental is free proof principle  everything goes to jury ≠ prophylactic

Characteristics of CL system: embrace of complexity, prophylactic orientation, effort to structure analysis of facts even once they’ve been admitted into trial
With few exceptions, all facts must proved/ disproved through witness testimony.
Criminal trial

Begins with charging document called indictment; specifies offence charged & brief facts

Disclosure: Crown must disclose all relevant and non-privileged info to D ( Stinchcombe )

At outset of trial, accused must enter plea (guilt/ not-guilty)
4

1.
Motions: opportunity for motions conducted through voir dire o way in which evidence can be admitted/ excluded o Can happen at beginning of trial/ all the way through

Hearsay: jury excused
 If qualification and credibility issue: jury stays to assess weight of witness if accepted
2.
Crown / P’s case in chief o Opening stmt o Adduce evidence through witness (no leading questions) o C-E by D (leading questions permitted) o Redirect if something new comes up o Repeat process for all witnesses
3.
Motions for a Directed Verdict o Burden on the P/C to prove issues at trial, so D has the opportunity to claim that P/C has failed to educe any evidence on an essential issue
 Test: No evidence upon which a jury, properly instructed, COULD find for the P/C
 Judge must decide along – Judge cannot give a directed verdict of ‘guilty’ o Monteleone (1987 SCC ): Where there is before the court any admissible evidence, whether direct or circumstantial, which, if believed by a properly charged jury acting reasonably, would justify a conviction, the trial judge is not justified in directing a verdict of acquittal
4.
D’s Case in Chief o Defence opens, defence’s case in chief (direct, C-E, redirect) o D closes case
5.
Crown/ Plaintiff can reopen (possibility): only if something new brought up
6.
Closing statements o Civil case: P first, D second (with jury) o Crim: D first, Crown second unless accused does not adduce evidence (s. 651 CC )
Overarching all of this is a question of burden of proof :
= Onus (Who-Crown) + How much (standard-BRD)

Evidentiary burden : raise enough evidence, if believed, could prove issue (air of reality)

Persuasive/ ultimate burden: BRD, BOP

In Charter litigation, onus is on the applicant to prove on a BoP that rights were infringed o Oakes : preponderance of probability must be applied rigiorously

Just must explain BRD properly ( Lifchus )

≠ have a fair trial if this done wrongly o BRD: jury must be satisfied of something more than probable guilt
R v. Lifchus (1997 SCC)

BRD: inextricably linked to the presumption of innocence

Jury charges should avoid: o Describing the charge as ordinary or within the common sense context o Describing the charge as moral certainty o Qualifying “reasonable” and “doubt” with alternative adjectives

Jury charges should include: o Link to the presumption of innocence ( Oakes ) o Should not be based on sympathy or prejudice o Does not require the proof of absolute certainty o Logically connected to evidence o “probably guilty” is not enough
5

Presumptions

Presumptions w/out basic facts: conclusion is to be drawn until contrary proven

Presumptions with basic facts: conclusion to be drawn upon proof of basic facts

Rubuttable presumptions raise the following burdens: o Raise reasonable doubt as to its existence o Evidence to bring into question the truth of the presumed fat o BoP points to the non-existence of the presumed fact
Putting a Defence in Issue

Trial judge must determine if a defence is worthy of being in issue

Pappajohn (1980 SCC): There must be in evidence some basis upon which the D can rest – when there is any evidence of a matter of fact the proof of which may be relevant to the guilt or innocence of an accused, the trial judge must leave that evidence to the jury

Cinous (2002 SCC): Air of reality test for putting forth a defence: o Judge considers the totality of evidence and assumes the evidence of the accused is true o Not to determine the strength of the defence, only if the evidence discloses a real issue that should properly decided by the jury

Once defence is put to the finder, it is on the Crown to disprove it beyond a reasonable doubt
6

General Rule : All information from a trial should come from witnesses

Witness testifies to accuracy of information/ facts/ any document or object offered in evidence

Judge decides competency (motion/ voir dire)

jury stays to assess weight/ credibility of testimony
Two prerequisites to testify:
1.
Competency: competence (can), compellability (must/ can be forced to testify)

generally if competent, also compellable
2.
Oath/ solemn affirmation/ some statutory substitute
Purposes:

Some formal indication that what follows will be the truth
 Warning to witness saying that if witness doesn’t tell the truth, he/she can be charged w/ perjury

Historically, religiously based
Federal Legislation:
 s. 13 CEA : provides power of judge administer witness to take oath
 s. 14 CEA : alternative to oath = solemn affirmation
 s. 14(2) CEA : Solemn affirmation has same weight as oath.
 s. 15(2) CEA : solemn affirmation treated same as oath (prosecution for perjury)
 s. 16.1 CEA : children <14 can testify on promise to tell truth  same weight o children do not need to swear on oath (See chart)
 adults can give promise to tell truth  not same weight
Provincial Legislation:
 s. 20 BCEA : solemn affirmation for civil trials
 s. 21 BCEA : lack of religious belief does not invalidate oath
CL has two principles  still our starting point and useful in filling in gaps
1.
All witnesses are presumed competent
2.
All competent witnesses are compellable
Common Law Exceptions and Relevant Legislation
Exceptions to competency in CL

some overruled by legislation
 Accused couldn’t give evidence b/c would force them to lie (eternal damnation) or tell truth
(participate in execution); accused ≠ be put in this situation o s. 4 of CEA : accused is competent witness for defence only

Felons: now overruled by s. 53 of CEA

Spouses: s. 4(1)  see below

Children: s. 16.1 of CEA , s. 5 of BCEA  see below

Mentally ill people: s. 16 of CEA , s. 5 of BCEA

see below
7

Exceptions to compellability in CL

still in effect today

Sovereigns

Foreign diplomats

Judges, with respect to their judgeship
Changes in CL due to trend of putting more evidence before jury (want to narrow incompetency)
Historically, at CL, spouse of accused considered incompetent. Why?
1.
Protection of matrimonial harmony
2.
Natural repugnance (for spouse to be means of other’s condemnation) o Couture
: indignity of conscripting accused’s spouse to participate in prosecution
3.
Husband and wife single person at law
4.
Identical interest

Only first two rationales support spousal incompetence legislation even though st massive criticism ( Couture )

Does not apply to CL marriage ( Jackson )

1 & 2 remain under attack – tension b/w societal interest in marriage & freedom of the individual emphasized by the Charter ( Salituro )
Modern Rule: Spouses cannot be called to testify by the Crown subject to 4(2), 4(4) CEA and any common law i)The rule of spousal incompetence applies ONLY where there is a valid and subsisting marriage . ii) Who is a Spouse ? ‐ for TJ to determine on Balance Of Probabilities - ( R. v. Jeffery)
1. DOES apply to same-sex couples
2. Does NOT apply to Common Law relationships ( now in question due to recent ON case )
3. Does NOT apply to Ex-Spouses ( Machard ) – Crown must show "no reasonable prospect of reconciliation" ( Salituro )
4. Does NOT apply to married, but irreconcilably separated spouses .
5. May NOT apply to 'sham' marriages if CLEAR evidence that married to insulate themselves ‐ but ultimately left to Parliament to decide ( Hawkins )
In a Criminal Trial ( s.4 CEA )
1.
s.4(1): Spouses are competent for the defence (but not for the Crown) + Couture Rule
2.
s.4(2): Exception – spouse is competent and compellable ( Gosselin: comp = compellability ) for the Crown where accused is charged with a crime of sexual nature / sexual violence
3.
s.4(4): Exception – spouse is competent and compellable for crimes against children o Under (2) and (4), spouse is both competent and compellable for the Crown ( Schell )  policy consideration for protecting safety overwhelm rationale supporting spousal incompetency
4.
s.4(3): Spousal privilege: no spouse is compellable to disclose any communication made to them during their marriage
5.
s.4(5): Spousal incompetency rule does not apply where there’s violence against spouse, or where the spouse is irreconcilably separated, divorced, etc. ( Schell, Salituro )
6.
s.4(6): No inference or comment should be drawn by he failure to testify ( Noble ) o Defence can make comment about it though o Important for the right to silence of the accused ( Noble )
8

Couture “test”
“the question… is whether, from an objective standpoint [admitting the evidence] in the particular circumstances of the case would be disruptive of marital harmony or give rise to the natural repugnance resulting from one spouse testifying against the other.”
R. v. Couture at para. 66
Marital/Spousal Privilege - s.4(3)
Intermarital communications ‐ spouse cannot be compelled to testify on communications made to him/her within marriage relationship,
Summary:
 Subject to limitations spouse ≠ be forced to testify for prosecution.

Pre-trial statements by spouse cannot be introduced based on policy rationales (
 Doesn’t apply to CL marriage, irreconcilably separated couples ( Jackson )
Couture )
Civil Context: ss. 6 and 7 of BCEA

parties themselves and spouses are C&C
Cases:
R v. Salituro (1991):
Facts
: Husband forged wife’s signature on a cheque and cashed it. Trial judged concluded that they were irreconcilably separated. Conviction relied on Mrs. Salituro’s testimony.
Issue : Is there a CL exception to spousal competence rule for spouses who are separated w/out reasonably possibility of reconciliation?
Held
: Brought in a CL rule saying “yes” – there is now a CL exception for spouses who are separated without any reasonable possibility of reconciliation.
 The two remaining justifications don’t apply to separated spouses. Would be affront to individual liberty to retain rule in this context.
R. v. Couture (2007, SCC):
Facts : Accused of killing two ex-girl friends. Conviction based in part on out-of-court statements made by his wife while they were estranged. Have since reconciled.
Issue : Are out-of-court statements by spouse admissible at trial (none of the s.4 exceptions apply here)
Held : para 71: Taking of evidence for express purpose of presenting it against spouse, undermines spousal competency rule rationale.
Takeaway : Combined with the CEA, no spouse is competent to testify against the accused, AND statements made outside of court are not admissible if to admit them would undermine the rationale behind the spousal competent rules (two policy considerations – disruptive of martial harmony OR give rise to the natural repugnance resulting from spouse testifying against spouse)
R v. Noble (1997, SCC)
Facts : A couple of men were attempting to jimmy a car with a screwdriver. Claims, not breaking into car but rather smoking marijuana. Apartment manager smelled no smoke. Manager confiscated license.
Accused convicted on basis of license & silence.
9

Issue : Evidentiary Significance of the failure of the Accused to testify at trial:
May the trier of fact consider the silence of the Accused in arriving at its belief in guilt beyond a reasonable doubt.
Held : No. Right to silence and the presumption of innocence preclude such use of the silence of the D
Alibi exception
Accused not compellable, no negative inference can held from silence except in alibi context.
It is an error of law for the judge to comment on the silence (s. 4(6)), this is problematic as there is no way for the jury to be informed as to what acceptable inferences can be drawn from the silence, as the judge is not prohibited from instructing that the Crown evidence goes uncontroverted..
Our main concerns for these categories of witnesses ( Kendall ):  some addressed in Marquard test

Their capacity to observe


Their capacity to recollect
Their capacity to understand questions and frame intelligent responses

Their moral responsibility
Adult Competency Analysis: Section 16 of CEA
Step 1 : s. 16(5): Adults are presumed competent. Party challenging capacity must demonstrate that there is an issue  initial threshold. If passed, proceed to s. 16(1).

Before, children automatically assessed under s. 16(1); initial threshold did not have to be met
Step 2 : s. 16(1): Two questions
1) Is proposed witness able to communicate? o if no, witness is not competent to testify  s. 16(4) o Test: judge must satisfy himself that witness possesses capacity to ( Marquard ):
 observe
 recollect
 communicate o Not a high standard - no concern of accuracy (weight goes to jury); concerned only w/ bare capabilities o L’H-D dissent adopted in s. 16.1
2) Does proposed witness understand nature of oath/ solemn affirmation? o if no, promise to tell truth  s. 16(3)- unsworn testimony requires ( Khan )
 sufficient intelligence to appreciate the significance of testifying in court and
 understands that it is important to tell the truth in court and the practical consequnces of lying (conscience) o If Yes – swear them in and they can testify o If No – there’s a provision to allow the promise to tell the truth
 There’s no perjury for a promise to tell the truth – weighted accordingly by jury
R. v. Khan (1990, SCC)
Doctor – sexual assault – child witness
10

R v. Marquard (1993 SCC)
Facts : D found guilty of burning grandchild – based on inconsistent testimony given by 3.5 yo victim
Issue : Was the 3.5 year old child competent to testify?
Held : Section 16(1)(b) – where a proposed witness under 14, court shall conduct an inquiry to determine if the witness is able to communicate that evidence

Trial judge must be satisfied of the testimonial competence, comprehends: o 1. The capacity to observe o 2. Capacity to recollect o 3. Capacity to communicate

Not a high burden, just basically able to perceive, remember and communicate all that is required
Dissent : Presumption of unreliability under s16 is false – juries can assess the credibility of children

TREND in evidence is to admit more evidence before the trier
Child Competency Analysis: Section 16.1 of CEA
Section 16.1 created specifically for children to allow increased admissibility of children’s testimony

Children too frequently seen as incompetent  effects charging people w/ child offences

Trends: to view children as more reliable  put more evidence before jury

Marquard dissent (L’H-D) adopted in s. 16.1 CEA
Step 1 : Children <14 may only testify on promise to tell truth

s. 16.1(6)

Can never take oath/ solemn affirmation: s. 16.1(2); cannot be charged w/ perjury
 s. 16.1(7): can never inquire whether child understand what telling the truth means at this stage o Not bared from being asked at cross-examination, only bared at competency assessment
Step 2 : Children presumed to have capacity to testify

s. 16.1(1)

only addressed if put in question by the challenging party
Step 3
: Party may challenge child’s capacity to testify but must satisfy burden that there’s an issue re child’s capacity to understand and respond to questions 
s. 16.1(4)
Step 4
: If court satisfied there’s issue, judge must inquire to determine child’s capacity 
s. 16.1(5)

Standard of Competence: Whether child can understand and respond to questions

s.
16.1(3); Marquard dissent (Majority - recollect, observe, more than mere capacity)

If test passed

child can given testimony on promise to tell truth

s. 16.1(6)

Testimony has same effect as one under oath  s. 16.1(8) (except perjury).
Civil Litigation
Section 5 BCEA is same as s. 16 of CEA  no streamlined section for children equivalent to s. 16.1

Like old scheme, were children presumed to be assessed?
Assessing Credibility of Child Witnesses
11

Children experience world different from adults. Details such as time, location may be missing from recollection

leniency should be given:
 Should approach children’s testimony on common sense basis, taking account strengths/ weaknesses of evidence offered: R. v. W(R)

Standard of proof for children = adults; but, flaws such as contradiction in child’s testimony should not be treated same as same flaw in adult testimony: R. v. B(G)
Accused’s not C&C for Crown; only for D  s. 4(1) of CEA

Charter : Accused has s. 7 (R to silence is PFJ) and s. 11(d) privilege against self-incrimination

Presumption of innocence supports conclusion that accused’s silence cannot be used against him as evidence
 Silence MAY be Constitutionally Used by Trier to. i. CONFIRM Prior findings of Guilt Beyond a Reas. Doubt
In trial by judge alone, silence referred to as evidence of the absence of an explanation to raise a reas.doubt after trier has reached a belief in guilt beyond a reasonable doubt. ii. Remind Juries they need not speculate about unstated defences.
In jury cases, judge prevented from commenting on silence to jury ( s.4(6) of CEA ) ‐ thus, no practical way to prevent the jury from drawing an improper inference from silence
Dissent (Lamer CJ) = "when an accused is 'enveloped' in a case of unexplained inculpatory circumstances, there are consequences to silence that trial judges, juries and appellate courts may consider in reaching a verdict."

Silence can be very probative regardless of the sophistry of claiming it can only CONFIRM a finding
Dissent (McLachlin): Two Stages
1. Has Crown adduced evidence that, if believed, would support a conviction beyond a RD
2. Should the trier believe the Crown's Evidence ‐ silence is relevant here ‐ can make inference that
Crown's case unchallenged ‐ Silence becomes relevant here ‐ can make inference that Crown's evidence stands unchallenged
Alibi exception: Certainly exists pre-trial, extended to right to silence. Trier of fact may draw an adverse inference from failure to testify where alibi defence is advanced
Alibi Exception rationale:
1) Adequate notice to the Crown is required
2) This evidence can be readily fabricated
 s. 4(6): error of law to use failure of accused to testify against him BUT judge and prosecution cannot tell jury that (weird)  likely unconstitutional ( Noble ) o adding to oddity, on appeal, you can’t speculate as to why jury came up w/ decision o argument that s. 4(6) is unconstitutional b/c prohibits judge from telling jury that it would be error of law ( Noble ) o reconciling factor: D can inform jury that it’s an error of law BUT if it’s not mentioned/ endorsed by the judge, how will the jury use this info?
12

Evidence in a Nutshell
1) Relevant evidence is generally admissible.
2) However, relevant evidence whose probative value is outweighed by its potential for prejudices is not admissible
3) The law can create reasons for excluding otherwise relevant, admissible evidence for policy or process reasons totally unrelated to the value or potential use of the evidence.
Different Types of Evidence (expert evidence can be all four)
1.
Oral ( viva voce ): evidence of a live witness
2.
Documentary: record of affidavit, electronic docs  anything that contains thoughts/ expressions/ representations but isn’t viva voce
3.
Real: Object is evidence itself (weapon, jacket)
4.
Demonstrative: reconstruct scene or action
All types are subject to same rule of evidence
Direct v. Circumstantial Evidence

Direct: information coming before court directly saying whether fact is true or not o Once believed, no other conclusions can be drawn (definitive)

Circumstantial: evidence/ testimony produced provides some info that might suggest fact is true or not (inference) o Treated as less table than direct due to necessity of inference – common sense inferences o Mens Rea arguably always requires circumstantial evidence, state of mind inferred
Four Questions to Ask When Assessing Relevance
1) What are the issues at stake?
2) What fact is this evidence offered prove?  now set up to determine relevance
3) Does evidence tend to prove or disprove this fact? (logical relevance)
4) Is this fact proved or disproved in 3) at issue? (materiality / legally relevant)
GR : Evidence is relevant whenever there is a connection, as a matter of logic and human experience, between the evidence and the fact in issue ( Morris )
Logical relevance (link): Does this evidence tend to prove/ disprove fact for which it’s offered?

No such thing as minimum PV / quality of evidence to satisfy step

only about existence of link; not strength of link ( Watson )

Tends to make desired inference more probable = relevant ( Thayer )

The law 'furnishes no test' ‐ it is a matter of common sense ( Thayer )
Legal Relevance (Materiality) – connection b/w fact and matters in issue

Issues defined by (substantive law, pleadings, procedural rules)


Criminal: At issue is the actus reus, mens rea or any defences
Civil: At issue is what is present at the pleadings (charges and defence)
13

Multiple Relevance
Same piece of evidence may be relevant to numerous matters. (eg. Credibility &
Disposition)
Relevance & Social Context no 'test' so it comes down to the individual judges and their particular life experiences.
Social context evidence can be admitted by taking judicial notice or by expert evidence.
See Discussion of Judicial Notice (very controversial)
,
Relevance Criteria
Ongoing nature: Blackman : Assessment of relevance is an ongoing thing and can only be fully assessed in the context of the other evidence at trial. (meaning: can have voire dire on issues already brought up)
 Depending on the stage of the trial, the “context” within which an item of evidence is assessed for relevance may well be embryonic.
Connection/ Nexus: For fact to be relevant to another, there must be a connection or nexus b/w two which makes it possible to infer existence of one from existence of another ( Cloutier )

Example of insufficient nexus: Majority in Cloutier held that marijuana in accused’s room ≠ have nexus sufficient enough to prove he imported marijuana into Canada

beware: see below!

Example of sufficient nexus ( Morris ) : newspaper clipping in night table detailing heroin trade into Pakistan was relevant  had sufficiently logical connection w/ importing heroin into HK o Why? Evidence of some preparatory steps taken towards importing ( Morris ) o no degrees of relevance ( Watson )

rejects Cloutier as wrongly decided!
Relevant evidence is a low standard

trend: want more evidence to go to finder

residual discretion is where evidence is normally excluded
 no degrees of relevance

rejects Cloutier as wrongly decided!
Cases:
R. v. Watson (1996, Ont. CA)
Victim shot at workplace, 5-7 times. A stood on guard while other two shot victim in cross-fire.
Issue : Is the question of whether the victim usually carried a gun relevant to whether there was a spontaneous fight or a planned murder?
Held : Yes, habit of carrying a gun is logically relevant and material
Inquiry is as follows:
Does the fact the deceased always carry a gun make it more likely that he had a gun when was shot?
Does the fact that the deceased have a gun on him when he was shot make it less likely that the appellant was a party to a plan to kill him? Yes – makes it more likely that the second gun belonged to the deceased not to the 3rd guy in the warehouse.
Discussion of disposition v. habit – inferences necessary to render disposition evidence necessary may be more difficult to draw than what is required where habit is at issue
14

Morris v. The Queen (SCC)
Facts : Accused charged with importing heroin from Hong Kong. Find newspaper clipping of heroin trade in Pakistan in his room. Evidence excluded at trial for irrelevance
Arguments :

Defence: Since evidence is about Pakistan, not Hong Kong and would be prejudicial

Crown: Evidence is preparatory to the accused
Held : Evidence is relevant here.
Ratio : Evidence is relevant whenever there is a connection as a matter of logic and human experience, between the evidence and the fact in issue. There are no degrees of relevance! (reject Cloutier as wrongly decided) Prejudicial danger of evidence leading to character reasoning/conviction (what kind of person not what they did)
R. v. Lavallee
Facts : Battered spouse shoots hubby in back of head.
Issue : Materiality of expert evidence re. 'battered spouse syndrome' to support defence of SD.
Cloutier v. The Queen (SCC):
Facts : Accused w/ importing narcotis. Mom picked up crate of furniture that had pot in it.
Issue : Is marijuana in Accused’s room relevant
Held : No – not sufficiently relevant
Overruled: Morris emphasize no minimum probative value required.
Even if relevant, evidence should be excluded if PV is outweighed by its PfP

PV: usefulness/ helpfulness; how strong the link is; reliability

PfP: distortion in reasoning

potential for misuse of evidence/ evidence that could damage trial process and could lead jury into error

Distinguishes CL from civilian systems
Residual Discretion for Crown and Defence
Judge has power to exclude relevant evidence tendered by Crown on basis simply that PP > PV

Power to exclude evidence from defence is narrower and constrained by tenet that innocent person should not be convicted  dependent on R to present full answer and defence o Can be excluded where PP substantially outweighs PV o Circs where truly relevant and reliable evidence is excluded are few
Factors TJ should consider in performing balancing test (counter-balancing)  Clarke :
1.
Danger that evidence will arouse jury’s emotions of prejudice, hostility or sympathy
2.
Danger that evidence will create a side issue and unduly distract jury
3.
Evidence will consume an undue amount of time
4.
Danger of unfair surprise to opponent who had no reasonable grounds
5.
[Added in this case] danger that evidence presented in such a form as to usurp jury’s function
15

Constitutionally entrenched: It is a PFJ that judge always has capacity to exclude evidence based on residual discretion ( Harrer, Corbett )

Residual discretion always in background

EXCEPTION : s. 7 and CLCR

when detainee knows he/she’s speaking to person in authority, and CLCR test satisfied, court has no residual discretion under s. 7

EXCEPTION : To break informer privilege

no balance should occur (only st innocence @ stake)
Concession to Accused: If accused offering evidence, court will only exclude if its PV is substantially outweighed by PfP ( Seaboyer )

Policy concession b/c accused has constitutional R to full answer and D
16

GR: Evidence offered solely to show the bad character of an accused is not generally admissible. It’s relevant but not admissible. (also called disposition/ propensity of evidence)

Definition- Character evidence: Evidence that invites the inference that b/c of a particular trait/ habit/ feature, an individual is more or less likely to act in a given way
Can be proven by:

Specific Acts

Reputation

Psychiatric Evidence
Bad character evidence of accused : Evidence that invites inference that b/c of a given trait/ disposition, accused is kind of person to likely have committed offence

At law, this inference is called prohibited character inference  character evidence is always relevant but excluded b/c PV<PfP ( Rowton )
What makes bad character evidence prejudicial to accused?

Trial process will be diverted  focus will be on personal details instead of facts in case


Jury will place too much weight (over rely) on it

distort reasoning
Concern w/ wrongful convictions and presumption of innocence and full answer and defence o Jury may think accused is not worthy of justice; should be in jail anyway
(handout)
Where would Crown offer character evidence? 4 situations:
1) Where directly relevant to issue in trial (defamation, dangerous offender)  evidence always admissible – no special rules to govern admissibility in these circumstances
2) Where relevant to credibility w/ incidental character effect  admissibly only if PV>PfP o Many limitations on the use of this type of evidence
3) As similar fact evidence

admissible if passes Handy SFE test
4) For sole purpose of suggesting accused is person of bad character

can never intro bad character evidences unless accused has put good character in issue ( Bricker ) o The result would be that the man on his trial would be overwhelmed by prejudice, instead of being convicted on that affirmative evidence which the law requires ( Rowton )
GR: Crown cannot adduce evidence for the sole purpose of suggesting the accused is of bad character
UNLESS the accused has put his/her good character in issue

Accused puts good character in issue when she expressly or impliedly asserts that she would not have done the things alleged against her b/c she is a person of good character ( McNamara ) o Denying allegations or offering a defence are not putting good character in issue

If accused asserts good character, judge can charge jury and state that they can use this evidence

( Loggocco )
Why the asymmetry b/w Accused and Crown? No policy concerns

maintains accused’s ability for full answer and D
17

o May help accused raise reasonable doubt; avoid wrongful conviction
Once accused puts character at issue, Crown can rebut

bring back to neutral position
Rationale and rules drawn out in McNamara
?
 question of law b/c determines admissibility of
Crown’s rebuttal
1.
General reputation evidence
: witness can be called to testify to accused’s general reputation in community (must be actual general rep, not personal opinion or evidence of specific prior good acts) o Witness cannot give personal opinion. Community = residential community ( Rowton ) o Community can be any community who knows accused well ( Levasseur ) o Evidence rules must expand in accordance w/ exigencies of society ( Pritt v. Fairclouth ) o Can be rebutted with SFE ( Guay )
2.
Accused’s own testimony
(including evidence of specific prior good acts): Accused can take stand and illustrate character broadly/ specifically, directly/ impliedly o Implied examples:

Accused said he was making honest living for 4 years

put character in issue
( Baker )

Accused said he returned property to police twice
 character in issue ( Samuel )
 Accused said he’s never been convicted/ arrested (
Morris )

Accused said he was good parent ( O(D) )

Accused said wife was psychopath, not him ( McMillan ) o Crown cannot trick/ adduce accused to draw out character evidence; accused must have done it on own accord

reconcile w/ implied character evidence? o Crown can re ‐ open if blindsided by character in accused’s testimony as last witness o If accused adduces good character, he is entitled to have the jury charged of that evidence of good character ( Rv. Loggocco )
3.
Expert (Psychological Good) character evidence : Use psychiatric evidence to adduce info that he had/ lacked distinctive psychiatric/ psychological trait that “real” offender must not have/ have o Example: Offence must have been committed by sexual psychopath; adduce evidence to show that accused does not possess qualities of psychopath ( Mohan ) o Basic requirements for psychiatric evidence to be potentially admissible ( Mohan ):

Must be relevant to issue

Must be of appreciable assistance to trier of fact

Must be evidence that would otherwise be unavailable to ordinary layman w/out specialized training o Once basic requirement met, ordinary/ extraordinary crime vs. ordinary/ extraordinary person must be considered:
 If extraordinary crime: evidence admissible if shown crime could only be committed by person having identifiable particularities accused does not possess
 If ordinary crime/extraordinary person: evidence admitted only to show characteristics of D tends to show them incapable of committing the crime o Then judge must be satisfied as matter of law that comparing behavioural characteristics of perpetrator w/ accused’s will be material in determining guilt/ innocence
4.
Attacking someone else’s character : Scopelliti boomerang ( McMillan )
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o When implicit argument attacking character of another party involves a character comparison of accused and other party, accused has put his/her own character at issue

Essentially saying that accused person is better than third person
(Any one/all of following

Scopoletti boomerang)
1.
General reputation evidence ( Rowton ) : same rules as above – must be general not personal opinion, or specific bad-acts of the accused
2.
Cross-examination, including on prior bad acts : Seen in McNamara and O(D) - if accused bring character in issue, Crown can cross-examine asking for specifics o McNamara : prior bad act was brought up to rebut good character evidence adduced by the accused – D stated he was an honest business person o Crown's OWN Bad Character Witness – known as a rebuttal witness o Only applicable where Crown has applied to reopen their case after Accused has put their character @ issue.
3.
Prior Convictions- s. 666 of CC : Can adduce evidence of previous convictions o Allows Crown to go further than s. 12 CEA o Once character evidence at issue, crim record automatically kicks in o Highly prejudicial, but allowed where the accused puts character in issue
4.
Expert character evidence ( Tierney ): Same way is Mohan o Can raise evidence that the accused shares a character trait with the type of person who would commit a the crime
If you don’t want evidence to be introduced  always argue residual discretion (all rules subject to this)

Harrer Corbett
This prevents the Crown from going overboard
Cases:
Levasseur : Witness testified reputation in business community.
CA: the relevant community is any community who knows the accused well
Pritt v. Fairclouth (1812) : Rules of evidence must expand in accordance w/ exigencies of society. So reasoning from Pritt we get:

No purpose is served by denying an accused the opportunity of providing witnesses who can report on his reputation in his work environment rather than residential community
 Sustaining old rule would deny individuals whose lives don’t revolve around their community the opportunity to offer witnesses of good character
Rownton
○ Accused charged with indecent assault. Called character references, said it was too much like personal opinion – this is a concession to the accused as to the options she has, but do not want to have an unending line of character references (concern about specific acts is a problem because would likely get too many witnesses)
○ Ratio: Evidence must be of general rep in community, not personal opinion or specific good acts
Baker
Accused (theft) testifies that he had been making an honest living for 4 years. Court says this is talking about character, and the D had put his good character into issue
19

R v. McNamara (1981 ONCA)
Facts
: Accused being tried for conspiracy to commit fraud; suggested he’s not the type to commit offence
Held : Where the accused puts his character in issue, the Crown is allowed to cross-examine for the purpose of rebutting the character assertion
Doesn’t apply to intro statements (denial of charges, raising defence, etc); only applies where the accused implicitly or explicitly suggest that they are not the kind of person likely to have committed the offence in question
Where this is done, the Crown can respond with bad character evidence
A jury instruction should be read to ensure that the character evidence is to be used to determine credibility of the witness only, and not towards and assumption of propensity for guilt
Without the ability to cross-examine character evidence adduced by the accused, the D would have the ability to put forth as much unrefuted character evidence as they wanted
The purpose of allowing rebuttal character evidence is to determine whether or not eh character put in issue by the accused is credible in nature
R v. Mohan (1994 SCC)
Facts : sought to adduce that person to have sexually assaulted girls must have traits of sexual psychopath and expert evidence would say that he doesn’t have character traits of a sexual psychopath.
Issue : Under what circumstances expert evidence is admissible to show that character traits of an accused person do not fit the profile of the putative perpetrator of the offences charged?
Held : A person who would commit a sexual assault is not a distinctive enough group – inadmissible
Reasons : Judge must be satisfied, as a matter of law, that either the perpetrator of the crime or the accused has distinctive behavioural characteristics such that a comparison of one with the other will be of material assistance in determining innocence or guilt.
Made based on common sense and experience with relevant factors
Mere personal opinions are not admissible under this category
Expert must be testifying in their specific field
Must be such that the behavioural profile is in common use as a reliable indicator of membership in a distinctive group – cannot be said in this case
The jury is NOT asked to infer that the accused is the KIND of person to commit the crime, rather the jury is asked to infer from the degree of distinctiveness or uniqueness that exists b/n the commission of the crime and the similar act that the accused is the very person who committed the crime. ( Arp )
SFE is general exception to character rule

Crown able to adduce it first

If D wanted to introduce SFE

only have to meet relevance tes t ( Scopelliti )
SFE RULE:
“Evidence of prior bad acts by the accused will be admissible if prosecution satisfies the judge on a BOP that, in context of particular case, the PV of the evidence in relation to a specific issue outweighs its potential prejudice and thereby justifies its reception ( Handy )

Crown must convince judge on BOP to protect fair trial
20

 Must be so strong that “objective likelihood of mere coincidence is extremely slight”

PV is so high (even overcomes substantial PfP) that once admitted, SFE is so strong that it often disposes of case ( Pacman Principle )
SFE Issues

Striking similarity must be so connected that it would be an affront to common sense to exclude it

Very high potential for prejudice as well

The fact that SFE may consist of prior bad act (crimes) does not make them inadmissible ( Makin )
What “Specific Issue” Can be Proven by SFE?

Identity (evidence so strong it proves something other than character): o In Straffen
: strong similarities in murder acted as accused’s murder “signature” - no sexual interference, no motive, no attempt to hide, young girl  factual matrix indicative of modus operandi

Mens rea: o In Makin - D for couple who killed babies was accident. SFE of all babies found in several property shows intention

Some component of offence: absence of consent, actus o In Smith : SFE proved actus

all 3 dead wives accidentally drowning in bathtub;
“objective improbable” that it was mere coincidence o In Handy : absence of consent

Rebut D of legitimate association for honest purposes and evidence of good character ( Guay )
SFE is presumptively inadmissible – Onus on the Crown to satisfy on BoP that the PV > PfP.
1.
Identify Non-Character (“specific) Issue SFE trying to prove: identity, actus, mens rea ( Handy )
• Must be material issue beyond character or disposition
• Probative value is determined by reference to that issue & its importance
2.
Evaluate PV of SFE – looking fore nexus with a relevant issue

Basic test: Is PV so high that the chance of mere coincidence/ mistaken identity/ mistake of nature of act extremely slight?

not impossible

Determine degree of connectedness, strength of nexus b/w SFE and current offence. Look at: o Nature of similarity b/w details, distinctive features, and circs of past act and those of current offence – look at dissimilarities o Proximity in time b/w past and current offence: less compelling w/ time o # of occurrences of similar acts o Any intervening event: news coverage, counseling, etc. o Any other factor tending to support/ rebut unity of past acts and conduct now in question
3.
Evaluate PfP (moral prejudice- inference; reasoning prejudice- distraction)

Moral prejudice: potential that jury will start reasoning that the accused is the kind of person to have committed offence. o This prejudice will increase if it’s a more inflammatory set of charges
 Reasoning prejudice: Jury will become distracted w/ past events that if they’re highly complex/ really reprehensible/ disturbing

jury may lose focus on if accused committed current offence o Concern of several mini trials occurring
4.
Now...Balance the PV vs. PfP
21


Evidence does not have to be conclusive

but degree of connection must arise to level of fingerprint/ signature/ hallmark

Threshold for SFE is very high

PacMan analogy in class

Test: would it be affront to common sense that this would be a mere coincidence of similar facts?
5.
If PV>PP, Charge the jury

may use evidence for identity, mens rea, actus rea, but not that accused is kind of person to commit offence ( Arp )
R. v. Handy
Facts: Accused charged with sexual assault. Went to motel with woman who initially consented to sex, didn’t stop when she said ‘stop b/c he was hurting her’. Crown called accused’s wife with testimony of pastsexual violence
Trial judge: Admitted evidence for establishing pattern turning consensual sex into serious sexual abuse.
Evidence of collusion (wife would get 16.5 K for claiming abuse) but denied by trial judge.
Held: Agrees with OCA that prior bad acts weren’t sufficiently probative
to be admitted as similar fact evidence, new trial
Reasons:
1) Accused had pattern of sexual intercourse in absence of consent ‐ isn’t moving from consent to non ‐ consensual sex as there was never consent with wife (lowers probative value)
2) Crown did nothing to rebut possibility of collusion, not considered by trial judge
3) Credibility issues with wife
Test : Would the exclusion of the evidence be affront to common sense? If so, must admit
Makin v. AG for New South Wales (1894, JCPC)
• Facts : Accused charged with murder of children given to them to nurse for small (insufficient) fee on representation they would adopt the children. Children end up dead and buried in home of Ds. Defence of accident. Crown showed that 8 more children were entrusted to accused in same situation all dead.
• Held : Deaths were not accidents, guilty of homicide with admissibility of prior bad acts
Ratio : If nature of evidence of prior bad acts is such that it proves a relevant issue unreleated to character
(ie. intent to kill), than evidence may be admissible.
- While generally prior bad acts are inadmissible, the fact that the SFE shows commission of other crimes does not render it inadmissible if it is relevant to another issue at trial – here: intent!
R. v. Smith (1915, CA)
Facts
: Accused’s wife found dead in bath shortly after marriage. Crown introduces evidence that accused had done the same twice before (new wife found dead in bath)
•
Held
: Because it’s objectively improbable that this was just a coincidence, rebuts defence of accident and proves something other than character
R. v. Straffen (1952, UK)
Facts : Accused charged with murder of young girl, alleged strangulation. No sexual interference, no motive, no evidence of struggle, no attempt to conceal body. Accused admitted killing two other young women with all of the same circumstances
• Held : More than just prior bad acts, but pattern of conduct used to demonstrate that the murderer of the first two girls was the same person as the current victim – goes to identity!
Arp (1998):
Two separate incidents. In 1989 a victim got into a vehicle, not seen again. Body discovered 3 weeks by cross-country skier later linked to Accused. In 1993 – similar situation, body found in snowbank.
Held: Jury Charge must contain specific factors:
22

May find, but are not required to, that there is such similarity that it must be the same person
Evidence is limited to the purpose for which it was admitted – to infer that the accused is the type of person whose character or disposition is such that he is likely to have committed the offence
-
If jury concludes that it’s not the same person, they are to ignore the evidence – that’s all its for
The burden of proof for conviction remains proof beyond a reasonable doubt
Civil cases can be more and less strict when it comes to character evidence

More strict: General character evidence that simply shows bad/good acts is not admissible by either side


Less Strict: For rules of SFE
Civil procedure goals: just, speedy, and inexpensive administration of justice o Character evidence is highly inefficient; just viewed as a distraction o Strong link b/w bad acts and people who break Ks aren’t there 
less logical relevance o Diminished PV for negligent acts o Prevents abuse of process using it to publicize people’s bad histories
Specifically with SFE:
Must show pattern that’s suggestive of liability (relaxed standard)  admissibility ( Mood Music v. De Wolf )

Must be directly relevant provided: o Not oppressive o Not unfair to other side o Other side had notice and is able to deal with it

Must be logically probative
General Rule

There is still PV and PP in the background

: Bad character of a 3 rd party is admissible whenever it’s relevant to an issue ( McMillan )
If an accused offers evidence, the PV must be substantially outweighed by PfP
 o Goes to the presumption of innocence – imbalanced standard
Why: Character of anyone but him/her may be relevant in case

shift focus / discredit witness
Co-Accused - A can lead evidence against co ‐ accused provided:
1. There is some evidentiary basis to ground the assertion
2. Judge instructs jury that they are not to use this evidence as part of Crown’s case against co ‐ accused
Why is Character of Non-Accused Persons Allowed?

No longer concerned with: wrongful conviction, presumption of innocence, full answer and D
 We still have reason to be cautious b/c we’re still worried about: fairness, privacy, equality
Can be used to show that accused wasn’t type of person to commit crime; instead, 3 rd party more likely to commit offence ( McMillan )

McMillan : Evidence is admissible if: o It is relevant to some issue in the case
23

o Evidence is not excluded by a policy rule o Evidence falls within the proper sphere of expert evidence

Accused entitled to raise character of another party more easily than Crown (asymmetrical) but once admissible, Crown entitled to introduce rebuttal evidence to attack accused’s character if there was character comparison

Scopelliti boomerang o In McMillan : nature of implicit D was that accused was of normal mental makeup unlike his wife

put character in issue.
McMillan
: baby was killed; could only be respondent or wife; D tried to raise wive’s character to show that she was psychopathic, and this implicitly suggested that he was not the killer.
Held: test for admissibility of expert evidence against third party witnesses – above
-
Allowed Crown to raise D’s bad character evidence as he had implicitly put his good character in
Scopelliti : D killed two people harassing his store; offensive gunshot wounds; Trial judge allowed evidence that was unknown to the respondent of the victim’s prior bad acts of violence – acquitted
Held : the evidence was admissible, even though unknown to the accused in his self-defence argument, so long as there was some other appreciable evidence of the deceased’s aggression on the occasion
The Crown is entitled to introduce rebuttal character evidence where the character of a 3P is put in question that tends to suggest that the D’s is not the type of person to have committed an act.
Where accused asserting affirmative defence that depends on someone else’s bad conduct. Examples:

Self defence/ defence of another : depends on idea that you were attacked ( Scopelliti )

Provocation : 3 rd person did something to provoke accused

Duress : subject to a threat
Used in Scopelliti : Two aggressive and threatening men entered convenience store when S was working.
He shot them in back but claimed self-D. S wanted to adduce evidence to show that men were sort of people likely to attack first

Since it was accused who wanted to bring in evidence (more favourable), only had to meet relevance test (note, much more relaxed than SFE)

Accused allowed to admit evidence but doing so brings his character in issue b/c of comparative sense

Crown can rebut
Historically, accused could adduce evidence of complainant’s sexual past to infer twin myths:

Complainant is less worthy of belief

She was more likely to consent
Twin Myths NOT Relevant:

Court in Darrach stated that evidence of sexual history not relevant to support myths

Rejection of the belief that there is a logical link b/w past sexual history and propensity to consent/ worthiness of belief
In Seaboyer , Court found PFJ included 3 purposes:

Protecting integrity of trial by excluding evidence that is misleading

Protecting rights of the accused
 Encourage reporting of sexual violence and protect “security and privacy of the witness”
24

Legislation in CC s. 277 : Past sexual reputation (general/ specific) is never relevant s. 276 : addresses irrelevance of twin myths directly

held to be constitutional in Darrach
 s. 276(1) : initial bar that rejects all evidence used to support inference that, by reason of sexual nature of that activity, complainant is more likely to consent or less worthy of belief. o Only in narrow set of circs will evidence get past this section. Examples:

Credibility- girl said she went to C’s place w/ intention to have sex w/ one of two boys. Gave different story on stand. D wanted to C-E on PIS ( Crosby )

Identity- Accused wanted to intro evidence that claimant’s injuries from sexual assault were really from another person at different time

Other instances where relevance doesn’t turn on sexual activity but something else i.e. pattern of conduct o Cannot infringe accused’s R to make full answer and D o If evidence is not offered in reliance upon its sexual nature, then s. 276(1) does not apply and one goes on to consider the balancing in s. 276(2).
 s. 276(2) : test if you get around s. 276(1) bar  addresses privacy and equality concerns. Judge must be convinced of 3 elements:
(a) it is of specific instances of sexual activity
(b) it is relevant to issue at trial and
(c) Assess whether or not this evidence has significant probative value that is not substantially outweighed by danger of prejudice to the proper administration of justice
 PfP must be VERY high compared to PV in order for it to be excluded
 Why substantially outweighed? to exclude evidence of trifling relevance that, even though not used to support the two forbidden inferences, would still endanger the "proper administration of justice"
 s. 276(3) : Things judge should take into account when admitting evidence under s. 276(2)  adopted L’H-D’s dissent in Seaboyer o (a) interest of justice, including right to full answer and defence o (b) society’s interest in encouraging reporting of sexual offences o (c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case o (d) the need to remove any discriminatory belief or bias o (e) risk that evidence may arouse sentiments of prejudice, sympathy or hostility in the jury o (f) potential prejudice to complainant’s personal dignity and privacy o (g) right of complainant to personal security and protection and benefit of the law o (h) any other factor considered relevant
Darrach : D attempted to introduce evidence of the complainant's sexual history. He unsuccessfully challenged the constitutionality of:
1.
Section 276.1 (2)(a) CC (requires that affidavit contain "detailed particulars" about the evidence),
2.
Sections 276(1) and 276(2)(c) (govern the admissibility of sexual conduct evidence generally),
3.
section 276.2(2) (which provides that the complainant is not a compellable witness at the hearing determining the admissibility of evidence of prior sexual activity)
Held : The CC sections are not an infringement of D’s rights
25


The procedure created by s. 276 to protect the trial process from distortion and to protect complainants is consistent with the principles of fundamental justice

Because s. 276(1) is an evidentiary rule that only excludes material that is not relevant, it cannot infringe the accused's right to make full answer and defence

By excluding misleading evidence while allowing the accused to adduce evidence that meets the criteria of s. 276(2), s. 276 enhances the fairness of trials of sexual offences
GR : Every person giving testimony in court, of whatever age, is an individual whose credibility and evidence must be assessed by reference to criteria appropriate to his/her mental development, understanding, and ability to communicate.
Credibility is always at issue once witness takes stand  essential in determining weight

High level of deference to trier of fact b/c appellate courts only see transcripts (not everything translates onto paper)  cannot see demeanor o However, can overturn if findings are unreasonable ( R. v. W(R))

This is broad term that covers instances when witness is lying or is simply mistaken

Adversarial process is based on making your witness look credible while discrediting opposition

Assessment of: o 1. Is the witness telling the truth? – this is the main issue at trial o 2. Is the witness a truthful person?
Factors to be considered in assessing credibility ( White )

General integrity and intelligence of witness
 Witness’s powers to observe

Capacity to remember

Accuracy in statement
Means of Assessing Credibility
1. The Demeanour of the Witness - scientifically frail, but still common indicia
“Most importantly, and subsuming all of these factors, the trier can assess the relationship b/n the interviewer and the witness to observe the extent to which the testimony of the witness is the produce of the investigator’s questioning.” K.(G.B.)

 Alone is insufficient - reflects sincerity, NOT reliability ‐ Norman
  Law does not 'clothe the trial judge w. divine insight into the hearts of witnesses' ‐ Faryna
2. Assessing Credibility in the Context of all Evidence
“The real test of the truth of the story of [an interested witness] in such a case [involving conflict of evidence] must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place in those conditions.” Norman
3. Assessing Credibility of mental capacity challenged witness
Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. W.(R.)
26

4. Assessing Child Witness: R. v. B.(G.) – common sense approach – account strengths and weaknesses with children; but not lower the bar of standard of proof b/c innocence is still at stake.
GR : Cannot ask questions or lead evidence solely to support own witness’ credibility
 oath helping

Presumption: when a witness takes the stand, and are under oath, they are assumed to be telling the truth until their credibility is impeached. ( Kyselka )
Rationales:
 Keeps trial speedy; don’t want unending list of witnesses

Assume jury fully competent to make assessment on their own, as is their essential role

Takes jury attention away from what really matters (distraction)
Rule against Oath Helping: i) Not permitted to ask questions or lead evidence solely to bolster the credibility of your own witness.
ii) Nor can the party lead evidence that the witness has made prior consistent statements.
iii) Until a witness's credibility is challenged, we assume they are truthful
Before Norman conquest, each side would plead and witnesses would give evidence regarding the reliability of the oaths “compurgation”.
Today, witnesses are presumptively credible – no need for oath helping.
1. Mistakenness vs. Dishonesty, and Re-Direct Examination
Main method of rehabilitating credibility. Characteristics:

Direct: purpose to get out facts and create positive air of credibility by:
 o Asking witness questions about details o Getting witness comfortable telling story that shows confidence & certainty
Re-Direct: Rehabilitate witness by: Clearing up points of confusion

ask more details, motivations, give opportunity to explain/ elaborate

The focus here remains clearly on the particular duties of the jury – no external help

No concern here about inefficiency (long list of people) and distraction
2. Expert Evidence
Experts can be called when there is some special information that jury needs to properly assess credibility of one of your witnesses  assessment beyond common sense inc. human behavior, psychological/ physical factors

Examples: children, people w/ mental disorders, battered spouses

Limitation: expert can only provide testimony relevant to credibility, not about credibility
Expert evidence on ultimate credibility of a witness NOT admissible ‐ Kyselka o Cannot give own opinion of credibility ( Marquard ) o Why? Concern about usurping function of jury
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Process of Admitting Expert Evidence ( Marquard)
1.
Witness must be an expert in particular area of human conduct in question
2.
Evidence must be of the sort that the jury needs b/c the problem is beyond ordinary experience
3.
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 o Refocus jury to tell them that credibility is ultimately up to them
Inadmissible examples:

Kyselka : This was expert opinion ABOUT the actual witness’s credibility – too far - inadmissible

Marquard
: grandmother charged w/ burning child’s face. Child told clinic she burned herself.
Dr testified saying that children often lie to protect loved ones. WOULD HAVE BEEN OKAY IF
SHE STOPPED HERE o Went on to say her opinion that child was lying at first but telling truth later

opinion about credibility
3. Prior Consistent Statements
Defn : Statement that was made prior to court, outside of court, that matches the current witness statement
Generally , stmts given pre-trial are not admissible to support credibility of your own witness o Oath helping o Not probative of truth (consistent lie) o Takes up trial time and distraction from key issues o Considered hearsay
Exceptions to Rule Excluding PCS:
1.
To rebut allegation of recent fabrication – cannot be used for complainants in sexual assault cases
2.
Identification – to support identification at trial of the accused or another a.
Where a witness has previously identified someone in court – open to both parties to use
3.
Narrative – where not given for their content, but given as part of narrative to understand events
Rebuttal of Recent Fabrication
PCS allowed b/c timing is relevant even though does not affirmatively tell us that stmt is true  it is not admissible for truth of its contents (hearsay)
 Only admissible to show that there hasn’t been a change in story  credibility

Ellard : Allegation need not be express. It is enough if in light of the circumstances of the case and the conduct of the trial, the apparent position of the opposing party is that there has been a prior contrivance o To be “recent” the fab need only have been made after the event testified about o A mere contradiction in the evidence is not enough to engage the recent fabrication
Cases where PCS allowed:

Stirling : PCS have PV in context where they can illustrate that witness’s story was same even
 before motivation to fabricate arose
Giraldi : Allegation of recent fabrication can be inferred even before cross-examination
 implicit foundation can be laid in other ways when considering all circumstances of the case and the conduct of parties in the trial
Not allowed:

Ellard : The statements in question were NOT made prior to the atmosphere of rumour and speculation that the defence was claiming had led to the witness’s change in memory
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o As a result, their timing prevented them from being capable of rebutting allegation
Doctrine of Recent Complaint
In sexual assault offences, there used to be automatic admissibility of PCS if crime was reported immediately

requirement of recent complaint
 s. 275 of CC wiped this out completely

However, not too much has changed even w/ provision o Complainant can still be cross examined on delayed complaint

Timing can only be relevant if it is one of various facts that point to fabrication
Narrative
PCS admitted b/c of PV

assists jury to understand sequence of events from offence to prosecution
R v. D.(D.) (2000 SCC)
 PCS are admissible where they form part of the witness’s narrative – only as much as necessary

Must advance the story from offence to prosecution

Provides background, chronological cohesion, eliminates gaps, creates logical framework

Witness must recount relevant and essential facts which describe & explain experience

Rationale of exclusion is protected: o Not admissible for the truth of content – not hearsay o Low PV: Jury instructed to limited value of evidence  not to look at content as proof
Cases where narrative used:

Dinardo : accused charged w/ sexually assaulting cousin. Victim told aunt and uncle; D confessed. Crown wanted to show admit story as part of narrative  allowed where it would be
 impossible to understand form logical framework unless you admit story
R. v. F.(J.E)
: admitted to show: how assault was terminated, how matters came to police’s attention, why so little was being done to stop assault from happening again
4. General Reputation for Veracity (very limited use)
 only for accused
There is a general rule against oath help

This is unprincipled concession to accused

Clark : Accused allowed to call witness to testify to general reputation for veracity in community
(follows Rowton rule)

Why is this allowed? o Pure concession to accused b/c of R to full answer and D

Beware! Can be considered putting character in issue

boomerang effect

Crown can rebut
R. v. Kyselka et al.
Accused of raping young girl – “16 years of age and mentally retarded”
Expert said “They are all honest, easily led…lack imagination” to have made up story.
Held : Sole purpose was oath helping – inadmissible.
R. v. Marquard
Grandmother cigarette lighter oven – expert crossed the line. Said abused children often lie, and here the child was lying AND offered her opinion that child here was lying.
TJ failed to instruct the jury on the separation of credibility assessment from the testimony of the Dr.
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LH-DB dissents saying specific discussion of girl’s credibility was only tangential.
Requirements for admission of Expert Evidence : see above
R. v. Giraldi 1975 -BCCA
Respondent was acquitted at trial of having stolen a VW van;
Defence that owner of VW had been drinking and asked him to please drive instead
Trial Judge allowed the D to testify (b4 cross) about the consistent statement he made to the police.
Held: Foundation for recent fabrication may be laid in other ways besides cross-exam, or assertion by the opposing party. The whole circumstances of the case and the conduct of the trial may be considered
R. v. Stirling
Fact: Car crash question as to who was driving
Crown introduced allegation that witness (other person in the car) had motive to fabricate his testimony.
Judge admitted several prior consistent statements to rebut the suggestion.
Issue of appeal : did the trial judge err by considering PCS for the truth of their contents?
Held : Appeal dismissed  when read as a whole trial judge properly instructed himself that the PCS were limited in their value – not available for truth of their contents.
R. v. Dinardo
Accused of sexual assault and sexual exploitation of a person with a disability.
Prior consistent statements here useful to bolster credibility to explain how the evidence came out, not for the truth of their contents…Adopts reasoning in R v. F(JE).
Held: Judge went to far and considered testimony to be corroborative & this prejudiced the Accused.
The main way to attack credibility of another party’s witness is to cross-examine.
 “Cross Examination may often be futile and sometimes prove fatal but it remains nonetheless a

 faithful friend in the pursuit of justice and in indispensable ally in the search for truth.”
Fair trial is based on being able to cross-examine witness and test their story
Sometimes C-E only hope to prove certain component of case

Purpose of C-E: to undermine credibility by finding soft points/ frailties/ gaps in story

Lyttle
General and Ethical Limits on C-E ( Lyttle )

Bound by rules of relevancy and reasonable assumptions o Ethical obligation - done on “good faith basis” – must be some reason to go down that route of questioning – doesn’t need specific concrete evidence o Cannot go on fishing expedition

Cannot resort to harassment, misrepresentation, repetition, or ask Q whose PV outweighed by PfP
 Purpose of question must be consistent w/ lawyer’s role as officer as court o Cannot imply in manner that’s calculated to mislead
Duty to C-E?
Don’t have a duty unless you plan on suggesting that witness is mistaken/ lying whether through evidence/witness or even final address. In this case, you must C-E witness ( Browne v. Dun, R. v. Dyck )

Policy reason: matter of fair play; must give witness chance to explain inconsistency
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 Party who intends to impeach an opponent’s witness must direct the witness’ attention to that fact by appropriate questions during cross-examination

Where not done, the witness can be re-called, or court can instruct jury of the failure to give the witness the opportunity to respond
Impeaching Credibility
1.
Lead expert evidence to establish that the witness’s psych abnormality renders them unreliable
2.
Lead evidence of the witness’s bad reputation for veracity
3.
Cross-examine an opposing witness on prior inconsistent statements (hostile witnesses as well)
4.
Cross-examine the witness on their criminal record
Lyttle (2004 SCC): Victim identified D as attacker; D theory was that the beating was related to drug debt and that victim was identifying D to protect the real assailants
Issue : Is counsel bound to provide an evidentiary foundation for their assertion?
Held : A good faith basis is all that is required
Counsel must not intentionally mislead the court
Judge must balance the rights of the accused against the prevention of unethical cross exam
It is not uncommon for counsel to believe what is in fact true without being able to prove it
Collateral Facts Rule : A Witness’ Answer on a Collateral Fact Matter (i.e. not a substantive matter in issue) cannot be contradicted with extrinsic evidence. ( R. v. Krause )

In order to contradict the answer of the witness, it must be connected to an issue at trial o Must be connected with the issue as a matter capable of being distinctly given in evidence OR it must be so far connected, that if answered a certain way, would contradict part of the witness’s testimony;
All else is collateral

Policy Rationale : If evidence to contradict collateral facts was admissible, it would only be fair to allow witness to call other evidence in support of the testimony given o Would lead to endless collateral issues – DISTRACT from the material issues at bar


Most important rule governing C-E
Can ask any question you wish, just stuck with it if it is collateral
Rafael (1972 ONCA) : D convicted of fraud, C called evidence to prove that D falsely represented that he would be able to get landed immigrant status for victims; C asked D about tax returns; D answered, and then C led evidence to show that D had not paid any taxes
Issue
: Was the C’s evidence tendered to contradict the witness admissible?
Held : New trial ordered, C was bound to the answers received and was not entitled to contradict them
This was a collateral issue relating only to his credibility (not serious), and therefore the Crown was bound by the answer received
Three Kinds of Impeachment Evidence ( Hitchcock )
1.
Evidence that relates to a substantive issue and a credibility issue
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o Not collateral (absolutely core!)

can always bring in extrinsic evidence to show inconsistency, where it relates to a substantive issue
2.
Evidence that does not relate to a substantive issue in the case, but has relevance to credibility and is more than a mere contradiction o Major issue of credibility: bias, motive to lie, interests in outcome of case, prejudice o Not collateral
: such a big credibility issue that it’s not collateral – offers reason to lie
3.
Evidence that is relevant to credibility, but is a mere contradiction o Doesn’t tell us that much about case (substantive) and doesn’t say that much about credibility o Is collateral ; caught by collateral facts rule! i.
Extrinsic evidence cannot be brought in to show inconsistency
Note: Not a bar on asking questions; just a bar on adducing extrinsic evidence if contradiction
Only able to do this when it was a non-collateral matter
Concern of law is that we say a lot of things we don’t remember; we should have a chance to recollect or explain inconsistency – fair play must be observed ( Browne v. Dunn )
Legislation s. 10(1) of CEA : Deals with recorded statements
 Must direct witness’ attention to part of statement to be contradicted

Give them opportunity to explain s. 11 of CEA: Deals with prior oral statements. Before you call witness to impeach, you must:

Draw mind of witness to the statement by giving enough circumstances so he/she can identify occasion when contradiction occurred

Give opportunity to explain
Hearsay issue

You haven’t proven PIS is true/ false, only that there’s an inconsistency

Only way to show PIS is true is if witness adopts the statement
 Not offered for the truth of it’s contents
GP : Expert evidence is allowed to show some relevant detail that the jury would not otherwise have, but there cannot be an opinion of the credibility given by the experts themselves
Concerns w/ allowing experts to take stand and give evidence about bad credibility are two-fold:
1.
Worry about it confusing jury (sense jury can’t handle it)
2.
Jury’s task to assess credibility 
worry that once they see someone w/ credentials, they’ll defer to expert’s assessment (
French ) o Expert evidence poses risk of usurping jury’s main function of assessing credibility
Same guidelines as using experts to support own witness’ credibility (refer to Marquard )
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 Must qualify expert to jury: where evidence is relevant to jury’s assessment of credibility, but not where it offers an opinion about the credibility
When would such evidence be admissible?

Mohan

Expert evidence of bad credibility admissible if that evidence reveals some necessary hidden fact/ piece of medical information that would otherwise remain hidden from jury: French / Toohey

Where the trier can assess credibility without expert evidence, it remains inadmissible
Toohey : Two men convicted of assaulting victim. Defence’s expert evidence was excluded – would show that the witness suffers from some disease or defect of the mind that effects reliability of their evidence
Held : Bringing in expert show witness suffered from abnormality of mind/ prone to fits of hysteria
 admissible b/c helpful to jury

affects reliability of evidence
Prior Convictions are relevant to credibility

close to character but it’s going to credibility (person less deserving of belief)
-
Not directly about establishing falsity of witness’s evidence, it is designed to lay down a factual basis from which the interference may be drawn that a witness’s credibility is suspect
Why are prior convictions relevant to credibility ( Corbett ):

Evidence that shows a manner of life or mode of being

looks a lot like character
 Berger’s thoughts : Courts say that if you’re breaking the law, you have no respect for the law so why should we believe you have respect for this process, this court, this system, this oath

Witness may be impeached on credibility by use of reference to prior convictions
 Judge charges jury that it’s up to them to decide how much weight to give prior convictions.
PC of General Witnesses (Non-Accused)
At CL, if you C-E witness about PCs but if they denied it, barred from proving through extrinsic evidence
 collateral facts rule

No longer case w/ s. 12 of CEA

TJ must charge jury s. 12 of CEA: Gives party statutory right to prove conviction  gets around collateral facts rule

Rationale: Denial of prior convictions is more than mere contradiction

 s. 12(1): witness can be questioned as to whether ever convicted of any offence s. 12(1.1): gets around collateral facts rule proven

not ok in CL

if denial/ refusal to answer, conviction can be
 s. 12(2): conviction can be proven by producing certificate + proof of identity

ok in CL
What does/ doesn’t count as offence?

OFFENCE: CC offences, fed statutes, pardon as adult, provincial offences, pardon as young offender questionable

NOT OFFENCE: discharge under s. 730, pardon as young offender?
Examination in chief can clear up the prior convictions before cross  softening the blow ( Boyco )
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Prior Convictions of Accused
Generally, credibility of every witness is automatically in play when put on the stand
Indulgence to the D to limit application of s.12 and exclude PC under Corbett Application s. 12 uses the word “may” throughout. Once Charter born, courts had discretion to admit PC ( Corbett )
 Doesn’t infringe s. 11(d) (self-incrimination) b/c jury needs complete and undistorted picture

Concern : Once jury hears PC, jury may be unable to disentangle character and credibility

Judge always has discretion to exclude/include all or part of record  Corbett application

The appropriate way to effect balance is to deliver a clear direction as to limited use of the PC
Admission/Exclusion of PC for Accused Witnesses:
1.
If accused puts character in issue, Prior convictions come in automatically a.
Crown can introduce criminal record – Section 666 of the Criminal Code
2.
Without putting character in issue, PC are admitted/excluded based on Corbett Application
Corbet Application:
The judge holds a residual discretion to exclude prior convictions where the PfP outweighs the PV ( s.11d
)

Nature of previous conviction : More probative if crime of dishonesty rather than violence o Violence tends to increase chances of character inference (more prejudicial)

Similarity of conviction : More similar crime was like current offence, more prejudicial it is o Should rarely be admitted

keep in mind SFE’s stringent rule

Remoteness in time : increased length of time should lead to not bringing in PC

Trial context : is the case about credibility?

Number of convictions : more convictions is more prejudicial

Judge always has discretion to balance PV of prior conviction evidence against PfP o PV: credibility, PfP: prohibited character inference
Process:

Judge has ability to introduce none, all, or part of criminal record to ensure fair trial  Corbett

Judge charges jury to only use PC to assess credibility

trusts the good sense of jury
 o TREND: give jury all information
Defence can make Corbett application before trial if accused is thinking of going on stand
 helpful based on favourable/ unfavourable Corbett application
Section 12 Limitations: ( Corbett )

May be examined only as to the fact of the conviction itself, NOT the conduct leading to it o Crown CAN ask: Name, Substance and effect, Place, and Penalty of the PC o CANNOT ask details of offences

Cannot be examined on whether accused testified on prior trials to show innocence

Cannot go beyond the conviction to show discreditable conduct or association with disreputable individuals

Unless accused takes the stand, C cannot adduce PC, even if D launched attack on C witnesses

Convictions – strictly construed, does not include fulfilled conditional discharges
Trial Fairness (LaForest dissent in Corbett )
 “Fairness” in s. 11
Charter implies consideration of accused and interests of state o (Integrity of system itself is PFJ)

PFJ operate to protect integrity of system itself, recognizing interests of both accused and accuser
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Corbett (1988 SCC) : D convicted of murder – past criminal record was admitted under CEA s12
Issue
: Whether D’s past criminal record was admissible, due to risk that the jury would use the evidence of prior convictions for an improper purpose – does this risk violate Charter rights?
Held : s.12 does not operate in a way such as to deprive the accused of a right to fair trial under Charter
Failure to admit the prior convictions would result in a serious imbalance o All of the Crown witness could be discredited with priors, but no the accused???
The appropriate way to balance is to deliver a clear direction as to the limited use of PC
Risk of improper use is outweighed by the much more serious risk of error if excluded
Limitations on the use of s.12 – drawn out above.
Here, judge had discretion, but it should not have been excluded in this case
NOTE : makes mention of the fact that it would be absurd to hold that juries are incapable of following the explicit instructions of the judge; suggests that maybe juries should not exist at all
Also note TREND: errs on the side of inclusion over exclusion
Historically, accused could call witness to impeach credibility of Crown witness by asking 3 questions:
1.
Do you know the reputation of the witness as to truth and veracity in the community?
2.
Is that reputation good or bad?
3.
From that reputation (or from your own knowledge), would you believe the witness under oath?
Clarke : Third question goes too far  impermissible b/c it will usurp role of jury and PfP>PV

First two questions admissible b/c it allows accused to get a chance for fair defence o Considered circumstantial evidence

Only allowed "where the interests of justice require it”

Jury charge: should be made up of 2 components: o 1. Whatever the witness’s reputation for veracity, testifying under oath is different o 2. Witnesses have not heard all the evidence and are not sworn to the heavy duty of the juror to render a verdict – jury should not automatically defer to their judgment
General Principles to Guide the Court in Determining Admissibility: ( Clarke )
Danger that the evidence will arouse the jury’s emotions of prejudice, hostility, or sympathy
Would unduly distract the jury from the main issue
Evidence will consume an undue amount of time
Unfair surprise to the opponent
Danger that the evidence will be presented in a such a form so as to usurp the function of jury
Summary of what Accused can do:

Can call witness for good veracity  but puts character in issue
 Can also call witness to testify that Crown’s witness has reputation for bad veracity o Accused can impeach witness by calling another person to testify that witness has bad reputation for truth telling in the community
 Rationale: Protect accused’s R to make full answer and D o Jury charged

up to them to make decision o Indulgence to the accused, another benefit to fair trial requirement
35

GR: Not allowed to impeach or lead your own witness

As your witness, you have vouched for their credibility
 Refreshing Witness’ Memory  can refresh memory but credibility may be impacted
Before Tria l- No rules restricting what you can do
At Trial
Present Recollection Revive ( Rappy ): memory can be revived by a song, scent, anything on the stand to assist them in remembering.

goes to weight (reduces weight)
Past Recollection Recorded ( Flemming ) : In situations where facts have been recorded but cannot reasonably expect that witness would have present memory of it

does not go to weight

Provide witness w/ records that recorded recollection at relevant time o Examples: quality control inspectors, police officers, janitors, etc.

Requirements to rely on record to assist testimony:
1.
Declare they need help from notes
2.
Indicate in testimony that that document was created in a reliable fashion
3.
Recorded at a time when their memory was fresh and vivid
4.
At time of recording, document accurately represented their memory
Hostile/Adverse Witnesses
GR : Cannot lead your own witness and cannot impeach your own witness b /c you’ve vouched for their credibility by putting them on stand  what do you do?  At CL: declare them hostile
Common Law- Declaring Witness Hostile

Considered hostile if witness does not testimony fairly b/c of hostile animus toward party that called him/her ( Coffin ) o Hostile animus= testimony is inconsistent/ they’re being uncooperative/ something colouring their testimony (threat?)

Declaring witness hostile is high bar to meet  judge looks at attitude/ content of testimony

After declaring witness hostile, you may C-E them or impeach on any evidence: “impeaching them at large” - still can’t go as far as general credibility b/c you have vouched for them

Section 9 CEA has replaced notion of hostility with adversity
Adverse Witness Legislation - s. 9 of CEA
Test different from CL

produces test of adversity

Adversity
: “when witness assumes by his testimony a position opposite to that of party calling him” (
Cassibo , Wawanesa )

Can include reluctant (silent), inconsistent witness

no longer need “hostile animus”
36

s. 9 : Under no circumstances can you make general credibility attacks – s.9 is understood to allows judge to give leave to allow a party to cross-examine their own witness – not as it’s written
 s. 9(1)- Normal Route for oral stmt: When you want to discredit witness/ impeach them on prior inconsistent oral stmt

apply to have them declared adverse and can impeach generally o Voir dire held for judge; jury leaves o If witness declared adverse, jury brought back and you can C-E on all other evidence at large OR o Can get leave of court to prove prior inconsistent oral statement

must follow Brown process - s. 10, 11 of CEA

remind witness of occasion/circumstances statement made
 Need to give the witness a chance to explain 10 &11 of CEA…
 s. 9(2)- Shortcut for written/ recorded statements in your possession

streamlined process o Inconsistency can now be used as evidence of adversity o Only lets you impeach on specific facts of specific inconsistency

not at large o If you want to impeach at large

go under s. 9(1)

Easy b/c you have evidence of adversity (the written contradiction

Refer to Milgaard for process o If you want to offer statement for truth of its contents

KGB exception to hearsay
Milgaard Procedure – for prior inconsistent statement under 9(2)
1. Advise court desire to make s.9(2) app.
2. Jury retires;
3. Counsel advises judge & produces statement
4. Judge assess if inconsistency
5. Counsel must PROVE statement or writing
‐ if admits, it is proof, if not, counsel must show by other evidence
6. If witness admits ‐ counsel has right to cross re. circumstances made to establish if proper to allow XE
7. Judge decides if XE allowed, and jury recalled.
Summary:
 If you want to impeach at large or don’t have recorded stmt 
s. 9(1)
 If don’t want to impeach at large and have recorded stmt 
s. 9(2)

Prior statements only go to credibility

truth of its statement depends on hearsay
 Still can’t attack general credibility of witness – needs to be on point of issue debated
"Independent testimony which affects the accused by connecting or tending to connect him w. the crime " ‐ Baskervile
Historically, certain kinds of people (children, women, etc) couldn’t be relied upon to give evidence unless supported by corroborated evidence

Rules were too structured/ formal

modern law of corroboration emerged
Modern Law : Rule of corroboration, with very few exceptions, are abolished
 Only applies to “unsavoury witnesses” now for certain crimes
 s. 274 of CC : abrogates corroboration for sexual crimes
 s. 659 : abrogates req’t to give warning about child testimony o KBG : children are not good w/ remembering details; leeway should be given
37

Corroboration for Certain Crimes
There are still some exceptions where corroboration is needed  CC:
 s. 47 : treason- no person should be convicted of high treason by one witness unless evidence of that witness is corroborated
 s. 133 : perjury requires corroboration
 s. 292(2) : procuring a feigned marriage
Corroboration for Certain Witnesses
Historically, accomplice testimony had to be corroborated

not anymore since Vetrovec
Vetrovec changed entirely the rules of corroboration

Does not just apply to accomplices anymore

applies to any witness: o 1. Whose testimony occupies central position in Crown’s case AND o 2. Who may be suspect (reasonable suspicion) because of disreputable character or is an
“unsavoury” witness o 3. Then, Judge may give a “clear and sharp warning” to the jury to draw attention to the risks of accepting the evidence without something more

Khela adds formal requirement for “clear and sharp warning” - below

Where helpful, judge may wish to give some examples of evidence that could be relied upon as support

but no magic in doing so o Discretion for the trial judge, but often subject to appeals – not “clear and sharp” enough
Goal of Vetrovec warning: for the jury to appreciate risk and encourage them to look for some other source of evidence to make them more confident in truthfulness of “unsavoury” witness o Strength of warning will vary w/ degree of “unsavouriness”
There is a lot of room for judge’s own sense of human behavior here

SCC has suggested that person might be such an unsavoury person that it amounts to an error of law not to charge jury ( Brooks )

particularly in case of jailhouse informer, person w/ huge perjury record
Khela : Re-affirms Vetrovic application, but adds a formal requirement that the judge must explain specifically what can be used to corroborate the unsavoury witness, and describe what party’s of the evidence were untrustworthy and why that was so.
CURRENT APPROACH to “clear and sharp warning”: Khela
1.
Drawing attention of jury to testimonial evidence requiring special scrutiny
2.
Explaining why this evidence is subject to special scrutiny (i.e. motive to lie)
3.
Cautioning the jury of danger of convicting on unconfirmed evidence of this sort, though the jury is entitled to do so if satisfied evidence is true
4.
And that the jury, in determining the veracity of the suspect evidence, should look for evidence from another source tending to show that the untrustworthy witness is telling the truth as to the guilt of the accused – give examples to jury! a.
Evidence must be from an independent source b.
Evidence must be material in the sense that it gives comfort on the relevant part of the evidence given by the witness
(Concern with this approach: drawing attn of jury to incriminating evidence (that might corroborate))
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Vetrovic : Conspiracy to traffic cocaine; C had an accomplice willing to testify against the accused; Trial court determined that the witness was subject to corroboration rules as an accomplice
Held: if there’s that much concern for prejudice, the witness would be excluded all together

Strict formal corroboration rules are cumbersome and complex – bewilder the jury o Rationales no longer in play: accomplices don’t always protect friends

With certain witnesses there is reason to be worried about credibility – not group specific o Jury requires some evidence to comfort them that witness testimony is sound

Creates the criteria for determining where Vetrovic warning for corroboration may be required o Where judge concludes witness is “unsavoury” AND witness plays more than a minor role in the Crown’s case – Judge may offer “clear and sharp warning” to the jury, drawing attention to the risks of accepting evidence without something more.
Khela : Addressed the requirements for the Vetrovic Warning.

Re-formalized the process of corroboration

Re-affirms criteria and warning created in Vetrovic
 Adds the formal requirement for the “clear and sharp warning” where criteria are met o Requirement to explain the type of evidence required – examples if needed
Process for Analyzing Hearsay Questions on exam:
1.
Why is the statement relevant? What is the theory of it’s offering?
2.
Is the statement Hearsay? – Indentifying Hearsay ( Submeraniam ) / Implied Hearsay a) Is the declarant on the stand? b) Is the statement being offered for the truth of it’s content?
3.
Hearsay is presumptively inadmissible ( KGB )
4.
Does the hearsay statement fall into a categorical exception? a) If so, the hearsay statement is presumptively admissible – Categorical Exceptions

Subject to the principled approach ( Star/Mapara ) – Principled Approach b) If not, go to principled approach to determine admissibility – Principled Approach
Note: KGB – watch out for double hearsay – two levels, must justify at both levels.
Principled Approach Brief Analysis: ( Khelawon ) – See Principled Approach
1.
Otherwise inadmissible hearsay will be admitted where the offering party shows that the hearsay statements is Necessary, Reliable and that it’s PV outweighs its PfP a.
Necessary : Whether the direct evidence from the declarant is not reasonable available b.
Reliable : Despite not having access to normal tools of cross-examination and observation while under oath, are nevertheless satisfied of the reliability of the evidence, either through: i.
Circumstances of trustworthiness : That there is no real concern about whether the statement is true or not because of the circumstances in which it came about
OR ii.
Functional substitute : No real concern arises from the fact that the statement is presented in hearsay form because, in the circumstances, its truth and accuracy can be sufficiently tested by means other than contemporaneous cross-exam
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c.
PV outweighs PfP – standard residual discretion. – See beginning of outline i.
It is a PFJ that judge always has capacity to exclude evidence based on residual discretion ( Harrer, Corbett ) ii.
“Court has a residual discretion to relax in favour of the accused a strict rule of evidence where it is necessary to prevent a miscarriage of justice and where the danger against which an exclusionary rule aims to safeguard does not exist”
( Williams )
___________________________
Reasons why evidence comes in through witness:
1.
Law wants best evidence available
2.
Oath binds people to tell truth
3.
We want jury chance to observe witness on stand to assess credibility
4.
We want opportunity to cross examine b/c of faith that it will get to truth
What is Hearsay?
Best Definition: Hearsay is a statement made by a declarant, not now on the stand, offered for the truth of its contents. o NOT HEARSAY: if offered for fact that it was made ( Subramaniam )
GR: Hearsay is presumptively inadmissible. Why?  refer to reasons why evidence comes thru witness

Reason 2-4 concern reliability  “hearsay dangers” ( KGB ) since declarant is not subjected to normal rigors of trial process

Reason 4 is most important danger ( KGB ) – cross-examination is a cornerstone of the process

Hearsay evidence is not subject to normal rigors of trial process o Asks jury to rely on less than the best evidence
Identifying Hearsay
1.
What is the statement in issue? What is the theory of the statement’s offering?
2.
Is the declarant of that statement currently on the stand? o If yes, not hearsay. If no, it may be hearsay, proceed to (3)
3.
Is the statement being offered for the truth of its contents? o If yes, hearsay. If no, it may be admissible o Consider: does it matter if the statement is true?
Hearsay Cases:

Subramanian : S committed crime under duress b/c he thought captor was communist. Possible hearsay b/c S was restating his captor’s words  not hearsay b/c not being offered for truth o Statement was used for to show that event happened; irrelevant whether captor was actually a communist  only relevant that S believed he was communist o Dangers of hearsay don’t arise – he could be crossed/oath was taken/credibility assessed

Wildman : testimony about accused’s wife saying that the girl was killed with a hatchet is admissible, not hearsay because it is not offered for the truth of the statement, but simply as to whether the event happened  relevant to show how Mr. W acquired knowledge of girl’s death
What is this?
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
Out of court statement might implicitly assert facts relevant to matters in dispute o If so, has hearsay purpose and should be recognized as that: Wright v. Tatham o Person’s non-verbal conduct can implicitly assert relevant facts 
hearsay by conduct

McKinnon defines this very narrowly – see below
Examples of Implied Hearsay

Wright v. Tatham : T wants to prove testator was of sound mind when drafting will. Wanted to intro letters from testator’s friends to show competency 
inadmissible b/c being offered for truth of what they imply – they imply that the testator was of sound mind – offered for truth o Even if letter writers were alive, testimony would be inadmissible b/c personal opinion

Wysochan : ended up being circumstantial evidence and not implied hearsay: Would have been inadmissible b/c declarant (deceased) said “SK didn’t kill me”

offered as truth of contents o Since circumstantial, jury entitled to make own inference

McKinnon : D convicted of murder; evidence admitted that his wife was present with the police when they found the victim’s body 
suggests the inference that she knew where the body was from her husband; D claimed murder could have been committed by a friend of D o Not hearsay, Crown was permitted to mention the wife’s presence to counter in inference that they got the information from D’s friend o Hearsay by conduct : descriptions of actions or behaviour which are a means of expression, such as shrugs, headshakes or other gestures substituting oral communication

Nothing in evidence suggests that info was derived from the husband
Development of Principled Approach
CL found that where evidence was safe/ reliable/ where evidence was only way to prove fact in issue
(necessity), it would allow hearsay but only if they fit into certain categories. Problems :

Law of hearsay became too complex and rigid

Categorical exceptions failed to make sense in application

Categorical system stopped working; allowed dodgy evidence to be admitted

Was contrary to CL trial system which individual cases decided on specific facts

categories created inflexibility
Categorical approach had potential to undermine rather than further policy of avoiding frailties of types of evidence hearsay rule was fashioned to avoid ( Khan )
Rationale for exclusionary rule for hearsay boil down to 2 points:

Necessity : Not the best evidence since we can go directly to source
 o Direct evidence from declarant is not reasonably available
Reliability
: Not sure if it’s reliable- no oath, opportunity to serve, C-E o Where circumstances which the statement was made suggests that it’s reliable (guarantee of trustworthiness) it makes less sense to exclude such evidence
Same principles that are foundation for hearsay are also reason for exceptions - Starr

Realization led to principled approach in Smith
What is the Principled Approach?
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GR: When dangers of hearsay necessity and reliability - are overcome, the evidence should be admitted
( Khan / Khelawon )
Wigmore : If a statement has been made under circumstances that even a skeptical caution would look upon as trustworthy, in a high degree of probability, it would be pedantic to insist on a test whose chief object is already secured .

look towards necessity and reliability
Principled Approach Analysis - Khelawon
Voire Dire ( KGB/ Mapara ): If hearsay statement is being offered for the truth of its content, and does not fall into a categorical exception, the judge must assess principled approach in a voire dire

Must be satisfied on a BoP that statement is reliable

Must also be satisfied on BoP that statement is not the product of coercion of any form

Note: higher burden if stmt was an admission by the accused
2.
Starting Point: Hearsay evidence is presumptively inadmissible - KGB
3.
Can be admitted under principled approach to hearsay if: a.
It is necessary - direct evidence from declarant is not reasonably available i.
Flexible Definition attuned to context of case ‐ KGB ii.
Refers to 'necessity' to prove a fact in issue, b/c of an inability to adduce direct evidence ‐ Smith iii.
May be dead, out of jurisdiction, insane, or otherwise unavailable for the purpose of testing by cross-examination (privilege, incompetence, psych trauma etc.) iv.
If available, must try to seek evidence directly ‐ Parrott v.
Categories of necessity are NOT closed ‐ Smith b.
It’s reliable - even though don’t have access to cross-exam or oath. i.
Presumptively unreliable ( Blackman )
“It is important that the trial judge start from the premise that hearsay statements are presumptively inadmissible and then search for indicia of trustworthiness sufficient to displace the general exclusionary rule. Otherwise, the trial judge risks falling into error by reversing the onus.” ii.
Reliability can be made out in one of two ways:

Circumstantial guarantee of trustworthiness ( Smith ) : If a statement is made under circumstances which substantially negate the possibility of untruthfulness or mistake, then it is reliable; OR

Functional Substitute ( KGB ): Some other factor stands in the place of an oath, or some other factor to demonstrate sufficient reliability a.
Could be a prior statement made under oath/solemn affirmation b.
Recorded/videotaped statement c.
Where the hearsay dangers are addressed through a functional substitute – assessment of credibility; oath; cross examination c.
The PV outweighs the PfP – standard residual discretion.
Cases:
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



Khan (child testimony admitted): Dr. sexually assaulted girl who was found to be incompetent.
Only way to get girl’s testimony in was through mother testifying to what she said to her mother
(hearsay); TJ did not find categorical exception but was admitted on principled approach o Necessity: Child was incompetent to testify o Reliability: age of child

circ guarantee of trustworthiness

Statement not linked to anticipation of litigation and

Corroborative evidence (semen on sleeve)

functional substitute o Introduced Principled Approach
Smith (adult testimony; inadmissible): Illustrated that principled approach is not specific to children.
Case of bf wanting to get gf to smuggle cocaine into Canada. Bf disappeared. Gf called mother to pick her up but changed mind b/c bf came back. Gf died. Crown wanted to admit phone call b/w mother and daughter. o No functional substitute

inadmissible – not reliable
KGB (hearsay to prior inconsistent statements): witnesses made statement to police saying that accused acknowledged he had caused J’s death. When called to trial, 3 men refused to adopt earlier statements; said they lied to police to get them off hook and accused did not make stmt. o Outlined the hearsay dangers and substitutes:

Oath; prior oath, solemn affirmation or promise to tell truth acceptable

Credibility (Presence); video taped statement or recorded – allows assessment

Cross-Examination; here witness was on stand to respond to cross
Khelawon : K charged w/ assault of 5 elderly residents. 4 died before trial; 5 no longer competent.
Only one testified at prelim and made statement to EE of retirement home, Dr, and to police
 only police stmt admissible b/c of reliability
There was some confusion about how categorical exceptions fit in with principled approach

Strengths of categorical approach: o Good degree of certainty o Guidance o Efficiency

To extent that various exceptions conflict w/ principled analysis, principled analysis must rule

Categories simply seen as concrete applications of principled approach o Why? Because they exist to reflect concerns of necessity and reliability

Evidence falling into traditional exception is presumptively admissible o Onus shifted to opposing party to exclude info on principled basis o Some exceptions are so strong (categorical exceptions I) that there’s almost no instance where principled approach will exclude statements.
Starr and Mapara :
1.
Hearsay evidence is presumptively inadmissible unless it falls under exception to hearsay rule.
2.
Traditional categorical exceptions remain presumptively in place

If evidence falls into category, it is presumptively admissible
3.
Hearsay exception can be challenged to determine whether it’s supported by principled approach
(necessity and reliability)
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
Exception can be modified as necessary to bring it into compliance w/ principled approach
4.
In rare cases, evidence falling w/in existing category may be excluded b/c of indicia of principled approach- not reliable or not necessary enough in the circumstances of the case
5.
If hearsay dangers do not fall under hearsay exception, may still be admitted under principled approach in voir dire
3 views before Iaccabucci won
1) MacLachlin – categories can be challenged – evidence that fits is in subject to PFP
2) Iaccabucci – Principle defeats categories, categories remain presumptive
3) L’HDB – both remain
Starr/Mapara : Crown theory that D had fabricated an autopack scam to kill victim. Witness testified that victim stated that D wanted to do an autopack scam with him; Trial let it in under categorical exception

Does not fall into the categorical approach and is not admissible under the principled approach o This was double hearsay, and the present intentions exception is about the declarant’s state of mind, not a 3P – cannot apply here

Lacking the reliability required to admit it under the principled approach
 If it were admissible: there are still virtues in the categorical approach, but “to the extent that the various exceptions may conflict with the requirement of a principled analysis, it is the principled analysis that should prevail”
 “Hearsay exceptions should be seen simply as concrete examples of the practical application of the purpose and principles of the hearsay rule in a particular context”
Strong Categorical Exceptions: Prior Judicial Proceedings
Common Law
When person testified in prior judicial proceeding but at trial time is unable to testify, their statement may be admitted even though presumptively inadmissible

CL Prior Testimony Exception

Can only be admitted if it was established that: ( KGB ) o Evidence was otherwise unavailable (necessity) o Issues and parties in both proceedings are substantially the same (fairness) and o In prior proceeding (sworn), party against whose evidence is being tendered, or party w/ common interest, had adequate opportunity to cross-examine witness (reliability)

What counted as prior proceeding? Prelim inquiry, prior trial, examination of discovery, etc.

CL exception was replaced by statute in crim / civil proceedings  s. 715 of CC, R. 12-5(54)
Criminal Setting- s. 715 of CC  same as CL
Evidence from prelim inquiry/ previous trial may be read at trial in certain cases:
1.
If person gave evidence at previous trial of same charge or
2.
Who refuses to be sworn in or to give evidence or
3.
If facts are proved on oath from which it be inferred that person is: (non-exhaustive list: Hawkins ) a.
Dead b.
Has since become ill/ insane
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c.
So ill that ≠ travel to testify d.
Is absent from Canada and
4.
Accused must have had full opportunity to C-E witness a.
Doesn’t matter if accused does not take advantage of opportunity (
Potvin )

Judge has right to exercise discretion to not allow evidence in if unfair. Example: o Crown could have got declarant into court even though outside of Canada o Crown knew in advance, or thought it could be a real possibility that witness wouldn’t be around during trial time and didn’t inform D (D left in dark)
Potvin : Court formally read s. 715. D alleged that s. 715 was unconstitutional b/c it didn’t allow for full answer and D

for strategic reasons and b/c credibility wasn’t at issue in prelim hearing, they don’t C-E.


Court found s. 715 to be constitutional

it’s about being given opportunity
No allowances for strategic/ tactical reasons to not cross examine.
Civil Setting- BC Supreme Court Rule 12-5 (54)

If a witness is unable to attend, and the statement was given under oath with reasonable notice of the intention to give that evidence, it can be admitted – subject to court’s discretion
Strong Categorical Exceptions: Business Records
Common Law Reasoning
1.
Made in course of duty  mechanical in nature, little opportunity/ motive to lie
2.
Businesses relied on these records (reliability)  it’s recorder’s job to make sure they’re accurate
3.
Entries relatively contemporaneous with events (reliability)
Requirements – A record, though hearsay, might be admissible if it was ( Ares v. Venner ):

Made reasonably contemporaneously


In the ordinary course of duty
By persons having knowledge of the matters

Who are under a duty to make the record or report

And there is no motive to misrepresent the matter.
Necessity: is satisfied – it would be very difficult to subpoena the recording party after the fact
Reliability: satisfied in the above criteria – business depends on accurate record keeping
Codification in ss. 29 and 30 of CEA (Not in Alberta)
Section 29 : Financial Institution Records- in absence of contrary evidence, these records are admissible for truth of contents even though hearsay
Section 30: Business Records- “record made in usual and ordinary course of business”, oral or written, is presumptively admissible for its truth

if oral evidence admissible, record would be admissible

Section 30(12): defines business very broadly o Prostitution ring was business ( Lukako ) o Means any business, profession, trade, calling, manufacture or undertaking of any kind carried on in Canada or elsewhere whether for profit or otherwise, including any activity or operation carried on or performed in Canada or elsewhere by any government, by any department, branch, board, commission or agency of any government, by any court or other tribunal or by any other body or authority performing a function of government
45


Section 30(10): business records does not include legal proceedings
**Can always argue residual discretion**
Strong Categorical Exceptions: Party Admissions
This is most common, most used exception to hearsay!
NOT TO CONFUSE WITH
1) Statements against interest
2) Formal admissions made in pleadings
What is it? Any statement by any party at any time is admissible even if hearsay  anything other side ever said or did is admissible so long as it’s relevant
Rationale : Admissibility rests on theory of adversary system

what a party has previously stated can be admitted against the party in whose mouth it does not lie to complain of unreliability of his own statements ( Evans )

Main danger of hearsay is lack of oath/ opportunity to C-E

dangers not present here b/c witness is testifying under oath and they’re free to C-E

Accused can always take stand and explain  reliability

Applies both to civil and crim settings
Although you can always challenge exceptions w/ principled approach ( Starr and Mapara ), party admissions has never been successfully trumped  can be seen as unconstitutional
Party admissions is, like all exceptions, still subject to the principled approach, but hard to find an example of where the principled approach would exclude here…
These exceptions really reflect CL’s psychology and assumptions on how people are expected to behave in certain circs
Categorical Exceptions II: Excited Utterances/ Spontaneous Declarations
Definition: CL exception for statements made out of such spontaneity that possibility of concoction is slight. Fabrication can be discounted because it was so connected to an event in which it was uttered
Exceptions known as Res Gestae

means “the things done” exception

exceptions b/c reliability turns on fact that statement said was tightly linked to event that happened
Requirements: ( Clark )

Statement relates to a startling event or condition AND

Statement made while declarant under stress/ excitement caused by event/ condition
Rationales/ Assumptions ( Clark ):

No memory loss: event/ declaration are contemporaneous

Unlikely fabrication: b/c it was made under extreme stress purely under reaction to what occurred

Necessity of statement comes form declarant being dead/ unavailable
46


Reliability: presumed trustworthiness arising from shock of situations/ lack of opportunity to fabricate
Critiques :

Stress of event can lead to exaggeration/ distortion

Declarant could be honestly mistaken (nothing to do w/ fabrication)

Based on assumption that someone will not fabricate when experiencing stress

Credibility remains in question in this exception
*Use principled approach b/c all exceptions subject to it** ( Starr and Mapara )
Clark : Neighbour, heard yelling. Thought it was children. Yelling continued, she went out of her house and heard neighbor yelling for help b/c she had been stabbed 16 times – “help, I’ve been murdered!”
Held : statement is an exception to hearsay, admissible – Spontaneous Declaration

Truth of its contents – suggests not self-defence “murder”

Wigmore: under physical shock, a stress of nervous excitement may be produced which results in spontaneous and sincere response to the actual sensations and perceptions (reliability)

Test: whether its spontaneity was such that concoction / distortion could safely be excluded
Categorical Exceptions II: Statements of Physical Condition
Definition : When person claims to be experiencing particular physical condition, statement is admissible but only to prove person was experiencing that condition at the time and to establish duration
Requirements :

Natural expression (cannot be in anticipation of litigation)

arising immediately

Usually accompanied and provide info about existing injuries/ illnesses

Does NOT cover: victim describing past instances/ past expressions/ past physical discomfort/ speculation of why victim was experiencing pain – because they are not immediate.
Rationale/ Assumptions:

Reactions to physical discomfort are reliable
Critique : People may have other motives

fake you’re in pain to get out of commitment
Categorical Exceptions II: Statements of Present Mental State
Definition : When person explicitly describes present state of mind - emotion, intent, motive, plan - person’s statement is admissible for its truth
Requirements:

State of mind must be relevant

Statement made in natural manner AND

Statement not made under circs of suspicion
Rationale/ Assumption : When people describe their emotions, they do it accurately

Criticism: self-explanatory  strangest categorical exemption
R. v. P(R) : Victim said she was not going back to bf and that he was a terrible person. Statements leaving were admissible b/c suggested her intention to leave him  which goes to the motive for her murder.
47

Statement about him treating her badly were inadmissible b/c too prejudicial (bad character only, his beating her previously does not go to his motive or whether he in fact killed her).
Categorical Exceptions II: Statements Against Interest
Pecuniary ($) – (traditionally at CL it was presumed that people wouldn’t say something that would hurt them financially – this extends to the present where it’s presumed people wont say things that would hurt them legally/financially/etc)
Requirements:

Declarant was not available

necessity
 Statement was made against declarant’s interest and

Declarant had personal knowledge of facts stated (reliability)
Rationale : People don’t make statements that harmed them financially unless they were true
Penal : brings about concerns of false confessions
O’Brien : statement against penal interest should be placed on = footing as pecuniary interest

If people do not make statements affecting pecuniary interest, then a fortiori , would not make statements affecting liberty interest
Requirements ( Demeter ):
1.
Declarant must have apprehended a vulnerability to penal consequences
2.
Vulnerability to such consequences must be immediate, not remote
3.
Situation must be taken into account as a whole. If it’s not contrary to penal interest in its totality, the statement is not admissible
4.
If unclear, court must consider whether there are other circumstances linking declarant w/ crime or b/w declarant and accused
5.
Declarant must be unavailable  cannot just refuse to testify
6.
*can only be used to exonerate/ help accused, not incriminate accused* ( Lucier )  Crown cannot use this exception, only D can - Benefit to the D!
Critique : May be situations where people did not tell truth even though liberty affected (other motivation)  protecting family member
Cases:
Pelletier : 3 roommates. David threw C to ground. C didn’t move. P came home and found C dead.
David gave police stmt when he was originally arrested. Police switched charge to P. P’s lawyers wanted to admit David’s stmt b/c D couldn’t be found 
admissible
 There was a debate under req’t 3 (contrary to penal interest) b/c Crown stated that David’s stmt wasn’t contrary b/c he pleaded self-D  argument failed
Lucier : D told police that L hired him to set house on fire. D died of burns. Crown wanted to use Ds stmts to incriminate L

inadmissible even though D apprehended penal consequences of his stmt

Why inadmissible? Rule operates asymmetrically  only used to help accused CANNOT help
Crown incriminate him o Motive: if you’re going down, take someone else down with you
R. v. Demeter 1978 SCC
48

Facts: Accused charged w. murder for procuring someone to kill his wife. He sought to introduce evidence of another unconnected person serving life imprisonment's confession to the murder.
Issue: Against PENAL interest?
Held: NO
Categorical Exceptions II: Dying Declarations
“When every hope of this world is gone: when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn, and so awful, is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of Justice.” ( Woodcock )
Definition : statement person made on deathbed admissible.
Rationale: Assumption that when you’re facing final judgment, you will not lie.
Requirement: strict and narrow conditions

suggests court has concerns of reliability

Deceased had a settled, hopeless expectation of almost immediate death

Statement was about the circumstances of the death

Statement would have been admissible if the deceased had been able to testify; and o (Hearsay doesn’t get over admissibility concerns - still have character, opinion hurdles)

The offence involved is the homicide of the deceased (manslaughter, 2 nd degree, 1 st degree)
Critiques:

May want to take someone down w/ you


Says nothing about mistake
Assumption that person dying is religious and believes in final judgment
GR : Witnesses testify to facts and are not allowed to give opinion a/b those facts

opinion evidence generally inadmissible. ( R v. KA )
Rationales:
 PFJ that it’s up to trier of fact to draw inferences from evidence and to form his/her opinion on issue in case – witnesses are databases

Jury is more competent after judge’s instructions (legal guidance) to draw conclusion

Overall Concern: Usurping role of jury unnecessarily
Historically: There was expressed anxiety about witnesses giving opinion evidence and overwhelming jury

Ultimate issue rule : Even when witnesses were able to provide conclusions, they could only go so far

opinion (expert or lay) could never be received on ultimate issue before court
49

Recently: We’ve shown more trust in jury

ultimate issue rule is dead ( Graat )
Rule : So long as opinion is helpful to jury
, we’ll allow it 
core of law of opinion

Rationale: jury will be able to properly assess weight

Ultimate issue rule itself is dead but still remains influential b/c: o Anxiety about usurping jury still present o It influences our principled approach
Because of the concerns we had, there are 2 remnants of UIR to avoid incursion of decision makers:
1.
Preserving judge’s role- witnesses never allowed to give opinion on questions of domestic law o Foreign law treated as fact o Rationale: Judge is fully command in law

it would be too massive an incursion on judge’s role
2.
Preserving jury’s role - absolute bar on witnesses giving personal opinion on credibility o Rationale: assessment of credibility is jury’s core function
GR: Depends on whether helpful to jury

things allowed in CL history: o ID of handwriting, persons and things, apparent age, bodily plight/ condition of person (inc. death/illness), emotional state, certain questions of value, conditions of things (old, new) estimates of speed and distance ( Sherrard )
Requirements : ( Graat )
1.
Evidence must be helpful in sense that witness is in a better position to form conclusion
2.
It must be sort of thing upon which a non-expert can form an opinion o Sort of thing normal, non-expert is more than capable of forming an opinion on

must be an everyday thing (if more than everyday thing, then expert needed)
3.
Opinion must be “an abbreviated version of witness’ factual observations” in a situation in which it would be cumbersome/ impossible to break down facts. o Compendious stmt of facts rule : If facts too complicated to be separately and distinctly narrated, a witness may state his opinion/ impression.”
4.
Not barred from any exclusionary rule

must still be relevant, residual discretion o Weight still up to jury
Graat : Police pulled over G; gave opinion that ability to operate car was impaired

admissible

Police statement no more credible/ accurate than lay person statement of facts” exception

both opinion under “compendious

No reason to prefer police opinion over another
“Hence... it is only when trier of fact is unable to form his/her own conclusions without help that an
exception to the opinion rule may be made and expert opinion evidence admitted. It’s the expert’s precise function to provide trier of fact with a ready-made inference from the facts which the judge and jury, due to nature of the facts, are unable to formulate themselves...” R. v. K.(A.)

In a sense, this is necessary
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GR: generally prohibited because it allows the jury to draw conclusions from the expert testimony, but where the jury is unable to draw inference due to the nature of the facts, expert evidence can be used to assist in the formation of an opinion.
Distinction of Roles:
 Expert as normal witness: Just because witness is expert doesn’t mean that it’s an “expert witness” 
acting as a normal witness if testifying, not about anything special o Use lay opinion

Expert as expert witness: Heightened concern for usurpation of jury o Dressed up in scientific jargon that will make judgment more difficult

jury overwhelmed by “mystic infallibility” of evidence (
Mohan )
Requirements: (Mohan)
Expert Opinion evidence can be excluded on ANY of the below basis:
1.
Any expert must be properly qualified

must be more expert than jury o Test: “person must shown to have acquired special/ peculiar knowledge through study/ experience in respect of matter on which he/she undertakes to testify” 
show credentials to:

Establish for judge that they have expert info to help jury
 Establish credibility o Court emphasizes that this is a modest standard
2.
Evidence must be relevant: this is more than just logically relevant

question of law decided
by judge o Must be sufficiently relevant to overcome dangers of expert evidence – reliable?? o PV vs PfP  overwhelmed or open mind possible? Assist or confuse?
 Benefit: value, helpfulness to jury, reliability
 Cost: time, distraction, potential for usurpation/ overwhelming
3.
*Evidence must be necessary in assisting the trier of fact* o Must be more than just helpful  necessary that it provides info outside normal knowledge of jury  must be information they cannot do without o Evidence must be necessary to enable trier of fact to appreciate matters in issue due to their technical nature
4.
Evidence must not be caught by another exclusionary rule
Dangers of Expert Opinion Evidence – R. v. DD

The admissibility requirement do not eliminate the dangers, but they are tolerated in those exceptional cases where the jury would be unable to reach their own conclusions in the absence of assistance from experts with special knowledge

Bad admissions can result in a miscarriage of justice

The background knowledge of the expert is forming their opinion

Primary danger is that the province of the jury might be usurped by the expert’s opinion
Expert evidence is only admissible when it’s necessary, sufficiently relevant, and offered by qualified expert.
Mohan : accused charged w/ sexually assaulting 4 young patients. Wanted to adduce expert evidence showing that crime was from sexual psychopath and he wasn’t one.
( Mohan, Trochym )
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Definition:

Technique is not sufficiently established or the expert is using the science/technique in a new way

Novel: novel to scientific community or courts have not established practice of admitting it o Established technique but under new scrutiny b/c of changes in law

Main concern

reliability!
Novel Science in the Court
J-L.J
: development of science has forced courts to maintain “gatekeeper function”

Binnie J: essence of gatekeeper function is that when met w/ novel science, court must apply
Mohan criteria strictly to things that are “novel” science
Alterations to Mohan Criteria

Necessity (#3 in Mohan ) is heightened  must be essential to trier of fact

Relevance (goes to reliability #2 in Mohan criteria): must have special test of reliability and closer we get to ultimate issue of case, the more and more strictly we’re going to applying the standard (ghost of ultimate issue rule) - Why? We’re concerned w/ usurping role of jury
Three ways evidence can be “Novel Science”? – must be novel to the courts…
1) The theory or technique behind the science or technique is not sufficiently established or the expert issuing the science or technique is doing so in a new way
2) It is novel either in the sense of being new or unestablished in the scientific community OR in the same sense that courts have not established a practice of admitting it
3) There may be techniques that have been used in the past that were never sufficiently tested or should now come under scrutiny because of changes in our knowledge
Requirements (goes to reliability) – Faced with a Novel Science, court must test the reliability strictly:
(1) whether the...technique can be and has been tested :
(2) whether the...technique has been subjected to peer review and publication :
(3) the known or potential rate of error ...; and,
(4) whether the theory or technique used has been generally accepted :
Trochym : witness gave stmt to police. After under hypnosis she changed her stmt of a critical fact
 post-hypnosis evidence presumptively inadmissible b/c hypnosis did not meet high stand of novel science

Only second requirement satisfied

risk of confabulation/ “memory-hardening”, suggestibility, inaccuracies too risky to allow in court
Cases:
� Trochym ‐ hypnosis rejected (can distort memory)- any post hypnosis testimony inadmissible – linked to wrongful convictions. Court says presumptively inadmissible
 detrimental effects (increased confidence,, false recollections)
Strong dissent saying this info is necessary – jury should balance – hypnosis not a novel science
�  R v. Beland – no polygraph- but this still can be used for investigation
�  R v. Lavallee ‐ Need expert ev to counteract myths, understand battered wife syndrome
Graat – Police not an expert on degree of impairment – evidence treated no diff – Lay Opinion
( Lavallee )
Any reform to law is incomplete unless you address evidentiary components to deal w/ that new area of law
52

Lavallee shows how BWS effects the reasonable reactions in the given situation and the dynamic in a
BWS household.

What is reasonable, must be adapted to the situation of a battered woman – this is outside the normal realm of knowledge for the finder of fact – THEY NEED EXPERT ASSISTANCE!

Without assistance, the jury will not have the info available to determine if the apprehension of death or GBH was reasonable – also would not be able to determine if it was the only course of action for the defendant to take
Lavallee : evidence about how battered women tend to act was considered helpful to jury. Without expert evidence on BWS, jury not able to understand how L met self-D requirements of:
 reasonable apprehension of DGBH that is imminent o spouse has acute awareness; able to predict onset of violence

able to name features of last battering to help know next episode would result in life-threatening action o danger detection process can occur and be as accurate as “reasonable” person standard
 reasonable belief that there was no alternative but to reply w/ self-D o expert help understand why spouses could not leave abusive relationship

could be b/c of blackmail, traumatic bond, embarrassment, etc.
Takeaway Principles:
1.
Expert testimony is admissible to assist the fact-finder in drawing inferences in areas where the expert has relevant knowledge beyond a lay person
2.
It is difficult for the lay person to understand battered-wife syndrome
3.
Expert testimony can assist in dispelling myths about battered women
4.
Expert testimony may go to the perception of danger – “reasonable apprehension of DGBH”
5.
Expert testimony may explain why woman stayed in the household
6.
Explanation as to why she didn’t flee goes to belief that killing her batterer was the only way to save her life
7.
Simply being a battered woman does not entitle an acquittal, the jury must decide whether in fact the accused’s perceptions and actions were reasonable o Expert evidence cannot usurp the function of the jury o Fairness and integrity of the trial process demand that jury have the opportunity to hear the expert evidence
With today’s sophisticated technology, we destroy stories of history 
transcripts of court cases used for evidence BUT do not resemble actual context
( Van der Peet 1996)
SCC in Delgamuukw : Rules of evidence have to be contextually applied and accommodate sui generis nature of Aboriginal rights

evidence rules must be relaxed

Court should approach rules of evidence & interpret evidence w/ consciousness of special nature of Ab claims o Should take notice of evidentiary difficulties in proving rights that originated in time where no written records of practices, customs, traditions took palce o Courts should not undervalue evidence simply b/c it doesn’t conform to CL system
53


Laws of evidence should be adapted to accommodate and place on equal footing w/ types of historical evident courts are familiar with (i.e. historical documents) ( Delgamuukw )
Caution - Limited : While evidence in support of claims should not be undervalued, should also not be interpreted/ weighted in way that fundamentally contravenes principles of evidence law

“general principles of common sense.” (
Mitchell )
Chilcotin Nation : Court have lots of weight to oral history and expert witnesses to establish independence of oral histories (reliability)

Expert said that evidence was only reliable in showing that Chilcotins were hunter/ gatherers but did not establish regular use of land

did not prove title even though lots of detail in oral testimony
Scope of relevance : Where does the scope extend? – this is a major issue because what is relevant to the distinctiveness of a culture – almost anything?
Heavy reliance on history

what’s the admissibility of oral evidence?

Oral traditions considered hearsay in our system but critical to Aboriginal culture and history
TEST:
Marshall 2005 : Evidence of oral history in Aboriginal matters is admissible provided it meets requisite standards of usefulness and reasonable reliability

How does it meet standards of usefulness and reliability ?

experts o Telephone game? – not reliable; VS. – just as reliable as paper, if not more – cannot alter

Historians are necessary when facts in question are historical facts

Usefulness ( Mitchell ): Ab Oral Hx may meet test of usefulness of 2 grounds:
1.
May offer evidence of ancestral practices & significance that cannot be available
 No other means of obtaining same evidence may exist
2.
May provide Ab perspective on rights claimed

w/out this, may be impossible to gain picture of practice relied on/ significance to society in question

Determining practices that existed, distinguishing central features of culture from traits that are marginal/ peripheral
Burden of Proof

Courts have said that BOP standard should be flexibly applied

Criticism: Why has burden been shifted on Aboriginal people to prove title? o usually showing prima facie operation is good enough but in this situation not okay
Ways in which oral history poses problems for/ challenges the CL of evidence:

Intermingling of factual and fantastical elements

factual elements that may be admissible in court are compromised when mixed w/ supernatural elements o Substantial issue of cultural translation

Storyteller is part of the story and cannot be removed form it

even though things are exaggerated, there are reasons for it

Objectivity present in traditional courses vs. subjectivity in Aboriginal Oral History

Necessity in documentation : Oral history may not be completely reliable and accurate  assumption that oral evidence < reliable/ accurate than written evidence o Written texts quite corruptible  can be easily changed w/out trace

C-E of elders
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o How do we treat witnesses? As a database of information that we empty out o C-E, w/ goals of finding flaws and inconsistencies, put tremendous stress on person in community

may not respond well

could affect credibility
There is idea that relevance is culturally constructed

Borrows article asks us to use more broad way of constructing relevance
Aboriginal Rights
Van Der Peet (1996): In order to be an aborig right, an activity must be an element of a practice, custom, or tradition integral to the distinctive culture of the aboriginal group claiming the right

Central or significant aspect

Integral – one of those things which made the culture of the society distinctive, that it was one of the things that truly made the society what it was
Temporal aspect- Point of contact w/ European culture (must be continuous)

For Metis: Point of control
Aboriginal Title

An Aboriginal nation must prove that it occupied the land exclusively at the time of sovereignty

If present occupation is relied upon as proof of occupation pre-sovereignty, there must be a continuity b/w present and pre-sovereignty occupation

Sovereignty – 1846
Robert James – Guest Speaker
• Advocate on Aboriginal Rights and Title Litigation
Law is not the only way to address Aboriginal issues, but if it is used:
• Can only do what law is capable of doing
• Law is about the assertion of order and structure, which does not sit well against societies (Ab) that have had this order applied against their interests
Translation –
• From Lay into Law o To the law person, the ideas of law are incomprehensible
55

•
•
• o There needs to be translation between the two fields
From Western culture to Aboriginal culture o Most courts deal with Ab law as less than 1% of their work o Most lawyers are not aware of Ab culture at all
•
The oral histories would actually be told to the advocate, not even the legal principles, so it would be rather shocking – the advocate is not an expert in the
Ab cultural “legal” field o
•
•
Oral History
• The idea is to lead evidence that will compel the judge to rule in favour of your party – then the judge will make the legal reasoning fit
It’s a type of evidence of fact from the past
Serves another purpose – must overcome the Lay concept that Ab culture is dead
- Effective advocate will get across the message of a living culture, and
•
- how there are people who have a different perspective on the world
Evidence of present connection may be as important as showing the past connection
Many of the purposes of oral history are to convey cultural values and behavioural regulation
From the culture of the Past to the culture of the Present o o
Different motivations, perceptions, etc – both Ab and not
At the time treaties are made, there’s different issues of importance, and unrealistic opinions of what will come of the land/hunting/fishing rights in the future
Evidence will be assessed in the current legal framework o Delgamuukh – there was a pleadings error and judge made an evidence error – failed for o the pleadings error
Mitchell – Evidence will be heard in context; evidence will still be evaluated in the context of evidentiary principals
Introduction
Rationales for privilege:

Privileges exist to achieve social good

example of what law values in society o Some social policy matters so much that we’re willing to sacrifice truth-finding process of trial to preserve certain communications in relationships

Exist to encourage open communication in particular setting/ relationship

Exist to protect relationship that is of value to society

Social process: deliberation in Parliament, functioning of relationship
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Privilege v. Confidentiality
� Privileges are automatic (for certain classes) whereas confidentiality is subject to agreement or contract
� Can compel disclosure of confidences but not privileges (ie. solicitor‐client incl articling students, secretaries) so confidentiality is meaningless in Court
Privilege Check-list i. Rationale/purpose (ie. protect harmony of marriage) ii. Who holds it - who enjoys the privilege?(recipient of information) iii. How created and how long it lasts (ends when marriage ends) iv. Scope (communications whilst married) v. Exceptions
These are recognized at CL  if falls into this class, prima facie presumption of inadmissibility

Appears that no new class privileges will be created o Courts want to put as much info to jury as possible  courts have class privileges b/c it goes against this

prevents quality info from going to court o Gruenke : class privileges closed

Ryan : Berger- if there was ever a time when new class privilege covered, this would be it
(SCP)
Protection : Protects information communicated between a client and a lawyer ( Smith v. Jones )

Highest privilege known to law

must be as close as possible to absolute to ensure public confidence and retain relevance ( McClure )
Rationale : To allow people to have effective access to justice, quality legal advice

Must allow clients and lawyers to communicate freely so lawyer has all info needed to give effective advice

Foster Wheeler : Rationales for SCP o 1. To preserve relationship of trust b/w lawyers and clients; o 2. To preserve full & frank communication b/w lawyer and client; o 3. To preserve existence and effective operation of Canada’s legal system
How it’s created : Wigmore - whenever legal advice is sought from professional legal advisor in his capacity as such  expanded in Canada v. Solosky :
1.
Communication must be b/w solicitor and a client  no need formal retainer
2.
Communication must entail the seeking/ forming/ giving of legal advice
3.
Communication must be intended to be confidential
- Where these conditions are met the communication is prima facie inadmissible under SCP
Who holds privilege ? The client

lawyer may not waive SCP
Duration : Forever

survives the death of the client

Exception: Wills  idea that if there’s litigation on a will and lawyer who drafted that will can help to give effect to intent of deceased, we’re not worried about SCP
57

o It’s only for that purpose 
implied waiver with intention to give Will purpose
Scope : Includes any confidential client communications w/ lawyer, and all info in this case

All includes client communications w/ EEs and contractors of that lawyer

inc. articling students, secretary, other agents of lawyer

If lawyer wants client to see doctor for medical examination, that doctor is brought into SCP

In-House counsel ( Pritchard )
Exception to SCP : Goodis : Absolutely necessary standard o This should be taken as meaning “as restrictive a test as may be formulated short of an absolute prohibition in all cases”
Pritchard v. Ontario Human Rs Commission : In-house counsel protected by SCP

attaches immediately once you’re a lawyer regardless of what type of solicitor you are
Offices: As per Lavalle, Rackel & Heinz- 488.1 of CC is struck down. No search warrants for privileged info. If law offices searched, specific procedures (p. 755). Basically, its all to be sealed and examined to determine if privilege attaches
Exception: Criminal Purpose
SCP does not immunize lawyers and clients from liability if communications criminal in themselves/ facilitate a criminal purpose

Lawyer must be a conspirator/ dupe: Campbell
 Doesn’t attach if lawyer merely advising about legality of operation: Campbell

When person lies about financial state to obtain legal advice

privilege does not attach to statements: Descoteux
Exception: Public Safety
SCP will be set aside if there’s an imminent threat of serious bodily harm to identifiable person/ group

Lawyer must (some circs) or may (all circs) report safety

Right to confidentiality must be balanced against public needs
Requirements ( Smith v. Jones ):
1.
**Clear risk to identifiable person/ group of persons  clarity of risk that it will actually materialize as well (likelihood) a.
Group or person must be ascertainable  general threat of violence directed to anyone in city or anyone accused comes in contact w/ may be too vague b.
Threatened group may be large (child under 5) but if it is clearly identifiable then it is a factor that must be considered together w/ others in determining whether SCP should be set aside
2.
**Risk of serious bodily harm/ death a.
Threat must be to occasion serious bodily harm/ death b.
Psychological harm may constitute serious bodily harm: R. v. McCraw
3.
Danger is imminent a.
Risk itself must be serious and applicable to some time in future
58

b.
Depending on circs, not always necessary to impose particular time limit on risk c.
Imminence may be satisfied if person makes clear threat to kill someone future;

Weight to be attached to each will vary w/ circs but they must all be considered.

First two factors are most important

third most flexibly applied

If after considering all appropriate factors it is determined that threat to public safety outweighs needs to preserve SCP, privilege must be set aside. However, disclosure should be limited so that it includes only necessary info to protect public safety: Goodis
Procedure : Don’t have to bring legal action; might be appropriate to notify potential victim, police, or
Crown prosecutor, depending on specific circs

Before you report this, seek advice! Call bencher, speak to Sr. Lawyer, call ethics committee
Smith v. Jones : J charged w/ aggravated sexual assault of prostitute. Lawyer referred him to psychiatrist,
Dr. S. S said he J was continued danger to public  planned on future assaults. S brought action to break
SCP b/c of public safety

succeeded
 Contentious third req’t b/c not imminent - J was in jail but still SCP was successfully breached
Exception: Innocence at Stake
This is rare, last resort exception

onus on accused to establish each element on BOP
 It is preferable to wait until end of Crown’s case to decide whether Crown can succeed in proving guilt BRD. If Crown cannot meet standard, McClure test is unnecessary.
Requirements ( McClure, Brown ):

applied very strictly
Threshold component must be first satisfied. Accused must establish that:
1.
Information he seeks from a solicitor-client communication is not available from any other source
(not concerned about admissible source); AND
2.
He is otherwise unable to raise reasonable doubt

have no other D (last resort) o It is preferable to wait until end of Crown’s case to decide whether Crown can succeed in proving guilt BRD. If Crown cannot meet standard, McClure test is unnecessary.
Innocence at stake test
1.
Stage 1: accused seeking production of S-C communication has to demonstrate an evidentiary basis to conclude that communication exists that could raise a reasonable doubt to guilt o If you’re able to do this, judge will scrutinize file more closely
2.
Stage 2: If such an evidentiary basis exists, TJ should examine communication to determine whether, in fact , it is likely to raise reasonable doubt as to guilt of accused o Only if judge is satisfied will disclosure occur o Disclosure  extent absolutely necessary
Note: Whatever info is used after SCP broken has derivative use immunity
McClure : Baksh was killed. Two suspects: Benson and Brown. Ben’s ex-gf told police he confessed to her about killing Baksh; he also confessed to lawyers since they gave him card stating R to silence.
Brown charged with murder; wanted to bring in Benson’s lawyer and breach SCP.

SCP not broken  could have attained info from ex-gf

Crown only had circumstantial evidence  that alone would have raised reasonable doubt (had other Ds available to him)
59

What does it protect?
It covers information gathered by a lawyer that is relevant to a client’s case
Rationale : To ensure efficacy of adversarial process ( Blank ) – freedom to develop case

To achieve efficacy, parties to litigation (represented or not) must be left to prepare positions in private, without adversarial interference and without feature of premature disclosure ( Blank )
Who holds privilege?
Client holds privilege ( Hodgkinsons )
Differences b/w SCP and litigation privilege:
(1) Scope: o SCP applies only to confidential communications between the client and his solicitor. o Litigation privilege applies to communications of a non-confidential nature b/w the solicitor and third parties and even includes material of a non-communicative nature.
 LP: created/ collected for dominant purpose of litigation
(2) When is it triggered? o SCP exists any time a client seeks legal advice from solicitor whether or not litig. is involved o Litigation privilege applies only where litigation is anticipated or in progress
 No solicitor client relationship is required; could be self-represented litigant
 Seems like it’s held by client
(3) Duration: o SCP survives death of client o LP: protecting zone of privacy  comes to end, absent closely related proceedings, upon termination of litigation that gave rise to privilege
 However, LP still present if there’s a separate proceeding that involve same/ related parties and arise form same/ related cause of action
(4) Purpose: o SCP protects lawyer client relationship o LP protects process of litigation o Note: Both serve common cause: secure and effective administration of justice according to law

are complementary, not competing
Rationale : Is a very powerful privilege

doesn’t extend to journalistic informers.

To encourage crime reporting

To protect informants from retribution of criminals
 Stinchcombe’s rights of Crown disclosure is subject to it relevance and privilege
Duration: Forever
Who holds privilege?
Crown & informant  Consent from both is required to waive privilege
Scope: broad  applies to civil proceedings, witness on stand, and undisclosed informant

It covers more than just identity of informer, but covers any information that leads to discovery of informer  anything that could possibly lead to identity
How to Break Privilege ( Leipert ) – ONLY where Innocence is at stake
Subject only to innocence at stake exception
60


There must be basis on evidence for concluding disclosure of informer’s identity is necessary to demonstrate innocence of accused

Mere speculation that info might assist D is insufficient
May be circumstances where evidence establishes basis for exception

informer is material witness/ acted as agent provocateur

Where basis est., privilege must yield to principle that person is not to be condemned when his/her innocence can be proved

Note: this innocence at stake exception is different from SCP innocence at stake exception o SCP exception is more strict than informer privilege
TEST: ( Leipert )
1.
The accused must show some basis to conclude that without the disclosure sought his or her innocence is at stake (informant must be heard from) o May be circumstances where evidence establishes a basis for exception

informer is material witness/ acted as agent provocateur
2.
If a basis is shown, the judge will review the info to see whether the info is necessary to prove the accused’s innocence 
judge scrutinizes
3.
If it is, the judge should only reveal as much info as is necessary to demonstrate innocence. o Before disclosing the info to the accused, the Crown should be given the option of staying the proceedings

Why? To protect witness is more important than proceeding o If Crown proceeds, the info essential to establish innocence may be given to the accused
Very difficult to break privilege

no balancing/ editing should occur

anonymous tip sheets ≠ be edited b/c any detail may identify informant; even timing could reveal identity
Liepert : Police received crime stoppers tip of L growing weed. L wanted Crown to disclose tip sheet.
Exceptions ( R. v. Scott ):
1.
If informer is material witness to crime: involved in unfolding of events
2.
Where informer has acted as agent provocateur : informer introduced police to accused and also played instrumental role in trafficking scheme itself o Only extended to cases where accused intends to rely upon D of entrapment
3.
Where accused seeks to establish that search was not undertaken on reasonable grounds and contravened s. 8 of Charter
Rationale : To protect spousal harmony
Who Holds it? Person being confided to (listener)  cannot compel listener to disclose info- s. 4(3) CEA

If they choose to, then harmony (rationale behind privilege) is already lost
How it’s created : Through marriage  codified in s. 4(3) of CEA
 Doesn’t cover common law marriage (
Jackson )
Duration : Privilege ends with marriage/ irreconcilably separated
Scope : Covers only communication during marriage (not before or later)
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R. v. St-Jean (1976) : Man charged with incest. Crown calls wife as witness. His wife found to be compellable and competent under s. 4(2). CA: In cases where spouse is competent and compellable, he/she may testify about all aspects of case, subject only to ordinary rules of evidence.”
Here, policy reasons are not strong enough to warrant class privilege; but allows for situations where the circumstances of case warrant protection of info o Has the same force as blanket privilege, but dissolves at the end of te case

Balance b/w putting more info before jury
Wigmore test:
1.
Communication must originate in confidence that they will not be disclosed o Must be confidential communication
2.
Element of confidentiality must be essential to full and satisfactory maintenance of relation b/w parties o Confidence must be important part of relationship
3.
Relation must be one which in the opinion of community ought to be sedulously fostered o Relationship should be one that community thinks is really important to protect o Community meant community at large according to Wigmore

was distorted in
Slavutych
4.
Injury that would inure to the relation by disclosure of communications must be greater than benefit thereby gained for correct disposal of litigation o Basically a cost-benefit analysis around disclosure
: if it’s pretty close, err on side of non-disclosure, especially when confidentiality is important ( Slavutych ) o This tends to be where analysis happens

judge has discretion to disclose all, part, of info/ conditions to disclosure
Background: Wigmore originally offered criteria to where a new class privilege should be recognized, but
SCC has used it for CBCPs

Criticism: If relationship is one that we value so highly (“sedulously foster it”), having a de facto analysis seems to run counter to that goal
Competing Interests:
Generally, if it is relevant, should be admitted
Privilege creates a blanket exclusion – so blanket privileges are not desired by the courts
Case-by-case privileges are not predictable and protected in advance – may hurt the confidence of the speaker at the time it is needed in the relationship
Cases:
Slavutych (Tenure review form)- leniently applied 3 rd requirement: S dismissed for misconduct b/c he wrote a bad tenure review of his colleague. He declined to write it twice but gave in when he was assured that it would remain confidential. Committee launched dismissal action against him when they read it.
 Court found for S’s case based on equity but said that if they applied Wigmore test, it would be satisfied

privilege attached
62

Gruenke (spiritual advisor): Rejected idea of class privilege for spiritual advisors. In this case, old man befriended G but he started making sexual advances. Man named G as benefactor in will. G claimed that man stalked her one night so her bf struck and killed him. G talked to her spiritual counselor

Failed on first stage of Wigmore test- communications weren’t mean to be in confidence

G even stated that she did not see harm talking to her counselor b/c she already made up her mind to turn herself in and “take blame” 
no privilege
 DISSENT (L’H-D): would have recognized class privilege to encourage development of spiritual relationships  freedom of religion requires this o Individuals must have confidence in religious confessions

need privilege otherwise people don’t have comfort of knowing o Wants to use Wigmore criteria to grant class privilege
Ryan (psychiatrist- privileged info; exception tho): M sexually abused by R. She sought psychiatric help but only if communications were confidential. She received assurance. M sued R in civil suit; he denied causing emotional stress. Psychiatrist released reports but not notes

notes were privileged

First 2 steps easily satisfied
 Third: it was in society’s interest that victim obtain help  mental and physical health highly important

Fourth: costs of disclosure- prevent people from seeking help, gender inequity, re-victimization.
Benefit: find truth and prevent unjust verdicts (less pressing in civil case)  some info disclosed o Partial disclosure ok if it will achieve ends of justice o Goes to judge first  disclosure of ltd # of docs, editing by court, imposition of conditions (counsel can look but accused can’t) o Goal: to ensure highest degree of confidentiality and least damage to protected relationships
National Post : Doc was given by an informer to the media – was supposed to contain information proving
Prime Minister was doing something wrong; there was a question as to whether the document was fraudulent – reporter refused to give up source or the envelope
Held : failed at stage 4 of the Wigmore test - confidential sources are not constitutionally protected
Burden is on the claimant of privilege to satisfy the Wigmore test
In Criminal cases, Crown is constitutionally required to disclose to accused all relevant information
Crown can refuse to pass on evidence only where it’s clearly irrelevant or it’s privileged ( Stinchcombe doesn’t apply)
If Crown is not in possession of records, can accused obtain 3 rd party records if relevant?

Consider:

No longer evidence that belongs to public

3 rd party has no constitutional right to do anything

Competing Rights: privacy and right to full answer and defence. Privacy interests are very strong and there’s a history of defence fishing expeditions o Since Crown is not in possession of it, there’s no presumption of materiality
3 rd Party Records for All Offences (O’Connor)
Requirements - when 3 rd

parties compelled to produce records & when they’re not (privacy)
Applies to ALL cases
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1.
First Stage
: Whether record is “likely relevant” so that it should be given to the judge to inspect

The burden is a low one

b/c it would be difficult to show solid proof without the docs
 Must show that “there is a reasonable possibility that the info is a logically probative to an issue at trial or the competence of a witness to testify.”

Court can look at temporal time frame, relationship b/w 3 rd party and accused. If likely relevance is made out  goes to judge o Justice L’H-D (dissent) would have put a balancing here of fair trial against privacy o She also would have put a significant burden in this stage (dissent)
2.
Second Stage : The judge looks at the evidence to decide if it should be produced, in whole or in part, to the accused

Now the judge balances the salutary and deleterious effects of a production order and asks if a non-production would constitute a reasonable limit on full answer and defence

Factors to look at: o Is it necessary to full answer and D? o What’s PV of record? o What’s PfP to complainant’s dignity, privacy, or security if product ordered? o What’s the nature and extent of reasonable expectation of privacy? o Is production premised on any discriminatory belief/ biases?

Dissent would have added: o Extent production would frustrate society’s interest in encouraging reporting and treatment by victims o Effect on integrity of trial process of producing/ failing to produce record
L’H-D: concerned about society’s interests in reporting sexual offences, society’s interest on treatment of victims, effect and integrity on trial process. Believes that records should be:
 Granted when it’s shown that accused cannot obtain info sought by any other reasonably available and effective alternative means

Limited as reasonably possible

Arguments to produce records should only be about on permissible chains of reasoning (not about
 stereotypes and assumptions)
Proportionality b/w salutary effects on accused’s R to full answer and D and REP
3 rd Party Records for Sexual Offences - s. 278.2 of CC
Refer to chart  even if records in Crown possession, they don’t have to be produced
Requirements (s. 278.5):
First Stage: Whether record is “likely relevant” so that it should be given to the judge to inspect
(a) 11 listed bases that Parliament said are insufficient on their own to establish likely relevance  s.
278.3(4) - page 874 of text o Mills : these are only bases upon which an assertion without some evidence is insufficient
(b) Likely relevance is not enough

must also be necessary in interests of justice

s. 278.5(1)(c) o There is now a balancing that must taken into account 8 factors listed in s. 278.5(2) 
L’H-D dissent 
facts to only to be taken into account o Mills : If there is uncertainty in balancing

Court should err on side of production

Maintains priority of the right to full answer and D
Second Stage: The judge looks at the evidence to decide if it should be produced, in whole or in part, to the accused

Balancing takes place again but now judge actually looks at information
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
Judge considers 8 factors listed in s. 278.5(2) o Mills
: These additional factors are only “to be taken into account” and do not have
“controlling weight” 
must take full answer and D as primary guidance
Common Law Test : Public officials can object to info being disclosed on grounds of public interest
 Judge would look at info and determine if public’s interest in disclosure outweighed public interest in secrecy: Conway & Rimmer

Always fall back on this test  used if provinces do not have secrecy provisions
Rationale: Cabinet confidentially is essential to good government
Section 37 of CEA (Broad) - always subject to following sections
Minister can object to information on basis that it offends public interest

Public interests are not listed/ defined in Statute

Can happen in federal or superior court

If invoked, info is withheld pending review by Superior/ federal court judge who balances public interest against disclosure.

Judge balances: b/w disclosure and secrecy

Judge can order: o Info to be disclosed o Disclosure w/ conditions o Make order preventing disclosure

Can appeal decision s. 37 preserves CL position that court has discretion
In Crim Setting: If info held as product of public interest immunity, trial judge may make any order appropriate to ensure fairness of trial, up to and including stay of proceedings
Section 38 of CEA: “Potentially Injurious Info” and “Sensitive Info” (National Security) s. 38: Covers 2 kinds of info:
 “Potentially injurious info”-
info of a type that, if disclosed to public, could injure national security/ international relations
 “Sensitive info”-
which relates to international relations/ nat’l security/ national defence that: o Government of Canada has possession of o Originates inside/ outside Canada and o Type that government is taking steps to safeguard
Extra obligations under s. 38
1) Section 38.01: Everyone is under obligation to tell AG if somewhere in country, info being disclosed
2) Section 38.04: provides for application to designated judge/ CJ of Fed Court, for order concerning disclosure of info
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3) Proceedings issued under s. 38 (balance) are all themselves secret proceedings ( ex parte )

govt can speak to judge privately and there’s no media allowed (in camera)
4) Section 38.06: Determination of whether or not disclosure/ partial disclosure/ protection can only be decided by a designated judge of a chief justice of the federal court (or one of designates)
5) Once alerted to issue of national security, AG must seek order

judge, just like s. 37 looks at order, balances, and can order full/ partial/ non-disclosure (s. 38.06) o Weighing is pretty much the same except for s. 38.13
6) Once a judge has done this balancing, and if the judge has decided to disclose any info at all,
AG may personally overrule judge’s decision by issuance of certificate  s. 38.13 (Hamish
Stewart says this is probably unconstitutional) o Although you can review that certificate in federal court, you can only review it under manner and form b/c it’s already overriding substantive review o prohibits appeals to SCC o Gives AG power to second-guess outcome of a proceeding to which he was a party  no mechanism for correcting any error by AG in assessing balance of interests
s. 39: Minister of Crown/ clerk of PC can object to disclosure of “confidence of Queen’s PC”

If objection made, certificate issued under s. 39 and info cannot be disclosed  auto protection

No hearing, no examination  certificate produces order of non-disclosure o No balancing w/ judge


Non-exhaustive list of what’s protected: o Memo, discussion paper, agenda, draft legislation
Time limit: certificate issued for 20 years or less

discussion papers on 4 years (s. 39(2)(b))
Rationale: those charged w/ heavy responsibility of making govt decisions must be free to discuss all aspects of problems and express all manners of view, w/out fear that what they read, say, or act will be subject to public scrutiny ( Singh in Babcock )
 found constitutional ( Babcock )
Requirements
Under s. 39(1), Minister/ clerk of PC must decide two things:
1.
Is info a cabinet confidence under s. 39(1)?

must make sure it fits w/ statute
2.
Is it info that govt should protect, considering competing interests of disclosure / confidentiality?
A valid certificate must:
1.
Be executed by the clerk or minister
2.
Relate to information in s. 39(2)

memo, discussion papers, briefing records, draft legis
3.
Be done in bona fide exercise of power, not an abuse of discretion

this is where real balancing test occurs o Function of Clerk is to protect Cabinet confidence; not to thwart public inquiry or gain tactical advantage in litigation  if evidence shows that these are reasons, certification can be set aside as unauthorized exercise of exec power: Roncarelli
4.
Be done to prevent disclosure of previously confidential information... can’t be used to protect information already disclosed.
39(2) Definition (or analogous – Babcock )
For the purpose of subsection (1), "a confidence of the Queen's Privy Council for Canada" includes, without restricting the generality thereof, information contained in
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(a) a memorandum the purpose of which is to present proposals or recommendations to Council;
(b) a discussion paper the purpose of which is to present background explanations, analyses of problems or policy options to Council for consideration by Council in making decisions;
(c) an agendum of Council or a record recording deliberations or decisions of Council;
(d) a record used for or reflecting communications or discussions between ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy;
(e) a record the purpose of which is to brief ministers of the Crown in relation to matters that are brought before, or are proposed to be brought before, Council or that are the subject of communications or discussions referred to in paragraph (d); and
(f) draft legislation .
Once cert issued, info gets greater protection than CL  judge cannot balance.

Judge can only make sure 4 criteria met only w/ bare description o Just a summary to make sure right document issued by right person

Court cannot review whether balance struck correctly
Safeguards (fear of Crown not disclosing for strategic reasons)

Ordinary rules of litigation offer protection from abuse

Government witness can be cross-examined

Refusal to disclose info may permit court to draw an adverse inference: RJR MacDonald

Can show bad faith using circumstantial evidence: Roncarelli
Babcock : Vancouver DOJ <$ than TO DOJ  dissent: no balancing even needs to be done
This is critical privilege

one ought to not be compelled to testify against oneself

s. 11(c) Charter
Common Law : Witness could refuse to answer a question on grounds that the answer may incriminate him

overruled by s. 5 of CEA

s.5 of CEA effectively displaced by s.13 Charter
Rationale
: Shouldn’t be used to incriminate yourself b/c of presumption of innocence
It’s the Crown’s burden to prove guilt beyond a reasonable doubt – no need to assist them
Admitting statements from previous trials would be akin to compulsion to testify at the next
Criticism: Information doesn’t get out
Why use it? Still used as safety net b/c, here you would not need to prove that you might be incriminated

only invoke in “good faith” belief that you might be incriminated
Nature and Operation: Instead of relying on witness’ right to not answer (US), Canadian law requires answer  overruled CL

Witness must explicitly invoke s. 5 as an objection when asked the question at trial o They must do so when they apprehend the risk for themselves of self-incrimination and before the person answers the question – does not cover after thought

Witness must answer  s. 5(1)

After invoking, witness must answer but s. 5 creates a statutory protection on Crown using statement against them in subsequent proceeding

s. 5(2)
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
Judge has limited role

only makes sure it’s used in good faith
Justification: In exchange for losing CL right to protect against incriminating yourself, state attaches immunity to compelled answer
Failings:

Not automatic

few witnesses have counsel when they testify so they don’t know about it

Very few people have heard about s. 5 of CEA

Real failing is that it served only to protect sophisticated or represented witness o This concern led to s. 13 of Charter

Said nothing about what police could do after hearing testimony  derivative use o Only provided for use immunity not for derivative use
Comparisons w/ Other countries:

US and UK: witness controls evidence; can hold it hostage if they want to  witness can delay accused’s prosecution b/c evidence doesn’t come out

Canada: Crown enjoys control over evidence  can choose whether they want evidence in this case/ protect use of evidence for another

effectively displaced s. 5 CEA
13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence
Nature and Operation:

Automatically adheres to witness  does not require invocation

Looks backwards to see if witness did make incriminatory statements and attaches to those

Evidence witness gave in prior judicial setting cannot be used against witness if being tried o Exception: if actus reus is testimony

perjury OR contradictory statements

Shortfall: Must prove there was a self-incriminating statement to show breach
Rationale:

Bargain: In exchange for forcing you to testify, Charter gives witness an immunity for using information against him/her o Noel : When witness is compelled to testify and exposed to risk of self-incrimination,
State offers protection against subsequent use in exchange for his full & frank testimony

Purpose of s. 13 is to protect individuals from being indirectly compelled to incriminate themselves: Dubois
Prior Trials of Same Offence s. 13 states: “any proceeding”  this seems to include prior trial of same offence (appeal)
 Accused’s refusal to testify at 2 nd trial: Crown prevented from using testimony of previous trial o If accused refuses to take stand at second trial, it’s as if first never happened (
Dubois )
 If this were not the case , it would be akin to compelling themselves

Accused takes stand at 2 nd trial: s. 13 not available to accused who chooses to testify at retrial on same indictment o Rationale: s. 13 only has to do w/ compulsion o If you choose to testify at 1 st and 2 nd trial
 no compulsion

can’t keep testing theories
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Current rule ( Henry ): If you take stand at 2 nd trial, everything you at 1 st trial is fair game
S.13 protects you if you testify at the 1 st trial and not at the 2 nd - for reasons of compulsion
If you testify at the 2 nd trial, you were not compelled, so defendant is out of luck
Dubois : convicted of murder even though he alleged self-defence. Appeal ordered. At second trial, D did not take stand. Crown wanted to use his prior testimony  unable to
Henry : H admitted to carrying out rip-off and accepted manslaughter. H in 1 st trial admitted to being drunk. In 2 nd trial he admitted he did not have recollection of what happened. R, accomplice, admitted lying at 1 st trial but said at 2 nd trial he had clear recollection he was not in room when incident occurred

Crown allowed to admit prior testimony – no concern of compulsion here
Derivative Use Immunity No

not in s. 13 Charter or s. 5 CEA
 s. 7 Charter fills this gap by addressing derivative use immunity using o Crown must show discoverability o Go to exclusion of evidence test (last handout)
“but for” test
Rule:

When state is trying to use evidence against accused that it would not have found but for the earlier compelled testimony, s. 7 of Charter may provide a derivative use immunity ( R. v. S.
(R.J.))
Statements made by an accused to non-authoritative people are admissible in a civ/crim trial  party admissions exception to hearsay
Review:

Accused cannot be forced to testify at trial  not compellable o s. 4(1) of CEA , s. 11(e) Charter , R to silence at trial ( Noble )

Accused statements in past judicial proceeding may be used against them
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o Privilege against self-incrimination

s. 13 Charter o If accused takes stand at second trial, stmts at 1 st can be used against him

Henry
Common Law : Accused does not have to say anything to police if he/she doesn’t want to

Exists before and during the trial process

At trial : Accused does not have to speak at trial and no use can be made , in terms of proving guilt, regarding failure to speak (w/ exception of alibi) o Error of law if you do  trial judge cannot comment ( Noble )

Pre-Trial : If silence at police station admitted, trial judge must charge jury that silence does not infer guilt ( Turcotte )  trial judge can say something o Jury cannot draw adverse inference from the D’s choice to remain silent ( Chambers )

Failure to Disclose Defence : No obligation on accused to disclose the defence he wants to present or details of that defence before Crown has completed its case ( Chambers ) o Exception : Accused should tell Crown if planning on using alibi D or else silence can be used against him ( Noble )
Rationale : Silence for weight undermines s. 7 right - Presumption of innocence  offends human dignity to be conscripted against ourselves, burden of proof on Crown, don’t have to assist Crown

Background : Premised on freedom to choose extent of cooperation w/ police  animated by recognition of potentially coercive power of State and concern of individual to not to have to incriminate themselves o Would be snare and delusion to give accused the right to silence and then use it against them as evidence to suggest guilt ( Chambers ) o Since no duty to speak/ cooperate w/ police  no link b/w silence and guilt ( Turcotte ) o Refusing to do what one has right to refuse to do reveals nothing  no PV ( Turcotte )
When does the Right Activate?
Applies at any/ all time accused interacts w/ person in authority, whether detained or not

BUT no duty for police to inform accused of right to not answer o Rationale: balance of rights and crime control
CL Doctrines s. 7 right to Silence Founded Upon :
1.
CLCR - CL confessions rule
2.
Privilege against self-incrimination
Cases:
Chambers : Accused charged w/ conspiracy to import cocaine. Defence was that D wasn’t a true coconspirator; he was pretending to be a co-conspirator  didn’t put forward D of double intent until trial started.  Crown cannot use silence for putting forward D against accused.
Turcotte : Accused went to police station; told officer to send ambulance to ranch. Slowly gave personal info but didn’t say why ambulance should go. Police found bodies in ranch. Accused remained silent 
Crown said behavior was “consciousness of guilt”. Trial Judge says “post-offence conduct.”  SCC overruled

silence cannot be treated as post-offence conduct. Post offence conduct includes ( White ) :

Flight from scene of crime/ jurisdiction crime committed in
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
Attempt to resist arrest

Failure to appear at trial

Acts of concealment (lying, assuming false name, changing appearance, hiding/ disposing evidence)

Even though admitted as narrative exception, TJ obliged to charge jury that silence cannot be used to infer accused’s guilt.
Note: the silence may have been relevant, but it’s excluded based on its policy issues
GR: If stmt made to person in authority

CL insists that stmt must be voluntary


Pre-trial statements to person in authority have special evidentiary rules
CL addressed admissibility of these statements

CL confessions rule still valuable/ relevant

Charter rules overlap and repeat these
Rationale : People in authority can induce false confessions  recognition that State has power over individual (potential for coercion)
Concerned with improperly obtained evidence from statements of the accused.
Protects person once talking to person in authority
Concerned with the reliability of the evidence obtained through these measures
Common Law Confessions Rule : Oickle For stmt made by accused to persons in authority to be admitted into evidence, Crown must prove BRD that stmt was voluntary in sense that not product of:

Will overborne by threats, promises or inducements;

By oppressive circumstances, or

The lack of an operating mind
(Police trickery that would shock conscience of community)
1. Person in Authority?; 2. Voluntary statement?
Who is a person in authority?  Hodgson test

CL TEST: Person who accused subjectively (and reasonably) believed was in a position to
“control or influence the proceedings against him or her.”

Generally police officers and Crown counsel but can include other people o Father that police asked to help out was person in authority against child ( Wells ) o Undercover police informant in cell; accused did not know ( Rothman )  narc testimony admissible b/c of the subjective element of the test
Rationale : CL only worried about subjective test b/c main concern around reliability & trustworthiness
 Assumption that if you think person you’re speaking to has coercive power, you may distort story and that will affect accuracy/ reliability
 Concern is not present if you think you’re talking to friend
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RULE: If accused makes a statement to a person in authority, the Crown must prove beyond a reasonable doubt that the statement was in fact voluntary.
Evolution of Voluntariness

focused broadened from reliability to fairness
1.
TPI - Must not be product of TPI by person in authority ( Ibrahim 1914, Boudreau ) o Rationale: Stmt is not reliable b/c harm/ benefit accused is responding to - reliability
2.
Oppression Component ( Hobbins ) – reliability and fairness o State can still exert pressure absent TPI i.e. physical force, deprivation of vital things o Accused may fabricate solely to relieve themselves of oppression
3.
Operating Mind ( Ward / Horvath ) – reliability and fairness o Accused must have an operating mind for statements to be voluntary o Relatively broad definition applied
 Individual knows what they are saying and appreciates some (not full) context and consequences of statement ( Whittle )
 Not about accused making wise choice, but knowing context and involvement of crim investigation o Ward : accused made confession after involved in car accident
 Was dazed – not a free choice  inadmissible o Horvath : accused interrogated after being placed under hypnosis (≠
 Was not free to choose  inadmissible
4.
[ Police trickery that would shock conscience of community - Oickle ] o Unsure of what this entails  case of undercover cop posing as Rastafarian clergy; built spiritual bond w/ accused; accused confessed  admissible!
Although all 4 components in voluntariness evolution were adopted in Oickle , Spencer said ultimate test was whether accused had effective choice or was his will overborne
 It’s strength of inducement not fact of inducement that matters
TEST : Whether inducement, standing alone or in combo w/ other facts, is strong enough to raise reasonable doubt to whether free will of accused was overborne

Will overborne = Requirement that person be reduced to nothing more than a tool in hands of police; no meaningful ability to choose  high standard

Rationalization: Person rarely freely confesses; some inducements acceptable
Criticism (Fish Dissent in Spencer ): Will overborne is only one criteria  court never meant to overthrow Ibrahim and TPI

Effectively would turn CLCR into operating mind test  too high since TPI presupposes operating mind

Gives different meaning to will being overborne - Accused would not have otherwise given stmt
 but persuaded to do so in order to achieve expected result o Stmt given is result of calculated decision by operating mind but still involuntary
NOTE: in Oickle , relationship w/ gf was strong enough to potentially induce stmt if she was threatened/ harmed but no threat was made to her in that case o In Spencer there was a threat made to gf

not seen as inducement

???
Derivative evidence ≠ covered 
whatever they find as product of confession is admissible
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
Rationale: CLCR is mostly concerned about reliability

exclusion of derivative evidence is based of fairness policy
Cases:
Oickle : 8 fires set. O took polygraph test and failed. Cops informed O of R to silence; said he could leave any time. He eventually confessed to 1 fire. Few hours later, police said he couldn’t leave b/c under arrest. After 8 hours, O confessed to remaining 7 fires

police said that effect of confessing to 1 is same as confessing to all. “Inducements”:
 Police encouraged, promise that they would not subject fiancée to polygraph, psychiatric help, minimized seriousness
 Police also made clear that they couldn’t “cut him a deal”
ADMISSIBLE : was not subjected to aggressive interrogation, not deprived of sleep, food, was not offered improper inducements that undermined reliability

Read in context , statements did not imply threat

merely provided moral inducements that he would feel better if he confessed
Spencer : Accused charged w/ multiple robberies. Gf also arrested. Interrogation last 8 hours. S repeatedly expressed concerns for gf’s welfare. He said he’d confess if police did not go after gf. Police said he couldn’t make deal. Issues:

Wouldn’t let him visit gf until “he cleaned his slate.”
 Officer said he’s recommend to Crown that gf not be charged if accused charged

Officer said gf would be charged unless he confessed  he immediately confessed after

S stated that he confessed b/c of his gf
ADMISSIBLE : had effective choice; will not overborne

Quid-pro-quo is not enough to offend the rule

Voluntariness requires that the person is still exercising volition o To overbear the will, the person must be turned into nothing more than a tool for the cops
Notes : ignores the other aspects of the CLCR!!!
Dissent :
Where there is TPI, the will of the detainee is said to have been overborne, only in the sense that he or she would not otherwise have given a statement but was persuaded to do so in order to achieve an expected result – to avoid threatened pain or achieve promised gain.
Even though was a calculated decision, it is nonetheless considered involuntary
Common law: Evidence would be admitted if there was no concern of reliability

Charter changed way crim justice operated
Charter : If any evidence is obtained in breach of the Charter, the court must look to s24(2) to determine if the evidence should be excluded as a result of the breach – primary concern is of fairness .
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GR : Would a reasonable person, informed in all of the relevant circumstances and the values underlying the Charter, conclude that the admission of the evidence would bring the administration of justice into disrepute?
Must look to Grant Test to determine the answer to that question
Collins / Stillman / Buhay Test for Exclusion Under s.24(2) (old test)
Collins set out a three stage test:
1.
Would admitting the evidence adversely affect trial fairness? (See changes in Grant) o Really concerned with conscriptive evidence – whether or not we would be forcing the accused to continually self-incriminate ( Stillman ) o Conscriptive: evidence where accused is compelled to self-incriminate by means of a statement, bodily sample or use of body – including derivative evidence o If Crown can show that it was discoverable anyways, then it is admissible
2.
Ws the Charter breach a serious one? o Factors from Buhay : o Was violation done in good faith? o Inadvertent or merely technical as opposed to deliberate, willful or flagrant? o Could it have been obtained by other means, making this a gratuitous breach? o If search, was it obtrusive? o Expectation of privacy? o Were there reasonable grounds to do what the police did?
3.
Would the exclusion of the evidence bring the administration of justice into greater disrepute than admitting the unconstitutionally obtained evidence?
NOTES:
The Collins test came to be primarily about stage one – proportion – it became a threshold test for the remainder of the analysis o Nothing that was conscriptive and non-discoverable got through the threshold o Created a problem that relatively minor breaches were excluded through the 1 st stage
Current Test for Exclusion Under s24(2) – GRANT
Reformulation of the Collins test
Heavily focused on the fact that all circumstances must be considered at all stages of the analysis
The major concern is about the long-term integrity of the system o Not to punish the officials, just about systemic integrity of justice
TEST : Three avenues of inquiry that must be considered in every case
Must be regarded from a forward-looking, long-term perspective
Would a reasonable person, informed in all of the relevant circumstances and the values underlying the Charter, conclude that the admission of the evidence would bring the administration of justice into disrepute?
1.
The seriousness of the Charter-infringing state conduct a.
Worried about the message that the justice system condones serious state misconduct b.
Considers factors such as: i.
Inadvertent or minor? ii.
Willful or reckless disregard? iii.
Good faith on the part of police? iv.
Part of a pattern of abuse?
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2.
The impact of the breach on the Charter-protected interests of the accused a.
Worried about sending the message that individual rights count for little b.
Must consider: i.
Interests engaged by the infringed right ii.
Degree to which the violation impacted on those interests; eg. Does it intrude on an area with a high expectation of privacy or that demands dignity?
3.
Society’s interest in the adjudication of the case on its merits a.
Worried about the impact of failing to admit the evidence on the truth-seeking function of the criminal justice system b.
Must consider: i.
Is the illegally obtained evidence reliable? ii.
How important is the evidence to the Crown’s case? iii.
Seriousness of the offence – this cuts both ways
Note:
No overarching rule governs how the balance is to be struck
The form of evidence will effect the considerations in the three factors, but those factors must still be considered in each instance
GR : Any party in any proceeding may admit a fact in issue and dispense of need for proof by other party
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GR: Formal admission in civil trial = concession made by party that certain fact in issue is not in dispute
 at trial, these facts are conclusive


This means other evidence tending to prove fact are inadmissible b/c irrelevant
Difficult to withdraw admission – must get other party’s consent/ leave of court

immaterial o Why? Goal of civ pro is speedy, inexpensive
Other ways admissions happen
1.
Pleadings/ failure to deliver pleadings: narrows sets of issue at stake in trial o Define scope of dispute

parties called upon in stmt of claim & defence to assert certain facts and identify facts that they dispute/ don’t dispute
2.
Parties can agree to submit agreed statement of facts: used to speed up process
3.
Counsel can also make oral admission of fact at trial
4.
Letters written by a solicitor before trial can include and constitute admission of fact o Be aware: anything said by solicitor is assumed to be authorized by client; very rare that client will demonstrate that lawyer wasn’t acting in his/her good faith capacity representing client o Even in discovery, questioning, solicitor can admit facts on behalf of client o Not only formal docs/ trial, but any point along process solicitor can make admission
5.
Can request party admit certain fact; If they admit, or refuse to respond, it will constitute an admission of fact in civil proceedings
Unlike in civil setting, admitted facts are not conclusive  other evidence still relevant (material)

Rationale : Concern of accused’s R to full answer and D (as opposed to efficiency)
CL : Admissions allowed for summary offences ( Baker )  CC changes this in s. 655
Ways Formal Admissions of Facts Happen
1.
Agreed statement of facts b/w parties but… o If accused’s evidence conflicts w/ statement of facts, Crown must prove it 
it is not conclusive

Judge may require reopening an issue o Agreed statement of facts are really only there as conclusive until contradicted by evidence

only there as guidance/ help
2.
Section 655 CC provides for certain kinds of admission of fact short of guilty pleas: o Section 655: where accused is on trial for an indictable offence, he or his counsel may admit any fact alleged against him for the purpose of dispending with proof thereof. o Permissive provision

correction to CL. Why does it only refer to indictable offences?

In Bateman : Rule was established that at CL, with indictable offences, you cannot admit any facts

s. 655 made to correct this CL rule

Can have agreed statement of fact for summary convictions too o Admissions of fact must first be accepted by Crown before they can be admitted. Also,
Crown is not permitted to withhold agreement of fact solely to create prejudice in trial:
Proctor
 Must Crown be bound by admission of accused? Most likely, yes.
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Guilty Pleas
80-85% of cases dealt w/ by way of guilty pleas  seems inconsistent since CLCR disallows confessions b/c of TPI (isn’t lesser sentence inducement?)

Rationale: Our CL trial system couldn’t function w/out guilty plea

If system is backlogged w/ only MAX 20% of cases being tried, what will it be like w/ more?
Definition : Guilty plea constitutes of an admission of all essential elements of crim offence as well as any specific facts listed in indictment

Limitation: Limited to essential constituent components (AR, MR, absence of D) and key facts
(date, location, etc)  nothing more  why? Because accused still has to go through sentencing
Sentencing : If Crown wants to rely on any other facts to aggravate sentencing  must prove facts that are contested BRD
Concerns: b/c Accused relieving Crown of burden and giving up constitutional rights, the court must ensure guilty plea happens in way that’s procedurally sound
Requirements:
 Judge must make sure guilty plea is made “voluntarily and upon a full understanding of nature of the charge and its consequences.” ( Adgey )  must be unequivocal

Judge must do 2 things: o Make inquiry to satisfy himself that accused understand nature & consequences by way of penalty o Must satisfy himself that facts admitted actually make out offence charged (good plea at law)

bare threshold
 Crown must recite basic facts to which accused is pleading guilty to s. 606(1.1) CC - What judge has to do in order to accept guilty plea:

(a) judge must make sure plea is voluntary; AND

(b) accused understands: o (i) that the plea is admission of essential elements of offence; o (ii) the nature and consequences of plea; and o (iii) that court is not bound in sentencing phase by any agreement made b/w accused and prosecutor
Withdrawal of Guilty Plea :

Can be set done before sentencing
 Only if accused can show “valid reasons”- no intention to make plea, didn’t understand nature of plea, suffered from incompetent counsel, unfair trial o Unexpected sentence NOT valid reason ( Adgey )

Plea can be set aside by CA if valid grounds

suffer from incompetent counsel
GR : Acceptance by court/ tribunal, without requirement of proof of truth of particular fact/ state of affairs that is of such general/ common knowledge in community that proof of it can be dispensed with ( Potts )
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
Doctrine of JN is exception of general CL rule that judge is neutral arbiter (does not engage in fact-finding process), and that all facts must be proven at trial o Certain facts are either so obvious or notorious that it would be appropriate for judges to take notice of these facts if not brought up by one of the parties o JN comes into play where facts are obvious to a certain degree, but they’re not so obvious
 as to be admitted as common sense
Once JN takes place

taken as proven and conclusive
 judge “takes notice” of something in world and includes in factual decision making
Rules of JN turn on what kind of fact you’re asking judge to take notice of: adjudicative, legislative, or social framework facts
As the matter approaches the center of the dispute, the court will be less likely to take JN
Definition : Facts that concern immediate parties

who did what, when, where, how and w/ what motive/ intent – classic category

Facts are specific and must be proved by admissible evidence
Two theories on why we take notice of adjudicative facts
1.
Thayer
: We take notice of AF b/c it’s a tool of convenience designed to shorten and simplify trials o Notice is optional b/c it’s just a convenience and only presumptive 
falls in face of contrary evidence o It’s a way judge can short cut proof up until contradictory evidence presented
2.
Morgan : JN is based on need to protect credibility of justice system. How so? o JN only applies to indisputable facts that, if not accepted by courts, would bring judicial

 system into disrepute
Consequences of thinking of JN are totally different

Thayer thinks it’s optional and presumptive (non-rebuttable)
In Canada, courts have tended to follow
Morgan’s
view

facts noticed by judge are mandatory and final
Two Types of Adjudicative Facts ( Potts )
1.
Notorious Fact : Fact is so generally known and accepted that it cannot reasonably be questioned o Morgan says we must b/c failure to take JN would bring system into disrepute o Who is it notorious to? Community in which matter is being tried (generally community which offence took place)
 Why? We’re worried about that community looking at trial and assessing repute
 of that system
2.
When fact can be readily determined/ verified by resort to sources whose accuracy cannot reasonably be questioned o Example: atlas, dictionary, etc.
Limitation of Morgan’s Theory for Judicial Notice ( Zundel No. 1, 2, Krymowski )

Taking JN would strip away defence of accused (and right to full answer and D, prejudicial) if the adjudicative fact is at the centre of trial
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

View 1: Although
Morgan’s
theory is one accepted in Canada, after Zundel , general rule is: If subject of JN would decide case itself judge has discretion NOT to take notice (goes against
Morgan

Thayer -like) o Reconcile: Take JN of some related things but leave central issue at play

Zundel example: took JN of mass Jewish killings but not a political extermination policy
View 2: ( Krymowski ): Backs away from Zundel and holds to
Morgan’s
view

trial judge can take judicial notice of the very point that decides case o Therefore, if it fits criteria of notice,
Morgan’s
rule should hold, even if it resolves case o Criticism: Does this create fair trial for accused?
Cases:
Zundel
: Accused argued that Jewish people didn’t die in WWII b/c of direct official German extermination policy. Crown applied to have TJ take JN of holocaust so he could be charged w/ spreading false news. False news was that no holocaust as we understand it.

Taking JN would decide entire case

TJ refused to take JN ( Morgan wouldn’t allow this)

Thayer would say JN tool of convenience

if it’s at issue, must prove it
Krymowski : Accused charged w/ wilful promotion of hate speech

indictment that accused promoted hatred of Roma but accused rallied and said “gypsies”. Crown introduced dictionary evidence of interchangeability b/w Roma and gypsies.

TJ did not take JN that Roma = gypsies b/c that would decide very case

SCC: No reason why TJ could not have taken JN of this very point
Legislative Facts: establish purpose and background of legislation  social, economic and cultural context

Facts are more general/ broad in nature and subject to less stringent admissibility requirements:
Re Anti-Inflation / Buttler

Sorts of things you take into account in deciding law/ making legal decisions o Facts that help decide issues of law

Judges consider: o What social ill was at issue o Importance to equality o Legislative intent
Social Facts/ Social Framework Facts : Also broad and general facts about social, economic, and cultural context but used to aid in fact finding, not in making decisions about the law

Help finder of fact explain aspects of evidence rather than contributing to deciding questions of law
– they are like a hybrid between adjudicative and legislative facts

Spence : social science research used to construct frame of reference/ background context for deciding factual issues crucial to resolution of a particular case o Example: judge can taken JN of battered women syndrome
Test for legislative/ social facts: Stakes are quite high  Basically a relaxed form of adjudicative fact test
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 “Court ought to ask itself whether such ‘fact’: would be accepted by reasonable people who have taken the trouble to inform themselves on topic as not being subject of reasonable dispute for particular purpose for which it is to be used, keeping in mind that need for reliability and trustworthiness increases directly w/ centrality of ‘fact’ to disposition of controversy.” Spence o Would a reasonable person view this fact as one not being reasonably open to dispute?
Court will take JN of LF/ SF but prefer to hear facts through experts that can be cross-examined and tested; but they can take JN w/out experts
 Court cautions that they prefer to hear expert evidence that “litigants who disregard suggestion perceive at some risk”- Binnie
Themes:
Increasing trust in the jury:
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
Jury is imaginary: only 0.5% of cases are tried by Jury

Abolishment of felony incompetency rule (s.53 of CAE)

Spousal Incompetency rule
 Khan rejects notion that children’s testimony is inherently unreliable – Marquard test is low threshold, weight is determined by Jury.

Character evidence is still rejected – concern that will be too prejudicial, that jury will make too much use of it.
 Twin myths don’t go to the jury

Jury assesses credibility instead of oath helpers
 But still don’t let experts arrive at conclusions on credibility
 Juries don’t get to hear hearsay – they may give it too much probative value

Corbett Application

So called triumph of the principled approach – gets more info to juries as opposed to strictly limited categories.

End of ultimate issue rule (except as Marquard says, evidence about credibility)


Dissent in Trochym about letting in some hypnosis evidence.
Weakening Litigation privilege

Unlikely to get new classes of privilege

Cutting against this is Crown, Public Interest and Self-Incrim
Distinguishing Common Law system from Civilian system:

Civilian system derives from Roman Cannon Law

Operates on Free Proof principle – “bathe” in the evidence
 Arrive at a decision based on conviction intimé


Common Law Develops at the same time
All evidence used to go to jury – juries knew community, etc.

Characterized by high degree of ordering & complexity

Not intuitive
Common Law has Three Distinguishing Characteristics:
A.
Degree of Complexity a.
Lots of rules, exceptions, exceptions to exceptions b.
Incremental development of rules c.
Not intuitive
B.
Prophylactic orientation a.
Keep the bad evidence out b.
Discriminate based on probative value (i.e. hearsay) c.
Concern that certain evidence would distort trial
C.
Structuring of Evidence a.
In continental, evidence is assessed as a whole b.
CL has guidelines determining the uses a particular piece of evidence can be put to. (i.e.
Evidence can go to credibility but not character) c.
Attempt to control the manner in which the adjudicator reasons
Underlying Explanations:
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
Inquisitorial vs. Adversarial. Notion that the adversarial nature of the system distorts the evidence.

CL system contemplates a lay-adjudicator. Purpose of rules to ensure that jury is not overwhelmed.
Sources of Law of Evidence:

Mainly common law but policy considerations play heavily

An area where judges rulings are accepted as legitimate sources of law

Statutory authorities are secondary, often used to correct long standing problems in CL

Examples?

Statutes: Canada Evidence Act; Rape shield Laws

Constitutional Law: Provinces make rules of evidence in areas of provincial competency. Federal government makes rules in the criminal setting.

Principle against self-incrimination

S.7 codifies some CL rules of evidence (i.e. probative value vs. truth, fairness)

Aboriginal Law – Delgamuukw suggests yes – but Mitchell seems to back down from this – more info required.
4(5) Canada evidence Act – where prior convictions on the accused come up, can’t discus details of trial
(jury, did he testify, etc)
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The Nature of Evidence Law
 About a system of rules, but it’s also expressive of a range of ideas, assumptions and values o Communicates points about what the law views as fair

This means that the law evidence is contestable based on what type of behavioural conduct rules are employed in the given context of society

CL assumptions differ from other conceptions outside of our immediate society o Distinguishing features:

1. Relative embrace of complexity – not that organized, but also because there’s a cazm between how we normally think about common sense evidence, and how the law determines rules around evidence

2. Attempts to structure evidence even after it is admitted – jury trials, rules around disclosure etc

3. Structure of evidence

Understanding the whole of evidence o 1. Mechanical issues around proof – burdens/standards, sources, what does’t need proof? o 2. Issues around evidence – relevance = admitted o 3. Intrinsic exclusionary rules – probative vs. prejudice o 4. Extrinsic exclusionary rules – policy
1. Mechanical Issues:

Trial structure

How a case actually proceeds

Burden of proof o Civil standards, criminal standards

Source of evidence o Key role of witnesses o Oath, substitutes for the oath

Compellability and competence o Children, spouses
 When proof isn’t actually necessary o Judicial notice and formal admission

Legislative, adjudicative or social framework
 When these are satisfied, then it’s only a question of admissibility o Is it relevant? o Is the quality of the evidence in issue? o Is there a policy reason for exclusion?
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2. Is it relevant?

The tendency of a fact to prove a specific issue that is at play

What is the theory of the offered evidence?

The analysis of relevance is going to be at play throughout the analysis of intrinsic/extrinsic rules

Generally admissible where it can be shown to be relevant
3. Intrinsic Exclusionary Rules:

General rule probative value vs. potential for prejudice o Residual discretion that exists in all evidentiary analysis

Character Evidence o Relevant, but the potential for prejudice outweighs the probative value o Risk that the trier will overvalue evidence that this is the type of person who would commit the crime o Not allowed where introduced solely to the show the credibility o Not admissible unless the accused first puts character in issue

Similar Fact Evidence o This is past just character, now we’re dealing with proving mens rea and actus rea o Does not require accused to have put their character in issue

Credibility o Unlike character, if you take the stance, your credibility is in issue automatically o Jury assesses in light of credibility o Concern about oath-helping

Exceptions: Expert testimony, Prior inconsistent statements, bad reputation for veracity, prior convictions etc. o The main way to impeach credibility is through cross examination o Particular problem around hostile witnesses o Witnesses who’s credibility is so bad

Vetrovic and Khela – jury charge

Hearsay o Made by declarant not now on the stand, made for truth of contents o Smith, Khan and Kellawan – if evidence is hearsay, it is primarily inadmissible o Principled approach

Is It necessary

Is it reliable – circumstances of trustworthiness, or functional substitutes (KGB)

Probative value outweighs prejudicial.. o Exceptions:

If it fits into the categories, it is presumptively admissible, and onus swap on excluding

Opinion Evidence
84

o Genearlly witnesses cannot give opinions o Exceptions:

Capacity of lay person to give a compendious statement of fact

Expert Evidence – Mohan – admissibility

Is it necessary
 Is it sufficiently relevant (reliability analysis)

Sufficient translates itself through its cost-benefit analysis, the benefit comes from how reliable the evidence is
 Is the person a qualified expert

Trotium – Novel Science – the standards are raised

Special criteria are required to determine relevance (reliability)

Proof in Aboriginal Law Cases o How we see CL constraining AB rights and title litigation
4. Extrinsic Exclusionary Rules:

Reasons why otherwise admissible evidence, for policy reasons alone, are inadmissible

Exclusion of improperly obtained evidence s24(2) Charter o Privacy concerns, and extrinsic concerns

Law of Privilege o Who holds the privilege o What interests is the privilege trying to advance? o Blanket privileges

Spousal, informer, solicitor client, etc o Case-by-Case (Wigmore)
 Very difficult to recognize case-by-case o Third party records o Special privileges
 Crown, cabinet secrecy, self-incrimination (s13 Charter)
85