Basic Principles ........................................................................................................................................... 4
Preliminary Considerations ...................................................................................................................... 4
Burdens and Standards of Proof ............................................................................................................... 6
Burdens of Proof .................................................................................................................................. 6
Standards of Proof ................................................................................................................................ 9
R v. Lifchus [1997] SCC ................................................................................................................. 9
Admissibility and Exclusion ..................................................................................................................... 10
Relevance ............................................................................................................................................... 10
R v. Morris [1983] SCC ................................................................................................................. 11
Character................................................................................................................................................. 12
R v. McNamara [1983] ON CA ..................................................................................................... 14
Reputation in the Community ............................................................................................................ 15
R v. Rowton [1865] ENG .............................................................................................................. 15
R v. Levasseur [1987] AB CA ....................................................................................................... 16
R v. Profit [1992] ON CA .............................................................................................................. 16
Summary: ....................................................................................................................................... 17
Psychiatric Evidence in Relation to Character ................................................................................... 18
R v. Lupien [1970] SCC ................................................................................................................ 18
R v. Robertson [1975] CA ............................................................................................................. 19
R v. Mohan [1994] SCC ................................................................................................................ 20
R v. McMillan [1975] CA.............................................................................................................. 21
Methods of Proving Character: Victims ............................................................................................. 21
R v. Scopelliti [1981] CA .............................................................................................................. 21
Similar Fact ............................................................................................................................................ 22
Makin v. Attorney General for new South Wales [1894] CA........................................................ 24
R v. Smith [1915] CA .................................................................................................................... 25
R v. Straffen [1952] ENG .............................................................................................................. 25
DPP v. Boardman [1975] ENG HL ............................................................................................... 26
Sweitzer v. The Queen, [1982] SCC .............................................................................................. 27
R v. B.(C.R.), [1990] SCC ............................................................................................................. 28
R v. Handy, [2002] SCC ................................................................................................................ 29
Hearsay ................................................................................................................................................... 31
Subramaniam v. Public Prosecutor, [1956] ................................................................................... 32
R v. Wildman, [1981] ON CA ....................................................................................................... 33
R v. Wysochan, [1930] SK CA ...................................................................................................... 33
Hearsay by conduct ............................................................................................................................ 34
R v. McKinnon, [1989] ON CA..................................................................................................... 34
Principled Approach to Hearsay......................................................................................................... 34
R v. Khan, [1990] SCC .................................................................................................................. 35
R v. Smith, [1992] SCC ................................................................................................................. 36
R v. B. (K.G.), [1993] SCC - KGB ................................................................................................ 37
R v. Hawkins, [1996] SCC ............................................................................................................ 39
R v. Couture, [2007] SCC .............................................................................................................. 40
R v. Starr, [2000] SCC ................................................................................................................... 42
R v. Khelawon, [2006] SCC .......................................................................................................... 43
Admissions and Confessions .................................................................................................................. 45
Pre-trial Conduct: Silence .................................................................................................................. 45
R v. Eden, [1970] ON CA .............................................................................................................. 45
R v. Sweeney, [1977] ON CA ....................................................................................................... 46
R v. Chambers, [1990] SCC .......................................................................................................... 47
Pre-trial Conduct: Consciousness of Guilt ......................................................................................... 47
R v. Arcangioli, [1994] SCC.......................................................................................................... 47
R v. White, [1998] SCC ................................................................................................................. 48
Confessions ........................................................................................................................................ 49
R v. Rothman, [1981] SCC ............................................................................................................ 50
R v. Hodgson, [1998] SCC ............................................................................................................ 51
Voluntariness: Operating Mind .......................................................................................................... 52
Ward v. The Queen, [1998] SCC ................................................................................................... 52
R v. Whittle, [1994] SCC............................................................................................................... 53
Voluntariness: oppression .................................................................................................................. 54
R v. Oickle, [2000] SCC ................................................................................................................ 54
Illegally Obtained Evidence ................................................................................................................... 56
Right to Remain Silent Under S. 7 of the Charter .............................................................................. 57
R v. Hebert, [1990] SCC ................................................................................................................ 57
R v. Singh, [2007] SCC ................................................................................................................. 58
Search and Seizure ............................................................................................................................. 59
R v. Tessling, [2004] SCC ............................................................................................................. 60
R v. Collins, [1987] SCC ............................................................................................................... 61
Hunter v. Southam, [1984] SCC .................................................................................................... 62
R v. Mann, [2004] SCC ................................................................................................................. 63
Right to Counsel ................................................................................................................................. 63
R v. Bartle, [1994] SCC ................................................................................................................. 64
Principles of Exclusion Under the Charter: Standing......................................................................... 65
R v. Edwards, [1996] SCC............................................................................................................. 65
The Link Between the Breach and the Evidence ............................................................................... 65
R v. Strachan, [1988] SCC............................................................................................................. 65
Bringing the Administration of Justice into Disrepute ....................................................................... 66
R v. Stillman, [1997] SCC ............................................................................................................. 66
Privilege .................................................................................................................................................. 67
Exceptions: Public Safety................................................................................................................... 68
Smith v. Jones, [1999] SCC ........................................................................................................... 68
Exceptions: Innocence at Stake .......................................................................................................... 69
R v. Brown, [2002] SCC ................................................................................................................ 69
Exceptions: Informer privilege ........................................................................................................... 69
R v. Leipert, [1997] SCC ............................................................................................................... 70
Other relationships: Privileges or Merely Confidential...................................................................... 71
Slavutych v. Baker, [1976] SCC .................................................................................................... 71
R v. Gruenke, [1991] SCC ............................................................................................................. 71
Privilege against Self-incrimination ................................................................................................... 72
Dubois v. The Queen, [1985] SCC ................................................................................................ 72
R v. Kuldip, [1990] SCC................................................................................................................ 73
R v. Noël, [1990] SCC ................................................................................................................... 74
R v. Henry, [2005] SCC................................................................................................................. 75
Judicial Notice ........................................................................................................................................ 76
R v. Zundel (1), SCC ..................................................................................................................... 77
R v. Zundel (2), SCC ..................................................................................................................... 77
R v. Potts, [1982] ON CA .............................................................................................................. 78
Opinion ................................................................................................................................................... 78
Non-expert opinion ............................................................................................................................ 78
R v. Graat, [1982] SCC .................................................................................................................. 78
Expert Evidence ................................................................................................................................. 79
R v. Mohan, [1994] SCC ............................................................................................................... 79
R v. Lavallee, [1990] SCC ............................................................................................................. 80
Witnesses.................................................................................................................................................... 81
Competence and Compellability ............................................................................................................ 81
Accused’s Failure to Testify .............................................................................................................. 82
R v. Noble, [1997] SCC ................................................................................................................. 82
Spousal Competency .......................................................................................................................... 83
R v. Salituro, [1991] SCC .............................................................................................................. 84
R v. Hawkins, [1996] SCC ............................................................................................................ 84
Credibility ............................................................................................................................................... 85
Basic Principles
Preliminary Considerations
There is one overarching rule of evidence: Everything that is relevant to a fact in issue is admissible
unless there is a legal reason for excluding it.
- Evidence is not admissible unless it is: (1) relevant; and (2) not subject to exclusion under any
other clear rule of law or policy.
Characteristic feature - strict principles relating to the admissibility of info.
 This is b/c of history of trial by jury
 Judge regulates admissibility of evidence
 Relevant substantive law has to be identified at beginning of case….but throughout there will be
questions of evidence to prove stuff.
 What evidence can be used and for what purpose(s)
Start with discussion of burden and standard of proof in criminal matters.
Different types of evidence. Judicial notice.
Proof – conclusion of proposed inference. Evidence may lead to this….but not necessarily.
Evidence: Indication (or could be).
Direct Evidence: For e.g., an eye-witness account would be direct evidence. See the actual act.
Indirect Evidence: For e.g. see a person running from a house covered in blood holding a knife.
Conflict b/n Truth and Justice: May come into conflict – one might have to take priority.
EG#1: Robbery at a filling station, attendant killed by shot from rifle. Police “chat” with accused.
Accused tells police where rifle is to be found. He is escorted to place (swamp). Recover gun and
ballistics show rifle did killing. Should this be admitted.
 Fairness of procedure dictates not allowing the evidence.
 But…may be loosing valuable evidence that could lead to conviction of killer (although, on the
facts, only can show that knew where gun was). Injustice to victim.
Choices you make reflect the values in adjudicative process.
Changes can be seen in values of truth and justice. S. 24(2) of the Charter does not allow for inclusion of
evidence where there is a violation of constitutional rights.
EG#2: Accused is charged with murder. Disreputable character as are all his friends. Any hope of
acquittal he has to testify. Problem: previous conviction for murder. Admissible?
 The probative value of the previous conviction – if it is just for character issues, not enough.
Previous conviction not evidence to infer commission of subsequent act.
 What about for credibility of testimony of accused. (warning about credibility of witness).
Assumption there, however, is that people with criminal records lie. This is the case in the law
currently.
Problematic, previous conviction can go to credibility but cannot infer from that fact that it is more likely
that did thing accused of.
 Argument – jury would be inflamed and therefore all should be inadmissible. SCC said we have
more faith in our jurors.
Truth and Justice
Are from time to time, difficult cases that require decisions for reasons of justice despite truth….difficult.
Wray
Case held: Statement was admissible because sufficiently reliable by discovering the gun and a trial judge
at common law has no authority to exclude statements no matter how they were obtained. No remedy for
excluding evidence based on conduct of police.
People still find this conclusion objectionable but the argument that judges have no power to exclude
evidence is still around. SCC held truth of the matter is the most central question and by the gun being
found in the swamp the truth was obtained.
However, truth of the matter might not be the prime value, other values may trump such as justice and
humanity.
Importance of the truth of the matter, which is an essential condition for a system of adjudication versus
extrinsic values important as well (exclusion rule of wife testifying against husband).
Shift in Evidence Rules
Slow shift is currently happening. Distinctive feature in CL was exclusion of certain kinds of evidence.
We seem to be going away from that and moving towards a view that favours broader notions of
admissibility and diminishes exclusionary rules and puts more emphasis on judiciary discretion. Bare this
in mind – called a major shift! (see in partic, hearsay, opinion evidence)
HEARSAY rule
Khan case – doctor charged with sexual assault of 4 year old girl. Admission of hearsay was previously
barred but restated based on necessity and reliability. Could be factors in this case that gave added
impetus.
 Question is: do we have fixed rules of general application or principles that allow for different
outcomes in different kinds of cases.
Evidence and proof are about how we know things that are disputed at trial.
- Are we talking about knowledge or are we talking about justified belief. Note that it is possible
to prove an innocent person guilty of an offence.
Sequence in Court
1. Direct Examination: Witness – direct examination (examination in chief) by crown. Cannot lead the witness.
2. Cross examination by defence: Same rules do not nec apply. Can lead more and go after them quite aggressively.
3. Possibility of re-examination: Governing rule is that this is not a right. Only if something new came out in crossexamination. Discretion of the judge.
-- Next witness – and on and on.
Defence’s case – Defence is not obliged to bring a defence. May not in cases where Crown’s case is so weak.
Reason for this the presumption of innocence.
Addressing the jury by both counsels – note that accused does not always have right to address last. If any evidence
at all brought on behalf of the defence, the accused is first. Review of the relevant evidence then coming to a
conclusion.
Judge explains the law to the jury. Judge must review essential points of the evidence. (summing up) This is a
second fertile ground for appeal (misdirection and non-direction of the jury) Judge cannot fail to adequately
direct jury. Misdirection was a screw-up and non-direction was no direction on a key issue. (first being
procedural screw-up during trial – error with respect to procedure or evidence).
Burdens and Standards of Proof
Burdens of Proof
Evidentiary Burden (burden to produce)
- Obligation to present evidence = evidential burden (arises from the party who wishes to put an
issue before the crt – burden to present evidence on that issue). If you fail to do it, it’s over. (also
called evidentiary burned or burden of production)
- Crown bears both the evidentiary and persuasive burden with respect to the elements of the
offence charged.
- The prosecution must produce evidence on every essential element of the prosecution’s case.
- When might evidential burden be borne by other party? For excuses and justifications. If the
evidence is already before the court – the accused won’t have to call evidence on that question.
But if there is no evidence or insufficient evidence – will bear burden of presenting evidence.
Burden is discharged if evidence presented by defence has an air of reality
o Once the accused has satisfied the evidentiary burden, then the Crown must disprove the
excuse or justification beyond a reasonable doubt
- The judge decides if the prosecution has discharged burden. Standard: if a reasonable jury
properly instructed could find that that evidence proves the issue in question beyond a reasonable
doubt.
- Standard for the defence when they have the burden: accused can bear burden but only in
circumstances where the accused as volunteered to put something in issue – that issue will be
considered by trier of fact only if the evidence is sufficient. Standard: the evidence could lead a
reasonably instructed jury to make a finding that there is a reasonable doubt.
- Whether a party has produced enough evidence for the issue to go to the jury. The judge
determines this. Test is the same even without a jury.
- Judge has an obligation to put to tier of fact any evidence that supports the defence is there is an
air of reality.
Persuasive Burden (legal burden)
- The persuasive burden of proof is on the party who, in law, is required to establish the relevant
facts to succeed.
- persuasive burden, ultimate burden, burden of proof
- The Crown needs to prove its case beyond a reasonable doubt. Burden borne by a party at the end
of the case.
o Had to prove ingredients of the offence beyond a reasonable doubt. Each of the elements.
o Disprove any defences
o Can’t get a conviction unless it proves the whole of the case beyond a reasonable doubt
-
The burden borne by a party to prove an issue at the end of the case. Failure ot prove the issue
means failure of the case.
Defence does not have to prove anything in ordinary course of things. One of the features of
presumption of innocence
Exceptions: reverse onus – Reverse onuses violate the presumption of innocence, although the Supreme
Court of Canada has upheld reverse onuses on several occasions. A REVERSE ONUS puts the burden
on proof on someone who normally does not have it normally.
- By statute, the defence bears the burden to prove some defences
- In relation to presumption of innocence: even where there is a reversal – defence has a burden to
prove the burden on a balance of probabilities not beyond a reasonable doubt.
- Imposition of reversed onus necessarily involves attack on presumption of innocence
- To get a conviction crown has to prove whole of case beyond a reasonable doubt. In ordinary
case, also disprove defence. Where you have reverse onus on balance of probabilities, the defence
produces evidence. If that evidence is enough to raise reasonable doubt – not enough, Must be on
a balance of probabilities. Means that Crown can succeed even if there is something less than
reasonable doubt on the whole of the case.
- The accused succeed in putting issue before the crt (evidential burden met) – raises evidence that
is enough to create reasonable doubt with respect to the defence. In ordinary case that is enough –
but in defences has to be proof on a balance of probabilities. So what happens if evidence clears
evidential burden and provides reasonable doubt on defence but Prosecution can still get
conviction on the case as a whole.
- Healey - Suggests that the value of the presumption of innocence is a negotiable value
Presumptions – A PRESUMPTION is a legal device that allows a trier of fact to reach a conclusion
without evidence. A conclusion can be drawn until the contrary is proved (i.e. presumption of innocence).
There are presumptions of fact as well.
- generally speaking, same logical structure. 2 parts: premise and conclusion. Conclusion presented
as an inference from the premise
- ex. 212(3) – living on the avails of prostitution. Evidence that someone is habitually in the
company of a prostitute is proof that someone lives on the avails of prostitution. Evidence of X is
proof of Y
(3) Evidence that a person lives with or is habitually in the company of a prostitute or lives in a
common bawdy-house is, in the absence of evidence to the contrary, proof that the person lives
on the avails of prostitution, for the purposes of paragraph (1)(j) and subsections (2) and (2.1).
- Problem: proves element of actus reus. Healey – something defective about the presumption.
Break and enter:
349. (1) Every person who, without lawful excuse, the proof of which 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.
Presumption: (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.
- Evidence that you were there is proof of something else: that you were there to commit an
offence. Presumption of mens rea.
In either case – presumption that creates out of evidence of something elements of the offence.
-
Problem: its possible there is a reasonable doubt that there person was there to commit the crime.
Prosecutions job has been done.
o To attack this, the accused will have to provide evidence. This departs form normal
course of things.
Oakes
- Section 8 of the Narcotic Control Act provided for a shift in onus onto the accused to prove that
he was not in possession for the purpose of trafficking. Oakes made a constitutional challenge,
claiming that the reverse onus created by the presumption of possession for purposes of
trafficking violated the presumption of innocence guarantee under section 11(d) of the Charter.
- basic notions about the presumption of innocence. Dealing with narcotics control act: if you
proved possession, the proof of the possession raises presumption of intent to traffic unless
rebutted on balance of probabilities by evidence raised by defence.
o Healey – anytime you have a presumption that concludes...violation of presumption of
innocence
o Why are they still around? – s. 1.
Examples of burdens and presumptions
Presumption from cheque issued without funds
s. 362(4) - 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.
-
makes the case for Crown easier with the presumption
presumption and reverse onus
Crown only has to show that at the time the cheque was passed, there were insufficient funds
o “Unless it is established” – legal burden
Kidnapping
s. 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.
-
plain reverse onus (no presumption)
Weapons
s. 108(4) In proceedings for an offence under subsection (1), evidence that a person possesses
a firearm the serial number on which has been wholly or partially obliterated otherwise than
through normal use over time is, in the absence of evidence to the contrary, proof that the
person possesses the firearm knowing that the serial number on it has been altered, defaced or
removed.
- substantial part of Crown’s case established by presumption
- reverse onus
Depending on how these are formulated – could violate presumption of innocence
- part of Crown’s case is being proved by presumption not the evidence
- Reverse onus – possibility accused can be convicted even if there is a reasonable doubt (see
above)
-
SCC has upheld that these are reasonable limits
Standards of Proof
Beyond a reasonable doubt
R v. Lifchus [1997] SCC
Facts:
- SCC deciding what the definition of beyond a reasonable doubt and how a judge is to instruct a
jury (or themselves if they are sitting alone)
- Healey – phrase proof beyond reasonable doubt has been around since 17th c. Always a question
of what it means (what ever it means it is the highest standard of proof). How do we explain this
to a jury? What has to be proved beyond reasonable doubt?
o Proving all of the elements of the offence (as defined by substantive crim law),
disproving the defences
o Not essential for Crown to prove every fact.
- How do you explain to a jury what is meant by proof beyond reasonable doubt?
- The accused, a stockbroker, was charged with fraud.
- The trial judge told the jury in her charge on the burden of proof that she used the words “‘proof
beyond a reasonable doubt’ . . . in their ordinary, natural every day sense”, and that the words
“doubt” and “reasonable” are “ordinary, every day words that . . . you understand”.
- The accused was convicted of fraud. On appeal, he contended that the trial judge had erred in
instructing the jury on the meaning of the expression “proof beyond a reasonable doubt”. The
Court of Appeal allowed the appeal and ordered a new trial.
Issue: How is the concept of “beyond a reasonable doubt” explained to the jury?
Held:
Reasoning:
Cory J – SCC’s outline on how to instruct jury:
Should explain:
- the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle
fundamental to all criminal trials: the presumption of innocence;
- the burden of proof rests on the prosecution throughout the trial and never shifts to the accused;
- a reasonable doubt is not a doubt based upon sympathy or prejudice
- rather, it is based upon reason and common sense;
- it is logically connected to the evidence or absence of evidence; (this is problematic as it may
result in a reverse onus – jury might think that absence of evidence means the accused is guilty –
adverse inference)
- it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an
imaginary or frivolous doubt; and
- more is required than proof that the accused is probably guilty ‑ ‑ a jury which concludes only
that the accused is probably guilty must acquit.
Should be avoided:
- describing the term “reasonable doubt” as an ordinary expression which has no special meaning
in the criminal law context;
- inviting jurors to apply to the task before them the same standard of proof that they apply to
important, or even the most important, decisions in their own lives;
- equating proof “beyond a reasonable doubt” to proof “to a moral certainty”;
- qualifying the word “doubt” with adjectives other than “reasonable”, such as “serious”,
-
“substantial” or “haunting”, which may mislead the jury; and
instructing jurors that they may convict if they are “sure” that the accused is guilty, before
providing them with a proper definition as to the meaning of the words “beyond a reasonable
doubt”.
Comments:
Aftermath – trial judges thought that if they did not say the words suggested by Cory verbatim, they
would be overturned by the Court of Appeal. So many cases were going to appeal to decide if trial judges
complied with form of Lifchus
- Healey – this is crazy – the substance is meant to be followed not the exact form
- Nobody is disagreeing with substance of Lifchus
- SCC later decided that Lifchus provides advice, not to be followed word for word
- Have to convey Cory’s essential elements, but there is no fixed form for doing so
Proof on a Balance of Probabilities – there is room in crim for this standard.
- Ex. where there are reverse onuses
- Can also show up in relation to preliminary facts – sometimes admissibility of evidence will be
contingent on proof of a preliminary fact.
o Ex. if calling a child as a witness – ability of the child to testify. Do they understand the
difference between reality and fiction, etc? Competent to testify.
o Competence of witness – s. 16, this is a preliminary fact that must be proved on a balance
of probabilities
 One exception to this rule – proof of confessions by accused persons – has to be
proved beyond reasonable doubt that the statement was voluntary w/o fear of
prejudice or hope of advantage
 why have a higher standard on this preliminary fact? Confessions are very
damaging evidence against the defence. Since the accused is not a compellable
witness – caution shown about statements made by accused out of court. Rule of
caution that provides measure of protection for accused
Admissibility and Exclusion
Information can be considered by the trier of fact solely where is is admissible. Evidence is admissible
ony if it is relevant to a material issue in the case.
Relevance
-
Relevance is the overarching principle of the law of evidence
Is this evidence relevant? This is the threshold requirement for the admissibility of evidence.
Only evidence that is relevant may be submitted for consideration by the trier of fact.
Evidence that is relevant is prima facie admissible, subject to certain exceptions.
ADMISSIBILITY of evidence is a question of law. WEIGHT lies with the trier of fact. The weight of
the evidence becomes relevant at the end of the trial when the trier of fact determines the verdict.
RELEVANCE – evidence is relevant when it makes the facts in issue more likely to have occurred than
not. Evidence, such as associations with unsavoury individuals (R. v. Corbett) may be relevant, but not
admissible.
Relevance vs. Materiality
- Materiality: Evidence is material if it is directed at proving a matter in issue or offered to support
a conclusion that is in issue. Legal relevance (or materiality) means that evidence is relevant to an
issue in the case: i.e. identity, causation, or fault. If the information is not material, it is not
relevant.
o Ask: What is my opponent trying to prove and decide whether the thing sought to be
proved is a matter in issue
- Relevance: Evidence is relevant if it tends, as a matter of logic, to make one of the facts in issue
more likely (increases the probability of a fact that is in issue).
-
judge retains discretion to exclude evidence where the probative value is low and the prejudicial
effect is high
Discretion has been more broadly recognized and used over last 20 years in Can.
R v. Morris [1983] SCC
Facts:
- Appellant appealed as of right to this Court from a judgment of the British Columbia Court of
Appeal upholding appellant's conviction of conspiracy to import heroin from Hong Kong and to
traffic in heroin. The dissenting judge would have ordered a new trial because he maintained the
trial judge wrongly admitted into evidence and took into consideration a newspaper clipping
found in appellant's home and dealing with the heroin trade in Pakistan. At issue was whether or
not the trial judge erred in admitting this newspaper clipping into evidence
Issue: Is the clipping admissible?
Held: Yes. Trial judgement upheld. (4/3 decision)
Reasoning:
McIntyre (Majority):
- The clipping is relevant and admissible, b/c it is not tendered for the sole purpose of showing that
the accused is the type of person that would be more likely to commit the offence at issue. It
establishes that the defendant had an interest in ascertaining the sources of heroine. It supports the
inference that the accused has undertaken research into heroine trafficking, in the course of
planning to execute the crime.
Lamer (Minority):
 The general rule is that all evidence that is relevant is admissible. (The corollary being that all
evidence that is not relevant is inadmissible).

Certain exceptions to the aforementioned rule have been developed. One such exception is disposition
evidence. Evidence which is adduced solely for the purpose of showing that the accused is the type of
person who is likely to have committed the offence, although relevant, is inadmissible.
 “This is not to say that evidence which is relevant to a given issue in a case will of necessity be
excluded merely b/c it also tends to prove disposition. Such evidence will be admitted subject to the
judge weighing its PV to that issue, also weighing its PE, and then determining its admissibility by
measuring one to the other. The degree of PV required to overcome the exclusionary rule is presently
the object of some disagreement and the law is as a result somewhat unclear. We do not need to
consider this aspect of the rule at any length as the facts in this case do not brig us w/in the
exception.”
 Disposition evidence is not irrelevant; it is inadmissible. The reason it is inadmissible is that it is
thought to have too great a PE for the accused.
The clipping was admitted solely for the purpose of showing that the accused is a trafficker of drugs in
Pakistan, i.e. the type of person that would be more likely to traffic in general. It is therefore admitted
solely for the purpose of showing disposition, and is consequently inadmissible.
Comments:
Evidence can be relevant and admissible for one purpose and relevant and inadmissible for another
reason – admissible according to MacIntyre b/c it is not evidence of disposition. Lamer, says it’s only
value would be evidence of disposition and it is therefore inadmissible.
- Essential condition for the admissibility of any evidence that it be relevant. Does not have to
have specific assigned PV in order to be relevant (matter of logic not of weight)
- May be that PV might be so slight that judge should exercise discretion to exclude.
- Even if otherwise relevant, may be excluded by exclusionary rule or principle apart from
discretion of judge to exclude where minimal Probative Value or high Prejudicial Effect.
Character
 Character evidence which shows only that the accused is the type of person likely to have
committed the offence in question is inadmissible.
A person’s “character” is understood as his or her propensity or disposition to behave in a certain way.
- this id different than habit. For example, the time at which an individual routinely goes to bed
would be a matter of habit.
- Character evidence is concerned with behavioural traits that common sense suggests are much
more deeply ingrained.
(right after relevance for a reason)
Hypothesis based on Cloutier and Morris. What a person has done in the past is not a particularly reliable
indicator for an inference that they have committed offence in indictment.
 So, as a starting point, we are wary of character evidence. Also, might say that character
evidence should not be admissible in favour of the crown. Crown should not entitled to lead
evidence as its case in chief.
 Should it be open to defence to say “I am a wonderful person”? This would be the good man
rule – I’m an angel. This could raise a reasonable doubt.
 Also, character could go to credibility  b/c I’m such a good person I should be believed on my
oath.
 Ability to rebut by crown: Must be able to answer in order to balance the case. Otherwise would
be tilted.
Text Readings:
 understood as his or her propensity or disposition to behave in a certain way. This is different
than habit.
 behavioural traits
 might be proved in several different ways: with evidence of specific acts, with evidence of
reputation, or with psychiatric evidence.
 Character evidence is usually of a circumstantial nature, in that the trier of fact is asked to infer
that a person behaved in a certain way at a certain time because that behaviour would be
consistent with that person’s character.
 A number of policy considerations animate these limitations, including: concerns about the
reliability and probative value of character evidence; efficiency concerns due to the time and
resources necessary to explore collateral issues; and, finally, the potential for unfairness,
especially for accused persons.
 Where character is directly at issue, there are no strict rules about admissibility – eg. Dangerous
offender.
Structure of circumstantial argument:
 The person is more likely to have done a certain thing on the occasion in question because he or
she has a disposition to behave that way.
 It has been repeatedly held in Anglo-Canadian law that the Crown may not lead such evidence to
support an inference about the accused’s character unless the accused “puts his character in
issue,” that is, unless the accused himself has led evidence supporting the inference that he was
unlikely to have committed the offence by virtue of a character trait.
 Not allowed for prejudicial effect  though it might be relevant.
Why should we be weary of character evidence?
Are disposition and habit the same thing?
Past behaviour is a predictor of present behaviour. An defendant’s past behaviour can lead to an
inference that the defendant did/did not commit the crime. The danger, however, is that if the Crown
adduces evidence based upon the defendant’s past behaviour at the beginning of the trial, the trier of fact
will have the impression right away that the defendant is a person of questionable character. The trier of
fact could give the defendant’s character more weight than is warranted.
The criminal justice system presupposes that a defendant is on trial for his actions and not for his
character. Character evidence can be used only to raise inferences of the defendant’s guilt or innocence in
relation to a particular offence.
There are three methods of proving character:
1. Reputation
2. Specific Acts (see McNamara)
3. Psychiatric Evidence
Crown cannot lead evidence of bad character, but we do allow opportunity for defence to lead evidence of
good character (R v. McNamara)
- If the accused does present character evidence, then the accused has opened the door and the
crown can answer it.
- If he chooses to present evidence of his character without testifying, the CML poses limit that it
can only be evidence of general reputation in the community.
-
Character witnesses can only give evidence of general reputation
But if the accused testifies – he can’t do that, He is not well placed to give that kind of evidence.
Will have to show specific acts that place him in good light
Limitations on the kind of evidence the accused can use
Is the crown limited to rebuttal of evidence of general reputation or can they also use specific
acts?
R v. McNamara [1983] ON CA
Facts:
- Case involving multiple counts involving dredging in Lake ON. Leading case on corporate
liability
- Crown joined multiple accusations and multiple accuseds
- Under cross-examination, accused discussed etiquette when dealing with ministers and how he
was not a person who would take opportunities to lobby when sitting on the board of a company.
He also discussed how he would not allow himself to be involved in conflicts of interest as a
board member of a company.
- Crown contended that, in doing so, he had put his character at issue by “clearly asserting that he
was a man of integrity and of an honest moral disposition”
- Defence argued that he was just a denial of allegations against him.
Issue: Did the accused put character into evidence.
Held: Yes
Reasoning:
 There is no firm, outright assertion of the witnesses belief in his own virtues, but he infers that he is
an upright guy.
 “Manifestly, an accused does not put his character in issue by denying his guilt and repudiating the
allegations made against him, nor by giving an explanation of matters which are essential to his
defence.”
 An accused is not entitled, however, under the guise of repudiating the allegations against him to
assert expressly or impliedly that he would not have done the things alleged against him because he is
a person of good character, if he does, he puts his character in issue.
 He went above and beyond what was necessary to answer the question, which was asked by his own
counsel. “What was the mandate he had been given”
 States his mandate was to run the company legally
 Then counsel asks him to repeat. And then did nothing to dispel the idea that he was putting character
in issue
Once the defendant puts his character in issue, then the Crown can respond in like kind:
1. The Crown can rebut evidence of good character;
2. The Crown can adduce evidence to prove the falsity of the defendant’s statements.
This can happen by: (1) leading evidence that deals with specific acts that involve the defendant, (2) lead
evidence that speaks to the character of the defendant, (3) cross examine the witness. The Crown is
entitled to neutralize the introduction of character evidence by the defendant.
McNamara put his character in issue on two occasions: when he said that a company “should be run
legally” and when he described how he would never expect favours in exchange for political
contributions.
Comments:
- You have to certain about whether you want to put character at issue in the first place
o Some judges will react differently to this question than others - Can the Crown attack the character of other defendants if one defendant opens the door? No. The
Crown has to make its case against each accused.
- Threshold question: has character been put in issue: in McNamara it doesn’t appear to be
deliberate, but the crt concludes that it did.
Three ways of bringing Character evidence (accepted after McNamara)
 Adducing evidence of good reputation (Rowton)
 Testifying to own good character (McNamara)
 Expert evidence of propensity or disposition
NB: The Crown cannot compel an accused to put his character in issue and, therefore, a prosecutor
cannot by his cross-examination adduce good character evidence in order to provide a basis for
questioning an accused on his criminal record. (Bricker)
If the defense wants to bring up character, HOW FAR CAN THE CROWN GO!?!
Reputation in the Community
This case is generally cited as an authority for the proposition that Evidence Of Good Character (and,
indeed evidence of bad character, but this is the subject of much additional case law) can only allude to
the general reputation of the defendant.
R v. Rowton [1865] ENG
Facts:
- A principal was defendant of sexually assaulting two boys. The principal brought in witnesses to
testify about the defendant’s good reputation. The complainants and others testified that the
defendant did not have a good reputation.
Issue: Can crown rebut character evidence with character evidence? What kind?
Held: The accused should be entitled to bring evidence of his or her own character. Rebuttal by crown is only fair.
Must be limited to general reputation evidence.
Reasoning:
- If accused introduces character evidence then Crown can introduce evidence to rebut it – would be
fatal to the proper administration of justice to allow otherwise.
Crown cannot call evidence of bad character, but if accused puts his character into question then the
Crown can adduce evidence.
The witness cannot give an opinion of the accused, but can only describe the general reputation of the
accused – this is what character evidence is. And this requirement for the evidence to be of general
reputation only binds the accused and the Crown
In this case the Crown witness said that he did not know of the general reputation, but could only
offer an opinion – inadmissible.
Comments:
-
In Rowton, community meant immediate community.
R v. Levasseur [1987] AB CA
Facts:
- The defendant was charged with the breaking and entering and theft of some trucks. The premises
were owned by the defendant’s employer. The appellant’s defence was that she acted on behalf of
her employer. She subsequent employer adduced evidence of her good character.
Issue: Should she be able to adduce evidence of reputation in work place even though witness knew
nothing of reputation where she lived?
Held: Yes
Reasoning:
Harradence JA – Majority
 Reputation evidence cannot be confined, as it once was, to neighbourhood evidence where the
accused lives – this not he reality of modern life. Accused may have one reputation where she
lives and another where she works, etc. Both should be admitted
 This is a movement away from Rowton where character was associated with reputation of
accused where he lives.
Note – not about weight to be give, only about admissibility.
Comments:
Circumstances in which evidence of character might be raised – but the utility of the evidence is not clear
Evidence of good character in case of sexual assault – does it really have any value at all?
R v. Profit [1992] ON CA
Facts:
- Principal of school charged with sexual assault of boys in grade 8. Twenty-two people came
forward to testify how wonderful a person he was. On principle stated in Rowton, this is
admissible. Offences of this type (sexual) happen in private – so community reputation isn’t
helpful
- Profit opens door to rebuttal by Crown – but that doesn’t mean the evidence is effective on behalf
of the defence
Issue: Did the trial judge properly instruct himself on the use of character evidence?
Held: No. New trial ordered
Reasoning:
- Issue wasn’t whether the evidence was admissible, it was whether evidence was properly
considered
o Case turned on adequacy of trial judges reasons and whether they had considered
evidence of good character in relation to improbability of him committing the offence
o Did the reasons show the judge considered it?
o CA – complaint was reasons weren’t explicit enough
 Dissent – doesn’t matter
Goodman J (Majority in CA)
Character evidence is admissible for 2 purposes:
1. In support of the credibility of the accused
2. As a basis for inferring that the accused was unlikely to have committed the offences
 While it is admitted that evidence of general reputation in the community for honesty and integrity is
of lesser value in cases involving sexual misconduct w/ children, where the evidence goes to the
establishment of the defendant’s reputation for morality, it can be treated w/ equal value by the TF,
as evidence of the improbability that the accused committed the offence. TJ failed to treat it in this
latter manner.
 There are indications that the TJ failed to direct himself to properly consider the character evidence
submitted by the accused. The result might not have been the same had proper instruction and hence
consideration been given to such evidence. New trial ordered.
 Focus is fullness of TJ’s reasons.
Griffiths J.A. (Dissenting):
 “While evidence of the reputation for good character enjoyed by the accused in the community may
be relevant in cases involving crimes of commercial dishonesty, it has little PV in crimes involving
sexual misconduct against children by persons in positions of trust or control. Recent cases have
shown that many people who have previously enjoyed excellent reputations in their communities
have committed sexual assaults in breach of the trust placed in them.”
 Even if the TJ failed to consider the PV, albeit very limited in nature, of the character evidence
submitted by the accused, it would not likely have changed the outcome of the case.
SCC
 SCC overturned the CA judgement and adopted the reasons of Griffiths J.A.
 Sopinka J.: “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.
 Character evidence going to reputation is of lesser value in cases involving sexual misconduct
against children.
Comments:
Might have been decided differently today – Brach and Sheppard – about quality of reasons given by
judges
- There has never been explicit requirement for explicit reasons
- Healey – astonishing – dealing with matters directly affecting the liberty of someone, but we
haven’t; insisted on full reasons
- Brach and Sheppard – quality of reasons will not be an independent ground of appeal, but eh
reasons will be an important consideration – if CA can’t trace process of thought, then case will
be reversed
o Healey – this is as good as saying there is a requirement for reasons. This is a good thing
Summary:
Whether Crown should be able to advance from zero – no in terms of crowns case in chief. Should
not be able to lead evidence of character
o Of reputation (Rowton – English case)
o Disposition
Theory that it can be given undue weight by trier of fact and risk of prejudice is high as a result – would be
induced to think that more likely that person of bad character would be more likely to commit…..
Accused can lead character evidence – other people talking of reputation or he can testify as to his
good acts
o Also he can testify as to previous instances of good conducts
o Will be admissible for the defence – even though it may be worse than hearsay and may
be nothing more than rumour.
o Common b/n accused testifying or other reputation evidence == presupposes defence
has brought up character evidence. Tripwire – Crown can answer and produce its own
evidence
 Reputation evidence can be produced
 If Defence testifies to previous acts of good conduct, crown can answer with
specific instances of bad character. Limitation: can answer in kind (McNamara)
 If accused opens door and testifies to previous instances of good
character crown can be entitled to answer the specific evidence with
contradictory examples.
 Eg: McNamara – Crown can answer to accused having testified about
running business in legal fashion in a limited way.
 What if accused, in response to a question from the crown, says “I’m an
angel”. Either tripped the wire and the consequences or the counsel for
the defence would stop it. Note that Crown cannot ask question to
which response would be “I’m an angel”.
Limitations of Reputation Witnesses
o Reputation witnesses are not able to testify as to specific instances. This was a
concession given in situation (Rowton) where accused could not testify. However, even
though that has changed, the principles attached to adducing reputation evidence has not
Psychiatric Evidence in Relation to Character
If Crown cannot bring evidence of disposition to behave in a certain way, Should the accused be able
to?
Accused should be able to bring expert witnesses to compare profiles of offender and accused
o Raden says that the accused should be able to bring evidence of good acts (himself) – what about
disposition?
 Answer: yes but, only if the crime could only be committed by a certain kind of person with a
particular disposition.
 Presupposes the idea that you could construct two types of dispositions – one for the offender
and one for the accused and the don’t fit. (based on Profiles of the Offender and Accused)
Note that this type would come from persons other than accused (much in the same way that accused
could not testify as to his reputation)
 We do not allow friends and neighbours to give evidence on disposition in terms of the
profile-situation described above. All friends and neighbours can do is give anecdotal
evidence
 Expert witnesses can do – theory is that person has to have demonstrable expertise.
However, if you are going to allow an expert to testify on the, must be sure he has something
important to say.
R v. Lupien [1970] SCC
Facts:
- The defendant and a transsexual went to a hotel room. The police arrive to find the defendant and
the transsexual naked on the bed. The respondent contended that he thought that the defendant
-
was a woman.
Accused tried to bring evidence that he was so repulsed by homosexual activity that he could not
have had the intention to engage in homosexual act. Evidence would have shown that even
though he was engaging in sexual activity with a male, he did not know it was a male b/c he had
such a disposition towards hating homosexuals that he could never have engaged in such
activities.
Issue: Should expert evidence of disposition or comparative dispositions/propensities/profile be admitted
as character evidence?
Held: Not admitted
Reasoning:
- Defence: he believed his companion was a woman. Defence of mistake.
o Dr. used to introduce psychiatric evidence to the effect that defendant had revulsion to
homosexuality so he would not have engaged in the activities that he was charged with
o Because of revulsion he couldn’t have formed the intent of the crime he was charged
with. So his defence of mistake should be believed.
Martland J –
 Evidence is attempting to show that b/c he was a type of person to react violently to homosexual
activity (this profile being called the normal profile) thereby showing that he did not form the
intent to commit the crime
 Danger in admitting this evidence as it performs task which jury is supposed to do – decide
accused’s intent – based on evidence that is not before the jury
 Therefore, he would restore the conviction and not allow the evidence.
Ritcher J – Dissenting
 Sees evidence as trying to show incapability of forming intent to commit crime.
 This is a special type of crime b/c homosexuals are “more readily identifiable as a class than
ordinary criminals” (wow!)
Comments:
- Martland held that since the expert would be doing the fact-finding for the jury. The doctor’s
evidence is based, in part, on hearsay and therefore it is also not reliable.
R v. Robertson [1975] CA
Facts:
- Murder of a 9 year old girl. Attempt to adduce expert witness that accused did not show any
violent or aggressive tendencies as character traits or in his psychiatric make-up. Thus,
comparison made between person who committed offence having violent tendencies and the
accused who supposedly had no such tendencies.
Issue: Admissible expert opinion evidence of disposition?
Held: no. case not marked by features which identify its perpetrator as a member of a special class more
readily identifiable that the ordinary criminal.
Reasoning:
- Martin JA held that psychiatric evidence will be relevant and admissible only if it can show that
an defendant was part/not-part of a specialized class of individuals with extra-ordinary psychiatric
characteristics
-
-
“Evidence that the offence had distinctive features which identified the perpetrator as a person
possessing unusual personality traits constituting him a member of an unusual and limited class of
persons would render admissible evidence that the accused did not possess the personality
characteristics of the class of persons to which the perpetrator of the crime belonged.”
“A mere disposition for violence, however, is not so uncommon as to constitute a feature
characteristic of an abnormal group falling within the special field of study of the psychiatrist and
permitting psychiatric evidence to be given of the absence of such disposition in the accused.”
R v. Mohan [1994] SCC
Facts:
- Respondent, a practising pediatrician, was charged with four counts of sexual assault on four
female patients, aged 13 to 16 at the relevant time, during medical examinations conducted in his
office.
- His counsel indicated that he intended to call a psychiatrist who would testify that the perpetrator
of the alleged offences would be part of a limited and unusual group of individuals and that
respondent did not fall within that narrow class because he did not possess the characteristics
belonging to that group. T
- he psychiatrist testified in a voir dire that the psychological profile of the perpetrator of the first
three complaints was likely that of a pedophile, while the profile of the perpetrator of the fourth
complaint that of a sexual psychopath. The psychiatrist intended to testify that the respondent did
not fit the profiles but the evidence was ruled inadmissible at the conclusion of the voir dire.
Issue: Is the evidence admissible
Held: No
Reasoning:
Court was not persuaded that it was a reliable comparison and did not trust the profile given of the
accused.
- 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.
- 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?
- In this case, the expert’s group profiles were not seen as sufficiently reliable to be considered
helpful.
- Nothing in the record supported a finding that the profile of a paedophile or psychopath has been
standardized to the extent that it could be said that it matched the supposed profile of the offender
depicted in the charges. The expert's group profiles were not seen as sufficiently reliable to be
considered helpful. In the absence of these indicia of reliability, it could not be said that the evidence
would be necessary in the sense of usefully clarifying a matter otherwise unaccessible, or that any
value it may have had would not be outweighed by its potential for misleading or diverting the jury.
- Is Robertson applied?
o Yes. Admissibility not disputed
- But here, evidence not admissible. Not enough scientific theory to support it.
Can adduce psychiatric evidence to try to strengthen case for the defence.
What happens when defence wants to say that, not that is wasn’t the accused who committed the offence,
but that it was someone else who did it?
should psych evidence be admissible to point finger at a 3rd party?
R v. McMillan [1975] CA
Facts:
- The defendant was accused of killing his baby. The father claimed that his wife killed the baby.
The father wanted to adduce psychiatric evidence that the wife suffered from a psychopathic
personality disorder and that she was a danger to her child.
Issue: Is this evidence admissible
Held: Yes. But it also opened him to an exam of his own psychological make up that would not have
been opened to Crown otherwise.
Reasoning:
Evidence of this nature – expert evidence – could go to showing a reasonable doubt.
 Mindful that there need to be restrictions. 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 based on
connection of third party to act and, in the case of disposition evidence through expert opinion, a
particular disposition or tendency that is characteristic of an abnormal group.
 Here, mother was immature, impulsive and had a poor appreciation for right and wrong. Anger
could be focused from one person to another very quickly. She didn’t want the baby.
- Here, this type of evidence is being used to identify the perp.
Comments:
Methods of Proving Character: Victims
Specific acts of the deceased at issued
R v. Scopelliti [1981] CA
Facts:
- The defendant shot the victims in his store. The two deceased entered the store and one tried to
hit the defendant. He also tried to open the till. The defendant shot one man in the head twice, the
other in the back several times. The defendant recounted the events of the incident in a voluntary
statement to the police.
- The defendant had had some previous difficulties with the deceased. However, the deceased were
also involved in other incidents of road rage and assault in the community, unto which the
defendant was not aware.
- He is claiming self-defence, that he was fearful for his life
Issue: Are the deceased’s reputations admissible, even though they were not known to the accused?
Held: Yes
Reasoning:
- Martin JA held that the evidence is admissible if can speak to the probability of the deceased
having been the aggressor and thus support the defendant’s theory that he was being attacked. It
-
-
cannot be raised merely as a pre-text for painting the deceased in a bad light (to excuse their
deaths).
The court will not face the same difficulties with admitting evidence of previous similar acts of
the deceased, than as with the accused, since the trier of fact will not rely on the character to
determine guilt.
Evidence of acts b/w victims and other and evidence of acts b/w victims and accused: both were
admissible
o The ones that were unknown to him – provided basis to say it was more probable that
they acted the way they did
o The ones he knew about – had bearing on the reasonableness of his perception
Comments:
Suppose there is evidence of 2 difference kinds relating to the victims. One form has to o with previous
contact between the accused and the victims. Second type, would be evidence of thuggish behaviours on
part of victims in relations to others in the community but incidents of which the accused had no personal
knowledge. Should either type of evidence be admissible to support defence?
Self-defence – did the accused have a reasonable belief that he was going to be harmed? Did he perceive
and was it a reasonable believe?
- but can’t judge reasonableness of an action if there is noting to react to. If accused is going to use
self-defence, evidence must show that there was some action on the part of the victims.
- Is there evidence that what happened in the store was aggression? So is there an argument for
saying that evidence of previous confrontations between the victims and other members of the
community should be admitted.
- There is a difference b/w admissibility and the weight it would be given by a jury
- Could be relevant for reinforcing what he is saying happened.
- Statement given to police supports self-defence but also contains admission that he shot the guys.
How then do we construct a case of self-defence?
- Should the accused testify in his own defence?
- 2 types of evidence: 1) previous confrontations between accused and victims; 2) between victims
and other community members
- Self-defence can only work if there is evidence of aggression against the person who claims to
have acted in self-defence.
o The statement to police is evidence of this aggression. It would also be in his own
testimony
o But even then, it would be difficult
- Evidence could go to disposition which would support accused claim that they acted in a manner
consistent with their disposition
- Also have to ask if accused’s reaction to aggression was reasonable.
- At time he kills the guys, he is not aware of previous confrontations between them and
community – so this cannot affect the reasonableness of his perception in the circumstances. But
that doesn’t take away from its value in supporting his assertion that they have behaved badly and
they behaved badly that night.
- What about evidence of previous confrontations between the accused and the victims? He knew
about these.
- Even if both categories of evidence were given. Wouldn’t a great deal depend on what the
instances were and what actually happened?
Similar Fact
Exception to the exclusion rule in character evidence
-
Similar fact evidence is presumptively inadmissible. The onus is on the Crown to satisfy the trial
judge on the balance of probabilities that in the context of the particular case the probative value
outweighs its potential prejudicial effect and thereby justifies its reception.
Similar fact evidence establishes the conditions under which factual evidence of past misconduct of
accused can be admitted at trial for the purpose of inferring that the accused committed the misconduct at
issue.
- The Crown may ask the court to admit similar fact evidence to show that an accused’s related
conduct makes it more likely that the accused was the perpetrator of a crime in issue. As with
psychiatric evidence, this is an exception to the inadmissibility of character evidence by the
Crown.
The rule is established in Handy: Evidence of prior bad acts by the accused will be admissible if the
prosecution satisfies the judge on a balance of probabilities that, in the context of the particular case, the
probative value of the evidence in relation to a specific issue outweighs its potential prejudice and thereby
justifies its reception.
- The prejudicial effect of allowing a prosecutor to prove that an accused person has done similar
bad things in the past usually outweighs the probative value of the evidence, and, as such, is
usually inadmissible
- But there are circumstances where the probative value is so great that it will be admitted despite
the potential prejudicial effect.
Healey’s evolution of the law in Similar Fact Evidence
Phase 1: Makin – inadmissible unless exceptionally admissible. Only exceptionally admissible if it falls
into particular recognized category: MO, identity, etc. Identifiable category of exceptions – number is
finite. Evidence is inadmissible unless it falls within certain categories.
Phase 2 – essentially same as Makin, except crts prepared to say that list of categories of exceptions is not
finite. Crts could recognize new categories. But in both phases 1 and 2 – could not bring similar fact
evidence for purpose of showing disposition alone. Ends with Boardman - imp to determine if evidence in
question has a relevant purpose in trial that is distinguishable from disposition. Does probative value
exceed prejudicial effect. Still cannot admit for disposition. The categories are not closed.
Phase 3 – we have to assess probative value and prejudice and we must identify some purpose other than
disposition for which it is admissible – And it doesn’t matter if it is also considered for disposition
provided there is another purpose for which it is relevant. The evidence is admissible if it satisfies the
balancing test, but it cannot speak to disposition.
Phase 4 – if you are taking into account the relation between probative value and prejudicial effect –
evidence should be admitted if probative value is high and should not matter if it is being used for
disposition. In some cases the evidence of disposition itself has such a great probative value that it should
be admissible. By Handy – SCC had conceded that this was the correct approach. Crts come out and say
that if the probative value of evidence is very high, it can go in notwithstanding if it goes to disposition.
The evidence is admissible if it satisfies the balancing test even if it speaks to disposition.
- Still presumptively inadmissible – but hurdle that has to be cleared has been redefined
- Looking at cases – look at how te approach shifts over time
- In Handy – where are we. In the 3rd of 4th phase? Is the evidence admissible for disposition in
absence of an other specific issue to which it could be related?
Rather than getting tied up in specifics of rule of exclusion – replaced with more general approach.
Relationship between probative value and prejudice. Underlying axiom at work in every case
Makin v. Attorney General for new South Wales [1894] CA
Facts:
- The defendants purchased babies from young unwed mothers. They then murdered the babies and
buried them in the backyard. They moved often.
- The defendants appealed their convictions for the murder of two children. The Crown presented
evidence that bodies of other children had been unearthed at the defendant’s previous residences.
Issue: Is the evidence admissible?
Held: Yes
Reasoning:
- General rule of inadmissibility that is qualified by an exception.
- The evidence is admissible if it is relevant to an issue before a jury
- “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. On the other hand, the
mere fact that the evidence adduced tends to shew the commission of other crimes does not
render it inadmissible if it be relevant to an issue before the jury, and it 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.
The statement of these general principles is easy, but it is obvious that it may often be very
difficult to draw the line and to decide whether a particular piece of evidence is on the one side
or the other.”
- Evidence of similar facts can only be admitted if it is both relevant and probative to a degree that
it substantially outweighs the unfair prejudicial effect.
- 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] CA
Facts:
- Brides in the bath case
- the defendant married three women. Each was found dead in her bath. He was indicted for killing
the first bride, but the Crown sought to adduce evidence of the deaths of the others.
Issue: Is the evidence admissible?
Held: Yes
Reasoning:
- Are the 2 previous deaths admissible – does it fit the Makin requirement of relevance?
- Yes – could go to show design – this fits in the Makin exceptions
- 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 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
- For the reasons already given in dealing with the first point, it is apparent that to cut short the
evidence there would have been of 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:
R v. Straffen [1952] ENG
Facts:
- Prisoner escaped from Broadmore hospital for criminally insane for a 4 hour period
- At about 6 a.m. on Apr. 30 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 some
twelve to fifteen hours previously, which would come within the period during which the
appellant was at large.
- He also killed and was convicted of killing 2 other little girls
- 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.”
Issue: Is the evidence admissible?
Held: Yes.
Reasoning:

-
Yes – it is specifically relevant
Court says evidence of abnormal predilection is evidence of identity
there are certain recognized exceptions to the general rule under which evidence is admissible of
other crimes committed by the accused, the reason for its admission being that it tends to prove,
not that he is a man who has criminal propensities, but that he was the man who committed the
particular offence charged. [SPECIFIC PURPOSE – Identity of the accused]
In the opinion of the court, that evidence was rightly admitted, not to show, to use the words of
counsel for the appellant, that the appellant was a professional strangler, but to show that he
strangled Linda Bowyer—in other words, to identify the murderer of Linda Bowyer as being the
same person as the person who had murdered the other two little girls in precisely the same way.
Comments:
- Court says evidence of abnormal predilection is evidence of identity – Healey has a problem with
this
- Problem with this type of evidence – taboo evidence is forbidden. Forbidden to say that b/c
person as particular to this type of behaviour they committed the crime in this incident.
Is there a consistent rule so far?
- presumptively, evidence of previous misconduct is inadmissible. Unless it can be shown to be
relevant.
- What does it mean to be relevant?
DPP v. Boardman [1975] ENG HL
Watershed case in commonwealth
Shift away from Makin – where it was out unless it’s in and it’s in if it relates to a finite set of purposes.
Can never be relevant just for disposition.
Facts:
- The accused was charged with having anal sex with one boy and inciting to others to do the same.
The Crown wanted to admit evidence from two of the boys of past sexual experiences with the
defendant.
Issue: Is the evidence admissible?
Held: Yes
Reasoning:
- Here – HoL (common tread between all the lords) – evidence of previous misconduct may be
admitted where its probative value exceeds prejudicial effect – one exception: not admissible for
disposition.
- Difference from Makin – where only recognized categories of exception. Limited number. Here,
no finite categories. Still no disposition.
Lord Hailsham
- When there is nothing to connect the accused with a particular crime except bad character or
similar crimes committed in the past, the probative value of the evidence is nil and the evidence is
rejected on that ground. When there is some evidence connecting the accused with the crime, in
the eyes of most people, guilt of similar offences in the past might well be considered to have
probative value. Nonetheless, in the absence of a statutory provision to the contrary, the evidence
is to be excluded under the first rule in Makin because its prejudicial effect may be more
powerful than its probative effect, and thus endanger a fair trial because it tends to undermine the
integrity of the presumption of innocence and the burden of proof.
The “striking resemblances” or “unusual features,” or whatever phrase is considered appropriate,
to ignore which would affront common sense, may be either in the objective facts, as for instance
in “Brides in the Bath” or Straffen or they may constitute a striking similarity in the accounts by
witness of disputed transactions.
Lord Cross
- But it is just this instinctive reaction of the ordinary man which the general rule is intended to
counter and I think that one needs to find very striking peculiarities common to the two stories to
justify the admission of one to support the other.
- The point is not whether what the appellant is said to have suggested would be, as coming from a
middle-aged active homosexual, in itself particularly unusual, but whether it would be unlikely
that two youths who were saying untruly that the appellant had made homosexual advances to
them would have put such a suggestion into his mouth.
Lord Salmon
- The similarity would have to be so unique or striking that common sense makes it inexplicable on
the basis of coincidence.
If probative value > prejudicial effects, then the categories become unnecessary. Disposition is always the
underlying consideration in cases of similar fact evidence. The categories help to support the probative
value of the evidence.
-
Sweitzer v. The Queen, [1982] SCC
Facts:
- Between 1974 and 1978, the police investigated 15 sexual assaults. One night, the complainant
was attacked in her apartment. She struggled and raised the alarm. The police arrived and arrested
the defendant. The Crown proceeded on this count, but wanted to adduce evidence of the other 14
incidents.
- In 11 of the incidents, there was no evidence of identification save the similar conduct of the
accused. In three of the incidents, the victims swore to the defendant’s identity.
Issue: Is the evidence admissible?
Held: No
Reasoning:
- SCC - The evidence that had been admitted at trial of the counts where there was no identification
is inadmissible because the evidence has to be tied to the accused. If he cannot be identified –
there is no probative value
- McIntyre – references Boardman. SCC was acknowledging that as a result of Boardman there is a
different approach to similar fact evidence. No longer constrained by old notion and categories.
New approach based on relationship between probative value and prejudice
Golden rule – PV > PE. – (Boardman was adopted and therefore categories are not limited though cannot
admit for disposition)
- Evidence of similar facts has been adduced to prove intent, to prove a system, to prove a plan, to
show malice, to rebut the defense of accident or mistake, to prove identity, to rebut the defense of
innocent association and for other similar and related purposes. That list is not complete.
- There must be some evidentiary link – direct or circumstantial – with the accused. Otherwise,
any nocturnal rape with some similarity committed in Calgary would be receivable in evidence.
Comments:
Healy
- Entirely possible that he did the 11 – is there sufficient evidence to admit it for that purpose?
But…nothing in relation to the 11th that actually connects him to the 11th.
R v. B.(C.R.), [1990] SCC
Facts:
- The defendant was charged with sexually assaulting his biological daughter. The Crown wanted
to adduce evidence of a sexual assault of the daughter of the defendant’s common law wife. Most
of the evidence adduced was from the latter incidents, and not from the incidents central to the
indictment.
Issue: Is the evidence admissible?
Held: Yes.
Reasoning:
- Majority: Evidence of previous conduct is admissible even if it goes to disposition. It could have
high probative value
- Dissent: Sopinka – propensity cannot have a sufficiently high probative value to an issue in
question. Disposition can never be a point at issue.
McLachlin
o Court has followed more Boardman than Makin –
o It is no longer necessary to hang the evidence on the peg of some issue other than disposition.
o 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. [this passage is different in anything up to that point in Cdn law]
Sopinka [dissent]
- Sopinka J held that “there is a natural human tendency to judge a person’s action on the basis of
his character.” The evidence must be strong enough to show “fingerprints” of the accused or his
“modus operandi”.
- In this case, Sopinka held that the trial judge made no attempt to review whether there had been
collaboration between the two victims. The Crown bears the burden of proving no collaboration
beyond a reasonable doubt. The incidents were also separated by a considerable amount of time
and the nature of the sexual assaults was different.
- Sopinka adopts Lord Wilberforce’s standard: “striking similarity” is too low. An incestuous
relationship is not sufficient to warrant admission of the similar fact evidence.
Policy Reasons for Not Admitting Similar Fact Evidence (R. v. D. (L.E.))
(1) Conviction based upon propensity,
(2) Punish for past acts, and
(3) Confuse the trier of fact.
Comparison b/w the 2 young women he is alleged to have assaulted – crown trying to show a pattern
o Seems to be a pattern of abusive behaviour where there is a position of trust. Is the
pattern enough to get us beyond disposition?
- About her credibility. Healey – but is the premise nevertheless the disposition of the accused. Can
we go beyond disposition in this case?
- Is the pattern close enough for the evidence to be admissible?
- Evidence of previous misconduct could go in for disposition alone where probative value is high.
-
Minority – there as to be more than disposition alone
L.E.D (1989)
- unanimous court – written by Sopinka J.
- Consistent with his dissent in B (CR).
- Jury should be instructed that evidence is only relevant for limited purpose and not to be relied on
for disposition or propensity.
o The jury must be specifically warned that it is not to rely on the evidence as proof that the
accused is the sort of person who would commit the offence charged and on that basis
infer that the accused is, in fact, guilty of the offence charged.
No matter how much you try to cover it up, there will be reasoning on disposition.
- Handy upholds B. (C.R.). But before that, the road was not smooth. Is court consistent with
applying B. (C.R.)?
- Is the SCC acknowledging the fact that disposition is often the subject of reasoning?
R v. Handy, [2002] SCC
Facts:
- The defendant met the complainant in a bar. The two went back to the defendant’s hotel room and
began to have consensual sex. That consensual sex turned into non-consensual sex. The
- Crown wanted to adduce evidence from the defendant’s ex-wife in relation to seven prior
incidents of non-consensual sex, to raise the inference that the defendant was more likely to have
engaged in non-consensual sex with the complainant.
Issue: Is the ex-wife’s evidence admissible?
Held: no
Reasoning:
- Binnie J is trying to liberate area of the law from great deal of artificiality
o We shouldn’t be afraid to admit evidence of previous misconduct provided that the
probative value is high and it outweighs prejudicial effects. It doesn’t matter in an
appropriate case where the only probative value is disposition.
- Not prepared to accept the idea that disposition evidence should go in without constraint.
o It has to be a specific disposition. Not a generalized notion of disposition
- The Court reiterated the test in B.(C.R.); this time, it acknowledges that similar fact evidence
speaks to disposition. For the first time, the Court acknowledged that admission is based on
balancing the prejudicial effect and the probative value.
- Once you accept this test, then the question becomes: how do you assess probative value?
Binnie provides some criteria.
Test for admissibility is that articulated in B.(C.R.). : Burden on party seeking to adduce – presumptively
inadmissible – PV must outweigh PE to justify reception.
 While identifying the issue in question that the similar fact evidence relates to, it still remains
propensity evidence. Note that evidence as to general propensity is inadmissible
o Incumbent on the crown to identify the live issue in the trial to which the evidence of
disposition is said to relate
o “issues” in question are not categories of admissibility – only an element of the analysis





that really turns on PV and PE
A required degree of similarity or connectedness b/n similar facts and fact in question – this will
be different if looking for identification of accused or actus reus (as is the case here)
o In ID cases, must be peculiar enough to amount to a signature or fingerprints.
o Require similarities in character, proximity in time and frequency of occurrence
o Looking for all types of similarities or difference
o Also look to see whether the crown can prove its case with less prejudicial evidence.
Evidence need not be conclusive – this is a question of admissibility and not adjudication. Were
conclusiveness required, the judge comes closer to being the trier of fact.
Any distinctive features unifying the incidents – here none as repetition is argued
Intervening events
Is the proferred evidence capable of supporting the inferences sought by the crown.
Dangers of Similar Fact Evidence
 Concern is that jury might be confused by the multiplicity of incidents and put more weight than
is logically justified on the ex-wife’s testimony  reasoning prejudice
 Or, jury may convict based on bad personhood  moral prejudice.
 Inferring guilt from the character of the man is a forbidden type of reasoning
 Advantages given to crown by the potential for prejudice, distraction and time consumption of the
trier of fact always outweigh the PV
 If propensity routinely relied on, might encourage police to “round up the usual suspect”
 The strength of the similar fact evidence must be such as to outweigh ‘reasoning’ and ‘moral’
prejudice.
 Valid uses include, where relevant, whether the alleged acts were designed or accidental, or to
rebut a defence which would have been otherwise open to the defence (think Makin where death
of one kid could be accidental – all the bodies, not so much)
 It is repeated conduct in a particular and highly specific type of situation.
-
Wrt collusion, if the evidence amounts to no more than opportunity, it will usually best be left
to the jury (here there is more – a ‘whiff’ of profit)
Binnie emphasises the differences in the events – all show sexually aggressive behaviour but
are different in the nature by degree
Comments:
- Probative value is more than relevance. Probative value takes into account the factors listed
above, but also the weight that the jury could give to the evidence if it is admitted.
Binnie reviews development of the law – relevant principles. In some instances this evidence should be
admitted as long as it meets the criteria he sets out.
- Is this statement of principles going to get us any further in attempting to resolve the situation
with similar fact evidence in Canada?
- Healey – there seems to be a move to open up the admissibility of similar fact evidence
- Does Handy represent an opening in the law that will later have to be restricted again?
- Healey – you can never know unless you look at the facts of the case, no matter how elegant the
test. Doesn’t begin to simplify the problem of doing it in the individual case. Entirely plausible,
that people could take different views of the evidence and come to different conclusions as to
whether it would be admitted.
- If Handy is interpreted in a way that suggests that more similar fact evidence will be admitted – it
will be argued that the risk of prejudice is going up (in case after case) – this may lead to systemic
review. If that were the case, Healey wouldn’t be surprised to see the law go backwards (to
particular categories)
- Possibility of collusion b/w ex-wife and complainant.
-
It would be a monumental task to translate Handy into legislations – Parliament has been
reluctant to revise the law of evidence
o There was a call for a codification of the laws of evidence – shot down by groups who
said it would destroy the ability of judges to develop the law.
Hearsay
A witness cannot repeat a statement originally made outside the courtroom by someone else if this
evidence is being used to prove the truth of the contents of that statement.
Rational Behind Exclusion: Khelawon - As a general principle, all relevant evidence is admissible. The
rule excluding hearsay is a well-established exception to this general principle. While no single rationale
underlies its historical development, the central reason for the presumptive exclusion of hearsay
statements is the general inability to test their reliability. Without the maker of the statement in court, it
may be impossible to inquire into that person’s perception, memory, narration or sincerity. The statement
itself may not be accurately recorded. Mistakes, exaggerations or deliberate falsehoods may go
undetected and lead to unjust verdicts. Hence, the rule against hearsay is intended to enhance the
accuracy of the court’s findings of fact, not impede its truth-seeking function.
-
-
-
-
Statement made in court referring to statement made outside court – the content of which is taken
to be true. Offering statement for proof of the truth of its contents
o Have to be sure court can get to the truth of the contents
Problematic – reliability of the information
o Not trustworthy b/c can’t cross-examine and not under oath
How would we normally test reliability of statement? 2 levels of concerns: whether person in
court is telling truth and whether the original statement was true
How can judge the witnesses credibility – demeanour, and the way they are examined or crossexamined.
Biggest objection to hearsay is there is not opportunity to test the truth of what was said
o The best we can find out is what she thinks she heard
o Even if you test credibility, you aren’t any further ahead
Hearsay doesn’t advance the debate – which is why this type of evidence is generally
inadmissible
o It is also possible prejudicial
Statements made by parties to the litigation out of court are not hearsay – so can repeat the
statements the accused made out of court
o Why? – there is no intervening 3rd party
o Litigants are under oath
o Goes back to origins of adversarial theory
Out-of-court statements made by a party to the litigation are admissible
If something comes from the accused (as a party to litigation) – it is not hearsay. Big question
though – this forces the accused to the stand to make a response. What about right to remain silent
Old approach vs. new approach
- Old way. A rule with many exceptions. Complex and detailed. Is it hearsay or not. If not bring it
in then evaluate reliability.
-
Now – principled approach. Khan. Necessity and reliability become part of the question of
admissibility.
Are we trying to prove the truth of the content or simply that the statement was made?
- if you want it in for the truth, it’s hearsay – under old approach it had to fall into an exception to
be admissible
Teper – case of arson. The accused was charged with setting fire to his wife’s store maliciously and with
intent to defraud. There was no doubt that the fire had been deliberately set. Only question was whether
accused set it. About ½ an hour after the fire started a police officer testified that he head a woman say to
a man who fit the description of the accused: “Your place is burning and you going away from the fire.”
Clearly hearsay. Not admissible because it was prejudicial and didn’t fit into exceptions
Bond – Plaintiff alleged he suffered a lower back injury as a result of an accident where the defendant
rear-ended him. Defendant claimed plaintiff has a pre-existing condition and wanted to bring in statement
that he didn’t do house chores because of his bad back – this was considered hearsay.
Williams – She was charged with arson. Her defence was that her neighbour, Miller, did it not her. Voir
dire held to see if statements made about Miller were admissible. The accused said Miller confessed to
her that he set the fire. Ruled inadmissible as hearsay. Defence counsel tried to plead that they were
statements against his own interest, they fell into an exception. Rejected. Williams convicted. Martin J
upheld conviction.
Non-hearsay words - Can out-of-court statement be admissible or some other purpose?
Subramaniam v. Public Prosecutor, [1956]
Facts:
- Possession of ammunition in Malaya (20 rounds). Death sentence.
- Defence was that he was coming in to surrender when a group stopped him and said “we are
communists”
- He was forced to accompany them and was given ammunition belt to wear.
- When he escaped he was captured by police
- Used defence of duress.
Issue: Is the evidence admissible?
Held: Yes
Reasoning:
- debate: is it hearsay. Defence side said it wasn’t being offered as hearsay, but just that the
statement was made and could be seen to influence his mental state and conduct..
- The defendant was not trying to prove the content of the statement made by the Maoist
guerrillas as true – that they were in fact such warriors; only that the statement was made.
The defendant wanted to show that he relied on that statement which evoked a reasonable
apprehension of harm – a component to the defence of necessity.
- The simple fact that it was made was admissible evidence – it would explain the conduct of
the accused after hearing the statement.
- Court not to consider content of statement just the fact that it was made
Comments:
- most common example of this type of thing – police officer on stand in case of domestic
-
violence stating that they got a call saying the husband beat the accused – is this hearsay?
o Can be admitted to show a call was made and that someone was being beaten
o How is the fact that a call was received going to advance the case? What does
that show the court?
o It justifies actions of police officers
o Helps courts understand why a police officer went to that house.
o No issue around truth of contents when you admit evidence that the call was
made fot his type of purpose
The truth that the statement was made – you can cross examine and evaluate credibility of the
witness who is testifying that they heard the statement (this is different than the truth of the
contents where you can’t cross-examine)
R v. Wildman, [1981] ON CA
Facts:
- Murder – victim was daughter of the wife of the accused
- Accused and wife had 2 children of their own
- Child went missing 5 days before body found\
- Multiple blows to head with hatchet
- Crown witness says that accused, on the first of five days, said “somebody killed Tracy with
an axe”. Also said this to another witness
- Body not found for 4 days – cause of death was never publicly disclosed
- Defence wishes to call witness who says she had a phone call from the wife of accused where
wife accused the receiver of the phone call (ie witness) of killing girl with husband with hatchet.
This was the same day as the husband’s statements.
Issue: Is the evidence admissible?
Held: Yes
Reasoning:
- Proof of call was tendered as proof of statement of mind of accused – to show that in his
statement of mind he would have had this info
- Being tendered for fact that it was made – not for content
- Crown trying to say that only killer would know she was killed with an ax
- Defence trying to say that if he had learned it that day, he is not necessarily the killer
- Trial Judge didn’t allow call evidence
- Crt of appeal – held trial judge was wrong but there was so much other evidence that accused was
guilty that it didn’t matter
- SCC – ordered new trial. It left unexplained the most incriminating evidence against Wildman.
- Nobody was putting in statement to prove child was killed by ax, but it was key to defence
case to show that someone else had the knowledge that she was killed by an a
R v. Wysochan, [1930] SK CA
Facts:
- Issue surrounded words of victim at the shooting.
- 3 people present, one shot, both of other two were accusing each other
- Said to a 4th party after shooting “Tony, where is my husband” and then to husband “help me out
b/c there is a bullet in my body” and then also to hubby “Help me, I am hot”
- Can this be admissible to show her state of mind? As evidence of speaker’s own state of mind
-
Theory was that if he has murdered her, she wouldn’t be reaching out to him for help
Issue: Is the evidence admissible?
Held: Yes
Reasoning:
- “The utterances in question contained no statement of facts necessary to be proved. They are only
evidence more or less strong of a certain feeling or attitude of mind, and it was for the jury to decide
what inferences might be drawn from them.”
Hearsay by conduct
R v. McKinnon, [1989] ON CA
Facts:
 No success in finding body for sometime.
 Evidence for crown, evidence 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.
Issue: Was police officer testifying as to wife’s presence hearsay?
Held: Not heasay – not being offered for implied assertion on part of the wife.
Reasoning:
- 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.”
Principled Approach to Hearsay
Old CML Exceptions (hearsay was admissible):
- purpose – if the statement is not being entered to show the truth of its contents but only to
show that the statement was made
- Statements by a party
- Original declarant unavailable – where the original declarant is unavailable and where the
judge feels the statements were made n circumstances that lend reliability
- Statements from a prior hearing – s. 715 of the criminal code allows statements that have
been recorded at previous hearings involving the same parties if the decalrant is now
unavailable
- Statements against interest – if the out-of-court statement is harmful to the decalrant. Can be
admissible when original speaker is unavailable
Principled approach
-
expands possibility of hearsay being admitted in any circumstance where it can be established
that the evidence is necessary and reliable.
Ares v. Venner
- civil suit. Man skiing in jasper – taken to hospital and got cast. He lost feeling in his foot.
- Patient sued Dr. During plaintiff’s case – he wanted to produce notes taken by nurses during the
medical procedure. Other party objected
- SCC – we have to be more flexible. Cannot be handcuffed by old rules of evidence b/c in some
cases paper is trustworthy. These were nurses who were doing their job. They could have made a
mistake, but SCC said that records like that made contemporaneously by someone having
personal knowledge of the procedure under a duty to make good notes were acceptable.
o Presumption that notes reflected the truth
o SCC – trying to adapt evidence to reality
- Beginning of crt trying to say that the laws of hearsay were getting rigid
- Quoted from Myers – HoL – divided as to admissibility in case of stolen vehicle of logs from
company that made vehicle. Wanted to produce the logs – person who wrote them was not
available. Were the logs admissible? Majority said law is too technical. Should be more flexible.
But it is up to parliament to change law. Minority – adopted more flexible approach, should
realize that even if the person was there to testify what would they say to add to the evidence.
- The Court followed Lord Pearce’s judgement in Myers with the caveat that the defendant may
call the nurses to be cross-examined. Pearce, and the Court in Ares, recognized the need for a
more flexible approach to the question of hearsay.
Insistence upon the traditional approach produced an absurdity in Myer’s case. Therefore, Lord
Pearce would recognize a new category for admission where:
(1) The witness is disinterested in the outcome of the case.
(2) The statement was made before the litigation arose.
(3) The evidence would be otherwise difficult to obtain.
(4) The declarant has knowledge that others do not possess.
-
Many cases involving sexual assault of a child were thrown out b/c child could not testify (rules
of evidence would not allow it)
Led to cases like Khan, Smith
Also say evolution in cases involving drunk driving – police started to have road blocks with
people being arrested on the spot – because of the severe consequences of drunk driving – crts
started allowing breathalyzer tests –
R v. Khan, [1990] SCC
Facts:
- SCC reaction to the fact that our children were not being heard or believed
- Dr accused of sexually assaulting young child. Child told her mother what happened following
the exam. Statement by child was spontaneous.
- Issue of allowing the child’s testimony and also the mother’s testimony as hearsay
- Accused was acquitted in lower court
Issue: Was the mother’s evidence admissible?
Held: Yes.
Reasoning:
- SCC evidence was admissible – categorical approach was too strict
- Instituted principled approach; necessity and reliability
- Courts must now adopt a principled approach to the admission of hearsay: the
evidence is prima facie inadmissible unless it is both necessary and reliable and
on balance, the evidence is more probative.
- Referred to Ares and Myers – if we let mother related what daughter told her, and accused
deprived the possibility to cross examine mean evidence is inadmissible
- Piece of evidence will admissible if it is necessary and reliable
Reliability – reliability also has to be found before it is admissible. Facts used as indicator of reliability
- Important indicia of reliability – child is disinterested (doesn’t know dr), not a declaration made
in favour of redress (neutral statement), made before suggestion of charge being laid, mother
didn’t push child, child had peculiar means of knowledge of the event (would she have been able
to invent that at her age) – application of Myers test
- McLachlin – to determine reliability many consideration such as timing, demeanour, personality
of child, intelligence, absence of any reasons to expect fabrication may be relevant.
- Also significant that she told her mom he promised her candy and she didn’t get it
- Question of fact – nothing clear-cut. But allows more flexibility to crts. Allows them to try to get
at truth of what happened
- With Khan – more and more people are being found guilty without main declarant being crossexamined.
- Good example of crts saying if we don’t allow mother to testify, we won’t get at truth where it
would be acceptable to look for the truth.
Necessity – reasonably necessary. 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.”
But just because Crown needs it doesn’t fulfil objective of necessity (Smith). Have to look at
circumstantial guarantees of trustworthiness.
- Judge first decided if evidence is admissible in absence of jury. Not whether it is true but whether
there are guarantees of trustworthiness. If there are, it is up to jury to decide if they believe the
evidence. Judge’s role to determine admissibility.
Can’t say that principled approach gave more certainty to law. It might be less certain. More flexible.
-
R v. Smith, [1992] SCC
Facts:
- What if the declarant is dead?
Smith is guy from Detroit, picks her up there and drives to London, On. Stop at hotel. He wants her to
help him smuggle cocaine, she doesn’t want to. He goes off in a huff in his car. Abandons her at hotel in
London, still alive.
 She is stuck there, calls mother in Detroit at 10:21pm. “Larry has left me, can you arrange for a
taxi”
 Second phone call – 11:21pm – “Larry has not come back and I need a ride home”
 After 2nd call, mother called a taxi co. in London to go and get my daughter.
 Sometime after 2nd call she goes to gets a credit card from front desk but they will not give it to
her b/c it is stolen.
 Witness observes her getting in taxi but then out b/c she has no way to pay
 Third phone call – 11:54 – “Larry has come back and I no longer need a ride” [this would be
useful as showing that Larry was present and in her company if accept content of hearsay
evidence and that would be accompanying Larry back to Detroit]

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

-
4th call – 12:41am – “I’m on my way”. Note, she does not mention Larry. Call made from gas
station not to far from where body was found.
Phone call a little after 1am from gas station of 4th call, traced to Larry’s number in Detroit.
Gas station saw Larry near phones.
Body found at 1:30am – near Beachville, On. Wrapped in sheet from Hotel in London.
Would help prosecution’s case – support him at scene and destroy defence of alibi. Mother is
crown witness. Would show a circumstantial chain that would be established Larry to be close in
time and space to daughter at time of her death.
Issue: Was the evidence admissible?
Held: First two phone calls admissible but third is not. – nothing said on fourth and fifth calls. Factual
considerations distinguish first two from third. No mention at all of fourth statement.
Reasoning:
- SCC – gave Khan a broader perspective – applies not only to sexual assault of children but to
other criminal cases. Didn’t create new exception in Khan – created new approach – principled
approach.
- Is the hearsay evidence necessary and relevant
- Lamer – discusses flexibility. Reliable evidence should not be excluded just because no crossexamination is possible.
o Guarantees of trustworthiness can make up for lack of cross-examination
o Look at circumstances around statement
o 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.
- Necessity – necessary to prove a fact in issue. But not just because it is important for Crown’s
case
o Here witness was dead – necessity no problem
o Evidence necessary to prove a fact in issue
- Third call not admissible – where victim told mother Larry had returned and she would’t need a
ride – said this wasn’t reliable enough
o The Court applies the principled approach to each call. Justice Lamer, however,
speculates as to why the 3rd call lacks reliability – that is, the deceased had a motive to lie
to her mother. What does this say about the predictability/certainty of the principled
approach?
- Grenier – Lamer is using speculation to make this inadmissible.
R v. B. (K.G.), [1993] SCC - KGB
Facts:
- The accused was charged with a killing. His three associates were questioned by police through
which they told the police that KGB had stabbed the deceased. At trial, the associates recanted
their stories and while the court allowed the accused to cross-examine the accomplices as to their
credibility, he did not allow the content of the prior statements to go in as evidence for the truth of
the statements. Without the witness’ testimony, the Crown could not prove the identity of the
killer as KGB.
- The statements were not made under oath. The accomplices were not cross-examined at the time.
The statements were not videotaped.
Issue: can we use previous inconsistence statement to prove content of what witness said to police
(previously it could just be used to show witness not credible)?
Held: No.
Reasoning:
- SCC – principles approach applied. Necessity here is easy – no other way to get to the truth.
- Reliability – problem: not dealing with witness who is dead or unable to testify.
o Two statement: one under oath and one given at police statement
o You can cross-examine witness on why he is lying, but ability to cross examination was
not sufficiently taken care of
o So, if previous inconsistent statement was video taped, if before statement started the
witness had to swear and oath and is told what will happen if he lies (warned of risks), if
the witness is present in court and can be cross-examined, all of these guarantees can give
the previous inconsistent statement sufficient reliability so that it can be used as it is.
o If all the guarantees are met, there is a possibility of giving statement substantive value
- The fact of having witness give the statement after being sworn doesn’t allow witness opportunity
to say one of the statements was not under oath.
- For some people, oath may be taken seriously
- Lamer – there may be other substitutes for an oath – does this open the door to any substitute?
Lamer J held that the admission of the statements suffer from three flaws: (1) no oath, (2) no assessment
of credibility by the trial judge and, (3) no cross-examination. The trier of fact is asked to assess “secondhand testimony” and never actually watches the declarant make the statement for himself.
Under Khan and Smith, the court must be satisfied with the indicia of reliability to admit the hearsay
evidence. If the evidence is admitted, then the trial judge may want to give a limiting instruction on the
basis of the weight attached to the evidence.
Oath: the oath “may serve to impress upon a witness the seriousness and significance of their statements,
especially where they incriminate another person in a criminal investigation.” The oath might persuade
some witnesses to tell the truth. Recanting a statement made under oath may lead to criminal sanction for
the witness. This is not an absolute requirement – but it shows a high degree of reliability.
Presence: a videotaped statement shows how a witness reacts to questions; it captures mannerisms lost in
the transcript. A third party, who observes the testimony might also be placed, under exceptional
circumstances, to comment on the demeanour of the witness.
Cross-examination: contemporaneous cross-examination is not always possible since a witness may be
interviewed before the accused is even charged. An alternative might be cross-examination at trial.
How do you establish previous inconsistent statement
- Voir dire
- have to prove existence of contradictory statement
- If want to use it for substantive reasons – judge has to satisfy themselves of the reliability
- Burden of proof is balance of probabilities that statement was reliable
- Judge has to inquire what happened before the video.
- Judge has to make sure there is no coercion, threats, promises or leading question to tarnish
reliability of statement
Review of how to apply KGB at trial (procedure)
-
-
-
-
-
usually prosecution who want to enter into evidence something that will contradict witnesses
previous statements
In KGB – interview at police station was videotaped. At trial, the witnesses contradicted their
previous statements.
Prosecution will tell judge they have a legal argument to present – when jury is out (voir dire), the
prosecution will tell judge what they intend to do, like enter videotape
Lamer J in KGB – prosecution is invoking s. 9 of Canada Evidence Act
o Deals with adverse witnesses and previous statements by witnesses (s. 9.2). When it’s
your own witness you are not usually allowed to cross examine you own witness – this
allows you to do so if you need to show contradictory statement.
Judge can do 2 things:
o 1. Trad – allow prosecutor to cross examine his own witness only to impeach his
credibility
o 2. Or, prosecution can invoke s. 9.2 to be able to use previous inconsistent statement to
show that what the witness said at trial is not truthful.
 Judge has to be satisfied that indicia of reliability are present. Necessity is easy to
prove, problem is reliability.
 Judge also has to satisfy himself of the circumstances leading to that statement –
threats, coercion etc.
o Jude will decide on balance of probabilities of necessity and reliability have been proved
If judge is convinced the prosecution can enter the evidence.
KGB opened a door – the oath is one indicator of trustworthiness but others might come up in
future
o This was problematic for subsequent cases
Not long after KGB – UFJ: case where person was accused by sexual offence by step-daughter.
Both gave statements to police and didn’t know the other was giving statement (neither knew
what the other said). The at court, she said that there was no sexual assault
o Crt decided that the two statements were so strikingly similar that they could fulfil the
requirements of KGB
o But adopting similarity as an indicia of trustworthiness is problematic later on
striking differences between the next 4 cases: Starr, Hawkins, Couture, Khelawon
In Couture and Khelawon – adopting dissents from Starr and Hawkins
SCC has to come back and “clarify” things. So confusing that it is unfortunate
The 4 are good examples of: 1) divided SCC (Starr and Hawkins). Makes for precarious legal
precedent; 2) Dangers with taking traditional are of the law and turning it inside out by talking
about necessity and reliability. Uniformly confused practitioners (having just necessity and
reliability as criteria means there will be no certainty. What do we do with the old exceptions?)
Don’t forget hearsay is presumptively inadmissible if presented for the truth of its contents
R v. Hawkins, [1996] SCC
Facts:
- Hawkins is accused of conspiracy to obstruct justice. His girlfriend at the time testifies at the
preliminary inquiry. They marry – which means that she is no long competent to stand as a
witness in his trial. The Crown wants to get the testimony read as evidence in the
- police officer on trial for conspiracy to obstruct justice
- Crown’s principle witness is his girlfriend – they marry before the trial. She testified against him
at preliminary hearing
Issue: Is the wife’s testimony from the preliminary hearing admissible?
Held: Yes. It meets all of the factors in K.G.B.
Reasoning:
- - At CML spouse not compellable against their spouse – can’t be called by Crown
o S. 4.3 – no husband or wife is compellable to disclose any communication made to them
by the other during their marriage – so even if on stand, can’t be compelled
o S. 4.6 – judge can’t tell jury they can draw any conclusion from failure of accused to
testify or failure of accused’s spouse to testify.
- Crown wanted to put in evidence under s. 715 of Crim Code – that says you can read in evidence
from preliminary hearing in some circumstances – but can’t go in under this either b/c doesn’t
meet criteria
- So then Crown says that the testimony should go in under necessity and reliability criteria as
hearsay
Necessity
- Crts generally agree that if witness is unavailable to testify at trial – will be necessary (using s.
715 as guide)
- Concluded that wife was unavailable to testify since crown couldn’t call her.
- Schurman – seems to be using necessity and reliability to undermine older rules that have nothing
to do with hearsay.
Reliability
- at preliminary hearing statement were made in a courtroom under oath, it was transcribed, and the
witnesses was cross-examined. The circumstantial guarantee of reliability is stronger than in
K.G.B.
- So notes from preliminary hearing are reliable in the terms that jurisprudence up to this point had
talked about.
Comments:
- SCC – don’t decide if evidence from one criminal trial can be read into another criminal trial –
this is opening a door that they might not have wanted to open
- Do caution that trial judge in any circumstances retains capacity to exclude evidence if probative
value is slight and it might prejudice accused.
- Trial judge had discussed prejudice. CA then said that the evidence should not me inadmissible if
it could be put in by some other means. No unfairness to the accused
- Schurman – all the evidence of the manipulation was a significant factor and the court is trying to
find a way to get the evidence in. By is this a legally sound decision? Does it undermine spousal
rule.
R v. Couture, [2007] SCC
Facts:
- David Couture was convicted of two counts of second degree murder in respect of the 1986
killings of his ex-girlfriend Darlinda Lee Ritchey and her friend Karen Ann Baker. His
convictions were based, in part, on two out-of-court statements made by his spouse Darlene
Couture to the police in 1997.
- At the time Mrs. Couture gave the two statements to the police she was living estranged from Mr.
Couture. The couple reconciled shortly after and, at the time of trial, their marriage was valid and
subsisting. Under the common law rule, a spouse is an incompetent witness in criminal
proceedings in which the other spouse is an accused, except where the charge involves the
person, liberty or health of the witness spouse.
Issue: Can the statements be admitted?
Held: No
Reasoning:
- At trial, prosecution knew that he could not force her to testify so he wanted to introduce the
video for substantive value.
o Judge let video in based on Hawkins.
- SCC – Hawkins did not give full permission to use a spouses statement to prove accused’s guilt
and that the facts in Hawkins were very different.
o When witness testified in Hawkins the first time, she was not married. Married after
evidence was given
o Here she was married when she gave the statement
- Hawkins doesn’t open door completely and unless there is a good reason to modify CML rule,
modern approach to hearsay should preserve integrity of CML. A trad rule that should not be
undermined by principled approach to hearsay
o Principled hearsay approach does not override trad CML rules
- Judge has power to exclude evidence if probative value is slim compared to prejudicial effect
- Under principled application to hearsay, even when necessity and reliability are met, judge still
has discretion.
- The existence with non-compellability rule is not one of the cases where you weigh probative
value and prejudicial effect – it is a principle.
- Refer to Salituro – couple was married but separated with no possibility of reuniting. SCC
refused to get rid of non-compellability rule. But also sad not great risk of wrecking marriage
when it is already in trouble.
- Partly undid Hawkins – will be admissible if necessary and reliable and doesn’t undermine
spousal incompetency rule.
- Schurman – the crt says they weren’t undermining rule in Hawkins. But is this just semantics?
Trying to say they were wrong without saying it outright.
-
-
Grenier – even if you find evidence is necessary and reliable, judge cannot allow it in if that
evidence contains evidence that would otherwise be inadmissible
o evidence has to be admissible in itself
rule is that hearsay is inadmissible except for old trad exceptions and principled approach
These are good example of effects of a divided court
Also good examples of confusion over hearsay when reliability was taken out of probative value test and
used in reliability and necessarily test
In Khan we saw some sort of ambivalent decision as to whether there was a new take on the hearsay rule
or whether it was a substitution for the hearsay rule with a new approach. Lamer says Khan was a
replacement of the old approach with principled approach based on reliability and necessity. Many other
cases have gone to SCC on this new principled approach to hearsay.
Starr is most important in that SCC actually confronts significance of new devels with respect to hearsay.
Having declared in Smith that new approach was of general application, SCC deals with new approach.
Questions are fundamental:
 What is the significance of the old approach within this new approach?
 What is the signif of the exceptions that used to be used.
 How do you formulate as a matter of procedure?
Fundamental divide in SCC b/n Iaccobucci and L’H-D for dissent.
R v. Starr, [2000] SCC
Facts:
Convicted of two counts of murder 1 – shooting two people by the side of the highway outside Winnipeg
 Crown theory is that it was a gang related murder of which one victim was the target and the
other was a witness in the wrong place at the wrong time (even though they knew each other).
 Evidence in question is from a “sometime” girlfriend of one of the victims who saw the appellant
in a car used in the killing at a gas station. She spoke to the victim, who was in another car, who
told her that he had to go to an “autopac scam with Robert (the accused”.
 Crown’s theory is that this was a gang killing, the accused having lured the victim out into the
courtryside under the premise that they were “doing an autpac scam”.
 Defence takes issue with identity of the perpetrator saying there is little tying accused to the
crime. That is why this hearsay evidence is important
- TJ admitted the evidence under an exception category.
Issue: Interaction b/n the principled approach and the categorical approach – which is to take precedence
and in what order?
Is the statement admissible?
Held: So-called principled approach prevails – orthodox view to lend guidance.
No.
Reasoning:
- Debate around whether that statement could go in. Trial judge didn’t allow it in.
- Crown’s theory is that this was a gang killing, the accused having lured the victim out into the
courtryside under the premise that they were “doing an autpac scam”.
- Defence takes issue with identity of the perpetrator saying there is little tying accused to the
crime. That is why this hearsay evidence is important
- Crown wants to use statement to show that Starr had in fact lured Cook away.
- TJ admitted the evidence under an exception category – admissible as state of mind or present
intention exception. Says words would have been just as prejudicial against deceased as they
were against Starr
o Schurman thinks this is funny – insurance fraud is not on the same level as murder
- CA – hearsay can be admissible under previous categories or under principled approach. Dissent
said principled approach must prevail.
- SCC majority (Iaccobucci) – the statement is not admissible under trad. exception of present
intentions b/c the statement went to the intention not only of Cook but also of Starr. Also the
statement was made under suspicious circumstances
o Crown had specifically used it to show Starr’s intentions
o It is an out of court statement being used to prove the truth of the matter, so it is hearsay.
o To be admissible under state of mind has to show state of mind of declarant not the
accused and made in a natural manner and nit under circumstances of suspicion
(imposing some kind of requirement of reliability)
o Para 172 – trial judge erred – no indicia of reliability and erred in failing to instruct jury
that it was admissible only for Cook’s intentions. Also it was more prejudicial than
probative
o Suspicious – b/c Cook might have been lying to his girlfriend so as not to make her mad.
o McLachlin – doesn’t think the circumstances were suspicious and that there are times
when evidence will be admitted to show the intentions of another
- So if not admissible under trad exception approach is it admissible under principled approach?
Majority - Want to bring exceptions in line with principled approach – to “improve the
intellectual coherence of hearsay”
o The exceptions must stay – would be unfair to leave a question of admissibility
completely open ended
o Adopted justice Rosenburg (CA) – keep exceptions – help explain what should be
admitted and why, help educate, and are like practical concrete examples of necessary
and reliable matters
o Shouldn’t abolish them but get rid of their arbitrary side
If there is a conflict b/w exceptions and principled approach, the principled approach will
prevail.
BUT – then goes on to talk of threshold reliability and ultimate reliability (Schurman – this is his
downfall)
o Threshold – not “is it true”, but are there circumstantial guarantees of trustworthiness
o Pg 263 – not where you consider corroborating evidence (this seemed to go against Khan
where the stain on the shirt was corroborating evidence)
o
-
Iaccobucci J (Majority):
 Hearsay is presumptively inadmissible (unless it falls into an exception). Orthodox will only give
guidance. Principled approach prevails and should it not be fulfilled, even if it falls into an exception, it
will not prevail.
 In the event of a conflict between the categorical approach and principled approach, it is the principled
approach that must prevail. The governing principles for hearsay admissibility must be reliability and
necessity.
 Rationalizing the hearsay exceptions into the principled approach shows that the former are simply specific
manifestations of general principles, rather than the isolated “pigeon-holes” referred to in old cases.
 While the exceptions may need to be reexamined in light of the principled approach, their complete
abolition is not the answer. Rather, the exceptions continue to play an important role under the principled
approach. Our task therefore is to reconcile the traditional exceptions with the principled approach. 
o they can add predictability to the law (litigants will be more certain if they can fit it into an exception)
o Educative function
o Teach us historical and contemporary rational for admitting evidence
 Properly modified to conform to the principled approach, the exceptions are practical manifestations of
the principled approach in concrete and meaningful form.
In this case
 First: Is it hearsay? - ie is it being offered for the truth of its contents? Yes, to prove immediate intention
to go with accused. Also, given to show the immediate intentions of the accused to go with the victim to an
isolated area.
 Second: Does it fall in an exception? Not here
Reliability In this case: The circumstances surrounding the making of the statement cast serious doubt upon the
reliability of the statement. The possibility that Cook was untruthful could not be said to have been substantially
negated. Can rely, in particular, upon the fact that Cook may have had a motive to lie in order to make it seem that
he was not romantically involved with Weselowski, and upon the ease with which Cook could point to the appellant,
who was sitting nearby in a car but out of earshot, as being the person with whom he was going to do a scam.
Furthermore, PV<PE  therefore not reliable. Here, prejudice is the possibility of undesired use of evidence to
show the accused’s intention and not just that of the declarant
L’H-D:
Presumptively inadmissible. Orthodox approach still prevails. Principled approach is an approach that describes
short-comings in orthodox approach.
R v. Khelawon, [2006] SCC
Facts:
-
-
Old folks home – victim is found in room by cook with injuries and all his belongings packed in
bags. The victim tells cook that the manager of the home assaulted him and told him to leave.
Had also assaulted him previously. Cook takes him home
Police interview others at home – 4 others claim manager also assaulted them.
4 of the people died before trial and one was incompetent – couldn’t testify
Issue: Is statement to police admissible (videotaped)? Is statement to cook(?) admissible
Held: No. No
Reasoning:
Justice Charron delivered the SCC's unanimous decision. The Court held that Mr. Skupien's statement
was inadmissible, as it was not sufficiently reliable. In delivering the Court's decision, Justice Charron
rendered a major alteration to the threshold reliability branch of the principled approach, effectively
overruling this portion of Starr.
In particular, the bar that Starr erected on the use of corroborative evidence in the threshold reliability
assessment no longer applies. Instead of categorizing reliability factors into discreet, non-mutually
exclusive threshold and ultimate stages, courts should now "adopt a more functional approach...and focus
on the particular dangers raised by the hearsay evidence sought to be introduced and on those attributes or
circumstances relied upon by the proponent to overcome those dangers". In effect, trial judges may now
consider evidence going beyond the circumstances under which the statement was made at the threshold
reliability stage, which includes corroborative and/or conflicting evidence.
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Manager claimed victim was hard to deal with and being treated for paranoia
Even evidence that appears to be necessary and reliable could be inadmissible if the
prejudicial effect outweighs the probative value or if it would be unfair to the accused to
admit the evidence when there is no chance of cross-examining the original statement
maker.
SCC – eliminates distinction b/w threshold and ultimate reliability
o Addressing inconsistency b/w Starr and Khan
o All relevant factors should be considered at admissibility stage including presence or
absence of conflicting evidence
Trial judge let in the statements saying they were strikingly similar and the public interest in
elderly receiving good care was more important that the absence of contemporaneous crossexamination
o Only thing in appeal was admissibility of two statements
CA – Not admissible. don’t create a new category of strikingly similar but they don’t say it will
never work either
SCC – use 4 criteria from Khan
o Presumptively inadmissible
o Trad exceptions can be challenged by necessary and reliable test
o If evidence doesn’t fit in exceptions may be admissible under principled approach
Easy to see necessity of the evidence, but there are serious problems with the reliability
Reliability – deal with what is a circumstance surrounding the statement itself
o Can’t state in blanket way that corroborating or conflicting evidence is excluded at
admissibility stage
o Hearsay is inadmissible in the first place b/c its reliability can’t be tested
o If it is not possible to cross-examine, can it be tested for truth and accuracy otherwise?
o Are there adequate substitutes for trad testing and if there are, why not make it
admissible?
-
Will take a functional approach at admissibility stage and where there is corroborating evidence it
will be considered
o Broad test – allowed to have corroborating evidence and circumstances, etc.
Admissions and Confessions
Admissions may be formal (which is an admission of fact that dispenses of the need for proof by the
other party; i.e. a guilty plea) or informal (by a declarant against his own interest; i.e. a confession).
Confessions are species of hearsay. However, confessions made to persons not in authority are
admissible, because they are made against interest. A person would not normally confess to a crime.
Confessions are potent. A confession, alone, may be sufficient to establish proof beyond reasonable
doubt. If the suspect is forced to confess, however, then the reliability of the confession is called into
question.
Pre-trial Conduct: Silence
R v. Eden, [1970] ON CA
Facts:
- The defendant and three boys took a car. They were stopped by the police and the boys were
asked whether they stole the car. The other two boys answered yes. No one recalled whether Eden
said anything.
Issue: Is his silence an admission?
Held: No
Reasoning:
- Court of Appeal acquitted the accused.
- Justice Gale held that an accused is not required to make exculpatory statements when a person in
authority poses questions to him. The court is not entitled to draw and inference of guilt from
-
-
Eden’s refusal to answer questions.
What did Court of appeal say about taking into account his silence? If something is said about
you that is incriminating, can you draw an inference that silence means something, that any
ordinary person would have said something? Doesn’t it violate the right to silence if you are
blamed for not reacting?
In some circumstances, if you don’t say anything against an incriminating statement, then a
negative inference may be drawn, but then what happens to the right to silence? This is why
R v. Sweeney, [1977] ON CA
Facts:
- Sweeney raised a defence of mental disorder. Sweeney was examined by psychiatrists for the
defence, but refused to be examined by the psychiatrists for the Crown. The Crown’s psychiatrist
was in court and was willing to disclose an opinion on Sweeney’s condition.
- The Crown wanted to adduce evidence that Sweeney’s refusal to submit to an examination by the
Crown’s psychiatrists showed that Sweeney’s defence was contrived
Issue: Does his silence imply that his defense is bogus? Is it admissible?
Held: It is admissible
Reasoning:
- Justice Zuber explained that Sweeney has a right to refuse to answer incriminating questions. The
accused, however, raised the defence of insanity in this case. It is not fair for the accused to be
able to adduce psychiatric evidence and then deny the Crown the opportunity to respond to that
evidence.
s. 5 of Canada evidence act - witness cannot refuse to speak
Privilege against self incrimination, witness can refuse to answer questions. Absolute right of the accused
not to present a defence, not to testify.
Privilege against self incrimination is a testimonial privilege. Otherwise you have the right to remain
silent, no one can force someone to speak if the person does not want to speak ? right to silence. But
privilege against self incrimination is about never obliging an accused to testify.
Marcoux and Solomon v. The Queen: a person was arrested and taken to police station where police
wanted to participate in the line up, accused said no. Crown wanted to introduce that he refused to
participate in the line up. SCC in 1975 under Justice Dickson said evidence that the accused refused to
participate in the line up where the accused must ? [missing]
- Privilege against self incrimination is testimonial, refusing to participate in the line up is not
testimonial.
-
In the case of Sweeney, it’s not a case of protection against self-incrimination, accused RAISES
insanity, so if he refuses to meet Crown psych, common sense conclusion that it’s a bogus
defence of insanity. Unheard of to raise insanity and not accept to meet psych’s.
Would this reasoning hold up under the Charter?
The prosecution wanted to explain why there was no rebuttle, counterproof to the insanity defence. Trial
is not a one-way game.
R v. Chambers, [1990] SCC
Facts:
- Chambers was accused of conspiracy to import cocaine. He testified at trial that he was not a true
conspirator. He had not told the police of his story when he was charged. Chambers claimed that
as a lawyer, he wanted to avail himself of his right to silence. Documentary evidence showed that
Chambers was going to put this defence forward at the trial.
Issue: Is his silence admissible?
Held: No
Reasoning:
- Cory J held that the trial judge neglected in his instructions to the jury to advise the jury to
disregard the Crown’s cross-examination of Chambers on the issue of his silence. A “reasonable
and fair-minded juror might still draw the inference that the appellant should have said something
regarding [his plans] to persons in authority at the time of his arrest.”
- Can’t give someone a constitutional right to remain silent and then ask them why they remained
silent.
- English courts allow inferences from the silence, pre-trial, not during trial.
Pre-trial Conduct: Consciousness of Guilt
evidence of after-the-fact conduct is commonly admitted to show that an accused has acted in manner in
which, based on logic, is consistent with conduct of guilty person
- ex. flight
- conduct you would tend to associate with a guilty mind
- conclusion can be draw, but have to be careful b/c if jury or judge decides that post-offence
conduct is consciousness of guilt, it become part of the evidence of the Crown
- have to know all the circumstances around the conduct before drawing the conclusion
- Crown has to prove beyond reasonable doubt that it was consciousness of guilt
R v. Arcangioli, [1994] SCC
Facts:
- Victim was stabbed on a balcony, surrounded by people
- A fight broke out involving the victim, Heffern. Heffern was chased by Arcangioli and others,
who proceeded to beat him up. Arcangioli admitted to punching and kicking Heffern, but he was
charged with stabbing him. Arcangioli fled the scene. He had blood on his hands.
- Three witnesses implicated another person, Semester in the stabbing. Other witnesses testified
that he saw Semester involved in another fight involving a knife, earlier that day. Semester denied
the stabbing. He had a criminal record which included armed robbery with a gun and knife.
Issue: what inference can we draw from flight
Held: It should have no weight on the issue of his identification as Heffern’s stabber.
Reasoning:
- Court – if debate is not who committed offence, but level of culpability, then the flight has little
probative value because flight is not indicative of guilt of aggravated assault as opposed to
-
-
-
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common assault
SCC – have to be careful when dealing with what is the level if culpability
Major J held that sometimes people flee the scene in panic. The Crown wants to raise the
inference that flight shows consciousness of guilt which also raises an inference of actual guilt.
This inference only works in relation to a particular offence.
Arcangioli’s flight was equally consistent with the defence’s theory that he was fleeing from the
scene after the common assault. When there is more than one offence and the accused has
admitted to at least one of them, the evidence has no probative value with respect to any
particular offence
Cite Myers – charged with 2 robberies, one in Florida and one in Penn – evidence showed that
when approached by FBI he fled – but unsure whether he was running away because of Florida or
Penn
o No conclusion of consciousness of guilt can be drawn
o Illustration is this concept
Have to be very careful before drawing conclusion because it is a plus for the crown –
indication of guilt. Can be very damaging to accused.
Also have to be careful with the term consciousness of guilt – the term could lead the jury to
think the accused is wicked – now called post-offence conduct
R v. White, [1998] SCC
Facts:
- White and two of his compadres shot and killed the deceased using a 12-gauge shot gun and a .22
calibre pistol in Ottawa. They then fled Ottawa to Burlington, where they robbed a bank twice.
During the robbery they used the same guns. White failed to report in for parole and he did not
pick up his welfare cheque.
- An associate of White testified that he received a call from White inquiring about the police
investigation in Ottawa. White returned to Ottawa and were arrested after a chase.
- The defence wanted a limiting instruction on the flight, per Arcangioli since White was wanted
for parole violations.
Issue: Was their behaviour an indication of consciousness of guilt?
Held: Yes
Reasoning:
- Issue: who committed the murder (not the degree of culpability like in Arcanjioli)
- Court comes back to the use of the express of consciousness of guilt – may undermine the
accused’s position
- If there is more than one explanation for the conduct – have to be extremely careful before
drawing conclusion of consciousness of guilt
- The court felt that in this case, they could draw the inference
- Probative value vs. prejudice – When probative value is slight but prejudicial effect is high, judge
may chose not to discuss consciousness of guilt
- Major J explained that flight falls under the category of consciousness of guilt evidence because it
raises the inference that evasion from prosecution demonstrates an awareness of a malfeasance.
- The jury may take into account alternative explanations, per Arcangioli; however, only when the
evidence goes to the identity of the accused in the commission of a particular crime. A limiting
instruction is needed when consciousness of guilt is at issue, such as in Arcangioli where one
charge was more severe than the admitted offence.
- In this case, the issue focused on the identity of the killers and not their degree of guilt. It is up to
the jury to give appropriate weight to the flight.
Gov’t of ON created a commission – to investigate conviction of Morin (wrongly convicted)
- discussed conclusions on post-offence conduct
- ex. his behaviour around the funeral of victim
Recommendation – be extremely careful with drawing negative inferences with what is objectively
neutral behaviour
Confessions
The confessions rule applies to statements made out of court voluntarily to persons of authority. They are
persons who are interested in obtaining the statement. This is a reason to treat the statement with some
suspicion. The Crown bears the burden of proving, beyond reasonable doubt, that the statement was not
made under promise of inducement or threat. Proof of voluntariness equals proof of reliability.
Voluntariness does not imply that the statement was made with an awareness of the right to remain
silent. The accused need not be told of this right – even though the accused has said right under s.7 of the
Charter. Voluntariness does not seem to reflect notions of a full right to silence or a principle against selfincrimination.
A judge may hold a voir dire to determine whether the recipient is a person in authority.
Person in Authority
what is the situation where prosecution wants to introduce confession made to ordinary person? Is there a
distinction b/w person of authority and ordinary person?
- Because of the authority that by nature police, etc exercise over an individual
- A non-police officer can be a person in authority – SCC says person in authority is anyone
formally engaged in arrest, detention, examination or prosecution of accused. May be enlarged to
include persons who are deemed persons in authority as a result of the circumstances
- With an ordinary citizen – no voir dire. No risk that person who received the confession force or
influence accused because of their authority.
- If person is an authority – have to ensure confession was free and voluntary, etc
We only talk about the rule of confessions if dealing with statement made to a person in authority.
 Who is in authority? Class of persons in authority is not finite. Certain characteristics might
attach to a person that might allow them to be id’d as a person in authority for the purpose of
confessions
 It is inadmissible if made to a person in authority unless the crown can prove BRD that it was
made voluntarily
 This is the rule at common law. Class of persons is not closed. Could possibly consider
o Employer
o Probation officer
o School principal
 B/c it is not closed, it would have to be reached on an ad hoc basis.
Important: From whose perspective is the question of authority to be answered. See Roffman where court
re-affirms principle that has been estb’d for long time: When Id’ing person in authority, you must id from
point of view of suspect.
Rothman is a conservative approach to the orthodox rule
R v. Rothman, [1981] SCC
Facts:
- Searched and seized quantity of hash – charged with possession for purposes of trafficking.
- Sharing a cell with under-cover cop to induce confession. McKnight (the cop) tries to get
confession for possession for the purpose of trafficking.
- Rothman says that “you look like a narc”. Still, he keeps talking b/c he thinks the guy was there
for unpaid parking tickets.
- TJ ruled it was inadmissible
Issue: Was the undercover cop a person in authority?
Held: No – he was not perceived as such by the accused. Therefore, statement is not protected and is
admissible.
Reasoning:
Martland J - Majority
 Crucial is perception of the accused. Did he perceive that the person with whom he was speaking was
a person in authority? (Subjective test)
 Did Rothman form the view that constable was a person in authority and that he was in a position to
materially affect the course of the prosecution? No.
 Therefore, this is the equivalent to a statement made to any other person that is against interests and is
thus admissible.
Martland J held that the test to assess persons of authority is a subjective one: did the accused believe the
recipient of the confession a person of authority? Rothman did not believe that McKnight was a person of
authority. Rothman’s suspicion was dispelled. Rothman’s confession was made entirely of his own
volition.
Subjective Approach
If the accused has been stupid
enough to talk, then too bad! The
evidence is reliable – it should be
admitted.
Objective Approach
The accused will not avail himself
fully of the right to silence or the
right to counsel in a conscious
manner.
Lamer - Concurring
 Statements should be excluded where they are tricked out of accused persons if they bring the
administration of justice into disrepute. (High threshold though – conduct must be so shocking to
justify that, short of dissociating itself with the conduct it would bring the whole system into disrepute)
 As it must shock the community in order to bring the system into disrepute, the efforts of the cops here
do not meet the threshold. Indeed, it would shock the community were the police not allowed to do
what they did in this case.
Lamer J held that a statement may be inadmissible if it was induced. However, it may also be
inadmissible if the elicitation of the statement would bring the administration of justice into disrepute.
The conduct must be “so shocking” to offend the standards of the community. The conduct will have the
effect of compromising the reliability of the statement.
Rationale: An undercover police officer who receives a confession is not a person in authority.
Estey J - Dissenting
- The statement ultimately obtained and tendered in court was the product of a trick and lies by
persons in authority, calculated to subvert the appellant’s expressed decision to stand mute – this
brings the system of justice into disrepute and therefore cannot be allowed.
- the accused expressly exercised his right to remain silence in the presence of uniformed officers.
Estey gave a much larger interpretation to the word “voluntary” – trickery by the officer negates
the voluntariness of the statement.
What are threats and what are promises? Torture, threats to family member, promises to be acquitted, to
get off. Today’s examples are not so obvious - a lot more subtle situations of threats and promises.
On promises, a 19 year old accused of manslaughter, no right to have a parent present, upset state, and
investigator says : your confession is halfway to forgiveness.
Circumstances are important re: admissibility of statement from accused.
R v. Hodgson, [1998] SCC
Facts:
- Hodgson was a friend of the complainant’s family. He had sexually assaulted her on several
occasions. The complainant told her mother, who went on to call the police.
- Family of complainant confronted accused at his place of work where, according to them, he
confessed.
o He later denied this confession
o He did not oppose the admission of the confession at trial.
- Hodgson confessed and said “he knew it would catch up with him.” The mother struck Hodgson.
The father also pulled out a knife to prevent Hodgson from leaving.
Issue: Was the confession voluntary and where they in position of authority?
Held:
Reasoning:
- He claims he did not feel threatened but also that he did not confess
- Defence council didn’t object to admission of the confession
- Court had to determine:
o 1. Should the confession rule apply to both person in authority or circumstances where
ordinary person received confession
o 2. Should the judge ask for the voir dire
o is the onus on accused to ask for voir dire
o Should we get rid of person in authority aspect of the confession rule
- Back to basic rules: free and voluntary – voluntariness is both objective and subjective – have to
consider all circumstances
- Will keep person in authority rule – clear distinction b/w ordinary person and person in authority
- Will not impose voir dire on each and every type of confession – burden the system. And it would
be such a fundamental change in law that it is up to leg to impose voir dire in all circumstances
- When is a person in authority
o Has to be subjective – what was in accused’s mind.
o Here they have in mind the under cover police officer sting in cell with accused, where
accused confesses not knowing he is a cop
o Have to look at the issue through the eyes of the accused
But, accused’s belief has to be reasonable – has to be reasonable elements to conclude the
belief that the person was in authority was real
The victim’s family had intervened with physical authority – what should the judge do in this
type of situation
o When there is a question of whether the recipient of confession has to be determined by
judge
o When confession is made to ordinary citizens, there may be cased where judges should
warn jury about weight given to statements made under threatening circumstances –
doesn’t have to be a voir dire, but should use common sense approach. When statement is
obtained in suspicious circumstances, then judge should tell jury to be careful in terms of
probative value.
Confession rule focuses on putative reliability – the court has to determine if statement is reliable
and obtained in fairness to the accused
Rule is the Crown has to prove that confession is admissible – made voluntarily and product of
operating mind.
Authority – no catalogue of persons in authority. It depends on the circumstances
The purpose of the voir dire is to determine is a statement is reliable not true
o
-
-
Voir dire
- If defence counsel does not raise issue of authority and judge has reasonable to believe the
confession was made to person in authority, the judge has to raise the issue and ask for a voir dire
-
-
Voir dires are held whenever you have to stop main trial to deal with admissibility of evidence.
Small trial within big trial
Jury cannot be present because purpose is to determine admissibility
In case of confessions, if the prosecution wants to intro evidence (even if it is exculpatory), have
to show that it was obtained correctly and legally.
The prosecution ahs burden of proof – beyond a reasonable doubt
The accused may chose to testify or call witnesses once the prosecution has presented their
witnesses
Testimony of accused at voir dire cannot be used at trial
If judge lets evidence in, the process starts over again in front of the jury so they can hear. They
have to weigh probative value
In trial before judge alone – in order for the evidence to be read into trial itself, both counsel have
to agree that the Crown’s evidence presented at voir dire will be part of Crown’s evidence (based
on Gauthier). If both parties don’t agree, have to start over again.
With Charter, voir dire are trickier – prosecution has burden but if the accused raises a
constitutional argument like right to counsel – the accused has burden on balance of probabilities
to show right to counsel was violated
o Dealt with at same time even though two diff, burdens
Voluntariness: Operating Mind
Ward v. The Queen, [1998] SCC
Facts:
- Car accident, two people found on ground outside car. Ward was unconscious but as revived. He
made a statement to police about half an hour later
- Trial judge rules the confession inadmissible because of the fact that there was a
mental/emotional condition (he was unconsciousness only .5 hours before confession)
- The judge is not supposed to weigh the probative value at the voir dire – just have to see if it is
-
admissible. Weight belongs to jury
Court of appeal quashed decision
Issue: Did the accused have an operating mind?
Held: No
Reasoning:
- SCC – reinstated trial judgement
- Is the confession free and voluntary, but also is it the result of an operating mind
- Is the accused in a state of disintegration that his mind is not there?
- If there is a doubt about mental element – have to give benefit of doubt to accused
- Must engage in both mental and emotional physical element
- Can the words be found to be the utterances of an operating mind in light of the mental condition
- Now part of the ritual of voir dire
In R. v. Ward, the court found that the accused was not sufficiently conscious to exercise his right to
silence. The threshold, however, is very low. A dim-witted person who is intoxicated would not be able to
benefit from this exception.
R v. Whittle, [1994] SCC
Facts:
- accused suffering from schizophrenia
- during voir dire, he talked about voices he heard telling him to do things
- he confessed to murder even though after having been arrested his lawyer told him not to talk to
the police
Issue: Is this an operating mind?
Held: Yes. Confession allowed
Reasoning:
- more restricted notion of operating mind
o Test requires that accused possess limited degree of cognitive ability to understand what
they are saying and comprehend that it may be used in proceedings
o Is the accused capable of making wise or good choice that is in his interest
o As long as you have cognitive ability, it will be accepted
- SCC says the test requires that the accused possess a limited degree of cognitive ability to
understand what he or she is saying and to comprehend that the evidence may be used in a
proceeding against the accused.  goes no further and no question is asked of whether he is
capable of making a good or wise choice or one that is in her own interest.
- Accused’s confession was allowed
-
is the voir dire to determine if the statement is true or if it is reliable
in cases dealing with confession to person in authority courts have said we have to determine
whether the statement is reliable taking into consideration all of the circumstances
if the accused testifies at voir dire that he was coerced, can you as the accused if his confession
was true...
HoL – truth has nothing to do with voir dire. The main thing is reliability
prosecution can try to get a statement into evidence for 2 reasons: 1) accused has confessed; 2) or
to be able to use it in cross-examination if accused decides to testify
-
Nothing prevents the accused from trying to show that at the moment of the offence, he was
mentally incapacitated
-
in some cases, where the confession is not allowed, the derivative evidence can still be allowed
o ex. Black – murder weapon was allowed even though it came from confession that was
rejected
Voluntariness: oppression
R v. Oickle, [2000] SCC
Facts:
Oickle was a local volunteer firefighter. He was being investigated for 8 fires. The timeline proceeded as
follows:
Before 3:00PM, Oickle was bought to a motel for a polygraph test. He was not under arrest.
3:00 – Oickle was fully advised of his rights and was told that he could leave.
5:00 – Oickle finished the test. He failed it. He said, “What if I admit to the case… Then I can walk out of
here and it’s over.” Oickle did not leave.
6:30 – Oickle admitted to torching his fiancée’s car, but denied involvement in the other fires. Oickle was
arrested.
8:15 – Oickle was brought to the police station. He was read his rights again.
9:52 – Another constable took over the investigation.
11:00 – Oickle admitted to the other fires, except the fire in his father’s van. In the end confesses to 7 out
of 8 fires.
1:10AM – The police concluded taking Oickle’s statement.
2:45 – Oickle fell asleep.
6:00 – Oickle awoke and agreed to a re-enactment of the crimes. Oickle was read his rights again.
Issue: Was the statement voluntary and therefore admissible.
Held: Yes, Admissible. Might have been persistent and accusatorial but not oppressive.
Reasoning:
 Must decide whether acceptable police conduct and whether statements are voluntary. This is a
contextual analysis.
 Reasonable doubt to voluntariness will cause the confession to be excluded. Furthermore, being
subject to intolerable conditions would call into question reliability and thus cause confession to be
excluded. Similarly, oppressive conditions and inducements can operate together to exclude
confessions
CA – they were almost too nice, fostering a trust environment. SCC rejects this
SCC – majority goes back over confessions rule. There as nothing wrong with tactics used. Using
contextual approach.
- Have to be careful about false confessions
- Want to protect accused without unduly limiting society’s ability to investigate crime
- Questioning by police is a legitimate practice
- Even if it is counterintuitive to think someone would admit to a crime they didn’t commit,
-
-
-
intuition is not always correct – people do admit to crimes they have not committed
Discuss how false confessions come about. List 5 categories of confessions:
o Voluntary - normal
o Stress-compliant – interrogation process is so stressful you will say anything to get rid of
stress
o Coerced-compliant – coerced by threats or promises. This is closest to trad. rule. Most
false confessions are this type, which is why CML developed as it did
o Non-coerced-persuaded – confusing the accused. Fabricated evidence, false statement.
Make accused think they got it wrong. Addresses itself to vulnerability of person who is
in control of police
o Coerced-persuaded confession – mixture of 3 and 4.
Most likely to get false confessions from vulnerable accused and people who’s personalities make
them likely to accept suggestions by authorities
Statements that are voluntary are more likely to be reliable
In evaluating the situation – have to look at strength of mind and will of accused – who is the
person on whom we are exercising the pressure?
What is the influence of custody?
SCC finds the accused was not so completely overwhelmed that they statements are not
admissible
Problems with polygraph – questioning technique used before the test begins develop trust
relationship
Contextual approach – particular vulnerability is one thing but it is not the whole thing. Also have
to look at environment, etc
Courts puts a lot of emphasis on doing each case on a case-by-case basis – don’t want to make a
general rule
A minor inducement can be a big deal within the context of the entire interrogation
If the person seems to have been properly questioned, the court will not intervene
- Dealt with objectionable elements by saying they were not that big a deal (minimizing
seriousness of crime, telling him he would feel better if he confessed, threats to polygraph the
girlfriend, etc). Agreed polygraph was touchy, but not enough to intervene.
- Schurman has difficulty with the court’s finding
Arbour (dissent) – main thrust is that she thought the tactics went too far. The use of the statement after
the polygraph was a catch-22
-
Generally, polygraph is inadmissible in court of law. So what happens when you do questioning
after the polygraph and then put those answers in as evidence
o It could be seen as a continuing conversation in the same setting with the same people
o And for the accused to counter the statement, he would have to admit that he had just
failed a polygraph – extremely prejudicial
o Schurman – ultimate unfairness is the polygraph.
-
Videotapes are good for showing the real atmosphere of the interrogation
-
when we are talking about where the right to silence fits in
o if criminal system is search for the truth, ho do we justify right to remain silent
o one way of seeing it; justice is the end, the search for the truth is the means
o sense of fundamental justice that overrides the search – we believe in that our system
relies upon protection of some fundamental values
Spencer (March 8, 2007, SCC 11)
- accused confessed to participating in robbery that was committed by people using girlfriend’s car.
He insisted girlfriend was not involved
- Problem: threat of charging girlfriend or promise not to do so. How problematic was this in
obtaining the confession
- Spencer confessed clearly in hope of leniency for girlfriend and in hope of seeing girlfriend
- Trial: free will was not overborne by inducement
- CA: the only test is to see if something was offered
- SCC: look at voluntariness and what rule means
o Contextual approach from Oickle is the approach to take
o No hard and fast rules to evaluate whether a statement is voluntary
o Threats, promises and oppression and whether statement was a product of operating mind
are four factors that should all be considered together
o Tricks by the police are a separate inquiry
o Promises don’t have to be about person detained, can be about 3rd parties
o Inducement are improper when there is a reasonable doubt that the will of the person has
been overborne. Not enough to look if something was offered
o Uphold trial judgement
- Fish (dissent) – trial judge used wrong legal standard. We have never required the inducement to
be so overbearing that will was overborne.
o Trad. rule presupposes that will is not overborne, and if there is an offer there is a
problem. Threats or promises rule from Ibrahim has nothing to do with being overborne.
Mind is fine and making decision to confess because of the threats or promises.
o If you use trad approach (Ibrahim and Oickle), it is clear that there were threats and
promises
Stewart (author) – Oikle sets stage to cut down on judicial controls on interrogation Spencer is a followup to this.
Spencer – do we see any problems with come from the distinction between the will being overborne and
statements that are involuntary
- Fish – Ibrahim was based on voluntariness. No discussion of will being overborne
- Majority agreeing with trial judge – allowed evidence
Illegally Obtained Evidence
-
-
Standard under CML – was admissible as long as it was relevant to case. All that matter was the
probative value
o The only discretion a trial judge retained was to exclude evidence when prejudice was
greater than probative value (Ray). Other than that, no discretion to exclude
Rothman – post-Charter decision – developed through several cases in this section
Rule in Canada was diff from US – in US, constitutionally, improperly obtained evidence was
inadmissible. There was nothing in our constitution prior to Charter
S. 24(2) of Charter provides for exclusion of evidence – but not automatic exclusion like in US.
More like a compromise
o Evidence shall be excluded only if it would bring the administration of justice into
disrepute
With respect to unlawfully obtained evidence, the judge retains the discretion where the probative value >
prejudicial effect to exclude the evidence (R. v. Seaboyer, R. v. Hawkins). Section 24 of the Charter
provides a specific legislative provision to base exclusion of evidence.
Section 24(2) allows for the exclusion of evidence obtained in a manner in violation of a constitutional
right. The applicant must demonstrate on the balance of probabilities that there (1) was a breach of a
constitutional right and (2) that evidence was obtained as a result of the breach. This is a compromise
position between the US position of automatic exclusion and the common law position of
presumptive inclusion.
Although the accused/applicant bears the burden, the Crown also bears the burden of proving the
accused’s guilt. The Crown, therefore, may call the investigating officers in chief during the voir dire –
which gives the accused the opportunity to cross-examine the Crown witnesses.
Does the accused have to demonstrate a causal link between the breach of the right and the obtaining of
the evidence? Proof of causation would suffice. In R. v. Strachan and R. v. Goldhart that evidence can be
challenged where the constitutional breach and the acquisition of the evidence may be sufficient even in
the absence of strict causation.
Right to Remain Silent Under S. 7 of the Charter
- Right to remain silent is about the right to chose in the face of authority
- What is the present status of the right to remain silent in Canada?
o No section that specifically said there was a right to remain silent
o Prior to Charter – some say yes and some say no. Those who say yes say it comes from fact
that nobody is obliged to answer questions. Lack of positive duty to assist police
The leading Supreme Court of Canada decision on an accused's right to silence under s. 7 of the Canadian
Charter of Rights and Freedoms.
R v. Hebert, [1990] SCC
Facts:
- Neil Gerald Hebert was arrested for armed robbery. He was informed of his rights and taken to an
RCMP detachment. Upon consulting a lawyer, he said he was not going to make any statements.
Hebert was put in a cell with an undercover agent posing as another arrested suspect. The
undercover agent chatted with Hebert and managed to elicit several incriminating statements from
him.
- At trial, a voir dire was held to determine the admissibility of the conversation. The judge found
that Hebert's right to counsel under section 10(b) of the Charter, and his right to remain silent
under section 7 were violated. On appeal the court found that Hebert's rights were not violated
and a new trial was ordered.
Issue:
Held:
Reasoning:
- Revisiting of Rothman post-Charter – Lamer’s judgement in Rothman becomes the standard
o Behaviour that would shock the community
- S. 7 should be read broadly to beyond original CML definitions of right to silence
o Protection of fundamental justice – no one can be deprived of life, liberty, security...
o Fundamental justice can embrace more than just one rule and can reconcile diverse and
related principles – no pigeon hole, rule-by-rule approach
-
-
-
-
-
o One traditional rule may be too narrow (we saw this in Lamer’s dissent in Rothman)
SCC – right to remain silent is part of s. 7.
Rules concerning fundamental justice are rooted in 2 trad. Concepts:
o 1. Privilege against self-incrimination
o 2. Confessions rule
o These are the basis for finding a right to silence in s. 7
By the trad confessions rule – everyone had free choice to speak to authorities and there was also
a correlative concern about the integrity of the judicial process (can’t use just any means to get
you to talk)
Privilege against self-incrimination applied at trial. Related to confessions rule – right of every
person not to be required to provide evidence against themselves. Not required to testify.
Common theme in CML was right of individual to chose
SCC – s. 7 right to silence has to go beyond narrow confessions rule (direct continuation of
Lamer in Rothman)
If freedom if put in jeopardy – you must be given a choice to speak or not.
o This is related to right to counsel – choice must be an informed choice. An independent
advisor needs to be available to inform the accused of their choice
o 10b allows for counsel
o whole point of access to counsel is to help you make the informed choice
Also have to look at conduct the conduct of the police to know if they somehow deprived the
suspect of the choice they were entitled to make
Did the police conduct deprive in this case
o Yes. He had exercised right not to make a statement, and the police negated that right by
putting an officer in the cell
Decision: the conduct had taken away his free choice
o S. 7 is able to encompass more than one rule – broader than confessions rule
What is the threshold as to when the state is involved?
- We think it’s bad to have undercover officers in the cell trying to get info, but what about nonpolice informants who are either paid or not paid?
- Can we say that when the state has planned the act, right to silence is violated? But then, what do
we qualify as planning?
Pg 613 – what is the Charter through s. 7 seeking to do
- seeks to impose limits on power of the state over detained person
- balancing of power
- state has right to take freedom away but only as long as they respect rights if fundamental justice
R v. Singh, [2007] SCC
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. The accused was advised of his right to counsel under s. 10(b) of the Canadian Charter of
Rights and Freedoms 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. The interviewing officer persisted in
trying to get him to make a statement. While the accused never confessed to the crime, he made a
number of admissions which, when taken together with other evidence, later became probative of
the issue of identification at trial.
- 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.
Accused was arrested – part of group of people standing outside pub when someone was shot
Videotape evidence used to identify him
Issue: Identification
Held:
Reasoning:
- Advised of right to counsel – he said he didn’t want to talk. Police kept going. He didn’t confess
but made incriminating statements.
o Invoked right to remain silent 18 times
- Trial Judge – admissions came freely
- Only contesting s. 7 interpretation
Majority – upheld trial judgement and allowed the evidence
- No violation of right to silence
- The confession was voluntary – s. 7 not triggered?
- Balance between right to chose and interest in discovering the truth
- Short of depriving accused of right to chose and an operating mind – no persuasion
- Back to a severely split court
Fish (dissent) – at what point does no become yes.
- This is not new ground – pre-trial right of silken already exists
- It is the courts’ duty to ensure detainee’s rights are respected – not disregarded and undermined as
part of investigative strategy
- Singh was totally under control of police authorities – clearly stated he didn’t want to speak about
the incident
- Deprived not only of right to silence but also collaterally of the benefit of his right to counsel
- A repeated assertion of right to silence makes it clear he doesn’t want to talk to police –
interrogator systematically denied him this.
- When continued resistance is made futile – ultimate consent is not valid. You will naturally
believe your rights are not valid
- No concrete rule – purposive approach. Constitutional rights do not need to be invoked a
predetermined number of times
- Para 81 – when police have ignored person’s request he is likely to feel his right has no effect and
he has to answer (quoting earlier case)
- Right to silence like right to counsel is a constitutional promise that must be kept
-
Search and Seizure
s. 8 of Charter
- Everyone is protected from unreasonable search and seizure
o word unreasonable is significant
o so is everyone – protects people not places. This is significant when looking at
development of jurisprudence
- sections 8 to 14 can be seen as illustrations of s. 7 – (Justice Lamer)
- dealing with situations where state invades privacy where there is a reasonable expectation of
privacy – what is a reasonable expectation of privacy
-
-
If there is a reasonable expectation of privacy – police search has to comply with Southam
What makes a search reasonable – is furthering legitimate gov’t objective enough to make it
reasonable?
o Circumstances of the search and the person they are search – impact on the subject of the
search
Root of the protection is found in idea that every person’s property is scared – Constitutional
protection un s. 8 is broader
Comparable provision in US – also uses unreasonable
o 4th Amendment – protects people not places
What is a reasonable expectation of privacy?
Is the expectation of privacy diminished by the fact that you are committing a crime
The home is different than workplace or street – old idea that home is sacred
Balancing – centred around right to privacy but also right of the state to security
Simpson (ON)
- house party, people coming in and out. Police arrived and decided to intercept someone leaving
- was the police office right in intercepting that person?
- The police can intercept – if you have enough info that would lead a normal person to believe
something illegal may have happened, even if you are not 100% positive, you can intercept
Edwards
- SCC – have to look at totality of circumstance to decide if someone as reasonable expectation of
privacy
- Here, Edwards was a visitor – no ability to limit access
R v. Tessling, [2004] SCC
Facts:
- In February 1999, the Ontario police received a tip that Walter Tessling was running a marijuana
grow operation. In the course of the investigation, the RCMP flew over Tessling's property with a
Forward Looking Infra-Red ("FLIR") camera and got a heat profile of the land.
- Using the results of the FLIR profile and other evidence, the police were able to establish a
reasonable and probable grounds that there was a grow operation on Tessling's property which
allowed them to get a search warrant to search the property.
- The police searched the property and found the marijuana growing operation that was estimated
at $15,000 to $22,500. Tessling was charged with drug trafficking and possession of weapons.
- At trial, Tessling argued that the FLIR scan was a violation of his right against unreasonable
search and seizure, and that the evidence should be excluded from trial. Tessling was convicted
and was upheld on appeal.
Issue: Was there a reasonable expectation of privacy?
Held: No. Evidence admissible
Reasoning:
- The issue before the Supreme Court was whether the use of a thermal imagery such as the FLIR
camera violate the right against unreasonable search and seizure.
- A unanimous Court held that the thermal imagery did not violate the accused's right to be free
from unreasonable search and seizure.
- Binnie, writing for a unanimous Court, analysed the application of section 8. few things are as
important to our way of life as the amount of power allowed the police to invade the homes,
privacy and even the bodily integrity of members of Canadian society without judicial
-
-
-
authorization.
However, Binnie noted, there must be a balance between the individual and the community. The
community wants privacy but it also insists on protection. Safety, security and the suppression of
crime are legitimate countervailing concerns. Thus s. 8 of the Charter accepts the validity of
reasonable search and seizures. A balance must be struck...
He then went on to outline a test to determine if an accused reasonable expectation of privacy was
violated. First, it must be asked whether the accused have a reasonable expectation of privacy. If
so, was that expectation violated by the police's conduct?
On the facts, the answer to both of those questions was answered in the negative.
SCC – it is not because technology improves that right to privacy diminishes
o Still has to be done properly, legally and reasonably
Police have right to try and get info
Application of balance between reasonable expectations of privacy and right of state to conduct
proper investigation
R v. Collins, [1987] SCC
Facts:
- Ruby Collins was arrested at a bar by RCMP officer.
- After arresting her husband outside (who was in possession of heroin) he walked quickly to her
table, clamper her throat (to stop her from swallowing any balloon of drugs), brought her off her
chair onto the ground, and seized drugs from her hand.
- Force used by Constable was “considerable”
- On cross-ex, came out that there was no prior suspicion of accused – only that there were drugs in
the bar.
- Violation of s. 8 of the charter found by TJ was not convinced that the evidence should be
excluded as a remedy under s. 24(2) of the charter.
Reasoning:
- Was the search authorized by law – yes. Authorized by leg
o Narcotic control act says you can search any persons not in a house
o Very vast powers of search
- This was a warrantless search – burden on crown to show that search was reasonable
- Was the method used by officer unreasonable
- Also a lesson in hearsay – only was crown can show that search is reasonable is to show that the
officer had a belief and the belief was held on reasonable grounds
- Officer never able to show reasonable grounds because defence counsel claiming hearsay – trial
judge allowed objection
o SCC says trial judge should have allowed the testimony
o Hearsay was being introduced to show why the police officer was acting the way he did
and not for the truth of its contents
- When is a search reasonable – 1) when authorized by law; 2) if the law itself was reasonable; and
3) if the manner in which it is carried out is reasonable
Lamer J
 3 step test for s.24(2) iterated (evaluation based on the views of community at large – in the eyes of
the reasonable man)
1. 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.



2. Seriousness of the violation
 In good faith? Inadvertent or merely technical? Deliberate, wilful, flagrant?
 Motivated by urgency or necessity?
3. Will exclusion of evidence bring admin of justice into disrepute?
Note that this section of the charter is no 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 – court must dissociate itself from conduct of police where on
mere suspicions they tackle a person and seize them by the throat.
Hunter v. Southam, [1984] SCC
Facts:
- An investigation was begun by the government under the authority of the Combines Investigation
Act into Southam Newspaper.
- The investigators entered Southam's offices in Edmonton and elsewhere to examine documents.
The search was authorized prior to the enactment of the Charter but the search did not commence
until afterwards. The challenge was allowed.
- At the Alberta Court of Appeal, the judge found that part of the Act was inconsistent with the
Charter and therefore of no force or effect.
Issue:
Held:
Reasoning:
- The Supreme Court considered section 8 for the first time and upheld the ruling of the Court of
Appeal
- Dickson – certificate issued has a breathtaking sweep
- SCC – do we determine ex post facto whether there were grounds to believe evidence would be
found or do we required before the fact authorization by some kind of judicial officer to make
sure balancing between interest of state to investigate and right of individual is done
- Has to be done before – s. 8 and Charter in general does not give extra powers to police to
conduct searches. On contrary – cannot search unless you have reasonable grounds to believe and
a judicial officer to do the balancing work
- Prior authorization must proceed execution of warrant
- State must show that interest in investigating offence is superior to that of individual
- Where feasible prior authorization should be done by judge or some one capable of being
impartial and neutral
- Presumption that search is unreasonable – not up to accused to show that it is unreasonable. Up to
Crown to show it was reasonable. The individual who wishes to justify a warrantless search must
rebut the presumption of the unreasonable nature of that search.
-
-
For a search to be reasonable (warrant or no warrant):
o 1. Police have acted according to law (leg or case law)
o 2. Reasonable belief there is evidence to be found
Has to be something more binding.
States interest begins to prevail over individual at point where credibly based probability replaces
suspicion
Charter does not give more power to police – in fact streamlines powers
Subjective expectation of privacy but that expectation must be reasonable
Protects people not places
Highlights diff b/w unreasonable and illegal – search here was legal, but it was unreasonable
because law itself was unreasonable.
R v. Mann, [2004] SCC
Facts:
- On December 23, 2000, in Winnipeg at around midnight, two police officers responded to a break
and enter.
- While searching the neighbourhood, they spotted a young man matching the description of the
suspect. He was described as a 21 year-old, 5 foot 8, Aboriginal male in a black jacket.
- The officers stopped the man, asked him some questions, and then gave him a pat-down. When
patting the man down, the officer noticed a soft object in one of his pockets. The officer reached
in and pulled out a bag containing 27 grams of marijuana.
- The young man was arrested and cautioned for possession for the purposes of trafficking under
section 5(2) of the Controlled Drugs and Substances Act.
- At trial the judge found that the search violated section 8 of the Charter and that the bag must be
excluded from evidence as it would interfere with the fairness of justice under section 24(2) of the
Charter. The judge found that the pat-down was reason for security purposes only but reaching
into the suspect's pockets was not for that purpose.
Reasoning:
- The Court found that the trial judge was correct and the acquittal should be restored.
- Justice Iaccobucci held that where a police officer detains a suspect on reasonable grounds they
are allowed to give a pat-down only as a protective measure. Any search for the purposes of
detecting and collecting evidence will not have been on reasonable grounds. In the current case,
the initial pat-down was minimally intrusive. However, the search of the pocket must be
grounded in a reasonable justification, which in the case has no justification.
- Grenier – another example of the balance between the role of the police (we expect them to try
and find stolen goods and drugs) and the rights of the individual
- Absent a warrant police can search for weapons and to preserve evidence
- 5 relevant considerations to analyze if a search is reasonable:
o the duty being performed
o extent to which interference with individual’s liberty is necessary for the police’s duty
o importance of the duty to the public good
o nature of liberty interfered with
o nature and extent of interference
Right to Counsel
s. 10 Charter – everyone has right on arrest or detention to retain and instruct counsel without delay and
the right to be informed of the right
- has led to debate in cases of breathalyzer and confessions
-
-
-
until 1982, if someone was interrogated by police, the person was not advised of right to call a
lawyer
o that was considered by the court, but it was not enough to exclude a confession
Charter changed this considerably
Police now have to1) inform you of the right to retain and instruct counsel; 2) provide reasonable
opportunity to exercise the right; and 3) they cannot question you before you have has the
opportunity to consult a lawyer
Right to counsel is constitutional right to counsel of choice – have to ask you if there is a lawyer
with whom you would like to communicate
Not limited to a certain number of phone class – right is to retain and instruct counsel without
delay
R v. Bartle, [1994] SCC
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 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.
Issue: Is the statement admissible
Held: No
Reasoning:
- 2 components to s. 10: information (inform them of the right) and implementational (give
reasonable opportunity to contact lawyer)
- If a person says no to counsel, have to make sure the person knows what they are saying no to
and why. Obligation to make sure the person understands their right.
- To what extent must police officers give advice to an accused who says no?
o No legal advisors but they are representatives of the state – have to make sure the accused
knows what’s at stake
- Waiver – when a person wants to waive their right to a lawyer, the waiver has to be clear and
unequivocal – police must make reasonable effort to explain right to counsel and if the accused
doesn’t understand, take extra steps to make sure they understand
o Have to take reasonable steps to inform
- Breathalyzer test excluded
Bridges
-
police have to make sure they know of the right to free advice
but that doesn’t mean province has constitutional right to set up a legal aid system
Principles of Exclusion Under the Charter: Standing
 Standing issue: Person whose constitutional rights have been violated  Edwards: Accused
cannot advance constitutional claim on basis that is was somebody else’s rights have been
violated.
R v. Edwards, [1996] SCC
Facts:
- The accused was convicted of possession of drugs for purposes of trafficking. He had been
suspected of drug dealing out of his car using a cellular phone and of keeping the drugs at his
residence or at his girlfriend's apartment. The police arrested him on a traffic offence. Two
officers later called at his girlfriend's apartment and gained her cooperation through a number of
statements, some of which were lies and half‑ truths -- the evidence was conflicting as to whether
they were made before or after the officers were admitted to the apartment. Once inside, the
accused's girlfriend directed them to the location of a significant cache of drugs.
- At the police station, she gave a statement naming the accused as the person who put the drugs in
her apartment. At trial and on appeal, the accused denied being the owner of the drugs.
- The accused's appeal from conviction was dismissed with a dissenting opinion which found a
reasonable expectation of privacy giving rise to the possibility of an infringement of his s. 8
Charter rights against unreasonable search or seizure.
Issue: Did he have a reasonable expectation of privacy?
Held: No
Reasoning:
- 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.
- can you invoke violation of someone else’s rights as the accused – no have to find a privacy right
of his own
- 24(1) and (2) implies when one’s own rights have been infringed
- Laforest – dissent. Majority decision is a limitation of s. 8 rights.
The Link Between the Breach and the Evidence
R v. Strachan, [1988] SCC
Facts:
- Joseph Strachan was under investigation by the RCMP for drug related offences. A warrant was
obtained under section 10(2) of the Narcotic Control Act to search his apartment.
- The police arrive at his apartment and found him with two other men, along with a substantial
amount of drugs and money. All three men were arrested and read their rights.
- Upon arrest the officer in charge denied Strachan's attempt to use the phone to contact a lawyer
on the basis that he still needed to get "matters under control". The officer later testified at trial
-
-
-
that he intended to first question the suspects and find guns that were suspected of being there
before he would allow them to call a lawyer. Strachan was finally allowed to contact his lawyer
from the police station an hour and forty minutes after the arrest.
At trial, it was held that Strachan's right to counsel, under s. 10(b) of the Charter, was violated,
that the evidence must be excluded under section 24(2) of the Charter, and that Strachan be
acquitted.
On appeal, it was held that Strachan's right to counsel was violated but the evidence should not be
excluded as there was no causal connection between the violation and evidence collected. A new
trial was ordered.
The issue before the Supreme Court was whether there was a violation of Strachan's right against
unreasonable search and seizure under s. 8 of the Charter and whether the evidence should be
excluded under section 24(2) of the Charter.
Reasoning:
- SCC – rejected causal connection argument presented by crown. Can’t speculate on whether
evidence would have been discovered anyway
- This isn’t something the court can speculate about
- No causal link required b/n the violation and the discovery of the evidence – this would distort
the enquiry and take focus away from the conduct that led to the discovery. – also, would be
rarely, if ever, found in cases of violations to rights to council.
Bringing the Administration of Justice into Disrepute
R v. Stillman, [1997] SCC
Facts:
- Friends in woods drinking and doing LSD. Two people leave – victim and accused. He shows up
later with a cut and muddy. She is found dead 4 days later next to a bridge where they were seen
together. She has a human bite mark on her abdomen and seamen in her vagina.
- He retains counsel on arrest and they submit in writing a statement to police saying the he is not
consenting to give samples of DNA, hair, impressions of his teeth or to being interviewed outside
the presence of a lawyer.
- Police collect evidence anyway by force. Impressions taken, hair taken and, at one point dirty
Kleenex seized after it had been thrown out.
- TJ said there was violation of charter rights but should be admitted. CA agreed save one dissent
Issue: Was the coerced body evidence admissible? Was the tissue evidence admissible
Held:
Reasoning:
2 categories of evidence: non-conscritpive (clearly not related to the accused) and conscriptive (can be a
statements, things that come form the body like hair or parts or fluid – related to the accused. References
to other real evidence within statement of the accused. Evidence that is connected to the accused)
once you’ve decided if your evidence is conscriptive or non, next step is:
- if non-conscriptive – the admission will not affect trial fairness. Admissible
o If it will not affect fairness: then court can proceed to consider seriousness of Charter
violation and whether exclusion will being admin of justice into disrepute (effect of
exclusion)
-
-
o
If conscriptive – then have to look at discoverability. The 2 categories of discoverability are: 1)
would have been discovered anyway; 2) evidence that would have not been discovered anyway
o If it would NOT have been discovered anyway - admission will make trial unfair. Not
admissible
 Consequently, it is not necessary to go to the seriousness of violation or the effect
on admin of justice. STOP HERE.
o If it would have been discovered any way – does not affect trial fairness. Crown has to
prove that there was in ind. source or that it was inevitable
 Court then ahs to look at seriousness of violation and effect on admin of justice
Moving away from real evidence to non-conscriptive
Case at Bar
 Evidence was conscriptive and the discoverability principle does not apply. – Thus would affect
fairness of trial
 Very serious nature of the violations. Purposefully waiting until lawyer left, express refusal ignored,
particularly bad as he was a young offender
Wrt the tissue, not a serious breach (not invasive) and police would have obtained it by getting a warrant
to take it. It was discoverable
Privilege
-
other then the privilege against self-incrimination
-
similar to hearsay – taking away pigeon hole approach and developing principles approach
flexibility coming in
the information the witness has to given is both relevant and probative – but it cannot be
disclosed if privilege applies because of the nature of the relationship
sometime pursuit of the truth may be less important than some other interest
When there is a privilege – evidence is inadmissible unless privilege holder waives privilege
Tradition approach – class by class assessment. Certain cases of communication were presumed
privileged
o Evidence covered in a certain class was presumed privilege and had to prove why it
should go in anyway
-
New approach – case by case.
- Evidence presumed to be admissible unless shown otherwise. Moving away from presumptive
inadmissible – goes back to courts more and more being about the search for the truth
- Solicitor-client privilege – One of the old class privileges that still exists. The only class privilege
recognized in crim. Presumed inadmissible
- Case by case – doctor/patient, religious communications, journalist/informant (these might be
covered
o To make the determination, rely on Wigmore criteria:
 1. Did the communication originate in confidence that it would not be disclosed
 2. Is the element of confidentiality essential to full and satisfactory maintenance
of the relationship to the parties
 3. Is the relationship one that must be fostered – do we really want to protect it
 4. Would the injury that would result from disclosure be greater than the benefit
from disclosure
-
-
-
-
-
Client has privilege. Only privilege holder can waive it
Decoteaux – someone fraudulently using legal aid
o What are the circumstances in which solicitor files will be privileged – Confidentiality
can be raised when:
 Where communication is likely to be disclosed without clients consent
 When legitimate exercise of right would interfere with right to keep info
confidential, debate must be resolved in favour of confidentiality
 If laws allowed to interfere with confidentiality – should only interfere when
absolutely necessary
 Leg should be interpreted restrictively
Solicitor-client privilege is essential to the whole legal system. Cannot undermine that confidence
b/c then people won’t seek advice. And the law is so complicated they need advice
o Has to be as close as possible to absolute to maintain public confidence and to maintain
the lawyer’s role
Won’t the approached on a case-by-case basis when certain criteria are fulfilled. Solicitor-client
will always be privileged in these clearly defined circumstances:
o Privilege will cover people working for the solicitor
o Will attach if person is seeking legal advice
o If communication is intended to be confidential
o Bills and accounts are prima facie privileged
o Only client can waive privileged
Exceptions:
o If solicitor is facilitation commission of a crime or if the communications are in an of
themselves criminal
Warrants issued to search law offices, were struck down as unconstitutional. If solicitor failed to
act, privilege would be lost and client would not know about it and not have a say
Exceptions: Public Safety
Smith v. Jones, [1999] SCC
Facts:
- An accused was charged with aggravated sexual assault on a prostitute. His counsel referred him
to a psychiatrist and informed the accused that the consultation was privileged in the same way as
a consultation with him would be.
- During his interview with the psychiatrist, the accused described in considerable detail his plan to
kidnap, rape and kill prostitutes.
- The psychiatrist informed defence counsel that in his opinion the accused was a dangerous
individual who would, more likely than not, commit future offences unless he received sufficient
treatment. The accused later pled guilty to the included offence of aggravated assault.
- The psychiatrist phoned defence counsel to inquire about the status of the proceedings and
learned that his concerns about the accused would not be addressed in the sentencing hearing.
The psychiatrist commenced this action for a declaration that he was entitled to disclose the
information he had in his possession in the interests of public safety.
- The trial judge ruled that the public safety exception to the solicitor‑ client privilege and
doctor‑ patient confidentiality released the psychiatrist from his duties of confidentiality and
concluded that he was under a duty to disclose to the police and the Crown both the statements
made by the accused and his opinion based upon them.
- The Court of Appeal allowed the accused’s appeal but only to the extent that the mandatory order
was changed to one permitting the psychiatrist to disclose the information to the Crown and
police.
Issue:
Held:
Reasoning:
Majority – if there is clear risk to an identifiable group, and the risk is of bodily harm or death and risk is
imminent, then solicitor-client privilege will have the cede to public good.
- Here it was clear and serious
- Bodily harm is broad enough to include psychological harm
Major J. (minority) – does say that sometimes confidentiality must yield to public good. But he would
have decide in favour of permanent and substantive privilege when
- Agreed with standard of clear, imminent danger
- But concerned with what to do with most dangerous offenders if you undermine their confidence
in the people who are supposed to be helping them
- The way these people often get help if on referral by their lawyer – if the privilege wasn’t there,
the lawyer might not refer them until after trial
- More likely to get treatment if he can disclose rather than keeping it to himself
- Allowing his communications to be used against him will not promote public safety only silence
- There has to be another way (this is not minimal impairment) – The Dr. should disclose his
opinion to the relevant authorities but not the details. – Should mention specific group, specific
danger and the fact that it is imminent
What about the idea that an accused cannot self-incriminate – how can you take his word and then use
them against him?
Exceptions: Innocence at Stake
info might prove that the person is innocent
R v. Brown, [2002] SCC
Reasoning:
- court is careful about breaking solicitor-client privilege
- you can’t just allege innocence at stake
o can the info have been obtained any other way
o is it necessary to prevent miscarriage of justice
o can accused raise a reasonable doubt about his guilt in any other way
- because the evidence was circumstantial on part of Crown court said they couldn’t be sure if he
could not have raised the evidence in another way
- restricted interpretation
- The McClure test for infringing solicitor-client privilege is stringent, and will only be satisfied in
rare circumstances. Before the test is even considered, the accused must establish that the
information he is seeking in the solicitor-client file is not available from any other source and that
he is unable to raise a reasonable doubt as to his guilt in any other way. “Information” in the
context of this threshold question must mean more than simple knowledge of a fact. A McClure
application should only succeed on the threshold question if the accused does not have access to
other information that will be admissible at trial. In this case the accused had another source of
information regarding the appellant’s confession in the form of R’s testimony.
Exceptions: Informer privilege
- going to protect the identity of an informant b/c of the danger to that person
-
CMl tradition is that have to aware of danger they are undertaking and you should protect them
by protecting their identity
Has nothing to do with communications
A court considering this issue must begin from the proposition that informer privilege is an
ancient and hallowed protection which plays a vital role in law enforcement. It is premised on the
duty of all citizens to aid in enforcing the law. The discharge of this duty carries with it the risk of
retribution from those involved in crime. The rule of informer privilege was developed to protect
citizens who assist in law enforcement and to encourage others to do the same. In summary,
informer privilege is of such importance that it cannot be balanced against other interests. Once
established, neither the police not the court possesses discretion to abridge it (Leipert).
R v. Leipert, [1997] SCC
Facts:
- The police received a tip from a Crime Stoppers Association that the accused was growing
marijuana in his basement.
- A police officer went to the accused’s house accompanied by a sniffer dog on four different
occasions. The officer and the dog walked the street in front of the residence and each time the
dog indicated the presence of drugs in the house. On one occasion, the officer smelled the aroma
of marijuana coming from the house. He also observed that the basement windows were covered
and that one window was barred shut.
- On the basis of these observations, the officer obtained a search warrant. The information filed in
support of the application for the warrant also disclosed that the officer had received a Crime
Stoppers tip.
- Following a search of the house, the accused was charged with cultivation of marijuana and
possession of marijuana for the purpose of trafficking.
- At trial, the accused asserted that, pursuant to his right under the Charter to make full answer and
defence, he was entitled to the Crime Stoppers document reporting the tip.
- The Crown refused disclosure on the ground of informer privilege.
- The trial judge viewed the document and attempted to edit out all references to the identity of the
informer. He then ordered disclosure.
Issue:
Held:
Reasoning:
- Crown argued if was covered by identity privilege
- Here, nobody knew the identity anyway
- If there is an info sheet in the possession of police that might have enough info to identify the
person, even the sheet should be protected.
- Informer privilege implies total confidentiality – any info that could lead to identity is privilege
unless it could lead to show the innocence of the accused – innocence at stake
- Up to judge to evaluate, the info is given to judge not the party requesting it
- The rule of informer privilege is of such fundamental importance to the workings of a criminal
justice system that it cannot be balanced against other interests relating to the administration of
justice. Once the privilege has been established, neither the police nor the court possesses
discretion to abridge it. The privilege belongs to the Crown, which cannot waive it without the
informer’s consent. In that sense, the privilege also belongs to the informer. The privilege
-
prevents not only disclosure of the informer’s name, but also of any information which might
implicitly reveal his identity. In the case of an anonymous informer, it is almost impossible for a
court to know what details may reveal his identity.
The informer privilege is subject only to the “innocence at stake” exception. In order to raise
this exception, there must be a basis on the evidence for concluding that disclosure of the
informer’s identity is necessary to demonstrate the innocence of the accused. The accused’s
right to full disclosure of documents in the Crown’s possession in aid of the Charter guarantee of
the right to make full answer and defence, as interpreted in Stinchcombe, has not created a new
exception to the informer privilege rule.
Other relationships: Privileges or Merely Confidential
In Slavutych v. Baker, the court outlined four criteria, which, if met, classify a document as privileged,
thereby protecting it from production in litigation
Slavutych v. Baker, [1976] SCC
Facts:
Slavutych was employer as a professor at the UofA. The University introduced proceedings to
dismiss him. At the proceedings the University presented a number of documents including a
confidential “tenure form sheet”. When completing the tenure form sheet, Slavutych had been
told it would remain confidential.
Reasoning:
- In proceedings initiated by a university with respect to tenure, confidential communications made
in good faith by one having a legitimate interest in the proceedings ought not to be used to his
prejudice. This Court did not agree with the finding by the Court below that the statements made
by the appellant were not made in good faith. The production of the tenure form sheet and the
basing of a charge of misconduct thereon should not have been permitted
- Wigmore’s Critera:
o The communications must originate in a confidence that they will not be disclosed.
o This element of confidentiality must be essential to the full and satisfactory maintenance
of the relation between the parties.
o The relation must be one which in the opinion of the community ought to be sedulously
fostered.
o 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."
- The court held that the tenure form sheet was privileged and should not be disclosed. With
respect to the fourth criteria, the court placed particular emphasis on the fact that there had been
assurances made by the University to the professor that the form would remain confidential and
as such, the professor agreed to complete the sheet.
R v. Gruenke, [1991] SCC
Facts:
- Adele Rosemary Gruenke was a 22 year-old reflexologist.
- Philip Barnett, an 82 year-old friend and client of Gruenke, had loaned her a significant amount
of money including money to start a reflexology clinic.
- They lived together for a time in a platonic relationship - he had even put her in his will - until he
began to make advances to her, at which point she moved home with her mother.
- Barnett's advances became more aggressive, to the point where she and her boyfriend plotted to
kill him. One night in November of 1986, she met with Barnett in his car and a fight broke out.
She and her boyfriend beat Barnett to death.
-
Two days after the murder, a counselor who had been talking to Gruenke prior to the murder went
to a local church and told the pastor there of Gruenke's intention to commit the murder.
At trial the conversation between the counselor and pastor was admitted and proved sufficient to
convict Gruenke.
Issue: is religious privilege a class or should it be on case-by-case basis
Held: Case-by-case
Reasoning:
The Court found that the trial judge was correct in admitting the evidence.
- Lamer C.J., writing for the majority, noted that Canadian law does not recognize privilege in
religious communications; however, there may be situations where such a privilege may be
required.
- Decision: in today’s reality – with charter- look at every category as they come along. Case by
case basis using Wigmore criteria
- In every case by case debate – look at Wigmore
- When she went into the church and spoke to the person (was equivalent of pastor), she didn’t get
past first part of test
- The context was such that you couldn’t say the info was made in confidence
- This is the basis for every case by case analysis
- Law moving to a more principled approach to look at each type of privilege that can be alleged
Similar debate as hearsay – are we moving forward or just confusing the issue
Privilege against Self-incrimination
Protection afforded to accused and to a witness such that an accused cannot be forced to testify in his own
case or incriminate himself
- not the same thing as other privileges like lawyer-client
- way by which state cannot force someone to incriminate themselves
- one way to incriminate someone is to cross examine him
Dubois v. The Queen, [1985] SCC
Facts:
- Dubois was charged with murder and he gave evidence but did not invoke any section of Canada
Evidence act
- found guilty – court of appeal ordered new trial
- Prosecution at new trial wanted to introduce into evidence the testimony given by Dubois at first
trial
- First trial took place before Charter was adopted, but when it reached SCC charter had been
adopted
Issue: Can the evidence given in the first trial be used in the second trial?
Held: No
Reasoning:
- Accused did not invoke s. 5 of Canada Evidence Act
o No witness shall be excuse fro answering any question on grounds that answer will
incriminate him
A witness cannot choose not to answer a question – could be held in contempt
But 5(2) – have to answer question, but if the answer incriminates you, the answer shall
not be used or admissible in evidence against him in any criminal trial
o So you have to answer question. But what you will say can not be admissible against you
in any criminal trial
When Charter came into affect, s. 13: witness who testifies in any proceeding has right not to
have any incriminating evidence given used in any other proceedings
One of the difference b/w s. 5 and s. 13 is that in s.5 witness had to take initiative and invoke the
section. S. 13 applies automatically
SCC – inadmissible. By doing what crown do, they did indirectly what they could not did
indirectly
o Could not force him to testify, but circumvented right to silence by using old testimony
Even though he did invoke s. 5, it is more profound than that
The right to privilege against self-incrimination is all witnesses including accused who eventually
testifies
Does the evidence have to be incriminating at both trials – SCC says have to adopt a purposive
approach to ss. 5 and 13. Has to be incriminating a the second proceeding
o When Crown wants to use evidence, it is obvious that it is incriminating
o At the moment they are trying to use it against you that it has to be incriminating.
Also what does “any other proceeding” mean? Is re-trial the same proceeding or a new
proceeding. SCC concluded that new trial on same offence if another proceeding so the protection
applies
You cannot use the first testimony at a re-trial
o
o
-
-
-
-
Incriminating questions
5. (1) No witness shall be excused from answering any question on the ground that the answer to the
question may tend to criminate him, or may tend to establish his liability to a civil proceeding at the
instance of the Crown or of any person.
Answer not admissible against witness
(2) Where with respect to any question a witness objects to answer on the ground that his answer may
tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the
Crown or of any person, and if but for this Act, or the Act of any provincial legislature, the witness would
therefore have been excused from answering the question, then although the witness is by reason of this
Act or the provincial Act compelled to answer, the answer so given shall not be used or admissible in
evidence against him in any criminal trial or other criminal proceeding against him thereafter taking place,
other than a prosecution for perjury in the giving of that evidence or for the giving of contradictory
evidence.
-
S. 5 has to be invoked before it can be used
This all applies both to accused and to simple witnesses.
What about can the prosecution bring the evidence not to incriminate him but to impeach his credibility?
R v. Kuldip, [1990] SCC
Facts:
- Kuldip charged with a hit and run. At first trial he said that after the impact he remembered going
to the police station to report incident and remembered talking to Constable Brown
- Found guilty and appeal. New trail ordered
- A few hours before start of second trial he learned that Constable Brown was not at station on day
of incident
- Prosecution asked for permission to cross-examine Kuldip on contradiction between first trial and
-
new trial
Trial judge allowed Crown to proceed
CA – Martin J. said s. 5 is categorical. The wording is clear and both s. 5 and s. 13 protect against
any use made by prosecution of your testimony either to incriminate or impeach your credibility.
Otherwise, it would lead to an injustice
Reasoning:
SCC – disagreed with CA. Maybe protection offered by s. 5 is wider than Charter, but it doesn’t matter s
13 not designed to remedy unfair situation created by statute
o S. 5 protects against use of the answer if it was incriminating. If it is only about
credibility, the accused can be cross-examined on his previous testimony
- The cross-examination of the respondent at his second trial on testimony given by him at a
previous trial on the same information was clearly for the purpose of undermining his credibility
and, therefore, his s. 13 rights were not violated. It is appropriate to distinguish between a crossexamination made for the purpose of impeaching credibility and one made to "incriminate" the
accused, that is, to establish guilt. Using a prior inconsistent statement from a former proceeding
in order to impugn the credibility of an accused does not incriminate that person.
Dissent – Wilson J, in complete agreement with CA and had nothing to add
Comments:
- Grenier – this wording and the way the decision is set out is problematic. Creates an artificial
distinction. When you impeach someone’s credibility you want to incriminate them. But SCC is
afraid that if you can’t show inconsistencies in testimonies, this is something society cannot
tolerate
- Cross-examination was not on something incriminating – it is exculpatory.
Noel is one of the best examples of the problem that resulted from Kuldip
R v. Noël, [1990] SCC
Facts:
- Noel was not very bright. Charged with murdering 9-year-old boy. His brother was also charged
but in different file,
- Bother’s case came first, Noel testified as a Crown witness in his brother’s trial. He confessed in
brother’s trial. Brother was acquitted
- At his own trial, prosecution filed evidence but not his confession at brother’s trial
- He took the stand and said he didn’t do it
- Prosecution, knowing he was not bright and knowing there were contradictions, destroyed his
credibility
o Crown introduces his testimony at brother’s trial by way of cross-examination
- Found guilty. Jury was confused as to which evidence to accept.
Reasoning:
SCC (Arbour J): Under s. 13 of the Charter, when an accused testifies at trial, he cannot be crossexamined on the basis of a prior testimony, even if it is tendered for the apparent limited purpose of
testing credibility, unless the trial judge is satisfied that there is no realistic danger that his prior testimony
could be used to incriminate him.
- When the prior evidence was highly incriminating, no limiting instruction to the jury could
overcome the danger of incrimination and the cross-examination should not be permitted.
- The facts are bad enough but it was unfair of Crown to go as far as they did
Dissent: Preventing the jury from hearing evidence going to the heart of the accused's credibility on the
grounds that the jury are incapable of properly using it for this just purpose would add a barrier to the
truth-seeking process which is both unjustified and unjust.
-
-
Kuldip strikes an appropriate balance between the rights of the accused not to have their previous
evidence used to incriminate them, and the need for the jury to be exposed to as much of the truth
as can be permitted in a just society.
o When a prior testimony was innocuous, like in Kuldip, it is unlikely prior testimony will
be used.
o Distinction b/w prior testimony of accused an ordinary witness – for ordinary witness, the
statement is not admissible for the truth of its contents. That would be hearsay.
Normally, when witness invokes s. 5, he has to answer questions but there is still 5(2) to prevent
incrimination. If we allow prosecution to do this type of thing and destroy accused and
incriminate him under guide of cross-examination, the state will have not respected their duty
under 5(2)
When you invoke s. 5 (you invoke when a question is asked) it doesn’t have to be invoked for each
question. It will apply to any question that might be incriminating.
R v. Henry, [2005] SCC
Facts:
- In their retrial on a charge of first degree murder the accused told a different story under oath than
they had five years earlier at their first trial on the same charge.
- At the new trial, the Crown cross‑ examined the accused on these prior inconsistent statements
for the purpose of impeaching their credibility. They were again convicted of first degree
murder.
- On appeal the accused argued that notwithstanding the fact they were not (and could not be)
compelled to testify at their first trial, they ought nevertheless to have been protected as voluntary
witnesses at their second trial from exposure of the contradictory testimony they gave at the first
trial, despite the misleading impression with which such non‑ disclosure would have left the jury.
The search for truth, they contended, is limited by s. 13 of the Charter (Argument based in Noel)
- The majority judgment of the Court of Appeal rejected this argument and upheld the conviction.
The dissenting judge would have ordered a new trial because on his view of Noël the use of the
prior inconsistent statements in those circumstances violated the accused’s right against
self‑ incrimination.
Reasoning:
- Section 13 of the Charter is not available to an accused who chooses to testify at his retrial on the
same indictment. The purpose of s. 13 is to protect individuals from being indirectly compelled
to incriminate themselves. As in the case of s. 5 of the Canada Evidence Act, s. 13 embodies a
quid pro quo: when a witness who is compelled to give evidence in a proceeding is exposed to
the risk of self‑ incrimination, the state offers, in exchange for that witness’s testimony,
protection against the subsequent use of that evidence against him. Here, the accused freely
testified at their first trial and freely testified at their second trial. The compulsion, which is the
source of the quid pro quo which in turn lies at the root of s. 13, was missing. Accordingly, their
s. 13 Charter rights were not violated by the Crown’s cross‑ examination. They were in no need
of protection “from being indirectly compelled to incriminate themselves”.
- SCC – makes distinction. Noel is good law because Noel was forced to testify at brother’s trial.
Here, Henry was not forced to testify at first trial. It was voluntary
- Binnie: s. 13 of Charter is not available to an accused who chooses to testify at his re-trial.
Purpose of s. 13 is to protect individuals from being indirectly compelled to incriminate
themselves. When witness who is compel, state offers exchange for testimony with protection
against subsequent use of testimony – s. 5.
- Didn’t overrule Dubois.
o This is a situation where the accused voluntarily speaks at both trials
- Prosecution cannot produce accused’s first testimony at second trail
The only reason you can invoke accused’s first testimony is to show contradictions (still can only use it to
impeach credibility. Not to prove guilt. Only if first testimony was voluntary
If it is not compelled evidence – Kuldip and Noel applies
If it was compelled, still not useable
In practice, the distinction between impeaching credibility and showing guilt is artificial – you are
impeaching credibility to show guilt
Judicial Notice
JUDICIAL NOTICE occurs when a judge assumes the truth of a fact without evidence or proof. The
rationale for this power is that it avoids argument over issues that are unnecessary (facts not in dispute).
Judicial notice allows the court to save the time and bother of listening to witnesses.
- something that is evident – everybody knows. Common knowledge. So notoriously accepted so
as not to be the subject of debate among reasonable people or facts that a re capable of immediate
demonstration by resort to readily accessible resources of indisputable accuracy (like a
dictionary)
- the judge may take judicial notice of a fact despite the lack of evidence brought before him
because it is of common knowledge
- Binnie J – this is not necessarily exceptional. Often used without knowing it. Judges often don’t
realise they are using common knowledge to evaluate the evidence.
o Facts judicially notices rest on vast universe of mental baggage which is the product of
life experience...
- Grenier – but also have to keep in mid that the common knowledge of the judge may not be the
common knowledge of the jury
Courts can take judicial notice of:
- adjudicative facts (events in issue as between the parties). What are the elements of the
evidence. Factual. Broad, Introduced by the parties
o When we talk about judicial notice we are usually talking about facts
- legislative or social facts (facts in the social context that helps to explain the disposition in a
case). Related to policies underlying legislation.
o An example of a legislative fact: “women and children are victims of aggression driven
by intoxication.” This legislative fact contributes to the justification of the legislation,
which the court relies to justify the reasonableness of the provision.
In R. v. Potts, the justice of the peace properly took notice of the fact that Colonel By Drive was NCC
property. That fact was both:
(1) So notorious or generally accepted as not to be the subject of debate among reasonable persons;
(2) Capable of immediate and accurate demonstration by resort to readily accessible sources of
indisputable accuracy
R v. Zundel (1), SCC
Facts:
- Zundel was charged with spreading false news (offence no longer exists). The Crown asked that
the trial judge take judicial notice of the existence of the Holocaust, that 6 million Jews died, that
the Nazis implemented a policy of extermination, by using gas chambers. The trial judge refused
to take judicial notice.
Issue: Did the trial judge err by refusing to take judicial notice?
Held: No
Reasoning:
In order to prove the a charge of spreading false news, the Crown must show (and therefore the defendant
must defend):
(1) That the accused knew that the historical event had taken place; and
(2) That the accused knowing spread the assertion that the fact did not take place.
- If the judge had taken judicial notice, it would have absolved the Crown of having to prove ½ of
the offence (and thus denied the defendant ½ of his defence). The prejudicial effect was too high.
R v. Zundel (2), SCC
Facts:
- Zundel was charged with spreading false news (offence no longer exists). The Crown asked that
the trial judge take judicial notice of the existence of the Holocaust, that 6 million Jews died, that
the Nazis implemented a policy of extermination, by using gas chambers.
Issue:
Held:
Reasoning:
- In the second hearing, the trial judge did take judicial notice of the Holocaust, but only of the
background facts. The judge did not take judicial notice of the particular facts in the pamphlet
(i.e. that 6 million Jews died).
- in the end they agreed that the judge would instruct jury that prosecution need not establish that
there was mass murder of Jews my the Nazis during WWII – couldn’t say anything about the
Nazi policy of extermination
- deliberately refrained form discussing if there was a policy – that was a central issue to the case
- When the issue is the existence of a fact and knowledge of that fact, can you say I know it
happened and I don’t need evidence
- When it comes close to crux of the issue, you have to be very careful
- judicial notice is a means to make sure that something known to everyone is not contested
- the courts in Zundel had to make sure conviction was based on evidence
- trying to get to the truth of the matter – if you assume the very thing that is being debaed, why
have the trial at all
In R. v. Krymowski, the defendant was charged with wilfully promoting hatred against Roma. The signs
that the defendant was holding said: “Honk if you hate Gypsies!” The Crown did not adduce expert
evidence that Roma and Gypsies are interchangeable terms. Instead, the Crown asked the court to take
judicial notice. The judges Supreme Court of Canada looked in the dictionary and found that Roma and
Gypsy were related terms.
-
SCC – said the terms were interchangeable – this is a case where you can look in the dictionary
When there is access to an indisputable source of info, you can take judicial notice of something
R v. Potts, [1982] ON CA
Facts:
- person was charged with speeding contrary to National Capital Commission
- No evidence of the fact that it as on Colonel Bye
- Defence argues there was no proof that Colonel Bye corresponds to the definition of driveway in
definition
- Prosecution – anyone who lives here knows that Colonel Bye is a driveway belonging to NCC
Issue: Could the judge take judicial notice?
Held: Yes
Even if something is not taken judicial notice of does not mean that it won’t be part of the evidence, It
will be brought in another way
Opinion
Normally, an ordinary witness will be restricted to giving only the facts of what they saw. They are not
allowed to give their personal opinion
- but the boundary between fact and opinion is blurry
- If we say the car was about 6 feet away, is that fact? We didn’t measure it exactly. So is it
opinion?
- the rule is that witness testifies about facts of which they have personal knowledge – what they
saw, etc, not opinion
o Cannot give an opinion
o But there are nuances and exception
2 exceptions to the exclusion of opinion evidence:
- 1. Ordinary witnesses may be permitted to communicate their perceptions in the form of an
opinion on matters that are (1) within common knowledge and (2) based on multiple perceptions
that can be communicated in a concise format.
- 2. Where the trier of fact requires assistance in understanding the significance of the evidence,
and expert may be permitted to provide assistance in the form of opinion evidence
Non-expert opinion
R v. Graat, [1982] SCC
Facts:
- Two police officers, Constables Case and McMullen, observed Graat weaving across the road.
They pulled him over and smelled alcohol. He had bloodshot eyes. He swayed back and forth.
His walk was wavy. Graat complained of chest pains and was rushed to the hospital. By then, it
was too late to take a breathalyser test. Graat testified that he had four drinks over eight hours.
- The police officers concluded their testimony by responding to the Crown attorney’s questions: in
your opinion, how drunk was Graat?
Issue: Are the police officers statements admissible?
Held: Yes
Reasons:
- Opinion evidence is generally not admissible because it is not relevant. Witnesses testify as to
facts observed; it is the trier of fact that must form the opinions about the evidence and the
disposition. This follows the same logic of the rule against the admission of hearsay.
- The question was not essential. The Crown’s witnesses laid out the facts and the Crown could, in
closing arguments, put the facts together. However, the effect of the witness’ conclusions on the
trier of fact makes its admission more desirable for the Crown. The question would be more
problematic if it had been asked first.
- In a way, the statement is a summation of the responses to the other questions asked. The
Crown is asking the witness to solicit and opinion, but that opinion approximates fact (the line is
unclear), since the opinion seemingly is an inference drawn from the other facts stated in the
testimony. The question is a compendious statement of facts.
- Rule is that ordinary witness may communicate perceptions. These are opinions, but accepted
because they deal with things of common knowledge
- Cannot talk about legal issues
- But as long as they stay away from legal conclusions, as long as you don’t usurp role of judge by
drawing legal conclusion, you can express an opinion
- Court said this testimony was fine
- So you can talk about things like speech, height, identity, distance
Expert Evidence
The testimony is necessary to understand the issues in the case. The evidence of the expert can be
admitted if it does not otherwise get excluded: i.e. because the expert’s opinion relies on facts not in
evidence or hearsay
- Can give opinions to help trier of fact draw conclusion where they don’t have specific knowledge
- Ultimate issue: this is the core of the case, what the court has to decide
- Even an expert witness cannot usurp role of judge and make conclusions
o Has to give facts as observed and let court decide
- Have to be careful because of the aura that experts have
- Problem of junk-science is the cause of the problem. Danger, according to Sopinka, is that this
evidence is apt to be accepted by the jury as being virtually infallible and as having more weight
than it deserves.
R v. Mohan, [1994] SCC
Facts:
- Doctor was molesting children – sexual assault. Expert testifies that there are profiles of
pedofiles and sexual psychopaths and the accused did not fit this.
- the defendant wanted to say that the perpetrator had a psychological makeup to commit the
offence.
Issue: Is the evidence admissible?
Held: No. No – not sufficient distinctiveness of groups to warrant use of evidence.
Reasons:
- Court said inadmissible – the evidence dealt with disposition and that is not something expert can
testify about
-



Criteria to determine admissibility
o 1. Relevance – not just logically relevant to help case unfold, but also if the probative
value of the evidence is overborne by prejudicial effect. Does it involve inordinate
amount of time. Would it take too much time considering the probative value
o 2. Necessity in assisting trier of fact – does it provide info that is outside experience and
knowledge of judge or jury. Is it necessary for the purposes of allowing trier of fact to
understand issues that have to be decided (in order to make a proper assessment, this
expertise is necessary). That is, furnish the court with information that is likely to be
outside the experience and knowledge of the judge or jury.
o 3. Is there an exclusionary rule that prohibits testimony of expert for reasons having to do
with policy – example proof of disposition can’t be introduced by expert
o 4. Is the expert properly qualified?
 To have the expert admitted – have a voir dire. Asked witness how long they
have been practicing. Etc
 Is the expert qualified and his field of expertise reputable and recognized
- If court declares person to be an expert – have to specify field (not just medicine for example –
more specific) – has to be able to give opinion and answer hypothetical questions
After relevance is established, a cost-benefit analysis is performed (cost in the sense of impact on the
trial process)
PV>PE is still guiding light along with efficiency of the trial  ie where opinion evidence would take
a really long time
Exclusion of evidence (by use of factors of relevance and necessity) as to the ultimate issue
Court was not persuaded that it was a reliable comparison and did not trust the profile given of the
accused.
- 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.
- 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?
- In this case, the expert’s group profiles were not seen as sufficiently reliable to be considered
helpful.
Is it essential that expert witness have lots and lots of education? Not always – just because not learned
person doesn’t mean you can’t be qualified as an expert
R v. Lavallee, [1990] SCC
Facts:
- The defendant lived with the deceased, Rust, who verbally abused her. On the night of the killing,
the defendant had hid in the closet, paralyzed by fear that the deceased was going to kill her.
When the deceased entered the room where she was hiding, the deceased gave the defendant a
gun and told her to shoot him. When he began to walk away, the defendant fired in his direction,
shooting him in the head.
- Norman Kolish testified that he heard Lavallee and Rust fighting. Lavallee sounded scared. He
heard her scream after she was being punched. Robert Ezako had heard and seen arguments
between Lavallee and Rust on prior occasions. The police office took Lavallee’s statement – a
confession as to the actus reus and mens rea. These witnesses paint the picture that Lavallee
was in an abusive relationship.
-
Dr. Shane, a psychiatrist, testify for the defendant. He testified as to the existence of Battered
Wife Syndrome. He also testified that after interviews with Lavallee, her mother and based on
other materials, Dr. Shane concluded that Lavallee was a battered woman. Lavallee and her
mother did not testify.
Issue: Is the expert’s evidence admissible?
Held: Yes
Reasons:
 At issue is the expert evidence given by Dr. Shane – psychiatric assessment of accused. He
testified that she had been terrorized by Rust to point of feeling trapped, vulnerable, worthless
and unable to escape despite the violence. – He believed this was the final desperate act of a
woman who was sure she would be killed that night.
 In expert’s evidence, description of several events for which there was no admissible evidence
(prior beatings, injuries for which there were no hospital reports, etc)
- Wilson sees the evidence on psychological effect of battering on wives to be relevant and
necessary. “How can the mental state of the appellant be appreciated without it?”  Average
person cannot understand why woman would put up with abuse, stick around, etc. Need held to
understand.
- She pleads self-defence – she argued that she had a reasonable apprehension of death
o Have to prove temporal element of reasonable apprehension of death
o Also have to show she could not otherwise preserve herself based on reasonable grounds
- Expert = Dr Shane. Even if the attack was not imminent, she had reason to believe she was in
danger because of the history of violence
o Cycle of violence and reconciliation
- Battered woman syndrome – feel trapped and know it’s coming but can’t leave
o There are cases where the women feel incarcerated in the man’s life and can’t seem to
find a way out
- In some circumstances the average person may not have sufficient knowledge of human
behaviour to draw appropriate inference from the facts
- She did not testify – but her statement was introduced into evidence
- Is the expert’s evidence hearsay? – if accused didn’t testify. But what would be the value of
having the expert if they’re facts cannot be brought into evidence
- Wilson – there was evidence other than testimony of Dr Shane as to the life of the accused
o Hearsay: –
o an expert opinion is admissible if relevant even if based on second-hand info. Just
because it is based on hearsay doesn’t not mean it’s inadmissible
o it is not evidence going to the existence of the facts
o Problem is weight to be attributed to the expert opinion – the facts upon which the
opinion is based must be found to exist
Witnesses
Competence and Compellability
-
deals with whether a person has something to say in evidence, that they are capable of
communicating, and if there is a reason in law that they cannot come forward and say it
Competency – are you able to give evidence
Compellability – can the Crown compel you
At CML – parties, spouse, convicted felons, insane and anyone who did not believe in a supreme
being were not competent to testify. Might have something to say and might be willing, but
evidence could not be received
o No longer your choice to testify or not. Cannot be received
- All gone by statutory reform
S. 3 Canada Evidence Act – person is not incompetent to give evidence y reason of interest or crime – can
be a party or a convicted felon and still give evidence
-
Accused’s Failure to Testify
At CML, the accused was incompetent to testify in his own defence.
- that incompetency has been removed
- Canada Evidence act in s. 4(6) – no comment shall be made of an accused’s failure to testify
R v. Noble, [1997] SCC
Facts:
- A building manager found two young men, one named Sean Jeffrey Noble, in the building's
parking lot. One was attempting to break into a car using a screwdriver. He asked Noble for
identification, to which he provided his driver's licence. The manager held onto the licence and
called the police.
- At trial, the manager could not identify Noble without the driver's licence. The judge allowed the
use of the picture but noted that though it provided for a tougher case to meet the accused still
remained silent. The judge inferred that it was able to draw a negative inference from this silence
that strengthened the Crown's case. Noble was convicted, but the judgment was set aside on
appeal.
Issue: Can a judge make a comment on the fact that the accused chose not testify
Held: No
Reasons:
- s. 4 of evidence act says that it cannot be commented on
- defence is allowed to talk about it but not prosecution or judge
- Trial judge here said the failure to testify would add weight to the Crown’s case
- Can the triar of aft consider the fact that you didn’t testify and can silence help arrive at the
conclusion that the evidence is beyond a reasonable doubt
- SCC: Sopinka (majority) – right to silence and presumption of innocence is enough to state that
silence is not enough to convict the accused. Any comment can only refer to lack of explanation
once the Crown has proved beyond a reasonable doubt. Look at Crown’s case – can we conclude
that on that case alone it is beyond a reasonable doubt. If you can, then you can comment on
silence.
o But what about comments?
o Can’t turn right to remain silent into proof of guilt
o Justice Sopinka, for the majority, dismissed the appeal. He held that there can be no
independent weight given to an accused silence. He justified this on the basis that to
adduce weight to silence would violate the right to silence and the presumption of
innocence under the Charter.
- So, then what can a judge alone say? Yes, they can say something. It will be upheld at appeal by
-
saying that the evidence was overwhelming etc
What about a jury – Nobel says the judge can refer to evidence as uncontradicted. Not the same
thing as instructing jury to note person didn’t testify
Spousal Competency
Spousal competency – controversial – why is the relationship of marriage in a category apart. Why not
common law union or civil union.
4. (1) Every person charged with an offence, and, except as otherwise provided in this section, the wife or
husband, as the case may be, of the person so charged, is a competent witness for the defence, whether
the person so charged is charged solely or jointly with any other person.
Accused and spouse
(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.
Offences against young persons
(4) The wife or husband of a person charged with an offence against any of sections 220, 221, 235, 236,
237, 239, 240, 266, 267, 268 or 269 of the Criminal Code where the complainant or victim is under the
age of fourteen years is a competent and compellable witness for the prosecution without the consent of
the person charged.
Saving
(5) Nothing in this section affects a case where the wife or husband of a person charged with an offence
may at common law be called as a witness without the consent of that person.
Failure to testify
(6) The failure of the person charged, or of the wife or husband of that person, to testify shall not be made
the subject of comment by the judge or by counsel for the prosecution.
Wigmore – natural repugnance to hearing one spouse testify against the other
Why is it not repugnant in other cases, CML union, parent/child, etc
What about implications for personal freedoms – what about person who wants to participate in
judicial process
1. Trad – neither spouse not accused were competent or compellable
2. Accused became competent for his own defence, but spouse was still neither competent nor
compellable b/c of interest
3. S. 3 of Evidence Act disposed of notion of interest – so spouse can be competent for defence. This is
where we saw development of CML doctrine of spousal incompetence to prevent spouse from testifying.
But problematic when spouse was victim
4. CML evolved to render spouse content when case involved health, liberty, or person of spouse. In these
types of cases, competency implied compellability
- problem – in order to be competent the threat had to be to spouse, what about when husband was
hitting kids – she was not competent
5. Leg that created 2 exceptions under s. 4 rendering spouse competent and compellable for certain list of
crimes
- 4(1) – spouse will be competent for defence
-
- 4(2) – spouse is competent in...
- 4(4) – spouse is competent where victim is under 14. Offences of violence and victim is under 14.
- 4(3) – privilege still attached to communications made during marriage – not compellable
6. Cases have begun to erode CML role of spousal in competency that permit testimony of separated but
not divorced spouses when they wouldn’t fall into exceptions and wanted to testify
Who is a spouse?
R v. Salituro, [1991] SCC
Facts:
- husband signed wife’s name on cheque that was made payable to both of them
- he was charged with fraud
- Prosecution wanted to bring wife as witness. Defence objected based on spousal incompetency
- But they were irreconcilably separated
- She wanted to testify since he forged her name
Issue: Should she be allowed to testify?
Held:
Reasons:
- On appeal – should she have been allowed to testify
- Why do we have the rule at all when it is not disputed that they were irreconcilably separated
- Court – purpose of law is maintain marital harmony – here there is no more marital harmony
- But does court have power to change rule
o They do have power to alter CML rules provided the changes were incremental and in
keeping with the principles
o The marriage here is not one that we want to foster
- Does making the spouse competent settle question of compellability? Discussed in obiter
o Court doesn’t deal with it
- But does say that if it were necessary to decide the possibility that competent would also be found
compellable is a real possibility
Is the change incremental?
- or is this just leading to total erosion of the rule
R v. Hawkins, [1996] SCC
Facts:
- Hawkins is accused of conspiracy to obstruct justice. His girlfriend at the time testifies at the
preliminary inquiry. They marry – which means that she is no long competent to stand as a
witness in his trial. The Crown wants to get the testimony read as evidence in the
- police officer on trial for conspiracy to obstruct justice
- Crown’s principle witness is his girlfriend – they marry before the trial. She testified against him
at preliminary hearing
Issue: Should the rule of spousal incompetency be modified
Held:
Reasons:
- Pick up on obiter in Salituro
-
-
o If they are competent, should they not be both competent and compellable
o Court shouldn’t be doing this kind of change (para 43) – should be left to Parliament
o Courts will only make incremental changes
Crown arguing that is the marriage happens after change – spouse should be competent
Court says this isn’t fair and strikes at heart of purpose of the rule to protect marriages
By the time this case got to SCC, the couple had been married for 7 years – it’s a real marriage
Can her testimony at preliminary enquiry be admissible by other means – this is where it gets into
hearsay
o They do allow the transcript??
Are they doing indirectly what they couldn’t have done directly
Credibility
There is a distinction to me made between:
(1) is the witness telling the truth – this is what is at stake in the trial
(2) is the witness a truthful person – this is a collateral but important issue
Trial is a debate – most times a factual debate
- each party will being witnesses to support their position
- how do judges evaluate credibility?
- What factors can be used to evaluate credibility?
White v. the King (1947): It is a matter in which so many human characteristics, both the strong and the
weak, must be taken into consideration. The general integrity and intelligence of the witness, his powers
to observe, his capacity to remember and his accuracy in statement are important. It is also important to
determine whether he is honestly endeavouring to tell the truth, whether he is sincere or frank or whether
he is biased, reticent and evasive. All these questions and others must be answered from the observation
of the witness' general conduct and demeanour in determining the question of credibility.
- Background
- Detail
- Willingness
- Cultural background
- Emotion
- Contradiction
- Is it in their interest
- Past conduct or statements
- Have they lied before
- Frankness – someone who will admit a weakness in their version
- Can they answer with simple yes or no
- When witness is answered a difficult question and they look at lawyer or parent before they
answer – might be a question they didn’t want to answer
- Failing to admit what’s obvious
- Motive to lie
- Confused testimony
- Reputation of witness for voracity – may not be used anymore. Are they a liar in the community
- Long-windedness
- Capacity to remember things
Demeanour – can be considered, but you must be careful. Demeanour will not always be a reliable or
sufficient indicator of credibility. The assessment can be affected by cultural assumptions and stereotypes.
-
Things like eye contact
Also, a witness can become convinced that there version is true. They are not lying. They are
convinced they saw something.
Norman – “I do not thin that an assessment of credibility based on demeanour alone is good
enough in a case where there are so many significant inconsistencies. The issue is not merely
whether the complainant sincerely believes her evidence to be true, it is also whether this
evidence is reliable.”
When you have contradictory versions, and it is strictly a question of credibility, if you don’t know who
to believe, it means he has a doubt (has to be proven guilty beyond a reasonable doubt) – has to acquit.
- can’t just be based on preference
R v. W.(D.) (1991, SCC)
- First, if you believe the evidence of the accused, obviously you must acquit
- Second, if you do not believe the testimony of the accused but you are left with a reasonable
doubt by it, you must acquit
- Third, 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 beyond a
reasonable doubt by that evidence of the guilt of the accused.