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Monika Rahman Autumn 2007 CRIMINAL EVIDENCE Professor Patrick Healy/Isabel Schurman/Bernard Grenier Autumn 2007 Monika Rahman (Based on Unger’s) I. BASIC PRINCIPLES .............................................................................................................................. 3 1. Preliminary Considerations................................................................................................................ 3 2. Burdens & Standards of Proof ........................................................................................................... 5 a) Burdens of Proof ............................................................................................................................. 5 b) Standards of Proof .......................................................................................................................... 7 R v. Lifchus [1997] 3 SCR 320 (CBp.988) ........................................................................................................ 8 II. ADMISSIBILITY AND EXCLUSION ................................................................................................ 9 1. Relevance, Probative Value, Prejudice.............................................................................................. 9 a) How should we determine relevance? ......................................................................................... 10 R v. Watson (1996), 108 CCC (3d) 310 (Ont. CA) (CBp.85) .......................................................................... 10 b) Probative Value and Prejudice .................................................................................................... 11 R v. Seaboyer, [1991] 2 SCR 577 (CBp.95) .................................................................................................... 11 2. Character ........................................................................................................................................... 12 A) Character Directly in Issue.......................................................................................................... 13 B) Character as Circumstantial Evidence ....................................................................................... 13 C) Putting Character in Issue........................................................................................................... 14 R v. McNamara et al. (No. 1) (1981) 56 CCC (2d) 193 (CBp.413) ................................................................ 14 D) Methods of Proving Character: Accused Persons ..................................................................... 15 R v. Rowton (1865), 169 ER 1497 (CBp.418) ................................................................................................. 15 R v. Levasseur (1987), 35 CCC (3d) 136 (CBp.419) ...................................................................................... 16 R v. Profit (1992), 11 OR (3d) 98 (CBp.423) .................................................................................................. 17 R v. McNamara et al. (No. 1) (CBp.431) ........................................................................................................ 18 R v. Lupien, [1970] SCR 263 (CBp.435) ........................................................................................................ 19 R v. Robertson (1975), 21 CCC (2d) 385 (CBp.439) ...................................................................................... 20 R v. Mohan, [1994] 2 SCR 9 (CBp.441) ......................................................................................................... 20 Morin v. The Queen, [1988] 2 SCR 345 (CBp.448) ........................................................................................ 21 E. Methods of Proving Character: Third-Party Suspects ............................................................. 22 R v. McMillan (1975), 23 CCC (2d) 160 (CBp.453) ....................................................................................... 22 F. Methods of Proving Character: Victims ..................................................................................... 23 R v. Scopelliti (1981), 63 CCC (2d) 481 (CBp.459) ....................................................................................... 24 3. Similar Fact ........................................................................................................................................ 25 Makin v. Attorney General for New South Wales, [1894] AC 57 (PC) (CBp.466) ......................................... 26 R v. Smith (1915), 11 Cr. App. R 229 (CBp.468) ............................................................................................ 26 R v. Straffen, [1952] 2 QB 911 (CBp.469) ...................................................................................................... 27 DPP v. Boardman, [1975] AC 421 (CBp.472) ............................................................................................... 27 Sweitzer v. The Queen, [1982] 1 SCR 949 (CBp.479) .................................................................................... 29 R v. B.(C.R.), [1990] 1 SCR 717 (CBp.483) ................................................................................................... 29 R v. Arp (1998) 166 DLR (4th) 296) (CBp.495)............................................................................................... 31 R v. Handy, [2002] 2 SCR 908 (CBp.499) ...................................................................................................... 31 4. Hearsay............................................................................................................................................... 34 Subramaniam v. Public Prosecutor, [1956] 1 WLR 965 (CBp.132) ............................................................... 35 R v. Wildman, (1981), 60 CCC (2d) 289 (CBp.134) ....................................................................................... 35 Wright v. Tatham, (1837), 112 ER 488 (CBp.140) ........................................................................................ 36 R v. Wysochan, (1930), 54 CCC 172 (CBp.145) ............................................................................................. 37 Ares v. Venner, [2005] SCR 608 (CBp.205) ................................................................................................... 37 R v. McKinnon (1989), 70 CR (3d) 10 (CBp.147) ........................................................................................... 38 R v. Khan, [1990] 2 S.C.R. 531 ....................................................................................................................... 39 Page 1 of 107 Monika Rahman Autumn 2007 R v. Smith, [1992] 2 SCR 915 (CBp.212) ....................................................................................................... 40 R v. B.(K.G.), [1993] 1 SCR 740 (CBp.) ......................................................................................................... 41 R. v. U. (F.J.), [1995] 3 S.C.R. 764 ................................................................................................................ 43 R. v. Hawkins, [1996] 3 S.C.R. 1043 .............................................................................................................. 44 Clouture [2007] (CBp.) - MISSING ................................................................................................................ 46 R v. Starr, [2000] 2 SCR 144 (CBp.246) ........................................................................................................ 48 R. v. Khelawon, [2006] 2 S.C.R. 787 .............................................................................................................. 50 5. Admissions and Confessions ............................................................................................................. 52 A. Pre-Trial Conduct: Silence .......................................................................................................... 53 R v. Eden, [1970] 3 CCC 280 (CBp.527) ....................................................................................................... 53 R v. Sweeny (No.2) (1977, 35 CCC (2d) 245 (CBp.529) ................................................................................. 53 R v. Chambers, [1990] 2 SCR 1293 (CBp.532) .............................................................................................. 54 B. Pre-Trial Conduct: Consciousness of Guilt ................................................................................ 55 R v. Arcangioli, [1994] 1 SCR 129 (CBp.536)................................................................................................ 55 R v. White, [1998] 2 SCR 72 (CBp.540) ......................................................................................................... 56 C. Statements to Persons in Authority: Who is a Person in Authority ........................................ 56 R v. Rothman, [1981] 1 SCR 640 (CBp.548) .................................................................................................. 56 R v. Hodgson, [1998] 2 SCR 449 (CBp.556) .................................................................................................. 57 A Note ON R v. Wells ...................................................................................................................................... 58 D. Statements to Persons in Authority: Voluntariness .................................................................. 58 Ibrahim v. The King, [1914] AC 599 (PC) (CBp.570) .................................................................................... 59 Ward v. The Queen, [1979] 2 SCR 30 (CBp.573) ........................................................................................... 59 Note on R v. Whittle, [1994] 2 SCR 914 ......................................................................................................... 60 R v. Oickle, [2000] 2 SCR 3 (CBp.580) .......................................................................................................... 60 R v. Spencer, 2007 SCC 11 ............................................................................................................................. 61 6. Illegally-Obtained Evidence ............................................................................................................. 62 A. The Right to Silence Under Section 7 ......................................................................................... 62 R v. Hebert, [1990] 2 SCR 151 (CBp.606) ..................................................................................................... 62 R. v. Singh, 2007 SCC 48 (online) .................................................................................................................. 63 B. Search and Seizure ....................................................................................................................... 65 Hunter et al. V. Southam Inc., [1984] 2 SCR 145 ........................................................................................... 66 R v. Tessling, [2004] 3 SCR 432 (CBp.624) ................................................................................................... 69 R v. Collins, [1987] 1 SCR 265 (CBp.637) ..................................................................................................... 70 R v. Mann, [2004] 3 SCR 59 (CBp.652) ......................................................................................................... 72 C. Right to Counsel ........................................................................................................................... 74 R v. Bartle, [1994] 3 SCR 173 (CBp.661) ....................................................................................................... 74 D. Exclusion Under the Charter: Standing ..................................................................................... 76 R. v. Edwards, [1996] 1 S.C.R. 128 (CBp.681) .............................................................................................. 77 E. Exclusion Under the Charter: Link Between the Breach & the Evidence ............................. 78 R v. Strachan [1988] 2 SCR 980 (CBp.686) ................................................................................................... 78 F. Exclusion Under the Charter: Bringing the Admin. of Justice into Disrepute ....................... 79 R v. Stillman [1997] 1 SCR 607 (CBp.711) .................................................................................................... 80 R v. Mann, [2004] 3 SCR 59 (CBp.738) ......................................................................................................... 82 7. Opinion ............................................................................................................................................... 83 A. The Exclusionary Rule and Two Exception ............................................................................... 84 B. The Exception for Lay Opinion ................................................................................................... 84 R v. Graat, [1982] 2 SCR 819 (CBp.271) ....................................................................................................... 84 C. The Exception for Expert Opinion: Basic Principles ................................................................ 85 R v. Mohan, [1994] 2 SCR 9 (CBp.277) ......................................................................................................... 85 R v. Lavalle [1990] 1 SCR 852 (CBp.281)...................................................................................................... 86 8. Judicial Notice ................................................................................................................................... 88 A. The Test for Judicial Notice......................................................................................................... 88 B. Adjudicative Facts ........................................................................................................................ 89 R v. Potts (1982), 36 OR (2d) 195 (CBp.937) ................................................................................................. 89 Page 2 of 107 Monika Rahman Autumn 2007 R v. Zundel (1987), 31 CCC (3d) 97 (CBp.942) ............................................................................................. 89 R v. Zundel (No.2) (1990), 53 CCC (3d) 161 (CBp.945) ................................................................................ 90 R v. Krymowski, [2005] 1 SCR 101 (CBp.947) ............................................................................................... 91 9. Privilege .............................................................................................................................................. 91 A. Solicitor-Client Privilege: Introduction ...................................................................................... 91 B. Solicitor-Client Privilege: Exceptions ......................................................................................... 92 Smith v. Jones (1999), 169 DLR (4th) 385) (CBp.763) .................................................................................... 92 R v. Brown, [2002] 2 SCR 185 (CBp.774) ...................................................................................................... 93 C. Informer Privilege ........................................................................................................................ 93 R v. Leipert, [1997] 1 SCR 281 (CBp.808) ..................................................................................................... 93 C. Other Relationships: Privileged or Merely Confidential? ........................................................ 94 Slavutych v. Baker [1976] 1 SCR 254 (CBp.835) ........................................................................................... 94 R v. Gruenke [1991] 3 SCR 263 (CBp.843) .................................................................................................... 95 D. Privilege Against Self-Incrimination .......................................................................................... 96 Dubois v. The Queen, [1985] 2 SCR 350 (CBp.882) ...................................................................................... 96 R v. Kuldip, [1990] 3 SCR 618 (CBp.887) ...................................................................................................... 97 R v. Noël, [2002] 3 SCR 433 (CBp.890) ......................................................................................................... 98 III. WITNESSES ....................................................................................................................................... 99 1. Competence and compellability ....................................................................................................... 99 A. Spousal Competency .................................................................................................................... 99 R v. Salituro, [1991] 3 SCR 654 (CBp.20) .................................................................................................... 100 R v. Hawkins, [1996] 3 SCR 1043 (CBp.27) ................................................................................................. 101 B. Accused’s Failure to Testify ....................................................................................................... 102 R v. Noble, [1997] 1 SCR 874 (CBp.71) ....................................................................................................... 102 2. Credibility ........................................................................................................................................ 103 IV. Conclusion & Review ........................................................................................................................ 104 Recommended reading: Kent Roach, Criminal Law (Irwin Law), for objects of proof I. BASIC PRINCIPLES 1. PRELIMINARY CONSIDERATIONS September 4, 2007 The law of evidence is as much about the appearance of things as it is reality. E.g. St.Lawrence (1949): Accused confessed under circumstances making the statement inadmissible but then led police to scene where he had disposed of the murder weapon and the victim’s wallet. Court held: Those elements of an otherwise inadmissible confession that are confirmed by other facts are admissible. This was confirmed in Wray. Wray (1971): Gun found in swamp after a statement was given by the accused after being beat up Issue: is proof of reliability sufficient or should we exclude it on other grounds? SCC held that subsequent discovery of the gun made statement admissible. Ratio: Confirmation of otherwise inadmissible statements makes the confirmed portion of the evidence admissible All about reliability!!! Page 3 of 107 Monika Rahman Autumn 2007 Crown doesn’t have exclusionary discretion based on the unfairness of the way it was obtained The debate about this issue is still around In this class, we will return to certain themes. Theme: We’re looking for the truth of the matter There is a hypothesis in every criminal case: X committed Y the charge and the indictment Sam Friedman, former CJ of Manitoba said that the search for truth sometimes is the same as the search for justice Theme: Rules on admissibility and exclusion are influenced by our experience with trial by jury. The role of the judge is to instruct the jury on admissibility. Rule: Any witness can be examined on previous convictions and can influence his credibility Consider a situation where the best chance the accused has is to testify on behalf of himself. Now, his previous convictions cannot play a role in determining his guilt. Can you imagine a situation where the jury is instructed to take into account the accused’s prior convictions with regard to his credibility, but at the same time ignore them with regard to his guilt?! Theme: The relationship between rules and discretion E.g. There used to be a general rule on hearsay (i.e. that hearsay evidence is inadmissible) with few exceptions Now there’s an amorphous rule saying that if hearsay is “reliable and necessary” a judge has the discretion to admit the evidence But all the old exceptions were just examples of reliability and necessity! September 6, 2007 Structure of a Trial Police lay charges in Ontario. In Quebec the Crown lays the charge. The prosecutors go through the reports that came in the night before and decide what to go forth with depending on evidence available; if the judge accepts that on the information received in a sworn statement that there’s enough evidence, then you’ve gone from being a suspect to becoming the accused. The only way that the charge can go is in a court. Defence may try to challenge whether there’s enough evidence. Things can change at any point. Imaginary charge: Assault causing bodily harm: intentional use of force against someone without his consent Prosecution begins with a charge laid by the information/indictment (in this case the information). Prosecution would have to show some use of force, that the act was intentional, and possibly to disprove any defence raised by the Crown. Decide whether you can get a conviction and if it’s in the public interest to prosecute. Would have to consider what kind of evidence you have; compile list of witnesses. When a charge is laid in a criminal matter, Crown must disclose information not subject to privilege to the defence. Must let defence know what your case could be/is. Who might we want to hear from? o Crown brings out each witness one by one and the defence has an opportunity to crossexamine each one. So the evidence from witnesses comes out during the trial (given under oath). o Victim – ask them if they consented. There’s an opportunity to cross-examine the witness. Defence might ask questions to test reliability of victim’s answers. Page 4 of 107 Monika Rahman Autumn 2007 Rule against splitting of the case: Requires the Crown in principle to present the whole of its case because accused is entitled to know the case it has to meet. Can’t wait until the defence presents its case and then bring something up. Prosecution cannot succeed if judge/jury does not feel the Crown’s case has been proved. Defence now has to decide whether it will say nothing further on the basis that the Crown has not proved their case. This depends on skill, and there is always some risk. Motion to direct a verdict of acquittal – there is not enough evidence here Between Crown and defence’s case, defence can change its plea. Defence can call its own witnesses. If it’s trial by judge alone, lawyers can make final submissions to the judge, including strengths and weaknesses of the evidence. If it’s trial by jury, judge will sum up the relevant evidence and the jury will have to be instructed by the judge on the law they have to apply to the case. Read readings under burdens and standards of proof and Woolmington. 2. BURDENS & STANDARDS OF PROOF (Chapter 12 & 1) A) BURDENS OF PROOF September 11, 2007 (i) Evidential burden of proof: Arises on the party whose duty it is to raise an issue. The party must adduce or point to some relevant evidence capable of supporting a decision in the party’s favour on an issue (and every issue) before that issue can go to the trier-of-fact. o Also called burden of production; evidentiary burden The ingredients of the offence are the substantive criminal law. If prosecutor chooses to do nothing at the beginning of the trial – case dismissed. Prosecution hasn’t proved anything; hasn’t presented any evidence. Accused can bear a burden, but only if it chooses to put something at issue (e.g. a defence) Has the burden been discharged? It is a question of law for the judge whether prosecution has discharged evidential burden. o Air of Reality: Evidential burden is discharged if there’s an “Air of Reality”. o E.g. Bernard case – proving intoxication -- “I dunno, I guess I was all drunked up.” – this is not sufficient for a jury to determine reasonable doubt, no air of reality. Standard to be met to discharge Prosecution’s burden: whether a reasonable jury properly instructed could (not would) find that the evidence proves the issue BRD. Standard to be met to discharge the burden of the accused: whether a reasonable jury could (not would) find a finding of reasonable doubt based on evidence adduced. o It is genuinely a burden if the evidence hasn’t already been presented in the Crown’s case. The defence would only produce evidence for a new issue. (ii) Legal burden: Burden borne by a party to prove an issue before the court. o Also called the burden of proof; ultimate burden Page 5 of 107 Monika Rahman Autumn 2007 In criminal law, the Crown must prove each of the elements of the offence beyond a reasonable doubt and disprove any defence before the court. General Rule: Defence does not have to prove anything – presumption of innocence. Reverse Onuses: Exception to the rule that defence doesn’t have to prove anything – statutory o E.g. In strict liability cases, defence has burden to prove due diligence etc. o E.g. In the case of insanity Quantum for reverse onus: Even where there is a legal defence, the defence has a burden to prove that on a balance of probabilities (not BRD). Imposition of reverse onus on the defence necessarily violates the presumption of innocence. Consider: Crown has to prove the whole of the case BRD, and normally disproves defence BRD. What if you have a reverse onus on the defence to prove something on a BoP? Let’s say the evidence raised by the defence discharges the evidential burden (BoP) and even casts reasonable doubt, normally this would collapse the Crown’s case. But the case isn’t over. The Crown still has to prove the whole case BRD, and even though a reasonable doubt may have been raised, b/c BoP is a lesser burden, the jury would still has to convict. (double check this) In terrorism cases, the Crown only has to prove case on a balance of probabilities. This being a lesser burden seems to indicate suspicion of the accused, violating the presumption of innocence. Presumptions Presumptions consist of two parts: 1) Premise; 2) Conclusion (being an inference from the premise) E.g. Evidence that someone is habitually in the presence of a prostitute or lives with a prostitute is proof that he lives on the avails of prostitution (Code, s.212). Big boost for the Crown! o Proof for Crown normally means proof BRD without evidence to the contrary. o Does the premise really prove the inference? E.g. 349. (1) Every person who, without lawful excuse, the proof of which (i.e. proof of the lawful excuse) lies on that person, enters or is in a dwelling-house with intent to commit an indictable offence in it is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or of an offence punishable on summary conviction. o “the proof of which lies on that person” reverse onus o This sub-section provides for proof of the act (2) For the purposes of proceedings under this section, evidence that an accused, without lawful excuse, entered or was in a dwelling-house is, in the absence of any evidence to the contrary, proof that he entered or was in the dwelling-house with intent to commit an indictable offence therein. o This provides for the proof of the intent. o Yet we can imagine that there is a reasonable doubt that a person is in a house without intent to commit an offence. Oakes section of the CC said that possession was proof of intent to sell the narcotics, which reversed the onus and the defence had to prove the contrary. This was found to be a violation of the presumption of innocence. So why are these still in the books? 10/12 trips to the SCC challenging the constitutional validity of these presumptions have resulted in their justification as a reasonable violation of the right to a presumption of innocence under s.1. o What does this tell us about the value of rights in this democratic society? Page 6 of 107 Monika Rahman Autumn 2007 Persuasive burden of proof: is on the party who, in law, is required to establish the relevant facts to succeed. Prosecution usually bears the persuasive burden. The Crown bears both the evidentiary and persuasive burden with respect to the elements of the offence charged. Accused bears evidentiary burden wrt standard justifications and excuses. Once the accused has satisfied the evidentiary burden, Crown must disprove the excuse or justification beyond a reasonable doubt. September 13, 2007 Examples of Burden on the Defence or a Reverse Onus Example 1 Section 362(4) -- Is someone presenting a cheque in payment doing so fraudulently? Where, in proceedings under paragraph (1)(a), it is shown that anything was obtained by the accused by means of a cheque that, when presented for payment within a reasonable time, was dishonoured on the ground that no funds or insufficient funds were on deposit to the credit of the accused in the bank or other institution on which the cheque was drawn, it shall be presumed to have been obtained by a false pretence, unless the court is satisfied by evidence that when the accused issued the cheque he believed on reasonable grounds that it would be honoured if presented for payment within a reasonable time after it was issued. You have here a presumption and a reverse onus When you see “established” in a statute (i.e. “unless the court is satisfied”) – it means that it has to be proved If it is shown (i.e. by the Crown) – but to what extent? It’s not clear. Example 2 279. (1) Every person commits an offence who kidnaps a person with intent (a) to cause the person to be confined or imprisoned against the person’s will; (b) to cause the person to be unlawfully sent or transported out of Canada against the person’s will; or (c) to hold the person for ransom or to service against the person’s will. 279. (3) In proceedings under this section, the fact that the person in relation to whom the offence is alleged to have been committed did not resist is not a defence unless the accused proves that the failure to resist was not caused by threats, duress, force or exhibition of force. This is a plain reverse onus. These are all examples of a violation of the presumption of innocence. B) STANDARDS OF PROOF Page 7 of 107 Monika Rahman Autumn 2007 There are two standards of proof in Cdn law: Proof beyond reasonable doubt – the general standard required on guilt or innocence Balance of probabilities Where we would use a standard of BoP: Proof on preliminary facts: o E.g. Competence of the witness (e.g. Ability of a child to testify – why would this be important? We need to know if the child can recount the necessary information, and can distinguish between the truth and fiction.) o E.g. whether someone is an expert o Exception to this rule: proof of confessions of accused persons in criminal cases – BRD standard applies. Crown must show that the statement was voluntary. Why might this be? Confessions are inculpatory, and often very damaging as it will put guilt beyond doubt. Therefore we are very careful about statements made by the accused out of court. The “Beyond a Reasonable Doubt” Standard R v. Lifchus [1997] 3 SCR 320 (CBp.988) Jurisdiction Facts L was convicted of fraud. The TJ instructed the jury that ‘proof beyond a reasonable doubt’ should be interpreted according to the everyday meaning of each of its terms. The CA allowed the appeal that the TJ erred in so doing. [TJ was in accord with the LRCC] Issues Were the TJ’s instructions sufficient? Holding No Reasoning Cory: -Reasonable doubt is inextricably linked to the presumption of innocence, and there cannot be fair trial if jurors don’t understand this standard of proof and its importance. -The words each have a specific meaning in the criminal law context, and because the accused’s liberty is at stake, it is of fundamental importance that the nature of the burden of proof be established. It is therefore essential that an explanation be given, which should contain the following points: The tie between the standard and the presumption of innocence The fact that the burden is always on the crown (Woolmington) That the doubt is not based on sympathy or prejudice That it is based on reason and common sense (must be able to explain the basis of doubt) That it is logically connected to the evidence or lack thereof That it does not involve proof to an absolute certainty, nor an imaginary or frivolous doubt (has to be connected to the evidence: “logically derived from the evidence”) Merely finding that the accused is “probably guilty” requires an acquittal The TJ should avoid: Describing it as an ordinary expression with ordinary meaning Comparing the decision to important life choices Equating it with moral certainty Qualifying doubt with words like serious, substantial or haunting Instructing jurors to convict if they are ‘sure’ before providing a proper def’n of BRD -Cory then sets out a suggested charge (p.993), that, though not required, will assure TJ’s that their instructions will not be faulted. Page 8 of 107 Monika Rahman Autumn 2007 -Here, the TJ failed to explain the standard fully and properly. -Points out that even if there is an error in these instructions, it may not constitute a reversible error if the total charge makes it clear that the jury could not have been under any misapprehension as to the standard of proof [R. v. W. (D.) 1991 SCC]. The charge to the jury must include an explanation of the meaning of ‘beyond a reasonable doubt” which explains some of the main purposes and features of that standard. Rule R v. Lifchus (1997, SCC) – hashes out what BRD means. This phrase has been around for a long time. But how can we explain what it means? o Crown must prove all the elements of the offence, and disprove any defences BRD. o Crown does not have to prove every fact in its case BRD. So what would you tell a jury? In Lifchus, Cory J sums it up: Jury should be instructed that the burden never shifts to the accused (except w/reverse onus) RD is not doubt based on sympathy or prejudice, but based on reason and common sense Logically connected to the evidence or absence of evidence (Healy: This might tempt the jury to wonder why they haven’t heard from the accused. A benign interpretation of this is the gaps in the Crown’s case.) It is not proof to an absolute certainty, nor proof beyond any doubt. Equating proof BRD with moral certainty In the aftermath of Lifchus, trial judges thought if I do not mouth these words, I’m going to get clobbered by the Court of Appeal. So you had a generation of cases going to CoA with the following issue: did the trial judge get close enough to what the SCC said had to be said in Lifchus? The CoAs finally objected and said that Lifchus is only guidance, not something needs to be repeated ad verbatim. In some jurisdictions, any attempt to provide a definition of proof BRD is considered a reversible error. Note: Court of Appeal usually cannot review assertions of error in fact (i.e. how a jury might have interpreted the evidence). If accused appeals on a matter of fact, CoA can order a re-trial. II. ADMISSIBILITY AND EXCLUSION 1. RELEVANCE, PROBATIVE VALUE, PREJUDICE (Chapter 3) Relevance (basic definition) – whether something has any bearing on the issue at hand. Example: Someone has been charged with heroin trafficking. In his apartment, an undated article about the heroin trade in China is found. Is the article relevant? We may be concerned about other issues, such as whether a random article might trigger bias in the jury/judge (e.g. what if we found an article about fundamental Islam in a suspected terrorist’s home?); however, this is a later consideration. The article is relevant. Two options: o Perhaps the admissibility question is not exhausted. The judge may exercise discretionary power to exclude the article for other reasons, such as low probative value and prejudicial effect Page 9 of 107 Monika Rahman Autumn 2007 o Leave it to the jury to consider the weight of the evidence. Note: the judge can tell the jury “look, an article doesn’t mean this guy actually had an interest in trafficking heroin” Neither of this actions can be said to be the “correct” option Poisonous chain of inferences – because this guy has this article, he has an interest in importing heroin, and therefore he perhaps he trafficked heroin What did the Supreme Court of Canada say? Common law has evolved over the years to recognize a broad application of judges’ discretion A) HOW SHOULD WE DETERMINE RELEVANCE? R v. Watson (1996), 108 CCC (3d) 310 (Ont. CA) (CBp.85) Jurisdiction Ontario CA Facts The deceased was killed at his business premises from gunshots. The accused had arrived with Headley and Cain, the men suspected of having shot the deceased, and remained in the front area. During the encounter, Cain was also shot. The Crown’s position was that the appellant, knowing that the deceased was to be killed, remained on guard and fled with H and C, and therefore was liable for murder as an aider and abetter to the murder. The Crown relied on evidence by the pathologist that the deceased was shot 7 times (with a 6shot gun), which would require more than one gun to have been shot as there was no time to reload. The inference is that both H and C had weapons, which makes a finding that the three together intended to kill the deceased upon arrival at his premises. The defence’s theory was that the appellant did not know H was armed, that C was unarmed, and that the death occurred during a spontaneous gun battle b/c the deceased was armed (also unknown to applt). The defence relied on the evidence of a firearms expert that the deceased was only shot 5 times. One inference from the 5-shot theory could be that H was acting alone, and that perhaps the deceased had also fired one or two shots, one possibly hitting Cain. This would account for two guns without putting one in Cain’s hand this makes the possibility of a spontaneous gun battle more credible. Findings that the deceased was armed and fired his gun could leave a reasonable doubt as to whether the appellant was involved in planning the deceased’s death. Issues Holding Reasoning Evidence was given by Mr. Mair, a friend of the deceased, that the deceased always carried a gun with him (“It was his dog – you know like a credit card. He never left home without it.”), but was not a violent man and never took it out. Is the evidence of Mr. Mair relevant to the defence’s contention that the deceased appellant was not a party to a plan with H and C to kill or do harm to the deceased? Yes. Relevance: No minimum probative value is required for evidence to be deemed relevant. (Morris) Relevance is explained as a determination of whether, as a matter of human experience and logic, the existence of Fact A makes the existence or non-existence of Fact B more probable than without Fact A. The fact that the deceased always carried a gun does make it more likely that he was in possession of a gun when shot (first contention by defence), since evidence of habit is relevant to proving conduct on certain occasions. Having concluded the deceased was armed, the jury could also infer that C was not shot by H but by the deceased since there were at least two guns involved. Either Cain was shot by the deceased, or by H carrying two guns (the former seems more logical) Furthermore, had the jury inferred that the deceased was armed and shot a weapon, it could have inferred that the possibility of the shooting being a result of a spontaneous battle was a viable one. Therefore, evidence supporting the inferences that the deceased was armed and used a weapon made the defence’s position that the appellant was not involved in any plan to kill more viable than if the inferences were not available. Therefore the evdce was Page 10 of 107 Monika Rahman Autumn 2007 relevant to a material fact in issue. Admissibility All relevant evidence is admissible, subject to discretion to exclude matters that may unduly prejudice, mislead or confused the trier of fact, take up too much time, or should otherwise be excluded on grounds of law or policy. Although evidence of the deceased’s bad character does hold some potential of prejudice against him, in this case, the balancing process favours admission. The proposed evidence is of significant probative value for the defence on whether the deceased was armed at the relevant time and the deceased’s criminal lifestyle would have come out in other evidence anyway. In situations where self-defence is being proposed as a basis for the killing, the prejudicial effect would be much higher b/c the jury might conclude that the deceased got what it deserved b/c of bad character. Comments B) PROBATIVE VALUE AND PREJUDICE At common law, a trial judge has the power to exclude evidence offered by the Crown where prejudicial effect of the evidence exceeds its probative value (R v. Morris (1983, SCC)). In Seaboyer, the SCC considered whether this could apply to evidence offered by the defence. R v. Seaboyer, [1991] 2 SCR 577 (CBp.95) Jurisdiction SCC In Seaboyer, the accused was charged with sexual assault of a woman with whom he’d Facts been drinking in a bar. Appellant wishes to cross-examine complainant on past acts of sexual intercourse which may have caused physical bruises and other aspects of the complainant’s condition put into evidence. Issues Holding Reasoning In Gayme, the 15 year old complainant accused the 18 year old appellant of sexual assault at his school. The defence, contends there was no assault and that the complt was the aggressor, relying on the defences of consent and honest belief in consent. Defence seeks to cross-examine the appellant to present evidence on prior sexual conduct. Do the “rape-shield” provisions (ss. 276-7), which restrict the right of defence on trial for a sexual offence to cross-examine and lead evidence of a complainants sexual conduct on other occasions, offend s. 7 and 11(d) (right to a fair trial) of the Charter? If so, can they be saved by s. 1? Section 277 does not offend the Charter. Section 276 does offend the Charter, and cannot be saved. McLachlin J (majority) Does the legislation infringe the Charter in purpose or effect? In purpose no, but in effect yes. The main purpose of the legislation is to abolish old CML rules that permitted evidence of the complnt’s sexual conduct, which was of little probative value, without proof of relevance. Inferences were made that past sexual conduct made it more likely that the complainant had consented to the alleged assault and undermined her credibility generally. The subsidiary purposes are to 1) eliminate evidence that has little or no probative force but unduly prejudices the judge and jury against the complt; 2) encourage the reporting of sexual offences; and 3) protection of witness privacy. An essential element of a fair trial is the “opportunity adequately to state [one’s] case”. Without being able to call the evidence necessary to establish a defence, it is tantamount to making the defence unavailable. Therefore s.276 offends s.7 and 11(d). Admissibility of evidence depends on its probative effect balanced against the prejudice caused to the accused by its admission (Sweitzer). With respect to defence evidence, Page 11 of 107 Monika Rahman Autumn 2007 Rule where we are concerned of an innocent person being convicted, the prejudice must substantially outweigh the value of the evidence before a judge can exclude evidence relevant to a defence allowed by law. The problem is that s.276 may exclude evidence which is relevant to the defence, and which is not substantially outweighed by potential prejudice to the trial process (where’d the victim go?). In effect, relevancy is predicted on the basis of a series of categories. Section 276 cannot be saved under s.1 because it’s overbroad, and the injurious effect of the legislation outweighs the salutary benefits. Section 277 is fine (excludes evdce of sexual reputation for the purpose of challenging or supporting the ptf’s credibility). Following the striking of s. 276, we must continue to exclude sexist-based use of sexual conduct evidence, but permit admission of relevant evidence. The trial judge must assess whether the evidence demonstrates a degree of relevance that outweighs the damages and disadvantages of its admission. Cases where such evidence carries sufficient probative value will be exceptional. The jury must also be fully and properly instructed to its appropriate use. L’Heureux-Dubé (dissenting, Gonthier J concurring) Reviews the statistical and social science ‘data’ on sexual assault, and examines all of the myths at play regarding sexual assault, including the studies that show that use of sexual history in trials is very effecting in securing acquittals. Shows how these myths informed the common law rules allowing evidence of sexual history and reputation and gives examples of these myths finding their way into doctrine and jurisprudence, including recent cases. Argues that the exceptions provided under s. 276(1) cover all cases of relevant evidence. All of the examples tendered to show that relevant evidence would be excluded are useless—as the evidence would only be relevant in light of the myths that she just finished attacking. The two cases where evidence was not allowed under 1(a) were wrongly decided. As for the similar fact exceptions, they presume the myth that women consent to circumstances, rather than to a person. No relevant evidence as to mistaken belief in consent is excluded, as s. 1(c) amply provides for that defence—which must have an air of reality and where reasonable grounds are corroborative. “If I am wrong in concluding that no relevant sexual history evidence is excluded by the contested provision” such exclusion is proper due to the extremely prejudicial effect. Thus, it does not violate s. 7 or 11(d), and if it does, it is saved by s. 1 Section 276 is unconstitutional because it violates the right to a fair trial by potentially excluding otherwise admissible evidence. 2. CHARACTER (Chapter 7, pp. 411-465) Definition: In the law of evidence, a person’s “character” is understood as his propensity or disposition to behave in a certain way. This is different from habit, and more like behavioural traits that are more deeply ingrained. The judge has discretionary power regarding admissibility of this type of evidence, re: probative value, and prejudicial potential. Ways to prove character: Evidence of specific acts (including prior criminal convictions) Evidence of reputation (through character witnesses) Psychiatric evidence Page 12 of 107 Monika Rahman Autumn 2007 The common law has traditionally placed strict limitations on the admissibility and use of character evidence due to a number of policy reasons: Concerns about reliability and probative value Efficiency concerns due to time and resources necessary to explore collateral issues Potential for unfairness (especially for the accused) What place might character evidence have in a system of evidence law? By Prosecution: General Rule: Character evidence is presumptively inadmissible by Crown unless there’s a reason to include it. Crown cannot lead with evidence of bad character to try to show that there’s a higher probability that someone committed an offence. You should be tried for what you “did”, not the kind of person you are. The exception: Prosecution can raise similar fact evidence in its case in chief Similar fact def’n - because a person has done bad things of a similar type in the past, the probability that the person might do it again is high. By Defence: In cross-examination, defence can try to establish whether or not a certain witness should be believed, and can cross-examine about previous convictions (Canada Evidence Act1 s.12; CC s. 666). Defence may also want to raise character evidence to establish that the accused is the type of person who is credible, honest, can be believed, etc., and to establish the improbability of guilt. If the accused elects to put character at issue, it can only be evidence of general reputation in the community. The accused cannot give evidence on his reputation but only of specific acts that may support his angelic character. o Note: you’ve opened the door for the Crown to cross-examine Whether or not you adduce character evidence of the accused may be decided by the type of offence – e.g. what does reputation in the community have to do with sexual assault cases which occur in concealment? Consider: In questioning these ideas and concepts, we can ask, what do we think of this idea of general reputation in the community? We have different personas depending on what community we’re speaking about. This is the rankest, rottenest type of evidence out there – it’s all based on rumour. A) CHARACTER DIRECTLY IN ISSUE Character is directly at issue when it is something that must be proved as an element of the cause of action E.g. declaring someone a dangerous offender; defamation where dft has attacked ptf’s character When directly at issue, there are no special rules governing admissibility of character evdce. B) CHARACTER AS CIRCUMSTANTIAL EVIDENCE More commonly, evidence of a person’s character is circumstantial evidence: trier of fact is asked to infer that, because the person has a certain character trait or disposition to behave a certain way, he or she is more likely to have behaved in the manner alleged. 1 Canada Evidence Act - CEA. Page 13 of 107 Monika Rahman Autumn 2007 This is what we’re concerned with in this chapter. C) PUTTING CHARACTER IN ISSUE The Crown cannot on its own put the accused’s character at issue. That is, the Crown may not lead evidence of the accused’s bad character to support an inference about his character unless the accused himself puts his character in issue. This limitation exists “for reasons of policy and humanity” – i.e. so as not to “have the whole life of the prisoner ripped up” and prejudice the trial, “instead of being convicted on that affirmative evidence” (R. v. Rowton, 1869, England). September 20, 2007 What does it mean to put character in issue? When does the accused put character in issue? Healy on McNamara: Was a huge case that went on for years on a wide variety of points. Leading case on corporate liability. There were multiple accused persons/corps represented by incredible counsel. In the case, the appellant was asked about the mandate of a particular operations employee. McNamara demonstrates that there’s an essential threshold question of whether character has been put at issue. When questioning your accused, you want to be careful to not put his character at issue (unless you want to). If you were defence counsel, what would you say instead of trying to get McNamara to repeat the “legally” comment? You’d say something like, “That’s not what I asked you. Can you please answer the question I asked?” Question here is whether the answer given by the witness was an answer that put his good character at issue whether the Crown can cross examine. General Rule: Crown is unable to lead evidence of the accused’s bad character. Exception to the General Rule: If the accused personally introduces evidence of his good character Crown is entitled to lead evidence on previous instances of bad conduct (including previous convictions). The Crown’s evidence regarding the MB transaction has the effect of destroying Simard’s credibility. Lesson: Carefully shape your questions. Should definitely advise client to not open the door on this kind of questioning from the Crown. Tell the witness to answer questions with facts from what they know. R v. McNamara et al. (No. 1) (1981) 56 CCC (2d) 193 (CBp.413) Jurisdiction Ontario CA Facts 13 individuals and corporations appealed from their convictions for offences of conspiracy to defraud. The Crown cross-examined Jean Simard with respect to the “Marine Building transaction”, a transaction in connection with which Simard had pleaded guilty to a charge of income tax evasion. When asked to address what the mandate of one of his employees was (Mr. Rindress, maybe a CEO?) by defence counsel, and whether he had ever had any position of special influence with Jean Marchand (a minister?), Simard stated clearly that Mr. Rindress’ mandate was “to run the company like a company should be run, legally”, and repeated this statement. He also made several lengthy statements in response to questions about whether he had influence over a particular minister regarding his relationship with ministers, his proper behaviour when at board of director meetings at another company (i.e. to be explicit about other interests), how he wouldn’t exploit the fact that a fellow director was chairman at a bank, and argued that his political contributions were proper. Page 14 of 107 Monika Rahman Autumn 2007 Issues Holding Reasoning Ratio Defence claims that the cross-examination of the appellant by the Crown violates the rule that the Crown may not initially introduce evidence which shows the accused is a person of bad character. Did the appellant cross over the line of permissible repudiation of the charge when describing his involvement with numerous companies thereby putting character in issue? Yes. An accused person does not put his character at issue by denying his guilt and repudiating the allegations made against him, or explaining matters essential to his defence. An accused is not entitled, however to assert that he would not have done those things alleged against him because he’s a person of good character without opening the door to the Crown to cross-examine. The appellant was entitled to repudiate Rindress’ evidence that the appellant had claimed to have influence with Jean Marchand. He was also entitled to explain his political contributions were proper and not mad with improper motives. However, the appellant went too far. Saying that he would only allow a Simard company to be run legally, he was intending to project the image of a law-abiding citizen, a man of integrity and an ethical businessman. His comments about the propriety of his behaviour and contributions were made in an effort to demonstrate that he was an upright man, whose character was such that it was unlikely that he would commit the offence charged. Therefore, the accused put his character in issue and the Crown was entitled to crossexamine. An accused testifying as to his own good character puts his character in issue, and therefore the Crown may cross-examine him and adduce evidence to dispute this. Comments There are three ways than an accused person can put his character in issue: 1. by adducing evidence of a good reputation; 2. by testifying as to his own good character; or 3. by calling expert evidence of propensity or disposition D) METHODS OF PROVING CHARACTER: ACCUSED PERSONS (i) Reputation Note: It wasn’t until the 19th century before the accused was able to testify at all. Healy on Reputation: Rowton – proof of character means general reputation in the neighbourhood in which the accused lives The issue in Levasseur was what is meant by neighbourhood. What are the chances that you’re known by the other residents of your apartment building? As per Levasseur, it is possible to have another community, as long as it meets the standard of general reputation evidence. R v. Rowton (1865), 169 ER 1497 (CBp.418) Jurisdiction England Facts A schoolmaster was charged with indecent assault. Several witnesses gave him “an excellent character, as a moral and well-conducted man”. The Crown called in reply a witness, a former student, who stated that “in my opinion” the accused’s character was “that of a man capable of the grossest indecency and the most flagrant immorality.” Issues 1. What does reputation mean? 2. Was the Crown entitled to reply to evidence of good character of the adduced? Was the answer improper? Holding 1. General reputation in the community 2. Yes. Yes. Conviction quashed. Page 15 of 107 Monika Rahman Autumn 2007 Reasoning Ratio Evidence of character means evidence of general reputation in order to understand the tendency and disposition of the man’s mind towards committing or abstaining from committing the crime for which he is accused. Any evidence of good character of the accused should be restricted to the man’s general reputation, and must not extend to the individual opinion of the witness. Any evidence called to rebut this evidence of good character must be of the same general description – showing that the man’s general reputation is bad. The reputation must be in your neighbourhood. The Crown is bound to limit proof of character to proof of general reputation in the neighbourhood in which you live. Comments R v. Levasseur (1987), 35 CCC (3d) 136 (CBp.419) Jurisdiction Alberta CA Facts The accused was charged with breaking and entering a warehouse where she allegedly stole a truck and a car. She admitted that she and a lawyer she had worked for had both stolen money from mortgage accounts. An ex-employer of hers, whom she knew for 1.5 years, gave character evidence regarding the good reputation she had with 15 of their business acquaintances. Issues Did the trial judge err in refusing to admit character evidence as to the accused’s reputation? Is character evidence of general reputation confined to reputation in the residential community of the accused? Holding Yes. No. Reasoning Wigmore on Evidence argues that in the conditions of life today, there is no reason why a man’s reputation should be any longer confined to his “neighbourhood reputation” (as first articulated in Rowton). What the law desires is a trustworthy reputation. There is no reason for sustaining this archaic rule in Cdn evidence law. The issue was not about the weight to be given to the evidence, but its admissibility. Dissent: The evidence against the appellant is of such impact that the admission or rejection of good reputation evidence is of no consequence. The totality of the evidence should be considered. Her own testimony regarding taking from mortgage accounts erodes the good reputation evdce. Furthermore, her ex-employer’s evidence was easily contrived and not worth anything. Comments Evidence relating to character of the accused can be used for two reasons: 1. to determine the credibility of the accused 2. as a basis of an inference that the accused was unlikely to have committed the crime charged. Evidence must be of the witness’ knowledge of the accused’s reputation in the community; expression of the witness’ own opinions of the accused’s character is not admissible. Healy on Profit: In cases of sexual misconduct, there is a question of weight of good character evidence raised by the defence. In Profit, the main issue was whether the character evidence was properly considered. In particular, whether it was reflected in the evidence on the whole. Page 16 of 107 Monika Rahman Autumn 2007 However, this case turned on the adequacy of the trial judge’s reasons and whether they showed the mental process of reflection and assessment of the value of the evidence with regard to both credibility and probability the accused could have committed the crime. Not sure if this case would be decided the same way today. In 2002 there were two cases called Braich(?) and Sheppard re: quality of reasons given by trial judges. There has never been an explicit requirement for a certain quality of reasons. It’s hard to imagine why since in criminal matters, these are decisions that directly affect the liberty that has been charged with an offence, and yet until recently we did not insist upon full reasons. In Braich and Sheppard, the court said that if the appellate court is unable to trace the process of reasoning that the TJ undertook to come to the decision, the case will be reversed (i.e. there is a requirement to give reasons in criminal matters). o Looking at Profit, today the court may have found that it’s difficult to tell what weight the judge gave to the evidence. R v. Profit (1992), 11 OR (3d) 98 (CBp.423) Jurisdiction Ontario CA Facts A 57-year old school principal as convicted at trial for indecent assault of Davis during the months of October 1977 to Feb 1978, and in March 1978. He was also acquitted on a third count relating to Davis, and 5 counts relating to other students. At trial, several character witnesses testified on behalf of the appellant, relating evidence with regard to the appellant’s honesty, integrity, and morality. They had never seen him conduct himself in a sexually inappropriate manner. In his reasons, the trial judge related his holdings of guilt but did not specifically make reference to the character evidence. After he made his findings, he did say that the evidence of the character witnesses was “just one of the factors that I had to consider in determining the credibility of any of the witnesses, …[and] that the court is grateful …for their assistance in determining the very difficult issues before the court.” Issues Did the trial fail to consider the dual significance of the evidence of good character as it related both to the appellant’s credibility and the likelihood that he may have committed the offences alleged? Holding Yes, new trial ordered Reasoning Though the evidence regarding the accused’s sexual morality is not evidence of general reputation, the witnesses were asked about it before being asked about his general reputation of honesty and morality. We can reasonably infer that the witnesses were referring to his reputation as to sexual morality as well as general morality. The trial judge did not consider the evidence with regard to both credibility of the appellant and to the likelihood that he may have committed the offence (only the former). Although evidence of general reputation would have a more limited weight when the offence involves a matter of sexual morality, in this case, because evidence was given specifically regarding reputation of morality, it is relevant. In a case such as this, the use of character evidence to support an inference of improbability of the accused’s having committed the offence is important, and therefore the judge fell into error. Griffiths J (Dissenting): The trial judge gave valid reasons for rejecting the accused’s testimony. This court has held that private nature of sexual misconduct, particularly by persons in positions of trust or control, renders evidence regarding general reputation of little probative value. The majority in this case have distinguished previous cases due to the fact that here evidence was adduced specifically regarding the accused’s sexual morality. I am not persuaded that this court intended to limit the observation that evidence of good character had diminished relevance in cases of sexual assault to those cases where the evidence speaks only to the honesty and integrity of the accused. Page 17 of 107 Monika Rahman Autumn 2007 Note: On appeal, the Supreme Court held up Griffiths’ judgement: “…a trial judge may take into account that in sexual assault cases involving children, sexual misconduct occurs in private and in most cases will not be reflected in the reputation in the community of the accused for morality.” The TJ may consider this as a matter of weight. Comments (ii) Specific Acts of Accused 1. The Crown may not lead evidence of specific bad acts of the accused that are not the subject matter of the charges before the court (i.e. the similar fact rule). 2. The accused may not call witnesses to testify as to his prior good acts -- when the accused wishes to adduce extrinsic evidence of good character by calling witnesses, such evidence is confined to evidence of general reputation. 3. If the accused chooses to testify, he may give evidence of specific instances of his own good conduct – he then puts his character at issue. 4. If the accused chooses to give evidence of his own good conduct, the Crown is permitted to rebut this evidence of good character by evidence of general reputation, proof of a previous conviction (s.666 CC), or through similar fact evidence (as per McNamara, an Ontario case). R v. McNamara et al. (No. 1) (CBp.431) Jurisdiction Ontario CA Facts See above Issues Did the trial judge err in permitting Crown counsel to cross-examine Jean Simard with respect to his involvement in the Marine Building transaction? Can the Crown adduce similar fact evidence in rebuttal of evidence of specific acts showing good character? Holding No. Yes. Reasoning The Crown may adduce similar fact evidence in rebuttal of evidence of good character (as per Pigeon J in Guay). The cross-exam. on the Marine Building transaction related to the appellant’s assertion of having a good disposition in relation to honesty and integrity, and was highly relevant to rebut the appellant’s assertion of good character. The defence argued that the cross-exam could not be justified on the ground that it directly proved that the appellant had lied in his examination-in-chief since the applt did not testify about the MB transaction. Where an accused puts his character in issue, opening the door to cross-exam on his past conduct, the proof of the previous bad conduct may have a double effect: 1) rebutting his claim to good character; 2) directly proving that he lied in the witness-box if he has impliedly asserted that he is a law-abiding citizen. However, this evidence has a limited use – it is not to show that the person was likely to have committed the offence, but has a bearing on the general credibility of the accused. Comments September 25, 2007 (iii) Psychiatric Evidence of Disposition One of the exceptions to the general rule that the character of the accused, in the sense of disposition, can only be evidenced by general reputation relates to the admissibility of psychiatric evidence where the particular disposition or tendency in issue is characteristic of an abnormal group, the characteristics of which fall within the expertise of a psychiatrist. (McMillan) Healy on Lupien: Page 18 of 107 Monika Rahman Autumn 2007 Homosexuality was only taken out of the criminal code in 1967 by Trudeau (“state has no place in the bedroom”) Defence: Lupien thought that the man was a woman. Logic of the argument: I have this particular disposition that would’ve made me violent had I known that this person was a man Should this be admissible? Is this character evidence? It’s not specific acts, not reputation; it’s evidence of disposition. An aside: We’re talking about expert evidence. There is a question about whether the expertise this doctor is bringing in. What exactly did this case decide? That this kind of evidence should have gone in given that we’re dealing with homosexuality. However, this decision could clearly have a broader application. (Even if it did go in, it may not have very much weight.) R v. Lupien, [1970] SCR 263 (CBp.435) Jurisdiction Appeal from BC Facts The respondent was found naked in bed with a man dressed as a woman with heavy facial make-up. He was convicted of “attempting to commit an act of gross indecency”, which was set aside on appeal and a new trial ordered. The respondent’s defence was that he had believed his companion was a woman. A psychiatrist testified that the respondent had a certain type of defence mechanism that would make him react violently to any homosexual overtone – i.e. arguing that he had the absence of a specific degree of behavioural capacity. He was only allowed to answer a hypothetical question put to him, on the assumption of the truth of the evidence. Issues Is psychiatric evidence that the respondent must have believed his companion was a woman due to his particular disposition admissible? Holding No, conviction restored. Reasoning Martland J (Judson J concurring) (minority): The psychiatrist is being asked for an opinion, not as to whether the respondent was mentally capable of formulating an intent, but as to whether he did formulate such intent. The issue at hand is as to guilt on the basis of proved facts that already exist, not a forecast as to future conduct. There is no statutory requirement to hear psychiatric evidence. This psychiatric evidence is sought to adduce opinion evidence on the very issue which the jury is bound to determine on the whole of the evidence. Ritchie J (dissenting): If the evidence had been tendered for the purpose of showing Lupien was a normal man, the question of how he would have acted would be for the jury to decide, but in fact the psych. evidence was tendered for the purpose of proving the doctor’s opinion that Lupien had a certain type of defence mechanism that made him react violently against homosexual behaviour, i.e. that he is incapable of formulating the intent to commit a homosexual act. The question of whether or not a man has homosexual tendencies is one which is well adapted to the diagnosis of a psychiatrist, and the evidence should be admitted. This is different from character evidence as to general reputation. Rowton came along way before psychiatry was an accepted branch of medicine, and there is no case where the rule in Rowton was used to exclude psych. evidence. We shouldn’t always admit psych. evidence that says a person has a disinclination to commit the crime he’s charged with, but homosexuals stand in a class by themselves – participants have characteristics which made them more readily identifiable than ordinary criminals. A psychiatrist is qualified to express an opinion on this matter. Hall J (concurring with majority on result): Page 19 of 107 Monika Rahman Autumn 2007 Writers agree that that psychological factors are of great imptce in understanding the cause of homosexuality, and therefore psych evdce is particularly relevant in cases involving hs. Admissibility of opinion evidce from psychiatrists should be determined based on relevancy to the matter in issue. The weight to give the opinion of the expert is entirely for the jury, and the TJ should instruct the jury as such. However this is a case where it would have made no difference to the outcome, so nevermind. Comments Healy on Robertson: There are circumstances in which expert evdce is supportable to strike a comparison between the likely offender and the accused to demonstrate sufficient difference b/w the accused and the perpetrator to support the inference that Martin extends the principle in Lupien, saying there’s no other case that supports this conclusion. R v. Robertson (1975), 21 CCC (2d) 385 (CBp.439) Jurisdiction Ontario CA Facts The accused was charged with the murder of a 9 year old. A psychiatrist testified that that the appellant did not show any violent or aggressive tendencies as character traits or in his psychiatric make-up, and the type of individual who would commit this type of offence is likely one who would show these characteristics. Issues Did the trial judge err in rejecting the evidence of the expert witnesses? Holding No. Reasoning Martin J: Where there is evidence showing that, by reason of the nature of the offence, or its distinctive features, its perpetrator was a person who was a member of a “specialized and extraordinary class” and whose psychological characteristics fall within the expertise of the psychologist, there is no reason why such evidence should not be admitted to show that the accused did NOT possess the psychological characteristics of person of that class. (following Ritchie in Lupien) Clearly the Crown can call psychiatric evidence in order to rebut the evdce introduced by the defence. A mere disposition for violence, however, is not so uncommon as to constitute a feature characteristic of an abnormal group falling into the special field of study of the psychiatrist and permitting evidence to be given of the absence of such disposition in the accused. In this case, it cannot be said that the act of brutality which resulted in the death of the deceased would only be committed by a person with recognizable personality traits… no special class. Comments Healy on Mohan: Sopinka approves of the line of reasoning from Robertson. He did not approve of the evidence submitted in this case though. R v. Mohan, [1994] 2 SCR 9 (CBp.441) Facts A paediatrician was charged with four counts of sexual assault on four of his female patients. Evidence relating to each complaint was submitted as similar fact evdce with respect to the others. The trial judge held a voir dire and a psychiatrist testified that, hypothetically, the perpetrator of the offences would be part of a limited and unusual group of individuals, namely paedophiles and sexual psychopaths, and that Dr. Mohan does not Page 20 of 107 Monika Rahman Autumn 2007 have the characteristics attributable to these groups. He also testified that the fact that this hypothetical paedophile or psychopath was a doctor would make the class even smaller. Issues Holding Reasoning Comments The TJ ruled the evidence inadmissible saying that he was not convinced that doctors who commit sexual assaults are in a significantly more limited group, psychiatrically speaking, than other people. The Ontario CoA found that the evdce was admissible. The accused was convicted. Should the evidence have been admitted? No Sopinka J: “Abnormal” is no longer a satisfactory way of describing the identifiable peculiarities a perpetrator or accused may or may not have. “Distinctive” more aptly describes these behavioural characteristics. Before an expert’s opinion is admitted as evidence, the trial judge must be satisfied as a matter of law, that either the perpetrator of the crime or the accused has distinctive behavioural characteristics such that a comparison of one with the other will be of material assistance in determining innocence or guilt (i.e. that it’s relevant). This decision I made on the basis of common sense and experience. Should also consider whether expert is expressing a personal opinion or whether the behavioural profile being put forward is in common use as a reliable indicator of membership in a distinctive group. Has the scientific community devel’d a standard profile for the offender who commits this type of crime? A person who committed sexual assaults on young women is not in a distinctive enough group to be helpful in identifying the perpetrator. There is nothing to indicate any general acceptance of the theory that only a psychopath could have committed the acts in question. In this case, the expert’s group profiles were not seen as sufficiently reliable to be considered helpful. Scenarios of exculpatory evidence of propensity offered by the accused: 1. The crime is an “ordinary” one, but the accused is an “extraordinary” person, having some kind of mental make up that would show he would not commit the ordinary crime; 2. The crime may be extraordinary, but the accused is ordinary. 3. The crime is extraordinary and the accused is extraordinary but in a different direction On the Crown’s leading inculpatory expert evidence of the accused’s propensity to commit the offence: Morin v. The Queen, [1988] 2 SCR 345 (CBp.448) Facts The accused was charged with the rape and murder of Christine Jessop. She was stabbed multiple times. His defences were that he was not the killer, but that if he was the killer, he was insane. At trial, a psychiatrist testified that a man with the accused’s illness, schizophrenia, could permit him to commit this abnormal crime, but that only a small number of schizophrenics would be capable of such behaviour. Issues Holding Reasoning The TJ told the jury that they must not use the evidence as proof that the accused did kill Christine, only that he is capable of committing the type of crime under consideration. He mentioned to counsel that there is no evdce that this crime could only be committed by a person with the mental characteristics of the accused. The CofA held the evidence admissible on the issue of identity, notwithstanding the prejudicial effect it might have had on the accused. Should the evidence have been admissible as proof that the accused killed Christine? No. The TJ was right. Sopinka J: Page 21 of 107 Monika Rahman Autumn 2007 There are two positions in the jurisprudence regarding admissibility of psychiatric evdce regarding disposition of the accused: 1) It is always inadmissible because of the requirement of fairness to the accused, regardless of whether it’s relevant; and 2) The matter is only a question of whether the evdce has relevance to some other issue. The correct view lies in between these two positions. When psychiatric evidence is tendered by the Crown, the TJ must determine whether it is relevant to an issue in the case, apart from its tendency to show propensity. If it is relevant to another issue (i.e. identity), it must then be determined whether its probative value on that other issue outweighs its prejudicial effect on the propensity question. However, general rule: If the evidence’s sole relevance or primary relevance is to show disposition, the evidence must be excluded. On the issue of identity: The greater the # of ppl in society having these tendancies, the less relevant the evdce will be, and the more likely the prejudicial effect predominates over its probative value. In order to be relevant, the accused must share a distinctive unusual behavioural trait with the perpetrator of the crime – so distinctive as to virtually operate as a bad or mark identifying the perpetrator. In this case, the psychiatrist’s evdce only shows that a small number of schizophrenics have the tendancy or capability of committing the crime in question. Comments E. METHODS OF PROVING CHARACTER: THIRD-PARTY SUSPECTS Healy on McMillan: Should it be open to the defence to adduce evidence showing that it wasn’t the accused who committed the offence, but a third party? It is. In McMillan, Martin J extends the principle in Lupien and onwards to these third-party situations. How cogent this evdce is a different issue, however we’re talking only about admissibility. R v. McMillan (1975), 23 CCC (2d) 160 (CBp.453) Jurisdiction Ontario CofA decision affirmed by SCC in 1977. Theme Psychiatric evidence of disposition relating to a third person. Facts A two-week old dies as victim of culpable homicide. Father wanted to introduce evidence that would show the child’s mother suffered from a psychopathic personality disorder which would make her a danger to her child (i.e. it wasn’t me, it was my wife). The TJ ruled that crown was not able to cross-examine doc regarding diagnosis of the accused nor able to call evidence as to mental state of the accused. Evidence of this nature had not been adduced regarding the accused by the defence and therefore could not be adduced by the Crown. Second basis for appeal – that the TJ erred in admitting evidence about the mental make-up of Mrs. McMillan. Issues Could the accused produce psychiatric evidence regarding the wife to show that she might have done it? Should crown have been allowed to question the Dr. wrt the mental state of the accused? Holding 1) Yes, Evidence is admissible. 2) Yes, new trial ordered. Reasoning Evidence of this nature – expert evidence – could go to showing a reasonable doubt. There must be some identified third party for this to have any validity. That is, the third party must be connected with the crime under consideration by other circumstances. Admission of the evidence is, thus, determined by relevancy and admissibility is based on the connection of the third party to the act and, in the case of disposition evidence through expert opinion, a particular disposition or tendency that is characteristic of an abnormal group. Page 22 of 107 Monika Rahman Autumn 2007 Where the disposition of a third party is at issue, there is no reason why the same reasoning that allows admissibility of psychiatric evidence in relation to the character of the accused should not apply. Here, there was sufficient nexus; there was proof the mother had a motive b/c she told her neighbour’s child that she “didn’t want the baby anyways”; she was immature, impulsive and had a poor appreciation for right and wrong. Anger could be focused from one person to another very quickly. Here, this type of evidence does have bearing on the probability that the acts in question were committed by her rather than her husband. Second basis for appeal – TJ erred in not allowing the crown to cross-examine the Dr. wrt the mental state of the accused. Defence evidence showed there were two people in the house: the husband that had a good reputation for being kind and gentle (i.e. that he’s a person of normal mental make-up) and the wife who was a psychopath. Thus, crown should be able to answer and show that there were two persons in the house that were psychopaths. The accused, by introducing evidence that showed it was more probable that his wife killed the child because he lacked her dangerous characteristics, lost his protection against having his own mental make-up revealed to the jury. Comments F. METHODS OF PROVING CHARACTER: VICTIMS Healy on Scopelliti: Let’s suppose there could be evidence of two different kinds: relating to 1) previous contact the thugs had had with Scopelliti; 2) evidence of thuggish behaviour in relation to others that Scopelliti didn’t know about Self-defence is based on: o whether someone feared that he was in danger (subjective) o whether that apprehension of fear was reasonable (objective) o proportionality of response o whether he instigated the event are also relevant. o whether he had something to react to. So one of the things that has to come out of the evdce is what these guys actually did. We do have evidence to this effect, in the statement of the accused. This evidence of previous aggression seems to support that what Scopelliti said happened actually did happen. Would we put it in? (Recall there is a difference b/w admissibility of something and what weight you give to something.) Scopelleti is not aware of the previous confrontations between S and M and the community. So how could their aggression tilt his perception? There is still value to the evidence to prove that they really did act a certain way that night. If we allow this, we’re allowing previous misconduct of the victim to go in in situations we would be loathe to allow previous misconduct of the accused to go in. Even if the evidence is given, wouldn’t it depend on what those past incidents with the community actually were? Could say that it’s relevant. Problem: Old rape shield rules were that the complainant was up for cross-exam on previous sexual conduct for two reasons: 1) previous sexual conduct shows that perhaps they consented in this case; 2) complainant was less credible as a witness on that basis. Parliament ruled this out. Why? It was irrelevant. It might have allowed the trier of fact to make a prohibited inference that the complainant is the kind of person who “does that kind of thing”. It was endemic among judges that previous sexual conduct was relevant. Page 23 of 107 Monika Rahman Autumn 2007 Is there an inconsistency in letting in previous conduct evdce in this case, and not letting in such evdce in the rape shield context? Is it b/c in one case it’s relevant and in the other it’s not? Of course in this case the victims were deceased, whereas the In this particular case there is a reason to want to protect the possible innocence of the accused. R v. Scopelliti (1981), 63 CCC (2d) 481 (CBp.459) Jurisdiction Ontario CA Facts Scopelliti runs a variety store and gas station in Orillia, Ontario. On January 22, 1979, David Sutton and Michael McRae entered his store shortly before 10. On the evidence given in court (a bit more “amplified” than the information given at the police station), McRae and Sutton were behaving in ways that the Scopelliti claimed frightened him. Sutton spat at him. McRae gave him an ominous look when S asked him to remove his boot from a display rack, and Sutton put his hand in his pocket and asked S “for the money.” Scopelliti believed he heard them say something to effect that they were going to rob him, and that “in order to do so they would kill [him].” At trial, the TJ allowed counsel for Scopelliti to adduce evidence with respect to prior acts of violence of or threats of violence, not known to Scopelliti, by Sutton and McRae directed at other people. They had followed various individuals, hit them, frightened them, and were easily agitated into violence. (see pp. 462-3 for egs.). Scopelleti was acquitted. Issues Did the trial judge err in holding that certain specific acts of the deceased which were not known to the accused were admissible as corroborative of the accused’s evidence? Holding No, acquittal upheld. Reasoning Martin J: It is established that where self-defence is raised, evidence of previous assaults to third persons by the deceased that were known to the accused is admissible to show reasonable apprehension of violence. Though previous acts unknown to the accused don’t show reasonable apprehension of violence, they do show probability of the deceased having been the aggressor and having attacked the accused. Limitation: In these cases, there should be some other appreciable evidence of the deceased’s aggression on the occasion in question, which may emanate from the accused. There is no rule of policy that excludes evidence of the disposition of a third person, as opposed to the accused, for violence where that disposition has probative value. Furthermore, it is not a condition of the admissibility of previous acts of violence by the deceased, where self-defence is an issue, that the evidence must meet the test for similar fact evidence, as it is when such evdce is adduced for the accused. Comments In class: unknown to Scop – provided basis to say it’s more probable that they acted the way he said they did; previous w/Scop – bearing on the reasonableness of his perception “To sum up, the disposition of a third person, if relevant and otherwise admissible, may be proved: (a) by evidence of reputation (b) by proof of specific acts, and (c) by psychiatric evidence if the disposition in question falls with the proper sphere of expert evidence.” (Scopelliti) Page 24 of 107 Monika Rahman Autumn 2007 3. SIMILAR FACT This section deals with the question: under what conditions may the Crown, during its own case, call evidence of discreditable conduct by the accused that is not charged in the indictment? Similar Fact Evidence. A question that arises is how similar the prior misconduct is. September 27, 2007 We’re going to go through the facts of the cases first and then go back and see what law has come out of them. Basic principle: Crown cannot lead evidence of the accused’s character in its initial examination. In Makin, an important principle is established that similar fact evidence cannot be adduced by the Crown, unless it can be shown to be relevant, i.e. used to rebut a defence open to the accused or bears upon the question of whether the act is accidental or by design. In Smith, there seemed to be a modus operandi, and seems to show that there was a design. In Straffen, the court says that an “abnormal propensity” to strangulation is a means of identification The forbidden line of reasoning is that because a person has a certain disposition, as proved by previous acts, he most likely committed the offence in this case. If abnormal propensity is a means of identification, we’re skating a pretty thin line. Up to this point there seems to be a basic system – it’s out unless it’s in, and it’s in if it relates to a certain number of issues. Next cases say that evdce of previous conduct may be admitted when its probative value exceeds the prejudicial effect of its admission; it is not admissible for disposition. In the approach following Makin, the HoL said if this evdce is accepted b/c it’s an exception, it’s one of the limited exceptions we accept. In Sweitzer, Crown is trying to bring in evidence regarding counts 2-14 to support count 1. Court excludes this evidence on the basis that there is no evidence in the 11 episodes that he actually was the person. It seems like common sense that he was the guy – sexual attacks stopped after he was apprehended. However, there is no way of identifying who the person was who committed the sexual attacks on the 11; therefore, you cannot use the evdce relating to the 11 in relation to the first. In Sweitzer, the court acknowledged the different approach taken in Boardman. Healy sum-up of the law to this point: Similar fact is presumptively inadmissible, unless it’s exceptionally admissible, i.e. falls into a set of exceptions. The number of those exceptions was finite. Until the 1950s, the cases said almost the same thing, except that the court was prepared to say that the list is not finite and courts can recognize new categories. But can never admit it for the purpose of showing disposition alone. Second phase ends with Boardman: say that it’s impt to determine whether the evidence in question has a relevant purpose – controlling concern is whether the probative value exceeds its prejudicial effect. In Boardman, they repeat that you cannot admit this stuff for disposition alone. Third phase: courts (including Cdn courts) take the following approach – we have to assess PV and PE and we have to identify some purpose other than pure disposition, in which case it doesn’t matter if it is also happens to have bearing on disposition. Fourth phase (most modern) – if you’re taking into account, the evdce should be taken into account if the PV is high and it does not matter whether it happens to bear on disposition. It might Page 25 of 107 Monika Rahman Autumn 2007 be that disposition itself is of such great PV that that itself is sufficient to admit it. Still taking into account PE. Look at how the positions shift over time. When reading Handy, ask where we are – 3rd or 4th phase? The category approach is replaced with a much more generalized approach PV vs. PE. Further implication is a more generalized rule allowing broader range of judicial discretion. Makin v. Attorney General for New South Wales, [1894] AC 57 (PC) (CBp.466) Jurisdiction Australia! Facts A couple was convicted of the murders of Horace Amber Murray and an unidentified male infant. Several other bodies of infants had been discovered on premises where the accused had lived. Apparently when the infant with whose murder the accused were charged was received, the mother stated she had a child for them to adopt for a £3 premium. Issues Was the evidence relating to the finding of other bodies, i.e. previous acts, admissible? Holding Yes, as long as it fit into certain categories. Reasoning It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. However, evidence may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused. [these are the categories exceptions] It may often be very difficult to draw the line and decide whether a particular piece of evidence is on one side or the other. Under these circumstances their Lordships cannot see that it was irrelevant to the issue to be tried by the jury that several other infants had been received from their mothers on like representations, and upon payment of a sum inadequate for the support of the child for more than a very limited period, or that the bodies of infants had been found buried in a similar manner in the gardens of several houses occupied by the prisoners. Comments R v. Smith (1915), 11 Cr. App. R 229 (CBp.468) Jurisdiction Facts The accused had gone through some form of marriage with three women. Each woman was found dead in her bath, and Smith stood to benefit financially from each woman’s death. He was charged with Munday’s death. Issues Can the evidence of two previous drowned wives be adduced? Holding Yes. Reasoning If, as a matter of law, there was prima facie evidence that the appellant committed the act charged, evidence of similar acts became admissible The Munday case was reinforced by the evidence admitted with reference to the other two cases for the purpose of shewing the design of the appellant. The judge was very careful to point out to the jury the use they could properly make of the evidence. They were not deciding whether the murders of the previous two wives had been committed, but trying the accused for the murder of Munday. For the reasons already given in dealing with the first point, it is apparent that to cut short the evidence there would have been no assistance to the case. In our opinion it was open to the prosecution to give, and the judge was right in admitting, evidence of the facts surrounding the deaths of the two women. Comments Page 26 of 107 Monika Rahman Autumn 2007 R v. Straffen, [1952] 2 QB 911 (CBp.469) Jurisdiction Facts On Apr. 29, 1952, the appellant escaped from Broadmoor (a hospital for the criminally insane) for four hours. The next day the dead body of Linda Bowyer was found in the village of Little Farley and her bicycle was found some two hundred yards away from the body. She had died from manual strangulation, and the medical evidence showed that her death had taken place during the period the appellant was at large. Issues Holding Reasoning The Crown sought the judge’s permission to admit evidence of the deaths of Brenda Goddard and Cicely Batstone, and they came prepared with evidence which amounted to a confession by the appellant that he murdered those two little girls. Indeed, one of the answers made by the appellant to the police officers in the case of Linda Bowyer was: “I know I killed two little children, but I did not kill the little girl.” The two little children to whom he was referring were Goddard and Batstone. The TJ admitted the evidence on the grounds that it was material to establish the identity of the murder of Linda Bowyer. Should the TJ have admitted the evidence regarding the killing of Goddard and Batstone? Yes. The general rule is that evidence should be excluded which tends to show that the accused has been guilty of criminal acts other than those covered by the indictment, and shall not be admitted to prove the accused is a person of criminal disposition, or even that he has a propensity to commit the type of crime he is charged with. Exceptions: Recently in Harris (1952), The House of Lords said that prior acts may “negative the inference of accident or establish his mens rea by showing ‘system’” or “may sometimes assist to prove his identity…evidence which merely tends to deepen suspicion does not go to prove guilt.” So, does the evidence in this case fall within one of the exceptions? Yes, we may admit the evidence because the similarities of the death (i.e. young girls, killed by manual strangulation with no attempt at sexual interference, and bodies left unconcealed) allow us to identify the murderer of Linda Bowyer as being the same person who had murdered the other two girls. Abnormal propensity (such as the pattern in this case – i.e. to strangle little girls) is a means of identification. So how far does admissibility of this kind of evidence go? Does it apply in the case of a burglar, thief and so on? Lord Sumner in Thompson’s case thought that such persons were merely examples of those who fell with the genus of dishonest persons. However, Slade J believes, however, that if the question of identity arose in a housebreaking case and it were possible to show some peculiarity in relation to earlier housebreakings so as to stamp the accused man with earlier housebreakings, then evidence would be admissible, NOT to prove his propensity for housebreaking, but to prove he was the housebreaker. Comments In cases like Smith and Straffen, it was often held that similar fact evdce was not admissible unless relevant to a limited set of issues, e.g. to prove intent, to prove a system or plan, to show malice, to rebut the defence of accident or mistake, to prove identity, to rebut the defence of innocent association, etc. However, since Boardman, this categorical approach has been replaced. Now, the evidence of an accused’s prior misconduct is admissible where its probative value in relation to a fact outweighs its prejudicial effects. DPP v. Boardman, [1975] AC 421 (CBp.472) Jurisdiction England, House of Lords Page 27 of 107 Monika Rahman Autumn 2007 Facts The accused was charged with committing buggery with S, and inciting H and A to commit buggery. S related several incidents where the accused allegedly attempted to incite a sexual encounter, including an incident where he attempted to get S to come to the sitting room around midnight. In the next incident, S claims the accused made the request that S should take the active part and the accused the passive. H gave evdce of two incidents, one where the accused awoke H b/w midnight and 2am and got him to go to a club with him, and on their return touched H’s private parts and tried to get him to sleep with him. The accused suggested H should play the active part and he the passive part. Issues Holding Reasoning The trial judge admitted the evidence of H as corroborating the evidence of S, and vice versa (i.e. accepted as similar fact evidence). In particular, he described the accused’s attempt to get an adolescent boy to take the active part was an “unusual feature”, and mentioned that there were not any indications that S & H conspired together. Did the trial judge err in admitting the evidence as capable of corroborating that of the other? No. Lord Morris: The prosecution cannot adduce evdce which tends to show the accused is guilty of criminal acts other than that with which he is charged in order to conclude that he is one who is likely from his character or past conduct to have committed the crime he’s charged with. However, there may be such evidence which is relevant to an issue in a criminal case which is admissible. The TJ may have unduly placed emphasis on the active/passive thing; another feature of striking similarity lay in the nocturnal dorm visits of the accused. However, the TJ did act within legal principle. Lord Wilberforce: In each case of similar fact evidence, we must estimate: 1) whether, and how strongly, the evidence as to other facts tends to support, i.e. make more credible, the evidence given as to the fact in question; and 2) whether such evidence, if given, is likely to be prejudicial to the accused. This is a border-line case. The “similarity”, relating to two boys only is only just sufficient. However, these matters lie within the TJ’s discretion and there is no justification for interference from this House. I do confess to some fear that the case may be setting the standard of “striking similarity” too low. Lord Hailsham: Both prevalent theories on this matter are correct. Similar fact evidence is simply irrelevant and has no probative value, and the prejudice created by the admission of such evidence outweighs any probative value it may have. However, it may be admissible if such evidence is relevant to an issue before the jury, i.e. whether the acts in the indictment were designed or accidental, or to rebut a defence. This is not an exception grafted onto the general rule: it is an independent proposition, and together the two propositions cover the entire field. Lord Cross: The point in this case, is whether it would be unlikely that the two youths were both speaking untruths. I do not think this similarity standing alone would be sufficient to warrant the admission of the evidence, but I am not prepared to dissent from the view of the majority that there are other features common to the stories which two liars would have been unlikely to hit on. Page 28 of 107 Monika Rahman Autumn 2007 Lord Salmon Whether evidence is relevant (i.e. whether the crime was committed in so strikingly similar a manner that the manner of the previous acts may be evidence on which a jury could reasonably conclude that the accused was guilty) is a matter of law. Once the TJ decides the evdc is relevant and admissible, he still has discretion to exclude it for prejudicial effect. Gives example of burglar who breaks in through a ground floor window, vs. burglar who leaves a distinctive written mark or device behind. The similarity would have to be so unique or striking that common sense makes it inexplicable on the basis of coincidence. In this case, evidence of striking similarity in the active/passive thing is not clear, but the nocturnal visits suggest the accused proceeds according to a particular pattern. Comments Sweitzer v. The Queen, [1982] 1 SCR 949 (CBp.479) Jurisdiction From Alberta Facts There was a series of 15 sexual attacks in Calgary over 18 months. In count 1, the evidence established that the complainant was taken to the bathroom, blindfolded, and forced intercourse, etc. The complainant’s evdce could have justified a conviction of rape, save for the fact that she was unable to identify him. Issues Holding Reasoning In 11 of the other counts, there is no evidence of identification. In 3 of the other counts and with the evdce of a detective there is direct evdce of identity, including that in count 15 the accused was apprehended at the scene. Insert stuff about detective’s evdce about seeing accused looking in a window. Accused was trying a motion for severance – i.e. trying to get 15 trials. Can the crown rely on the evidence of the 4 counts where identity was ascertained and the 11 counts where there was no evidence of identification to identify the attacker? No, the evdce of the 11 episodes was highly prejudicial. New trial. McIntyre J: In the past, judges have created a list of categories where SFE could be admitted, e.g. to prove intent, to prove a system or plan, to show malice, to rebut the defence of accident or mistake, to prove identity, to rebut the defence of innocent association, etc. However these categories are just illustrations of a general rule. The general principle should be applied in all cases where SFE is at issue admissibility will depend upon the probative effect of the evdce balanced against the prejudice caused to the accused by its admission whatever the purpose of its admission. (adopting Boardman) However, there must be some evidentiary link between the allegedly similar facts and the accused the trier of fact should be able to make a proper finding that the similar facts were in fact the acts of the accused. In this case, there is no evdce that which connects the appellant with the 11 episodes, except for the similarity of the act. Otherwise, any nocturnal rape committed in Calgary where some similarity could be shown, could be made evdce against the accused. Comments Identity not in issue: R v. B.(C.R.), [1990] 1 SCR 717 (CBp.483) Jurisdiction Facts Accused was charged with sexual offences against his natural daughter, a young girl. The issue was whether the offences had occurred at all, not who had committed them. The main Crown evdce was that of the child, and in support of her testimony the Crown sought to introduce evdce that the accused had previously had sexual relations with the daughter of Page 29 of 107 Monika Rahman Autumn 2007 Issues Holding Reasoning his common law wife, an older girl with whom he enjoyed a father-daughter relationship. The TJ admitted the evidence and convicted the accused. The TJ appears to have applied the correct test, though a comment suggesting the SFE related to the issue of identity was wrong. Did the TJ err in holding the evdce admissible? No, court not prepared to interfere with the conclusion of the TJ who was charged with weighing PV against PE. Conviction affirmed. McLachlin: While our courts have affirmed the general exclusionary rule for similar fact evidence of disposition and propensity, the court casts it in terms of Boardman rather than Makin. That is, it is no longer necessary to hang the evidence on the peg of some issue other than disposition. Therefore, evidence of propensity, while generally inadmissible, may exceptionally be admitted where the probative value of the evidence in relation to an issue in question is so high that it displaces the heavy prejudice which will inevitably inure to the accused where evidence of prior immoral or illegal acts is presented to the jury. (?!) The Cdn law has also rejected the category approach in favour of one of general principle, i.e. that admissibility of SFE will depend on PV vs. PE. Furthermore, a high degree of respect is accorded to the decision of the TJ who does this balancing. In this case, though the judge erred by calling it an identity issue, on the whole he clearly appreciated that the SFE was relevant to the issue of the complainant’s credibility. It is well established that SFE may be useful in providing corroboration in cases where identity or mens rea is not in issue. Sopinka [dissent] Identification of probative value of the evidence must first be identified to determine whether the evdce has relevance beyond mere propensity, and if so, whether PV>PE. The principle reason for the exclusionary rule relating to propensity is that there is a natural human tendency to judge a person’s action on the basis of character. Therefore propensity alone cannot ever be the basis for admissibility. To say propensity may have PV in sufficiently high degree to be admissible is a contradiction in terms. It is tantamount to saying that when the danger of the application of the forbidden line of reasoning is the strongest, the evidence can go in. Cross on Evidence: “what is not to be admitted is a chain of reasoning” as opposed to “a state of facts.” There is a distinction b/w evdce of general character that triggers a process of reasoning condemning the accused b/c of his character, and a modus operandi – the latter is evdce that an accused left his/her calling card. In this case, the TJ did not weigh PV against PE. Furthermore, the fact that SFE is useful as corroborative evdce of the testimony of children does not make it a basis for admissibility must first decide if it’s admissible. In this case, striking similarity is not evident. Comments October 2, 2007 Majority in C(R.B.) seems to be saying that even if it’s only disposition at issue, as long as the probative value is high enough. Sopinka says that disposition alone can never be of enough probative value to be a basis for admissibility. In this case, there was a fairly extensive assessment of the father’s behaviour with a previous stepdaughter. Are there too many dissimilarities Note: propensity = disposition Healy: they’re all over the place. All of this talk seems to be hiding reasoning from a propensity to behave a certain way. Page 30 of 107 Monika Rahman Autumn 2007 What happens in Handy? Does the SCC finally say, let’s stop this charade? Do they say, let’s acknowledge that the PV might be so high that it screams for admission? R v. Arp (1998) 166 DLR (4th) 296) (CBp.495) Jurisdiction Facts In 1989, a woman got into a car that matched the description of the accused, and was later found in a forest, having been killed by “homicidal violence.” One of her rings and some fibers from her clothes were found in his car. In 1993, another victim was found in a snow bank, and DNA of semen found in her was that of the accused. The TJ permitted the jury to consider the evidence on each charge as similar fact evidence going to the issue of identity on the other charge. Issues Holding Reasoning Was the similar fact evidence allowable? Yes Cory J. Where evidence is to be used to est. identity, the TJ should tell the jury: (1) They may find that the manner of commission makes coincidence unlikely. (2) What the similarities are. (3) If they find the incidents were committed by the same person, that may assist them in establishing whether the accused committed one of the counts. (4) The evidence is relevant only for the limited purposes for which it was admitted. (5) Not to use evidence to infer a disposition (6) They must reach a verdict on each count separately (7) Can’t be convicted on any count unless they’re satisfied beyond a reasonable doubt. Rule Comments The rule on similar fact evidence is an exception to an exception. The exception is that character evidence, even though it’s usually relevant, is nonetheless inadmissible on other grounds (Morris). The exception to the exception is that the evidence may nonetheless be admitted because what is excluded is a particular type of reasoning (guilt from propensity), not particular kinds of facts. Cite B.(C.R.), but not the line about not having to hang the evidence on some peg besides disposition. The main question is whether the probative value outweighs the prejudicial effect. Evidence of propensity may be relevant but it is usually inadmissible b/c its slight PV < PE. Where identity is in issue, there must be a high degree of similarity, high enough to rule out coincidence. However, we have properly rejected the striking similarity test, because there are instances, e.g. corroboration, where that requirement is inappropriate. An analysis of how similar fact evidence should be used. Striking similarity is, generally, only appropriate as to admissibility when identity is in issue. This is inconsistent with B.(L.), where it was held that evidence as to disposition, because relevant, passed the threshold test for admissibility. Here, character evidence is the exception to the rule that all relevant evidence is to be admitted. R v. Handy, [2002] 2 SCR 908 (CBp.499) Jurisdiction Facts ( H was charged with sexual assault causing bodily harm. The alleged incident involved him meeting the complainant in a bar and proceeding to a motel room for the purpose of consensual sex. During the sex, he allegedly became violent, and allegedly forced her to Page 31 of 107 Monika Rahman Autumn 2007 Issues Holding Reasoning continue and to have anal sex, without her consent. The TJ admitted “similar fact evidence’ from the accused’s ex-wife, who testified about 7 prior incidents involving violence and sex. The crown argued that the evidence was adduced to show (a) that the accused gets off on violent, painful and non-consensual sex and (b) that the complainant is telling the truth, i.e. that the accused did wilfully proceed knowing that she did not consent. The complainant met the ex-wife, and heard her story of his alleged past abuse, a few days before meeting him in the bar. The TJ ruled that the issue of possible collusion was to be left entirely to the jury. The ON CA overturned and ordered a new trial, Charron holding that the probative value was outweighed by the prejudicial effect, especially since there was a serious issue of collusion. (1) What is the test for similar fact evidence? (2) Is possible collusion an issue for the judge? (3) Was the evidence properly admitted? (1) The probative value must outweigh the prejudicial effect—all similar fact evidence is on some level propensity evidence, so the general exclusionary rule must be overborne. (2) Yes, if there is an ‘air of reality’ to the possibility of collusion, the crown must establish on the BoP that the evidence is not tainted by collusion. (3) No. Binnie J: The General Exclusionary Rule As with any circumstantial evidence, its usefulness depends entirely on the validity of the inference it is supposed to support. The general rule is that similar fact evidence is presumptively inadmissible. The exclusion of evidence of general propensity has been repeatedly affirmed and is not controversial. The worry is that the jury might put more weight than is logically justified on the exwife’s testimony (“reasoning prejudice”) or by convicting on bad personhood (“moral prejudice”) The Narrow Exception of Admissibility There will, however, be cases where the probative value outweighs the prejudicial effect, circumstances which defy coincidence or other innocent explanation. It is precisely because of the preponderance of probative value that we have the exception to the general rule, which exclude propensity evidence due to its prejudicial effect despite its relevance. The test is PV > PE. That’s it. No categories. Propensity Evidence by Any Other Name is Still Propensity Evidence Once SFE is related to an issue other then “mere propensity” or “general” disposition, it does not cease to be propensity evidence. The virtue of B.(C.R.) is its candid admission that evidence of propensity may exceptionally be admitted. By affirming its true character, the Court keeps front and centre its dangerous potential. What is excluded is propensity reasoning based solely on bad character Crown not entitled to ease its burden by stigmatizing the accused as a bad person. Still have to identify the issue in question, partially in order to instruct the jury that it is for that issue alone that they may use the evidence. But, “the requirement to identify the material issue “in question” (i.e. the purpose for which SFE is proffered) does not detract from the probative value/prejudice balance, but is in fact essential to it.” You have to know what it’s supposed to prove to know its probative value The principal driver of probative value is the connectedness of the evidence to the alleged offences: proximity in time, similarity in detail, number of occurrences, similarities of circumstances and any other distinctive features. Factors that weigh against admissibility are the inflammatory nature of the similar facts, whether the crown can prove its point with less prejudicial evidence, the potential for distraction and the spectre of wasted time. What is to be avoided is both moral prejudice and prejudicial reasoning Page 32 of 107 Monika Rahman Autumn 2007 There is a spectrum of propensity evidence, from “general disposition” (e.g. for violence) to “calling cards”, but it is all at bottom propensity evidence. Where is falls on the spectrum will determine its admissibility because it determines its probative value. Cogency increases as the fact situation moves further to the specific end of the spectrum. Examples include the situation in B.(C.R.) where there was a “distinct and particular propensity” demonstrated in the SFE to abuse sexually children to whom the accused stood in a parental relationship; also, “calling cards” or “signatures”. This is no longer “pure” propensity or “general disposition” but repeated conduct in a particular and highly specific type of situation. The evidence need not be shown to be conclusive, as that’s a jury question. But the TJ does have to engage in a certain degree of weighing the relevance and weight of the evidence to assess its probative value. In this case: If there is only evidence of the possibility of collusion, it should be left to the jury. But where, as here, there is some evidence of actual collusion, the judge must play a gatekeeper role, and the crown has to satisfy the judge on the balance of probabilities that the evidence is not tainted with collusion. The whole reason for the exception is that the evidence defies coincidence—so if there is any evidence of collusion, the foundation of the admissibility of similar fact evidence is shaken. The preponderance of probative value over prejudicial effect is the condition precedent of admissibility, so collusion must be dealt with. It is for this reason that collusion is not simply one factor among others in assessing probative value. The issue at trial was the complainant’s consent or lack thereof. This should not be identified as simply an issue of credibility. Credibility is always an issue, and should not of itself warrant the admission of similar fact evidence. The question here is whether the evidence supports the claim that she did not consent and he knowingly proceeded. The former wife’s evidence was also a bit shaky. Prejudice does not necessarily recede as probative value advances. The evidence here ought to have been excluded because the TJ did not deal with collusion, and the prejudicial effect outweighed the probative value (largely because of the spectre of collusion, which undermines probative value). Comments The test for admissibility of similar fact evidence is: Does the probative value outweigh the prejudicial effect? All similar fact evidence is propensity evidence. The crucial distinction is between evidence of general disposition and evidence of specific disposition. In Handy, Binnie is trying to liberate the law from artificialities. He says we shouldn’t be afraid to admit this kind of information provided that the PV is high Binnie is not ready to accept that disposition evdce should go in without constraints. A great deal of discussion is about the constraints that should be posed. If disposition does go in, it has to be a specific disposition. In Handy there is clearly a pattern. But this is not enough to admit this is as similar fact evidence. Does this evidence show specific disposition? Julia: I can’t imagine the jury would possibly not let this SFE prejudice their conception of the accused, so despite how much we feel like this guy should hang, we should not admit it. However there is an irresistible attraction to this kind of evidence at a certain point. It seems, however, that there is a serious concern about the presumption of innocence. There is an irreducible element of prejudice here. Sooner or later you get down to very particular factual issues, which are either persuasive or they’re not. There was a possibility of collusion in this case. A very big issue. Let’s leave that aside for the moment. Page 33 of 107 Monika Rahman Autumn 2007 Is the statement of principles going to help us at all with resolving the problem of SFE? Seems like there is no solution. One solution would be to just not admit it. The other is to just admit it and have more controls when it is Does Handy represent an opening of the law by saying SFE about disposition is admissible if PV>PE? Perhaps further restriction is needed. Healy wouldn’t be surprised if the law were to go backwards. Interesting exercise: Try to write out Handy in statutory language to regulate admission of SFE. It would be a monumental task. 4. HEARSAY October 11, 2007 Isabel Schurman, Bernard Grenier (514) 868-9090 (use for both) isabel.schurman@sympatico.ca (use for both) Definition: statement made outside the courtroom that is offered for the truth of its contents. Concerns about the reliability of a hearsay statement stem mainly from the fact that the trier of fact cannot evaluate the witness’s credibility (demeanour, testimony under cross-examination). The lack of opportunity to test the truth of what was said is the crux of the problem. o You can’t really advance the debate based on the testimony of someone relating what someone else told them out of court. The trier of fact must be able to come to a conclusion about the truth of the contents of a given statement. o Hearsay statements can also be highly prejudicial to the accused… Old approach: exclusion of hearsay was the rule and there were circumscribed exceptions. Now we have the “principled approach to hearsay”. NOTE when someone is a party to the litigation, a third party can repeat their statements, i.e. statements made by parties out-of-court are NOT hearsay (or you could say they’re an exception to hearsay, but since they’re not generally listed as an exception, it’s easier to think of them as not being hearsay. It’s considered so elementary that no one ever discusses it). o Ex: accused telling police he did it (there may be other problems of admissibility like voluntariness, but these are separate from the hearsay issue). o Schurman says this idea/exception is often not communicated clearly to students, and it’s not that clear from the casebook. o Rationale: the party to a proceeding can testify and be cross-examined about their statement. I would argue that the rationale doesn’t apply to the accused in a criminal trial, given rule against self-incrimination (i.e. the accused is not required to testify). The casebook sets out a few early cases about hearsay: Tigra (sp?) (1952): Early example of hearsay – Court said inadmissible because too prejudicial. See also Williams. (i) Non-Hearsay Words Page 34 of 107 Monika Rahman Autumn 2007 Subramaniam v. Public Prosecutor, [1956] 1 WLR 965 (CBp.132) Jurisdiction Privy Council Facts Accused was convicted of being in possession of 20 rounds of ammunition, contrary to the Emergency Regs 1951 of the Federation of Malaya and sentenced to death. He put forth a defence of duress saying that terrorists made him hold the ammunition for them to use. At trial the accused described how he was forced to accompany the terrorists, and the judge held all conversation with the bandits as inadmissible hearsay evidence. Issues Should the evidence have been admitted? Did the exclusion of the evidence prevent the accused from advancing his defence of duress? Holding Yes. Yes. Reasoning A statement is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. The fact a statement was made can be frequently relevant in considering the mental state and conduct of the witness or of someone else in whose presence the statement was made. In this case, statements may have been made to the accused by the terrorists which, true or not, if they had been believed by the accused, might have reasonably induced in him an apprehension of instant death if he failed to conform to their wishes. Comments In Subramaniam, it is held that an out-of-court statement that is offered just for the fact that it was said and not for the truth of its contents, is NOT hearsay and is therefore admissible. Ex: domestic violence case in which a non-party reported the abuse to the police. The fact that the call was made can be admitted to explain why the police went to the house (though NOT to show that the abuse actually occurred – that would be offering it for the truth of its contents). o When you’re admitting evidence like this, the idea is that you can assess the credibility of the witness testifying to it (e.g. the police officer on the stand). Again, the only thing you’re using the evidence for is to show it happened, not for its truth, so you don’t need the declarant there. o Evidence offered for the fact that it was said can be relevant to show things like state of mind… R v. Wildman, (1981), 60 CCC (2d) 289 (CBp.134) Jurisdiction Ontario CA Facts Stormy marriage – in January 1978 Mrs. Wildman moves out with two children from marriage and Tricia Paquette (a child from a previous marriage). Tricia was killed in February 1978. She was seen Feb 15 but her body was found Feb 19. She had been killed by 19 blows to the head and a hatchet was recovered from the Grand River near the killing. Medical evidence showed blows were consistent w/injuries from hatchet. At trial counsel for the accused attempted to introduce evidence through Mrs. McIsaac that in a telephone call from Mrs. Wildman to Mrs. McIsaac, Mrs. Wildman accused the appellant, Mrs. and Mr. McIsaac of killing Tricia with a hatchet, and that Mrs. W later related this conversation to the appellant. Mrs. MacDonald later gave evidence saying that Mr. Wildman said “Someone put an axe in Tricia’s head” however the police had not informed Mr. W about an axe being involved. The argument of Crown is that if Mr. W was not the killer, how would he have known about the axe? Issues Holding The evidence of Mrs. McIsaac served the purpose of showing the state of mind or subsequent conduct of Mr. Wildman – i.e. that the reason he knew about the axe was b/c Mrs. Wildman had told him. Did the TJ err in excluding evidence? Yes, but no new trial b/c accused’s guilt was so overwhelming. (SCC orders new trial) Page 35 of 107 Monika Rahman Autumn 2007 Reasoning If Mr. and Mrs. McIsaac had been permitted to give their testimony about the telephone call from Mrs. W, the notion of Mr. W not having any other way of knowing that an axe was involved would not have had the same cogency. The evidence of the phone conversation was not hearsay, as per the above quoted passage from Subramaniam, since it was tendered to show that he received the statement. The conversation between the neighbours and W was not hearsay because they were witnesses. The exclusion of evidence was compounded, when, in his instruction, the TJ said, ‘how else would he know about the hatchet’. The excluded evidence provided a very cogent answer to that question. Comments Wildman: Facts: Accused told a Crown witness the victim was killed with an axe. Earlier, accused’s wife got a phone call saying the victim had been killed with a hatchet. Appellant was there at the time of the call. The phone call was tendered to prove appellant’s state of mind, i.e. to show why he would tell Crown witness what he told her. TJ excluded the evidence, Court of Appeal held he erred (but did not order a new trial), SCC ordered a new trial. At trial, the Crown had pleaded vigorously re: the accused having this information, information only the killer would have. Point: Example of a statement being proffered for the fact that it happened (relevant to state of mind). Reasoning (SCC): Evidence was crucial to explain away one of the most important incriminating pieces of evidence against the accused. Also, no reason to exclude since not offered for its truth. (ii) Implied Assertions and Hearsay by Conduct Wright v. Tatham, (1837), 112 ER 488 (CBp.140) Jurisdiction Exch. Ct. Facts W received land in a will from Marsden. If there had been no will, the land would have gone to T. T is suing to establish that M was not competent to make a will. He led evidence that M was not mentally competent, and that W exercised a considerable degree of control over him. Part of W’s evidence was a series of letters from friends and relative (all now dead) to M, which were intended to show that all concerned parties treated him as a competent and understanding adult. The several lower court judges went back and forth over whether or not the letters were admissible. Issues Are the letters inadmissible? Holding Yes Reasoning Bosanquet: The dangerous consequences of allowing the letters is obvious. In all cases where the judgment of third parties is receivable, personal examination under oath is required. Parke The letters are inadmissible as proof that he did in fact possess the qualities implied by the letters. All facts that are relevant may be proved, but they must be capable of proof by a person under oath. “[p]roof of a particular fact, which is not of itself a matter in issue, but which is relevant only as implying a statement or opinion of a third person on the matter in issue, is inadmissible in all cases where such a statement or opinion not on oath would be of itself inadmissible.” Thus, the letters are inadmissible. Tindale Page 36 of 107 Monika Rahman Autumn 2007 Ratio Would have admitted one of the letter, the one for which there was extrinsic evidence of the fact that the testator knew of it and was able to properly respond to it. If the truth of a fact which is implied by the fact of certain statements having been made by third parties is the relevant proposition for which evidence is tendered, the evidence is inadmissible unless the third parties can be called to testify R v. Wysochan, (1930), 54 CCC 172 (CBp.145) Jurisdiction Sask CA Facts W is charged with killing AK, wife of SK. It’s clear that either SK or W did the shooting. A witness testified that after she was shot, she said to S: “Stanley, help me because there is a bullet in my body” and “ Stanley, help me, I am too hot”. The TJ pointed out the high unlikelihood of her saying such things to someone who just shot her. (Diefenbaker was defence counsel). Issues Holding Reasoning Rule Comment Were those statements admissible? Yes Haultain: These were statements indicating the speakers state of mind. Utterances may be used testimonially as assertions to be believed or circumstantially as affording indirect inferences (of state of mind) (the court had already accepted that this was not a dying declaration). Wigmore hold that such circumstantial use to prove a state of mind is allowed because it’s not being used to induce belief in any assertion it may contain. The utterances in question contain no statement of facts necessary to be proved in this case. Utterances may be used as circumstantial evidence of the speaker’s state of mind, provided that they are not being used to prove the truth of any factual proposition contained therein. What exactly is the inference that the jury is supposed to draw from the state of mind. Is that inference covered by this res gestae exception? I.e. her state of mind is material only as to the inference that her husband didn’t shoot her. W ended up getting the death penalty. Wysochan: Point: Evidence offered for state of mind. What about evidence re: actions rather than words? October 16, 2007 Hearsay If someone says in court what somebody else told him or her, it is hearsay. This is the one rule of evidence that comes up most in court. “Objection: Hearsay!” After the objection, the question is why do you want to adduce this information? Answer is usually that information is not for truth of what the person said, but rather, to show that something was said which had consequences for subsequent action. In hearsay, like in other areas of evidence law, we had mechanical application of rule with exceptions to the rule pigeon-hole approach. Ares v. Venner, [2005] SCR 608 (CBp.205) Jurisdiction Sask CA Facts A was being treated for a broken leg by Dr. V. Dr. V was apparently negligent, and A ended up having his leg amputated. He sought to introduce the notes made by the nurses in his file. The nurses were available to testify, but were never called. The TJ allowed the evidence, holding that its admission must simply not prejudice the capacity of the defence to correct or amplify the evidence Page 37 of 107 Monika Rahman Autumn 2007 Issues Holding Reasoning Should the notes have been admitted? Yes Hall: The court should settle the law on the admissibility of hospital records, and nurses’ notes as either prima facie admissible for the truth of its contents or excluded by the hearsay rule. Chooses to adopt the minority view of Lord Pearce in Myers. “Hospital records, including nurses’ notes, made contemporaneously by someone having a personal knowledge of the matters then being recorded and under a duty to make the entry or record should be received in evidence as prima facie proof of the facts stated therein. This should, in no way, preclude a party wishing to challenge the accuracy of the records or entries from doing so.” Ratio Nurses notes can be admitted as evidence of the truth of facts stated therein. It could have been argued that the notes were not hearsay, because they were material only to what Dr. V should have known regarding the condition of A, and the steps he should have taken given that information. Also, Hall doesn’t really seem to go with the principled approach set out by Pearce, but simply adds another exception to the rule. P.205 – Ares v. Venner(?) – young man skiing in Jasper, fell, had a cast put on, the doctor didn’t do a good job. Patient sued the doctor. Plaintiff wanted to produce notes that nurses took while the cast was put on. Dfdt objected. Why? Can’t cross-examine a piece of paper. Also, notes have limitations – handwriting, what wasn’t included, etc. The SCC said we have to be a little more flexible; we cannot be handcuffed by these old rules of evidence b/c these notes have a great amount of reliability. The nurses obviously wrote down what they saw. In practice, the fact that someone is available to be cross-examined will often mean the trial judge will let a piece of evidence in. Remember that if a statement is made by the accused, it’s not hearsay – doesn’t that force the accused on the stand? Well the fact that you made a statement at some point is going to have repercussions If the accused is trying to bring his statements through another witness, the Crown will be on its feet objecting on the basis that it is self-serving evidence – accused can’t have this evidence come out through the mouth of someone else. So it may not be hearsay since the accused is there, but there can be problems in other ways. R v. McKinnon (1989), 70 CR (3d) 10 (CBp.147) Jurisdiction Ont CA Facts No success in finding body for some time. Evidence for crown, which was used to find body, is that wife of the accused was present as police searched and found body. Evidence to be given by police officer who was present at time of search. Implied: The police were only searching in that location b/c she knew where it was. Otherwise, would police have taken her along. Tries to support inference that they were there b/c she told them….which she could only know if he told her. Issues Holding Reasoning Was police officer testifying as to wife’s presence hearsay? Not hearsay – not being offered for implied assertion on part of the wife. “Under the provisions of s. 4(3) of the Evidence Act, the wife was not compellable to Page 38 of 107 Monika Rahman Autumn 2007 disclose any communication made to her during their marriage… In this respect her attendance at the gravesite in no way offends the letter, or indeed the spirit, of s. 4(3).” “She did not testify, and no comment was made with respect thereto, but the appellant’s counsel asks us to treat the evidence of her attendance at the gravesite as amounting to “hearsay by conduct.” He submits that her physical attendance at the gravesite made it apparent to the jury that she must have disclosed to the police a communication from her husband to herself as to the location of the body. I cannot accept this. Presence is a fact “…Her presence in the manner described cannot be characterized as hearsay by conduct. It has always been my understanding that such hearsay usually amounted to a description of actions or behaviour which are themselves means of expression, such as shrugs, headshakes or other gestures that are a substitute for or supplement to oral communication.” “On the facts of this appeal I see nothing in the evidence about the wife’s accompanying the police officers to the gravesite which amounts to an assertion or a statement that she received information about its location from her husband, from her husband alone, and from no other source. The evidence is not tendered as evidence of an assertion by the wife.” Comments McKinnon: Issue: Is wife’s mere presence hearsay? Held: No. Reasoning: next week. Note documents, recordings, etc. tendered without their maker are hearsay as well. But many documents can be tendered as a result of legislated rules (e.g. Ministry of Transportation documents) or are admitted on consent (e.g. a 911 call recording). R v. Khan, [1990] 2 S.C.R. 531 Jurisdiction Facts A doctor is accused of sexually assaulting a very young girl. Four year old girl tells her mother after leaving doctor’s office that the doctor had promised her a lollipop if he let her do things to her – mother would not have known about such activities except for these statements. TJ decided that child was no competent to testify reliably, and the statements did not fall under any of the traditional hearsay exceptions. Issues Can mother testify as to what daughter had told her outside office? Admissible? Holding Reasoning Evidence of child’s statements was admitted as it was reliable and necessary. McLachlin J: The argument is to permit statements made by children regarding sexual abuse. Cannot extend spontaneous declaration rule – would be to distort that exception. The declaration was made too long after the act to fit into these exceptions to the hearsay rule. McLachlin J adopts a more relaxed approach to hearsay – necessity and reliability. Is the statement necessary? – according to the test per Lord Pierce in Myers it was difficult to obtain other evidence. “The first question should be whether reception of the hearsay statement is necessary. Necessity for these purposes must be interpreted as “reasonably necessary.” Is it reliable (the intelligence and understanding of the child, and the absence of any reason to expect fabrication in the statement may be relevant on the issue of reliability. I Page 39 of 107 Monika Rahman Autumn 2007 Comments would not wish to draw up a strict list of considerations for reliability, nor to suggest that certain categories of evidence should always be reliable). Matters relevant here will vary and it should not be considered that all statements on sexual abuse should be considered reliable. “I conclude that the mother’s statement in the case at bar should have been received. It was necessary, the child’s viva voce evidence having been rejected. It was also reliable. The child had no motive to falsify her story, which emerged naturally and without prompting (i.e. no influence by mother). Moreover, the fact that she could not be expected to have knowledge of such sexual acts imbues her statement with its own peculiar stamp of reliability. Finally, her statement was corroborated by real evidence.” [p. 548] (the real evidence being the semen stain) Conclusion: Hearsay evidence on child’s statement relating to a crime committed against themselves can be admitted (but not always) subject to necessity and reliability and such safeguards. Strict rules must be relaxed especially in cases dealing with children and sexual abuse Indicia that can help determine reliability(?): timing, demeanour, personality of the child, absence of any reason to expect revocation (?) of the statement - This case reflects the SCC’s frustration with the fact that children’s statements were systematically being excluded b/c of these rigid rules. - Allows more flexibility to the court – allows courts to get at the truth of what happened. - This case does not mean that all statements by children will necessarily be reliable. - When there’s a case by judge and jury – judge first decides whether evdce is admissible, i.e. whether there are circumstantial guarantees of trustworthiness, not whether it’s true or not. - Under old approach, judge would decide first whether something was admissible, and then would decide its reliability. Now, with principled approach, reliability is a part of admissibility. The principled approach has definitely undermined certainty now we’re not sure what’s going to happen. In many cases, there is definitely a higher chance of fairness. However, there is also still chances of a miscarriage of justice. R v. Smith, [1992] 2 SCR 915 (CBp.212) Jurisdiction Facts Victim and accused had come from Detroit to Ontario and were supposed to be involved in a drug smuggling operation. Accused abandoned victim at a hotel when victim refused to get involved (?). Four phone calls made by the deceased to her mother. First two calls are admissible – call to ask for a ride after accused abandoned her; and then again to say she still needed the ride. Third was to say that victim was coming back after all. Third seems to put accused near location where deceased’s body was found. Fourth call not at issue. (Need to clear up which call was what) Issues Are the first three calls admissible? Holding First two admissible, not third b/c of lack of reliability. Reasoning Necessity means necessary to prove a fact in issue. Hearsay evidence of statements made by persons who are not available to give evidence at trial ought generally to be admissible (i.e. necessary), where the circumstances under which the statements were made satisfy the criteria of necessity and reliability, and subject to the residual discretion of the trial judge to exclude evidence when its probative value is slight and undue prejudice might result to the accused. If a statement sought to be adduced by way of hearsay evidence is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken, the hearsay evidence may be said to be “reliable”, i.e., a circumstantial guarantee of trustworthiness is established. Page 40 of 107 Monika Rahman Autumn 2007 Comments - In determining whether the phone calls were reliable, Lamer C.J. held that the first two were, but the third was not (the fourth was not in issue on appeal to this Court). With respect to the first two, there was no reason to doubt K’s veracity — “[s]he had no known reason to lie” — and the traditional dangers associated with hearsay — perception, memory and credibility — “were not present to any significant degree” (p. 935) With respect to the third phone call, however, Lamer C.J. held that “the conditions under which the statement was made do not . . . provide that circumstantial guarantee of trustworthiness that would justify its admission without the possibility of cross‑examination” (p. 935). First, he held that she may have been mistaken about Smith returning to the hotel, or about his purpose in returning (p. 936). Second, he held that she might have lied to prevent her mother from sending another man to pick her up. With respect to this second possibility, Lamer C.J. held that the fact that K had been travelling under an assumed name with a credit card which she knew was either stolen or forged demonstrated that she was “at least capable of deceit” (p. 936). Note: Lamer is looking at factors that would have come up in cross-examination In this case, the SCC gave what they said in Khan a broader scope – i.e. not just sexual assault. Grenier doesn’t understand why the third call was in dispute. Lamer seems to engage in all kinds of speculation... Situation: a person makes a statement and then recants. Section 9(2) of Canada Evidence Act says that if a person makes a statement that is inconsistent with a previous statement, and prosecution proves the previous statement existed, and it is established that the statement is contradictory, the judge will allow Crown Attorney to cross-examine its own witness. Could use the previous inconsistent statement to attack credibility. In K.G.B – can we use the previous inconsistent statement to do more than attack credibility of the witness, but actually use the content of the previous statement? SCC If there are other guarantees – i.e. person makes a statement under oath, is told consequences of lying, it is videotaped, etc. – all these things might give that previous statement sufficient reliability. How do you do a K.G.B.? i.e. establish a previous inconsistent statement and submit it for substantive content? - Have to hold a voir dire. - Establish indicia of reliability. - Burden of proof for reliability is balance of probabilities. - Judge has to make sure that there’s no coercion, threats, promises, or anything that could tarnish the reliability of the statement. R v. B.(K.G.), [1993] 1 SCR 740 (CBp.) Jurisdiction Facts Three of B’s friends made statements in which they told the police that B was responsible for stabbing and killing the victim in the course of a fight. The three recanted their statements at trial. (They subsequently plead guilty to perjury.) The Crown sought to admit the prior statements to police for the truth of their contents. Although the trial judge had no doubt the recantations were false, he followed the traditional common law (“orthodox”) rule that the statements could be used only to impeach the witnesses. In light of the doubtfulness of the other identification evidence, the trial judge acquitted B. Issues Can prior inconsistent statements by a witness other than the accused be admitted for the truth of their contents (as opposed to only to impeach the witness)? Page 41 of 107 Monika Rahman Autumn 2007 Holding Reasoning Yes, if necessity and reliability can be shown. Lamer J: In reviewing the history of the orthodox rule in respect of prior inconsistent statements Lamer C.J. notes that, although the prohibition on hearsay was not always recognized as the basis for the rule, similar “dangers” were cited as reasons against admission, namely absence of an oath or affirmation, inability of the trier of fact to assess demeanour, and lack of contemporaneous cross-examination After reviewing the academic criticism, the views of law reform commissioners, legislative changes in Canada and elsewhere, and developments in the law of hearsay, Lamer C.J. concluded that it was the province and duty of the Court to formulate a new rule (p. 777). He held that “evidence of prior inconsistent statements of a witness other than an accused should be substantively admissible on a principled basis, following this Court’s decisions in Khan and Smith” with the requirements of reliability and necessity “adapted and refined in this particular context, given the particular problems raised by the nature of such statements” (p. 783). Necessity is not to be equated with the unavailability of the witness. Here, necessity is based on the unavailability of the testimony because of the witness recanting, not the witness. The focus of the inquiry in the case of prior inconsistent statements is on the comparative reliability of the prior statement and the testimony offered at trial, and so additional indicia and guarantees of reliability to those outlined in Khan and Smith must be secured in order to bring the prior statement to a comparable standard of reliability before such statements are admitted as substantive evidence. A voir dire must be held to determine if there are any circumstances which call into question the reliability Can only apply to cases where a confession is made by the declarant and not naked hearsay statements such as “Y said he saw X fire the gun”. Admission is reliable as such a statement is a statement against the declarant’s interest. There will be “sufficient circumstantial guarantees of reliability” to render such statements substantively admissible where: (i) the statement is made under oath or solemn affirmation following a warning as to the existence of sanctions and the significance of the oath or affirmation, (ii) the statement is videotaped in its entirety, and (iii) the opposing party . . . has a full opportunity to cross‑examine the witness respecting the statement . . . . Alternatively, other circumstantial guarantees of reliability may suffice to render such statements substantively admissible, provided that the judge is satisfied that the circumstances provide adequate assurances of reliability in place of those which the hearsay rule traditionally requires. The trial judge still retains residual discretion to exclude the evidence, even if all the above requirements have been fulfilled. The trial judge also must be satisfied on the balance of probabilities that the statement was not the product of coercion of any form, whether involving threats, promises, excessively leading questions by the investigator or other person in a position of authority, or other forms of investigatory misconduct Comments Two references to add: Khelawon [2006] 42 CR 6 (p1) 215 CCC (3rd) 161; R.v. Clouture [2007] Carswell B.C. 1365 2007 SCC 28 – June 15, 2007. October 18, 2007 Making a K.G.B. Application: Page 42 of 107 Monika Rahman Autumn 2007 Crown’s application usually... In KGB, interview where kids said that the fourth kid had confessed was videotaped. Recanted this statement later. Trial before judge and jury. Prosecution would say “I have a legal argument to present to you” – code for admissibility issue so get jury out of room. Once they’re out, Crown discusses what the issue is. Crown is effectively invoking s.9 of the Canada Evidence Act – adverse witnesses, previous statements, and specifically s.9(2): (2) Where the party producing a witness alleges that the witness made at other times a statement in writing, reduced to writing, or recorded on audio tape or video tape or otherwise, inconsistent with the witness’ present testimony, the court may, without proof that the witness is adverse, grant leave to that party to cross-examine the witness as to the statement and the court may consider the cross-examination in determining whether in the opinion of the court the witness is adverse. Crown Attorney will tell the judge “My lord, I want to use s.9 to [insert what the aims are]”. Can do two things; 1) being allowed to cross-examine your own witness to impeach credibility, or to such an extent that the witnesses’ relevance is non-existent; 2) “to be able to use the previous inconsistent statement for truth of its contents” to prove that what he said in the previous videotaped statement was the truth.” During this voir dire, the judge has to satisfy himself that indicia of reliability are present. In this case necessity is easy enough to prove. Judge also has to satisfy himself that in the circumstances leading to that statement were kosher – he was informed of implications, not coerced, etc. Is there any other element that would cast doubt on reliability. The judge can watch the video – can be very When the statement is by the accused – free, voluntary, no threats, no promises, all constitutional guarantees. After this, trial judge decides on a balance of probabilities if necessity and reliability has been proved, and no other reason to doubt that the witness made this statement of his own volition. If he thinks it’s okay, the jury can watch In K.G.B. – an oath is one indicator of trustworthiness, we don’t know what other indicia will come up later. R. v. U. (F.J.), [1995] 3 S.C.R. 764 Not long after K.G.B., there was a case where a person was accused of sexual assault by the stepdaughter. Each gave a statement (not videotaped) when the other didn’t know the statement was being made. Complainant made a statement that the accused was having sex with her almost every day, described various sexual acts and 2 physical assaults. In his statement to the police the accused admitted similar incidents, including two assault incidents that his daughter talked about it. At trial the complainant recanted accusations and the accused denied having made any statements to the police. Lamer C.J. wrote: “The primary distinction between B. (K.G.), on the one hand, and Khan and Smith, on the other, is that in B. (K.G.) the declarant is available for cross-examination. This fact alone goes part of the way to ensuring that the reliability criterion for admissibility is met. The case at bar differs from B. (K.G.) only in terms of available indicia of reliability. Necessity is met here in the same way it was met in B. (K.G.): the prior statement is necessary because evidence of the same quality cannot be obtained at trial. For that reason, assessing the reliability of the prior inconsistent statement at issue here is determinative.” Page 43 of 107 Monika Rahman Autumn 2007 Lamer C.J. went on to determine how the indicia of reliability could be founded on different criteria than those set out in B. (K.G.). The complainant’s statement to the police was not made under oath. Nor was it videotaped. Most importantly, however, the declarant was available for cross-examination, thereby significantly alleviating the usual dangers arising from the introduction of hearsay evidence. In U. (F.J.), the reliability requirement was met rather by showing that there was no real concern about whether the complainant was speaking the truth in her statement to the police. The striking similarities between her statement and the independent statement made by her father were so compelling that the only likely explanation was that they were both telling the truth. Again here, the criteria of necessity and reliability intersect. In the interest of seeking the truth, the very high reliability of the statement rendered its substantive admission necessary. What’s astounding is that the SCC has turned around and totally changed what they said previously. Stare decisis? These cases are examples of two things: 1. In Hawkins and Starr, you have very divided courts. Makes for very precarious legal precedent. 2. Dangers of taking a traditional area of the law and turning it totally inside out – suddenly it’s all about necessity and reliability without guidelines. Rosenberg says we can’t just use this N&R b/c there will be NO certainty. Are the exceptions gone now? The problem before was that with these pigeon holes it was too rigid and strict and we couldn’t apply the exceptions Have we forgotten that hearsay is presumptively inadmissible? Every piece of evidence has a chance. R. v. Hawkins, [1996] 3 S.C.R. 1043 Jurisdiction On appeal from Ontario Facts Hawkins, a police officer, was charged with obstructing justice and corruptly accepting money. His then girlfriend, G, testified at his preliminary inquiry. After testifying the first time, G brought an application to testify again and recanted much of what she had said, with explanations. By the time of the trial, Hawkins and G were married and therefore G was incompetent to testify under s. 4 of the Canada Evidence Act. After ruling that the common law rule of spousal incompetency applied, and that G’s testimony at the preliminary inquiry could not be read in at trial under s. 715 of the Criminal Code, the trial judge held that the evidence was not admissible under the principled approach because it was not sufficiently reliable. Hawkins was acquitted. Issues Holding Reasoning The verdict was overturned by majority decision of the Court of Appeal for Ontario. Is the girlfriend’s previous testimony admissible? Yes, under the principled approach to admission of hearsay. Court refuses to modify the common law rule of spousal incompetency as invited to do. Court agrees with the trial judge that the common law rule applied, and the testimony could not be read in under s. 715. However, a majority of the Court holds that the preliminary inquiry testimony could be read in at trial under the principled approach to the admission of hearsay. “The criterion of reliability is concerned with threshold reliability, not ultimate reliability. The function of the trial judge is limited to determining whether the particular hearsay statement exhibits sufficient indicia of reliability so as to afford the trier of fact a Page 44 of 107 Monika Rahman Autumn 2007 satisfactory basis for evaluating the truth of the statement. More specifically, the judge must identify the specific hearsay dangers raised by the statement, and then determine whether the facts surrounding the utterance of the statement offer sufficient circumstantial guarantees of trustworthiness to compensate for those dangers. The ultimate reliability of the statement, and the weight to be attached to it, remain determinations for the trier of fact.” (paragraph 75) “...we find that a witness’s recorded testimony before a preliminary inquiry bears sufficient hallmarks of trustworthiness to permit the trier of fact to make substantive use of such statements at trial. The surrounding circumstances of such testimony, particularly the presence of an oath or affirmation and the opportunity for contemporaneous cross‑examination, more than adequately compensate for the trier of fact’s inability to observe the demeanour of the witness in court. The absence of the witness at trial goes to the weight of such testimony, not to its admissibility.” Dissent: Admitting this evidence violates the policy underlying s. 4 and should not be permitted. Comments Hawkins At preliminary inquiry, the Crown’s primary witness was the police officer’s girlfriend who testified against him. By the time the trial comes around, they’re married. At CML a spouse is not compellable to testify against his/her spouse. A spouse can be competent for the defence. Comes from ancient rule that accused is not competent to testify in his own defence. Canada Evidence Act 4(2) The wife or husband of a person charged with an offence under subsection 136(1) of the Youth Criminal Justice Act or with an offence under any of sections 151, 152, 153, 155 or 159, subsection 160(2) or (3), or sections 170 to 173, 179, 212, 215, 218, 271 to 273, 280 to 283, 291 to 294 or 329 of the Criminal Code, or an attempt to commit any such offence, is a competent and compellable witness for the prosecution without the consent of the person charged. Communications during marriage (3) No husband is compellable to disclose any communication made to him by his wife during their marriage, and no wife is compellable to disclose any communication made to her by her husband during their marriage. Criminal Code 715 says that for various reasons you can lead evidence that was given at preliminary inquiry. Evidence couldn’t go in under 715 either. Crown asked for testimony to go in under N&R. If the witness is unavailable to testify, necessity is usually fulfilled – in this case court found witness “unavailable to testify”. It’s a bit weird that the court could use N&R to overrule such an old rule. By the time you get to page 242, you get into murky situations... they say that they’re not dealing with whether evidence from one criminal trial can go into another one...you can see how it’s going to go badly. They caution that the trial judge retains the capacity to exclude if PV<PE. Page 245 -- they decide that there’s no problem if the evdce goes in. The evidence of the fact that the marriage seemed too convenient probably played a role in this decision, but still what does this say about legality? Page 45 of 107 Monika Rahman Autumn 2007 Clouture [2007] (CBp.) - MISSING Jurisdiction Facts Issues Holding Reasoning Comments Clouture (2007) 1986, two women were killed. In 1989, a lady by the name of Darlene was doing volunteer work in a penitentiary and talked to Mr. Clouture and he confessed that he had killed the two women. Darlene and Clouture started dating, and on February 14, 1996, they got married. RCMP wanted to talk to her, and the interview was audiotaped. They told her that she could not testify b/c of the spouse rule, but would she speak to her. She did tell them what accused had said. They talked to her again, and she was even more reluctant, but still said a few things. Crown, at trial, asked to admit a videotape (audiotape?) and the judge let it in based on Hawkins. SCC says Hawkins did not give full permission to use a spouse’s statement to prove an accused’s guilt and distinguishes Hawkins on the facts. In Hawkins, the girlfriend was crossexamined under oath at a preliminary inquiry, and they got married after the statements were made. Unless there’s good reason to modify a common law rule, the modern approach to hearsay should be applied in a way that preserves and reinforces the integrity of traditional rules of evdce and spousal incompetence is one of those rules. And obviously the judge still has the residual discretion to exclude the evdce when the PE>PV. In discussions at the Law Reform Commission in the 1970s, Lamer stressed the imptce of respecting the discretion of the trial judge. Seems like he held on to this notion very strongly as it comes up again and again in these cases. In this case, was the court trying to say we were wrong without saying we were wrong? Note: In Hawkins, the trial judge did actually exclude the evidence on the basis of PE. Quick note on principled approach: Even if judge concludes that evdce is N&R, the judge cannot let a previous inconsistent statement in that would be otherwise inadmissible. We tend to forget that the rule is hearsay is presumptively inadmissible, except the traditional exceptions, and when the principled approach applies. October 23, 2007 Recall: previous cases effectively took reliability taken out of probative value analysis and put it into admissibility. Starr: Very divided decision – 5-4. Why are the facts in Starr important? Because the defence argument was that identification of the accused is in issue, and that the Crown’s entire case is circumstantial. Facts: Cook and a girlfriend of his, W, were drinking with Mr. Starr and Cook had. There was evidence that Cook said “If we’re going to get done with it, we’d better do it now.” They all leave together and C and W offer a ride to a couple. C and W are clearly intoxicated. W drives and they stop at a gas station. Jodie Giesbrecht, a girlfriend of Cook’s, who had been with Cook the Page 46 of 107 Monika Rahman Autumn 2007 previous night, notices Cook with W in the car. G walked up to the car in a way so C wouldn’t notice since he was with a girl. G got very angry and they walked away from the car, and G asked why he wasn’t going home with her. He says “I’m going to go do an Autopac scam with Robert.” [This is the statement that becomes the main issue on appeal.] She thought it was kind of odd that he’d discuss business with her. o The couple got dropped off and noticed a smaller car following them... Mrs. Ball states that they couldn’t identify who was in the car and whether the driver was alone. At 3am, another couple near where the bodies were found hears squealing tires and a bit later a series of pops. Starr and wife go to a hotel two days later (leather jacket in good condition found in dump behind hotel), and then later go to his brother’s house. o Other evidence: Scalp hair of Starr found in the car. There were recordings of Starr with his wife which seemed to imply that he was in the smaller car, and Starr saying “I never killed anyone” which could suggest there was someone else in the smaller car (defence building their case on this point). Starr was involved in a Manitoba gang. Also, there is a bill for ammunition compatible with the gun model that was used to kill C and W. Defence argued that not only had Crown failed to show identification of Starr as killer, but hadn’t even shown that any member of the Manitoba warriors was involved at all. Trial Judge: Let the Autopac scam comment in, didn’t hold a voir dire, and held it was admissible under present intentions exception. He says the words would have been just as prejudicial against the deceased as it was against the accused. Court of Appeal: Hearsay can. Dissent is saying that the principled approach has to have a SCC: Statement is not admissible under this exception because (1) made under circumstances of suspicion and (2) statement also used to show Starr’s intention to take Cook to a secluded place and not just Cook’s intention to do the Autopac scam with Starr. Majority: To be admissible under this exception, it must be statement of declarant to be admissible and not under circumstances of suspicion superimposing reliability on the exception. o Iacobucci actually goes as far as saying there is no example in Canada o Para 272? o TJ erred b/c no indicia of reliability and did not give limiting instructions. And even if he had, it was still more prejudicial then probative. Minority disagrees that statement cannot be about someone else’s intentions and doesn’t find the circumstances suspicious Re: Suspicious circumstances: Suspicious means suspicious in that context – goes to inherent trustworthiness of the statement. What do we think? o Might a man who is with another woman lie if his sometime girlfriend is asking why he’s not going home with her? o Minority finds that if Cook wanted to lie, it was strange to choose to say that he was doing some kind of business deal. Minority might have been reasoning backwards the fact that he did go to do the Autopac scam means it wasn’t suspicious statement Grenier doesn’t like the fact that the possibility of Cook lying is discussed in such hypothetical terms. Alternative explanations provided by defence to provide reasonable doubt must be grounded in fact! The SCC is not the last word because they’re right, they’re right because they’re the last word. Starr on Principled Approach: Iacobucci agrees with CofA dissent re: application of principled approach. Traditional exceptions are going to be kept, but they are going to have to be considered reliable. The exceptions are practical examples of what is necessary and reliable. We shouldn’t abolish them, but we need to dispense with their arbitrariness. Page 47 of 107 Monika Rahman Autumn 2007 “we have to bring the exceptions into line with the principled approach in order to improve the intellectual coherence of the law of hearsay” not sure we achieved that goal! P.262-3: Iacobucci begins the part of the decision he wishes he never signed off on. o Discusses threshold reliability and ultimate reliability. This is to address the issue that lawyers were struggling with the movement of reliability into admissibility analysis. o He outlines some indicators of trustworthiness Page 263 at the threshold stage, judge should not consider reputation of declarant for truthfulness. I would not consider the presence of corroborating evidence for a statement. This statement sparks 6 years of controversy. R v. Starr, [2000] 2 SCR 144 (CBp.246) Jurisdiction Facts The accused was convicted of shooting Cook and Weselowski by the side of a highway. They’d been drinking with the accused in a hotel. Outside, C and W offered a couple a ride home in W’s station wagon. W drove, and the group first stopped at an adjacent gas station, where Giesbrecht, a sometime girlfriend of C, approached the station wagon and had a conversation with C. During the conversation, G observed a car beside the gas station, and saw the accused in the car. She became angry with C because he was out with W rather than her, and she walked away from the car. C got out of the car and followed her into a laneway, where they had a further conversation. G asked C why he would not come home with her. According to G, C replied that he had to “go and do an Autopac scam with Robert”. She understood “Robert” to be the accused. A day or two later, G saw a picture in the newspaper of what she believed was the car in which she had seen the accused. The car had been found at the scene of the murder. She phoned the police and told them she had seen the car on the night of the murders at the gas station, with the accused in it. Issues Holding Reasoning The Crown’s theory was that the killing was a gang‑related execution perpetrated by the accused. W was an unfortunate witness who was killed simply because she was in the wrong place at the wrong time. The theory was that the accused had used an Autopac scam as a pretext to get C out into the countryside; therefore the Crown was trying to admit Giesbrecht’s testimony for the truth of its contents (i.e. the intention to go and do an Autopac scam with Robert and that the accused’s intentions). The trial judge found that G’s anticipated testimony regarding the scam was admissible under the “present intentions” or “state of mind” exception to the hearsay rule. 1) Is Giesbrecht’s testimony regarding what Cook had said to her that night admissible under the “present intentions” exception to the hearsay rule? 2) If not, it is admissible under the principled approach? 1) No; 2) no. Iacobucci J (Major, Binnie, Arbour and Lebel JJ concurring): The “state of mind” or “present intentions” exception to the hearsay rule permits the admission of statements of intent or of other mental states for the truth of their contents and also, in the case of statements of intention in particular, to support an inference that the declarant followed through on the intended course of action, provided it is reasonable on the evidence for the trier of fact to infer that the declarant did so. A statement of intention cannot be admitted to prove the intentions of someone other than the declarant, unless a hearsay exception can be established for each level of hearsay. The trial judge erred in admitting G’s testimony under this exception because: 1) the statement was made under circumstances of suspicion; 2) the trial judge failed to instruct the jury that the statement was only admissible as evidence regarding the intentions of Cook and not the accused; and 3) the evidence was more prejudicial than probative. Page 48 of 107 Monika Rahman Autumn 2007 1. The statement lacked circumstantial guarantees of trustworthiness – Cook had a motive to lie in order to make it seem he was not involved with W, and he could have easily pointed to the accused who was sitting nearby but out of earshot as the person he was going to do a scam with 2. Cook’s statement is double hearsay, and the Crown did not establish how Cook was qualified to comment on the accused’s intentions. While in some circumstances the statement of joint intention can be fairly considered along with other evidence in deciding what a third party did, in this case, Cook’s statement should not be used to support the inference that Starr was with the deceased that night and the jury should have received limiting instructions to this extent. 3. In this case the prejudicial effect of the prohibitive use of the evidence (accused’s intentions) overbears its probative value on the permitted use (Cook’s intentions). The jury could have drawn impermissible inferences that the accused was in the car following Cook, that he was alone in the car, and that the accused went with Cook as part of a plan to lure Cook to a secluded area and kill him. Comments Summary Re: interaction of exceptions and principled approach: hearsay that does fit into a traditional exception (i.e. evidence falling within one is presumptively admissible) may still be inadmissible under the principled approach. i.e. the exceptions remain in place but the principled approach prevails in case of a conflict. The concern for R&N should be no less present where hearsay is sought to be introduced under an exception. In some rare cases, it may be possible under the particular circumstances of a case for evidence clearly falling within an otherwise valid exception nonetheless not to meet the principled approach’s requirements of necessity and reliability. In such a case, the evidence would have to be excluded. However, these cases will no doubt be unusual, and the party challenging the admissibility of evidence falling within a traditional exception will bear the burden of showing that the evidence should nevertheless be inadmissible. The trial judge will determine the procedure (whether by voir dire or otherwise) to determine admissibility under the principled approach’s requirements of reasonable necessity and reliability. C’s statement to G was also inadmissible under the principled approach. Since it was made under “circumstances of suspicion”, the statement was not reliable. Nor are there any other circumstantial guarantees of trustworthiness that could render the statement reliable. Governing framework from Starr, as laid out in R v. Mapara (2005): (a) Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place. (b) A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by the principled approach. The exception can be modified as necessary to bring it into compliance. (c) In “rare cases”, evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case. (d) If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity are established on a voir dire. Khelawon: Off the bat Charron says we have to address the Starr v. Khan debate, re: corroborating evidence. Initially seems to underline importance of threshold vs. ultimate reliability, but then throws out the distinction one paragraph later. Page 49 of 107 Monika Rahman Autumn 2007 All relevant evidence can be considered – including corroborating evidence. Court notes that there were ways that we could have saved the evidence (e.g. Crown could have asked for a commission – to go to the home and get the evidence there?). In cases where you’re dealing with mental illness, dementia, etc. there are often other investigations done. Trial judge had said that the only problem in this case is the inability to cross-examine, but that in this case good care for the elderly is too important. o Sherman: This is criminal law, anything being prosecuted is important to public interest. Inability to cross-examine is very important! Is “strikingly similar” a new category? No, there will be situations where it is enough to be strikingly similar, and cases where it isn’t. Not going to take pigeon-holed approach. Charron: If you can’t cross-examine are the circumstances such that the tirer of fact will be able to test the truth and accuracy of the statement. o Divides the hearsay cases into cases where declarants were available for cross and where they weren’t. R. v. Khelawon, [2006] 2 S.C.R. 787 Jurisdiction Facts In May 1999, five elderly residents of a retirement home told various people that they were assaulted by the manager of the home, the respondent, Ramnarine Khelawon. At the time of trial, approximately two and a half years later, four of the complainants had died of causes unrelated to the assaults, and the fifth was no longer competent to testify. Only one of the complainants had testified at the preliminary inquiry. The central issue at trial was whether the hearsay statements provided by the complainants had sufficient threshold reliability to be received in evidence. Grossi J. held that the hearsay statements from each of the complainants were sufficiently reliable to be admitted in evidence, based in large part on the “striking” similarity between them. He ultimately admitted the videotaped statements of Mr. Skupien and Mr. Dinino and found Mr. Khelawon guilty of the offences in respect of those two. He acquitted him on the remaining counts. Issues Holding Reasoning At the Court of Appeal, the majority found that the statements should be excluded, and that Grossi J’s decision was at odds with Starr where Iacobucci held that “corroborating . . . evidence” should not be considered in determining threshold reliability. The Court also found that, although a trier of fact might conclude, using similar fact reasoning, that the same person committed all of the crimes, this is an issue going to ultimate reliability, not threshold reliability. Only the latter is relevant in determining admissibility. Also, the comparator statements must also be substantively admissible, 1) What factors should be considered in deciding whether evidence is sufficiently reliable under the principled approach? Can corroborating evidence be considered? 2) Should the complainants’ hearsay statements should be received in evidence? 1) Any relevant evidence; Yes it may. 2) No, should be excluded. Court of Appeal decision upheld. Charron J (everyone else concurring): All relevant evidence is admissible. One exception to this rule is that hearsay is presumptively inadmissible. The central reason for the presumptive exclusion of hearsay statements is the general inability to test their reliability. The essential defining features of hearsay are the following: (1) the fact that the statement is adduced to prove the truth of its contents and (2) the absence of a contemporaneous opportunity to cross-examine the declarant. However, in some circumstances, the evidence presents minimal dangers and its exclusion, rather than its admission, would impede accurate fact finding. Thus certain exceptions were crafted for situations where the dangers of receiving the evidence were sufficiently alleviated. The principled approach must be applied with this same concern in mind. Page 50 of 107 Monika Rahman Autumn 2007 A hearsay statement may be admitted if, because of the way in which it came about, its contents are trustworthy, or if circumstances permit the ultimate trier of fact to sufficiently assess its worth. If the proponent of the evidence cannot meet the twin criteria of necessity and reliability, the general exclusionary rule prevails. The trial judge acts as a gatekeeper in making this preliminary assessment of the “threshold reliability” of the hearsay statement and leaves the ultimate determination of its worth to the fact finder This distinction b/w threshold and ultimate reliability reflects the distinction b/w admissibility and reliance. Admissibility is determined by the trial judge based on the rules of evidence. Whether the evidence is relied upon to decide the issues in the case is a matter reserved for the ultimate trier of fact to decide in the context of the entirety of the evidence. The trial judge still has the residual discretion to exclude admissible evidence where its prejudicial effect is out of proportion to its probative value. The exceptions made in U(F.J). and B.(K.G.) should not be seen as creating categorical exceptions to the rule against hearsay based on fixed criteria -- the “new approach to hearsay” should not “itself become a rigid pigeon-holing analysis”. I have concluded that the factors to be considered on the admissibility inquiry cannot be categorized in terms of threshold and ultimate reliability. Comments to the contrary in previous decisions of this Court should no longer be followed (i.e. overturning Starr). Rather, all relevant factors should be considered including, in appropriate cases, the presence of supporting or contradictory evidence. In each case, the scope of the inquiry must be tailored to the particular dangers presented by the evidence and limited to determining the evidentiary question of admissibility. Charron outlines the Functional Approach to a Hearsay Admissibility Inquiry: i.e. focus on the particular dangers raised by the hearsay evidence sought to be introduced and on those attributes or circumstances relied upon by the proponent to overcome those dangers Is it hearsay? i.e. only if admitted for truth of contents and there is no opp’ty for cross If yes, then it is presumptively inadmissible. Does it fall into one of the exceptions? If yes, then the evidence is admissible. Under the principled approach, the reliability requirement is met by showing either that 1) there is no concern about the hearsay statement b/c of the circumstances in which it came out; or 2) there is no concern b/c the truth and accuracy of the statement can otherwise be tested (e.g. the statement was made in formal proceedings) Charron J then reviews all the major cases in the development of the principled approach to outline those attributes or circumstances that are usually considered to decide whether dangers of hearsay evidence are raised – e.g. ability to cross-examine declarant (very impt), context in which statements were made (under oath, preliminary inquiry), adequate substitutes for adversarial process... “When the reliability requirement is met on the basis that the trier of fact has a sufficient basis to assess the statement’s truth and accuracy, there is no need to inquire further into the likely truth of the statement. That question becomes one that is entirely left to the ultimate trier of fact and the trial judge is exceeding his or her role by inquiring into the likely truth of the statement. When reliability is dependent on the inherent trustworthiness of the statement, the trial judge must inquire into those factors tending to show that the statement is true or not.” “...whether certain factors will go only to ultimate reliability will depend on the context. Hence, some of the comments at paras. 215 and 217 in Starr should no longer be followed. Relevant factors should not be categorized in terms of threshold and ultimate reliability. Rather, the court should adopt a more functional approach as discussed above... In addition, the trial judge must remain mindful of the limited role that he or she Page 51 of 107 Monika Rahman Autumn 2007 plays in determining admissibility — it is crucial to the integrity of the fact-finding process that the question of ultimate reliability not be pre-determined on the admissibility voir dire. Finally Charron supports the dissenting view of Justice Kennedy of the U.S.S.C. in Idaho v. Wright, 497 U.S. 805 (1990), who believes that “both the circumstances existing at the time the child makes the statements and the existence of corroborating evidence indicate, to a greater or lesser degree, whether the statements are reliable.” Application to this case: Although Mr. Skupien’s death before the commencement of the trial made it necessary to resort to his evidence in this form, the statement was not sufficiently reliable to overcome the dangers it presented. There are no adequate substitutes here for testing the evidence and so the Crown could only rely on the inherent trustworthiness of the statements. But, the circumstances in which they came about did not provide reasonable assurances of inherent reliability. To the contrary, they gave rise to a number of serious issues including: whether Mr. Skupien was mentally competent, whether he understood the consequences of making his statement, whether he was influenced in making the allegations by a disgruntled employee who had been fired by Mr. Khelawon, whether his statement was motivated by a general dissatisfaction about the management of the home, and whether his injuries were caused by a fall rather than the assault. Comments 5. ADMISSIONS AND CONFESSIONS 527-548 548-599 November 1, 2007 Consciousness of Guilt – e.g. inferred from flight Part of the evidence of the Crown – have to be careful to know all the circumstances of flight etc. before drawing that inference. Now usually discussed as post-offence conduct, but old habits die hard. Lesson from Arcangioli White – in this case could draw this inference Confessions: statements to persons of authority. Introduced into evidence after a voir dire. Ward -- Operating mind test (576) Voir dire – is the purpose to decide if something is true or reliable? – RELIABILITY. Truth is for factfinder. Hodgson – deals with persons in authority. Is there a diffce b/w making an incriminating statement to a person on the street and a person in authority? Page 52 of 107 Monika Rahman Autumn 2007 B/c of authority that police, prison guards etc. exercise of an individual, A. PRE-TRIAL CONDUCT: SILENCE R v. Eden, [1970] 3 CCC 280 (CBp.527) Jurisdiction Ontario Court of Appeal Facts The accused was caught riding in the back of a stolen car. When they were caught, all three were put in the back of a cruiser. One of the three told the cop how and where they had stolen the car. There is no evidence that the accused said anything. His defence is that he wasn’t there when it was stolen. He had an alibi witness. The TJ rejected both the evidence of the accused and the evidence of the alibi witness and convicted the accused. Issues Was the conviction proper? Holding No Reasoning Gale CJO: The only evidence against the accused was his presence in the car and his alleged adoption of the statement made by one of the other accuseds. The TJ therefore concluded that the accused adopted the statement. However, the TJ is entitled to do so only where the circumstances surrounding the making of the statement must be such that it would be normal conduct for the person to deny it. “When the circumstances are such that the failure to protest can be attributed to some circumstance justifying such failure, the probative value of the failure to protest is lessened and may be entirely negatived.” The accused was entirely in his rights in remaining silent, and no unfavourable imputation should be placed upon his exercise of that right. To do otherwise would be to create an obligation to make exculpatory statements. Ratio The failure to protest to an inculpatory statement made by another is not evidence of the adoption of that statement unless the circumstances are such that there is no explanation for the failure to protest. R v. Sweeny (No.2) (1977, 35 CCC (2d) 245 (CBp.529) Jurisdiction Ontario CA Facts Sweeny was charged with murder, and his only defence was insanity. The crown wanted to have him interviewed by shrinks. Defence counsel insisted that there be a pre-interview conference among the defence and crown shrinks before such an interview would be authorized. Once the crown’s witnesses had testified based on their in court observations and stated that they were denied an interview (i.e. that accused refused), the defence was permitted to call evidence to explain why the interview had been denied, showing that the conference they demanded was not unusual. Issues Holding Reasoning Was the accused’s right against self-incrimination violated? No, the evidence was properly admitted Zuber JA: What the defence is arguing is that his right against self-incrimination not only allows him to refuse to speak with crown witnesses, but also protects him from evidence being called to show that he remained silent. Thus, the crown evidence about the refusal should have been excluded, says the defence. The evidence is clearly relevant, as it supports the inference that the insanity defence was either contrived or weak. There is, however, no general right against self-incrimination. The privilege against self- Page 53 of 107 Monika Rahman Autumn 2007 Ratio incrimination extends only to witnesses’ right to refuse to answer certain questions (CEA s. 5), and the right of the accused to refuse to testify The shrinks would have dealt with the accused qua accused, not qua witness. No privilege is infringed when the accused is forced to participate in a line-up, or give a blood sample, etc. If the statement is made to a person in authority, it must be voluntary, but the shrink can testify opinion as to mental condition based on an interview with an accused, even if the statements were not voluntary, provided that s/he does not tender the statements themselves as evidence. Re: whether an accused has a right to remain silent... this is true only in a general sense and does not flow from any concept of self-incrimination, but from the fact that there is no lawful manner in which the accused can be obliged to speak. The court can consider pre-trial silence as it relates to certain issues—e.g. the weight of alibi defences or failures to reply in circumstances that would reasonably call for reply. The evidence here was therefore properly admitted – why should not the defence of insanity be weighed against the unwillingness of an accused to subject his defence to professional scrutiny? There is no general right against self-incrimination that allows an accused to be protected from evidence of his or her insistence on remaining silent. R v. Chambers, [1990] 2 SCR 1293 (CBp.532) Jurisdiction Facts The accused is a lawyer charged with conspiracy to import cocaine. He denied being a true conspirator. During the course of his testimony Chambers said that he had never discussed his arrangements with Kuko to rob Gonzalez of cocaine with anyone until several months before his second trial. The crown wanted to show that his defence was recently concocted by showing that it had never been disclosed in the six years between the charge and the trial. He was convicted, and on appeal the accused raised an issue concerning the pre-trial right to silence at common law and under the Charter Issues Was it imperative that the TJ have instructed the jury with regard to the appellant’s right to silence? Holding Yes Reasoning Cory J (+5): The crown entered a line of questioning intended to show that his defence was recently concocted. There was documentary evidence that showed that the accused has discussed this defence of double intent (i.e. pretended to participate but didn’t intend to) with his lawyer five years earlier. Eventually both counsel agreed that the line of questioning should be both discontinued and that the jury should be instructed to ignore it both with respect to guilt and credibility. The TJ failed to instruct the jury on this point, and neither counsel reminded him to do so. It is now well recognized that there is a right to silence that can be exercised in the investigative stages of the proceedings. The right flows from the more general right for anyone to “do whatever one pleases...or choosing not to do certain things, unless obliged by law.” (Rothman). It’s also recognized that the jury is not entitled to draw any inference against an accused because he or she chooses to exercise the right to silence. This right now falls within the ambit of s. 7. Unless the crown establishes a real relevance and a proper basis for their admission, neither the questions asked by the investigating officer nor the ensuing silence should be admitted. The TJ here should have instructed the jury to ignore the line of questioning. Page 54 of 107 Monika Rahman Autumn 2007 Comments There was a real prejudice to the accused here, as counsel elected not to reexamine the witnesses or introduce the documentary evidence. The jury were deprived of evidence that would have shown that the “Kuko” story was not a recent concoction, and could well have been left with the erroneous impression that Chambers was under a duty to disclose the Kuko story to a person in authority. “As a general rule there is no obligation resting upon an accused to disclose either the defence which will be presented or the details of the defence before the crown has completed its case.” The jury is not entitled to draw any negative inference from an accused exercise of her right to silence, and any evidence relevant only for that purpose is inadmissible. B. PRE-TRIAL CONDUCT: CONSCIOUSNESS OF GUILT R v. Arcangioli, [1994] 1 SCR 129 (CBp.536) Jurisdiction Facts The accused admitted to having committed common assault against the complainant but denied aggravated assault. He was charged with aggravated assault. Someone in the altercation had stabbed the complainant. The accused tried to lead evidence to show that another man had participated in an assault with a knife earlier that night and was involved in the ruckus that led to this charge. The accused fled the scene after the assault. Issues Did the TJ properly instruct the jury with respect to the inference to be drawn from the flight? Holding No. Reasoning Major J: An inference of guilt can be drawn from circumstantial evidence such as flight, but it’s up to the TJ to ensure that the evidence of flight is not misused. In Gudmondson, the SCC found that the TJ should have told the jury that they ought to be very cautious in imputing to the accused a consciousness of guilt b/c of actions which might be explained by panic. The jury in this case was clearly told that people often flee for reasons other than guilt. But, the direction provided in Gudmondson will not always be a sufficient instruction. That is true in the present case. Here, the issue is whether the flight can support an inference of aggravated assault over one of common assault. Therefore the issue is whether the evidence of flight can support an inference of guilt with respect to the former rather than the latter. In the US, the Myers case held that there must be evidence to support four inferences: (1) from the accused behaviour to flight (2) from flight to consciousness of guilt (3) from consciousness of guilt to consciousness of guilt of the offence in question and (4) from consciousness of guilt of the offence in question to actual guilt of the offence in question. “Where an accused conduct may equally be explained by reference to consciousness of guilt of two or more offences, and where an accused has admitted culpability in respect of one or more of these offences, a trial judge should instruct a jury that such evidence has no probative value with respect to the particular offence.” Here the jury should have been warned that b/c the appellant’s flight was equally consisted with both common and aggravated assault, it could not be evidence of guilt of the latter. New trial. Ratio Evidence of consciousness of guilt must support an inference of guilt in respect of the offence in question, and be more consistent with the offence in question than other admitted offences. Page 55 of 107 Monika Rahman Autumn 2007 R v. White, [1998] 2 SCR 72 (CBp.540) Jurisdiction Facts The appellants were accused of a first-degree murder in Ottawa. The victim had last been seen alive with the appellants (they were all friends), and the appellants were seen together later that night without the victim. The crown led evidence that they left Ottawa the day after the murder and that they made some incriminating statements to an acquaintance. They robbed two banks while they were gone, and both violated their parole when they left Ottawa. When they got back, they tried to run from the cops, and W threw the murder weapon under a car while running. Issues (1) Should the TJ have instructed the jury that their post-offence conduct had no probative value and (2) Should the jury have been instructed that they had to be satisfied beyond a reasonable doubt that the conduct was motivated by a consciousness of guilt? Holding Reasoning (1) No (2) No. Major J: The TJ allowed the evidence to go to the jury, despite counsel’s objection that it was as well explained by the violations and the robberies as by the murder. The TJ instructed the jury that it was up to them to assess the weight of the evidence, and that they should consider the defence’s alternative explanations. Under certain circumstances, conduct after a crime may provide circumstantial evidence of the accused’s culpability. An inference of guilt may be drawn if, e.g. the accused fled the scene or acts of concealment. This type of evidence should just be called ‘evidence of post-offence conduct’ and not ‘consciousness of guilt’, as the latter is one element in issue. The jury shouldn’t be given such evidence where the accused has admitted to criminal conduct that is an equally good explanation of the behaviour, and if it is put to them, they should be properly instructed on the use to which it may be put. Post-offence conduct has no probative value when the conduct can no longer be attributed to the offence being tried rather than another offence. Generally, it will be for the jury to decide whether the conduct is related to the crime before them, and the TJ should interfere in this process only in limited circumstances, such as where the accused has admitted the A/R of the criminal act, but denied a specific level of culpability (e.g. Arcangioli). A no probative value’ charge is not required where the accused has denied any involvement in the fact underlying the charge and seeks to explain her actions by reference to some unrelated culpable act. American decisions have confined Myers to its facts (committed 2 robberies in 2 states, and when being tried for one, used the other to explain the attempted flight from the police). The TJ retains discretion to withhold evidence that is more prejudicial than probative. Here, it’s their identity as killers that is in issue, not the level of culpability. Thus, the evidence was relevant, and the weight a matter for the jury. There is no distinct standard of proof for post offence conduct, it must be considered along with all of the other evidence is determining guilt or innocence. The weight of post-offence conduct is usually reserved for the jury, and the TJ should tell them it has no probative value only in very rare circumstances, as in Arcangioli. Comments C. STATEMENTS TO PERSONS IN AUTHORITY: WHO IS A PERSON IN AUTHORITY R v. Rothman, [1981] 1 SCR 640 (CBp.548) Jurisdiction Facts R was charged with possession of hashish for the purpose of trafficking. Expressing his wish to remain silent, they put him in a cell, and then sent in a narc. The accused said he Page 56 of 107 Monika Rahman Autumn 2007 looked like a narc, the pig denied it, and then the accused made a series of incriminating statements. The TJ held that the evidence was inadmissible because it had been improperly elicited. The jury returned a not-guilty verdict. The crown appeals. Issues Holding Reasoning Martland The CA found that the officer was not a person in authority, and even if he was, the statement was voluntary. The dissent argued that the TJ had the proper discretion to exclude the evidence because of the way it was obtained. The rule is clear: no statements to persons in authority unless they are proven voluntary. The test is subjective: did the appellant believe the officer was a person in authority? Despite the CA dissent, the privilege against self-incrimination simply does not apply here, as it is limited to the privilege of witnesses not to answer certain questions (Marcoux). Appeal dismissed. Lamer: Statements made to a person in authority cannot be included unless voluntary, but even then they may be excluded if they were elicited under circumstances what would bring the administration of justice into disrepute. For this second branch, the conduct must be such that it would really shocking to include it. The first part of the rule, the reliability test, will deal with most problematic situations. The investigative process is not governed by the “Marquess of Queensbury rules”. Dissent: Estey (Laskin): The acquittal should be restored. He had expressly elected to exercise his right to remain silent, and they then proceeded with lies and trickery. The rules in this area are concerned not only with the desire to filter out untrue statements, but also the need for the justice system to command the respect and support of the community it serves. The basic reason for the exclusionary rule is a concern for the integrity of the criminal justice system. To be voluntary, the statement must flow from the conscious will of the speaker, which can include the speaker’s appreciation of the circumstances. Here, it’s clear that he would not have volunteered the statement to a pig. They went to some pains to ensure he didn’t know he was talking to a pig. Ratio Comments The ‘person in authority’ test depends on the subjective apprehension of the declarant. The rule is intended both to filter out potentially unreliable statements, but also to protect the integrity of the justice system. Note: Didn’t even have to show it was voluntary because he didn’t know it was a pig. R v. Hodgson, [1998] 2 SCR 449 (CBp.556) Jurisdiction Facts The accused was confronted by the parents and step-dad of the complainant who accused him of sexually assaulting her. He admitted it and apologized. When someone went to call the police, the dad pulled knife and held it to his back. Neither counsel requested a voir dire to test the voluntariness of certain out of court statements made by the accused. Issues Did the TJ err in failure to request a voir dire on his own motion? Should the confessions rule be expanded to include the kind of statements made in this case? Page 57 of 107 Monika Rahman Autumn 2007 Holding Reasoning Ratio No, TJ’s are required to do so only in situations where the voluntariness is very clearly in issue. No. Cory J: The rule is clear: no statements to persons in authority unless they’re proven voluntary. There are two concerns about confessions—voluntariness and the status of the receiver. A statement is voluntary when made without “fear of prejudice or hope of advantage” (Ibrahim). It must also be the product of an operating mind (Ward). Generally, ‘person in authority’ means anyone engaged in the “arrest, detention, examination or prosecution of the accused.” (A.B.). Historically, the insistence on voluntariness was rooted in concerns of reliability and in concerns for fundamental principles of fairness and the administration of justice (i.e. no coercion). Non-voluntary statements are excluded as unreliable, without even looking into their truth, which is in itself a check on state power. The rule on fairness is based on a principle against self-incrimination. The person in authority requirement is clearly an integral part of the confessions rule, and the emphasis on voluntariness avoids unreliable evidence and deters coercion. “It is the nature of the authority exercised by the state that might prompt an involuntary statement.” The burden would be too high if the crown had to establish voluntariness for every statement against interest. Eliminating the person in authority element would also fuck up the evidentiary value of wiretapping and undercover work. Any changes to the persons in authority requirement can only come from the legislature, as there will be too broad of practical implications for a jurisprudential change. The legislature should study the matter a.s.a.p. Clearly, if a statement is elicited by a non-authority with threats, the jury should be instructed as to the dangers of relying on it. The resort to violence after the statement is made, however, has not bearing its voluntariness. ‘Person in authority’ is not a closed category, and needs to be decided on the facts of each case, based on the subjective approach. That approach must be qualified: the accused belief that s/he is speaking to a person in authority must be objectively reasonable. Only cops and guards are automatically persons in authority. Doctors, parents, teachers or employers, etc. may fit the bill depending on the facts and the beliefs of the accused. The accused has the evidentiary burden to raise the issue of whether the receiver is a person in authority, and then the crown must prove beyond a reasonable doubt either non-authority or voluntariness. The judge has to hold a voir dire on her own motion only where the evidence makes the need for one clear. Here, there was no need for the judge to call a voir dire, as requiring here would mean requiring it for every single statement against interest. The person in authority requirement for confessions must be retained, but the category is not closed. Confessions are governed by concerns for reliability and fairness. A Note ON R v. Wells W was accused of sexually assaulting 3 kids. After consulting with the RCMP, the two dads set out to obtain an admission by tricking the accused. They then engaged in threats and physical coercion, at which point the accused confessed to them. Cory J held that the TJ should have held a voir dire to determine whether the knife wielding father was a person in authority, this being one of the rare cases mentioned in Hodgson. D. STATEMENTS TO PERSONS IN AUTHORITY: VOLUNTARINESS a) Voir Dire Page 58 of 107 Monika Rahman Autumn 2007 When the crown offers evidence of statements to persons in authority, they must establish voluntariness beyond a reasonable doubt in order to uses the evidence for any purpose, regardless of whether the statement is incriminating or exculpatory. If voluntariness is not conceded, there must be a voir dire. The accused will often be a witness in the voir dire, but the evidence from the voir dire cannot be brought into the main trial without the consent of both parties. The issue is voluntariness, not the truth of the statement, but the accused may nevertheless be asked if the statement was true. b) Fear of Prejudice or Hope of Advantage Ibrahim v. The King, [1914] AC 599 (PC) (CBp.570) Jurisdiction Facts I was accused of murdering one of his superior officers. He allegedly admitted doing it to another superior officer. He was convicted, and appeals on the ground that the evidence of his admissible should not have been admitted. Issues Holding Reasoning Ratio Was the statement admissible? Yes Sumner J: “[N]o statement by an accused is admissible in evidence against him unless it is shewn by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority.” Here, there is no evidence of other fear of prejudice or hope of advantage. All of the other factors go merely to weight. Among statements made to persons in authority, only voluntary statements are admissible. Voluntariness is established by the lack of fear of prejudice or hope of advantage. c) Operating Mind Ward v. The Queen, [1979] 2 SCR 30 (CBp.573) Jurisdiction Facts W made some statements while in the back of a cruiser, soon after regaining consciousness after an accident. The TJ refused to admit the statements, saying that the statement was involuntary because the accused was not fully conscious. The CA overturned, holding that the TJ applied the wrong test and was wrongly assessing credibility. They held that all that matters is whether the person knew what they were saying. Issues Holding Reasoning Ratio Did the TJ apply the wrong test? No Spence J: Even if there is no evidence of hope or fear, there should be a further investigation of whether the statements represent the operating mind of the accused. Here, the TJ assessed the mental and physical condition of the accused, to determine both the possibility of hope or fear and to determine whether his words were the utterance of an operating mind. He had a reasonable doubt on both issues, and therefore properly excluded the evidence. In addition to not arising from fear or hope of advantage, an incriminating statement made to persons in authority must be the result of an operating mind. Page 59 of 107 Monika Rahman Autumn 2007 Note on R v. Whittle, [1994] 2 SCR 914 d) Oppression R v. Oickle, [2000] 2 SCR 3 (CBp.580) Jurisdiction Facts Oickle was suspected in a series of arsons, some of which involved his family and fiancée. He was asked to come in for a polygraph, subjected to a pre-test interview, and then asked about the pre-test statements during the polygraph (around 3:00 pm). Upon being informed that he failed the polygraph, and that it was highly accurate, he eventually confessed to one of the fires and made a written statement. Then, he was driven to the station, during which time he was distraught and crying. He was placed in an interview room, and even after saying he was tired and wanted to go to bed, the questioning continued. At 11:00, he confessed to all the fires except one, and then a written statement was taken. He was taken to a cell to sleep at 2:45, and at 6:00, upon seeing him awake, they asked if he would do a re-enactment, to which he agreed. All formalities were complied with. The TJ admitted the statements, but the CA excluded them. (He was a firefighter). Issues Are the statements admissible? Holding Yes Reasoning Iacobucci (+5): In defining the confessions rule, it is impt to remember its twin goals: protecting rights of the accused w/o unduly limiting society’s need to investigate and solve crimes. The confessions rules needs to be clarified because of the diversity of treatment by lower courts and because of the seriousness of the problem of false confessions. People do confess falsely, though very rarely in situations where the police conduct is proper. There are five kinds of false confessions: voluntary, stress-compliant, coercedcompliant (threats and promises), non-coerced persuaded (confusion-induced), and coerced-persuaded (like non-coerced persuaded but includes classic coercion). Assessments of confessions must be sensitive to the particularities of the individual in question. The biggest problems are threats and promises and the use of false evidence. The overriding concern of the contemporary rule is voluntariness, but this overlaps with reliability. The rule is thus well suited to protect false confessions. The rule is simple: “a confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness”. The doctrines of oppression and inducements are primarily concerned with reliability, but this should not overshadow the court’s consistent and proper concern with protecting the accused from the introduction of involuntary statements. The analysis must be contextual—an inducement under one set of circumstances might be serious, though it would be trivial in another. This is a question of fact, so there must be a “palpable and overriding error” in the TJ’s assessment to warrant interference. In this case, the police (a) did not minimize the seriousness of the crime, and did not offer him a “package deal” after he confessed to the first. (b) They did suggest psychiatric help, but did not make it conditional on a confession. (c) The statements about “it would be better” to confess were not veiled threats (d) There were no threats against the fiancée, they simply said that would have to question her, but as an alibi witness, not a suspect. And, when he confessed, he believed they had already questioned her. (e) There was no abuse of trust. It’s OK to play good cop. Otherwise, courts would send the perverse signal that cops have to play the really bad cop all the time. (f) As for the atmosphere of oppression, “the investigation of crime and the detection of criminals is not a game to be governed by the Marquess of Queensbury rules.” (Lamer). They offered him food and water, never deprived him of sleep, did not fabricate evidence, and provided all necessary warnings. Though they did exaggerate the accuracy of the polygraph test, this did not render his Page 60 of 107 Monika Rahman Autumn 2007 later statements inadmissible because it did not lead to “emotional disintegration”. Simply confronting the accused with adverse evidence is not grounds for exclusion. Rule Dissent: Arbour The interrogation contained improper inducements and the use of the polygraph put the accused “in the unfair position of having to lead prejudicial, unreliable and inadmissible evidence against himself in order to impeach the veracity of the statements obtained.” There was a calculated campaign to break him down. The application of the confessions rule must be done contextually, to ensure voluntariness and reliability. R v. Spencer, 2007 SCC 11 Jurisdiction Facts Spencer was arrested for multiple robberies and his girlfriend, Tanya Harrison, was arrested for one of them. Following his arrest, Spencer expressed concern for Harrison and asked that she be kept out of it. The police told Spencer that Harrison would be charged with possession of a handgun and other items connected with one of the robberies. Spencer offered to confess in exchange for lenient treatment for Harrison. The interviewing officer denied being able to make a deal with Spencer. Spencer also requested a visit with Harrison. Spencer confessed to some of the robberies and was allowed to visit Harrison. He then confessed to the other robberies. After a lengthy voir dire, the trial judge admitted Spencer’s statements into evidence and subsequently convicted him of 18 robberies. A majority of the Court of Appeal found that the trial judge had applied an incorrect test in admitting the statements as voluntary, and ordered a new trial with respect to 16 of the robberies. Issues Were the accused’s statements admissible? Holding Yes. Reasoning Deschamps J (Bastarache, LeBel, Charron and Rothstein JJ.): S’s statements to the police were properly admitted. At common law, statements made by an accused to a person in authority are inadmissible unless they are voluntary. Several factors are relevant to determining whether a statement is voluntary, including whether the police made any promises to or threatened the accused. A promise renders a statement involuntary only if the quid pro quo provides a strong enough inducement to raise a reasonable doubt about whether the will of the suspect was overborne. ME: Crossing line into operating mind? Accordingly, while a quid pro quo is an important factor in establishing the existence of a threat or promise, it is not by itself determinative. It is the strength of the inducement, having regard to the particular individual and his or her circumstances, that is to be considered in the overall contextual analysis into the voluntariness of the accused’s statement. [1] [11‑15] Where a trial judge considers all the relevant circumstances and properly applies the law, deference is owed to his or her determination on the voluntariness of the statement at issue. In this case, the limited reference to Paternak (1995) was only made in relation to the question of whether any lesser inducement was sufficient to render a statement involuntary. The trial judge did not err in his contextual analysis of the voluntariness of S's statements. No offer was made to treat H leniently, and the withholding of a visit with her until a partial confession was made was not a strong enough inducement to render S's statement inadmissible. S did not lose control of the interview to the point where he was not on a level playing field with the police. The trial judge expressly and repeatedly referred to the proper standard of proof and to this Court's decision in Oickle to determine the voluntariness of the accused's statements. His finding that the statements were voluntary should not have been Page 61 of 107 Monika Rahman Autumn 2007 disturbed. [17‑23] Fish (+Abella) (dissenting): The trial judge misapprehended the governing test and wrongly required that any inducement be so overbearing that S lost any meaningful, independent ability to choose to remain silent. There is no such standard for determining the voluntariness of a statement induced by promises or threats by a person in authority. The induced confessions rule presupposes that a statement given by an accused to a person in authority is the product of an operating mind. If the statement is not the product of an operating mind, it will be considered involuntary on that ground. Statements may be involuntary if they were made in response to an improper inducement that caused a fear of prejudice or a hope of advantage. The threat or promise need not be aimed directly at the suspect. An offer to obtain lenient treatment for someone closely related to the person from whom the statement is sought can render it involuntary and inadmissible. Threats or promises will be fatal if the court is left with a reasonable doubt about whether, alone or in combination with other factors, they induced a statement. [24] [27‑31] [35] [37] The most important consideration is to look for a quid pro quo. In this case, the Court of Appeal gave appropriate weight to this consideration. The trial judge did not and thereby committed an error of law. The evidence discloses an implicit but unmistakable threat accompanied by an implicit but unmistakable promise that rendered inadmissible S’s inculpatory statements to the police. The interrogating officer threatened to bring charges against H and referred to evidence implicating her in the robberies. He also indicated to S that he would recommend to the Crown that H not be charged if S confessed. There is a real likelihood that S was induced to confess by a compound quid pro quo because the intensity of his feelings for H provided a powerful motivation to say whatever was needed, true or false, to get H lenient treatment. S’s relationship with H was strong enough to induce a false confession and his statements are therefore inadmissible. [38‑42] [46‑48] Comments 6. ILLEGALLY-OBTAINED EVIDENCE A. THE RIGHT TO SILENCE UNDER SECTION 7 November 8, 2007 – class notes missing R v. Hebert, [1990] 2 SCR 151 (CBp.606) Jurisdiction Facts After receiving info from informants that H had committed a robbery, the cops arrested him. He was permitted to consult counsel, who told him to remain silent, and he then told the police that he did not wish to make a statement. The police then sent in an undercover, who elicited incriminating statements from H in his cell. Issues H’s right to silence violated? Should the statements be excluded? Holding Yes Reasoning McLachlin J (+6): The crown’s position is that the s. 7 right to silence is no broader than the confessions rule, so the court should follow Rothman. The defence position is that the s. 7 right is broader than the CML rule as it stood in 1982. The principles of FJ are the basic tenets of the legal system. The right to silence is a broad right, encompassing more specific rights. The s. 7 principles of FJ may be broader than the CML rules, because it must, by definition, be a general right. Page 62 of 107 Monika Rahman Autumn 2007 The right to silence subsumes the common law concepts of the confessions rule and the privilege against self-incrimination. Both of these have the same conceptual core— the right to choose whether to make statements to the authorities or to remain silent. They are both also concerned with the integrity of the judicial process. This suggests that the scope of the right to silence under the Charter is broader than the CML confessions rule. All of s.7-14 rights must be read as forming a cohesive whole. When the right to silence is placed in the context of the right to counsel, the right against self-incrimination, and s. 13, it’s clear that the right to silence must be broad enough to accord the detained person free choice on the matter of whether to speak to authorities. When understood in relation to the Charter position on improperly-obtained evidence, it’s clear that evidence obtained by trick has no place in a system where the rights of the individual and the fairness and integrity of the system are paramount. Moreover, the purpose of the right is to balance the rights of the individual with the needs of the state to punish criminals, to preserve individual rights and maintain the integrity and repute of the justice system. The right must extend to exclude tricks that effectively deprive the subject of her critical choice. To allow tricks would be to allow cops to do indirectly what the Charter forbids directly— subverting the choice to remain silent. The right to choose is to be defined objectively, not subjectively. Such a change is far from radical—pre-Charter we had the operating mind principle, and court were expanding the Ibrahim (threats or promise) version of the confessions rule. This approach also allows courts to correct abuses of state power. The waiver approach is rejected. Here, his right to silence was clearly breached. s. 1 DNA because the limit, the pigs’ activity, is not “prescribed by law” The evidence should be excluded under s. 24(2) Wilson The scope of the right to silence should not be determined with reference to the eventual admissibility of the evidence thus obtained. The interest should not be qualified by balancing against the interest in the administration of justice. Comments Sopinka Any waiver of the right to silence must pass an “awareness of consequences” test. Here, there could have been no waiver. The evidence should be excluded under s. 24(2). Evidence obtained in breach of the right to silence, which includes evidence obtained in manner that effectively denies the suspect the capacity to choose whether or not to make a statement to the authorities, can be excluded under s. 24(2) if admission would bring the administration of justice into disrepute. R. v. Singh, 2007 SCC 48 (online) Facts The accused was arrested for second degree murder in respect of the shooting death of an innocent bystander who was killed by a stray bullet while standing just inside the doorway of a pub. No forensic evidence or weapon linked Singh to the shooting, so identification became the central issue. The accused was advised of his right to counsel under s. 10(b) of the Charter and privately consulted with counsel. During the course of two subsequent interviews with police, the accused stated on numerous occasions that he did not want to talk about the incident (18 times). The interviewing officer persisted in trying to get him to make a statement. While the accused never confessed to the crime, he made incriminating statements by identifying himself in pictures taken from the video surveillance inside the pub in question and in another pub. Taken together with other evidence, later at trial became Page 63 of 107 Monika Rahman Autumn 2007 probative of the issue of identification. Issues Holding Reasoning On the voir dire to determine the admissibility of the statements made by the accused, the trial judge held, after reviewing all of the circumstances surrounding the interrogation and the making of the incriminating admission, that the admission came freely and did not result from the police systematically breaking down his operating mind or undermining his right to silence. The probative value of the statements was held to outweigh their prejudicial effect and the trial judge thus ruled them admissible. The accused was subsequently convicted by a jury. The Court of Appeal upheld the trial judge’s ruling and affirmed the conviction. Both in the Court of Appeal and in this Court the accused did not contest the trial judge’s findings of fact nor his conclusion that the statements were voluntary; his appeal solely concerns the s. 7 Charter right to silence. 1) Were the impugned statements obtained in violation of the accused’s s. 7 right to silence? 2) How does the CML confessions rule intersect with s.7 right to silence? 1) No. (5-4) 2) 2) In the context of a police interrogation, the two tests are functionally equivalent. Charron (+McLachlin, Bastarache, Deschamps, and Rothstein): In the context of a police interrogation of a person in detention, where the detainee knows he or she is speaking to a person in authority, the tests under the confessions rule and s.7 of the Charter are functionally equivalent. It follows that, where a statement has survived a thorough inquiry into voluntariness, the accused’s Charter application alleging that the statement was obtained in violation of the pre-trial right to silence under s. 7 cannot succeed. Besides the confessions rule puts the burden of proof on the Crown to prove voluntariness BRD, and involuntariness would exclude the evidence automatically (rather than having to go through a 24(2) analysis) affording greater protection to the accused. Although historically the confessions rule was more concerned with the reliability of confessions than the protection against self-incrimination, this no longer holds true in the post-Charter era. Both the confessions rule and the constitutional right to silence are manifestations of the principle against self-incrimination. However, the residual protection afforded to the right to silence under s. 7 of the Charter will be of added value to the accused in other contexts. The Confessions Rule (CR) The parameters of the CR are tailored to counter the dangers created by improper interrogation techniques that commonly produce false confessions (Oickle). Furthermore a confession is powerful evidence that could ground conviction, and since the innocence must not be convicted, the CR requires proof BRD that the confession is voluntary (as a proxy of reliability). Post-Charter, a broader concept of the CR forms part of our fundamental notion of procedural fairness and also reflects that the rationale for the CR “goes beyond the exclusion of unreliable statements and extends to considerations of whether reception of the statement will be unfair or tend to bring the administration of justice into disrepute.” (Hebert) This modern expansive approach includes a detained person’s right to make a meaningful choice whether or not to speak to authorities. Voluntariness therefore requires that the court scrutinize whether the accused was denied his or her right to silence. A finding of voluntariness will therefore be determinative of the s. 7 issue. Additional Contexts Where Right to Silence will have Value-Added if the accused is cross-examined about why he did not give a statement to the police section 7 goes beyond the voluntariness rule in cases of “detained statements,” excluding many that would otherwise meet the voluntariness rule (e.g. Hebert scenario) Page 64 of 107 Monika Rahman Autumn 2007 Scope of Section 7 Right to Silence Court will not impose requirement to inform detainee of right to silence and, absent a signed waiver, refrain from pressing the detainee. However right to silence will not be protected the same way as 10(b) since the right to counsel is not within the accused’s control, whereas the right to silence is (me: yeah right) There must be a proper balance twn the individual’s right to choose whether to speak to the authorities and society’s interest in uncovering the truth in crime investigations Note that in Hebert, it was stated that: 1. “Police persuasion, short of denying the suspect the right to choose or depriving him of an operating mind, does not breach the right to silence.” However Charron adds that this does not allow the police to ignore the detainee’s wish to remain silent and police persistence and repeated assertions by the accused police may throw into question the voluntariness of any subsequent statement. However, in this case the TJ found that Mr. Singh’s right to choose to talk or to remain silent was not undermined or overborne by Sergeant Attew’s admitted dedication to his agenda. The accused has not pointed to an overriding and palpable error and so the TJ’s finding of voluntariness is upheld. 2. The right only applies after detention undercover operations prior to detention do not raise the same issues as the individual is not within control of the state. Comments Fish (+ Binnie, LeBel, Abella) dissenting: The police interrogator understood that the accused did not want to speak but disregarded his right to silence. He also subtly but unmistakably urged the accused to forsake his counsel’s advice. The accused was thus deprived not only of his right to silence, but also, collaterally, of the intended benefit of his right to counsel. Where continued resistance has been made to appear futile to one person under the dominance or control of another, as it was in this case, ultimate submission proves neither true consent nor valid waiver. Furthermore, nothing in this Court’s jurisprudence permits the police to press detainees to waive the Charter rights they have firmly and unequivocally asserted, or to deliberately frustrate their effective exercise A confession may be “voluntary” under the common law rule and yet be obtained by state action that infringes s. 7 of the Charter. And s. 7 will be infringed where, as in this case, a police interrogator has undermined a detainee’s freedom to choose whether to make a statement. Moral involuntariness is different from the situation where you slip and accidentally hit someone. B. SEARCH AND SEIZURE November 13, 2007 What does section 8 (“Everyone has the right to be secured against unreasonable search and seizure.”) mean? “Everyone” – includes foreign nationals; also, protects people, not places Deals with situations where the state invades places where the persons have reasonable expectation of privacy. Hunter v. Southam provides guidance in this respect What makes a search “reasonable”? Maybe it’s how it’s carried out. The context of the search. o Will it be considered reasonable b/c it furthers a legitimate gov’t objective? o The root: every person’s property is sacred. There’s a comparable in the U.S. “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizure. Fourth Amendment: People’s right, not places. Page 65 of 107 Monika Rahman Autumn 2007 When do we have a reasonable expectation of privacy? Does the expectation of privacy diminish when we’ve committed a crime? o Home considered to be a bit different than, e.g., workplace, because of the roots of this right in the common law’s traditional reverence for property Simpson – Doherty J at Ontario CA borrowed language of “probable cause” (? Or was it reasonable grounds?) from U.S. jurisprudence: If you have enough information to lead a reasonable person to believe that something illegal is going on somewhere o Ratio of Simpson: Where, as here, the person is detained in the course of efforts to determine whether the person is involved in criminal activity being investigated by the police, the detention can only be justified if the detaining officer has some articulable cause for the detention: a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is implicated in the activity under investigation Note: a police officer that sees something illegal in “plain view” is always allowed to act Something that also comes up is whether police can do parameter searches of a person’s residence? Edwards: have to look at the totality of the circumstances. Court found Edwards was a specially privileged guest. He had no ability to regulate access – do you have power to say who comes in and who comes out (p. 683) Hunter et al. V. Southam Inc., [1984] 2 SCR 145 Jurisdiction Facts Hunter, Director of Research and Investigation of the Combines Investigation Act, in the course of an investigation under the Combines Investigation Act, authorized Combines Investigation Officers to exercise his authority under s.10 of the Act to enter and examine documents and other items at the Edmonton Journal (a division of the Southam corporation). The Restrictive Trade Practises Commission (RTPC) authorized this exercise of the Director’s powers. One day later the Charter was incorporated into the Constitution. Officers commenced their search at the Edmonton Journal a few days later. Southam asked for an injunction which was refused by the trial level court of Alberta. Southam then appealed this decision to the Court of Appeal. The Court of Appeal held that as an interim measure that all documents that were seized should be sealed until the matter is resolved. The Alberta Court of Appeal held that s.10(3) and by implication, s.10(1) of the Combines Investigation Act were inconsistent with s.8 of the Charter and therefore of no force or effect. Hunter then appealed to the SCC. Issues Holding Reasoning Is s.10(3) and, by implication, s.10(1) of the Combines Investigation Act inconsistent with s.8 of the Charter by reason of authorizing unreasonable searches and seizures? Yes Dickson CJC: The authorization has a breathtaking sweep. It is tantamount to a licence to roam at large on the premises of Southam Inc. at the stated address “and elsewhere in Canada.” Summary Section 8 of the Charter guarantees a broad and general right to be secure from unreasonable searches and seizures which extends at least so far as to protect the right Page 66 of 107 Monika Rahman Autumn 2007 of privacy from unjustified intrusion Its purpose requires that unjustified searches be prevented Accordingly, prior authorization, where feasible, is a precondition for a valid search and seizure It follows that warrantless searches are prima facie unreasonable under s.8 The party seeking to justify a warrantless search bears the onus of rebutting the presumption of unreasonableness Section 10(3) of the Combines Investigation Act provides for prior authorization of searches by a member of the RTPC The procedures established by s.10(3), however, are unconstitutionally defective in two respects: 1. The person authorizing the search must be able to act neutrally and impartially. This means that while the person considering the prior authorization need not be a judge, he must nevertheless, at a minimum, be capable of acting judicially Inter alia, he must not be someone charged with investigative or prosecutorial functions under the relevant statutory scheme The Director under the Act exercises administrative powers analogous to those of the Minister under s.231(4) of the Income Tax Act – he is guided by considerations of expediency and public policy The significant investigatory functions bestowed upon the Restrictive Trade Practices Commission and its members by the Act vitiated a member's ability to act in a judicial capacity in authorizing a s. 10(3) search and seizure and do not accord with the neutrality and detachment necessary to balance the interests involved Has to be a judicial officer 2. Reasonable and probable grounds established on oath to believe that an offence has been committed and there is evidence at the place of the search, constitutes the minimum standard consistent with s. 8 of the Charter for authorizing searches and seizures. The location of the constitutional balance between a justifiable expectation of privacy and the legitimate needs of the state cannot depend on the subjective appreciation of individual adjudicators – some objective standard must be established Subsections 10(1) and 10(3) of the Act do not embody such a requirement. The Court will not attempt to save the Act by reading into it the appropriate standards for issuing a warrant It should not fall to the courts to fill in the details necessary to render legislative lacunae constitutional The Charter as a purposive document The Charter is a purposive document Its purpose is to guarantee and to protect, within the limits of reason, the enjoyment of the rights and freedoms it enshrines It is intended to constrain governmental action inconsistent with those rights and freedoms It is NOT in itself an authorization for governmental action In this case, guaranteeing the right to be secure from unreasonable searches and seizures, s.8 acts as a limitation on whatever powers of search and seizure the federal or provincial governments already and otherwise possess It does not in itself confer any powers, even of “reasonable” search and seizure, on these governments Since the proper approach to the interpretation of the Charter is a purposive one, before it is possible to assess the reasonableness or unreasonableness of the impact of a search or of a statute authorizing a search, it is first necessary to specify the purpose Page 67 of 107 Monika Rahman Autumn 2007 Rule underlying s.8: in other words, to delineate the nature of the interests it is meant to protect s.8 protects an individual’s reasonable expectation to privacy in a free and democratic society The right guaranteed by s.8 indicates that an assessment must be made as to whether in a particular situation the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement 1. Sub ss. 10(1) and 10(3) of the Combines Investigation Act are inconsistent with the Charter and of no force or effect because they fail to specify an appropriate standard for the issuance of warrants and designate an improper arbiter to issue them 2. Prior authorization, where feasible, is a precondition for a valid search and seizure 3. Warrantless searches are prima facie unreasonable under s. 8 of the Charter. Where a search is carried out without prior authorization in the form of a warrant, the burden is on the party seeking to justify the warrantless search to prove that it was not unreasonable Hunter: First case about section 8 under the Charter Do we determine ex post facto that there were reasonable grounds for a search and seizure? For a search to be reasonable, there are three conditions: o Police have acted according to the law o That the law be reasonable and valid o That the search be constituted in the proper manner Court says that subsequent validation will never provide sufficient cause. There has to be prior judicial authorization, and reasonable grounds would have to be compelling. In this case, b/c the director had both investigative functions and judicial functions, really required a more neutral, independent arbiter to determine whether the warrant was justified. Comments: This case really highlights the difference between unreasonable and illegal. We’re not protected from reasonable search and seizure. So, in summary: 1. The purpose behind section 8 is to protect the privacy of individuals from unjustified state intrusion 2. This interest in privacy is, however, limited to a “reasonable expectation of privacy” 3. Wherever feasible, prior authorization must be obtained in order for a search to be reasonable 4. Prior authorization must be given by someone who is neutral and impartial and who is capable of acting judicially 5. The person granting authorization must be satisfied by objective evidence on oath that there are reasonable and probable grounds for believing that an offence has been committed and that a search of the place for which the warrant is sought will find evidence related to that offence 6. If the defence establishes that a search was warrantless, the Crown must establish that it was reasonable 7. A search is reasonable if it is authorized by law, the law itself is reasonable, and if the manner of the search is reasonable The Level of the Expectation of Privacy The SCC has held that what is a reasonable expectation of privacy varies with context Page 68 of 107 Monika Rahman Autumn 2007 Tessling lays out a hierarchy of expectations of privacy: Intrusions to the bodily integrity of a person confront the highest expectation of privacy, those to homes and areas in proximity to a home are next in line, and then the level of expected privacy decreases when offices or businesses are involved, more still in the case of automobiles, and less in schools and prisons. R v. Tessling, [2004] 3 SCR 432 (CBp.624) Jurisdiction Facts The RCMP used an airplane equipped with a Forward Looking Infra-Red (“FLIR”) camera to overfly properties owned by the accused. FLIR technology records images of thermal energy or heat radiating from a building. It cannot, at this stage of its development, determine the nature of the source of heat within the building or “see” through the external surfaces of a building. The RCMP were able to obtain a search warrant for the accused’s home based on the results of the FLIR image coupled with information supplied by two informants. In the house, the RCMP found a large quantity of marijuana and several guns. The accused was charged with a variety of drug and weapons offences. At trial, he unsuccessfully argued that the FLIR overflight was a violation of his right to be free from unreasonable search and seizure guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms, and was convicted. The Court of Appeal set aside the convictions. The court found that the use of FLIR technology constituted a search of the accused’s home and, since it was done without a warrant, violated his s. 8 right. The court concluded that the evidence ought to have been excluded and the accused was acquitted on all charges. Issues Holding Reasoning Did the use of FLIR technology violate the accused’s constitutional right to be free from unreasonable search and seizure per s.8 of the Charter? No. Section 8 of the Charter creates a right to privacy Safety, security and the suppression of crime are legitimate countervailing concerns. Thus s. 8 of the Charter accepts the validity of reasonable searches and seizures. (this goes against Hunter case which said that s.8 does not confer powers of search onto the state!) Whereas the Court of Appeal treated the FLIR imaging as equivalent to a search of the home, and thus “worthy of the state’s highest respect”, it is more accurately characterized as an external surveillance of the home to obtain information that may or may not be capable of giving rise to an inference about what was actually going on inside, depending on what other information is available to the police. (in this case, the search was authorized because the reasonable grounds were inferred from the FLIR information coupled with information obtained from two informants) FLIR is not equivalent to entry It is only “[i]f the police activity invades a reasonable expectation of privacy, [that] the activity is a search”; Because of the emphasis on the informational aspect, the reasonableness line must be determined by focusing on the nature and quality of the information FLIR can actually deliver and then evaluating its impact on an accused’s reasonable privacy interest. The fact that it was his home that was imaged using FLIR is an important factor, but it is not controlling and must be looked at in context and in particular, in this case, in relation to the nature and quality of the information made accessible to the police by FLIR technology. Everything shown in the FLIR photograph exists on the external surfaces of the building and, in that sense, FLIR records only information exposed to the public. Although the information about the distribution of the heat was not visible to the naked eye, the FLIR heat profile did not expose any intimate details of the accused’s lifestyle Page 69 of 107 Monika Rahman Autumn 2007 Rule or part of his core biographical data. It only showed that some of the activities in the house generated heat. Patterns of heat distribution on the external surfaces of a house are not a type of information in which, objectively speaking, the accused had a reasonable expectation of privacy. FLIR technology at this stage of its development is both non-intrusive in its operations and mundane in the data it is capable of producing. The taking of a FLIR image therefore did not violate the respondent’s reasonable expectation of privacy within the scope of s. 8 of the Charter. One must consider the “totality of the circumstances”, in determining whether there has been an intrusion on the reasonable sphere of privacy of the accused. In determining whether a particular investigative technique offends Charter s. 8, a court should evaluate the technology involved according to its current capability. Future evolution of the technology should be dealt with step-by-step and as the need arises. Current FLIR technology is at once non-intrusive in its operations and mundane in the data it is capable of producing. It follows that taking a FLIR image does not offend a person's reasonable expectation of privacy under Charter s. 8. Tessling: Police used FLIR technology flying over the accused’s house and detected heat, and on this basis inferred the existence of a marijuana-growing operation. Did the use of this technology constitute a search of his home that required a warrant, thus violating s.8? Use of technology must be conducted reasonably, legally, etc. Court decided to let the evidence in Interesting example of balancing rights of individual with societal interests R v. Collins, [1987] 1 SCR 265 (CBp.637) Jurisdiction Facts After arresting her husband at a bar for possession of heroin, officer quickly walked to Mrs. Collins, grabbed her throat to stop her from swallowing any drugs, threw her to the floor, and seized drugs from her hand. At trial, officer admitted no prior suspicion of accused, only that there were drugs in the bar. Found to be violation of s.8 of Charter, but TJ was not convinced that evidence should be excluded as a remedy under s. 24(2) of Charter Issues 1) Does the manner in which evidence was collected require exclusion under s.24(2)? 2) More specifically, does the admission of this evidence bring administration of justice into disrepute (AJD)? Holding Conduct of police was a serious charter breach. Evidence cannot be used Reasoning Lamer J 3 step test for s.24(2) iterated 1) applicant’s rights or freedoms have been infringed or denied; 2) that the evidence was obtained in a manner that infringed or denied Charter rights; 3) that having regard to all circumstances, the admission of the evidence would bring the AJD (evaluation based on the views of community at large – in the eyes of the reasonable man) Two issues in this case: Was the search unreasonable? If so, having regard to all circumstances, would the admission of the evidence bring AJD? Usually claimaint bears burden of proving Charter violation. Here warrantless search so burden shifts to Crown to show search was reasonable. It was NOT. 24(2) Page 70 of 107 Monika Rahman Autumn 2007 Comments The issue is whether the admin of justice will be brought into FURTHER disrepute by admission of evidence. Disrepute requires judge to refer to what he conceives to be the views of the community at large using reasonable man test Must consider all the circumstances. Certain factors go to fairness of trial, others to seriousness of breach. Factors that affect the fairness of the trial Nature of evidence obtained (real evidence will most likely be admitted but conscriptive evidence will not: reasons – protection against self-incrim) not the manner in which right was violated. Seriousness of the violation 1. In good faith? Inadvertent or merely technical? Deliberate, wilful, flagrant? 2. Motivated by urgency or necessity? Will exclusion of evidence bring admin of justice into disrepute? Note that this section of the charter is not a remedy for police misconduct – rather, will administration of justice be brought into further disrepute by admitting evidence? Consider long-term consequences in admin of justice. Threshold lower than dirty tricks threshold in Rothman which does not violate charter. Here, use the French text which makes “would” become “could bring the admin of justice into….” Availability of other remedies is irrelevant. Case at bar Here it is real evidence and there is nothing that would render the trial unfair. Possible that exclusion would bring admin of justice into disrepute as would allow person to evade conviction. Seriousness of Breach is the tipping point – AJ brought into more disrepute if court doesn’t dissociate itself from conduct of police where on mere suspicions they tackle a person and seize them by the throat. The biggest problem w/ Collins is that it fails to catch derivative evidence in its exclusion. Usually derivative evidence is real evidence, and therefore has an independent existence, so it will not impugn the fairness of the trial. This is reversed, or fixed in Stillman. Collins primarily caught confessions, and statements made w/o a lawyer present. Compare to Stillman, below Collins: Ruby Collins charged with possession of heroin for the purpose of trafficking. Collins was seated in a pub when she was suddenly seized by the throat and pulled down to the floor by a man who said to her “police officer”. The officer, then noticing that she had her hand clenched around an object, instructed her to let go of it, and it turned out to be a green balloon containing heroin. The throat-hold is necessary to prevent drug traffickers from swallowing the drugs in a balloon. Police acting under Narcotics Control Act have very, very broad powers of search Collins is a lesson in hearsay. The only way the Crown could show the search was reasonable was to show that the officer had a belief and that belief was held on reasonable grounds. The officer was never able to show the reasonable grounds. The suspicion of the officer was based on something that never able to get into court b/c counsel objected on hearsay which the trial judge allowed. This wasn’t hearsay b/c the “advice” wasn’t being offered for the truth of its contents but to explain why the police acted the way it did. “A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable.” (p641) They send it back to trial b/c they don’t have enough information to decide the case. Example: Small native comm’ty in Canada, authorities set up a huge operation outside homes and used highly sophisticated military technology to monitor private homes for 24 hours a day for many weeks. Page 71 of 107 Monika Rahman Autumn 2007 November 15, 2007 Cases we’re responsible for are the ones we cover in class. R v. Mann, [2004] 3 SCR 59 (CBp.652) Jurisdiction Facts As two police officers approached the scene of a reported break and enter, they observed M, who matched the description of the suspect, walking casually along the sidewalk. They stopped him. M identified himself and complied with a pat-down search of his person for concealed weapons. During the search, one officer felt a soft object in M’s pocket. He reached into the pocket and found a small plastic bag containing marijuana. He also found a number of small plastic baggies in another pocket. M was arrested and charged with possession of marijuana for the purpose of trafficking. The trial judge found that the search of M’s pocket contravened s. 8 of the Canadian Charter of Rights and Freedoms. He held that the police officer was justified in his search of M for security reasons, but that there was no basis to infer that it was reasonable to look inside M’s pocket for security reasons. The evidence was excluded under s. 24(2) of the Charter, as its admission would interfere with the fairness of the trial, and the accused was acquitted. The Court of Appeal set aside the acquittal and ordered a new trial, finding that the detention and the pat-down search were authorized by law and were reasonable in the circumstances. Issues 1. Is there a common law police power to detain individuals for investigative purposes? 2. Is there a concomitant common law power of search incident to such investigative detentions? 3. Was any existing detention and/or search power properly exercised in this case? 4. If the appellant’s rights were violated, ought the evidence be excluded under s. 24(2) of the Canadian Charter of Rights and Freedoms? Holding Reasoning Yes. Yes. No. Yes. (dissent on #4) Power of Investigative Detention? Police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary. These circumstances include the extent to which the interference with individual liberty is necessary to the performance of the officer’s duty, to the liberty interfered with, and to the nature and extent of the interference. A number of cases have recognized the power of detention. Waterfield provided a twopronged test: (1) Is the police conduct within the scope of their duty? (2) Was the conduct a justifiable use of the powers associated with the duty? In the second stage, rights and interests must be balanced, which includes considering that nature of the liberty interfered with and the importance of the public purpose served. In Simpson, the ON CA said that detention can be justifiable only if there is articulable cause, which has both a subjective and an objective element—“a constellation of objectively discernable facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated”. Understanding that this is a lower bar than ‘reasonable and probably grounds’, it’s Page 72 of 107 Monika Rahman Autumn 2007 better to use “reasonable grounds to detain”. -The detention must be reasonably necessary on an objective view of the totality of the circumstances, “most notably the extent to which the interference with individual liberty is necessary to perform the officer’s duty, the liberty interfered with, and the nature and extent of that interference, in order to meet the second prong of the Waterfield test.” It cannot be exercised on the basis of a hunch or become a de facto arrest. There is no general power of detention for investigative purposes, but police may detain an individual if: i. there are reasonable grounds to suspect in all the circumstances that the person is connected to a particular crime; and ii. the detention is reasonably necessary on an objective view of the circumstances. The circumstances include the extent to which the interference with individual liberty is necessary to the performance of the officer’s duty, to the liberty interfered with, and to the nature and extent of the interference. At a minimum, individuals who are detained for investigative purposes must be advised in clear and simple language, of the reasons for their detention. Investigative detentions carried out in accordance with this common law power will not infringe the detainee’s s.9 Charter rights. Investigative detentions do not impose an obligation on the detainee to answer police questions. Where a police officer has reasonable grounds to believe that his safety or the safety of others is at risk, the officer may undertake a protective pat-down search of the detainee. The investigative detention and search power is different and must be distinguished from the authority to arrest and the incidental power of search on arrest. Search Incidental to Investigative Detention? In addition, where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual. Both the detention and the patdown search must be conducted in a reasonable manner. In this connection, the investigative detention should be brief in duration and does not impose an obligation on the detained individual to answer questions posed by the police. The investigative detention and protective search power are to be distinguished from an arrest and the incidental power to search on arrest, which do not arise in this case Rule Application to the Facts In this case, the seizure of the marijuana contravened s. 8 of the Charter. The officers had reasonable grounds to detain M and to conduct a protective search, but no reasonable basis for reaching into M’s pocket. This more intrusive part of the search was an unreasonable violation of M’s reasonable expectation of privacy in respect of the contents of his pockets. Moreover, the Crown has not shown on the balance of probabilities that the search was carried out in a reasonable manner. There is a power of investigative detention and search incidental thereto at common law, and the justificatory threshold for the detention is lower than that of arrest, and the search powers are more restricted. (Vague as all git-out). Mann (CBp.652): Page 73 of 107 Monika Rahman Autumn 2007 Mann was detained for investigation but he wasn’t arrested until after they found the marijuana in his pocket – did the police have the right to do what they did? o Perhaps only for the questioning and frisking, but not for going into the pocket? o There’s a difference between consent and “comply with” – the Court said that he “complied with” the pat-down. o In the course of an investigation, police do have the right to make sure there’s nothing dangerous on your person. What makes the pocket different? o Can a judge draw on their experience of the level of violence in a particular neighbourhood in deciding if it is reasonable to conduct a search? Grenier: in a case like Mann, as long as there was evidence that that area was a little violent, it adds to the determination of whether the investigation was reasonable. However there’s still a danger that this supports the idea one can search for who you are and not what you’ve done. o We’re trying to balance the interest of the state vs. the rights of the individual... what standard (reasonable/probable/suspicion) should be used to determine whether a search of the pocket was reasonable? The threshold is higher because it’s a search of the person. Simpson – articulable cause – middle standard o When the search can be reasonably necessary 5 considerations: Duty being performed Extent to which the interference w/ the individual liberty is necessary in the course of the police officer’s duty Importance of performance of duty to public good Nature of liberty being interfered with Importance of the liberty being interfered with C. RIGHT TO COUNSEL Charter Section 10 – 10. Everyone has the right on arrest or detention...(b) to retain and instruct counsel without delay and to be informed of that right... If a person confesses and is not advised of right to call a lawyer, but everything else done right, until Charter, this will not be good enough to render the evidence inadmissible if this is the only factor being considered On being detained by police: know why you’ve been detained, inform you of your rights (including right to counsel (of choice)...); accord you a reasonable opportunity to exercise the right to call counsel, cannot question you before you have a reasonable opportunity to exercise the right Note: it’s counsel of choice Right is to retain and obtain counsel without delay – not limited to one phone call as long as you’re practicing the right reasonably and diligently Bridges was the first person says that the policeman has the obligation to – because you have an immediate need to talk to a lawyer – might self-incriminate. Police try to get R v. Bartle, [1994] 3 SCR 173 (CBp.661) Jurisdiction Facts The appellant was arrested for impaired driving after failing a roadside breathalyser test in the early hours of a Saturday morning. The arresting officer read the appellant his rights under s. 10(b) of the Charter from a pre-printed caution card that mentioned the availability of legal aid. The officer did not, however, refer to the fact that free and immediate preliminary legal advice was available from duty counsel, who could be reached by calling a toll-free number printed on the caution card. Shortly after the caution was read to him the Page 74 of 107 Monika Rahman Autumn 2007 appellant made an incriminating statement. After being taken to the police station, the appellant was twice asked whether he wanted to call a lawyer. Again, no mention was made of the toll-free number for free duty counsel. On both occasions the appellant declined. He later testified that he thought that he could only contact a lawyer during normal working hours, and that he had indicated to a constable that he did not know who to call at that time of night. The constable, on the other hand, testified that appellant simply replied "no" when asked if he wanted to contact a lawyer. The appellant's conviction was overturned on appeal to the Ontario Court, General Division but was restored by the Court of Appeal. At issue was whether the information component of s. 10(b) of the Charter requires that police routinely refer to the existence and availability of 24-hour duty counsel services providing free, preliminary legal advice, that can be reached by telephoning a toll-free number and, if so, whether the evidence obtained following a failure by the police to fulfil their informational duty should be excluded under s. 24(2) of the Charter. Issues Holding Reasoning Was section 10(b) violated because the police did not inform the accused of the availability of 24-hour duty counsel services providing free, preliminary advice? Yes, there is a duty to advise detainees of existing duty counsel services. Essential Information Under section 10(b), state authorities must advise a detainee of the right: i. to be informed of the right to counsel ii. to a reasonable opportunity to exercise the right; and iii. to have questioning curtailed until the reasonable opportunity has ceased Duty #1 is information Duties #2 and #3 are implementation duties triggered only where a detainee expresses the wish to exercise the right to counsel The information component of s.10(b), the right to be informed of the right to counsel, also requires that a detainee be given information about access to Legal Aid and to duty counsel It must be comprehensive in scope and be presented in timely and comprehensible manner Basic information about how to access available services which provide free, preliminary legal advice should be included in the standard s.10(b) caution Failure to provide such information is a breach of s.10(b) A breach of s.10(b) is complete, except in cases of waiver or urgency, where state authorities fail to inform a detainee properly of his or her right to counsel, and until correction of the failure Obligations on the Accused Section 10(b) rights are not absolute Unless a detainee invokes the right, and is reasonably diligent in exercising it, the correlative duty on the police to provide a reasonable opportunity and to refrain from eliciting evidence will either not arise or be suspended Waiver of the right to counsel Section 10(b) rights may be waived by a detainee The standard for waiver is high, especially where it is alleged to be implicit Waiver must be clear and unequivocal and made with full knowledge of a detainee’s s.10(b) rights An effective waiver of s.10(b) rights requires that the detainee be fully apprised of the information that the detainee has the right to receive The mere fact that a detainee indicates that he or she does not wish to hear the information conveyed by the standard s.10(b) advice does not, per se, constitute a valid Page 75 of 107 Monika Rahman Autumn 2007 waiver of the information component. The waiver is only valid where it is clear that the detainee: i. fully understands his s.10(b) rights ii. fully understands the means by which s.10(b) rights may be exercised; and adverts to those rights Comments Bartle: Was arrested and cop told him he had the right to counsel, but they never mentioned the 1800 number. They asked accused if he understood he had the right to counsel and he said yes and he refused. At trial he said he thought it was too late to call a lawyer, and he didn’t know one anyways, and he was too poor. Lamer said that there are two components: informational (informed of right to counsel) and implementational (i.e. reasonable opportunity and not do anything before person has called lawyer) Bartel addresses two problematic situations: o If the person says “NO”, have to ensure that the detained person knows what he’s saying no to. He has to understand his right. o To what extent do police officers have to give legal advice? – as reps of the state have at least the obligation to make sure person knows what’s at stake Court: When a person waives the right, the waiver must be unequivocal. The police must make reasonable effort In this case, he didn’t really waive the informational right – it wasn’t clear enough that he knew what he was waiving. In Bridges (before Bartel) – while person detained has right to be informed of the right to counsel, it specifically said that the province does not have a constitutional obligation to set up a (legal aid) system This provision applies specifically to the situation at the station. Section 11(?) – right to fair trial – may have implications for right to counsel D. EXCLUSION UNDER THE CHARTER: STANDING The test for exclusion of unconstitutionally obtained evidence is stated in s.24(2) of the Charter: 24. (2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. In this section we’ll consider: Who has standing to apply for the exclusion of evidence? What does “obtained in a manner” mean? When does the admission of unconstitutionally obtained evidence bring the administration of justice into disrepute? Page 76 of 107 Monika Rahman Autumn 2007 R. v. Edwards, [1996] 1 S.C.R. 128 (CBp.681) Jurisdiction Facts The cops stopped Edwards after leaving his girlfriend’s apartment. They saw him swallow a cellophane bag. They took him into custody for driving without a license. They then went to his girlfriend’s apartment and made a number of false statements to her: (1) Edwards told them there were drugs in her place; (2) that they would stay there until they got a warrant if she didn’t cooperate; (3) that it would be inconvenient to get a warrant; and (4) that she and the appellant would not be charged, regardless of what they found. She directed them to where the crack was hidden. That night, they went to his impounded car, without a warrant, and took his cell phone and pager and intercepted a number of calls from people ordering dope. Both were charged with trafficking, but her charges were dropped just before her trial. Edwards claims a breach of s.8 of the Charter when they entered the house. Issues Can E, under s. 24(2), exclude the evidence obtained in violation of his girlfriend's Charter rights? Holding No Reasoning Like all Charter rights, s. 8 is a personal right. It protects people and not places. The privacy rights being infringed must, generally, be those of the person who makes the challenge. The intrusion on the rights of a TP may, however, be relevant at the stage of determining the reasonableness (e.g. tapping a public phone), but it will not be determinative (Thompson). The right to challenge the legality of a search depends upon (1) whether the accused had a reasonable expectation of privacy, and if so, (2) whether the search by the police was conducted reasonably. Here, there is no need to assess reasonableness, because he had no reasonable expectation of privacy. The appellant can’t change his story now and claim that he had a proprietary interest in the drugs, as he previously denied they were his. Thus, a claim under s. 24(2) can only be made by the person whose right were infringed (Rahey). The accused must first establish an expectation of privacy before a s. 8 claim can be raised. It is only then that the reasonableness of the police conduct comes into issue. A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances. The factors to be considered may include: (i) presence at the time of the search; (ii) possession or control of the property or place searched; (iii) ownership of the property or place; (iv) historical use of the property or item; (v) the ability to regulate access; (vi) the existence of a subjective expectation of privacy; and (vii) the objective reasonableness of the expectation. If an accused person establishes a reasonable expectation of privacy, the inquiry must proceed to the second stage to determine whether the search was conducted in a reasonable manner. The accused had no privacy interest in the goods seized as he had denied that the drugs were his. He demonstrated no expectation of privacy in his girlfriend's apartment which was the only other relevant privacy interest. His girlfriend described him as "just a visitor" who stayed over occasionally. He contributed nothing to the rent or household expenses and had no authority to regulate access to the premises. Moreover, the court rejects the appellant’s contention that automatic standing should be granted where the crown alleges that property seized on the premises of a TP was in the accused’s possession. This has not only been denied in the US, but the wording of s. 24(1) explicitly negates the possibility of TP standing. Page 77 of 107 Monika Rahman Autumn 2007 LaForest: Concurs, but only because he thinks no question of law was raised in Abella’s dissent in court of appeal. Is concerned that the majority’s reasoning will lead to a drastic reduction of the protection to the public afforded by s. 8. -s. 8 applies to everyone, and includes the right to be secure against unreasonable search and seizure, not just to having evidence excluded. L’H-D: Standing is not in issue. But, agrees with Cory. Gonthier: Refused to comment on standing. Comments Other cases: Last class we mentioned Edwards (young man at girlfriend’s house w/no reasonable expectation of privacy). In Collins, court says we don’t have to answer question of application to 3P o Edwards – only in very limited circumstances will right to privacy apply to third party. Edwards had argued he had automatic standing – US had rejected this idea in favour of a reasble expctn of privacy test which is what Canada followed. o La Forest found that this would amount to a very serious limitation to s.8 rights. Don’t have to deal with Goldhart. E. EXCLUSION UNDER THE CHARTER: LINK BETWEEN THE BREACH & THE EVIDENCE Strachan – confidential source told police that accused had drugs in his apartment. Crown conceded that there was a violation of rights o Should this evidence be admitted? Crown relied heavily on causal connection between breach and the evidence. SCC rejects causal connection o Will find Strachan interesting when reading Stillman R v. Strachan [1988] 2 SCR 980 (CBp.686) Jurisdiction Facts S was charged with trafficking pot, and acquitted at trial. His acquittal was overturned by the BC CA. He claims the search that lead to the discovery of the dope violated his s. 8 and s. 10(b) Charter rights, and that the evidence should be excluded under s. 24(2). The cops got a tip that he had dope in the house. They got a warrant, but they had to substitute two of the names on the warrant because two of the pigs couldn’t go. When they got there, they showed S the warrant and arrested him. He immediately asked to call his lawyer, and they said he could not do so until they got “matters under control”. He was not permitted to call is lawyer until after they took him to jail. There were two other men there, who were questioned and left. At trial, the police claimed to be concerned to locate the two registered guns they knew to be in the house. They seized a bunch of dope, scales, and small bills. He was never advised of his right to retain counsel after the initial warning. Issues What is the requisite relation between the breach and the evidence to trigger s. 24(2)? Holding There must be more than a temporal link, but full causation is not required. Reasoning Dickson: The warrant was valid, they complied with the spirit of s. 8 and showed awareness of limitations on police search powers. The right to counsel was denied, not when he was initially prevented from calling, but once the guns were secured and the other two men left. The crown argues that there must be causal relationship between the breach of right to Page 78 of 107 Monika Rahman Autumn 2007 counsel and the discovery of the drugs. In the alternative, the Collins test for exclusion is not met. Some judges in Therens commented on the “obtained in a manner” requirement (which is required in addition to the violation and bringing justice into disrepute). LeDain, in dissent, rejected the causal requirement on the basis of the French—“obentue dans les conditions qui”. Lamer held that a temporal link was not sufficient, and that there must be some additional nexus. Esson JA (dissent): Section 24(2) does not require a causal nexus. This court agrees. A causal requirement would unduly narrow the relation between a violation and discovery. It would exclude most real evidence obtained in breach of the right to counsel from consideration under s. 24(2). Only derivative evidence obtained as a result of statements obtained by denying counsel will usually be causally connected, but this is still too narrow. “It is not useful to create a requirement in the first stage of s. 24(2) that would separate violations of s. 10(b) into two categories based on the role of counsel.” So long as the violation precedes the discovery, it makes little sense to draw distinctions based on the circumstances surrounding the violation. All of the pitfalls of causation will be avoided by an approach that focuses on the entire chain of events during which the violation occurred and the evidence was obtained. The temporal link is important, but not determinative. There may be cases where the evidence is too remote from the breach. No hard and fast rule can be laid down. If the evidence is obtained in a manner that violates the charter, the analysis must proceed to the Collins test for exclusion: fairness of the trial (nature of the evidence); the seriousness of the violation; and the disrepute from exclusion. Here, the search violated the Charter, but it is admissible because the breach of 10(b) was not part of a “larger pattern of disregard for Charter rights”, and the exclusion rather than the inclusion would bring the administration of justice into disrepute. Comments Lamer: Concurs with brief separate reasons. Wilson: Concurs, but thinks the violation occurred from the moment he was denied the request to call his lawyer. For evidence to have been “obtained in a manner” that violates one’s Charter rights, there need not be a causal connect between the violation and the evidence, and though a temporal link is necessary, it will not always be sufficient if the discovery of the evidence is too remote. F. EXCLUSION UNDER THE CHARTER: BRINGING THE ADMIN. OF JUSTICE INTO DISREPUTE Stillman gives us two categories of evidence (Collins had called “real” and “conscriptive”): 1. Non-conscriptive Decide that admission of non-conscriptive evidence will NOT affect trial fairness Then court can proceed to consider the seriousness of Charter violation and whether the EXCLUSION of the evidence will bring the administration of justice into disrepute 2. Conscriptive (could be a statement, body samples (incl. hair, blood sample), breathalyser test, real evidence that’s in the statement – so evidence that came to the authorities through the accused) Have to determine “Discoverability” o Evidence that would have been discovered anyway (be it by an independent source or it would have been inevitable – burden on Crown to prove) Does not affect the trial fairness Page 79 of 107 Monika Rahman Autumn 2007 Court then has to evaluation the seriousness of the violation and whether the exclusion of the evidence will bring the administration of justice into disrepute o Evidence that would not have been discovered anyway Admission will make trial unfair Not necessary to go to the seriousness of the violation or effect on reputation of administration of justice Stillman stands for the following: Changing from real evidence to non-conscriptive Bringing back what Strachan says you can’t do – consider discoverability of the evidence (need to double-check this) R v. Stillman [1997] 1 SCR 607 (CBp.711) Jurisdiction Facts S and a 14 yr-old female companion left a party around 8. He arrived home at 11:45 covered in mud, wet, and cut above one eye. He said he got in a fight with 5 Indians. The story changed over time. The victim’s body was found 6 days later in a river. She had died between 10:30 and 11:30. She was seen with the accused near an upstream bridge around 10:15. The cause of death was wounds to the head. Semen was found in her vagina, and bite marks on her abdomen. The accused was arrested, and retained counsel. Counsel told the cops that he was not giving any statement or bodily samples. The officers nonetheless obtained hair sample, pubic hair samples, buccal swabs and teeth impression by threat of force. They did this again a few months later. After round 1, the accused, who was sobbing, blew his nose and threw away the tissue, which was seized. The TJ found that all of the evidence except the tissue were obtained in violation of the accused Charter rights. He nonetheless admitted all of the evidence. He was convicted. The CA upheld the conviction, with a dissent saying that the evidence should have been excluded. Issues Holding Reasoning Was the evidence obtained in violation of the accused’s Charter rights? Should it be excluded? (1) Yes (2) All but the tissue should be excluded. Cory (+4) For a search to be reasonable under s. 8, it must be (a) authorized by law (b) the law must be reasonable and (c) it must be carried out in a reasonable manner. The taking of the bodily samples was done without statutory authority. Was it authorized by the CoL? The CoL power of search and seizure incident to arrest requires (a) lawful arrest (b) the search be “incident” to the arrest and (c) the manner of the search must be reasonable. The scope of this power, however, is limited by its rationale—to protect officer and prevent escape and the destruction of evidence. All exercise of this common law power are limited by (i) discretion (ii) the need for a valid objective in the pursuit of criminal justice and (iii) the absence of abuse. The CA’s have disagreed about whether bodily samples can be taken under this power. They cannot. It’s a violation of bodily integrity, privacy and human dignity, and cannot therefore be done without consent. Here, all of the forced taking of samples and impressions violated that power, and therefore violated s. 8. There must be strict limits on this CoL power. It also violated s. 7 because the procedures were highly intrusive and violated his security of the person. The taking of the tissue also violated s. 8. When people are in custody, they can’t be said to abandon their reasonable expectation of privacy by throwing something away. They have no choice but to emit bodily substances during detention, and there can be Page 80 of 107 Monika Rahman Autumn 2007 no implication that they forfeit their s. 8 rights. Moreover, Mellenthin set out the high bar necessary to waive one’s right not to be searched. s. 24(2) is therefore triggered. Appellate courts can only interfere in these decisions if there has been an error as to the applicable principles of law. Such was the case here. The factors outlined in Collins were divided into three groups: (1) fair trial, (2) seriousness of violation and (3) the effect of the exclusion. The TJ erred with respect to (1) and (2). The TJ failed to appreciate the fact that the evidence was conscripted and erred in only considering the police conduct when assessing the seriousness of the breach. In considering the fairness of the trial, the first step is to classify the evidence, because the main issue for the fairness of the trial is whether the accused was forced into selfincrimination. If the evidence is non-conscriptive, the other factors must be addressed. Non-conscriptive: accused not forced to participation in creation or discovery of the evidence. Not all real evidence is non-conscriptive. The crucial factor is whether the accused was forced to give a statement or produce bodily samples. Conscriptive: Accused is compelled to incriminate herself by means of a statement, use of her body or bodily samples. This applies beyond confessions, to “other evidence emanating from him” (Lamer in Collins). So, any forced taking of samples is conscriptive, in light of the highly intrusive nature of the process and the violation of s. 7. Derivative Evidence: A sub-set of conscriptive evidence: Real evidence that is discovered as the result of a conscripted statement. Conscriptive evidence may not necessarily render the trial unfair if it would have been discovered anyway—via an independent source or simply because it was inevitable. But, the fact that there was an independent means of getting it will render the Charter violation more serious**. If it would have been inevitably discovered, the crown has the burden to show this. If the evidence would not have been discovered but for the conscription, its admission would render the trial unfair. Here, the bodily samples forcibly taken were clearly conscripted. They also would not have been discovered—there was not statutory means at that time. This is sufficient to resolve the issue. But, it should also be stated that the violation we extremely serious: “reprehensible” and “intolerable” The evidence must be excluded because its admission would bring the administration of justice into disrepute. It would shock the community, and we cannot allow corners to be cut just because someone is suspected of a violent and reprehensible crime. The tissue goes in, however, because it was not conscripted and the breach was not serious. Moreover, they could have obtained it in another manner—via search warrant.(But, this means that the breach was probably a serious one **) Appeal allowed, new trial. Major: -The seizure of the tissue did not violate s. 8 because it was abandoned and there is no more privacy interest. Agrees with Cory in all other respects. Dissent: L’Heureux-Dube: The bodily samples were lawfully taken pursuant to the search incident to arrest and the tissue seizure was lawful. There may have been a violation of security of the person, but it was in accord with principle of fundamental justice because the conduct was lawful. Again, the Collins approach does not mandate all of these rules and presumptions. Gonthier: Concurs with H-D and agrees with McL on the scope of self-incrimination. McLachlin: Page 81 of 107 Monika Rahman Autumn 2007 Rule It’s not true that all evidence that affects the fairness of the trial should be excluded. Such a view ignores the fact that s. 24(2) requires all factors to be considered. It rests on an erroneously expanded view of the concept of self-incrimination, by holding that any non-consensual participation of the accused as ending the trial unfair. And it assumes that anything affecting the fairness cannot be outweighed by the other factors. The principle against self-incrimination does not apply to real evidence. TJ was right. 1) Classify the evidence as conscriptive or non-conscriptive based upon the manner in which the evidence was obtained. If the evidence is non-conscriptive, its admission will not render the trial unfair and the court will proceed to consider the seriousness of the breach and the effect of exclusion on the repute of the administration of justice. 2) If the evidence is conscriptive and the Crown fails to demonstrate on a balance of probabilities that the evidence would have been discovered by alternative nonconscriptive means, then its admission will render the trial unfair. The Court, as a general rule, will exclude the evidence without considering the seriousness of the breach or the effect of exclusion on the repute of the administration of justice. This must be the result since an unfair trial would necessarily bring the administration of justice into disrepute. 3) If the evidence is found to be conscriptive and the Crown demonstrates on a balance of probabilities that it would have been discovered by alternative nonconscriptive means, then its admission will generally not render the trial unfair. However, the seriousness of the Charter breach and the effect of exclusion on the repute of the administration of justice will have to be considered. R v. Mann, [2004] 3 SCR 59 (CBp.738) Jurisdiction Facts See above Issues Should the evidence be admissible? (Or will it bring the administration of justice into disrepute?) Holding No (Yes) Reasoning Iacobucci J: In Buhay, this court reviewed the three-step inquiry to determine whether the admission of evidence will bring the administration of justice into disrepute under s. 24(2): 1. Consideration of fairness of the trial Key consideration here is the “nature of the evidence obtained and the nature of the right violated”. (The TJ erred in this respect: the marijuana was non-conscriptive and so its admission would not compromise the fairness of the trial.) 2. Seriousness of the breach A number of factors are considered, including whether the breach was committed in good or bad faith, the obtrusiveness of the search, the individual’s expectation of privacy in the area searched, and the existence of reasonable grounds - These facts sustain an unacceptably serious disregard for the appellant’s section 8 rights - The search went beyond a protective search when the police officer reached into the pocket at that point the purpose of the search shifted from safety to the detection and collection of evidence, and thus became a search absent reasonable and probable grounds - The C.A. admitted the evidence based on the officer’s good faith; however, good faith is but one factor in the analysis and must considered alongside Page 82 of 107 Monika Rahman Autumn 2007 - other factors which speak to the seriousness of the breach While a frisk search is minimally intrusive, the search of the appellant’s inner pocket must be weighed against the absence of any reasonable basis for justification. Individuals have a reasonable expectation of privacy in their pockets. This reflects a serious breach of the appellant’s protection against unreasonable search and seizure. 3. Whether the exclusion of the evidence would adversely affect the administration of justice - - - - The Crown’s whole case is based on the seized marijuana. Possession of marijuana is a serious offence. However evidence that is nonconscriptive and is essential to the Crown’s case need not necessarily be admitted NO automatic inclusionary rule, just as no automatic exclusionary rule. Must balance the interests of truth with the integrity of the justice system. Here: The nature of the fundamental rights at issue and the lack of a reasonable foundation for the search suggest that the inclusion of the evidence would adversely affect the admin of justice. In Buhay An appellate court must determine if, all factors considered, the trial judge’s conclusion to exclude the evidence, based on her or his finding that its admission would bring the administration of justice into disrepute, was reasonable. Standard of review applicable to a TJ’s decision – TJ’s appreciation of the matter is entitled to deference as it is made on the basis of factors established through testimony. This court has affirmed the impotce of deferring to lower courts in the context of 24(2) on many occasions. As long as the decision was reasonable, and there was no apparent error as to the applicable principles or rules of law, reviewing courts will not interfere. Deschamps (dissenting) disagrees with majority on #2 and 3, and about approach to deference. Good faith should be considered, and it is not the seriousness of the search per se that should be considered, but the seriousness of the Charter breach. In this case the breach was not serious. Also less privacy expected late at night in a highcrime area. Inclusion in this case would not adversely affect the administration of justice; rather its exclusion would lead to this result. Comments 7. OPINION November 22, 2007 What can you ask a witness whether a car was driving fast? General rule: Witnesses cannot give opinion testimony. However there are exceptions. Page 83 of 107 Monika Rahman Autumn 2007 A. THE EXCLUSIONARY RULE AND TWO EXCEPTION Opinion evidence is generally inadmissible. The role of witnesses is to testify to the facts of which they have personal knowledge. The witnesses’ opinions on those facts are generally irrelevant and thus inadmissible Witnesses provide the raw material that enables the trier of fact to make findings, or form opinions, based on the admissible evidence Two exceptions: Ordinary witnesses may be permitted to communicate their perceptions in the form of opinion on matters that are: Within common knowledge and Based on multiple perceptions that can best be expressed in a compendious format E.g. age, speed, identity, physical/emotional state Where the trier of fact requires assistance in order to understand the significance of the evidence, or requires assistance to determine what inferences can properly be drawn from the evidence, and expert may be permitted to provide assistance in the form of opinion evidence B. THE EXCEPTION FOR LAY OPINION R v. Graat, [1982] 2 SCR 819 (CBp.271) Jurisdiction Facts G was stopped for impaired driving. The pigs had seen him speeding, swerving, etc. They never got a chance to do a breathalyzer. At trial, three pigs testified not only as to their observations of his odour and behaviour, but also offered their opinion that he was intoxicated to the point that his ability to drive was impaired. The defence did not object. The TJ accepted the opinion of the two more experienced officers and convicted. Issues Should these opinions have been excluded? Holding No Reasoning Dickson J: There are already too many rules, exception, sub exceptions and sub-sub-exceptions in the law of evidence. The non-exhaustive list of subjects on which non-experts can give opinion evidence is lengthy: (i) ID of handwriting, persons and things, (ii) apparent age (iii) bodily plight or condition (iv) emotional states (v) condition of things (vi) certain questions of value and (vii) estimates of speed and distances. We should go back to first principles. The first issue is relevance. Here, the relation between the evidence and the ultimate probandum is direct and logical, and there is no policy rationale for exclusion. It’s not usurping the function of the jury. The concern of that issue is covered by relevance: the court need not hear superfluous evidence. There is no reason to exclude opinion where the expression of opinion would be more accurate than the expression of facts, where the facts are too complicated or evanescent to be recalled and related in a coherent fashion, but ntl lead to an unmistakable opinion. It’s much easier to say someone is drunk than to relate all the factors that led you to that conclusion. So, opinion should be allowed where it’s no more than a “compendious statement of fact”. Let’s not be “fetishistic” about the ultimate issue rue. There is no need for a specialist on this issue. The exclusion of non-experts would also, very often, be detrimental for the defence. Same goes for whether the person is too drunk to drive. The operation of vehicles is a matter of common experience. Whether someone’s ability to drive is impaired is a question of fact, despite that it will be Page 84 of 107 Monika Rahman Autumn 2007 expressed, often, in that language of the Code. Two caveats: (1) Lots of judicial discretion. (2) Cops opinions should not be given more weight in these circumstances. They are not being called to testify as experts or on the basis of their experience. Their evidence is “not entitled to preference just because they may have extensive experience with impaired drivers.” [That’s exactly what the TJ did!] Appeal dismissed. Witnesses may give their opinion on issues of common experience where the expressing of an opinion is more straightforward than the expression of each discrete fact that gave rise to the opinion. In such cases, the testimony of those with experience in the matter is not to be given preferential treatment because they are not testifying as experts. Ratio Graat: Ordinary witnesses can testify about their perceptions of common knowledge In this case – witness thought person driving a car was drunk Ordinary witness cannot talk about legal issues So, witnesses can give their opinion on issues of “common experience”. Giving the opinion is more direct than giving each little fact that leads to the opinion. Testimony from people like cops (more experience) not to be given more weight in this regard. C. THE EXCEPTION FOR EXPERT OPINION: BASIC PRINCIPLES a) Requirements for Admissibility The other exception Expert evidence. Experts can give opinions. Expert evidence is important but we have to be extremely careful b/c of the aura of authority and legitimacy that experts have. Four criteria to determine admissibility of expert evidence: 1. Relevance 2. Necessity (to allow the fact-finder to appreciate the issues in question) 3. Whether there’s an exclusionary rule 4. Proper qualification of the witness R v. Mohan, [1994] 2 SCR 9 (CBp.277) Jurisdiction Facts The accused was convicted of sexual assault on four of his patients—girls aged 13-16. The TJ excluded evidence, heard in a voir dire, that the accused did not fit the profile of the kind of person who could commit all four these offences. The shrink had ID’d three categories of sexual offenders, saying that the perpetrator would have to fall into two, which was a special sub category that did not match the accused’s profile. Issues What are the criteria for the admissibility of expert testimony? Reasoning Sopinka Relevance: The threshold test is just whether it tends to establish a fact in issue. But, the impact on the trial process must also be considered. Whether these issues are called ‘legal relevance’ or exclusionary rules, the effect is the same. The reliability vs. effect factor has special significant for experts. Two issues to deal with: (1) Is it likely to assist the jury? and (2) Is the jury likely to be overwhelmed by the “mystical infallibility” of the evidence? Necessity in Assisting the Trier of Fact: -In Abbey, Dickson stated that the purpose of experts is to provide ready-made Page 85 of 107 Monika Rahman Autumn 2007 Comments inferences that the trier of fact couldn’t draw. Whether the evidence is ‘helpful’ sets the bar too low, but the necessity test shouldn’t be applied strictly. The issue is whether the average person could appreciate the issues without the help of the expert. -Still need to consider whether it would distort the fact-finding process or overwhelm and distract the jury. Though there is no longer any general exclusionary rule on opinion as to the ultimate issue, the concern remains, and the trial cannot become a contest of experts. Absence of Any Exclusionary Rule: Even if in, it can still be out. A properly qualified expert: Must be someone who has particular knowledge through study or experience. There must be an accepted methodology for the evidence to be reliable, which goes to both admissibility and weight. Evidence advancing a novel theory or technique must be subject to special scrutiny at the reliability and necessity stages. The closer the evidence approaches the ultimate issue, the stricter the application of this principle. Four conditions of the admissibility of expert opinion: relevance/reliability, necessity, absence of an exclusionary rule and the proper qualifications of the witness. In R. v. K.(A.), Charron provided the following outline for the relevance and necessity factors: 1. Relevance a. Does the expert opinion relate to a fact in issue? b. Does it tend to prove the fact? c. Is the evidence sufficiently probative to warrant its admission to prove that fact? i. To what extent is the opinion founded on proven facts? ii. To what extent does the evidence support the inference sought to be obtained from it? iii. To what extent is the matter in issue? iv. To what extent is the evidence reliable? v. What is the level of complexity of the evidence? Is it comprehensible or likely to confuse the jury? vi. To what extent is it controversial? Will it require extensive cross or the calling of other experts? 2. Necessity a. Will the evidence enable the trier of fact to appreciate the technicalities of the matter in issue? b. Will it provide info outside of the experience of the average juror? c. Is the trier of fact likely to form an incorrect opinion without the evidence? d. Is the need for the evidence sufficient to overcome its potential prejudicial effect? i. Is there other evidence available to determine the issue in question? ii. What is the level of complexity of the evidence? Easily understood or likely to confuse? b) The Trier of Fact’s Need for Expert Assistance R v. Lavalle [1990] 1 SCR 852 (CBp.281) Jurisdiction Facts L had been with her CoL partner for 3-4 years. It was a frequently violent relationship. One night, he beat her up, handed her a gun, and said that if she didn’t kill him, he would come back later and kill her. She blew the back of his head off while he was leaving the room. The jury acquitted. The TJ allowed evidence of a psychiatrist who had interviewed her and her Page 86 of 107 Monika Rahman Autumn 2007 Issues Holding Reasoning mother, reviewed the police file, and reviewed her hospital file. She did not testify. The crown moved to have the entire testimony withdrawn on the grounds that it was unnecessary and that he should not have testified as to her credibility, as she never took the stand. The TJ ruled that the concern could be better addressed though a proper instruction. Was the evidence admissible? If not, should the jury have been left with self-defence? If so, was the TJ’s charge proper? Yes. NA. Yes Wilson Comments As stated first in Kelliher and then by Dickson J. in Abbey, the function of expert evidence is to provide ready-made inferences for triers of fact on matter outside of their experience. There is a long-standing recognition of the admissibility of psychiatric evidence. Here, for the s. 34(2) defence, she needs to establish both a reasonable fear for her own life and a reasonable apprehension that her act was the only option. The standard here is not the “reasonable man”, but what was reasonable in her shoes. It is for that purpose that the expert evidence is useful, to ensure that the trier of fact has in mind a proper understanding of “battered wife syndrome” in assessing the reasonableness of her actions. Here, the testimony can shed light on why her apprehension of death would be reasonable even though it was not “imminent”. It can also explain why she would feel so trapped as to not apprehend other alternatives. So, the evidence is admissible to assist the fact-finder in drawing inferences that a layperson would miss. This is applicable to battered-wife syndrome, as there as some stereotypes that need to be overcome. It can explain the nature of her fear and why she didn’t seek alternative recourses. Thus, the TJ did not err in admitting the evidence, as there was ample evidence of repeated brutality, quite apart from the hearsay in the psychiatrist’s testimony. Also, labels are to be avoided, the issue is not who she is, but what she did. Expert evidence is admissible to assist the fact-finder in drawing inferences that a layperson would miss. This is applicable to battered-wife syndrome, as there as some stereotypes that need to be overcome. It can explain the nature of her fear and why she didn’t seek alternative recourses. Lavalle: Key case that expanded use of expert evidence Lavallee killed her husband in the back of the head as he was walking out of the room (he gave her the gun and said if she didn’t kill him he’d come back and kill her) Expert evidence on battered wife syndrome used to exonerate her (self-defence) Testimony tells us why Lavalle may have had reasonable apprehension of death, and why she would feel trapped and unable to just leave the relationship The average person may not have sufficient understanding of battered-wife syndrome, so jury might not be able to assess reasonableness of her actions What’s the basis of expert evidence if the facts relied upon are not entered into evidence? i.e. the doctor’s testimony about his interviews with Lavalle what kind of life Lavallee lived – hearsay. o Missed what he said about this – something about how the facts have to be entered into evidence before being relied upon... Not responsible for Daubert and Abbey – everything else yes? Page 87 of 107 Monika Rahman Autumn 2007 8. JUDICIAL NOTICE Courts are not supposed to know anything about the facts of a case until led by the parties. JN is an exception to this rule Under this doctrine, a judge may under certain circumstances take notice of a fact despite a lack of relevant and admissible evidence. Binnie’s article: Used to think JN was a rather exceptional procedure Rather than being exceptional, JN is the rule. In other words what is actually established in court using the complex rules of evidence is merely the tip of the iceberg. Facts judicially noticed rest on a vast submerged universe of unproven fact, intuition, conjecture, out of court perception, and other mental baggage brought into court by judge/jurors representing the product of their collective life experiences, most of which is not accessible for contradiction to contending counsel in any precise detail Questions raised by JN: What is the proper role of efficiency in the legal system? Is there a distinction b/w a rational decision and a legitimate one in law? Is the new distinction between facts and inferences a stable one? A. THE TEST FOR JUDICIAL NOTICE SCC has defined the test in Newfoundland (Treasury Board) v. N.A.P.E. (2004) as follows: Judicial notice dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute. Facts judicially noticed are not proved by evidence under oath. Nor are they tested by cross-examination. Therefore, the threshold for judicial notice is strict: a court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy . . . . [Emphasis added.] November 22, 2007 Adjudicative facts vs. Legislative facts: Adjudicative facts – facts related to the elements of the offence adduced by the parties Legislative facts – relates to laws and policy underlying the legislation. You can refer to the Hansard In Danson v. Ontario (AG) (1990) Adjudicative facts are those that concern the parties, the who, what, where, how and with what motive or intent issues. Legislative facts are those that establish the purpose and background of the legislation, including its social, economic and cultural context. The latter, being more general, are subject to less stringent admissibility. The DL on judicial notice: In order for a judge to decide if they should take judicial notice of something, they have to ask themselves if the fact in question is close to the centre of the controversy; state of uncertainty or doubt regarding the fact, Page 88 of 107 Monika Rahman Autumn 2007 Professor Morgan article outlines the kinds of facts which can be admitted by judicial notice o E.g. conversion between grams and pounds Usually judicial notice is not a big deal, but there are cases where judicial notice is not uncontroversial. E.g. Zundel B. ADJUDICATIVE FACTS R v. Potts (1982), 36 OR (2d) 195 (CBp.937) Jurisdiction Ont. CA Facts P was charged with speeding, and an essential element was that he was speeding “on a driveway” either under the control and management or vested in the NCC. The crown led no evidence that Colonel By Drive was maintained by the NCC. The JP convicted, despite defence counsel’s claim that there was no evidence of an essential element. The accused won the first appeal, and the crown appeals to the CA. Issues Holding Reasoning Was the JP entitled to take judicial notice of the status of Colonel By Drive? Yes Thorson Comments The crown argues that the fact of a roadway being under the control and management of the NCC is different from it being vested therein, in that that former is something that can be ascertained by casual, everyday observances. He then gave a long flowery description of all of the phenomena that could be readily observed along that roadway which would indicate the NCC maintenance. His point was that anyone familiar with the area would know the road was maintained by the NCC. The defence never denied that he was speeding, or even that CBD was under the NCC. Judicial notice can be taken of a fact or state of affairs that is of such common or general knowledge in the community that proof of it can be dispensed with. It is an exception to the general rule that all facts must be proved. Thus, the rule is that judicial notice can be taken of things so well known as to be unquestionable, or things that can be easily verified by resort to sources whose accuracy cannot be questioned. This has applied to the location of a business district Moreover, it’s irrelevant if the CA knows the fact, if it would be common knowledge for any trier of fact at first instance. Thus (1) the court can take judicial notice of a fact well known by the community, but cannot rely on special knowledge which arises from its experience qua court and (2) the common knowledge requirement is to be applied to the epistemic community of the trier of fact, which may well be different than the CA. Here, there’s absolutely no reason to make the crown prove a fact that is both unquestionable and went unquestioned. Facts that are unquestionably known in the community of the trier of fact need not be proved, and judicial notice thereof can be taken. The CA is not justified in intervening for the sole reason that the judges in that court are not familiar with the fact in issue. R v. Zundel (1987), 31 CCC (3d) 97 (CBp.942) Jurisdiction Ont CA Facts Z was charged with spreading false news for publishing a pamphlet that denied that six million Jews died in Nazi Germany as a result of official German policy. The TJ refused to take judicial notice of the holocaust. The crown and defence had competing experts on the facts of the holocaust. The TJ refused to take notice because he thought it would relieve the Page 89 of 107 Monika Rahman Autumn 2007 crown of the burden of proving all the essential elements. The motion was raised again at the close of the defence case, and the crown argued that they did not directly dispute the holocaust, but the TJ again denied the request. Issues Holding Reasoning Rule Did the TJ err in refusing to take judicial notice? No The Court: Thayer and Wigmore thought that taking notice does not amount to accepting the matter to be indisputable, but the modern view is that when the court takes judicial notice, the notice is final. In doing so, it declares that it will find the fact exists or direct the jury to do so. The court can take judicial notice of historical fact. It may even hear testimony and consult “learned treatises” in order to do so. The crucial difference between this process and the reception of evidence is that the rule on hearsay does not apply. To get the judge to take notice, you have to show (a) that the matter is no notorious as to not be the subject of dispute among reasonable people or (b) that the matter is capable of immediate accurate demonstration by reference to indisputable sources. Judicial notice can be taken of an evidentiary fact in issue. Here, if the judge took judicial notice of the holocaust, it would substantially prejudice the accused, because it would make the inference that the accused too must have known it was indisputable to too easily drawn. Judicial notice may be taken of historical facts, even when they are essential elements of the crime, but the judge properly refuses to do so where it would prejudice the accused by removing elements of the crown’s case to meet. R v. Zundel (No.2) (1990), 53 CCC (3d) 161 (CBp.945) Jurisdiction Ont CA Facts Z was tried and acquitted again. This time, the TJ, in a preliminary motion, agreed to take judicial notice of the fact that Jews were murdered by Nazis, without telling the jury of a systematic policy of the government to that effect. The jury was also instructed that this did not directly touch any of the elements of the crown’s case. Issues Holding Reasoning Did the TJ err in taking notice of these historical facts? No The Court: Rule The TJ, correctly, took notice of background facts, but did not take notice of facts that the crown had to demonstrate. Defence argued (correctly) in pleadings that the notice didn’t touch the essential elements. This is very different from Zundel No. 1. The crown proceeded to adduce evidence on the falsity of the claims in the pamphlet. Thus, the notice was not prejudicial to the defence. The judge did not err in taking notice of historical facts because that notice was not prejudicial . Zundel #1: Zundel was a holocaust denier and published a pamphlet called Did Six Million Really Die? Trial judge did not take judicial notice of the Holocaust. The accused was eventually found guilty – appealed, new trial was ordered. Page 90 of 107 Monika Rahman Autumn 2007 Zundel #2: Judge agreed to take judicial notice of the fact that Jews were murdered by Nazis but would not go as far as saying R v. Krymowski, [2005] 1 SCR 101 (CBp.947) Jurisdiction Facts Skinheads charged with wilful promotion of hatred after virulent demonstration against Roma refugees in Scarborough. Skinhead signs referred to “Gypsies”. Defence counsel argued the Crown had specified “Roma” in their charge, and had not proven that “Gypsies” referred to the “Roma” people. Issues Holding Reasoning Could the court take judicial notice of the fact that Gypsies referred to Roma? Yes Charron J: The Crown presented the trial judge with 5 dictionaries pointing out the relationship between the terms “Roma” and “Gypsies”. These fell within the second branch of Find, namely facts which are “capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy”. A dictionary is one such source. Comments Krymowski: Wilful promotion of hatred writing against entry of Roma refugees in Canada. Court decided Gypsy and Roma are equivalents and took judicial notice of this Lawyer can ask judge to take judicial notice of something – judge has discretion to agree or refuse 9/11 – can obviously take judicial notice that it occurred. But probably can’t take judicial notice of the fact that Bin-Laden was behind it. 9. PRIVILEGE November 20, 2007 A. SOLICITOR-CLIENT PRIVILEGE: INTRODUCTION The information the witness has to give has to be relevant and probative, but it cannot be disclosed if privilege applies because of the nature of the relationship in which the person came into the information. The pursuit of the truth may be less important than other interests. As in hearsay, there were certain classes of communication were presumed privileged, and then you had to prove why it should go in anyway. Now it’s the case-by-case approach – evidence is presumed to be admissible unless it’s shown to be privileged. One of the old classes was solicitor-client privilege. Other categories that might be covered on a case-by-case basis: spousal, doctor-patient, psychiatrist/psychologist-patient, journalist-informant. Page 91 of 107 Monika Rahman Autumn 2007 The Wigmore test governs circumstances under which privilege is extended to certain communications that are not traditionally-recognized class privileges (p752): 1. The communications must originate in a confidence that they will not be disclosed. 2. The element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties. 3. The relation must be one which in the opinion of the community ought to be sedulously fostered. 4. The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation. Only the privilege holder can waive the privilege – the client holds the 755 – the 10 principles that must be followed now in the searches of law offices B. SOLICITOR-CLIENT PRIVILEGE: EXCEPTIONS Smith v. Jones (1999), 169 DLR (4th) 385) (CBp.763) Jurisdiction SCC Facts J was charged with aggravated sexual assault of a prostitute. His lawyer refereed him to a forensic psychiatrist, Smith. The lawyer told him that the conversation would be privileged. He told the shrink about his elaborate plan for raping and killing Downtown East Side prostitutes, and how this incident was just his trial run. The shrink told the lawyer about this, and that he thought Smith was a dangerous individual who needed treatment. When the shrink found out that the judge would not be advised of his concerns, he commenced this action. The TJ ruled that the public safety exception to privilege placed Dr. Smith under a duty to disclose the info and his opinions. The CA held that it merely permitted him to disclose the information. For the purposes of this case, it is assumed that the shrink’s report is covered by solicitor-client privilege. Issues Holding Reasoning Should the report be disclosed? Yes Cory (+5) This is the highest privileged recognized by the courts, but it is subject to three limitations: innocence of the accused, criminal communications and public safety. The public safety exception is recognized by all of the legal professional associations in Canada. To apply, (1) there must be a clear risk of to an identifiable person or group of persons (2) there must be a risk of death or serious bodily harm and (3) the danger must be imminent—in the sense of certain, not in the sense of immediate. The disclosure, when the exception applies, should be limited as much as possible to the elements that indicate an imminent risk of substantial harm to an identifiable person or group. Here, all portions of the affidavit concerning this risk should be disclosed. When there is no time to instigate legal proceedings, the person in possession of the information may notify the relevant persons to prevent the harm without going to court. Dissent: Major (+2) This limited exception should not include conscriptive evidence against the accused. The whole purpose of the exception is to protect the public, but if we undermine the privilege, we undermine the possibility for these people getting treatment. Jones would not have gone to the shrink without the understanding that the info would be privileged. The breach must be as narrow as possible, and must be undertaken in a manner respectful of the accused’s constitutional right to counsel without fear of selfincrimination. Page 92 of 107 Monika Rahman Autumn 2007 Ratio The doctor can testify or provide an affidavit as to his opinion of the threat to public safety, but cannot disclose the accused self-incrimination statements. The public safety exception to solicitor-client privilege applies where the risk of harm is clear, identifiable, serious and imminent. The breach must be a narrow as possible. Smith and Jones Sometimes the confidentiality of privilege must yield to the public good This isn’t an easy case to decide what side you come down on because it’s a terrible crime Majority: If there’s a clear risk to an identifiable group and imminent harm (p.769, para 77) b) Innocence-at-Stake Exception R v. Brown, [2002] 2 SCR 185 (CBp.774) Jurisdiction Facts Brown charged for the stabbing of Baksh. Told police he had bought cocaine from deceased three times on night of homicide. Denied murder. Charged after jailhouse informant said he overheard Brown admit to murder. Girlfriend of Benson tells police that Benson told her he had killed Baksh, and said he had confessed to his lawyers. Police investigated but then dropped investigation against him. Issues Is it warranted to apply exception to Benson’s right to solicitor-client privilege? Holding No. Accused’s innocence was not at stake, McClure application should not have been granted Reasoning Major J: McClure test: First must satisfy threshold test - accused must establish: 1) information he seeks from solicitor-client communication is not available from any other source; 2) he is otherwise unable to raise a reasonable doubt. If satisfied, proceed to two-stage innocence at stake test: 1) Accused must demonstrate evidentiary basis to conclude communication exists that could raise a reasonable doubt as to his guilt; 2) If such basis exists, trial judge should examine whether it is likely to raise a reasonable doubt as to guilt of the accused. Note that burden in second stage of innocence test is more strict: “Likely” vs. “Could” In this case, not clear at the time that privileged information was not available from another source, nor was it clear info was necessary for accused to raise a reasonable doubt. Also, indications privilege might have been waived by voluntary disclosure, so that issue should have been resolved before an infringement of a valid privilege was contemplated. Comments It’s a very restrictive test – there are not many successful “innocence at stake” exceptions. “innocence-at-stake” exception – Brown Trial judge ** NOTE: Only Smith and Jones and Brown don’t have to do 786-807. Might peek at informer protection on page 807 Skip 817 – public interest immunity – to 830 C. INFORMER PRIVILEGE R v. Leipert, [1997] 1 SCR 281 (CBp.808) Jurisdiction Facts The police got an anonymous tip from Crime Stoppers that L was growing dope in his basement. On this basis, a pig went snooping with a dog, and then got a search warrant. At trial, the accused sought the ‘tip sheet’ from Crime Stoppers. The crown claimed informer Page 93 of 107 Monika Rahman Autumn 2007 Issues Holding Reasoning privilege. The judge took the document, and edited it in an attempt to conceal the identity of the informer, and then ordered disclosure. The crown wanted to rely on the warrant without reference to the tip, but the judge wouldn’t allow it. So, the crown ceased to tender evidence, the accused called none and was acquitted. The CA ordered a new trial. Did the TJ err is ordering the production of the edited tip sheet? Yes McLachlin: Comments The TJ faced two conflicting rules: the right to disclosure and informer privilege Informer privilege is “an ancient and hollowed protection” which is essential to law enforcement. Once found, courts are not entitled to weight it against countervailing considerations. The privilege belongs to the crown and to the informer. Thus, the police and the courts do not have the discretion to relieve against the privilege. This means that courts must be extra careful not to disclose the identity of anonymous informants. The scope is broad and, subject to innocence at stake, covers any information that might implicitly reveal the identity. It should be respected scrupulously. The one exception is innocence at stake. This is not altered by Stinchcomb or O’Connor, which recognize that the right to disclosure is subject to privilege. Where the accused wants to challenge a warrant, s/he must establish the innocence at stake exception. Judicial editing can be done only where the court can be certain that the identity will not be revealed. In establishing the exception, the accused must show some basis to conclude that innocence is at stake, then the judge will look at the document to determine whether it is at stake, and then order the disclosure of whatever is necessary to allow proof of innocence. The Crown should be given the opportunity to stay the proceedings. Here, it the edited version should not have been ordered disclosed. Informer privilege is broad and subject only to the innocence at stake exception. The court should not, in general, attempt to edit document to protect the identity and order their disclosure. An informant – might be someone who was involved in criminal activity and now is helping the state Protected witness – someone not involved in criminal activity C. OTHER RELATIONSHIPS: PRIVILEGED OR MERELY CONFIDENTIAL? Slavutych v. Baker [1976] 1 SCR 254 (CBp.835) Jurisdiction Facts S had filled out a “tenure form sheet” which was marked confidential, in which he made disparaging comments about a colleague. Later, that form was used in proceedings for his own dismissal. Issues Holding Reasoning Should the arbitrators have used the content of the tenure form sheet as grounds for dismissal? No Spence -The test for qualified privilege is the one set out by Wigmore: (1) The communication must originate in confidence that they will not be disclosed. (2) The confidentiality must be essential to the maintenance of the full relation between the parties. Page 94 of 107 Monika Rahman Autumn 2007 (3) The relation must be one which the community believes worthy of being “sedulously fostered” (4) The injury which would inure in the relation as a result of disclosure must be greater than the benefit gained for the correct disposal of the litigation. Ratio Comments All four of these conditions are met in this case, contrary to the finding of the CA. But, this case should be considered as raising a question of confidentiality, and not decided on the basis of the doctrine of privilege. The CA found, and we agree, that the tenure process occurred under an umbrella of confidence, which means that the document should not be used in dismissal proceedings. Wigmore test for qualified/case-by-case privilege. Tenure documents are confidential and should not be used in dismissal proceedings. Only thing this case is here is for the proposition that Wigmore criteria are key criteria for whether communications should be privileged R v. Gruenke [1991] 3 SCR 263 (CBp.843) Jurisdiction Facts G and her bf were involved in an incident that led to the death of G’s longtime client and acquaintance. After his death, she had discussions with her pastor and a counsellor that the pastor had previously assigned to her. They were both called as witnesses. She was convicted, and the CA agreed that the conversations were neither protected by a CoL privilege nor confidential communications that should not have been disclosed pursuant to Slavutych v. Baker. Issues Holding (1) Were the conversations privileged? (2) Were they nonetheless protected from disclosure by reason of their confidentiality? (1) No (2) No Page 95 of 107 Monika Rahman Autumn 2007 Reasoning Lamer: Draws the distinction between class/blanket/prima facie privileges and case-by-case privileges, the latter being generally governed by the Wigmore test. There is no CoL class privilege. The historical arguments are inconclusive, so it comes down to a question of policy. The policy reasons for solicitor-client privilege do not apply to religious communications, as the latter are not inextricably linked with the proper functioning of the judicial system. S. 2(a) does not change this matter, as the issue of whether denying the privilege leads to a violation of the Charter must be determined in the circumstances of each case. The Wigmore test will be satisfied in some cases of religious communications, as it was in R v. Church of Scientology. In applying the test, both s. 2 and s. 27 must be kept in mind, which means that no religious relations should be favoured vis-à-vis other religions. Here, the test is not met because (a) the communications were not given in confidence. She had already decided to cooperate with the police and was merely seeking emotional support. Ratio L’H-D Agrees about the application of the Wigmore test, but thinks there should be a general religious communications privilege because of the social value of religious communications and the Charter protection of freedom of religion. The human need for a spiritual counselor must be recognized as a form of freedom of religion. Wigmore himself concluded that the pastor privilege met the four step test. Continuing with an ad hoc approach overshadows the long-term interest which the protection of religious privilege seeks to preserve. Wigmore, in designing the test was interested in the long term social benefits of the privilege, not the benefits in each case. The lack of a recognized category undermines freedom of religion. So, though there should be a general privilege, in each case the relationship must be examined to see if it falls within the category: Does the communication involve some aspect of belief, worship or practice? Is the religious aspect the dominant feature? How significant is the religious aspect? Is the religious aspect sincere or colourable? Once this is met, the communications must also meet the other aspects of the Wigmore test. This raises complex questions, which must be saved for another day? There is no generalized religious privilege, but religious communications can be privileged if they meet the Wigmore test for ad hoc privileges. Gruenke With today’s reality’s Charter reality, blah blah, we’re now going to use case by case basis. The statement she made to her pastor is not confidential. Greunke is now the basis for all case by case analyses. Same debate as with principled approach to hearsay – are we actually moving forward or are we contributing so much cloudiness to the subject that we’ll suffer on the side of lack of clarity. D. PRIVILEGE AGAINST SELF-INCRIMINATION Dubois v. The Queen, [1985] 2 SCR 350 (CBp.882) Jurisdiction Facts D was charged with M2. He testified, alleging justification. He won his appeal. He elected not to testify at the second trial, but the crown, over the defence’s objections, read the Page 96 of 107 Monika Rahman Autumn 2007 Issues Holding Reasoning Ratio testimony into the record. The Charter was in effect for the second trial, though not for the first. When a new trial is ordered on the same charge, can the crown adduce as evidence in chief the testimony given at the former trial? No Lamer (+5) A plain reading of s. 13 shows that it protects against self-incrimination, which makes it closely related to s. 11(c) and 11(d). 11(d) establishes the concept of the case to meet, which includes both the crown’s ultimate burden and the accused’s right to silence. 11(c) is also related to the case to meet, and it and s. 13 give the accused the (initial) right to silence. The issues to be determined are: (1) who benefits from the right (2) how to interpret ‘incriminating evidence’ and ‘used to incriminate’ and (3) the interpretation of ‘other proceedings’. 11(c) is determinative of the first two, and 11(d) of the third. S. 13 applies to all witnesses, including an accused who previously chose to testify. ‘Incriminating evidence’ means evidence that is incriminating in the second trial. The literal reading, which supports the crown’s argument that it means incriminating at both trials, runs counter to the purpose of s. 13—the protection against self-incrimination. ‘Any other proceedings’ must include a previous trial, else both the ‘case to meet’ and the estoppel engendered by s. 11(c) would become superfluous for those who stand two trials. Testimony given by the accused at a previous trial on the same charge cannot be used to incrimination the accused at a second trial. R v. Kuldip, [1990] 3 SCR 618 (CBp.887) Jurisdiction Facts In a case of leaving the scene of an accident, the crown sought to cross the accused, at the second trial, using the testimony at the first trial, to impeach his credibility. Issues Can prior testimony be used to impeach the accused’s credibility? Holding Yes Reasoning Reasoning: Lamer (+3) In Mannion, it was held that the use of prior testimony to establish a guilty conscience contravened s. 13. In the CA, Martin argued that s. 13 was added to remove the injustice created by s. 5(2), which gave advantages to sophisticated or well-represented witnesses that were not available to others. He also concluded that s. 5(2) precludes any use whatsoever of the evidence at a later proceeding, and that, because s. 13 was designed to offer greater protection, it must be read to do the same. This is not an acceptable way to interpret s. 13. Charter rights are background rights, and there’s no reason to assume that they are more powerful that other statutory rights. Moreover, s. 5(2) would not prevent the use of prior statements to undermine credibility, as the provision is only intended to protect from crimination. [Why is he applying a purposive analysis to a statute?] Thus, neither s. 5(2) CEA nor s. 13 of the Charter prevent the use of prior statements to impeach the accused’s credibility. Dissent: Wilson (+2) Agrees with Martin JA. Ratio Comment S. 13 does not preclude the use of prior testimony to impeach the accused’s credibility at trial. The SCC has held that the distinction between incrimination and undermining credibility is Page 97 of 107 Monika Rahman Autumn 2007 not relevant in any of the following situations: the CoL confessions rule; the right to silence under s. 7; or the exclusion of evidence under s. 24(2). So, why is it allowed for s. 13? R v. Noël, [2002] 3 SCR 433 (CBp.890) Jurisdiction Facts Noël, with very low IQ, and his brother were charged with the murder of a 9 year old Magog boy. Noël made a number of incriminating statements to police at time of arrest. Both brothers charged with murder. At his brother’s trial Noël confirmed the truthfulness of his statements to the police, and admitted to being his brother’s accomplice in the murder, although he invoked s.5 protection. At his own trial for murder, his defence was that his brother had killed the victim, and that he had only assisted in disposing the body. He also repudiated his statements to the police. On the basis of Kuldip, the Crown was permitted to cross-examine him at length on the basis of his testimony at this brother’s trial. The judge gave clear instructions both before and after the cross-examination that the jury was to consider the prior testimony only for the purposes of assessing credibility, not for guilt. Noël was convicted of first degree murder. The conviction was upheld at the QCA, but Fish JA dissented at the CA and the case went to the SCC as of right. Issues Reasoning Should the previous testimony have been admitted? NO. Arbour J (6-1 majority) Kuldip remains good law. However, s.13 means that “When an accused testifies at trial, he cannot be crossexamined on the basis of a prior testimony unless … there is no realistic danger that [it] will be used to incriminate him.” Martin JA was correct in Kuldip: CEA s.5 and Charter s.13 are “co-extensive” (although the latter is automatic). The danger of incrimination will vary with the nature of the prior evidence and the circumstances of the case, including the efficacy of an adequate instruction to the jury. The “mental gymnastics” required to distinguish impeachment of credibility from incrimination would be “absurd” to demand of the jury, even with clear jury instructions. In Kuldip the prior evidence was not itself incriminating, here it was very incriminating. And in the cross-examination, at certain points the Crown went beyond pointing out inconsistencies, it actually attempted to get Noël to adopt the incriminating portions of his prior testimony. L’Heureux-Dubé (sole dissent) By asking Nöel whether the previous or the present testimony was true, the Crown was not inviting him to adopt his previous testimony, it was indicating the inconsistencies in his testimony. Comments SECTION 7 Right against self-incrimination -TO what extent can the crown use information obtained by questioning a witness in a later proceeding against that witness. In R. v. S. (R.J.) [1995 SCC], in a four judgment decision, the SCC held that the Charter protection against self-incrimination and the right to silence provided three protections to a person being subpoenaed, most likely leading to self-incriminating testimony: 1) a witness can’t be compelled to testify if the proceeding are adversarial against you but can be if the proceedings are NOT adversarial against you Page 98 of 107 Monika Rahman Autumn 2007 2) if compelled, in subsequent proceedings, entitled to the “use immunity” granted under s. 13 and 3) also entitled to a form of “derivative use immunity” if the Crown uncovered derivative evidence (i.e. not created by you and thus not technically self-incriminating) against you as a result of your testimony in the previous testimony If disclosure of info through invasion of S-C privilege (through McClure application), then s.7 applies in the same way as if he had been compelled to testify as a witness (i.e. #2 and 3 above apply). The SCC has rendered found major, and all split decision cases, on the principles set out in this case in: BSSC v. Branch, Primeau, Jobin, and Phillips v. N.S.. The result is that the court must 1) first consider the importance of compelling testimony, and 2) if the primary purpose thereof is to obtain evidence for the prosecution of the witness, s. 7 required that the witness be exempt. 3) If there is some other primary purpose that is legitimate, the court must then balance the right of the witness/accused against the interest of the state in receiving the compelled testimony. 4) The witness may not be compellable if she can show that the right to a fair trial will be jeopardized even with the non-use of the testimony and any derivative evidence in later proceedings. (this doesn’t actually seem to be in the text…) Bill C-36 added a serious wrinkle: If suspected of terrorism, the AG, under s. 83.28(2) can consent to an “investigative hearing” at which you can be compelled to testify, provided that the evidence is not privileged or otherwise protected from disclosure. Under s. 83.28(10), you will be forced to answer selfincriminating questions, but it can be used against you in later prosecutions under s. 132 or 136 (perjury and contradictory evidence). -Does the judge retain the s. 7 power to exempt the person from testifying if the S.(R.J.) conditions are met?? III. WITNESSES 1. COMPETENCE AND COMPELLABILITY November 29, 2007 Deal with whether a person has something to say, that they are capable of communicating, or whether or not there is some reason in law that they not be allowed to come forward and say it. Generally refers to whether you’re ABLE Can a court compel you – i.e. force to make you come forward if you choose not to At common law, parties to a case, spouses, convicted felon, the insane, anyone who did not believe in a supreme being were not competent If you’re not competent at CML, you no longer have a choice. You might want to take a peek at some point at s.3 of the CEA – a person is not incompetent by reason of interest or crime A. SPOUSAL COMPETENCY Traditionally spouses were incompetent, because as Whigmore said, “it is repugnant to see one spouse testify against the other. Page 99 of 107 Monika Rahman Autumn 2007 This has now changed as far as the accused. Question now: why is it that this relationship of marriage is in a separate category? Why not for CML partners? Or parents with spouse? What about caregiver and dependent? Development of the Law: a. The accused became competent for the defence—spouse was still neither compellable nor competent b. Section three of the CEA disposed of interest. This is when spousal incompetency c. Problem arose – when spouse was the victim – so an exception occurred at common law when a case involved the person, health, or liberty of the spouse, spouse became compellable. d. Another problem arose – what if it was person, health, liberty of children? Spouses still incompetent. i. NOW s.4 renders spouses competent and compellable for a certain list of crimes e. The cases have begun to erode the rule of spousal incompetency to permit irreconcilably separated but not divorced spouses when they don’t fit into the legislative or CML exceptions a) Who is a Spouse? R v. Salituro, [1991] 3 SCR 654 (CBp.20) Jurisdiction Facts S was charged with forging his wife’s name on a check, after they were separated. His defence is that he did so with her authority. At the time of trial, they were irreconcilably separated. She testified to the contrary, and the judge accepted her testimony. Issues Holding Reasoning Is there a CoL exception to the rule against spousal competence for the crown for spouses who are irreconcilably separated? Yes Iacobucci: The basic rule: spousal incompetence for the crown. The judicial can make those incremental changes to the CoL that are necessary to keep it in step with “the dynamic and evolving fabric of our society.” The policy justifications for this rule are no longer valid vis-à-vis separated spouses. The rule on spousal incompetence originated with Coke. There are four policy justifications, the latter two of which have not survived: (1) the need to protect marital harmony (2) the “natural repugnance” to making spouses testify against each other (3) the fact that husband and wife are in law a single person and (4) the fact that the interests of the husband and wife are identical. Not only is the rule somewhat atavistic, but, more fundamentally, the grounds that have been used to support the rule are inconsistent with the Charter protections of individual liberty and dignity. Family law recognizes, now, that marriage is a partnership between equals. The only issue on this appeal is the competence of irreconcilably separated spouses. The competence of united spouses and the compellability of all spouses is not being decided. In situations where the CoL is inconsistent with the Charter, judges should endeavour to incrementally change it to achieve consistency. This is the perfect case for incremental change—on the narrow issue in appeal. The pattern of legislation shows only that the legislatures have not addressed the issue, not that they have ratified the CoL rule. Page 100 of 107 Monika Rahman Autumn 2007 Ratio Irreconcilably separated spouses are competent crown witnesses. She wanted to testify against him. Because of s. 4(5), the issue must be resolved by the CoL. The issue is: Do the policy justifications apply? Salituro: Salituro raises the question, why are we keeping this law that makes a spouse incompetent for the prosecution alive in the case of irreconcilable spouses? Court asks whether they have power to change this rule? Court says that they have the power for incremental change in situations where there is a marriage, but where the justifications no longer apply Court won’t deal with whether a spouse competent for the prosecution settles the issue for compellability (see p.25) (make a comment, but it’s only obiter) R v. Hawkins, [1996] 3 SCR 1043 (CBp.27) Jurisdiction Facts H, a cop, was on trial for his activities with a biker gang. Most of the information that led to the charge came from his girl-friend/CoL partner. Their relationship was very violent and stormy. She testified at the preliminary, but then came back and recanted most of her testimony. A week after the beginning of the trial, they got married. The TJ and the CA ruled that she was not competent to testify. Issues Holding Reasoning Should the CoL rule on spousal incompetence be changed? No Lamer & Iaco (+2) Ratio Comment The CoL rule is that spouses are incompetent in criminal proceedings against their spouse. This has been modified by the CEA in respect of a definite list of provisions. Some have suggested that spouses should be competent but not compellable. Another alternative ito declare them both competent and compellable, which would be consistent with the CoL rule that competence implies compellability. Any changes here would be of sufficient significance that only Parliament should undertake them. Courts can only adopt incremental changes, and any of the suggested changes go to the heart of the CoL rule and the two main justifications: marital harmony and the repugnance of testifying against one’s spouse. Also, the suggestions that exceptions be created for marriages solemnized after the indictment or solely for the purpose of insulating the witness also go to the heart of the policy rationale. Unless the marriage is a total sham, the only purpose of which is to avoid liability, there is no valid exception. Here (though there is evidence that they got married at least partially to ensure that she wouldn’t be compellable), the marriage is genuine—they’ve been married for 7 yrs now. LaForest: Wants to stress that this appeal is only about compellability, not competence, as she is willing to testify. Any major modification of the CoL rules on spousal compellability and competence must come from Parliament and not the courts. This case shows a pretty ridiculous side of the rule: Competent as girlfriend, incompetent as spouse. -If they had gone further, they would also have had to determine compellability. In McGuinty, in obiter, the court said that competence implies compellability. Hawkins: Page 101 of 107 Monika Rahman Autumn 2007 Woman testifies against Hawkins at preliminary inquiry and marries Hawkins before the trial Court picks up on obiter in Salituro about whether spousal competence applies to compellability. Court says no and that any significant change should not be made by the court. In this case, the wife doesn’t want to testify so it’s not the same ballpark as Salituro. When Hawkins was at the court of appeal, Arbour was there and said what SCC eventually agreed with – we’re not in the position to abolish spousal incompetence. However, she didn’t like the circumstances of this marriage (seemed too convenient), so she looked at some other section of the evidence act to allow the statements. In the rest of the readings, we had a lot of stuff about whether a witness has to make an oath in order to be competent McGinty does this competence imply compellability? B. ACCUSED’S FAILURE TO TESTIFY R v. Noble, [1997] 1 SCR 874 (CBp.71) Jurisdiction Facts Someone was seen trying to jimmy a lock with a screwdriver. The manager of the building in whose lots they were in demanded to see the ID of the perpetrator. The perpetrator handed the manager an expired license. It was the accused’s license. In his decisions, the TJ made reference to the accused’s failure to testify. Noble was convicted with B&E. Issues Did the TJ err in relying on the failure to testify in deciding the case? Holding Yes Reasoning Sopinka (+4) Any use of the accused’s failure to testify will, in general, violate the right to silence and the presumption of innocence. The right to silence is premised on our distaste for forcing people to incriminate themselves, so the use of silence to establish guilty BRD violates that rationale. It is tantamount to conscripting communicative evidence. Using the failure to testify also violates the presumption of innocence to the extent that it allows conviction where the crown’s case wouldn’t otherwise be sufficient to satisfy BRD. The only sense in which reference to the silence is relevant is if the TJ is already satisfied of guilty BRD, and is merely pointing out that the accused failed to present a valid explanation or a defence. The TJ is simply saying that she cannot speculate on unspoken explanations. Lamer seems to think that silence can be used where (1) the Crown has already fulfilled its case to meet and (2) where the accused is “enveloped in a cogent network of inculpatory facts.” Both of these violate the right to silence and the presumption of innocence because they allow conviction where RD otherwise exists. The only acceptable use of the non-testimony is the one already mentioned, it can be pointed out that the accused has failed to contradict or explain crown evidence. There are differences between TJ also and TJ with jury, in that s. 4(6) forbids commenting on the failure to testify to the jury and in that juries do not give reasons, so even if they commit errors of law, we have no way to correct those errors. The constitutional validity of s. 4(6) is not in issue, but it may be constitutional, despite the foregoing in that it allows the defence counsel alone to comment on the nontestimony. Vézeau provided a narrow exception for alibi cases. If the defence is alibi, and the accused fails to testify, this can be considered in assessing the defence because (1) of the potential for fabrication and distraction and (2) because it’s already recognized at Page 102 of 107 Monika Rahman Autumn 2007 Ratio CoL that failure to make an alibi defence while the crown still has time to investigate it can lead to a negative inference against the credibility of the defence. Here, it’s not certain that the TJ did not rely on the failure to testify in finding guilt BRD, so there must be a new trial. Except where there is an alibi defence, the fact that an accused does not testify can in no way be used to establish guilt beyond a reasonable doubt, though it can be referred to by the trial of fact simply to note that the crown evidence has not been contradicted, explained or justified. 2. CREDIBILITY In most cases, there’s a factual debate and each party tries to bring witnesses to support its position. What factors do judges use to evaluate credibility: Demeanour Frankness (i.e. will admit to a weakness in their version) Detail of memory Corroborating evidence Fluidity of information (rehearsed?) Emotions displayed Contradictions/consistencies with previous statements Have they lied in the past (character...) Factors in credibility: When the witness pleads their version, it’s no good (e.g. when they say “the plaintiff says, but that’s stupid because...”) Failing to admit what’s obvious Confused testimony Reputation for veracity Capacity of the witness to have seen what happened accurately (lighting, etc.) The more you give detail, the more reliable you are. Trial judges have to give some indication about why they’ve come to a decision When you have contradictory versions of a story and it’s strictly a matter of credibility. Judge has to be convinced beyond a reasonable doubt. If the judge doesn’t know who to believe, that’s a doubt, so you have to acquit. Testimony of the accused (page 1001): If after having heard the whole case you believe the accused, you must acquit If you don’t believe the story of the accused but you’re left in reasonable doubt by it, you must acquit Even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced BRD by that evidence of the guilt of the accused. One more thing about demeanour – people are nervous and hesitation or speed etc, doesn’t mean that you’re lying. Recall that in Aboriginal communities it is impolite to look someone in the eye. Page 103 of 107 Monika Rahman Autumn 2007 IV. CONCLUSION & REVIEW From Healy Summaries: Throughout all of the above topics, the court keeps erasing rules in favour of broad principles, which all amount to weighing PV and PE. Even necessity and reliability are just different lenses for PV and PE. There is an ever-present tension between the attraction of principles/discretion and the disvalue of inconsistency/uncertainty. Rules, however, often overshoot their rationale in their application. What will the SCC do when it, like in Starr, wakes up and asks: What are we doing? Will the pendulum start swinging back the other way? How does this trend affect the appeal process? Admissibility remains a question of law, but the issues become much more fact sensitive. Appellate courts have been granting more and more discretion to TJ’s. Evidence is about how we claim to know things. December 4, 2007 Sherman and Grenier came in at Section 9 – here’s what we’ve covered since then: Hearsay 9 - 131-154 10/11 199-269) Admissions and Confessions 12/13 -- 527-599 Illegally-Obtained Evidence 14/15 – 603-674, 681-692 711-743 (did not do Burlington 675-81, goldheart, melen?, calder) Opinion 16/17 –271-299, 317-325 (Did not do Dow, Belan, Abbey) Judicial Notice 18 -- 931-952 Privilege 19/20 – 751-756, 762-785, 807-816, 830-8, 843-853, 882-918, Henry was mentioned in class but not in book (did not do 786-807, 817-830, Ryan at 853-60, whole section of protecting privacy 860-881 Competence and Credibility 21 – 19-44, paragraph on 66 on accused failure to testify, 71-80 Cases we covered not in the casebook: Spencer (2007) SCC 11 (March 8) Page 104 of 107 Monika Rahman Autumn 2007 Singh (2007) SCC 48 (November 1) Khelowan Clouture One mandatory question and 2/3 in part B. Note: to the extent that CEA provisions are referred to in class, we need to be aware of them Hearsay We started with the admissibility of hearsay importance of how there’s no oppty to test the truth of what was said. Traditionally this meant that the info might not be reliable. Not hearsay if it comes from one of the parties and if not offered for truth of its contents. Briefly referred to Tepper(?) – spontaneous utterances at the scene of the crime At CML there were a lot of exceptions – we didn’t really deal with them. Imptce is knowing they exist and knowing what kinds of situations were dealt with in the cases we read – in those situations there is reason to believe the statements would be reliable. Touched on Wildman – statement tendered to prove state of mind of appellant – telephone call Case about letters written to show someone is competent to do business – pretty old – shows what info might show if not for truth of contents In 1990 – SCC started reasoning through the principled approach to hearsay – nurse’s notes case and Khan. Smith came after Khan (4 phone calls case) – do these phone calls have circumstantial guarantees of trustworthiness? Principled approach doesn’t only apply to cases involving children. K.G.B. had to do with statements made by three accomplices of the accused – prior inconsistent statement – there are indicia of reliability which may allow hearsay to be introduced through the K.G.B. approach. Reasons HS inadmissible is b/c can’t cross-examine person making statement but if there are indicia of reliability – statement made under oath, witness is warned of risks incurred if he lies, or if person is in court later and can be cross-examined, then we can accept the previous inconsistent statement not just to impeach credibility of witness but also to admit truth of the contents. Bringing reliability into the admissibility analysis spurred great debate Compared reasoning in Hawkins/Clouture and Starr/Khelawon and talked about the implications of a divided court. U.F.J. – strikingly similar statements – mentioned briefly in book to help us understand reasoning in Khelawon – is this an indicator reliability? Distinguished because these were same incidents whereas in Khelawon it was different incidents Hawkins – transcript from preliminary inquiry admitted as N&R. Debate raised by these cases what will be enough to guarantee trustworthiness in the future? Clouture (June 2007) – accused’s wife was interviewed by cops, prosecution wanted to admit what she said to cops under principled approach. In Clouture, SCC in a divided judgment said that the TJ was wrong in following Hawkins. In Hawkins the wife first testified when they were not married. Reliability of what the lady said to cops was debatable, whereas in Hawkins she was sworn before a judge. o Court backtracked and said, in addition to being N&R, this kind of evidence only admissible if its admission would not undermine the spousal incompetency rule and its rationale. Starr can something go in if evidence fits in an exception but is not N&R. The issue was the statement could establish how Starr got Cook alone. Discusses the hearsay cases o Talks about interaction b/w exceptions and principled approach o In Khelawon, distinction b/w ultimate and threshold reliability gone – and has her own assessment of how factors Page 105 of 107 Monika Rahman Autumn 2007 o Four criteria for hearsay becoming admissible What are the factors you can look at Can now allow corroborating evidence Admissions & Confessions Rothman – pre-charter case – police action that specifically undermined accused right o Key case on admissibility of admissions/confessions o How impt is that Rothman believed that cop was a person in authority? Turned out court found he did not think that o Discusses Ibrahim – 1914 case – statement to person of authority is only free and voluntary if not influenced by fear of prejudice or inducement of advantage – law considers such statements to be dangerous o Majority let it in. Dissent was concerned about a police officer disguised getting a statement. Lamer creates a theory about trickery (p.554) – talks about a third category of statements that would bring whole system of justice into disrepute. Talks about community shock test. We talked about pre-trial conduct/silence. This is something that normally should not be introduced into evidence but because suspect has the right to remain silent at all steps and accused does not ha Eden – three teenagers joyriding, police ask questions, answers given by two boys are incriminating for the accused but accused doesn’t say anything. Court of Appeal says right to silence is more important than determining what would be the normal reaction of someone to another person who says something incriminating about him. Section 5 of the CEA that applies Sweeny – defence of insanity – accused did not want to submit to psych assessment – silence can some Chambers – lawyer charged with drug-related offences. Cross-examined by prosecution about why he didn’t say what he said to the police o SCC – cannot cross-examine someone about his silence Ward/Whittle – if a judge has a doubt whether the accused had an operating mind (was he all htere?) when he talked to the police, it’s not a question of weight but admissibility. o In Whittle – schizophrenia case Hodgson – extremely important – what’s a person in authority. Complainant said accused sexually assaulted her, and his family bothered him until he allegedly confessed. Was his family “person in authority”? o What do you do with civilian? – Rely on objective standard or subjective? Subjective. o It’s up to the defence to raise the issue of whether the person is a person in authority o Why do we have a confession rule? If someone incriminate himself, we want to make sure it’s reliable. The main issue is not whether it’s true or not, but reliability and the fairness of the statement Oickle – discussion at 582 and 582 regarding the goal of the confessions rule, and why false confessions occur – vulnerable accused o If a suspect has generally been treated well enough, some excesses don’t make a big difference o Arbour dissented and particularly didn’t like the use of a polygraph Spencer – new case, very important o Question of whether we’re encouraging the police to exploit emotions to go as far as they did in Spencer. Majority agreed with the TJ. o Fisch dissented and went through the traditional rule and why TJ’s decision didn’t respect the traditional rule. Page 106 of 107 Monika Rahman Autumn 2007 Hebert – dealt with the development of Charter protection of right to silence o Courts should follow approach in Rothman Singh – How far are we going to let police go before we say right to silence– debate between Justice Charron and Fisch. Post-offence conduct – can Crown use post-offence conduct to prove its case? Can we infer from behaviour like running away that someone is guilty? o Arcangioli – have to be careful in drawing a conclusion from post-offence conduct. Postoffence conduct doesn’t apply to levels of culpability (i.e. common assault vs. aggravated assault) whereas if you denied committing the crime, then post-offence conduct can be used as positive element of its case?? o Where the reason for post-offence conduct is not clear, then be very careful Improperly Obtained Evidence Section 8 gives more protection than Conflict of interests – privacy vs. gov’t interest to further legitimate goals Edwards – who has a reasonable expectation of privacy? Who can invoke the violation of their rights? Edwards could not control who would come into the girlfriend’s house Hunter and Southam – first s.8 case – equivalent of a search warrant from director of combines investigation act. o There has to be a weighing of interests and only judge or some kind of judicial animal can decide that it’s appropriate to search somebody’s house/office – people who are investigating should not be issuing orders. o Assessment of criteria should be strict without too much discretion to the judicial animal Tessling – infrared heat-analyzing technology. Is there a reasonable expectation of privacy? The search was for information about the hosue and not of the house. SCC found that this was not infringement of privacy but if the science was more intrusive and could see through the house then it wouldn’t be cool. Collins – key case in exclusion of evidence under 24(2) – search will be reasonable if authorized by law, if law is reasonable and execution of law is reasonable o To what extend is police activity is taking a flying leap and getting someone in a throathold so unreasonable so as to exclude evidence? o Note Collins and Edwards are in two different places in the book – important Mann – found soft Bartel – s. 10(b) of the Charter – informational (accused told he has right to consult counsel) and facilitate meaningful access to a lawyer A number of cases – Strachen, Collins, Stillman – is it real evidence, discoverable, etc.? Privilege Have a development similar to what we see in the law of hearsay Case by case basis rather than class of privilege bases Solicitor-client privilege is the class privilege recognized by law Henry etc. – can’t file into evidence into second trial accused’s testimony from first trial. But if all you want to do is affect credibility then it’s okay Ask: What is this chapter telling me about the development of the law? What’s happening to the law of evidence in Canada? Where are we coming Page 107 of 107
