Fundamentals.............................................................................................................................................. 4
1
2
3
Overview ............................................................................................................................................................................................................. 4
Sources of Evidence Law .............................................................................................................................................................................. 4
Types of Evidence ........................................................................................................................................................................................... 4
Admissibility and Proof ................................................................................................................................ 5
4
5
Overview ............................................................................................................................................................................................................. 5
Test for Admissibility..................................................................................................................................................................................... 5
5.1 Relevance and Materiality ............................................................................................................................................................................. 5
5.2 Probative Value vs. Prejudicial Effect ....................................................................................................................................................... 6
6 Burden and Quantum of Proof ................................................................................................................................................................... 7
6.1 Civil Trials.............................................................................................................................................................................................................. 7
6.2 Criminal Trials .................................................................................................................................................................................................... 7
6.2.1
6.2.2
6.2.3
6.2.4
7
General Notes ............................................................................................................................................................................................................ 7
Defining Beyond a Reasonable Doubt (Lifchus) ........................................................................................................................................ 8
Jury Charges............................................................................................................................................................................................................... 8
Elements of a Criminal Trial ............................................................................................................................................................................... 8
6.3 Constitutional Litigation ................................................................................................................................................................................ 9
Non-Testimonial Admissions of Evidence and/or Facts ................................................................................................................. 9
7.1 Formal Admissions ............................................................................................................................................................................................ 9
7.1.1
7.1.2
7.2
7.3
7.4
Criminal (Criminal Code s.655) ...................................................................................................................................................................... 10
Civil (BC Civil Rules) ........................................................................................................................................................................................... 10
Informal Admissions (Korski).....................................................................................................................................................................10
Views ......................................................................................................................................................................................................................10
Judicial Notice....................................................................................................................................................................................................10
Witness Issues ........................................................................................................................................... 12
8
Competence and Compellability .............................................................................................................................................................12
8.1 The Oath ...............................................................................................................................................................................................................12
8.2 Incompetency: Spouses..................................................................................................................................................................................12
8.3 Incompetency: Children and Mentally Disabled ................................................................................................................................13
8.4 Incompetency: Accused and Silence ........................................................................................................................................................14
9 Credibility and Reliability ..........................................................................................................................................................................15
9.1 Credibility and Demeanour .........................................................................................................................................................................15
10 Corroboration and Unsavoury Witnesses ........................................................................................................................................15
Witnesses on the Stand ............................................................................................................................. 17
11 Your Own Witness ......................................................................................................................................................................................17
11.1 Method of Questioning: Direct Examination ....................................................................................................................................17
11.2 Problem: Your Witness Forgets But Can Be ‘Refreshed’ ..............................................................................................................17
11.3 Problem: Your Witness Cannot Remember, Period .......................................................................................................................17
11.4 Problem: Your Witness Turns “Mean” or Changes His Evidence .............................................................................................18
11.4.1
11.4.2
11.4.3
11.5
Bolstering Your Witness’s Credibility: the Rule Against Oath Helping ................................................................................19
11.5.1
11.5.2
11.5.3
11.5.4
11.5.5
11.5.6
11.5.7
11.5.8
12
Common Law: Hostile Witness ................................................................................................................................................................... 18
CEA s.9(1) – Adverse Witness ...................................................................................................................................................................... 18
Prior Written Statements and the Milgaard Procedure (CEA s.9(2))......................................................................................... 18
Limited Introductory Questioning ............................................................................................................................................................. 19
Expert Evidence (Marquard)........................................................................................................................................................................ 19
General Reputation for Veracity ................................................................................................................................................................. 19
Prior Consistent Statements ......................................................................................................................................................................... 19
Prior Consistent Statements: Rebutting Allegation of Recent Fabrication .............................................................................. 20
Prior Consistent Statements: Sexual assault and recent complaint: (CC s.275) .................................................................... 20
Prior Consistent Statements: Accused’s prior statements: (Edgar) ........................................................................................... 20
Prior Consistent Statements: Narrative exception: (R. v. F(JE)) ................................................................................................... 20
The Other Party’s Witness ......................................................................................................................................................................21
2
12.1
12.2
Method of Questioning: Cross Examination ......................................................................................................................................21
Impeaching the Witness’s Credibility...................................................................................................................................................21
12.3
The Collateral Facts Rule...........................................................................................................................................................................23
12.2.1
12.2.2
12.2.3
12.2.4
12.2.5
Prior Inconsistent Statements (CEA ss.10-11) ..................................................................................................................................... 21
Prior Criminal Convictions (CEA s.12) ..................................................................................................................................................... 22
Expert Evidence ................................................................................................................................................................................................. 22
Bad Reputation for Veracity (Clarke) ....................................................................................................................................................... 22
Bias or Corruption ............................................................................................................................................................................................ 22
Exclusionary Rules: Reliability & Prejudicial Effect ...................................................................................... 24
13 Hearsay ...........................................................................................................................................................................................................24
13.1 Non-Hearsay Words .....................................................................................................................................................................................24
13.2 Implied Assertions and Hearsay by Conduct ....................................................................................................................................24
13.3 The Principled Approach ...........................................................................................................................................................................25
13.3.1
13.3.2
13.3.3
13.3.4
Summary of the Approach (R. v. Post, 2007 BCCA) ............................................................................................................................ 25
Necessity ............................................................................................................................................................................................................... 26
Reliability .............................................................................................................................................................................................................. 26
Examples: the Development of the Principled Approach ................................................................................................................ 27
13.4.1
13.4.2
13.4.3
13.4.4
13.4.5
13.4.6
13.4.7
13.4.8
13.4.9
Dying Declaration (Sunfield) ........................................................................................................................................................................ 28
Res Gestae (Spontaneous Utterances) (Clark) ..................................................................................................................................... 29
Statements of Bodily and Mental Condition (Youlden)..................................................................................................................... 29
Statements of Intention .................................................................................................................................................................................. 29
Statements Against Pecuniary and Proprietary Interest ................................................................................................................. 30
Statements Against Penal Interest ............................................................................................................................................................. 31
Prior Testimony ................................................................................................................................................................................................. 31
Party Admissions ............................................................................................................................................................................................... 32
Business Records / Duty Declarations..................................................................................................................................................... 33
14.2.1
Statutes and BC Rules ...................................................................................................................................................................................... 35
13.4
Traditional Exceptions................................................................................................................................................................................28
14 Opinion Evidence ........................................................................................................................................................................................33
14.1 Lay Opinion Evidence ..................................................................................................................................................................................33
14.2 Expert Opinion Evidence ............................................................................................................................................................................34
15 Character Evidence ....................................................................................................................................................................................35
15.1 Overview ............................................................................................................................................................................................................35
15.2 The Accused Leading Good Character Evidence .............................................................................................................................36
15.3 The Crown Leading Bad Character Evidence of the Accused ...................................................................................................36
15.3.1
15.3.2
15.4
Reputation Evidence ........................................................................................................................................................................................ 37
Similar Fact Evidence (SFE) .......................................................................................................................................................................... 37
Victim Reputation .........................................................................................................................................................................................39
Exclusionary Rules: Policy .......................................................................................................................... 40
16 Privilege ..........................................................................................................................................................................................................40
16.1 Class Privilege .................................................................................................................................................................................................40
16.1.1
16.1.2
16.1.3
Solicitor-Client Privilege ................................................................................................................................................................................ 40
Informer Privilege ............................................................................................................................................................................................. 41
Spousal Privilege ............................................................................................................................................................................................... 41
16.2.1
16.2.2
16.2.3
Criminal Purpose ............................................................................................................................................................................................... 41
Public Safety ........................................................................................................................................................................................................ 41
Innocence at Stake (The McClure Application) .................................................................................................................................... 42
16.3.1
16.3.2
The Law: The Wigmore Test ......................................................................................................................................................................... 42
Examples ............................................................................................................................................................................................................... 43
16.2
16.3
16.4
Exceptions to Class Privilege ....................................................................................................................................................................41
Case-by-case Privilege .................................................................................................................................................................................42
Special Case Privileges ................................................................................................................................................................................43
3
16.4.1
16.4.2
16.4.3
16.4.4
Litigation Privilege............................................................................................................................................................................................ 43
Settlement Negotiation Privilege ............................................................................................................................................................... 44
Public Interest Immunity: Common Law ................................................................................................................................................ 44
Public Interest Immunity: Statute (CEA) ................................................................................................................................................ 44
16.6.1
16.6.2
Civil (Juman) ........................................................................................................................................................................................................ 46
Criminal (Basi) .................................................................................................................................................................................................... 47
16.5
16.6
Production of Third Party Documents.................................................................................................................................................45
Implied Undertakings..................................................................................................................................................................................46
17 Self-Incrimination in Court .....................................................................................................................................................................47
17.1 Non-Constitutional Law .............................................................................................................................................................................47
17.2 Charter s.13 ......................................................................................................................................................................................................47
17.2.1
17.2.2
The Law Now ....................................................................................................................................................................................................... 47
The Development of the Law ....................................................................................................................................................................... 48
18.2.1
18.2.2
Defining “Person in Authority” (Rothman) ............................................................................................................................................ 50
The Old Law ......................................................................................................................................................................................................... 50
18.3.1
18.3.2
Overview ............................................................................................................................................................................................................... 51
Common Law Right to Silence (Turcotte)............................................................................................................................................... 52
17.3 Charter s.7.........................................................................................................................................................................................................49
18 Statements of the Accused and Confessions....................................................................................................................................49
18.1 Sources of Statements .................................................................................................................................................................................49
18.2 Common Law Confessions (Oickle) .......................................................................................................................................................49
18.3
18.4
Charter s.7 and the Right to Silence .....................................................................................................................................................51
Oickle vs. s.7 .....................................................................................................................................................................................................52
Excluding Evidence on Charter Grounds ..................................................................................................... 53
19 Right to Counsel: s.10(b) .........................................................................................................................................................................53
20 Exclusion of Evidence: s.24(2) ..............................................................................................................................................................53
20.1 Overview ............................................................................................................................................................................................................53
20.2 The Law Now (Grant)..................................................................................................................................................................................54
20.3 The Old Law (Collins and Stillman) ......................................................................................................................................................54
Real and Demonstrative Evidence .............................................................................................................. 56
21 Overview ........................................................................................................................................................................................................56
22 Authenticating Real Evidence ................................................................................................................................................................56
23 Documents .....................................................................................................................................................................................................57
23.1 Methods of Authenticating........................................................................................................................................................................57
24 Photos and Videos ......................................................................................................................................................................................57
25 Re-Enactments and Experiments .........................................................................................................................................................58
26 Diagrams and Sketches ............................................................................................................................................................................59
27 Summaries .....................................................................................................................................................................................................59
Appendix 1: Framework for a Hearsay Analysis .......................................................................................... 60
Appendix 2: The Accused as Witness: a Short Summary ............................................................................. 61
Appendix 3: Canned Responses.................................................................................................................. 62
28
29
Necessity ........................................................................................................................................................................................................62
Reliability .......................................................................................................................................................................................................62
Index ......................................................................................................................................................... 63
4
Fundamentals
1 Overview





Evidence in a nutshell: Everything relevant to a fact in issue is admissible unless there is a legal
reason for excluding it.
Evidence is data: the information the trier of fact uses to resolve factual disputes.
Objectives of the law of evidence:
1. Search for truth
2. Ensure a fair trial
3. Trial efficiency: life is short! The trial must end eventually.
4. Protect other important societal values, e.g.:
 Solicitor-client privilege
 Charter
 Sanctity of marriage
Truth: it’s not possible to get at the absolute truth. Thus, we must accept degrees of probability
rather than absolute truth. What is logically probable based on what you know based on the
evidence and your experience as a human being?
Two types of evidence:
1. Direct: proves a fact in issue if believed, without the necessity of an inference, e.g. a
confession or seeing a crime being committed.
2. Circumstantial: if believed, permits one to infer the existence or non-existence of a fact.
 Categories include means, motive, opportunity, and post-offence conduct.
2 Sources of Evidence Law



Common law
Statutes: fill in the gaps of the common law; not a comprehensive code.
o Canada Evidence Act (CEA): matters within federal jurisdiction.
o British Columbia Evidence Act (BCEA): matters within provincial jurisdiction.
o The CEA incorporates provincial evidence act provisions through s.40 to fill in the gaps.
Constitution/Charter
o e.g. 24(2) (exclusion of evidence), 11(d) (fair trial), 11(c) (witness against oneself), 13
(self-incrimination).
3 Types of Evidence
o Witnesses: the source of most evidence.
o Exhibits entered through witnesses, including real evidence such as photos and documents, and
demonstrative evidence such as sketches.
o Admissions: some facts will be admitted in most major cases, such as the identity of the deceased
in a murder trial. An admitted fact does not have to be proven. A guilty plea is a type of formal
admission to the elements of an offence.
o Judicial notice: a judge can accept some ‘notorious’ facts as proven. This is restricted to facts so
obvious that nobody would expect evidence to prove the fact, such as the water being wet.
5
Admissibility and Proof
4 Overview




Admissibility governs what information the trier of fact is allowed to consider: whether it will be
admitted, for what purpose, and, if so, for what purpose.
The determination of admissibility leads to three possible conclusions:
 The evidence goes in
 The evidence is excluded in toto
 The evidence goes in on a limited basis, e.g. exceptions to the hearsay rule
 The jury gets it, but the judge instructs the jury to use it only for a certain or limited
purpose.
 e.g. bad character evidence -> can only use criminal record of the accused (e.g.) for
determining credibility, not to make the inference that he's the kind of person who
would commit the offence.
The judge determines admissibility while the ToF determines the weight, if any, to attach to
the evidence.
Why would we exclude relevant evidence?
 To further the truth-seeking function by excluding unreliable evidence, e.g. hearsay.
 To further trial fairness by excluding illegally or unfairly obtained evidence, e.g.
involuntary confessions or 24(2) breaches.
 To further other important societal values, e.g. protecting privileged information.
 To promote legal efficiency, e.g. the collateral fact rule.
5 Test for Admissibility




Is the evidence relevant?
Is the evidence material?
Is the evidence otherwise admissible (i.e. not subject to an exclusionary rule)?
Does the probative value of the evidence outweigh its prejudicial effect?
o Note: evidence led by the accused must be substantially more prejudicial than probative
to be excluded, while evidence led by the Crown must only be slightly more prejudicial.
(Seaboyer)
5.1 Relevance and Materiality






Relevance (logical relevance): Evidence must, as a matter of logic and human experience, tend
to make more or less likely the proposition for which it is advanced.
Materiality (legal relevance): Evidence must relate to a fact in issue in the case, e.g. a
component of the offences/defences/pleadings.
Evidence is either relevant or it isn’t. No minimum probative value is required for evidence to be
deemed relevant. (Watson, Morris)
Must be assed in the context of the entire case and the respective positions taken by the Crown
and defence. (Watson)
Credibility of a witness is always a relevant issue. (Sopinka)
Facts that prove or disprove other facts in issue are relevant. (Sopinka)


6
“everything which is… probative should be received absent some other ground for its exclusion.”
(Seaboyer)
Examples: (Watson): issue in trial: spontaneity of gunfight. Evidence: Vic always carried a gun; it
was “like a credit card”.
o Relevance: tends to prove that Vic had a gun at the time of the gunfight (which tends to
prove that Vic used it, which tends to prove that the gunfight as spontaneous).
o Materiality: whether the gunfight was spontaneous was an issue in trial (needed for selfdefence).
5.2 Probative Value vs. Prejudicial Effect





Prejudice is an improper disadvantage that results from either moral or reasoning prejudice.
Evidence may be deemed more prejudicial than probative if it:
o Unduly arouses emotions of prejudice, hostility or sympathy.
o May potentially mislead, confuse, or distort the fact-finding process.
o Unnecessarily prolongs a trial or confuses the issues.
o Undermines an important societal value.
o Unfairly surprises the opposing party.
The more probative evidence is, the more prejudicial it can likely be before being excluded. (R. v.
BL)
Excluding evidence on the basis of prejudicial effect is a general exclusionary rule. (Mohan)
Direct evidence:
o Probative value is usually obvious, but remember that context is important, especially with
overheard statements (e.g. “I had a gun”). (Hunter)
o Otherwise, the issue is whether the witness is credible, which is for the trier of fact.
o So weighing probative vs. prejudicial is usually not necessary.
Circumstantial evidence:
o To have any value, there must be some premise or generalization allowing the inference to
be made.
o E.g. evidence that “roses were in bloom”, tendered to prove that it was spring, has meaning
only if we accept the premise that roses usually bloom in the spring.
o Bottom line: the probative value of the evidence relies on the premise being strong,
valid, and accurate.
o Example: (Watson)
 Fact in issue: was the deceased carrying a gun?
 Evidence: he never left home without his gun.
 Premise: People in the habit of behaving in a certain way in certain circumstances
usually behave in that way in those circumstances.
 Application – applying the premise:
 The deceased was in the habit of carrying a gun.
 People in the habit of behaving a certain way under circumstances usually do
so under those circumstances.
 Therefore, the deceased was probably carrying a gun when he left home on
the day of the shooting.
 The premise is solid, thus the evidence has significant probative value.
7
6 Burden and Quantum of Proof
o The burden of proof lies with the party who must satisfy the trier of fact on any factual matter in
issue, to the degree stipulated by the quantum or standard of proof required by the type of trial.
o Two types of burdens:
o Persuasive: on the party who is required to establish the relevant facts to succeed. If you
don’t meet the persuasive burden, you lose.
o Evidentiary: on the party who raises an issue to adduce or point to some relevant evidence
capable of supporting a decision in the party’s favour. Serves a gate keeping function to
ensure that there is at least some evidence of every critical element in the case.
o Tie goes to the defendant: If the case is too close to call, the party that bears the persuasive
burden will lose.
o Presumptions enable a TOF to reach a conclusion about a fact when there’s no evidence, or where
a legal rule states that a fact may be inferred from other facts. Rebuttable presumptions of fact
can be rebutted by evidence.
6.1 Civil Trials
o The plaintiff generally bears the burden of proof, except in defamation suits where the defence is
justification.
o Standard of proof is a balance of probabilities.
o Special situations:
o Summary judgment: takes place before a trial, based on the pleadings. Burden is on the
party alleging that there is no genuine issue to be tried to show that the evidentiary
burden has not been met by the other party. (BC Rules 9-6)
o Non-suit application: At close of PP’s case, DD may argue that PP has not met the
evidentiary burden for one or more elements of the cause of action. Judge can still send the
case to the jury while he reserves non-suit judgment. (BC Rules 12-5(4))
o Insufficient evidence: DD may apply to have the action dismissed no the grounds that PP’s
evidence is insufficient. (BC Rules 12-5(6))
 NB DD cannot elect to call evidence when filing this motion.
6.2 Criminal Trials
6.2.1 General Notes





Crown must prove the facts beyond a reasonable doubt.
Presumption of innocence until proven guilty by an independent and impartial tribunal is
enshrined in the Charter (s.11(d)).
Defence may or may not call witnesses; accused may or may not testify.
Voir dires are trials within trials to determine the facts that are a condition precedent to the
admissibility of the evidence, e.g. was a confession voluntarily made.
o Voir dires usually have no jury due to potential prejudicial impact of seeing evidence that
may be excluded.
Special situations:
o Directed verdict of acquittal: Motion by ∆ saying R. has not adduced any evidence on an
essential point of the charge, such that no properly instructed reasonable jury could
convict.
 NB the judge must takes the case at its highest: if D and E can be reasonably
inferred from A, B and C, the judge must make those inferences.
o Putting a defence in issue: DD must raise an air of reality, pointing to some relevant
evidence that could substantiate a defence.






DD has the evidentiary burden to raise the defence; Crown has the persuasive
burden to disprove it.
Test to determine whether a defence goes to the jury: could a properly instructed
jury acting reasonably acquit the accused on the basis of the defence? (Pappajohn)
The judge must put to the jury all defenses that arise on the facts, regardless of
whether they would succeed. (Cinous)
Air of reality is a question of law subject to appellate review. (Cinous)
NB mental disorder must be established on a BOP by DD.
NB automatism, both non-insane (Stone) and insane must be established on a BOP.
8
6.2.2 Defining Beyond a Reasonable Doubt (Lifchus)





Intertwined with the presumption of innocence; lies with the prosecution.
Based on reason and common sense, not sympathy or prejudice.
Logically connected to the evidence or absence thereof; not frivolous or imaginary.
Not absolute certainty, but more than just “probably” guilty.
What it’s not:
o An ordinary expression with no special meaning.
o A standard we apply in our every day lives.
o A “moral certainty”.
o “Serious”, “substantial”, “grave”, etc.
6.2.3 Jury Charges


A model jury charge should contain: (Lifchus)
o Presumption of innocence remains until guilt is proven BRD.
o Definition of reasonable doubt (see above).
o BoP and “probably” guilty is insufficient; absolute certainty not required.
o Use “sure” only after the BRD standard has been explained.
o The Lifchus charge is not a magic incantation and need not be repeated word for word, as
long as it is in substantial compliance with the recommendations.
o The jury must consider the evidence as a whole, not piecemeal, to determine whether the
accused is guilty BRD. (Morin)
If the accused testifies, add this to the charge:
o Acquit if you believe the evidence of the accused. (W(D))
 NB Juk says that this ignores the fact that the ToF can believe some, but not all, of
the accused’s evidence.
o Acquit if, after a careful consideration of the evidence, you don’t know whom to believe.
(JHS)
o Acquit if you don’t believe the accused’s testimony but are left with reasonable doubt by it.
(W(D))
o Even if you’re not left in doubt by the accused’s testimony, must ask whether, on the basis
of accepted evidence, you are convinced BRD by that evidence of the accused’s guilt.
(W(D))
6.2.4 Elements of a Criminal Trial
* = may not occur.
1. Pre-trial applications to contest admissibility of evidence*
2. Arraignment
3. Judge’s opening instructions: warns jury about not coming to a decision too soon, talks about
Crown burden, etc.
9
4. Crown case
o Opening: descriptive, not argumentative; an overview of the evidence.
o Witnesses: examination in chief, cross examination, re-direct*.
5. Motion for directed verdict*
o Defence may file to argue that the evidence is insufficient.
o Test: there is no evidence at all that could cause a properly-charged jury to convict.
o If the motion is successful, the judge takes the case away from the jury and enters a verdict.
6. Defence case*: defence is never required to adduce evidence.
o Opening
o Witnesses
7. Rebuttal* and surrebuttal* evidence
8. Closing addresses of Crown and defence
9. Judge’s charge to jury
10. Jury deliberations
11. Sentencing* (can lead evidence here, including character evidence)
6.3 Constitutional Litigation

The applicant bears the burden of proof for a breach, after which the Crown must justify under
s.1. Both parties are help to the standard of BoP.
In evidence exclusion applications, the accused has the persuasive burden and must prove both the
breach on a BoP and establish under 24(2) that admitting the evidence would bring the administration
of justice into disrepute.
7 Non-Testimonial Admissions of Evidence and/or Facts
7.1 Formal Admissions





A format admission is basically a way of getting around having to tender evidence.
A common formal admission is a guilty plea, which is a formal admission of all of the necessary
elements of the charge (but nothing more), i.e. everything the Crown must prove on a minimum
to establish guilt.
The accused cannot compel the Crown to accept an admission that the Crown was neither
requesting nor desiring. It is the job of the Crown to propose admissions and the accused either to
accept or not. (Castellani)
o Example: A charged with murdering his wife; wanted to include, in a set of admissions,
that he was having an extra-marital affair. Crown didn’t want the admission. (Castellani)
Formal admissions must relate to relevant and material issues in the case. The Crown cannot
submit as admissions evidence whose only purpose is to keep alive artificial irrelevant issues, due
to the prejudicial/probative concern. (Proctor)
o Example: A charged with murder; Crown wanted to submit as admissions attacks that
occurred two weeks before the murder as similar fact evidence to prove identity. But A had
already admitted identity, so that issue was not in dispute. The Crown could not submit the
evidence as an admission. (Proctor)
Formal admissions are agreements as to certain facts of the case. If a formal admission just
contains accepted testimony of a witness (i.e. “this is what the witness would have said on the
stand”), then it is not fact but regular evidence that is given to the trier of fact who can then
determine whether the evidence is fact. (Korski)
10

o In other words, if you’re going to try to admit a fact, don’t tender evidence and call it a
fact. Do a proper statement of agreed facts and bypass any mention of witness testimony.
(Korski)
If the Crown wants to admit a fact where the possibility occurs that some evidence in the trial may
contradict that fact, it’s best for the Crown to tender the evidence to prove the fact to allow the
trier of fact to weigh. (Korski)
7.1.1 Criminal (Criminal Code s.655)

An accused may admit any fact alleged against him for the purpose of dispensing with proof
thereof.
7.1.2 Civil (BC Civil Rules)



Formal admissions must be written documents.
When responding to an admission submission, the responding party must indicate whether each
fact is admitted, denied, or outside the knowledge of the party. (3-3)
o When you admit a fact, you admit it in all facets of the trial –it cannot be withdrawn
without leave of the court.
Time limit for responding to notice: if a party sends notice to another party to admit certain
facts, and that party does not respond within 14 days, those facts are deemed admitted. (7-7)
7.2 Informal Admissions (Korski)




Anything that doesn’t amount to a final resolution of the facts.
Often, certain evidence is not contested, particularly in provincial criminal court cases, such as the
testimony of a police officer, or the fact that a police officer was at the scene.
Generally a cost-saving and trial efficiency measure.
Note however that if a dispute does arise after the admission, then it’s incumbent on the party
leading the evidence to establish it through actual testimony.
7.3 Views





A judge, in the interests of justice, at any time after the jury has been sworn and before it
gives its verdict, can direct the jury to view a place, location, building, etc. (CC s.652)
o This can relate to a particular location, view line, setting, building, etc. – anything that’s
crucial to the case and must be seen in person.
Why? To better understand the evidence – to get at the truth.
Both criminal and civil judges can order views.
If a judge is sitting as the trier of fact, the judge can take views with the parties.
The view is evidence: it’s no different from seeing a scale model that’s submitted in court, etc.
(Myers)
7.4 Judicial Notice



An exception to the general rule that a court is not supposed to know anything until it’s proven
during litigation.
Judges are always deemed to know statutes passed in the same jurisdiction.
o Bylaws and foreign laws must still be introduced through the ordinary process of
evidence (calling a foreign law expert, etc.).
Three types of facts that can be judicially noticed: (Spence)
o Adjudicative: The specific facts to be determined in the litigation between the parties, e.g.
who, what, where, when, and why.
 Test for admitting – the Morgan test – facts must be either:
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Notorious - i.e. so notorious or generally accepted as not to be the subject
of debate among reasonable people, e.g. the Johnson street bridge is in
Victoria; OR
 Readily verifiable – capable of immediate and accurate demonstration by
resort to readily accessible sources of indisputable accuracy, e.g. the day of
the week of Christmas in 2010.
o Legislative: broad, general facts about social, economic and cultural context that establish
the purpose and background of legislation or decisions about judicial policy. They
assist in determining the question of law.
o Social framework: broad, general facts about social, economic and cultural context that
are used to aid in the fact-finding.
 Provide a contest for the judge to consider and apply the evidence in a given case.
 An example of such evidence is social science research “that is used to construct a
frame of reference or background context for deciding factual issues crucial to the
resolution of a particular case.” (Spence)
 Example: social science research to explain battered wife syndrome and allow it as
grounds for self defence. (Lavallee)
The test for legislative and social framework facts is strict and must have sufficient backing.
(Spence)
o Example: Defence wanted the court to take judicial notice that the city of Toronto was
biased against blacks in favour of Asians. SCC ruled that there was not enough social
science to warrant judicial notice. (Spence)
Factors to consider when proposing to take judicial notice: (Spence)
o How close is the fact to the center of the controversy?
o Are the facts adjudicative, legislative or social science based?
 Legislative/social science: Morgan test is relevant but not determinative.
 Adjudicative: Morgan test must be met (see above).
 What is the degree of doubt surrounding the fact?
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Witness Issues
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Four key issues with witnesses: competent, compellable, privileged, credible.
8 Competence and Compellability
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Competence: is the witness apparently able to communicate and willing to tell the truth?
o Apparently – competence is in part based on appearance.
o The general rule is that everyone is competent to testify.
o Competence is different from credibility, since competence only relates to apparent
credibility.
Compellability: can the witness by made to testify?
o The general rule: a competent witness is compellable.
REMEMBER: competence implies compellability!
8.1 The Oath
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Guidelines for who may administer set out in CEA s.13 and BCEA s.23.
In BC, it’s a true or false question: “do you swear…”
Non-Christians have two options under the CEA:
o The solemn affirmation – no reference to the supernatural, but has the same binding nature
as the oath. (s.14)
o An oath in a different religion – courthouses have booklets for these.
o NB in BC, if the presiding officer decides that it’s not reasonable to administer a religious
oath (e.g. the chicken oath), the person must make a solemn affirmation. (BCEA s.20)
Giving false evidence is a criminal offence, though it happens every day anyway. (CC ss.131-133)
o Note that you can’t be convicted for perjury unless the falseness of the evidence is
corroborated.
o Perjury doesn’t capture innocent misstatement.
8.2 Incompetency: Spouses
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Does not apply to common-law spouses.
At common law, spouses are neither compellable nor competent for the prosecution except
where the charge involves the person, liberty, or health of the witness spouse.
o The SCC expanded this rule to allow irreconcilably separated spouses to be competent.
(Salituro)
o The CEA preserves the common law rule. (4(5)
o NB this does not apply to common-law spouses: they are compellable.
Justifications:
o Protection of marital harmony
o Natural repugnancy of compelling one spouse to condemn the other
o (outdated) – wife’s rights subsumed by husband; both have identical interests
Courts have been unwilling to make sweeping changes to this law since it’s been around for so
long.
Statute: (CEA)
o The spouse is competent (and likely compellable) for the defence. (4(1))
o Spouses are competent and compellable for the prosecution in two situations:
 For certain (mostly sexual) offences. (4(2))
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 For certain (mostly violent) offences where the victim is under 14. (4(4))
o But generally, a spouse can’t testify against the other spouse even if they want to, unless
it’s for the defence.
Applies to evidence both during and before the marriage. (Hawkins)
Will likely apply even if the marriage occurs in order to take advantage of spousal incompetency.
(Hawkins)
o Note that in Hawkins (dirty cop and exotic dancer, evidence from prelim), the evidence got
in under the principled approach anyway.
For provincial offences in BC, both the person charged and their spouse are competent – no
mention of “for the defence.” (BCEA s.6)
o Spouses are thus likely compellable (Gosselin).
o The Charter, however, would likely prevent the accused from being competent or
compellable for the Crown.
For civil proceedings in BC, spousal incompetency does not apply. (BCEA s.7).
A party to civil litigation in the Supreme Court can compel the adverse part to appear, testify, and
be cross-examined. (BC Civil Rules 12-5(19-26)).
8.3 Incompetency: Children and Mentally Disabled
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Replacements for the oath or solemn affirmation have developed for these two classes to verify
the credulity of the witness.
The law now: does the witness understand sufficiently the ability to give evidence and tell the
truth?
o If they’re not able to give an oath they can still give evidence on a promise so long as they
can respond to questions.
o The evidence has the same effect as if it were given under oath.
The old law: at common law, if a child or mentally disabled adult could not understand the gravity
of swearing an oath, they couldn’t testify.
Children under 14: (CEA 16.1)
o Presumed competent.
o Give a promise to tell the truth, not an oath or solemn affirmation.
o Only required to be able to understand and response to questions.
o An inquiry into a child’s capacity will only been undertaken where a challenge has been
brought forward and the court is satisfied that there is an issue as to the child’s capacity to
understand and respond to questions.
o The court cannot inquire as to the child’s understand of what it means to promise to tell the
truth. (16.1(7))
o The onus is on the party challenging the evidence to satisfy the court that the
requirements of the section were not met.
o Example: A charged with agg assault of grandchild; child testified “nanna put me on the
stove”. Evidence allowed: the threshold for being able to perceive, remember and
communicate is low – the actual level of communication and perception is for the trier of
fact to determine. (Marquard)
Adults (over 14): (CEA 16)
o Presumed competent.
o Inquiry undertaken only where challenged and court is satisfied there is an issue.
o A witness can give evidence under oath, affirmation, or on promise.
o To give testimony on promise, witness must:
 Be able to communicate the evidence; and
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Promise to tell the truth, which need not demonstrate an understanding of turth
in abstract.
o New developments for testing the competency of an adult witness: R. v. DAI, SCC
2012:
 Inquiry into competence not to be combined with other voir dires.
 Must hear all available relevant evidence that can be reasonably considered.
 The witness is the primary source of evidence and should be examined using clearly
phrased, simple questions.
 Persons familiar with the witness in her every day situation may be called as fact
witnesses to provide evidence on her development.
 Trial judge must make two inquiries:
 Does the proposed witness understand the nature of an oath or affirmation,
and
 Can she communicate the evidence?
 Ability to communicate: can the witness relate events by understanding and
responding to questions? Can she differentiate between true and false every-day
factual statements?
 Witness must testify under oath or affirmation if she passes both parts of trial
judge’s test, or upon promise to tell the truth if she only passes the second part.
NB in civil proceedings under the BCEA, there is still a presumption of incompetence for these
classes until satisfied by an inquiry. (s.5)
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8.4 Incompetency: Accused and Silence
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Competent for the defence but not for the Crown.
Protected by the Charter – can’t be a witness against yourself. (s.11)
Failing to testify shall not be made the subject of comment. (CEA 4(6))
o That is, if the accused does not testify, the trial judge must tell the jury that silence cannot
be used to imply or give weight to guilt.
o But the judge can affirm the accused’s right to silence in the charge to the jury.
(Prokofiew)
 This overrules previous law in Noble.
If the Crown’s case fails to prove guilt BRD, the accused’s failure to testify cannot “fill the gap” and
imply guilt. (Noble)
A lack of testimony by the accused does not imply guilt; it simply means that the trier of fact can
only take into account the evidence presented to it, without considering any defences raised by
the accused. (Noble)
Bottom line: failure to testify cannot be placed on the evidentiary scales by the trier of fact.
(Noble)
Possible allowable references to accused’s silence:
o Judge can affirm the right to silence (Prokofiew – see above).
o Judge sitting alone, satisfied BRD of guilt, may refer to the absence of any explanation
which could raise a reasonable doubt.
o Judge sitting alone may say that he does not need to speculate as to possible defences.
o Judge can tell the jury that a point is uncontradicted.
o Alibi: an adverse inference may be drawn from a late-disclosed alibi or from failure of the
accused to testify to his alibi. (Noble)
 Alibis are easy to contrive and thus withholding information on them may result in
the judge telling the jury that they can draw a negative inference.
 Alibis are also hard to test as time goes on.
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9 Credibility and Reliability
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Credibility: witness’s veracity.
o Credibility is always an issue.
Reliability: the accuracy of the witness’s testimony.
Remember: a credible witness can be unreliable, but a witness without credulity is unreliable.
Accuracy engages a consideration of the witness’s ability to accurately observe, recall, and recount
events in issue.
Assessing credibility and reliability:
o Is the witness telling the truth?
o Is the witness a truthful person?
 NB remember the collateral fact rule – cannot call witnesses just to testify to the
truthfulness of another witness.
Testimonial factors: the four key points relating to believability – these are always relevant
and admissible.
o Language: how well does the witness communicate? What does the witness mean by the
words he or she uses?
o Sincerity: does the witness believe what he or she is saying?
o Memory: what factors might influence the witness’s recall of the events in question?
Recent? Notes? Intervening events? etc.
o Perception: anything interfering with (or enhancing) observations? Eyesight? Hearing?
Drunk? Distracted? etc.
9.1 Credibility and Demeanour
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Observing witness testimony has advantages:
o Can observe reactions to questions, hesitation, and degree of commitment to statements
made.
o Can assess the relationship between the interviewer and the witness, i.e. the extent to
which the testimony of the witness is a product of the questioning.
But demeanour is not always a reliable indicator of credibility.
o Looking in the eye means different things in different cultures.
o Some people are excellent liars.
Must look at the rational weight of the evidence, rather than the delivery of that evidence.
(Norman)
A finding solely based on credibility Is “a purely arbitrary finding and justice would then depend
upon the best actors in the witness box.” (Jeng citing Faryna v. Chorny)
Examples:
o Witness from the Sudan; unsure whether his peculiar demeanour takes away from
credibility or just reflects his culture. (TE)
o Witness gives testimony through a translator – hard to do given all of the circumstances,
and makes demeanour irrelevant. (Davis)
10 Corroboration and Unsavoury Witnesses

An unsavoury witness can have an amoral character, a criminal lifestyle, past dishonesty, or an
interest in the outcome of the case. (Khela)
o His evidence does not need to be disregarded entirely, but it should be corroborated to
make it more reliable.
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Corroboration may be required to support the evidence of unsavoury witnesses and
accomplices.
If the evidence is independent proof of the guilt of the accused, that’s corroboration. But evidence
can also corroborate certain parts of the story.
A Vetrovec warning services two purposes:
o Alerts the jury to the danger of relying to the unsupported evidence of unsavoury witnesses
and to explain the reasons for special scrutiny of their testimony; and
o In appropriate cases, to give the jury the tools necessary to identify evidence capable of
enhancing the trustworthiness of those witness.
Main elements of a Vetrovec caution to the jury:
o Draw attention to the testimony requiring special scrutiny;
o Explain why the evidence is subject to special scrutiny;
o Caution that it is dangerous to convict on unconfirmed evidence of this sort, though the jury
is entitled to do so; and
o In determining the veracity of the suspect evidence, the jury should look for evidence from
another source tending to show that the unsavoury witness is telling the truth as to the
accused’s guilt.
The Crown should not confront the accused with the corroborating evidence and ask them to explain, e.g.
“all the other witnesses say that you did this – why would they lie?”, because that places the burden on
the accused to explain the weaknesses of the Crown’s case. (Ellard)
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Witnesses on the Stand
11 Your Own Witness
11.1 Method of Questioning: Direct Examination
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Conducted by the party who calls the witness.
Leading: asking questions that contain or suggest an answer.
When can you lead? Generally you can’t, but you can when:
o You’re asking about matters not in dispute (e.g. the witness’s occupation).
o You ask, “is that person in court?”
o You’re discussing complicated or technical matters.
You can also direct the witness to certain areas by refreshing their memory with somewhat
suggestive questions: “is there anything about the terms you want to mention?”; “was there
anything regarding money you wish to discuss?”
The rule against leading is more strictly enforced:
o On matters central to the case.
o In criminal, rather than civil, matters.
11.2 Problem: Your Witness Forgets But Can Be ‘Refreshed’

Refreshing memory with a prior statement – if the witness has forgotten a crucial detail, go
through this process:
 Establish a foundation for the refreshing document:
i. Made or authenticated by the witness
ii. Made near the time of the events
iii. Document would assist memory
 Present the document to the witness
 Witness to read the document (silently)
i. NB the statement is not the evidence: what comes out of the witness’s mouth is the
evidence.
 Ask if that assists in refreshing witness’ memory
 Re-ask the question
 Witness to answer from refreshed memory
i. NB If the best the witness can do is “this is what I said at the time and it’s true” then
it’s not sufficient.
11.3 Problem: Your Witness Cannot Remember, Period

Past recollection recorded – if the witness cannot remember, period:
 Witness has a genuine lack of recollection that cannot be refreshed;
 The past recollection was recorded in a reliable way;
 The record was made when the event was “fresh” in the witness’s memory;
 Witness testifies that the record accurately represented his knowledge and recollection at
the time (“knew it at the time to be true”);
 Have the original or an accurate reproduction of the record; and
 The information in the record is otherwise relevant and admissible.

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Admitting the past recollection evidence is technically hearsay, but the circumstantial
trustworthiness (i.e. what made it reliable at the time it was made) allows the evidence in under
the principled approach.
11.4 Problem: Your Witness Turns “Mean” or Changes His Evidence
11.4.1 Common Law: Hostile Witness
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At common law, if the witness was hostile, you could get leave from the court to cross-examine
your witness.
Hostility means not giving evidence fairly with the desire to tell the truth because of a hostile
animus towards the prosecution, or showing a desire not to tell the truth. (Re Coffin)
o This is a high standard - goes to both content and presentation of the evidence.
Hostile witnesses can be cross-examined at large, not just about the four corners of the statement
in question.
11.4.2 CEA s.9(1) – Adverse Witness
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A party may cross-examine their own witness for a prior inconsistent statement, including an
oral statement, upon proof of adversity.
Adversity is a lower standard than hostility.
Adversity is usually based on an inconsistency or contradiction between the witness’s evidence in
court and a prior statement.
o i.e. demeanor is not evaluated: a pleasant and agreeable witness can still be adverse.
Can only cross-examine the witness on the four corners of the prior inconsistent statement.
(Figliola)
NB you do not need adversity to contradict a witness with other evidence: if the witness gives
evidence that you know to be incorrect, you can call another witness to contradict it, without a
finding of adversity.
NB The advent of the principled exception to hearsay has allowed for prior statements to be
accepted for the truth of their contents.
11.4.3 Prior Written Statements and the Milgaard Procedure (CEA s.9(2))
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A prior inconsistent statement that is written may be used to cross-examine your own witness,
without finding the witness to be adverse.
Must show an inconsistency between the in-court testimony and the prior written statement.
The party seeking leave must undertake the Milgaard procedure, which involves the trial judge,
in the absence of the jury, ruling on whether it’s appropriate to cross-examine the witness:
o Notice of application: counsel should advise the Court of their intention to make an
application under s.9(2) of the CEA.
o Jury excused: court should direct the jury to retire.
o Particulars of application: upon retirement of the jury, counsel should advise the trial
judge of the particulars of the application and produce for the judge the alleged statement
in writing, or the writing to which the statement has been reduced.
o Assessing whether inconsistent: the TJ should read the statement and determine
whether there is an inconsistency between the statement and the evidence the witness has
given. If there is an inconsistency, counsel must prove the statement.
o Proving statement: counsel should prove the statement, usually by producing it to the
witness. If the witness does not admit it, then counsel could use other evidence to provide
proof.
19
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o Examinations regarding making of the statement: if the witness admits, opposing
counsel may cross-examine as to the circumstances under which the statement was made.
Opposing counsel can also call evidence pertaining to obtaining the statement, to show that
cross-examination should not be permitted.
o Ruling: the TJ then decides whether to permit the cross-examination and recalls the jury.
Remember that, if the cross-examination is allowed, it can only be for credibility purposes!
o NB this restriction is why counsel will usually attempt to get the prior statement in through
the KGB criteria for its contents, rather than going through the Milgaard procedure.
(Foster Summary)
11.5 Bolstering Your Witness’s Credibility: the Rule Against Oath Helping
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Generally, you are not permitted to ask questions or lead evidence solely to bolster the credibility
of your witness.
The basic rule is that credibility is not to be supported until it has been attacked. (Kyselka)
That said, there are a few exceptions.
11.5.1 Limited Introductory Questioning
o i.e. the banal stuff that happens before any challenge, such as employment, age, connection
to the case, but not stuff like charitable work, kindness to animals, etc.
11.5.2 Expert Evidence (Marquard)
o General evidence on credibility
 Expert evidence on human conduct and particular psychological and physical
factors that are helpful and necessary in the jury’s assessment of credibility.
 NB drawing a conclusion on the witness’s ultimate credibility is not admissible.
(Kyselka)
11.5.3 General Reputation for Veracity
o Non-accused witnesses: Only after the opposite party has attempted to impeach the
witness’s character (doesn’t really happen much anymore).
o Accused:
 Defence may lead at any time, including reputation for truthfulness.
 When the accused calls good character evidence, the trier of fact must be instructed
that the evidence goes not only to their veracity/credibility, but is some evidence
that the jury can use of innocence.
o If admitted, the jury must be cautioned that community reputation is fundamentally
different from testifying under oath and they should not defer to reputation. (Clarke)
11.5.4 Prior Consistent Statements
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Presumptively inadmissible, with exceptions:
o Prior identification consistent with identification at trial, e.g. a police lineup.
o To rebut allegation of recent fabrication.
o As part of “the narrative”, i.e. filling out the story while recounting events, e.g. “then I told
the police”.
Jury instructions: when a prior consistent statement is admitted, the jury should be told that
consistency is not the same as accuracy, and prior statement can only be used to rebut allegations
of recent fabrication, not to support the fact at issue or the general reliability of the witness.
(Stirling)
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11.5.5 Prior Consistent Statements: Rebutting Allegation of Recent Fabrication
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“Where the opponent alleges that testimony is the result of a recent fabrication, a prior consistent
statement that would otherwise violate the rule is admissible to rebut the allegation”. (Foster)
Prior statements of the accused cannot be introduced during cross-examination of a witness
(such as a police officer) during the Crown’s case since the accused has not yet testified. (Foster)
The allegation may be express or implied.
Can be explicit, i.e. an accusation by counsel (“’you’re telling this story because you have certain
other interest”).
Can include allegations of tainting, favours from the other party, or simple bias.
Recent: since the event testified about.
Prior: the statement must precede the alleged fabrication.
o i.e. the prior consistent statement must have occurred before the fabrication allegation.
Charged required to jury: consistency is not the same as accuracy, and prior statement can only
be used to rebut allegations of recent fabrication, not to support the fact at issue or the general
reliability of the witness. (Stirling)
11.5.6 Prior Consistent Statements: Sexual assault and recent complaint: (CC s.275)
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Abrogates the old common law presumption that a woman who was raped or assaulted would
complain at first opportunity, and her failure to do so would cast doubt on any subsequent
complaint and would lead to an inference of consent.
The CC s.275 wipes out this rule. But, if the defence raises the issue of recent complaint, that line
of cross-examination is permitted, though it does not lead to a warning of adverse inference.
If the accused does lead the tactic, it may be appropriate for the Crown to lead evidence of recent
complaint.
11.5.7 Prior Consistent Statements: Accused’s prior statements: (Edgar)
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Accused’s spontaneous statement in the face of an accusation or arrest may have more probative
value than prior consistent statements of ordinary witnesses, and may be admissible if the
accused testifies.
This relates to the res gestae hearsay exception.
NB Edgar has not been fully endorsed by the BCCA. In McCallum (BCCA), the court explicitly
chooses not to adopt Edgar.
11.5.8 Prior Consistent Statements: Narrative exception: (R. v. F(JE))
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In recounting the narrative of victimhood, if there’s a delay (for example) between the incident
and the reporting to police, and the defence attempts to use that against the complainant, if,
shortly after the incident the victim told someone else, you could lead as narrative the full
recounting of the incident, its aftermath, and its reporting to the third party.
i.e. the ability of the witness to talk about the way they dealt with their victimhood, and why they
did what they did when they did it.
Allows the trier of fact to assess the witness’s entire credibility.
Criminal Code provisions:
o A child (715.1) or an adult with a mental disability (715.2) can provide a videotaped
statement within a reasonable time after the offence, and then adopt the contents in court
to make the video admissible for its truth.
o NB the court can choose not to allow the evidence if it’s more prejudicial than probative.
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12 The Other Party’s Witness
12.1 Method of Questioning: Cross Examination
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Conducted by the opposing party. The main way to cast doubt on the testimony of witnesses.
Leading is allowed: it’s presumed that the witness will not cooperate without leading questions,
poking holes, etc.
Cross-examination in Canada is not limited to items raised in direct examination. You can crossexamine about anything that passes the admissibility test (relevant, material, no exclusionary rule,
more probative than prejudicial).
Good faith basis for questioning: counsel is allowed to put questions as long as they are asked in
good faith that the suggested state of facts is true, even if there is no actual evidence supporting
the suggested facts. (Lyttle)
o i.e. cannot “waft an unwarranted innuendo”. (Lyttle)
12.2 Impeaching the Witness’s Credibility
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Impeachment is calling into question or disassembling the testimony of the opposing party’s
witness; mainly done in cross examination.
Varieties of impeachment:
o Prior inconsistent statements
o Prior criminal convictions
o Expert evidence regarding abnormalities that render the witness unreliable
o Evidence of a bad reputation for veracity
o Bias or corruption
NB all of these categories are collateral in a sense, in that they don’t have to do with the subject
matter of the case. But, they do relate to the credibility of the witness.
When you intend to impeach a witness, counsel is bound to give that witness an opportunity to
make some explanation while still on the stand. (Browne v. Dunn)
o If this is not followed (witness not recalled to defend), possible remedies include recalling
the witness or instructing the jury to consider the fact that the witness was not questioned.
12.2.1 Prior Inconsistent Statements (CEA ss.10-11)
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Written statements - CEA s.10:
o Must be a written statement relative to the subject matter of the case that contains
something inconsistent with what the witness says on the stand.
o Statement can include a statement written by someone else and accepted as truthful by the
witness (e.g. signed, accepted, a transcript that they’ve confirmed, etc.).
o The meat and potatoes of cross examination.
Oral statements – CEA s.11:
o Must describe the circumstances under which the statement was made.
o Must give notice in the interests of fairness and expediency.
Unless the prior statement is adopted by the witness as true, it only goes to credibility; it is not
admitted for the truth of its contents.
Both credibility and veracity are affected by an inconsistent statement.
22
12.2.2 Prior Criminal Convictions (CEA s.12)
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Cross examination on prior convictions is permitted against any witness who takes the stand.
Goes to the presumption that those who have been convicted of crimes are different from those
who aren’t, i.e. they are less worthy of belief (not necessarily more likely to commit an offence, i.e.
propensity).
Prior convictions are admissible only for undermining credibility.
Against the accused:
o Can question the accused about prior convictions if the accused testified, but the right is
more limited.
o Accused can make a Corbett application before the close of the Crown case to limit or
exclude the criminal record of the accused from cross examination.
o The trial judge determines whether all or part of the accused’s criminal record would be
more prejudicial than probative when presented to the trier of fact, with these
considerations of the previous convictions:
 Their nature: crimes of dishonesty (e.g. fraud) are more probative of credibility.
 Their similarity to the present charge: greater similarity, greater prejudice.
 The remoteness: older convictions are less probative.
 Fairness: must distinguish attacks on character (bad) from attacks on reliability
(allowed).
o If any part of the record is allowed, the jury must be warned about its limited use (i.e. not
for propensity purposes).
12.2.3 Expert Evidence
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
Medical evidence is admissible to show that the witness suffers from a physical or mental
disability that makes their testimony unreliable.
Unlike character witnesses, an expert is not confined to a statement of opinion, but may testify to
all matters necessary to show the foundation of their opinion.
12.2.4 Bad Reputation for Veracity (Clarke)
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
Three questions that counsel may ask an opposing party’s witnessed concerning the bad
reputation of another witness:
a. Do you know the reputation of the witness as to the truth and veracity in the community? If
yes:
b. Is that reputation good or bad? If bad:
c. From that reputation (or from your own knowledge), would you believe the witness under
oath?
i. This question will rarely be allowed since it amounts to a finding of credibility,
which is the job of the trier of fact.
If bad reputation evidence is allowed, the judge must issue limiting instructions to the jury:
o Testifying in court under oath is a different circumstance you need to bear in mind.
o Character witnesses have not heard all the evidence and have not taken an oath as a juror
to render a true verdict. While their evidence may be helpful, you should not automatically
defer to it.
12.2.5 Bias or Corruption

Permissible because, if you’re biased against the opposing party, or if you were bribed, that could
effect whether the jury should believe you.
23
12.3 The Collateral Facts Rule
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A rule “that limits what one can do when one does not get the answer one wants when crossexamining.” (Foster Summary)
A party is not allowed to impeach the credit of opposing witnesses by calling witnesses or
evidence to contract the witness on a collateral matters.
If the cross-examiner isn’t satisfied with the witness’s initial response to a question about a
collateral matter, the examiner is stuck with the answer.
What’s a collateral fact?
o A fact is not collateral when it could have been shown in evidence for a purpose
independently of the contradiction, e.g.: (Wigmore)
 Relevant to an issue in the case;
 Relevant to the credibility of a witness; or
 A lynchpin fact that could cast doubt on the entire testimony.
o The answer is connected to the issues in such a way that you could connect it on your own
to prove in evidence, or it goes to bias, corruption, interest, previous convictions,
reputation, or expert evidence. (Phipson)
There is no cut and dried definition of a collateral fact – most examples can be argued both ways.
Evidence going to the four testimonial factors – language, sincerity, memory, perception – is
always relevant and admissible (see Credibility & Reliability above).
Also consider:
o The importance of the witness to the case.
o The weight/value of the evidence in support of the collateral fact.
 i.e. the more “lynchpin” the fact is the witness’s evidence, the more likely it is you’ll
get the collateral evidence in.
o Practical time considerations: the trial has to end some time. Otherwise, letting in collateral
facts can lead to an endless string of trials within trials. (Melnychuk)
The collateral facts rule is so complicated that lawyers will not be seen as incompetent if they get
it wrong. (Prebtani)
Exceptions to the collateral fact rule:
o Prior inconsistent statements. (CEA ss.10-11)
o Prior criminal convictions.
o Expert evidence of abnormalities that render the witness unreliable.
o Bad reputation for veracity.
o Bias or corruption.
o NB this is basically the same as impeaching a witness’s credibility.
24
Exclusionary Rules: Reliability & Prejudicial
Effect
13 Hearsay
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An out-of-court-statement offered for the truth of its contents.
Hearsay is presumptively inadmissible.
Dangers of hearsay and why it’s presumptively excluded:
o We’d rather go to the source for evidence.
o The jury can’t assess the sincerity, language, perception, or memory of a hearsay
declarant, i.e. the demeanor.
o The declarant has not given an oath or declaration.
o No opportunity for cross-examination.
o In other words, there are concerns about necessity and reliability.
13.1 Non-Hearsay Words
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Evidence is only hearsay if being offered for its truth. Evidence that may otherwise be hearsay but
is tendered for another reason (such as the fact that it was said) is not hearsay.
Observations of legal statements that result in the changing of legal status, such as “I do” in a
marriage or overhearing the formation of a contract (“I offer to sell you my boat for $50k”) are not
hearsay. (Creaghe)
Words of an offence are not hearsay, e.g. hearing someone utter a threat – they are the actus of an
offence. (Creaghe)
Examples:
o S charged with possession of ammunition contrary to the prevailing statute; claims duress
after some terrorists told him to wear they ammo or they’d kill him. Not hearsay: the
terrorists may not have followed through with their threat, but the statement is relevant
even if false since it establishes S’s state of mind. (Subramaniam)
o Child murder case – DD knew the child was murdered with a hatchet before that
information was generally known. Not hearsay: evidence not tendered to show that DD
was killer, but to explain how DD could have known an axe was used. (Wildman)
13.2 Implied Assertions and Hearsay by Conduct

Implied assertions: an out-of-court statement, though not expressly asserting facts, may have a
hearsay purpose and be hearsay when it implicitly asserts facts, or implies a belief in facts relevant
to the matters in dispute.
o Examples:
 Testator is thought not to have the mental capacity to make a will. Letters of
correspondence, discussing matters of business and other things, between testator
and third parties are admitted not for the truth of their contents, but to show that he
was a competent person able to discuss proper matters. (Wright v. Tatham)
 Problem (Juk): this is non-assertive conduct: the letters are not actually
intending to imply that he is competent, so should it be considered hearsay?
 V shot in a dark room by one of two men, one of which was her husband. V calls for
her husband for help after she’s short. This implies that her husband odes not
threaten her, which implies that he did not shoot her. (Wysochan)
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25
Problem (Juk): this must essentially be offered for its truth since, if it’s
not true, “I’m not afraid of my husband” has no relevance.
Hearsay by conduct: where non-verbal, out-of-court conduct implicitly asserts facts or implies a
belief in facts.
o Example: police officer comes to the scene of an accident and says “who was driving?”
Someone in the crowd points at a person. This is conduct which is asserting meaning, i.e.
that the person was the driver.
o Look at intention: was it intended by the maker of the gesture to communicate the
message?
Example: while doing a drug bust in a house, police answer the phone. The caller asks to buy
drugs. This may be an implied assertion of the nature of the phone owner’s dealings – that is,
whether or not the contents were true, it establishes that the phone number is one that people call
to buy drugs – but since it was only one call, and not a pattern, it is more prejudicial than
probative. (Baldree)
o Note that the dissent (Watts) found the absence of a pattern irrelevant: that should go to
weight, not whether the evidence is in.
13.3 The Principled Approach
13.3.1 Summary of the Approach (R. v. Post, 2007 BCCA)
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A hearsay statement is an out of court statement adduced to prove the truth of its contents, in
absence of a contemporaneous opportunity to cross-examine the declarant.
Hearsay evidence is presumptively inadmissible, because it is generally not possible to test its
reliability. (Blackman)
A hearsay statement may be admitted for its truth if it is shown to be both necessary and reliable.
(Khan)
Its reliability must be sufficient to overcome the angers arising from the difficulties of testing it
[this particular evidence in this particular case].
The onus is on the person who seeks to adduce the evidence on a BOP.
The overarching principle is trial fairness, which includes broader societal concerns of truth as the
goal of the process.
Two main ways of establishing reliability: (Khelawon)
o Substantive: because of the circumstances in which the statement was made, there is no
real concern about the statement’s truth. (Khan, Smith)
 i.e. if it’s trustworthy enough that it’s not necessary to cross-examine, it can be given
to the jury to determine its weight. (Smith)
o Procedural: the truth and accuracy can be sufficiently tested by means other than
contemporaneous cross-examination, such as having taken a substitute for an oath,
watching a video (KGB) or cross-examining the declarant on the earlier statement.
 KGB investigations and evidence: for the reliability of a statement, technical
replacements in place for the ordinary protections of oath, presence, and crossexamination can go to reliability, i.e. the mechanism by which the statement is
obtained allows you to rely on its truth.
 The ideal is to have the oath, warning against perjury, cross-examination, etc., but
not all are necessary.
o NB these are not mutually exclusive. (Blackman)
o The concern is the reliability of the declarant, not the witness, unless the witness’s
credibility is so deficient that it robs the statement of probative value (e.g. jailhouse
confession). (Blackman)
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26
The trial just also has the discretion to exclude hearsay evidence that is more prejudicial than
probative.
The statement must be free and voluntary, not tainted by threats, promise, excessively leading
questions, coercion, etc. on a BOP. (KGB)
There is a distinction between the legal standard of threshold reliability (i.e. sufficient to be
admissible), which is a legal question for the judge, and ultimate reliability, which is a question
for the trier of fact. (Starr)
Extrinsic evidence – i.e. evidence beyond the four corners of the statement in question - may be
used to show threshold reliability, overruling an earlier decision in Starr. (Khelawon)
o This is a shift towards a functional approach to reliability, i.e. looking at the dangers of the
hearsay evidence sought to be adduced and the evidence introduced to overcome those
dangers. (Khelawon)
After Khelawon, the court has greater discretion in particular cases to allow evidence in via the
principled approach.
In cases of double hearsay (or beyond), each level of hearsay must meet the principled approach
standard. (Starr)
In a contest between a traditional exception and the principled approach, the traditional exception
must yield to the requirements of necessity and reliability. The onus is on the opposing party to
show that the evidence allowed under the traditional exception fails the principled test. (Starr)
13.3.2 Necessity
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Reasonably necessary (Khan)
“Evidence of the same value” when one is “unable to obtain evidence of similar quality from
another source.” (KGB)
Necessary to prove a fact in issue, not necessary in the sense that the Crown requires the evidence
to prove its case. Otherwise, it would result in uncorroborated hearsay evidence as admissible
while corroborated hearsay evidence would be inadmissible. (Smith)
Two types: (KGB)
o Witness unavailability
o Evidence of the same value from this or other source can be obtained now or again
Some examples of necessity include:
o Testifying will cause psychological trauma to the declarant (Khan)
o Refused to testify or take an oath/affirmation
o Recanting witness who is holding the evidence hostage, when there’s a prior inconsistent
statement and evidence of the same value can’t be received from any other source (KGB)
o Dead, ill, dying, insane, dementia, etc.
o Out of the country
o Can’t be located after reasonable efforts
o “Otherwise unavailable”
o Child evidence (Khan), though see CEA 16.1.
13.3.3 Reliability

Has been stated in many different ways:
o Does the statement possession sufficient elements of reliability such that it should be
considered by the trier of fact?
o The statement is made in circumstances which substantially negate the possibility that the
declarant was untruthful or mistaken. (Smith, Starr)
o It would be reasonable that the evidence would not change had there been a cross
examination. (Smith)
27

o The statement is made under the circumstances that even a skeptical caution would
view the statement as trustworthy. (Khan, Smith)
o Met where there is something about the statement the statement that ensures reliability,
such as where two statements are strikingly similar. (U(FJ))
Two main ways of establishing reliability (Khelawon, Blackman) – not mutually exclusive:
o Procedural – can the evidence be tested? (KGB)
 It was made under oath (Potvin, KGB)
 A warning was given as to the seriousness and consequences of lying
 Punishment or other consequences result from lying
 The accused was present when the statement was made (Potvin)
 There was a cross-examination at the time of the making of the statement (Potvin)
 Now available for cross examination (KGB)
 The statement was video or audio tapped
 The time stamp of the video confirms that it was not doctored
o Substantive – its inherent trustworthiness:
 The statement was spontaneous (Khan) or arose naturally (Smith) without
suggestion or prompting. (Khan)
 Made reasonably contemporaneously with the events in question (Smith) by a
“disinterested” person who had no motive to lie or fabricate. (Smith, Khan)
 Motive includes, for example, financial or other gain, personal bias, or the
declarant as the co-accused.
 The declarant was under a duty to make the record.
 The statement was made by a person who knew it would be publicized, or knew that
inaccuracies would be exposed or detected.
 The statement was made to public officials.
 The statement was against the declarant’s interests (pecuniary, property, penal).
 There is corroborating evidence for the statement. (Khelawon, Khan, Blackman)
 The character of the declarant can also be an issue:
 An exceptionally intelligent child witness (Khan)
 A person capable of deception, e.g. credit card fraud (Smith)
 Declarant’s fragile mental state (Khelawon)
 A catch-all “special stamp of reliability” for special cases: (Khan)
 A young person who would not likely have knowledge of the acts, such as the
sexual acts in Khan.
 The absence of any alternative source for the substance of the information
provided. (Khan)
13.3.4 Examples: the Development of the Principled Approach
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Myers v. DPP (HL 1965): Majority rejected admitting business records because person who wrote
them couldn’t be found, but couldn’t conclusively be said to be dead. Why? It would result in too
much work in sorting out when hearsay evidence would be allowed in, and may produce unjust
results. Minority: the rules should not be frozen in time.
Ares v. Venner (SCC 1970): Adopts the Myers minority: judges should be able to change judgemade law when the need arises. Nurses’ clinical notes could be admissible in court for their truth,
even if the authors aren’t dead.
R. v. Khan (SCC 1990): mother and child go to see accused doctor; mother leaves room to get
changed. After appointment, mother discovers that the doctor sexually abused the child. Child
can’t give evidence viva voce so must go in through the mother. Decision: evidence can go in
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through mother – both necessary (to establish the act) and reliable (child too young to
fabricate; corroborated by physical evidence, stain on sleeve).
R. v. Smith (SCC 1992): Phone call case from daughter to mother. Expanded Khan beyond sexual
assault cases – if a statement is made and there is no reason to doubt its veracity, then it may be
reliable enough to get in, such as the phone calls from the daughter to her mother telling her that
Larry abandoned her and she wants to go home.
R. v. KGB (SCC 1993): Homocide charge – three friends gave statements to the police saying that A
did it. At trial, the friends refused to adopt their OOC statements and said they were lying in order
to exculpate themselves. Between trial and appeal, they all pled guilty to perjury. The video is in:
it’s both necessary (no other reliable evidence) and reliable (videotaped, warned about perjury,
etc.).
R. v. Starr (SCC 2000): Dual girlfriends case: key takeaway: hearsay that fits into a traditional
exception may still be inadmissible if it fails necessity and reliability.
R. v. Khelawon (SCC 2006): Accused of assaulting residents of a nurse home where accused was
RN; residents complained; one victim made a videotaped statement. The officer taking the
statement had to keep prompting the likely senile witness to get back on topic. All witnesses,
including the videotaped one, had died before the trial. Decision: the videotape could not be
admitted: not reliable enough, despite the KGB requirement satisfaction (the witness was warned
about giving false evidence).
Other examples:
o The KGB approach was used to get in the testimony of a girlfriend a preliminary inquiry
who then became the wife by the time of the trial and thus was incompetent to testify. Her
evidence was both necessary (incompetence) and reliable (fully cross-examined at the
prelim). (Hawkins)
o Hearsay statements by co-conspirators were found to be necessary (because coconspirators can’t testify against each other since they’re in the same trial), and reliable,
passing the Carter test: the statements were contemporaneous and voluntary. (Mapara)
13.4 Traditional Exceptions
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Note that all of these exceptions, while making hearsay presumptively admissible, still must
meet the necessity/reliability threshold and the prejudicial/probative test.
In rare cases, evidence falling within an exception may fail the necessity/reliability test. (Starr,
Khelawon)
The evidence must also be otherwise admissible, i.e. an exclusionary rule other than hearsay may
still exclude the evidence.
13.4.1 Dying Declaration (Sunfield)
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Rationale: outdated idea that those on death’s door speak the truth.
Requirements:
o Declarant had a settled, hopeless expectation of almost immediate death.
o Statement was about the circumstances of the death.
o Statement would have been admissible if the declarant had been able to testify (does not
allow double hearsay).
o Offence involved is the homicide of the declarant.
Example: Immigrant worker tells another worker that “Jake shoot… no doctor, me die”. (Sunfield)
29
13.4.2 Res Gestae (Spontaneous Utterances) (Clark)
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Rationale: Words spoken while in a state of shock or excitement are genuine because there’s no
time to concoct a story.
Requirements:
o Relates to a startling event or condition.
o Made while the declarant is under the stress of excitement caused by a shocking, out of
the ordinary, etc. event or condition.
Notes:
o The unavailability of the declarant is not a precondition to admissibility.
o Statements both before and after a traumatic event may be easily admissible under res
gestae. (Clark)
o A common example of this exception is a 911 call and the testimony of the operators of the
statements of a caller. (Ratten)
Examples:
o ∆ stabs V, claims self-defence. V yelled for help, claiming to have been murdered. Statement
admitted through 3rd party. No memory concerns (event and statement are
contemporaneous), and fabrication is unlikely (due to stress/excitement). (Clark)
o V phones police hysterically just before the time that ∆ is alleged to shoot her. Close enough
in time to get in. Also, the call was to a 911 operator, which is reliable. (Ratten)
13.4.3 Statements of Bodily and Mental Condition (Youlden)
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Rationale: Only the person in pain can know if they are in pain. Reliability comes from
spontaneity – “hallmark of reliability”.
Requirements:
o Person claims to be experiencing a physical condition.
Statements of past pain and relating to the cause of pain are not admissible.
Example: Person lifts heavy object, gives statement of pain, feels sick, dies a day later. Statement
came at time of injury so it’s in. (Youlden)
13.4.4 Statements of Intention
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Explicit statements of a state of mind are admitted.
Implicit statements: statements which permit an inference as to the declarant’s state of mind
are original testimonial evidence admitted as circumstantial evidence from which a state of
mind can be inferred – being offered not for the truth of their contents but for the fact they are
said.
The bottom line is that whether the statement is explicit – “I intend to kill myself” – or implicit –
“no one likes me; no one will miss me” (inferring suicidal state of mind) – the result is the same
either way.
Note that there must also be circumstantial evidence to show that the person acted in
accordance with the stated plan (Hillmon).
Understanding the difference between explicit statements (used as hearsay evidence) and
implicit statements (used as original circumstantial evidence):
o
Cannot be used to prove past acts or events referred to in the statement.
Declarant’s description of present state of mind – e.g. fear, love, hatred, intent, motive.
Requirements:
o Description of declarant’s own present state of mind.
o State of mind is relevant to an issue.
o Statement is made in a natural manner.
30
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o Not made under circumstances of suspicion.
Statements can only show the declarant’s state of mind (not someone else’s).
o Note, however, that the declarant’s state of mind may circumstantially prove something
about the state of mind of someone else (e.g. the accused), thus getting to someone’s state
of mind through inferences and circumstantial evidence.
Also, in some cases, the utterance of the words is original circumstantial evidence – i.e. there’s
circumstantial value to the words apart from the testimonial value of the words. (Rysochan,
Baldree, Ratten)
Example - Hillmon:
o Facts: Mrs. H is trying to collect on an insurance policy for her husband. Mr. H has gone off
to find some gold in a different area. Some time later, a body is found. The question is: is it
his body – and therefore Mrs. H collects – or, did Mr. H kill another person so that he and
his wife could fake his death to collect together?
o The evidence sought to be induced: letters from W (who went with Mr. H) saying that “I’m
leaving Witchita and Mr. H is going with me”, i.e. letters from a third party declarant
declaring intention to go somewhere with Mr. H.
o The body is eventually found and the letters are admitted as evidence of W’s intention of
going, and going with Mr. H, making it more plausible that he did go.
o Key quote: “the existence of a particular intention in a certain person at a certain time
being a material fact to be proved, evidence that he expressed that intention at that time is
as direct evidence of the fact as his own testimony that he then had that intention would
be.”
Example – PR:
o Facts: deceased recounts domineering traits of her boyfriend to her friends.
o Statements are explicit statements of state of mind, regarded as original testimonial
evidence and admitted as circumstantial evidence from which a state of mind can be
inferred.
o The fact of the statement of the intention is some evidence that she acted in accordance
with those intentions. The statement shows intent, motive, and identification (i.e. of her
boyfriend).
13.4.5 Statements Against Pecuniary and Proprietary Interest
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Statements that could be seen as disadvantageous to the declarant’s pecuniary or proprietary
interests.
Rationale: people tend to be truthful when saying things to their own disadvantage.
Requirements:
o Declarant is unavailable (i.e. necessity) – high threshold, e.g. death
o Statement was against declarant’s interest at the time it was made
 NB no requirement that the declarant knew that the statement could be used as
evidence against him.
o Declarant knew the statement was against his interests at the time
o Declarant had personal knowledge of the facts stated.
The statement must have been made before any dispute about the subject matter arose.
Note that this is often lumped into party admissions, the statements a party makes outside of
court.
Example: writing in diary: “I borrowed $100 from Jack and I intend never to repay him.”
31
13.4.6 Statements Against Penal Interest
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More recent than pecuniary interest; from Sussex Peerage Case.
Confirmed in Canada in O’Brien.
Rationale: “a person is as likely to speak the truth in a matter affecting his liberty as in a matter
affecting his pocketbook.” (O’Brien)
Requirements:
o All the criteria for against pecuniary interest, plus: (Demeter)
o Declarant apprehended vulnerability to penal consequences when the statement was made
o Vulnerability to penal consequences was not remote
o Totality of statement to be considered – if favourable to the declarant overall, not
admissible
o If unclear, court to consider whether declarant otherwise linked with crime or the accused
(i.e. to avoid risk of collusion or cooperation)
o Declarant is unavailable to testify
 Not death, just practical unavailability. (Pelletier)
o The exception is being tendered by the defence. (Lucier)
The evidence will not be admissible if it is also substantially to the declarant’s benefit as well as to
the accused’s interest, such as showing self defence. (Pelletier)
Examples:
o Wealthy industrialist paid a couple of guys to kill his wife and then claimed he had nothing
to do with it. He wanted to lead a statement, made by an escaped prisoner under a life
sentence, that a dead guy did it. Not admissible: no vulnerability to penal consequences,
since the declarant was already sentenced to life. (Demeter)
o Two people charged with PPT; co-accused fled jurisdiction and was never tried. A was tried
and convicted. After convicted, co-accused returned, told A’s lawyer that he did it but
wouldn’t produce an affidavit. Not admissible: he wasn’t making a statement against
himself, just his co-accused (A). The trustworthiness that is the justification for the
exception was not present. (O’Brien)
o OOC statement incriminated the declarant, but also raised the issue that the declarant
might have a defence of self-defence. Not admissible: statement was to the declarant’s
benefit as well as to the accused’s interest; more prejudicial than probative. (Pelletier)
13.4.7 Prior Testimony
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
Evidence given under oath in previous litigation is admissible if the parties were generally the
same as the present case, so long as there was an adequate opportunity to cross-examine.
Requirements:
o The evidence is otherwise unavailable (i.e. necessity).
o The issues and the parties in both proceedings are substantially the same; and
o In the prior proceeding, the party against whom the evidence is being tendered, or a party
with a common interest, had an adequate opportunity to cross-examine the witness. (i.e.
reliability).
 NB the opposing party need not have exercised the opportunity to cross-examine.
(Potvin)
Codified under certain circumstances in the Criminal Code (s.715(1)):
o Must be a trial, and previous statement must have been given in a previous trial for the
same charge, or a preliminary inquiry.
o Witness must either refuse to be sworn, or it must be shown on oath that the witness is
dead, insane, ill, or absent from Canada.
o The evidence must have been previously cross-examined.
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32
The BC Rules allow for a transcript of any evidence to be admitted if that witness is
unavailable, whether or not the previous inquiry involved the same party, as long as reasonable
notice to the other party is given. (BC Rules 12-5(54))
The constitutionality of 715.1 was upheld in Potvin, since it only allows evidence that the accused
has had the opportunity to cross-examine.
Note that in Ontario, judges have more equitable freedom to disallow the evidence on the grounds
that the original cross-examination was not sufficient given the factors of the case. (Civil
Procedure 31.116(6))
Example: dirty cop’s girlfriend testified at preliminary inquiry but then refused at trial after they
got married. (Hawkins)
13.4.8 Party Admissions


You’re stuck with what you said out of court when you’re a party to the litigation. (Evans)
Qualifying evidence:
o Statement made by the opposing party
o Act of the opposing party
o Statement made by a third party which is expressly adopted (out of court) by the
opposing party
o Statement made by a third party where it may be reasonably inferred that the opposing
party has adopted it (e.g. silence can be an adoption)
o Vicarious statement of opposing party
 NB applied to civil litigation in certain circumstances in which an agent’s
statement can be extended to the principle.
o Statement made by a co-conspirator in furtherance of a conspiracy.
o NB must still conform to the common law confession rule if the statement is made to a
person in authority.
o Allows for hearsay and opinion evidence, e.g. “Bob told me the stereo was stolen” – can be
used to prove the fact that it was stolen (the truth of its contents).
o Admissions by conduct: conduct can amount to an admission. E.g. Ministry of Highways is
sued for an unsafe highway after a fatal accident, and places a divider in the highway
sometime between the statement made and trial. May be admission by conduct.
 Example: two people sitting at a table alleged to do a robbery; third one in the room
asks them where they got the money; one of the two guys implies that they stole it.
The other guy doesn’t say anything. Holding: his silence is admission by conduct,
i.e. adopting the statement. (Clark)
 Example: A told the cops to go to his farm and deal with what was there. Cops found
two people who had been shot; A would not say anything more when asked. Was he
admitting through conduct? Holding: not admissible – would violate his right to
silence.
o Co-conspirators: statements that accused parties make in the furtherance of the crime in
question may be used against the other party, as long as the conspiracy is on foot and the
statements are in furtherance of the conspiracy.
 Being charged in an actual conspiracy is not a requirement; must only be parties
in the same criminal act.
 Does not include past narrative – statements must be made contemporaneously
to the conspiracy.
 The rule: (Barrow)
 Looking at all the evidence, TOF must be satisfied BRD that the alleged
conspiracy existed.


33
If #1, TOF must look at all of the evidence against A and be satisfied on
BOP that A is a member of conspiracy.
 If #2, TOF can then look at all of the evidence, including the statement, to
decide whether, BRD, A is part of the conspiracy.
Note that this exception meets the principled approach rule, due to the long
process of getting the evidence in. (Mapara)
13.4.9 Business Records / Duty Declarations
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Both common law and statute, but the common law has largely been codified and surpassed by
statute.
Common law exception (post Ares) – business records may be admissible if:
o Made reasonably contemporaneously
o In the ordinary course of duty
o By persons having knowledge of the matters
o Who are under a duty to make the record or report; and
o There is no motive to misrepresent the matter.
o No notice is required (as opposed to the CEA below).
Prior to Ares v. Venner, also had to prove that the declarant was dead.
Statute (s.30(1) CEA):
o Where oral evidence would be admissible, if a record was made in the ordinary course of
business, the contents of that record would be admissible for its truth.
 Cf. BCEA s.42(2)(b) – must be shown that it was in the ordinary course of business
to record the fact.
o Notice is required (s.30).
 But not for financial institutions. (s.29)
o Case law suggests that double hearsay – i.e. a record recounting information at two
removes – is allowed. (Martin)
 NB the BCEA (s.42(3)) explicitly allows hearsay.
o Can file an affidavit to prove ordinary course of business rather than calling a witness.
o Opinion evidence is allowed. (Larsen)
o The absence of a record normally filed in a situation can be used to prove that something
did not occur. (30(2))
o Records done in contemplation of litigation are not admissible.
o “Business” includes the government. (30(12))
14 Opinion Evidence
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A general rule of exclusion.
Perhaps better called speculation evidence rather than opinion.
14.1 Lay Opinion Evidence
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Conditions for admissibility:
o The evidence must be helpful, i.e. the witness has grounds on which to form their
conclusion.
o Must be the sort of thing upon which a non-expert can form an opinion.
o Must be an abbreviated version of the witness’ factual observations and inferences in a
situation in which it would be cumbersome or impossible to break down the facts.
Note that identification of the accused is sufficiently unreliable that it requires a special
warning to the jury before the jury can rely on it.
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34
Examples of allowable lay opinions:
o Identification of handwriting, persons & things
o Apparent age
o Physical or emotion condition/state of a person
o The condition of things (e.g. worn, shabby, new, used)
o Certain questions of value
o Estimates of speed and distance
14.2 Expert Opinion Evidence
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These are ready-made inferences from the facts that the trier of fact would be unable to form on
their own.
Only admissible when the trier of fact is unable to form his or her own conclusions without help.
(R. v. KA)
Opinions should not advocate legally; they assist the court.
Juries must be careful not to get wound up in the scientific jargon of the expert and give the
opinion more value than it deserves. (Mohan)
Four-step test for admission of evidence: (Mohan)
o Must be relevant to an issue in the case;
o Must be necessary in assisting the trier of fact;
o Must not be caught by an exclusionary rule; and
o The expert must be property qualified.
The Ontario Court of Appeal in Abbey re-structured the Mohan test into a two-part stage:
o 1. The Mohan test.
o 2. Prejudicial vs. probative.
The court sees experts as educators – educating the court on issues – consultants – responding to
hypothetical situations – and investigators.
Expert evidence may be based upon:
o Personal observations
o Hearsay evidence
o Hypothetical questions
Novel science: courts must test the reliability of a “novel science” by asking: (Trochym)
o Whether the technique can be and has been tested;
o Whether the technique has been subject to peer review and publication;
o The known or potential rate of error; and
o Whether the theory or technique used has been generally accepted.
Character or disposition: when trying to lead expert evidence of character or disposition, the
perpetrator of the accused must have distinctive behavioural or psychological characteristics
to match the distinctive elements of the crime – a signature (cf. similar fact evidence).
Experts are usually asked a hypothetical question towards the end of their testimony “that sets
out all the premises upon which their opinion is based… [in order to] isolate the premises from the
conclusion and ascertain which of the premises are supported by admissible evidence. (Foster
Summary)
o NB if the premises are not in dispute the trial judge may do away with the hypothetical
question requirement. (Bleta)
Example: an expert evidence was necessary to explain battered-wife syndrome and its intricacies
in order to disprove stereotypes, such as why such women do not flee but remain in the
relationship. (Lavallee)
35
14.2.1 Statutes and BC Rules
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Must give 30 days notice for calling an expert witness. (BCEA s.10(3), CC 657.3(3))
Any party can call an expert witness if that expert submits a written statement. (BCEA s.10(5),
BCR 11-7)
o NB if the expert doesn’t add any material evidence beyond the written statement, the party
calling may have to pay costs. (BCEA s.10(6), BCR 11-7)
Leave is required to call more than five expert witnesses. (CEA s.7)
o Macaulay J. says that leave is almost always granted.
Criminal witnesses can tender an affidavit rather than appearing in court. (CC 657.3(1)), though
the other party may still call the witness for cross-examination. (657.3(2))
Experts are advocates for the court, not for a witness. (BCR 11-2)
Expert reports must “show the math” for coming to the decision. (BCR 11-6)
If the expert is called as a witness, the examination must not go beyond the report tendered. (BCR
11-7)
15 Character Evidence
15.1 Overview
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Character is a person’s propensity or disposition; their behavioral traits.
o Character evidence leads to inferences such as: past conduct -> inference -> disposition ->
inference -> present conduct.
o NB this is distinct from habit: past conduct -> inference -> present conduct.
o So, while habit just infers present conduct from past conduct, character/propensity infers
disposition from past conduct, which in turn infers present conduct.
The accused may lead character evidence.
In general, the Crown may not lead evidence of previous bad acts of the accused or evidence of the
bad character of the accused.
o This is to prevent the Crown from introducing propensity evidence, i.e. to show that the
accused is the type of person, who by reason of his criminal character or propensity, is
likely to have committed the crime.
But, the Crown may lead character evidence if the issue has been raised by the accused (i.e. the
accused leads character evidence first).
Rationale: we should avoid allowing evidence that causes the jury to infer that a person’s past
conduct will reveal their present and future conduct. The Crown must prove the case on its merits
and material evidence.
Although character evidence may be relevant, it will likely always be more prejudicial than
probative.
Non-accused witnesses: There is no prohibition against leading character evidence of nonaccused witnesses, provided that it passes the standard admissibility tests.
Alternate perpetrator issue: when alleging that a third party committed the crime (e.g. “the dead
guy did it”), the accused must lead relevant evidence of motive or some other basis to show a
factual connection to the charge in issue. (Grandinett)
Co-accused and cutthroat the defence: where co-accuseds are pointing the finger at each other
(the “cutthroat defence”), the accuseds ca lead character evidence against each other.
o However, the court must find a balance between the right of one accused to have a fair trial
and of the other accused to make a full answer and defence.
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36
Psychiatric evidence, led by either the Crown or the accused, must show distinctive
behavioural or psychological characteristics that, when compared with the characteristics of
the accused, would be of material assistance in determining guilt or innocence. (Mohan)
o The evidence must be distinctive or unusual enough to “mark the perpetrator with a
badge”, i.e. clearly identify the accused’s characteristics with the distinctive characteristics
led by the expert evidence. (Morin)
o In a sexual assault case, the court found that expert evidence of sexual predator conduct
was not distinctive enough to be admissible. (Mohan)
15.2 The Accused Leading Good Character Evidence
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Three traditional ways the accused may put his character in issue:
o Evidence of good reputation (Rowton, Levasseur)
o Testifying as to his own good character or acts (McNamara)
 This can be direct or implicit, e.g. talking about being a good corporate citizen or
person.
o Calling expert evidence of propensity or disposition (Robertson, Mohan)
 i.e. to draw the inference that it makes the accused less likely to be the perpetrator
of the offence.
And one non-traditional way (maybe):
o Attack on the character of the victim or a third party.
 When the accused attacks the character of Crown witnesses in a one-side way, those
attacks may put the accused’s own character in issue.
 Example: husband and wife live in house with child; child dies; husband charged
with defence. The defence shows that the wife is a psychopath, giving the
impression that the husband is “normal”. Holding: Crown was entitled to lead
evidence that the husband was also a psychopath. By leading evidence of a third
party being a psychopath, the accused put his own character in issue. (McMillan)
Once adduced, character evidence can be used not only to boost the credibility of the accused, but
that he’s unlikely to commit the offence.
Sexual assault: since sexual assault cases usually happen in private, and often by people who
have good reputations for morality in their public life (e.g. doctors, priests), the value of character
evidence in these cases is diminished and may be negligible. (Profit)
Character is not put in issue by:
o Standard introductory questioning (McNamara)
o Denying allegations, explaining one’s defence, or repudiating parts of the Crown case
(McNamara)
 NB the accused puts his credibility in issue when taking the stand, but not always
character.
o Responsive answer to Crown cross-examination (Bricker)
 NB the Crown Is not allowed to ask questions to which the only answers relate to
character and not evidence in chief (e.g. “you’re a peace-loving guy, aren’t you?”).
15.3 The Crown Leading Bad Character Evidence of the Accused

Crown may lead bad character evidence when:
o Character is directly relevant to an issue at trial, e.g. dangerous offender proceedings or
defamation cases when someone pleads justification as a defence.
o The evidence meets the similar fact test from R. v. Handy (see below).
o The evidence is relevant to an issue at trial, and the character aspect is incidental.
37
E.g. in a spousal homicide case, to prove animus and motive the Crown may lead
evidence of past acts or threats. In addition to a bad character aspect, the evidence
also has relevant circumstantial value.
o The evidence is incidental to cross-examination of the accused’s credibility.
 E.g. in the course of cross-examination, it was put to the accused that he tried to
bribe a witness – relevant character evidence. (Chambers)
o The accused puts his character in issue (see above) – i.e. Crown rebuttal.
 Crown can only lead general reputation evidence (see below).
Crown may not lead evidence of specified bad acts of the accused which are not the subject matter
of the charges put before the court.
The Crown cannot lead good character evidence and then seek to lead bad character evidence,
arguing that the accused’s character is in issue. (Bricker)
Previous convictions: If the accused has adduced evidence of good character, the Crown can lead
evidence of previous convictions, even if the accused doesn’t take the stand (unlike CEA s.12).
The Crown can also go into the details of the conviction. (CC s.666)
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15.3.1 Reputation Evidence
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The Crown can lead bad reputation evidence if the accused first leads good reputation evidence.
(Rowton)
What can be said about reputation: (Rowtown)
o Can only talk about general reputation when proving character.
o Evidence must not extend to the individual opinion of the witness.
 i.e. witnesses cannot talk about the prior good acts of the accused.
o Rebuttal evidence of reputation must be confined to within the same limits as the original
evidence, i.e. the scope of the reputation asserted by the accused.
Questions used to elicit reputation evidence:
o Do you know the accused?
o How long have you known him or her?
o In what circumstances (community, work place, church, etc.) do you know him or her?
o Do you know his or her reputation for (the relevant character trait)?
Community reputation can be sought from residential neighbours, business associates, and other
non-geographically based communities. (Levasseur, Clarke)
15.3.2 Similar Fact Evidence (SFE)
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The basic rule: evidence of prior bad acts by the accused will be admissible if the Crown satisfies
on a BOP that, in the context of the particular case, the probative value of the evidence outweighs
its potential prejudice. (Handy)
Exception to the general rule that evidence of prior bad acts is inadmissible.
Admissible because it tends to prove, not that the accused has criminal propensities, but that he
committed the particular offence charged.
Sources of similar facts:
o Charges tried together on the same information or indictment.
o Past convictions.
o Uncharged acts.
o Stays and acquittals (not usually permitted).
Crown may not lead evidence of prior criminal acts that show that the accused, by his character,
is likely to have committed the offence, but it may be allowed if the evidence is relevant to an issue
before the jury and goes to whether the acts were designed or accidental, or to rebut a defence.
(Makin)
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Motive and similarity: where motive is the issue, a prior incident of the accused stabbing the
victim may be admissible even though the victim was ultimately shot.
Getting the evidence in – 4 stages:
o 1. Assess the probative value:
 Identify the issue in question.
 Assess the cogency of the evidence including the identification of connecting
factors.
 Between accused and SFE: can the trier of fact use the evidence to make a
finding that the accused committed the act? (Arp)
 Between SFE and the issue (the “nexus”): look at: similarity between acts;
proximity in time; number of occurrences of acts; any intervening events;
any other factors supporting or rebutting the connection.
o The main issue is whether the evidence shows that it would be an
unlikely product of coincidence: (Arp)
 Does the prior conduct have a highly distinctive detail
amounting to a “signature”?
 What’s the cumulative effect of a number of significant
similarities?
 Consider the potential for collusion.
 No obligation on the defence to prove, but if the defence raises an air of
reality, the Crown must rebut that on a BOP.
 A mere “opportunity” for collusion will not normally bar the evidence from
getting in.
 Assess the strength of the evidence that the similar acts actually occurred.
 Weight is usually left to the TOF, but if the similar fact evidence lacks enough
credibility, the judge as “gatekeeper” can take it into consideration.
o 2. Assess the prejudice (two types):
 Moral prejudice: the potential stigma of “bad personhood”. consider the
inflammatory nature of the similar acts and the seriousness of the SFE relative to the
charges.
 Reasoning prejudice: the potential confusion and distraction of the jury from the
charge, the potential for undue time consumption, or the unfairness in the trial
process.
o 3. Balancing probative vs. prejudicial:
 NB the starting point – presumptively inadmissible!
 Crown must establish on a BOP. This is a case-by-case basis; no common
measurement. What’s the importance of the issue? Can Crown make the point with
less prejudicial evidence?
o 4. Warning to the jury:
 Must warn the jury not to rely upon the prohibited inference.
 Not to punish for past misconduct.
 Provide direction on appropriate, non-prohibited use. (Arp)
 Not to use the evidence unless they are satisfied that the similar fact incident
occurred.
 Direct jury on the frailties of the SFE.
 Where the desired inference depends upon coincidence reasoning, direct the jury to
consider whether the apparent coincidence can be explained away by collaboration
or contamination between witnesses.
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15.4 Victim Reputation
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Where self-defence is raised, the following evidence is admissible: (Scopelliti)
o Evidence of previous assaults towards 3rd parties by the deceased, known to the accused;
o Evidence of the deceased’s reputation for violence, known to the accused; and
o Evidence of the deceased’s disposition for violence even if unknown to the accused, if
there is other evidence of the victim’s aggression on the occasion in question (can be the
accused’s testimony).
Sexual offences: (CC ss.276-7)
o For a number of sexual offences, evidence of the complainant’s previous sexual activity is
not admissible to support an inference that the complainant:
 Is more likely to have consented to the sexual activity in question; or
 Is less worthy of belief.
o Why? This evidence is unreliable and based on outdated societal myths. (Seaboyer)
 The right to a fair trial and full answer defence does not entitle you to lead
unreliable evidence. (Darrach)
 The principles of fundamental justice can be respected without giving the accused
the most favourable procedures that can be imaged, and without giving the accused
procedures to the detriment of the complainant. (Darrach)
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Exclusionary Rules: Policy
16 Privilege
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“A right, advantage, or immunity granted to or enjoyed by a person or a class of people, beyond
the usual rights or advantages of others.” (OED)
Privilege protects certain things from being disclosed in court.
The purported purpose of privilege is to enable people to speak freely in certain relationships
without fear that what they say may be (mis)used.
Two types of privilege: class and case-by-case.
16.1 Class Privilege
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Class privileges belong to entire classes of people, and thus are not assessed on a class-by-class
basis.
Class privileges are not balanced against other interests.
There is a rebuttable presumption of inadmissibility. The onus is on the party seeking
admission.
16.1.1 Solicitor-Client Privilege
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Three requirements for privileged communication: (Canada v. Solosky)
o Between solicitor and client
 NB that solicitor includes agents such as clerks or secretaries.
o Entails the seeking of legal advice
 i.e. as opposed to policy, strategic advice, etc. (Pritchard)
o Intended to be confidential
 i.e. no third parties!
Communication not entailing legal advice (history, finances, etc.) is confidential, but not
necessarily privileged.
The client has the privilege, not the lawyer.
Any waiver of privilege must be knowing or intentional. Only the client can waive privilege.
Privilege attaches whether or not it is claimed. (Lavallee, Rackel & Heintz)
This privilege preserves the relationship of trust between lawyers and clients, encourages full
communication between them, and preserves the effective operation of Canada’s legal system.
(Foster Wheeler)
Examples:
o An in-house government lawyer advising a governmental body on legal advise is privileged.
(Pritchard)
o Information provided from a defence lawyer to a psychiatrist concerning the mental
condition of a client, specifically whether the client was a harm to the public, is privileged
as it constitutes part of the client seeking legal advise in the course of a sentencing hearing.
(Smith v. Jones)
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16.1.2 Informer Privilege
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Any information that might reveal the identity of an informer is privileged.
Concealing the identity of informers both protects them and encourages them to provide more
information.
Does not protect the information provided, unless releasing the information might risk
identifying the informer.
o NB even small bits of information can put an informer at risk of identification, especially
when the tip is anonymous. (Leipert)
The informer privilege is nearly absolute and overrides even the Crown’s fundamental duty to
make disclosure to the defence, leading to many stayed charges.
Technically belongs to both the Crown and the informer, but the Crown cannot waive it without
the concurrence of the informer. (Leipert)
The accused can take independent investigative steps to try to discover the identity of an
informer, as long as the steps are lawful and are for the purpose of making full answer and
defence. (Barros)
Can only order disclosure upon satisfying the innocence at stake test, which is a high threshold.
16.1.3 Spousal Privilege
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CEA 4(3): spouses are not compellable against each other regarding communications made
during their marriage.
1. NB this is restricted to actual communication, so, for example, a spouse observing the
actions of the other spouse (e.g. child abuse) is not privileged.
16.2 Exceptions to Class Privilege
16.2.1 Criminal Purpose
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Applies only to solicitor-client privilege.
Communications made in order to facilitate the commission of a crime or fraud will not be
confidential, regardless of whether the lawyer is acting in good faith. (Descoteaux)
Asking a lawyer for advise on how to break the law will not be privileged.
The advice must facilitate the crime or otherwise cause the lawyer to become a dupe or
conspirator. (Campbell)
Using this exception takes more than just the evidence of the existence of the crime and proof of
an anterior consultation with a lawyer. The
16.2.2 Public Safety
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Applies only to solicitor-client privilege.
Test for the exception: (Smith v. Jones)
1. Clarity of risk
 Requires evidence of planning, a specific method being contemplated, a history of
violence or threats, rising severity, and an ascertainable target or group of targets.
2. Seriousness of risk
 Threat of serious bodily harm or death, including serious psychological harm.
3. Imminence of risk
 Serious and urgent, but no particular time limit required.
Example: lawyer sends his client to see a psychiatrist in advance of sentencing for aggravated
assault on a prostitute. The hope is that the psychiatrist will provide an opinion that he's not
dangerous, but the client outlines his plans for future assaults. The psychiatrist deems him to be a
danger to society. The court finds that the consultation is not privileged. (Smith v. Jones)
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NB the BC Law Society’s code of conduct contains a provision allowing lawyers to report
otherwise privileged communications containing significant imminent threats of serious harm.
16.2.3 Innocence at Stake (The McClure Application)
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Applies to solicitor-client and informer privileges.
Applies when the accused believes that there is some privileged information that, if disclosed,
would help the accused prove his innocence or raise a reasonable doubt about the charges.
The onus is on the party seeking to set aside the privilege on a BOP.
McClure two-part test:
1. Threshold test (judge not yet given file at this point):
 The information sought is not available from any other source.
 The accused is otherwise unable to raise a reasonable doubt as to guilt.
2. Substantive test:
 Accused must establish an evidentiary basis on which to conclude that there is a
communication that could raise a reasonable doubt.
 The judge will examine the file to determine whether there is something that is
likely to raise a reasonable doubt.
Limits on the extent of disclosure once the test is satisfied: (Brown)
1. Must protect privilege as much as possible; only disclose what is necessary to raise a
reasonable doubt.
2. The Crown cannot ‘piggy-back’ by using the evidence upon disclosure. The Crown can
only see the evidence if it’s tendered.
3. Use and derivative use immunity:
 Use immunity: information disclosed through the course of the McClure application
cannot be used against the holder of the privilege. E.g. the Crown can’t use the
information disclosed to try to convict the third party.
 Derivative use immunity: can’t use the information to discover other evidence
indirectly or through a chain of evidence or inferences.
16.3 Case-by-case Privilege
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Recognized by the SCC in Slavutych v. Baker.
16.3.1 The Law: The Wigmore Test
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The modern law uses the Wigmore criteria, a four-part test, to determine privilege on a case-bycase basis: (Wigmore)
 Confidential communication: the communications must originate in a confidence that
they will not be disclosed.
 Confidentiality essential to the full and satisfactory maintenance of the relation between
the parties.
 The protection of the relationship is important, i.e. ought to, in the opinion of the
community, be sedulously fostered.
 Cost-benefit analysis: the injury to the relation by disclosure must be greater than the
benefit thereby gained by the disclosure. Some factors in the balancing include: (MA)
 Maintaining privilege:
 Injury to the relationship
 Effect on the ability of other persons suffering similar trauma to seek
treatment
 Effect on society of lack of treatment of victims
 Privacy interest of person claiming privilege
 Inequalities which may be perpetuated by disclosure
Providing disclosure:
 The need to find truth in litigation
 Full answer and defence
 Relevance?
 Available from any other source?
Some common examples are doctor-patient and therapist-patient.
The burden is on the party who wants to establish the privilege.
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16.3.2 Examples
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Employer/employee: S, university prof, is asked to give a confidential report on another
colleague for his tenure application. He gives a negative report, and then is later dismissed based
on the contents of the report. Privilege found – breach of confidence. (Slavutych)
Religious: A, woman in her 20s, befriended an older man, V. V wanted things to get sexual; A
didn’t. A and her boyfriend “brought about” V’s death. A went to a fundamentalist Christian church
and confessed to an official (not a priest). No privilege – fails on first part of Wigmore test, i.e. she
wasn’t going in confidence. (Gruenke)
 NB this case also confirms that there is no common law prima facie privilege for religious
communications.
Psychiatrist/patient: 17 year old woman P sued D, her former psychiatrist, for damages resulting
from a sexual relationship they had while she was his patient. D wants disclosure of P’s
subsequent visits with new psychiatrist. D’s defence was consent, so P’s state of mind was
relevant. Applying the test: (MA v. Ryan)
 Factors one and two (confidentially) satisfied.
 Third factor – protection of relationship – satisfied.
 Cost/benefit analysis: benefit is not great enough to warrant full disclosure. But limited
disclosure for the most relevant material is acceptable.
Journalist/source:
 not a class privilege in Canada for four reasons:
 Variety and scope of professionalism among journalists
 Uncertainty in the scope of a blanket privilege (e.g. who can claim?)
 Absence of workable criteria for creation or loss
 Class privilege too rigid to be adapted to varied circumstances
 Wigmore application: (National Post)
 1 and 2: Confidentiality is essential to the privilege and to the ability of journalists to
collect information.
 3: the importance to society depends on the type of journalist. In this case, a serious
journalist (as opposed to a small-time blogger) meets this condition.
 4: Cost/benefit weighing is not met – no privilege in this case.
 NB must keep in mind the Charter guarantee of freedom of expression and the rights of the
press. (National Post)
16.4 Special Case Privileges
16.4.1 Litigation Privilege
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A “hybrid” privilege, neither class or case-by-case. (Basi)
Provides a zone of privacy for the litigator to prepare the case. (Basi)
Rationale: lawyers need to be able to put together cases without worrying about information
being disclosed to other parties.
44
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Some things that are protected in the civil context, such as expert reports and witness
statements, are not protected in the criminal context. (Basi)
Litigation privilege protects documents, objects, or communications, including with third parties,
that is prepared (including gathered, copied, or annotated) by counsel or persons under counsel’s
direction, for the dominant purpose of existing, contemplated, or anticipated litigation, until the
litigation (or related litigation) ends. (Basi)
o NB some other provinces, such as Ontario, have limits on the documents that count, while
in BC, these can be anything in the file, including newspaper clippings, advertisiments, etc.
Privilege only lasts until the litigation is over. (Blank)
16.4.2 Settlement Negotiation Privilege
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Communication and information shared between parties in relation to negotiations and
settlement are generally protected from disclosure, due to a strong public interest in favour of
dispute settlement.
One party cannot use another party’s settlement information against them.
16.4.3 Public Interest Immunity: Common Law
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Occurs when the Crown or its representatives (police, etc.) argue that the disclosure of
information would harm the public interest.
At common law, any official state representative can object to disclosure.
Common law example (English): Crown objected to disclosure of submarine plans on the basis
that it would harm the public interest – confidentiality upheld. (Duncan v. Laird)
Common law test applied by courts:
o Is there sufficient relevance to affect the outcome?
o If it might affect the outcome, would upholding the privilege prevent the accused from
making full answer and defence?
o If it would or could, the court must give the Crown the option to either withdraw the claim
of privilege, or enter a stay of proceedings.
 NB cases dealing with informer privilege disclosure often lead to stays, since the
Crown does not want to burn informants.
The judge can impose safeguards (e.g. redacting) to try to limit the potential damage. (Meuckon)
16.4.4 Public Interest Immunity: Statute (CEA)
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A Minister may object to the disclosure of information by certifying that the information should
not be disclosed on the grounds of a specified public interest.
CEA s.37:
o Codifies the common law, but does not override it.
o Also applies to informer privilege claims.
Why claim CEA over common law? You get an immediate right of appeal.
Disclosure will be weighed against other interests, such as encroaching upon a specific public
interest. (37(4.1), 37(5))
A CEA application can only been done in a superior court (i.e. BCSC). It may done on an
interlocutory basis in criminal matters, having its own “trial within a trial.”
National security (s.38) – provision protects potentially injurious or sensitive information
from being disclosed.
o Even if the court has ordered disclosure, the AG of Canada can issue a certificate
prohibiting disclosure. (38.13)
o Under 38.14, the court has brought remedial powers concerning potential limitations on
disclosure, including staying proceedings due to the accused’s inability to make full
answer and defence. (Achmad)
45

Cabinet secrets (s.39) – allows a Minister or clerk of the Privy Council to object to disclosure
by filing a certificate with the court in writing, to prevent memos, discussion papers, agenda,
communications between ministers, briefs to ministers, and draft legislation from being disclosed.
o Rationale: cabinet must be able to discuss things frankly in ways that may be injurious to
all sorts of things (defamation, prejudice, etc.). (Babcock)
o A counterveiing interest is the rule of law and the accountability of the executive.
(Babcock)
o The framework for analysis of secrets is set out in Babcock. A valid certificate must:
 Be executed by the clerk or Minister.
 Relate to information in 39(2).
 Be done in a bona fide exercise of power, i.e. not an abuse of discretion.
 Be done to prevent disclosure of previously confidential information.
 i.e. can’t prevent the disclosure of previously disclosed documents.
(Babcock)
o Limited judicial review: courts can review a s.39 certificate but only to make sure that it
falls within the scope of the statute, and to make sure that the certificate has not been
issued in bad faith. (Babcock)
16.5 Production of Third Party Documents
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In certain circumstance, the court will require documents in the hands of third parties to be
produced to the court.
For the below tests, a record is any record containing person information for which there is a
reasonable expectation of privacy (e.g. medical, counseling, personal journals – see CC for
complete list). (CC 278.1)
When the record is in possession of a third party and the accused is not charged with a sex
offence, or is charged with a sex offence but the disclosure sought is not a record, use the
O’Connor regime:
o Test: first stage (prior to judge seeing document):
 Court must decide whether the document should even be produced to the judge for
inspection.
 Exclusive consideration is whether accused has established likely relevance – this
is a low burden.
 Is there a reasonable possibility that the information is logically probative to an
issue at trial or to the competence of a witness to testify?
o Test: second stage:
 Judge looks at the document to decide if it should be produced, in whole or in part,
to the accused.
 Judge balances salutary and deleterious effects of a production and asks if nonproduction would be a reasonable limit on full answer and defence. Factors to
balance:
 Necessary for full answer and defence?
 Probative value?
 Expectation of privacy vested in the record?
 Discriminatory belief or bias in the record?
 Potential prejudice to complainant’s dignity, privacy or security of the
person?
When the accused is charged with a sex offence and the disclosure sought is a “record” pursuant
to CC s.278.1, use the statutory Mills regime:
46

o Records are not to be disclosed except in accordance with the Mills procedure even if
the record is in the possession of Crown or police unless the witness consents. (CC
278.2(1))
o Test: first stage (278.5) – showing likely relevance:
 Application must be in writing.
 The records must be likely relevant.
 Note that s.278.3(4) outlines 11 bases upon which an assertion without
more evidence is insufficient.
 Production of the record to the court must be necessary in the interests of justice
(278.5(1)(c)).
 To determine this necessity, take into account factors from 278.5(2).
o Test: second stage (278.7):
 Judge looks at the records and assess whether they should be produced to the
accused (considers same factors as in first stage, 278.5(2)).
 Can impose certain terms and conditions of disclosure, such as limiting what’s
disclosed, to whom, etc.
NB documents produced by these procedures still must go through the standard admissibility test.
16.6 Implied Undertakings
16.6.1 Civil (Juman)
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Statements or documents given to the other party in a litigation during discovery are covered by
an implied undertaking of confidentiality – the documents may not be used by the receiving
party except for the specific purpose of litigation, unless the court orders otherwise.
o NB this extends to any form of interrogatory or information seeking (including under the
civil litigation rules).
Rationale: pre-trial discovery is an invasion of privacy, but necessary for getting at the truth. The
invasion of privacy should be limited to the level of disclosure necessary to satisfy the truthseeking function.
Applying to set aside the confidentiality: the court must balance the implied undertaking and
the public interest in truth seeking. This will only be done in exceptional circumstances.
o NB You’re not entitled to tailor your evidence to specific trials. So if the evidene is
inconsistent with statements made in the course of subsequent proceedings, that may
weigh in favour of setting aside the confidentiality.
Example: (Juman)
o Foster mother/group home owner sued for the way in which she carried out her business,
specifically allegations of child abuse.
o The litigation ultimately settled without the discovery material tendered in court or made
public in trial.
o Issue: could the government, who was one of the parties, disclose to the police the contents
of the potentially incriminating discovery material?
o The Crown argues that the interests of public safety held that the undertaking should be set
aside.
o Holding: not set aside. There is no public safety exception here (cf. Smith v. Jones), though
that may happen in some cases.
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16.6.2 Criminal (Basi)
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
An accused who receives disclosure from the Crown pursuant to the Crown’s Stinchcombe
obligations (making full disclosure), or to a court order, does so subject to an implied undertaking
not to disclose its contents for any purpose other than making full answer and defence in the
proceeding.
The undertaking flows as a necessary implication from the limited purpose for which the recipient
has been given access to the documents.
17 Self-Incrimination in Court
17.1 Non-Constitutional Law
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Common law: no one is obliged to give testimony that would incriminate them.
CEA s.5:
o Sets aside the common law privilege. (1)
o The quid pro quo – use immunity: compelled testimony that is self-incriminatory cannot
be used against you in any criminal trial or other criminal proceeding except for perjury or
giving contradictory evidence. (2)
 NB if you don’t object to answering before you do, you don’t get the protection
(“plead the fifth…”)
BCEA s.4:
o Mostly the same as CEA, but for provincial statutes and offences.
o Once claimed, the statement can’t be used against the declarant in any other proceedings,
including criminal proceedings.
17.2 Charter s.13
A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used
to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of
contradictory evidence.
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Protects the right against self (in)crimination.
Because it’s constitutional, you don’t have to claim the right: it applies regardless of whether you
object to answering a question.
Does not protect the right to give inconsistent testimony or false stories until you find one you
like or that actually succeeds in court. (Henry)
17.2.1 The Law Now

The three principles: (Henry)
o If the accused does not testify at the trial, his testimony from an earlier proceeding cannot
be used against him at the trial, regardless of whether he was the accused or merely a
witness at the earlier proceedings. (Dubois)
o If the accused does testify at the trial, his testimony from an earlier proceeding cannot be
used against him at that trial if he was compellable as a witness at the earlier proceeding.
(Noel)
 NB he need not have been compelled – just compellable.
 But see Nedelcu below – only if the evidence isn’t incriminating.
48
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o If the accused does testify at his trial, his testimony from an earlier proceeding can be
used to cross-examine him at the trial provided he was not compellable as a witness at
the earlier proceeding.
“Earlier proceeding” here can also include the same proceeding, e.g. being tried on the same
indictment, or proceedings within proceedings such as voir dires.
s.13 only protects against incriminating evidence the accused may have been compelled to give
at a previous proceeding. (Nedelcu, SCC 2012)
o i.e. evidence only used to attack credibility is not protected.
o NB this modifies Henry held that s.13 protected against any evidence being used, not just
incriminating evidence, because it’s too tough to determine whether the evidence is being
used to impeach credibility or assert guilt.
o Whether the evidence is incriminating should be determined at the time the Crown wants
to use it, not when it is originally made.
Example: A was riding a motorcycle with V; they crashed and V had permanent brain damage. V
sued A; A was also charged with dangerous driving causing bodily harm. In civil discovery, A
testified he had no memory of the events. At the criminal trial, A gave a basically complete account
of all the events. Decision: the Crown could use the evidence to test his credibility. (Nedelcu)
17.2.2 The Development of the Law
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Dubois (1985) – still good law:
o A charged with murder; testified at his trial and claimed self defence. Convicted; new trial
ordered on appeal; didn’t testify at second trial.
o Crown wants to read in A’s testimony from first trial at second trial to help convict.
Evidence not allowed: reading in the testimony would amount to indirectly compelling A
to testify.
Mannion (1986) – not good law:
o A chooses to testify at his first and second trials. At the second trial, Crown wants to cross
based on the evidence in his first testimony to impeach his credibility and prove guilt.
Cross not allowed.
o NB this has been overruled by Henry.
Kuldip (1990) – not good law:
o A chooses to testify at first and second trials; Crown wants to cross at the second trial,
using evidence from first trial to test credibility. Cross not allowed.
o NB this has been overruled by Henry.
Noel (2002) – still good law:
o N called by Crown as a witness (i.e. compelled) at his brother’s homicide trial. N admits
there to being his brother’s accomplice. At his own trial for the homicide, N testifies and
Crown cross-examines N on his statements made at his brother’s trial to impeach
credibility. Cross not allowed: compelled testimony cannot be used for any purpose,
including impeaching credibility. Court also holds that it’s too tough to separate credibility
from guilt in this case.
o NB Allen (2003) has similar facts and outcome.
Henry (2005) – mostly good law:
o A chooses to testify at first trial; convicted. Chooses to testify at second trial but tells
different facts. Crown cross-examines based on testimony at first trial. Cross allowed:
cannot hide behind the lies of the second testimony. Crown can use testimony both for
credibility and to incriminate.
o The court ruled that it’s too tough to determine whether evidence is being used to
impeach credibility or prove guilt, so they threw all evidence into the same category. But
this has been changed by Nedelcu to return to the incriminating/non-incriminating
distinction.
49
17.3 Charter s.7

May provide some further protection in some cases where s.13 isn’t applicable, e.g. use immunity,
derivative use immunity, and constitutional exemptions (such as in immigration cases).
18 Statements of the Accused and Confessions
18.1 Sources of Statements
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Family, friends, acquaintances, or other non-state actors.
Police or other “persons in authority”.
Undercover officers or police agents (unless the accused believes they are, in fact, a person of
authority).
Surreptitious recording by police or other state actor.
Surreptitious recording by non-state actor.
18.2 Common Law Confessions (Oickle)
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
For statements made by an accused to a person in authority to be admissible, the Crown must
establish, beyond a reasonable doubt, that the accused's choice to speak to the authorities was
voluntary in the sense that it was not overborne by threats, inducements, oppressive
circumstances, or the lack of an operating mind. Police trickery that would "shock the conscience
of the community" is also prohibited, even though it may not violate the Charter right to silence
and is not otherwise involuntary.
Four criteria:
1. Were there threats or promises operating as inducements?
a. Must be an absence of threats or promises operating as inducements strong
enough to raise a reasonable doubt about whether the will of the suspect as been
overborne by the questioner.
i. Being overborne must be so high that it would mean that the accused has no
volitional control.
b. Things that would not qualify: offer of psychiatric assistance; assertion that it
would be better morally to confess; “it wouldn’t be good if it turns out that you’re
lying” (Hayes).
c. Things that may qualify: suggestions of a reduced charge or sentence; threat or
promise that benefits or is a detriment to a third party; withholding bail (Leblanc);
good cop/bad cop routine (Letendre); “things will clear up sooner” (Parsons).
d. Test for determining threat or promise:
i. Was there an inducement?
ii. What was the strength of the inducement?
iii. Was there a quid pro quo offer by interrogators that led to the accused’s
confession?
2. Was there an atmosphere of oppression leading to the making of the statement?
a. Oppression can be created by:
i. Deprivation of necessities of life, e.g. food, water, medical attention, sleep.
ii. Denying access to counsel.
50
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
iii. Excessively aggressive or intimidating questioning for a prolonged period.
iv. Fabrication of evidence in combination with other factors. There is space for
the police to lie or exaggerate, but only to a point. Fabricating DNA evidence,
for example, will qualify, but confronting a suspect with polygraph results
will not.
3. Did the accused have a lack of operating mind when making the statement?
a. An operating mind requires an accused to have knowledge of what he is saying and
that he is saying it to police officers who can use it to his detriment.
4. Was there appalling police trickery (community shock)?
a. The statement will not be voluntary if the conduct of the police trickery is so
appalling that it would shock the community.
b. Analogous to the prejudicial/probative test: have the police just gone too far in one
direction?
c. NB this is considered separately from the first three factors and may vitiate an
otherwise voluntary statement.
If the statement is allowed, the Crown can use it for two purposes:
o Adduce the entire statement, for better or for worse. The whole statement goes in,
including any declarations of innocence, etc.
o Reserve it for cross-examination: the Crown can hold it until the accused takes the stand,
and then can just cross-examine on those parts of the statement that are most helpful to the
Crown’s case.
Example: accused is being questioned by police, who insinuate that if he confesses, he would be
able to see his girlfriend. Not overborne – accused had been trying to strike deals all along and
was “aggressive”, “mature and savvy”. The quid pro quo itself was not enough in light of the
strength lacking in the other factors. (Spencer)
18.2.1 Defining “Person in Authority” (Rothman)
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Subjective test: did the accused reasonably believe the person was a police officer or police
agent?
Rothman (pre-Charter): An undercover officer posing as a truck driver was placed in a cell with
the accused; induced A into making incriminating statements.
o In the post-Charter world, the confession Rothman would likely be inadmissible due to a
breach of s.7 (see Charter exclusionary rules).
The police conduct must shock the community in order for the confession to be deemed
involuntary, though “the investigation of crime and detection of criminals is not a game to be
governed by the Marquess of Queensbury rules”.
Police must sometimes resort to tricks or deceit and should not be hampered in their work, as
long as it does not shock the community.
Examples of acceptable police trickery: pretending to be a drug addict to crack a drug ring;
pretending to be a truck driver to convict a trafficker – as long as the officer does not elicit a
confession from the suspect while they are in custody. (Hebert)
Examples of unacceptable police trickery: pretending to be a prison chaplain; pretending to be a
duty legal aid lawyer; injecting Pentothal into a diabetic pretending it to be insulin.
18.2.2 The Old Law
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
Under the old common law, if a statement was made by the accused to someone who he believes
could have some influence over his arrest, detention, or prosecution, then the Crown must prove
BRD that it was voluntary before adducing. (Boudreau)
The old law was limited to threats or promises inducing a statement.
51
18.3 Charter s.7 and the Right to Silence
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof
except in accordance with the principles of fundamental justice.
18.3.1 Overview
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The s.7 right to silence is a residual safety net that fills in the gaps, helping people where there’s no
other clear, identifiable protection.
Not absolute – can be deprived so long as it’s done in accordance with the principles of
fundamental justice.
The essence of the right to silence is that the suspect is free to choose whether to choose to the
authorities. (Hebert)
Rationale for the right: the accused has a right to choose whether to speak or remain silent
before or after trial. This right is fundamental to our adversarial system of criminal justice.
(Hebert)
o The police can’t engage in tricks that would deprive a person in custody of the right to
choose whether to speak.
o So, placing undercover officers in jail cells to elicit responses goes too far and violate s.7,
but placing an officer in the cell who just sits there and listens to a rambling detainee is not
a violation of s.7.
 NB this means that Rothman today would be found to be in breach of the right to
silence.
Limits: (Hebert)
o Police may question and persuade the accused to speak after he has retained counsel.
o The right applies only after detain.
o The right does not affect voluntary statements made to fellow cellmates.
o Undercover officer may observe the accused in cells, but can’t use subterfuge or actively
elicit (e.g. Rothman) so as to undermine accused’s choice to remain silent.
The right does not apply to undercover operations while the accused is not in custody, e.g. “Mr.
Big” stings.
The right to be silent does not also give a right not to be spoken to. (Singh)
o i.e. police can question for hours even after the accused has asserted the right to silence.
The ultimate question is whether the accused exercised free will by choosing to make the
statement. (Singh)
Interaction with the Oickle confessions rule: (Singh)
o The tests are functionally equivalent where the detainee is in custody and knows that he is
speaking to a person in authority.
o If the Crown proves voluntariness BRD, there can be no finding of a s.7 breach.
o Similarly, if the accused proves a s.7 breach on a BOP, then the Crown cannot prove
voluntariness.
Example of the limits: (Singh)
o Facts: S gets into a dispute with some people just outside of a nightclub. Shots are fired; a
stray bullet hits and kills an innocent bystander standing just inside the club. S is arrested,
and, when questioned by police, asserts his s.7 right 18 times. But the police continue to
question him for hours. Finally S makes an incriminatory (but voluntary) statement,
identifying himself in the photograph.
o Issue: in light of his multiple assertions of the s.7 right to silence, did the conduct of the
police result in a Charter breach?
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o Holding – no breach: S’s will was “not overborne”, he simply took the bait that the
police offered. This wasn’t a breach of the right; it was the height of police persistence. The
right allows one to be silent, but it does not give one the right not to be spoken to.
18.3.2 Common Law Right to Silence (Turcotte)
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Nobody is obliged ever to talk to the police, except where a positive statutory duty or other clear
indication arises.
The Crown cannot use the silence to add to the evidence to establish guilt.
The right exists at all times against the state when interacting with a person in authority, whether
or not the person asserting it has been detained.
Silence is not post-offence conduct. Since the law imposes no duty to speak, “this fact alone
severs any link between silence and guilt”.
Example – Turcotte: the “go out to the ranch” case. Crown’s primary evidence was that A
remained silent as to why the cops should go to the ranch, but this could not be used to support an
inference of guilt.
18.4 Oickle vs. s.7
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
When do they not overlap?
o When you’re not in custody – then only Oickle applies.
o Also depends on whether you know that the person you’re talking to is a “person in
authority”.
Which offers greater protection?
o Generally Oickle because (1) you don’t have to be detained to use it, and (2) the burden is
on the Crown to prove voluntariness BRD, whereas, for a s.7 violation the burden is on the
party claiming the Charter violation to prove the breach on a BOP.
See chart: Comparing the Common Law Confessions Rule and the Charter.
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Excluding Evidence on Charter Grounds
19 Right to Counsel: s.10(b)
Everyone has the right on arrest or detention… (b) to retain and instruct counsel without delay and to be
informed of that right.
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Provides a detainee the opportunity to obtain legal advice, relative to whatever legal situation he’s
in, generally when he’s in custody.
The courts generally assume that, once you’re arrested and detained, you’ll call your lawyer and
he’ll tell you not to say anything. Thus, s.10(b) is an important prop to the right to silence.
s.10(b) gives a detainee the right to a single consultation with counsel at the time of detention or
shortly thereafter. There is generally no right to repeated consultations or to have counsel
present during interrogations. (Sinclair)
Changed circumstances, however, may allow for a second consultation in order to allow the
accused to get the advice he needs to exercise his right to choose in the new situation. Examples of
changed circumstances:
o New procedures involving the detainee, e.g. a GSR test.
o A change in the jeopardy facing the detainee, e.g. the person the accused assaulted dies
and he is now facing a murder charge.
o Reason to believe that the detainee may not have understood the initial advice of the
rights to counsel.
20 Exclusion of Evidence: s.24(2)
(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may
apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and
just in the circumstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner
that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if
it is established that, having regard to all the circumstances, the admission of it in the proceedings would
bring the administration of justice into disrepute.
20.1 Overview
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This is where the rubber hits the road for Charter violations: if the evidence still gets in under
24(2), the Charter breach doesn’t matter.
Jurisdiction: only a court of competent jurisdiction may grant a remedy, which usually means a
trial level or superior court (i.e. not a preliminary inquiry court).
Standing: s.24(2) provides remedies only to applicants whose own Charter rights have been
infringed, not to third parties wishing to exclude evidence based on the infringement of someone
else’s Charter rights. (Edwards)
Obtained in a manner: a generous approach should be taken to a need for a causal connection. Is
there sufficient connection, given temporal, context and causal factors for it to be said that the
evidence has been obtained by the breach?
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o Secondary evidence obtained as a result of evidence obtained via a Charter breach (e.g. a
statement which leads to a gun) is causally connected.
o A Charter breach usually precedes the finding of the evidence, but not always – it may be
contemporaneous or even subsequent, as long as it’s sufficiently contextually related.
20.2 The Law Now (Grant)
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In a s.24(2) application, a judge must consider 3 lines of inquiry: (Grant)
o The seriousness of the Charter-infringing state conduct:
 The more serious the state conduct constituting the breach, the greater need for
courts to distance themselves from that conduct by excluding the evidence linked to
it. (Cote)
o The impact of the breach on the Charter-protected interests of the accused:
 The impact may range from that resulting from a minor technical breach to that
following a profoundly intrusive violation. The more serious the impact, the more
likely the evidence will be excluded. (Cote)
o Society’s interest in the adjudication of the case on its merits:
 While admitting unreliable evidence may result in an unfair trial, excluding
unreliable evidence may also render the trial unfair by undermining the truthseeking function. (Cote)
 “Admitting evidence of questionable reliability is more likely to bring the
administration of justice into disrepute where it forms the whole of the
prosecution’s case, but excluding highly reliable evidence may more negatively
affect the truth-seeking function of the criminal law process where the effect is to
“gut” the prosecution’s case.” (Cote)
The court’s role is to balance the assessments under each of the lines of inquiry to determine
whether, considering all the circumstances, admission of the evidence would bring the
administration of justice into disrepute. (SEE CHART)
An appeal cannot include evidence excluded at trial in the absence of a palpable and overriding
error of law. (Cote)
Discoverability (i.e. evidence that would have otherwise been found by lawful search): if
police officers could have conducted the search legally but didn’t, the seriousness of the state
conduct is heightened.
20.3 The Old Law (Collins and Stillman)
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
Collins set out a three stage test:
o Would admitting the evidence adversely affect trial fairness?
o Was the Charter breach a serious one?
o Would the exclusion of the evidence bring the administration of justice into greater
disrepute than admitting the unconstitutionally obtained evidence?
Classification of evidence:
o Conscriptive: in violation of his Charter rights, the “accused is compelled to incriminate
himself at the behest of the state by means of a statement, use of the body or the
production of bodily samples.” (Stillman)
o Derivative: subset of conscriptive evidence; accused conscripted against self, leading to
the discovery of real evidence.
o Otherwise discoverable: evidence which could have been discovered by alternative nonconscriptive means or would have inevitably been discovered.
Under Stillman, it became virtually impossible for the Crown to introduce evidence that had been
classified as conscriptive.
o E.g. breath samples obtained after an undue delay in speaking to counsel, technical
violation in arrest, etc.
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56
Real and Demonstrative Evidence
21 Overview
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Real evidence: “original” things that allegedly played a part in the action before the court, such as
the murder weapon.
Demonstrative evidence: Visual aids used to assist a witness to illustrate or explain evidence.
May include maps, diagrams, re-enactments, demonstrations, etc. Helps the trier of fact better
understand the underlying facts of the case.
Exhibits allow the trier of fact to evaluate evidence with direct sensory perception.
Exhibits go to the jury room with the jury.
Test for admission:
a. Relevant and material
b. Authenticated (see below) under oath by a witness capable of doing so.
i. NB this can be as simple as an officer stating he took a shirt from the scene, or as
complex something like DNA evidence, in which each step in the chain (collecting
officer, sent the lab, lab technician receiving, etc.) must be authenticated.
c. Not subject to an exclusionary rule
d. Probative value outweighs prejudicial effect (with regular “substantially” qualifier for
defence evidence)
22 Authenticating Real Evidence
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The judge determines whether there is sufficient evidence to permit a rational finding by the jury
that the item is as claimed.
The jury then weighs the evidence to determine whether it is authentic.
Where the relevance of a particular item of evidence depends on whether it came from a
particular source and there’s conflicting evidence on that, the jury must determine on the basis
of the conflicting evidence whether the item came from the conflicting source. (Andrade)
o i.e. conflicts go to weight, not admissibility. (Andrade)
Authentication may be done by a single witness or several witnesses.
The continuity chain is important – the jury should be able to track the evidence from initial
collection to the tendering in court.
o But there is no duty on the Crown to show detailed continuity. The lack of proof of
continuity goes to weight, not admissibility (e.g. the exhibit officer dying before the trial
begins – Crown can still adduce the evidence). (MacPherson)
Video tapes go to the jury. (Patterson)
Example:
o Allegation of A having assaulted V with two knives; V was shown the knives but couldn’t
absolutely identify them. Witnesses said that A had put one knife in an usual place, which is
where it was found, as well as another one in his pocket. Holding: witness evidence is
sufficient to authenticate as relevant – for the jury to determine weight. (Staniforth)
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23 Documents


Documents are common and crucial to litigation:
o Contractual evidence
o Books on drug trafficking
o Authenticity certificates for breathalyzers
o Printouts of electronic communications (Facebook, text messages, etc.)
Common issues related to admissibility:
o Relevance and materiality
o Authenticity
 For handwriting authentication, witnesses must be able to base their identification
on a chain of mutual correspondence. Just receiving, for example, two postcards and
two letters, without ever exchanging correspondence or seeing the person write, is
not sufficient as a basis for identification. (Pitre)
 A judge can compare two pieces of handwriting for the purposes of identification,
but must first give notice to the parties so that they can submit arguments in
response to the comparison. (Adam)
o Hearsay
 If the contents of the documents themselves, and not just their mere existence, are
relevant, this will introduce hearsay issues.
 But remember that a contract, being a legal document, is not hearsay.
 Official and business documents will often get in through the CEA business records
exception or the principled approach.
o Best evidence rule
 An adverse inference can be drawn from a party’s failure to produce a document in
their possession, i.e. they have the original document but choose not to produce it.
 The old rule that a party must produce an original document is no longer relevant
– parties can produce reproductions. The quality of the reproduced evidence goes to
weight, not admissibility. (Cotroni)
 The CEA contains special rules that consider printouts of computer records to meet
the “best evidence” criteria. (CEA 31.2, Morgan)
23.1 Methods of Authenticating






Calling the writer of the document
Calling a witness who saw the document signed
o e.g. when formalizing a will, there must be two witnesses present when it’s signed, since
the person who signs the will won’t be around if there’s a dispute.
Calling a witness who is familiar with the writer’s handwriting (cf. lay opinion evidence)
Comparing the writing in dispute with a writing proved to the court’s satisfaction to be genuine
Calling an expert, e.g. to testify about handwriting analysis
Admission of the opposing party
24 Photos and Videos



The proliferation of surveillance videos has made video evidence far more common than it used to
be.
Police officers will often canvas video surveillance at or near the scene of a crime, e.g. looking at
videos from stores along the street to get video of a suspect fleeing down the street.
Test for admissibility:
58



o Relevant and material
o Authenticated - verified on oath by a person capable of doing so that:
 Accurately represents the facts
 No manipulation, change, Photoshopping, etc.
 Fair – no intent to mislead
 No odd angle, use of strange lenses, etc. that might create a misleading
impression
o Not subject to an exclusionary rule
 E.g. if the photo has text in it that’s been tendered for the truth of its contents,
there’s a hearsay issue
o Probative value outweighs any prejudicial effect
Identification: if you have no other evidence for the identification of the accused and the video
evidence presents a strong case for identification, the trier of fact may compare the video with
the accused for the purposes of identification. (Nikolovski)
Video evidence is compelling because it is not affected by emotions and other frailties of human
witnesses. (Nikolovski)
Examples:
o Employee accused of stealing from a retail business; video surveillance of the cash register,
which was time stamped, caught the theft. Question: can a witness authenticate the video
and the reliability of the equipment? Yes – there was no eye witness, but a witness was able
to authenticate that the equipment was functioning properly and that the time and date
stamp were accurate. The time stamp also corresponded with the missing cash in the cash
register’s records. (Schaffner)
o Bank robbery – teller could not positively identify the robber (and even identified the
wrong guy), but video surveillance evidence was clear and the judge was able to identify
the accused in the video. Question: could the video, without anything more, be sufficient to
allow the TOF to identify the accused? Yes – If you have nothing else, you are entitled to ask
the TOF to compare the video with the accused for the purpose of identification.
(Nikolovski)
25 Re-Enactments and Experiments






Will be admitted on a case-by-case basis. (MacDonald)
The overriding principle, as with all evidence, is whether the prejudicial effect of the re-enactment
outweighs its probative value.
Considerations:
o Relevance
o Accuracy
o Fairness
“In most cases, the relevance of the experiment [or re-enactment] evidence will depend on the
degree of similarity between the replication and the original event. (Collins)
NB if the re-enactment involves an expert witness than the party must meet the Mohan test.
Examples:
o Cab driver brutally murdered; police re-enacted video evidence of a minivan going into a
parking lot in order to test witness evidence. Re-enactment allowed: the conditions under
which the test was done were very close to the conditions of the actual event. (Walizadah)
o Police officers did a violent takedown of a guy and hurt him. They tried to create a
reenactment to paint themselves in a good light. Not allowed: biased, and thus more
prejudicial than probative. (MacDonald)
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26 Diagrams and Sketches


To admit through a witness:
o The witness must be familiar with the scene, location, or structure as it appeared at the
relevant time, and can swear that the diagram, sketch, or map is a fair representation;
and
o Diagram would assist the witness in giving evidence.
Can be a rough sketch or an extremely accurate scale diagram, as long as it’s probative and will
assist the trier of fact.
27 Summaries




Summaries are literally summaries of evidence, often seen in large or complex commercial cases
involving tens of thousands of documents.
Since it would be impossible to go through all of the evidence, someone may summarize the
evidence for the jury.
Foundation for the admissibility of summaries:
o Original documents are so voluminous they can’t be conveniently examined in court;
o Witness has examined the original data;
o Witness is qualified to produce a summary of the info and did produce it; and
o Exhibit is a fair and accurate summary of the underyling information.
NB the jury can request to see parts or all of the original evidence.
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Appendix 1: Framework for a Hearsay Analysis
Preliminary questions:


What are the words (or act) being tendered as evidence?
Why is this evidence being tendered? How does the evidence advance the party’s case? Is there an
implied statement beyond the actual words?
The analysis:
1. Is it hearsay?
a. Out of court statement? Is the declarant on the stand testifying now?
b. Offered for the truth of its contents?
i. Key question here: does the relevance of the statement depend on being true? If
the statement is relevant regardless of whether it’s true, it’s not hearsay.
2. Is it admissible under a traditional exception?
a. Does the hearsay fall within a traditional exception?
i. Hearsay evidence is presumptively inadmissible unless it falls within an exception
to the hearsay rule, in which case it’s presumptively admissible.
ii. If the statement contains multiple layers of hearsay, each layer must fall within an
exception or be admissible under the principled approach. (Starr)
b. Does the hearsay exception meet the requirements of necessity and reliability?
c. Are necessity and reliability lacking in this specific case?
i. In rare cases, evidence falling within a traditional exception may be excluded
because the indicia of necessity or reliability is lacking in the circumstances of the
case.
3. Is it admissible under the principled approach?
a. If not under a traditional exception, the evidence may still be admitted if established on a
voir dire that the evidence is:
i. Necessary (not reasonable available otherwise); and
ii. Reliable, meaning:
1. Circumstances of the statement offer circumstantial guarantee of
trustworthiness (Smith, Khan) OR
2. Truth and accuracy of the statement can be sufficiently tested by other
means (KGB)
4. Is it more prejudicial than probative?
a. NB defence evidence must be substantially more prejudicial than probative to be excluded.
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Appendix 2: The Accused as Witness: a Short
Summary
Categories of ways in which the accused is a distinctive witness (all explained in the outline above):

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


Can use prior consistent statements to bolster fabrication accusations.
Cannot cross-examine the accused on motives of witnesses.
Bad character evidence: generally not allowed unless it falls under similar fact or other
exceptions, or if the accused puts his character in issue.
Criminal record: Corbett allows the record to be edited or eliminated.
Comment upon failure to testify (Noble).
Comments on accused’s silence: can’t use against him.
Voluntariness of statements to police.
Use of prior testimony of accused.
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Appendix 3: Canned Responses
28 Necessity
To satisfy the necessity arm of the hearsay test, a statement must be “reasonably” necessary in light of all
of the circumstances. (Khan) “Necessary” means that the evidence is necessary to prove a fact in issue,
not that the Crown requires the evidence to prove its case. (Smith) There are two types of necessity,
established in KGB: the witness is either unavailable, or evidence of the same value from the source of the
hearsay (i.e. the declarant) or another source cannot be obtained again.
29 Reliability
Hearsay evidence will be meet the reliability test if it possesses sufficient elements of reliability such that
it should be considered by the trier of fact. This has been stated in many ways, but the bottom line is that
the statement made in circumstances which substantially negate the possibility that the declarant was
untruthful or mistaken (Smith, Starr). This reliability can be established either in a procedural sense (can
the evidence be sufficiently tested?) or a substantive sense (its inherent trustworthiness) (KGB).
Procedural: many factors can go towards procedural reliability, such as: the taking of an oath (Potvin,
KGB); a warning given about the consequences of lying; the accused being present when the statement
was made (Potvin); the statement was cross-examined when it was made (Potvin); the statement was
video or audio taped (KGB) and the time stamp of the video confirms that it was not doctored.
Substantive: some examples of substantive reliability include: a statement that was spontaneous (Khan)
or arose naturally (Smith) without suggestion or prompting (Khan); a statement made reasonably
contemporaneously with the events in question (Smith) by a “disinterested” person who had no motive to
lie or fabricate. (Smith, Khan); a statement with corroborating evidence (Khelawon, Khan, Blackman).
63
Index
Accused
Alibis, 12
Failure to Testify, 12
Incompetency, 12
Prior Statements, 15
Reputation for Veracity, 13
Right to Silence, 12
Testifying, 12
Alibi, 12
BC Evidence Act (BCEA), 4, 10, 11, 12, 35, 36, 37, 49
Canada Evidence Act (CEA), 4, 10, 11, 12, 16, 17, 18, 22, 35,
37, 39, 43, 46, 49
Charter, 4, 5, 11, 12, 45, 49, 50, 51, 53, 54, 55, 56
Collateral Fact Rule, 13, 15
Compellability, 10
Competence, 10, 12
Criminal Code, 10, 14, 15, 21, 37, 39, 41, 47, 48
Demeanour, 13
Expert Evidence, 13, 16
Hearsay, 9
Incompetency, 10, 11, 12
Accused, 12
Spouses, 10
Innocent Misstatement, 10
Judicial Notice, 4
Jury Charges, 6, 12
Prior Consistent, 14
Memory Loss, 8
Prior Statements, 8
Privilege, 42, 43, 44, 45, 46
Recent Complaint
Prior Consistent, 14
Recent Fabrication, 13
Sexual Assault
Recent Complaint, 14
Spouses, 10, 11, 43
Witnesses
Collateral Facts, 13
Cross Examination, 15
Oath Helping, 13
Own Witness, 13
Prior Consistent Statements, 14
Recent Fabrication, 13
Reputation for Veracity, 13