R v. Hawkins
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Sources and Goals of the Law of ..................................................................................... 4 Evidence ............................................................................................................................. 4 Overarching Issues.................................................................................................................. 4 Sources of Evidence Law ....................................................................................................... 4 Relevance................................................................................................................................ 5 Admissibility........................................................................................................................... 5 Test for Admissibility McCormick The Law of Evidence ................................................. 5 The Trial Process .................................................................................................................... 5 Appellate Review.................................................................................................................... 6 Appellate Review of Factual Findings.................................................................................... 7 Witnesses............................................................................................................................ 7 Basic Concepts: ...................................................................................................................... 7 Spousal Competency ................................................................................................................. 8 The Oath and Its Substitute ..................................................................................................... 9 Unsworn Evidence of Children .............................................................................................. 10 Accused’s Failure to Testify ................................................................................................... 11 Examination of Witnesses ...................................................................................................... 12 Refreshing and Recording Memory ...................................................................................... 12 Cross Examination ................................................................................................................ 13 Probative Value and Prejudicial.................................................................................... 13 Effect ................................................................................................................................ 13 Burden and Quantum of Proof ...................................................................................... 15 Air of Reality ........................................................................................................................ 15 Proof Beyond a Reasonable Doubt ....................................................................................... 16 Strict Liability Offences ....................................................................................................... 16 Presumptions......................................................................................................................... 17 Appellate Review of Facts .................................................................................................... 17 Hearsay ............................................................................................................................ 18 Was it Hearsay? ...................................................................................................................... 19 Hearsay by Conduct .............................................................................................................. 20 Does it Fall Under an Exception? .......................................................................................... 20 Party Admissions Exception ................................................................................................. 21 Admissions Against Interest ................................................................................................. 22 Dying Declarations ............................................................................................................... 22 Business Records (Declarations in the Course of Duties) .................................................... 23 Former Testimony ................................................................................................................ 23 “Ouch” Exception (Statements Concerning Bodily and Mental Condition) ........................ 24 Statement About Mental Condition (Statements of Intention) ............................................. 25 Excited Statement ................................................................................................................. 25 Prior Inconsistent Statements................................................................................................ 26 The Principled Approach ....................................................................................................... 27 Two False Starts: .................................................................................................................. 28 SCC Develops the Principled Approach:.............................................................................. 28 Opinion Evidence ............................................................................................................ 31 Lay Opinion ............................................................................................................................. 31 Expert Opinion ........................................................................................................................ 32 Expert Opinion and Hearsay ................................................................................................. 34 Reliability in Novel Areas of Expertise ................................................................................. 35 Examining and Cross Examining Expert Witnesses ............................................................ 38 Credibility ........................................................................................................................ 38 Assessing Credibility ............................................................................................................... 39 Appellant court deference to Trial Courts ............................................................................ 39 Supporting Credibility of Your Own Witness ...................................................................... 40 1) Redirect examination to counter a sense of unreliability generated in cross-examination40 2) Use of expert evidence of good credibility....................................................................... 40 3) Evidence of a good reputation for veracity ...................................................................... 42 4) Evidence of prior consistent statements ........................................................................... 42 Impeaching The Credibility of a Witness ............................................................................. 45 1) Cross Examination ........................................................................................................... 45 2) Expert Examination of the Witness’ unreliability ............................................................ 46 3) Witness’ Bad Reputation for Veracity ............................................................................. 46 4) Prior Convictions .............................................................................................................. 47 Collateral Facts Bar ................................................................................................................ 49 Corroboration.......................................................................................................................... 50 Character Evidence ........................................................................................................ 52 Accused Puts his Character at Issue: Process ....................................................................... 52 S.666 of the CC..................................................................................................................... 54 Expert Evidence (For the Defence) ...................................................................................... 55 Attacking the Character of a 3rd Party................................................................................... 56 Similar Facts Evidence ........................................................................................................... 58 Character and “Similar Facts” in Civil Cases ...................................................................... 62 Improperly Obtained Evidence ..................................................................................... 63 Common Law Confessions Rule ............................................................................................ 63 Person In Authority............................................................................................................... 64 Voluntariness ........................................................................................................................ 65 Confessions Confirmed by Further Evidence ....................................................................... 67 Charter “Confessions Rule” ................................................... Error! Bookmark not defined. Illegally Obtained Evidence 24(2) .......................................................................................... 68 To Whom does it Apply: ...................................................................................................... 69 “Obtained in a Manner” ........................................................................................................ 70 “Bringing the Administration of Justice into Disrepute” ...................................................... 71 Privilege Against Self Incrimination ..................................................................................... 74 Pre-Charter............................................................................................................................ 74 Section 13 of the Charter The Law as it Stands ............................................................... 74 Derivative Use Immunity (S. 7) ............................................................................................ 77 Privilege ........................................................................................................................... 78 Class Privileges ........................................................................................................................ 79 Solicitor-Client Privilege ...................................................................................................... 79 Litigation Privilege ............................................................................................................... 83 Dispute Settlement Privilege ................................................................................................ 84 Informer Privilege ................................................................................................................. 85 Matrimonial Communications Privilege ............................................................................... 86 Public Interest Immunity ...................................................................................................... 87 Case-By-Case Privilege ........................................................................................................... 91 Protection of Third Party Records ........................................................................................ 94 Implied Undertaking............................................................................................................... 96 Proof Without Evidence ................................................................................................. 97 Formal Admissions ................................................................................................................. 97 Judicial Notice of Facts ........................................................................................................... 99 Sources and Goals of the Law of Evidence Everything that is relevant to a fact at issue is admissible unless there is a legal reason for excluding it (irrelevance/subject to exclusion under law or policy) R v. Collins Overarching Issues - Disappearance of the Jury Shift from a focus on Rules with minimal judicial discretion, to a focus on Principles with broader judicial discretion Competing Goals: accuracy, cost, fairness to the accused Sources of Evidence Law Common Law The Primary Source: o Particular facts and situations drive need for rules of evidence o Accepted that policy drives many decisions o Achieve dual ends of truth and fairness Statutes o No uniform code of Evidence Law in Canada legislative schemes must be understood with reference to Common Law principles o Canada Evidence Act, BC Evidence Act, parts of Crim Code o Legislative Schemes sometimes tailor evidence rules in specific circumstances: Controlled Drug and Substance Act/Child and Family Services Act Tribunals are often authorized to allow evidence that would be inadmissible in a trial, being much less formal o SCC has generally read statutory evidence provisions to be subservient to the Common Law judicial discretion to exclude evidence when prejudicial effect outweighs probative value Constitution o Federalism – Canada Evidence Act governs criminal prosecutions, BC Evidence Act governs provincial matters o Note: Federal evidence law can incorporate provincial evidence law through referential incorporation in s.40 of the CEA The Charter o Charter provides express constitutional protection for some evidentiary principles Presumption of innocence Right against self-incrimination Right against self-incrimination in subsequent proceedings o Charter may constutituinalize some basic evidentiary principles, if they are found to be PFJs o Charter protects important rights in the investigation of offences o Exclusionary Rule 24(1) and (2) Illegally obtained evidence will be excluded if it brings the administration of justice into disrepute o Any laws inconsistent with the Charter, including evidence rules, are of no force and effect Relevance All relevant evidence is admissible, unless it is excluded by some rule of law or policy Factual Relevance: Does the evidence at issue make a fact more or less likely to be true? “Relevance is established if, as a matter of logic and experience, the evidence tends to prove the proposition for which it is advanced” Collins Materiality (Legal Relevance): Is the evidence in relation to a fact that is relevant in this case? “Evidence is material if it is directed at the matter of the case” Collins NOTE Relevance is a function of Circumstantial Evidence - Direct Evidence With evidence that is directly perceived and directly ties the crime to the accused, relevance is not important - Circumstantial Evidence When evidence requires an auxiliary inference, relevance is always important Admissibility Evidence can be relevant yet excluded for reasons of law or policy: Reliability admitting the evidence would distort the basic fact-finding function of the court Not necessarily because the evidence is untrue, but because it is difficult to test Concern that certain types of evidence would distort the fact-finding function (hearsay, evidence of bad character) Efficiency Admission would unnecessarily prolong or confuse issues Excluding evidence that would be slightly relevant but would take so much time to deal with that it is inefficient (collateral facts rule) Competing Values Admission would undermine some value more important than factfinding I.E: Privileged evidence, Where evidence would bring the administration of justice into disrepute, Evidence that unfairly surprises the other party Residual Discretion Evidence can be excluded where the prejudicial effect outweighs the probative value Test for Admissibility McCormick The Law of Evidence 1 – Is the evidence relevant? o (a) – Is the evidence factually relevant o (b) – Is the evidence material? 2 – Is the evidence inadmissible on any ground of law or policy? 3 – Does the prejudicial effect of the evidence outweigh its probative value? NOTE: Admissibility is not the same as Weight - Evidence that is relevant, material, and not barred by an exclusionary rule or residual discretion will be admitted, but the weight given to the evidence is up to the Trier of Fact The Trial Process 1. Disclosure a. Crown is obligated to make full disclosure, burden is on the Crown to determine whether any evidence should not be disclosed because it is irrelevant or privilege issues attach Stinchcombe 2. Motions a. In advance of a trial beginning, issues are dealt with in a voir dire. 3. Crown/Plaintiff’s Case in Chief i. All evidence led in one chunk. a. Opening Statement i. Careful not to assert it will show something inadmissible b. Crown or Plaintiff’s Case in Chief Witness Examination i. Direct examination “in chief” – no leading questions ii. Cross examination – no limit on whether leading or not iii. Re-direct – any matters that arose which could not reasonably be expected. Generally no opportunity to respond to this. iv. Next witness and restart process. c. Crown or Plaintiff Closes Case 4. Motions for a Directed Verdict a. Civil – non-suit b. Criminal – Verdict of Directed Acquittal i. Basically a “no evidence” motion – there is no evidence which, even if believed, could support the cause of action/crime. 1. Question on the point of law – i.e. no weighing, all available evidence is presumed to be believed. 2. Note that one can continue to lead their case if it fails. c. Criminal – Insufficient Evidence Motion 1. Arguing that on balance it is insufficient to meet the burden of proof. 2. BUT if you lose this motion the case is over. Essentially saying that I will not call evidence. 5. Defence’s Case in Chief a. Defence Opens b. Defence’s Case in Chief i. Same process as Crown/plaintiff c. Defence Closes Case 6. Crown/Plaintiff can reopen a. A discretionary procedure only if something has come up that needs to be addressed 7. Closing Statements a. Rules are different in Criminal and Civil cases b. In Criminal, s.651(3) states that the Crown goes last UNLESS the accused called no evidence; whereas in civil the defendant goes last Appellate Review - The Right to Appeal is purely statutory – if you want to know whether you can appeal, look to the statute Accused may appeal on Questions of Law as well as other matters – Crown may only appeal on Questions of Law Hence: admissibility is often a ground for appeal, as it is a matter of law Note: The question of whether a verdict is unreasonable/unsupportable on the evidence is a question of law Biniaris An Appeal Court May: 1. Find evidence inadmissible 2. Find evidence improperly admitted but uphold the verdict if the evidence did not bring the administration of justice into disrepute 3. Substitute a verdict 4. Send the case back to a trial court Fresh Evidence on Appeal: Usually appeals deal with evidence from trial, but fresh evidence can be introduced Palmer v. Palmer Normally new evidence is only allowed if it was not available at the time of the trial and would substantially alter the result Appellate Review of Factual Findings Civil Proceedings: Courts of appeal should generally defer to judge/jury’s assessment of witness credibility. Stein v. The “Kathy K” Findings of Fact are not immutable, but they should not be reversed unless it can be established that the TJ made some palpable and overriding error (Boat accident, TJ apportioned blame 75-25, appeal judge disregarded portions of blame in favour of his own balance of probabilities appreciation of the whole event.) Held: - Trial Judge did not make a palpable and overriding error that affected his assessment of the facts; the apportionment of blame should be restored Criminal Proceeding : CC 675(1)(a)(ii) Accused may appeal on grounds of law or mixed law and fact CC 676(1) Crown may only appeal on a matter of law R v. Biniaris The test is whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered - Much easier to assess in judge alone trials because judges must give reasons - “Strong Doubt” is enough for an appellate court to review by reason the decision of a jury Witnesses Basic Concepts: Competency Is the person legally allowed to take the witness stand? o Two Kinds of Incompetence: Ability (Children, Mentally Infirm) Policy (Spousal Incompetence) o Fundamental Qualities Capacity to Perceive Capacity to Remember Capacity to Communicate Moral obligation to tell the truth Compellability Can the person be made to testify? o The general rule is that Competency implies Compellability McGinty Spousal Competency Common Law Rule: At common law, married spouses are incompetent to testify against each other concerning events that happened both before and during the marriage (Pedley v. Wellesley), unless: 1. Spouses are irreconcilable separates (Salituro) 2. The accused is charged with an offence that affected the person, liberty or health of the spouse (codified in s. 4(5) CEA) 3. The spouses are common law (presumably applies to unmarried homosexual couples) The Common Law Still applies to bar spouses from acting as witnesses for the prosecution on charges not enumerated in 4(2) and (4). Statutory Modifications: Canada Evidence Act Section 4 4(1) Except as otherwise provided for in this Section, the wife or husband of a person charged with an offence is a competent witness for the defence 4(2) and 4(4) The wife or husband of the person charged for certain offences is made competent and compellable for the prosecution IN THE CASE OF: 4(2) Sexual Crimes and Crimes against Marriage 4(4) Crimes involving violence to children 4(5) Nothing in this Section affects those cases where the wife or husband of a person may be called as a witness under the Common Law rules Remember, if a spouse is competent/compellable and does take the stand, they may be able to rely on Matrimonial Privilege under 4(3) (see below) Justifications: 1. Surviving Justifications a. Preserving the harmony of marriage R v. Bailey b. “Natural Repugnance” of compelling a spouse to be the means of their spouse’s condemnation Wigmore 2. Defunct Justifications a. Coverture b. Presumption of Identical Interests Possible Solutions: Changes to the rule may be preferable, but should be left to the legislature Hawkins 1. Make spouses competent but not compellable – preserve the right not to testify adversely (adopted in the UK and the USA) 2. Make spouses competent and compellable – thus removing the choice of whether to testify against the spouse or not R v. Salituro Adaptation of the Common Law rule Spousal incompetency rule does not apply to irreconcilably separated spouses (Man convicted on the testimony of a spouse from whom he is separated with no reasonable chance of reconciliation) - Judges can alter the Common Law when to reflect changing social realities, and must when - the common law rule is inconsistent with Charter values (as in this case) Grounds for spousal incompetency applying to irreconcilably separated spouses are inconsistent with Charter value of respect for individuals HOWEVER – the pattern of legislative change does not denote an intention by Parliament to eradicate the spousal incompetency rules, they are peripheral adaptations to the code R v. Hawkins The Spousal Incompetency rule still exists until changed by Parliament, and courts will not investigate into the reasons behind a marriage (Undercover officer goes bad, leaves wife for dancer, married dancer after she gave initial adversarial testimony, she later changed her testimony and the Crown could not compel her due to the spousal incompetence rule) - Marriage after testimony can still be genuine, and marital unity should be protected - There may an exception to Courts not investigating the reasons for a marriage when the evidence clearly shows that the purpose for the marriage was to avoid criminal responsibility by rendering a key witness uncompellable Note: LHD Comment Barring a spouse who wants to testify from doing so under the spousal incompetency rule may be an infringement of equalized interests under the Charter R v. MgGinty (1) Spouses are competent and compellable witnesses against their spouses in cases of violence against them (2) The Common Law historically regards Compellability following inevitably from Competency (Wife charged with serious assault on her husband – husband later compelled to testify under 4(5) – spouse is competent to act as a witness where the crime goes to the liberty, health or person of their spouse) - Husband is not only competent to give testimony, but compellable (compellable flows from competent) The Oath and Its Substitute To testify, a witness must give some indication that they are being truthful – this indication used to be based on belief in a supreme being that would ensure punishment, now a solemn affirmation is acceptable. - solemn affirmation was originally allowed in place of an oath for religious denominations (quakers, etc.) who did not swear oaths, not for agnostics or atheists, and eventually expanded to include anyone who does not want to swear an oath Be Aware of The Changes to CEA Section 16 Three Versions: 1. P.55 2. P.58 Still the law when challenging an adult on competency to testify 3. P.62 Applies to Children (16.1) R v. Bannerman Elimination of the necessity of understanding the spiritual consequences of an oath (Accused convicted of statutory rape and indecency, appealed on the grounds that the witness did not understand the nature and consequences of an oath) - All that is required is an appreciation of the moral obligation flowing from the oath R v. Walsh It is sufficient for a witness to understand the penal consequences of not telling the truth in court, if not the moral obligation (Crown appeals trial judge’s ruling that a self-professed Satanist was incompetent to testify because she did not recognize a moral obligation to tell the truth in court) Unsworn Evidence of Children R v. Kahn First Alteration of s.16 of the CEA Page 58 Doctor sexually assaulted girl, trial judge aquitted – held that child was not competent to give evidence (and that the statements of the child to her mother were hearsay) - Judge erred in applying the rigorous test of whether the child understood an oath or solemn affirmation, and in assuming that a 4y/o child was prima facie too young to give testimony - It was enough that the child was of sufficient mental capacity - Judges have the authority to make a subjective assessment of whether children are of sufficient mental capacity to testify Alteration: A child can give evidence if they understand the moral obligation to tell the truth and have the ability to communicate This is still the law when dealing with adults whose capacity to give evidence is challenged (mental capacity) 16(1) Where a proposed witness is (under 14 years of age or) a person whose mental capacity is challenged, the court shall, before permitting the person to give evidence, conduct an inquiry to determine: (a) Whether the person understands the nature of the oath or solemn affirmation (b) Whether the person is able to communicate evidence (2) A person referred to in (1) who understands the nature of an oath/affirmation and can communicate shall testify under oath/affirmation (3) A person referred to in (1) who does not understand the nature of an oath/affirmation but can communicate may give evidence on a promise to tell the truth (4) A person who does not understand the nature of an oath/affirmation and cannot communicate may not testify (5) The Party who challenges the mental capacity of a person referred to in (1) has the burden of satisfying the court that there is an issue as to capacity R v. Marquard Second Alteration to s.16 of the CEA Page 62 (Woman convicted of assaulting a child in her care (burning her on a stove), appealed on the grounds of multiple procedural errors) - “able to communicate the evidence” means more than just the ability to communicate, it requires a judge to inquire into a witness’ (a) capacity to observe (b) capacity to recollect and (c) capacity to communicate - testimonial capacity is not presumed for children under s.16 NOTE: this was reversed by the subsequent alterations to 16(1) outlined below Alteration: This is now the law when dealing with children Child can give evidence when they have the capacity to communicate and promise to tell the truth 16(1): 1. Testimonial Capacity is presumed 2. A Proposed Witness under 14 SHALL NOT take an oath or solemn affirmation 3. Proposed evidence shall be received if the are able to understand and respond to questions 4. Party challenging the capacity of the child bears the burden of satisfying the court that there is an issue as to capacity 5. If the court is satisfied that there is an issue, it shall conduct an inquiry into the child’s ability to understand and respond to questions 6. Child must promise to tell the truth 7. No proposed witness under 14 shall be asked any questions regarding their understanding of the nature of their promise to tell the truth for the purposes of determining whether their evidence will be received 8. Evidence of a witness under 14 that is received by the court shall have the same effect as if it were taken under oath Accused’s Failure to Testify CEA 4(6) the failure of a person charged, or the wife or husband of that person, to testify shall not be made the subject of comment by the judge or counsel for the prosecution - (judges and juries in Trial Courts cannot take accused’s failure to testify into account, but judges in appellate courts can!) The Cases below enumerate contradicting principles on the ability of the judge to instruct juries on the accused’s right not to testify McConnell and Beer v. the Queen (1) Judges cannot comment on the accused’s failure to testify, but they can make comments that explain the right of the accused not to testify to the jury. (2) Judges must not be restricted in their ability to explain the law to juries. (Man found in car with housebreaking tools and partner beneath open window – neither accused appeared as witness, judge instructed that jury did not have to accept unsworn claims, and later clarified that jury was not to be swayed by the fact that neither accused appeared as a witness) - The impugned statement must be considered in the light of possible prejudice to the accused - Language used by the TJ was not a “comment” so much as an explanation of the law Dissent: A comment is a comment, Parliament did not specify “prejudicial” or “adversarial” comments R v. Noble (1) The silence of the accused may not be used as a piece of evidence against him/her (2) Under 4(6), a judge cannot instruct a jury not to hold an accused’s silence against them, and courts cannot speculate on a jury’s reasons (Man charged with B&E – trial judge convicted in part based on accused’s failure to testify in trial) Principle (1) - Based on the Right to Silence and Presumption of Innocence - Silence of the accused must not implicitly – Burden is always on the Crown to prove guilt BRD - Reasonable References: o If Crown has proved guilt BRD, silence of the accused can be used to infer lack of evidence to raise a reasonable doubt o Judge trying the case alone may use silence of the accused to indicate that he/she need not consider possible defences that have not been offered Principle (2) - Appears to contradict the principle in McConnell Possible Ways Around: - Judge alone trials, probably not restricted from commenting to his/herself - Counsel for defense can make appropriate comment on the issue - Co-Accused can make comment on the issue Dissents (probably the state of the law before Noble): - McLachlin – adverse inference can be drawn from the accused’s silence once the Crown has established a “case to meet” - Lamer – adverse evidence can be drawn from the accused’s silence where “the accused is enveloped…in a strong and cogent net of inculpatory facts” Exception Alibi Defence (Vezeau) - - If an alibi defence is not disclosed at a sufficiently early time to allow police investigation prior to trial, the trier of fact may draw adverse inference from an accused’s failure to testify (because such evidence can be easily fabricated) This is a PFJ, and thus under s.7 it may trump the presumption of innocence and right to silence Examination of Witnesses All evidence must be given or identified through a witness Two Types of Examination 1. Examination in Chief a. Questions on contentious issues should not be leading b. Can lead witnesses on preliminary matters or non-contentious matters, in the interests of efficiency 2. Cross Examination a. Leading questions are the standard b. Witnesses can be examined on the case or to cast doubt on credibility c. Accused cannot normally be questioned to cast doubt on credibility d. Accused may not be cross examined on failure to respond to questions from police, failure to advance a defence, or motive for presenting exculpatory evidence Testimonial Factors: Trier of fact may make inferences about a witness’: 1. Use of language 2. Sincerity 3. Memory 4. Perception Refreshing and Recording Memory (1) Present Recollection Revived - A witness is entitled to refresh his/her memory by any means that is necessary to rekindle recollection – whether or not the means is itself admissible Fliss o Inadmissible things may rekindle memory, because the evidence is the memory and testimony itself, not the inadmissible thing (2) Past Recollection Recorded - Where a witness cannot remember the events in question, he/she may refresh his/her memory from a record of past recollection that: Meddoui o Recorded in some reliable way o Sufficiently vivid and fresh when recorded o Witness can assert now that the knowledge accurately represented his/her knowledge and recollection at the time o The record is the original record itself, if procurable Record itself is evidence and thus subject to admissibility criteria Cross Examination Obligation to Cross Examine a Witness one Intends to Contradict Rule in Browne v. Dunn It is essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth to a particular point, to direct his attention to the fact be come questions put in cross-examination - (if you are going to allege an important fact that pertains to a witness, you should give that witness an opportunity to give his/her version of that particular fact) R v. Lyttle Questions can be put to witnesses in cross regarding matters that need not be independently proved, provided the counsel has a “good faith” basis for putting the question (Victim beaten by 5 men, claimed it was over an alleged theft. defence claimed it was due to a drug deal and that the victim identified the accused to cover for the real perpetrators) - Overrides the old rule which held that counsel could not put a question to a witness regarding matters that counsel could not independently prove Howard - Information used to put questions to the witness may be incomplete or uncertain, as long as it is not given recklessly or with the knowledge that it is false - Constrained by counsel’s duty as an Officer of the Court Probative Value and Prejudicial Effect See Seaboyer – the leading case (below) R v. Watson (1) All relevant evidence is admissible, the Court does not undertake consideration of the sufficiency of probative value (2) Character Evidence Rule Evidence suggesting that an accused is of bad character is subject to an exclusionary rule (Accused was at the scene with two others, shots were fired, victim died and accused’s associate was shot, accused charged with second degree murder (aiding) – case hinged on evidence of whether victim habitually carried and gun, and whether it was likely that it was a spontaneous gunfight or an execution) - In this case, the evidence was relevant and its probative value outweighed its prejudicial effect Principle (1) - All relevant evidence is admissible unless subject to an exclusionary rule, it is up to the trier of fact to weigh the evidence Principle (2) - Evidence suggesting that an accused is of bad character is normally subject to an exclusionary rule - Exception: In a criminal case, otherwise relevant evidence that suggests that the deceased or some third party is of bad character is admissible unless its probative value is outweighed by its prejudicial effect Types of Evidence: 1. Evidence of Habit inference of conduct based on past conduct 2. Evidence of Disposition Inference of the existence of a state of mind based on past conduct that makes certain conduct more likely R v. Morris (1) Broad definition of relevance from Watson is upheld (2) Court split on the Principles of Admissibility – the majority held that circumstantial evidence with low probative value was admissible, but the law now holds that the court must balance the probative value against the prejudicial effect (Accused changed with conspiracy to import heroin from Hong Kong – no strong evidence linking Morris with the criminal group in Canada – newspaper clipping about heroin trade moving to Pakistan found in Morris’ house) - Majority following Wray, held that the newspaper clipping was item of circumstantial evidence that had fairly low probative value but was still relevant and should therefore be allowed - Minority In Synch With the Later State of the Law: o Evidence is relevant, though with minimal probative value, and high prejudicial effect (evidence cast aspersions on the accused’s character, and was not saved by an exception) and should thus be excluded Note: Seaboyer strikes down 276 Rape Shield legislation because it unfairly excludes evidence and restricts accused’s right to a fair trial, but also modifies the existing Common Law rules, which would allow for “twin myth” evidence. - Emphasis is put on the balancing of Probative Value v. Prejudicial Effect R v. Seaboyer (1) All relevant evidence should be admitted subject to the qualification that the value of the evidence must outweigh its potential prejudicial effect to a fair trial (PFJ) (Residual Judicial Discretion) (2) Rule is different for Crown and Defence: - (a) For DEFENSE evidence to be excluded, the prejudicial effect must substantially outweigh the probative value - (b) For CROWN evidence to be excluded, the prejudicial effect must simply outweigh the probative value (Rape shield provisions (276) restrict defense from introducing evidence of a complainant’s sexual conduct on other occasions) - 276 unconstitutionally restricted the right to make a full answer in defence and infringed on the right to a fair trial o Supersedes judges discretion in consideration of PV v. PE o Eliminating broad categories of admissibility cannot anticipate the multitude of circumstances that can arise in sexual assault cases - Trial Judge must: o Assess whether the evidence demonstrates a “degree of relevance” that outweighs its prejudicial and harmful effects o Ensure that, in those exceptional cases where such evidence is permitted, the jury is fully and properly instructed Burden and Quantum of Proof Evidentiary Burden: Obligation on a party to simply adduce some evidence that supports their argument Persuasive Burden: A burden of Proof - Criminal: Always on the Crown (except in reverse onus situations, where it is a balance of probabilities) - Civil: Usually on the plaintiff (on a balance of probabilities) What if there is No Proof? - - Civil Trial Defense of non-suit o (1) Now that the plaintiff has closed it’s case, the case should be dismissed on the grounds that there is no evidence of one of the essential causes of action Defense can make this motion with no penalty o (2) Now that the plaintiff has closed it’s case, the case should be dismissed on the grounds that there is insufficient evidence of one of the essential causes of action Defense cannot make another case after this motion Criminal Trial Motion for Directed Verdict of Acquittal o Assuming the Crown’s evidence is true, motion to have the judge dismiss the action because the Crown has adduced so little evidence that no reasonable jury, properly instructed and acting judicially, could convict Criminal defense essentially combines civil defenses of non-suit Motion can be made with no cost Where there is circumstantial evidence that will involve auxiliary inferences, SCC has said it is reasonable for judges to weigh the evidence in deciding whether a reasonable jury acting judicially could convict Air of Reality Before a judge is obliged to put an affirmative defense to a jury, there must be some element of the defense that has an air of reality R v. Pappajohn A defense should be put to a jury if and only if it is established on an evidentiary burden Cinous - (1) A judge should put all defenses for which there is some evidence to a jury (even if not specifically raised by the accused) - (2) A judge has a positive duty to keep from the jury any evidence lacking evidentiary foundation Evidentiary Burden (not persuasive) Defense must have some evidence of each defense that is raised – not a full reverse onus, simply some evidence which would justify the putting of a defence to a jury Proof Beyond a Reasonable Doubt R v. Oakes enshrined proof beyond a reasonable doubt as part of the 11(d) presumption of innocence Explaining the Meaning of PBRD R v. Lifchus INSTRUCTION - Explaining to juries the meaning of “reasonable doubt”, judges should avoid: o Describing the term as an “ordinary concept” o Describing the standard as “moral certainty” o Qualifications on the word “doubt” other than reasonable o Implying that reasonable doubts are only those for which a specific reason can be articulated - Explaining to juries the meaning of “reasonable doubt”, judges should instruct: o reasonable doubt cannot be based in sympathy or prejudice o not to apply the civil standard (for jurors who have been part of civil trials) o burden rests on prosecution always o reasonable doubt must be connected to evidence or absence of proof o more is required than a belief that the accused is “probably guilty” R v. Morin It is not necessary for a jury to believe the evidence on any one issue – it is sufficient that the jury acquit when, with a view to all the evidence, the jury is left in a state of reasonable doubt as to the accused’s guilt trial judge instructed jury to examine every piece of evidence and discard those for which there was reasonable doubt – accused acquitted, Crown appealed on the grounds that this instruction would lead to confusing and time-consuming trials. Held: - Court rejects the “Two-Stage Process” advocated by trial judge o apply reasonable doubt standard to each piece of evidence, abandon those that fail, and then look at the evidence that is left and apply the reasonable doubt standard again - (1) Juries should be instructed not to apply the reasonable doubt standard to individual facts in a vacuum - (2) Where credibility is being challenged, the jury should be charged along the lines taken by Justice Morden in Challice Problem: facts which are doubtful will be used to establish guilt Sopinka’s Solution: a chain is only as strong as its weakest link Strict Liability Offences Sault Ste. Marie Strict Liability developed as a middle ground between absolute liability cases where Crown only had to show AR, and cases where Crown had to prove full MR beyond a reasonable doubt Presumption of Strict Liability unless Parliament makes it absolutely clear that they exclude due diligence defenses (absolute liability) the court will presume Strict Liability Strict Liability - Defense is Due Diligence Upon the Crown proving beyond a reasonable doubt that the AR is made out, the burden shifts to the accused to prove due diligence on the balance of - probabilities MR of basic carelessness becomes part of the defense Constitutionally acceptable to reverse onus of proof in due diligence strict liability offences Wholesale Travel Group Absolute Liability - Upon proof by the Crown beyond a reasonable doubt that the AR is made out, the accused is found guilty - Constitutional Limit Cannot have absolute liability and a risk of loss of liberty BC Motor Vehicles Act Presumptions Presumptions must be distinguished from: - Definitions - Permissive inferences i.e. jury is free to presume a person intended the consequences of their actions REBUTTIBLE PRESUMPTIONS - When one fact is established, another is assumed o i.e. if you are found drunk in the front seat of a car, you are presumed in care and control of a motor vehicle - UNLESS the opposite party either: o (i) adduces some evidence to the contrary (mandatory presumption) Evidentiary Burden o (ii) proves the contrary on a balance of probabilities (reverse onus) Balance of Probabilities Although generally only reverse onus clauses run afoul of the presumption of innocence in s.11(d) of the Charter and have to be justified under s.1, it is possible for a mandatory presumption to do so as well. Appellate Review of Facts The right to appeal is a purely statutory right Civil Proceedings The “Kathy K” findings of fact are not immutable, but they should not be reversed unless it can be established that the trial judge made some palpable and overriding error which affected his assessment of the facts Criminal Proceedings - Crown can only appeal matters of law, defense can appeal mixed fact and law o However, the question of whether a verdict is unreasonable/unsupportable by evidence is a question of law Biniaris - Generally, the same principle as civil trials (palpable and overriding error) R v. Biniaris Test for whether an appellate court should overturn the finding of a trial court is whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered - Easier to assess in judge alone trials (b/c there are reasons) - In jury cases, appellate courts can rely on a sense that a properly instructed jury can come to - an unreasonable conclusion only as a basis for investigating by reason the logical inconsistencies Strong doubts are not enough to overturn a finding, but they can be the basis for appellate review Hearsay Development of the law: In our adversarial system, parties are in control of the evidence (as opposed to a magistrate) We rely heavily on evidence presented in court – that is why we require crossexamination We have a choice between admitting evidence and weighing it, or ignoring it because it is dangerous. In the case of hearsay we ignore it – but there is a recognition that sometimes there is value to the evidence. Thus, there are exceptions to the exclusionary rule. Over time, dozens of exceptions developed = categorical approach to hearsay o This approach became too complex (there were so many exceptions) o The approach became incoherent – some of the exceptions were no longer convincing o The approach just stopped working – there were statements that seemed unreliable but were admitted because they fit an exception. At the same time, there were reasonably reliable statements that were excluded because they did not fit an exception. This led to the Principled Approach, first developed in Kahn o It was a move to orient the rules back to the hearsay dangers – a principled return to the conceptual foundations of hearsay = the necessity and reliability of evidence o Hearsay can be admitted if it is necessary and reliable – even if it does not fall under an exception o After Khan, it was unclear whether this test was restricted to the hearsay of children, or whether it applied generally In Smith, the SCC confirmed that the Principled Approach is a general rule – it applies to all hearsay After Smith/Khan, it was unclear what the relationship between the new principled approach and the old exceptions was. Two theories emerged: o Categories + Principled Approach: the principled approach was only to admit hearsay that did not fall under a category. The point of the principled approach is to admit more hearsay evidence o Principled Approach over categories: even if hearsay fits in a category, it can still be excluded if it does not fit the principled approach. The principled approach prevails – the exceptions are simply concrete examples of the application of the principled approach In Starr, the SCC cleared this up – the relationship between the new and old approach is that the Principled Approach Prevails o Can always admit or exclude evidence based on the principled approach o Even if hearsay falls into an exception, it can be excluded based on the principled approach Hearsay analysis: R v. Mapara 1. Is the evidence hearsay? If the evidence is hearsay, it is presumptively inadmissible 2. Does the evidence fit into an established categorical exception? If so, the evidence is presumptively admissible This presumption can be rebutted with the principled approach: if the evidence is not necessary or reliable, it will be excluded. 3. If the evidence does not fit into an exceptional category, can it be admitted under the principled approach? (Kahn/Smith) a. The evidence must be necessary = the direct evidence from the declarant is not reasonably available I.e. because of death, incompetency, illness, out of country, trauma of testifying… b. The evidence must be reliable = despite not having access to the normal tools of cross-examination, observation, and oath, are we nevertheless satisfied of the reliability of the evidence? There are two ways to show reliability There are circumstantial guarantees of trustworthiness – the possibility of lying is negated by the circumstances The truth and accuracy of the statement can sufficiently be tested by means other than oath/observation/cross-examination 4. Hearsay evidence is still subject to the residual discretion the probative value of the evidence must outweigh the potential for prejudice Was it Hearsay? 1 + 1 = 2 Formula - (1) Out of court statement - (2) Offered for the truth of its contents According to Foster Hearsay is evidence, the probative value of which depends on the credibility of someone who cannot be examined According to the SCC in Kelewan Statement that is: (1) introduced for the truth of its statement (2) accompanied by a lack of opportunity to cross examine What is NOT HEARSAY? Subramaniam v. Public Prosecutor - S was accosted by insurgents and made to carry ammunition for them, which was a crime, he was charged and the defense argued duress. S attempted to introduce evidence of the bandits’ threats to him, and the trial judge refuses to admit it as hearsay - Not hearsay out of court statement, but not admitted for its truth o Only relevant for the fact that the bandits threatened him, not whether the threats were true R v. Wildman - Mrs. Wildman’s evidence was excluded by spousal incompetence (would not be today). Issue for hearsay was the witness reproducing a telephone call. Telephone call offered an explanation for why the accused knew before anyone else that the victim was killed with an - axe. Not hearsay out of court statement, but not admitted for its truth o we don’t care about the truth of the statements that the accused made, what we care about is that the witness in court had told the accused about the axe murder, and that it was potentially the reason he knew of the details before others Hearsay by Conduct Out of court statements admitted for the truth of the statement can conceivably be made through conduct The Historical Rule Wright v. Tatham Out of Court statements admitted for their truth can be made through conduct English lord died, left everything to his manservant, family attempted to prove that the Lord was incompetent to make a will case turned on letters written to Lord Marsden, if the letters were admissible he appeared to be competent (letters appeared to have been written to someone who was competent) Held: - Letters are Inadmissible the writing of the letters represent statements by out of court persons about the sanity of Lord Marsden which are relevant for their truth Issue R v. Wysochan The first in a series of cases that goes against Wright v. Tatham, seems to say that hearsay by conduct is untenable. Accused of murder, only two possible murderers: Wysochan and her husband. Issue in the case was that upon the arrival of the police, the deceased made statements to husband and ambulance attendant (she was hot, had been shot, and was asking for her husband). Defense held that these statements were hearsay by conduct, since they implied that she was comfortable with her husband, and that therefore Wysochan must be the killer. Held: - Court ignores possible hearsay by conduct - The Court held that they were NOT offered for the truth of their (implied) contents – they were just offered as the circumstances surrounding the event. Everything surrounding the event is relevant and the jury must hear and infer what they will. Possible Resolution McKinnan The hearsay rule will not be attached to non-assertive conduct this is a US case, but likely an indication of the future of Canadian law Accused of murder, evidence that the wife had led the police at the place that the body was buried. Defence argued the action of showing the police was hearsay by conduct, since it implied that her husband had told her where the body was. Held: - It is possible to have conduct constitute an out of court statement admitted for its truth, but only assertive conduct o e.g. pointing at a person - This is circumstantial evidence from which the trier of fact must be free to draw an inference Does it Fall Under an Exception? RULE: The old categorical exceptions remain in place, and if hearsay fits into an exception, it is presumptively admissible Despite the establishment of the Principled Approach, the exceptions are still important – they retain predictability in the law of hearsay (Starr) The old categories were built on the assumption that the exceptions represented circumstances where there were alternative guarantees that the statements were necessary and reliable – the categories are simply concrete examples of the application of the Principled Approach (Starr) Thus, if hearsay fits into a categorical exception, it will be presumptively admissible (Starr) BUT: if an exception conflicts with the Principled Approach, the Principled Approach must prevail (Starr) Party Admissions Exception RULE: Any statement by a party to the trial, offered by an opposing party, is admissible for its truth - “an admission is a statement made or an act done by a party to a lawsuit which is or which amounts to a prior acknowledgment that some fact is not as he now claims it to be” - A party can hardly object that he had no opportunity to cross-examine himself or that he is untrustworthy of evidence save when he is speaking under the sanction of an oath (Morgan, Basic Problems of Evidence) (1) Statements under this exception are only admissible against the person who made it (2) This exception only applies to parties to the litigation Wrinkle Adoptive Admissions - when something is said in the presence of the accused, in circumstances where it would be reasonable for the accused to deny it, the party seeking to enter the statement can argue that the other party adopted it by their silence Wrinkle Admissions by Agents - In Civil Proceedings: Wigmore if the statement made by the employee/agent was made concerning what the employee/agent had been retained to do, then it will be deemed to be a statement of the principle - In Criminal Proceedings: evidence that the old rule may still apply if you were not authorized by the principal to make such statements, the statement will not be considered to be the principal’s (this is much more strict, basically only attorney’s are “authorized” to speak) Wrinkle Party Criminal Cases where accused are charged as parties/conspiracy - Anything said in furtherance of the common purpose (in furtherance of conspiracy in a conspiracy case) is admissible against all members of the conspiracy or parties that shared the common purpose - Note: Once the parties are arrested, the “common purpose” is over, so statements made by one party after that point can no longer be admitted against the other Issue With the Party Admission Exception: - Party admissions exception only operates when opponent party seeks to enter the evidence - Therefore, defense cannot introduce the exculpatory statements of the accused (usually to the police upon arrest) because they are usually classic hearsay and the party admissions exception is not available - As well, the Principled Approach will probably not operate to include this evidence, since exculpatory statements by the accused probably fail the tests of reliability and necessity Admissions Against Interest Exception operates if: - The declarant is unavailable (re: dead); and - The statement was made against the party’s pecuniary or proprietary interests Also: After O’Brien - The exception is available to statements that are made against the party’s penal interests - But only if: o The declarant apprehended a vulnerability to penal consequences o The vulnerability is immediate – not remote o The situation must be taken as a whole – if it is not contrary to penal interests in its totality, the statement is NOT admissible o If it is unclear whether the statement is against penal interests, the court must consider whether there are other circumstances linking the declarant to the crime or between the declarant and the accused\ o The declarant must be unavailable Lucier v. The Queen The Admissions against interest exception is much more strict for statements made against a party’s penal interests Hearsay declarant was the man that had set the fire for which the accused was charged with arson – declarant said “Lucier hired me to torch his building”, then he died Held: - Though it seems admissible under the admissions against interest exception (as against his penal interests) it was excluded - The more prejudicial to the defendant, the more strictly the statement will be assessed Principled Approach: Can argue that hearsay under this exception should be excluded under the Principled Approach Statements against penal/financial interest are seen as reliable because it is unlikely that people would put their liberty/money at stake if the statement was not true o Can argue unreliability because sometimes people actually want to take the place of the accused o Example: parent who wants to exculpate child, organized crime, etc… Dying Declarations Exception operates if: - (1) it is a homicide trial where the accused is charged with the death of the hearsay declarant - (2) When the statement was made, the declarant had a “settled and hopeless expectation of impending death” - (3) The statement relates to the death Theoretical guarantee of reliability people do not want to die with a lie on their lips Principled Approach: Can argue that hearsay under this exception should be excluded under the principled approach Can argue that the statements were not reliable – there was a reason to lie o No religious motivation to tell the truth on the death bed o Lied to get vengeance, benefit a family member, etc… Business Records (Declarations in the Course of Duties) At common law, Business records were available if (Ares v. Venner) o They were made reasonably contemporaneously with the transaction o They were made in the ordinary course of duty o By persons with knowledge of the matters o Who are under a duty to make the record/report o And there is no motive to misrepresent the matter Statute has displaced the common law o S.29 of the CEA: records from financial institutions are admitted for their truth, unless there is evidence to the contrary o S.30 of the CEA: if evidence could be admitted orally, a record made in the course of business is admissible S.30(2) of the CEA: “business” means any profession, trade, calling, etc… but does NOT include legal proceedings Principled Approach: This is a broad exception to the hearsay rule, and it is difficult to argue that evidence under this exception should be excluded under the Principled Approach The evidence is necessary because it is difficult to get the particular business person who made the records to the trial The evidence is reliable because there is no reason to lie, businesses rely on such records and so they are accepted as accurate, and the records are made at the same time as the event. Former Testimony Common Law Exception: witness testimony from prior judicial proceedings can be admitted if the party shows that: i. The witness is now unavailable (thus the evidence is NECESSARY) ii. The issues and the parties at both the proceedings are substantially the same (ensuring that the key issues have been explored, and thus making the evidence RELIABLE) iii. The party against whom the evidence was tendered had the opportunity to cross-examine at the prior judicial proceeding (thus ensuring some RELIABILITY) Statute has now displaced the common law in both the criminal and civil context Criminal law context: S.715 of the Criminal Code o A witness whose evidence was given at a prior judicial proceeding of the same charge o Who refuses to be sworn or is now unavailable (and so the hearsay is necessary) o Whose testimony was given in presence of the accused (and so the hearsay is reliable because the accused could cross-examine) may be admitted without further proof. o UNLESS: the accused proves he did NOT have full opportunity to cross- examine the witness R v. Potvin S.715 of the CC does not violate an accused’s s.7 and s.11(d) rights o S.715 excludes testimony at prior judicial proceedings if the accused did not have an opportunity to cross-examine o It is about the opportunity to cross-examine. If the accused had the opportunity to cross-examine, but chose not to, that is too bad. Sometimes, however, it is unfair for the Crown to use testimony from prior judicial proceedings o If the Crown did not try to get the witness to trial o If the Crown knew the witness would not be available for trial and did not tell the accused (thus depriving the accused of the opportunity to cross-examine on issues like credibility) Judge retains the discretion to exclude prior judicial proceeding testimony if the probative value does not outweigh the potential for prejudice (Potvin) Civil context: Rule 12-5(54) BC Supreme Court Civil Rules o Prior judicial proceeding testimony may be admitted if the witness is dead or unable to attend/testify o Whether or not the prior judicial proceeding involved the same parties o BUT reasonable notice must be given of intention to use that evidence Rules are more relaxed in the civil proceedings context Entering Verdicts from Prior Criminal Proceedings at Civil Trial: - BC Evidence Act s. 71 o When you want to use the verdict against the defendant as a Prima Facie proof of the defendant’s liability - R v. Demeter o Man convicted of murder, tries to claim insurance policy. Insurance company allowed to rely on the previous conviction as prima facie proof of liability Principled Approach: It is difficult to argue that evidence under this exception should be excluded under the Principled Approach The evidence is necessary because the witness is unavailable The evidence is reliable because the accused has the opportunity to cross-examine and the key issues have been explored “Ouch” Exception (Statements Concerning Bodily and Mental Condition) Hearsay statements about a particular physical condition, made in a natural manner, are admissible o BUT only to prove that the person was experiencing the condition at the time and to establish its duration o This exception is limited to statements made about physical condition under natural circumstances (ie: without prompting, at the time of the event, etc…) o Statements about past pain or statements about why the physical condition occurred are NOT admissible Youlden v. London Guarantee and Accident Co. Example of Statement concerning Physical Condition Exception Man lifted very heavy timber and exclaimed to his friend that he believed he had hurt himself, he later died from gastroenteritis which could have been caused by the strain of lifting or tainted icecream Held: - Statement admissible - Statement contemporaneous with injury, made under neutral circumstances Statement of Intention (Statement of Mental Condition) Explicit statements about mental state (ie: emotions, intentions, motives, plans, etc) are an exception to the hearsay rule - Can be considered an extension of the exception concerning bodily and mental condition an intention can be considered to be a mental condition - Admissible principally because contemporaneous evidence is the best way to discern the existence of an intention The Law Established Mutual Life Insurance v. Hillmon When intention itself is a distinct and material fact in a chain of circumstances, it may be proved by contemporaneous oral or written declarations of the party Case hinged on identity of a body (Hillmon or Walters). Case hinged on admissibility of letter in which Walters expressed an intent to go from Wichita to the place where the body was found Held: statement admissible The Law Falters for a While: - R v. Wainwright: Restricted Rule: To be admissible, the statement of intent must not an be “an incidental remark” - R v. Thomson: Intention statement is not admissible The Law Back On Track R v. P(R) (1) Explicit Statements of intent or design are admissible both: a. to show the intention and design; and b. as circumstantial evidence that the speaker followed through that that intention or design (2) Onus is on the accused to show that balance favours exclusion of otherwise admissible evidence Crown seeking to introduce statements made by the deceased which give evidence of her state of mind (anger and dissatisfaction with the state of a relationship) Held: Statement Admissible Excited Statement (Res Gestae) Exception for statements made in the context of events with such spontaneity that concoction was unlikely Old cases insist that the statement be contemporaneous with the event – this is no longer the case the test is now clearly spontaneity Ratten v. The Queen Excited utterances are an exception to the hearsay rule Issue was whether the operator could reproduce the statement made to her over the telephone just before she was shot. Accused argued he had been cleaning his shotgun and accidentally shot his wife. Crown wanted to show that someone had called the police in an excited state moments before the shot. Held: - Even though this statement is likely not hearsay – it would be admissible anyway, because it was an excited utterance, made spontaneously and in such a situation that the declarant would be unlikely to lie Principled Approach: Can argue that hearsay under this exception should be excluded under the Principled Approach They are considered reliable because under such stress/excitement, there is no chance to make up a lie HOWEVER: can argue that it is NOT reliable because the declarant could have been mistaken Prior Inconsistent Statements If a witness makes a statement in court that is inconsistent with a statement that he/she made before, the previous statement is technically hearsay Orthodox Hearsay Rule: If a witness sticks to the changed testimony in court, the statements made out of court will be hearsay (only be admissible as evidence that the witness changed their story) Ways to Adopt a Statement: - Past Recollection Recorded - Present Memory Refreshed K(GB) Special Strict Principled Approach for Prior Inconsistent Statements: o Reliability Will be satisfied where circumstances guarantee the required degree of trustworthiness: (1) statement was made under oath (2) following the administration of a warning of the potential consequences (3) statement was videotaped (4) opposing party had full opportunity to cross-examine the party Note: court does not foreclose on the possibility of other potential guarantees of reliability under the principled approach – but most cases with prior inconsistent statements require the KGB standard o Necessity Necessity must be given a more flexible definition, in the case of prior inconsistent statements, because the declarant is available Lower necessity can be balanced by higher reliability The Principled Approach RULE: Otherwise inadmissible hearsay evidence (ie: hearsay evidence that does not fall under an exception) can be admitted under the principled approach if it is necessary, reliable, and its probative value outweighs its potential for prejudice (Khan, Smith) The rationale for the new principled approach to hearsay is the same as the old rationale for the exceptions (Smith) The principled approach is the triumph of a flexible principled approach over ossified judicially created categories (Khan) TEST: Should otherwise inadmissible hearsay evidence be admitted? (Khelwon) 1. Is the evidence necessary? Is direct evidence from the declarant not reasonably available? (Hawkins) o Is the declarant dead, incompetent, ill, out of the country? o Is the trauma in testifying too much? (Smith) Hearsay evidence is necessary in the case of prior inconsistent statements because the only way to get the statement is through hearsay the witness holds the statement hostage (KGB) 2. Is the evidence reliable? The court is looking for threshold reliability – not ultimate reliability. (Hawkins) o Looking for sufficient guarantee of trustworthiness o Ultimate reliability is for the jury There are TWO ways to show reliability o (1) Show that there are circumstantial guarantees of trustworthiness – the nature of making the statement and the circumstances surrounding the statement make it reliable. There are indicia of reliability No motive to lie? (ie: the statement wasn’t made in anticipation of litigation) (Kahn) Was the declarant capable of lying – did she do other deceitful things? (Smith) Corroborative evidence CAN be used to show threshold reliability (Khelewon) o (2) Show that the truth and accuracy of the statement can be sufficiently tested by means other than oath/observation/cross-examination – show that there are functional substitutes for oath/observation/cross-examination Examples: videotape, audiotape, oath, warnings about consequences of lying… Prior inconsistent statements will admissible for the truth of their contents when there are substitute means for testing their reliability (KGB) When the statement was made under oath or with warnings about the consequences of lying (substitute for the oath) When the statement was videotaped (substitute for observation) When the witness can be cross-examined to explain the prior inconsistent statement and say why it is not true (substitute for cross-examination) Two False Starts: Myers v. Director of Public Prosecutions accused convicted of stealing cars and selling them as “wrecked” cars which had been purchased with legitimate paperwork. Prosecution sought to enter evidence of cards written by mechanics which described features of the wrecked cars when they were purchased Held: - technical laws of hearsay exclude this evidence, so it must be excluded Minority Judgment - Widens hearsay exceptions to include business records (on the grounds the they satisfy the underlying principles of the hearsay exceptions – reliability and necessity) BUT does not establish a principled approach - Minority Recognizes that: o “To exalt the practice above the principle would be to surrender to formalism” o Reliability and Necessity are the principles underlying all hearsay exceptions Ares v. Venner Plaintiff in ski accident injured his leg, came under the care of Dr. Venner. Under Venner’s care the leg did not improve, the leg later had to be amputated once the plaintiff was sent to another hospital. Trial judge found negligent treatment, appeal court overturned. Issue is admissibility of notes taken by nurses who attended appellant at Venner’s hospital. Held: - Follows minority judgment in Myers - Establishes business records exception to hearsay based on underlying principles BUT does not establish a principled approach SCC Develops the Principled Approach: R v. Kahn Established a principled approach to hearsay in the context of hearsay of children – hearsay will be admitted if it is necessary and reliable. Doctor sexually assaulted girl, girl told mother afterward about what had happened. Trial judge excluded statement because it did not fall within any hearsay exception Held: - Courts in recent years have adopted a more flexible approach, rooted in the principle and policy underlying the hearsay rule rather than the strictures of the traditional exceptions - In this case, statement was admissible because the guarantees of reliability and necessity were met: o Necessity there was no other evidence o Reliability Child had no other motive, the evidence came out naturally and the statement was corroborated by real evidence R v. Smith Khan is not limited to the hearsay of children – the new principled approach is a general rule for all hearsay evidence Respondent convicted of murder. Issue is the admissibility of phone calls made by deceased to her mother, specifically those in which she said that the accused had come back to her hotel. (the defense relied on alibi, which argued that he left her and went to Detroit rather than returning) Held: - There is a principled basis to the hearsay rule the rule exists to guarantee, insofar as is possible, the reliability of evidence in the absence of the availability of cross-examination In this case: o The first two phone calls were admissible Necessity no other way to have the evidence Reliability There was no reason to lie o The third phone call is inadmissible Not Sufficiently Reliable: the deceased may have been mistaken there was some evidence she had motive to deceive her mother there is no corroborating evidence NOTE: hearsay evidence of statements are admissible where the criteria of necessity and reliability are made out but still subject to the residual discretion of the trial judge to exclude evidence when its probative value outweighs potential for prejudice. - R v. KGB Adapts the Kahn/Smith Principled Approach to create a special strict reliability rule for admitting prior inconsistent statements 2 brothers walking at night, get into altercation with 4 men, one brother is stabbed in the heart and dies, the surviving brother did not get a good look at the assailants. Police investigation causes assailants to come forward, they make statements in the police statement implicating the accused as the killer. At trial, the boys change their testimony. Anomalous situation where a witness in the stand is confronted with a prior statement that contradicts their current testimony. Held: - Special Strict Principled Approach for Prior Inconsistent Statements: o Reliability Will be satisfied where circumstances guarantee the required degree of trustworthiness: (1) statement was made under oath (2) following the administration of a warning of the potential consequences (3) statement was videotaped (4) opposing party had full opportunity to cross-examine the party Note: court does not foreclose on the possibility of other potential guarantees of reliability under the principled approach – but most cases with prior inconsistent statements require the KGB standard o Necessity Necessity must be given a more flexible definition, in the case of prior inconsistent statements, because the declarant is available Lower necessity can be balanced with higher reliability R v. Hawkins In the principled approach, the court is looking for threshold reliability (a sufficient guarantee of reliability to admit the statement) NOT ultimate reliability that assessment is for the trier of fact Police officer charged with conspiring to obstruct justice. Crown’s principle witness married the accused before trial but after the prelim. Crown attempted to introduce her earlier testimony (from the prelim) under the principled approach. Held: - Statement Admissible - Examination under the Principled Approach o Necessity Spouse unable to testify because of spousal incompetence It does not matter why a person is unavailable, for the purposes of necessity o Reliability Statements met the threshold for reliability They were under oath There was an opportunity for cross-examination (at the prelim) Note: The court first looks to whether the evidence would be admissible under an exception, and determines that it is not admissible under s. 715 exception for prior testimony R v. Starr Even hearsay that IS admissible under a traditional hearsay exception may be rendered inadmissible through the principled approach Appellant charged with two counts of murder. Crown theory was that the deceased was victim of a gang-related murder by the appellant. Evidence hinged on a statement of intent to participate in an Autopac scam with the appellant. Held: - The statement did not fall under the exception for statements of intention, because it was used in part as evidence for the state of mind of someone other than the declarant (used as evidence of the intention of the accused) - EVEN IF IT HAD it would have been inadmissible under the principled approach o Reliability statement was made under “circumstances of suspicion”, and there were no other circumstantial guarantees of trustworthiness Note: Out of concern about the judge acting as trier of fact, Iacobucci held that in assessing the threshold reliability of the proffered hearsay, a judge should look only at the statement itself, not at corroborating evidence Foster: this was a mistake R v. Khelawon The Leading Case on the Principled Approach! Accused operated a retirement home, charged with several counts of assault and bodily harm against residents. Many residents’ statements were entered as evidence and disputed as hearsay. The case at hand dealt with the evidence of one declarant, Mr. Skupien Held: - Approach: o (1) Hearsay is presumptively unreliable and inadmissible o (2) Hearsay is admissible if it falls under an exception o (3) If hearsay evidence does not fall under an exception, it may nevertheless be admissible under the principled approach Application to the facts: o (1) it was hearsay – the Crown sought to introduce the statements for the truth of their contents and there was no opportunity for CE. o (2) the statements were therefore presumptively inadmissible. None of the traditional hearsay exceptions apply. o (3) the evidence could NOT be admitted under the principled exception to the hearsay rule. The evidence was necessary – Skupien was dead. Reliability? Skupien had died, and so there was no opportunity for contemporaneous cross-examination, or any cross-examination at any other hearing. Skupien was old and frail, mental capacity was at issue, Ms Stangrat had motive to discredit the accused, there was no oath SO: no indicia of reliability Note: Fixing Starr McLachlin holds that judges can consider the circumstances surrounding evidence to determine whether a statement will be sufficiently reliable to be admissible (though there is still a concern about the judge taking on the jury’s role) Opinion Evidence Opinion evidence is generally inadmissible the role of witnesses is to testify to the facts of which they have personal knowledge, and it is up to the trier of fact to determine the relevant inferences from those facts - Foster The rule is really a rule against speculation, not opinion. If a witness has personal knowledge of facts relevant to a material issue, she may – and indeed may have to – express that knowledge in the form of an opinion because the line between fact and opinion is a blurred one (Graat). - But a witness may not, unless her evidence qualifies as an admissible expert opinion, testify as to matters about which she has no personal knowledge. Two Exceptions: - Lay Opinion - Expert Opinion Lay Opinion Ordinary witnesses can communicate perceptions in the form of an opinion IF: (Graat) - (1) They are within common knowledge o the sort of thing about which a non-expert can form a reliable opinion o Ie: identification of handwriting, apparent age, bodily conditions, conditions of things, estimates of value, speed/distance, intoxication, and degree of intoxication (Graat) - (2) They are based on multiple perceptions that can best be communicated in a compendious format o Where it would be difficult for a witness to simply confine themselves to facts, rather than summarizing that evidence as fact Remember: Eyewitness identification evidence is the most problematic kind of lay evidence, witnesses at the time of a crime have many factors that can distort their recollection R v. Graat Lay persons can give opinion evidence on matters that are (a) within common knowledge and (b) based on multiple perceptions that can best be communicated in a compendious format Charge of drunk driving. Accused was observed to weave on the road, and had the smell of alcohol on his breath. Upon arrest, accused told police he had a heart condition. He was taken to hospital and could not be breathalyzed in time. Crown entered police statements of opinion to the effect that the accused was impaired. Held: The subjects on which non-expert witnesses are allowed to give opinion evidence include: o Identification of handwriting, persons, and things, apparent age, bodily plight/condition of a person, emotional state of a person, condition of things, certain questions of value, and estimates of speed and distance Overrules “Ultimate Issue” theory o Old rule held that witnesses may not give opinion evidence on the ultimate issue that is up to the jury to decide o Witnesses CAN give opinions on the ultimate issue, provided the issue is something that that witness is qualified to give an opinion about Witnesses Can Never give opinion on the law o However, in this case, the witness was not giving an opinion on the application of the CC law on intoxication o that law was simply written in plain language, and it was a coincidence that the witness used the same language Application to the Case: o Lay opinion evidence of intoxication by the police was admissible o Intoxication is not such an exceptional condition that it requires a medical expert to diagnose it o Driving is such a matter of everyday experience that lay people can give opinions on (a) being intoxicated and (b) being too intoxicated to safely drive with the same amount of reliability Expert Opinion RULE: Expert opinion evidence will ONLY be admissible where it is necessary, sufficiently relevant, and given by a qualified expert (Mohan) The law of expert opinion evidence is driven by a sense of the extreme dangers of this kind of evidence and the risk of wrongful convictions. Dangers of expert opinion evidence (R. v. DD – SCC 2000) Bad expert evidence can lead to miscarriages of justice (ie: wrongful convictions) Expert opinion evidence is based on studies not before the court – these studies cannot be subjected to cross-examination Huge amounts of time and money are spent on experts The expert himself is, to an extent, immune from cross-examination because lawyers are not as knowledgeable as the expert. The primary danger is that the task of the jury may be usurped faced with impressive expert evidence and science, the jury may abandon their role and defer to what the expert says. They may overvalue the evidence of the expert these are extreme dangers , and so expert opinion evidence is generally inadmissible. However, there are some EXCEPTIONS to this exclusionary rule – expert opinion evidence is only tolerated in exceptional cases. Expert’s First Duty: is to the court and the administration of justice must make sure that the expert understands this “Ultimate Issue Rule” The court in Mohan discarded the old rule in favor of judicial discretion; experts can give opinion evidence on the central issue - However, it should be noted that the closer an expert witness’ evidence comes to the “ultimate issue”, the more stringent the tests of necessity and reliability become Note: There is a serious imbalance between the Crown and the average defence’s ability to present expert evidence. Crown has essentially unlimited budget for big cases. Often the defence simply cannot afford logistically to present experts. R v. Mohan - Expert opinion evidence is admissible when: (1) Relevance the evidence is relevant to the case It must be more than logically relevant – it must be sufficiently relevant to comfort our fears about expert evidence Whether it is sufficiently relevant requires a cost/benefit analysis does the value of the evidence outweigh the costs/dangers of the evidence Value of the evidence has a lot to do with the reliability of the expert TEST: does the reliability of the expert outweigh the dangers? (2) Necessity the trier of fact needs assistance in order to understand the significance of the evidence The evidence must be something the jury needs to do its job It must be more than just helpful – it must provide the jury with information that it cannot do without. (3) Qualification the witness tendered is qualified Must establish that it is actually an expert; go into a voir dire to do this TEST: the expert must have acquired special or particular knowledge in an area through expertise or study Note: does not have to be education, can be experience This is a modest standard (though it may be inching up) (4) Evidence is not Precluded by any other exclusionary rule Organizing Mohan R v. Abbey “Operationalizing Mohan” - a way to apply the 4 preconditions in Mohan coupled with a discretionary analysis (1) Preconditions to Admissibility a. Evidence is on a subject that is properly the subject of expert opinion b. Opinion is logically relevant (Basic Relevance) c. Expert is suitably qualified d. Opinion does not run afoul of another exclusionary rule (2) Gatekeeper Function a. Trial judge must decide whether expert evidence that meets the preconditions is sufficiently beneficial to the trial process to admit it despite the potential harm that comes from the admission of expert evidence b. Consider: reliability and necessity Note: Reorganization only meant to elucidate, not to overrule any of the essential components in Mohan R v. Lavalee Expert evidence of battered spouse syndrome admitted to help a jury understand the accused’s defence of self-defence. ***Example of how evidence law can help address our assumptions/norms. L shot boyfriend in back of head while leaving room – abusive relationship, claimed self-defense, if she hadn’t shot him he would of shoot her. Held: - Expert opinion evidence was admissible, because the subject matter of the inquiry (battered woman syndrome) was something that ordinary people would be unlikely to form a correct - - judgment about if not assisted by experts Preconditions o Relevant o Properly the subject of experts o Experts were qualified psychiatric recognized expert o Not subject to another exclusionary rule Balancing: o Relevance Expert opinion relevant goes to the ability of accused to reasonably apprehend grievous bodily harm from her mate and that she could not otherwise preserve herself from that harm (elements of self-defense) Helps determine whether an “ordinary person” in the position of the spouse would have reasonably acted the way she did o Necessity Expert opinion necessary few ordinary people understand battered women syndrome, expert evidence can dispel myths around why women stay in abusive relationships by providing an explanation for why the accused did not flee, expert testimony may also assist the jury in assessing the reasonableness of her belief that killing the batterer was her only option Expert Opinion and Hearsay - Expert opinion has an unavoidable hearsay element, in that it is derived from study and experience, this does not pose an evidentiary problem. The problem arises when the expert, in accordance with professional standards, bases her opinion in part on information relating to that particular case that has not been admitted to evidence Rule: An expert opinion IS NOT admissible to show that anything on which the opinion is based is true, but IS admissible to the extent that the opinion is formed upon basis of certain statements R v. Abbey Out of court evidence must not be considered to be true simply because it rides in on the expert opinion. It is only relevant because it indicates the basis of the professional opinion. Accused charged with trafficking cocaine. Accused’s defence was that he did not know it was wrong, because he believed he was immune from harm. Accused did not testify, called expert witness Dr.V (psychiatrist). Crown also called psychiatrist expert witness Dr. E. Dr V. testified that his expert opinion was that the accused was insane at the material time. This opinion was based in part on inadmissible hearsay (conversations between the accused and the psychiatrist outside of court) Held: - Dickson highlights the problem with hearsay in expert evidence: o “Before any weight can be given to an expert opinion, the facts on which that opinion is based must be established” - Solution o (1) An expert opinion is admissible if relevant, even if based on hearsay o (2) hearsay evidence upon which expert opinions are based are not relevant for their truth, they are relevant because they indicate the basis on which the expert opinion was formed o (3) When a psychiatric opinion is based in part on hearsay, this goes to weight rather than admissibility R v. Lavalee Building on the factors in Abbey (4) Before any weight can be given to an expert’s opinion, there must be SOME admissible evidence to support the facts on which the expert relies - Where the factual basis of an expert’s opinion is a melange of admissible and inadmissible evidence, it is the duty of the trial judge to caution the jury that the weight attributable to the expert testimony is directly related to the amount and quality of admissible evidence on which it relies Sopinka’s Concurring Judgment: - Based on the principles from Abbey, an expert opinion based on all hearsay evidence would be admissible by entitled to no weight whatsoever contradiction in evidence - Solution there should be a distinction between: o (a) evidence that an expert obtains in the scope of his expertise (i.e. – observation of colleagues, standardized tests, etc.) This evidence, while hearsay, carries extremely strong circumstantial guarantees of reliability o (b) evidence that an expert obtains from a party to the litigation court should generally require other circumstantial guarantees of reliability In Civil Cases: BC Supreme Court Civil Rules – Expert Reports Rule 40A - Must have 60 days notice of expert testimony (avoid “ambush by expert”) - Must file report, giving notice of: o Intention to call expert o Intention not to call expert - Experts MUST certify to the court that they understand their role (Abbey) - Experts must file every document in advance Reliability in Novel Areas of Expertise Expert evidence which advances a novel scientific theory or technique must be subjected to special scrutiny to determine whether it meets a basic threshold of reliability Mohan Old Rule in USA Frye Test: o The thing from which the deduction is made must be sufficiently established to have gained “general acceptance” in the particular field to which it belongs Development of the law in USA Federal Rule 702 (recognized in Daubert) o If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise o “General Acceptance” is no longer necessary o Must be a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid, based on: (1) Generation and testing of hypotheses (2) Peer review and publication (3) Known or potential rate of error (4) Whether theory or technique is generally accepted TEST: Admissibility of expert opinion evidence on novel science (Trochym) There is an ongoing debate about the admissibility of “junk science” courts have an important gatekeeper role to assess the quality and reliability of evidence before admitting it. When science is novel, the courts must apply a more strict approach to the necessity and relevance criteria of the expert evidence test (J.L.J) 1. Is the science novel? There are three ways science can be “novel” (Trochym) The theory or technique is new or unestablished or the science/technique is being used in a new way The science/technique is new in the scientific community OR it is new to the courts (ie: courts do not have an established practice of admitting it) The technique has been used in the past, but it is now under scrutiny because of changes in our knowledge 2. Is the witness properly qualified? The expert must have acquired special or particular knowledge in an area through expertise or study 3. Is the evidence relevant? It must be more than logically relevant – it must be sufficiently relevant to comfort our fears about expert evidence Relevance has to do with the reliability of the evidence faced with novel science, the court must tests its reliability strictly by asking: (Trochym) i. Whether the technique can be and has been tested ii. Whether the technique has been subject to peer review and publication iii. The known or potential rate for error iv. Whether the theory/technique has been generally accepted i. General Acceptance from old Frye Test is now only a part of the consideration 4. Is the evidence necessary in assisting the trier of fact? The evidence must be something the jury needs to do its job It must be more than just helpful – it must provide the jury with information that it cannot do without. 5. Is the evidence caught by any other exclusionary rule? If so, it is excluded Daubert v. Merrell Dow Pharmaceuticals Rule 702 has Superseded the Frye Test Children born with birth defects. They and parents sued respondent, alleging the defects were caused by pharmaceutical product. Both sides produced expert evidence. Plaintiffs’ experts testified that the drug could cause birth defects, based on cutting edge research. Held: - the “general acceptance” standard is no longer the bar for admitting expert evidence in new areas of expertise, but there must be a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid - Court addresses the concern that abandonment of “general acceptance” standard allowing a free-for-all that would confound juries: o Court says this is based on an overly pessimistic view of the capability of juries and - the adversarial method Court addresses the concern that allowing the screening role of the judge will sanction a stifling and repressive scientific orthodoxy: o Court says there must be separation between the quest for truth in the courtroom and in the laboratory – “scientific method” may change and advance outside of the courtroom R. v. Trochym – SCC (2007) Sets out test for novel science – reliability is tested more strictly. Trochym was convicted of second degree murder of his girlfriend. The Crown said that he killed her in a rage b/c she wanted to end the relationship – Trochym said that it was he that wanted to end the relationship. Neighbour of the deceased (Haghnegahdar) testified that she saw a man go into the girlfriend’s apartment on the night of the murder – but did not know who it was. She also testified that she saw the app leaving the apartment around 3pm on Wednesday afternoon (the next day) – Crown wanted to use this evidence to establish that Trochym had returned to the apartment in the afternoon after the murder to stage the scene of the crime. She gave this testimony after being hypnotized to improve her memory. Issue: whether the hypnosis evidence is admissible (as expert techniques) Court’s framework for assessing novel science is from J-L.J. same framework applies to scientific techniques. Not all scientific evidence must be screened before being introduced into evidence – in some cases, the science in question is so well established that judges can rely on the fact that the admissibility of evidence based on it has been clearly recognized by the courts in the past. J-L.J TEST: a party wishing to rely on a novel scientific technique must first establish that the underlying science is sufficiently reliable to be admitted into a Court of law. o Four factors to consider: Whether the technique can be and has been tested Whether the technique has been subjected to peer review and publication The known or potential rate of error Whether the theory or technique used has been generally accepted. Applciation to the facts: o The accuracy and effect of hypnosis is difficult to assess – studies that suggest it is not effective in increasing accuracy of memories may be the result of the lab setting itself. o It has been subject to lots of peer review and publication – the consensus is that most individuals are more suggestible under hypnoiss and that any increase in accurate memories during hypnosis is accompanied by an increase in inaccurate memories. Hypnosis may compromise the subject’s ability to distinguish memory from imagination, and subjects frequently report being more certain of the content of post-hypnosis memories, regardless of their accuracy. o Rate of error is unknown – this is a concern. o There are differences of opinion in the scientific community on the acceptability of hypnosis for forensic purposes – it is not a generally accepted practice SO: the post-hypnosis testimony does not satisfy the test for admissibility set out in J-L.J – should be excluded. Béland v. The Queen The expert opinion evidence of polygraph technicians is inadmissible as evidence of the credibility of the accused Accused charged with conspiracy to commit robbery. No robbery was committed, because one of the conspirators confessed to the police. That confession is the Crown’s only direct evidence. Appeal concerned the admissibility of polygraph evidence. Held: - Polygraph evidence is inadmissible - Concern Ultimately goes to reliability, evidence being unreasonably fortified by the mystique of science o (1) Runs counter to the established rule of evidence rule against “oath-boosting” rule against prior consistent statements o (2) It serves no purpose that has not already been served assessment of the credibility of the accused is well within the capabilities of juries and judges Examining and Cross Examining Expert Witnesses In Chief: - Same as normal witness – open questions – allow the expert to tell their own story - Would want to lead them on their credentials, to avoid prejudicial effect of having expert witness go on at length about their own qualifications and general grandeur In Cross: - In Canada Cannot put passages from authorities put to experts in cross that they do not accept as authoritative Credibility Credibility is a live issue as soon as a witness takes the stand = consider whether the jury finds a witness worthy of belief - while admissibility is a question of law and determined by the judge, credibility goes to weight and is determined by the trier of fact – it is the key engine that drives the weight of evidence - because the trier of fact has the advantage to see/hear the witness and thus assess credibility, courts of appeal will generally defer to findings of credibility at trial. Two reasons a jury might not believe a witness/not find him credible: 1. The witness lies 2. The witness is wrong/mistaken Two Questions: 1. Is the witness telling the truth reliability 2. Is the witness a truthful person credibility Themes and Tensions: - - - Usurping the Trier of Fact Fears of usurping jury’s function. (Foster: This is kind of annoying, since so few trials are actually jury trials) Wasting Time Do we have time to go into the sort of issues that one side or the other wants to go into? Is this just going to hopelessly confuse everyone? o Taylor: Case mentioned in Clark. There were 20 witnesses testifying to the veracity of the witnesses in the case. Days of testimony about something that’s not technically material Primary materiality v. secondary materiality The former is the material issues in the case. When people talk about secondary materiality, they’re trying to elevate the importance of credibility. It means there is evidence relevant to the credibility of the witnesses. o Foster: This is only sort of a useful distinction, because we talk about credibility as being collateral, but it’s actually pretty central to people’s cases. Distinction between sincerity and credibility, and reliability A witness can be very, very sincere and appear credible, but be totally unreliable. Assessing Credibility Demeanor: - The importance of the opportunity to observe the witness goes to the importance of assessing the witnesses’ credibility o One of the reasons that hearsay evidence is prima facie inadmissible is that it deprives the trier of fact of the opportunity to observe the declarant o While the demeanour of the witness is very important to witness’s credibility, it is not enough (cultural differences, for example, could alter witness demeanor without necessarily affecting credibility) - White v. R. [Credibility] is a matter in which so many human characteristics, both the strong and the weak, must be taken into consideration. The general integrity and intelligence of the witness, his powers to observe, his capacity to remember and his accuracy in statement are important. it is also important to determine whether he is honestly endeavouring to tell the truth, whether he is sincere and frank or whether he is biased, reticent and evasive Child Credibility: - Slightly relaxed standard for children, which recognizes the peculiar perspectives of children - Wilson in R v. B(G) Common Sense Approach o Courts should still carefully assess the credibility of the child witness o However A flaw, such as a contradiction, in a child’s testimony should not be given the same effect as a similar flaw in the testimony of an adult While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it Appellant court deference to Trial Courts Buhay Principle of Deference - appellate judges should normally defer to trial judges because trial judges hear witnesses directly, observe their demeanor, and the tone of their responses R v. W.(R) Preserving Appellate Discretion - Mclachlin J, for the majority, confirmed that an appellate court can overturn a verdict based on findings of credibility where it concludes, following a review of the evidence and with appropriate deference to the trier of fact, that the findings are unreasonable Remember: to overturn a finding of fact, a CoA has to find palpable and overriding error. The Result: Appellate courts almost never overturn a verdict based on a trial judge’s finding of credibility - . If you go before an appellate court and try to challenge a TJ’s finding on credibility, the appellate courts will basically stop listening to you. On the rare occasion they will overturn a TJ, the SCC usually slaps them for it. Foster can think of two cases where the SCC has upheld an overturning of a TJ’s decision on credibility. Supporting Credibility of Your Own Witness GENERAL RULE PRINCIPLE AGAINST OATH HELPING: You are not permitted to ask questions or lead evidence solely to bolster the credibility of your own witness This does not cover little questions at the beginning of the testimony about who the witness is Start with the assumption that the witness’s oath is good – the witness is presumed credible unless his credibility is challenged Rationales: o Allowing this kind of testimony/evidence could lead to unending oath helping evidence it’s a big ole waste of time o It diverts from the substantive issues at trial o We assume that the jury is competent to decide whether they believe the evidence – they do not need external help. EXCEPTIONS: In some circumstances, you CAN support the credibility of your witness 1) Redirect examination to counter a sense of unreliability generated in cross-examination This is part of the normal trial process Cross-examination is the main way to impeach credibility by suggesting mistakes or dishonesty The main way to support credibility is in redirect examination by clearing up issues suggested in the cross-examination This does not fall under oath helping – can bring in other witnesses and external help for the jury 2) Use of expert evidence of good credibility Generally This is oath helping and generally NOT allowed (Kyselka) However, Expert evidence on human conduct and the psychological and physical factors which may lead to certain behavior relevant to credibility of a witness IS admissible, provided the testimony goes beyond the ordinary experience of the trier of fact (Marquard) o You can give evidence that will assist the trier of fact in understanding credibility in regard to why a person might behave a certain way, but you may not make the inference for them o Rationale: the jury cannot make a sound decision without this evidence The expert evidence can only provide context it CANNOT make a conclusion about ultimate reliability (Marquard) o Rationale: credibility is something lay people can decide. o Note: there is a concern that faced with expert evidence, the jury will just defer to the expert – the expert will usurp the jury’s task If expert evidence is called to support credibility, the judge must charge the jury that it not be unduly influenced (Marquard) R v. Kyselka Expert evidence excluded under the general rule that oath-helping is not permitted. The expert evidence was excluded because it was a conclusive assessment about the victim’s credibility and because it was not necessary to help the jury. Expert was testifying right after the complainant. So the complainant had been cross-examined right before the expert took the stand. She was a mentally disabled teen. Presumably, her credibility had been attacked in cross, so the Crown was allowed to introduce evidence supporting the credibility. The problem is, the expert testified on how she did on the stand. Held: - Not admissible. Oath helping. - The expert was testifying directly and conclusively on the subject of the victim’s credibility – not giving evidence to help the triers of fact understand and contextualize their assessment of credibility R v. Marquard Expert evidence may be used to support credibility if it is necessary for the jury’s assessment of credibility – if the witness’s evidence goes beyond the ability of a lay person to understand. This is often the case in the evidence of children. However, the expert cannot draw a conclusion about credibility – can just provide context Child was burned, testified that it was her grandmother. However, the children had initially told the staff at the hospital that she had burnt herself with a lighter. Crown adduced evidence from Dr. Mian that the child was lying when she said that – she testified that it is quite common that children will initially given the accidental explanation and then give the real story later. Dr. Mian also said that children who have been abused often lie because they feel they are responsible for the behaviour that was done to them. She further said that she was of the view that the child was lying when she told the staff that she burned herself with the lighter and she believed the child’s story at trial. Held: - Expert evidence inadmissible (she “did a Kyselka”) o She did not confine herself to her expert opinion on general background information about children in that circumstance, she crossed the line and testified that the child was telling the truth. o Note: this combined with an error in the jury charge led to an 8:1 decision L’Heureux Dubé’s Dissent: The evidence did not cross the line – it was admissible as expert opinion relating to the characteristics of abused children – it was important background to set the context of the child’s behavior, including the prior inconsistent statement 3) Evidence of a good reputation for veracity (1) The defense can lead evidence of the accused’s reputation for veracity for the purpose of enhancing his or her credibility in the event that the accused testifies o The ACCUSED gets some latitude o However, remember that this puts the accused’s character in issue and the Crown can then respond with bad character evidence – Scopelleti boomerang (2) With respect to witnesses other than the accused, the party tendering their evidence cannot lead evidence of their reputation for veracity unless and until their credibility is attacked o However, the parties are permitted (even encouraged) to present their witness in the best possible light (Clark) The Charge: (Clarke) - Do you know the person’s reputation in the community? Is it a good or a bad reputation? The Community: - - Up until the mid-19th century, people could just get on the stand and give an opinion. In the Rowton case in the 1860s, the English courts reversed direction and said that the only admissible evidence of truthfulness is reputation in the community Up until 30/40 years ago, it had to be the community in which you reside. This was the case in Clarke. The courts have recently decided that’s unrealistic and that it’s a relevant community. R v. Clarke Overrules the availability of the three questions developed in the 70s to assess a good reputation for truthfulness Defence called five reputation witnesses. Four gave evidence that the accused was a truthful person and three gave evidence the complainant was an untruthful person. Prior to Clarke, there were three questions to assess good reputation for veracity: (a) Do you know the person’s reputation in the community? (b) Are they truthful? (c) (If yes) would you believe them on oath? The TJ allowed counsel for the defence to ask the third question in regard to the accused, even though his character hadn’t been impeached. Held: - You can testify to reputation, but only if the witness’ character has been impeached or attacked - The third question (would you believe them on oath?) may not be asked - Changes to the jury charge where there is reputation of veracity: o (1) reputation in the community is different from testifying under oath o (2) character witnesses have not heard all the evidence. 4) Evidence of prior consistent statements Remember: o (1) If you want to get a prior consistent statement in for its truth – you need to argue it in under a hearsay exception or the principled approach o (2) In the case of bolstering credibility – the statement is only admissible because it was made, not for the truth of the statement Even when not hearsay, Prior consistent statements are generally NOT admissible o They are oath helping o They are also not that useful they only show consistency, not accuracy or truthfulness There are Four Exceptions: (1) Prior Identification Evidence of a prior consistent identification made by the witness is admissible - (this is pretty clearly hearsay, but it is going to go in because line identification is so unreliable) - This allows witnesses to rely on their prior identification of an accused, even when the trial (because of our overloaded system) is many years later and they cannot be sure at the time of the trial (2) Recent Complaint This exception has been largely overruled by CC s. 275 - Historically – originally only available in sexual assault cases o The old approach was that a woman that had been raped had to originally raise “hue and cry” ASAP. If not, there was a presumption of fact that you weren’t raped. o To counter this, the law of evidence said because of this presumption, the prosecutor should be allowed to put in a recent complaint as a prior consistent statement of the complainant - The Law Now CC s. 275 o The rules relating to evidence of recent complaint are hereby abrogated with respect to offences under sections 151, 152, 153, 153.1, 155 and 159, subsections 160(2) and (3) and sections 170, 171, 172, 173, 271, 272 and 273 (3) Recent Fabrication prior consistent statements are admissible if they are offered as a response to an allegation of recent fabrication R v. Giraldi Most important exception to the rule against PCS Rule: Where one party suggests that the other party’s witness has recently fabricated or concocted his or her testimony, the witness’s prior consistent statement is admissible to show that the witness has consistently maintained the same position for some time. (Ellard) Prior consistent statements are not admissible unless and until the accused raises the issue of recent fabrication The other party can explicitly make this allegation (Sterling) The allegation need not be express. it is enough if “in light of the circumstances of the case and the conduct of the trial, the apparent position of the opposing party is that there has been a prior contrivance” (Giraldi) If so, you can rebut this allegation with a prior consistent statement. You can show that the witness made the same statement BEFORE the event. This is no longer oath helping – it is rebutting an allegation of recent fabrication The relevance comes from the timing of the statement NOTE: prior consistent statements do not mean the witness is telling the truth. Just shows that the statement was not fabricated after the event. The lawyer for the accused was allowed to ask the accused on the stand about the prior consistent statement before the Crown cross-examined him, because the allegation of recent fabrication was so implicit in all the Crown evidence. You may be able to get in a prior consistent statement if there’s an implicit allegation of recent fabrication in the Crown’s case. R v. Campbell You can’t get an accused’s prior consistent statement in before the accused is testifying (and therefore giving a current statement that a prior statement can be consistent with) Lawyer for accused wanted to get the accused’s prior “consistent” statement in the Crown’s case by asking the police officer in cross what the accused had said to him. DC wanted to get it in as part of the Crown’s case through the mouth of the police officer. How can it be a prior consistent statement if the accused hasn’t testified yet? What is it consistent with? The defence counsel made a solemn affirmation that the client would testify. The ONCA said there’s no way you can do that. (4) Narrative rule Prior consistent statements are also admissible if they are necessary to help with the unfolding of a story. Rule: Notwithstanding the abolition of the doctrine of recent complaint, as discussed above, prior consistent statements of a witness are admissible where they form part of the witness’s “narrative.” (F(J.E.)) o Once prior consistent statements are admitted under the narrative exception, they an only be used by the trier of fact to understand how events unfolded – they can not be used to assess the truth of the allegation (Dinardo) Rationale: o Narrative evidence provides background to the story, and thus has probative value that other prior consistent statements may not Exception for children: o the SCC has said that minor inconsistencies in children’s testimony does not affect credibility. Thus, prior consistent statements can be useful to support credibility of children’s evidence because of the tacit concern of fabrication. Note: NO admitted PCS’ should be assessed for the truth of their contents, unless they are admitted under hearsay rules (Stirling) R v. Dinardo (1) In some cases, prior consistent statement can be admitted as part of the “narrative” (2) In this case, the statements did not fall under the narrative exception, since they were entered to confirm the truth of the allegation, not the truthfulness of the complainant Accused was charged with sexual assault a person with a disability. the complainant, who was mentally challenged, alleged that the accused, a taxi driver, had touched her sexually several times during a taxi ride. There were some serious frailties in the complainant’s evidence; at one point, she testified that she may have made up the allegation. The Crown also called four witnesses who testified about the statements that the complainant made around the time of the alleged assault. the trial judge convicted the accused. SCC ultimately overturned the conviction. Held: - Must distinguish between: o Impermissible “using narrative evidence for the impermissible purpose of ‘confirming the truthfulness of the sworn allegation’” o Permissible “using narrative evidence for the permissible purpose of showing the fact and timing of a complaint, which may then assist the trier of fact in the assessment of truthfulness or credibility” Impeaching The Credibility of a Witness GENERAL RULE: The normal way to attack the credibility of the other party’s witness is by cross-examination. Cross-examination is essential in revealing the truth, and it is a principle of fundamental justice that cross-examination is part of full answer and defence (Lyttle) - Witnesses can be cross-examined on character, because they have less at stake than the parties Ways to impeach the other party’s witness: 1) Cross Examination Questions are bound by the rules of relevancy – cannot ask irrelevant questions (Lyttle) Cannot resort to harassment, misrepresentations, badgering, etc (Lyttle) CAN ask questions to support a theory, even if there is no other supporting evidence for the theory – just need to ask the questions on a “good faith basis” (Lyttle) o Cannot go on fishing expeditions – there must be a reason for the line of questioning o The purpose of the question must be consistent with a lawyer’s role as an officer of the court questions must suggest what counsel genuinely thinks possible on the facts, they cannot assert/imply facts to mislead the jury. (Lyttle) There is no obligation to cross-examine, BUT if you suggest that a witness is lying/mistaken, you must direct the witness to that fact by appropriate questions in the cross-examination o The Brown v. Dunn Rule/the R. v. Dick Rule: a party who intends to impeach an opponent’s witness must direct the witness’ attention to that fact by appropriate questions during cross-examination Normally, the way to impeach a witness’ credibility is to cross-examine them on prior inconsistent statements: - (1) A witness can adopt a statement through past recollection recorded, or present memory refreshed - (2) If the witness denies making the statement, the counsel can attempt to enter independent proof through CEA s. 11 - (3) If the witness admits to making the statement, but denies that it is true, the statement can be admitted only as evidence of the witness’ credibility, not for the truth of its contents o UNLES: the witness is a party to the litigation (party admissions exception) Cross Examining the opposing party’s witness on prior inconsistent statements Canada Evidence Act - 10(1) You can cross-examine an opposing witness on statements made in writing or recorded without the writing being shown to the witness, BUT if you intend to contradict the witness you must draw the witness’ attention to the relevant part of the statement AND the judge may request production of the statement at any time - 11 When a witness being cross examined on a prior inconsistent statement, and does not distinctly admit that he made the statement, and before proof may be introduced to prove that the statement was made, the circumstances of the occasion will be mentioned to the witness and he will be asked again whether or not he made the statement Cross Examining your own witness on prior inconsistent statements - Trickier when you’re contradicting your own witness - These sections are for when something has gone terribly wrong Canada Evidence Act Section 9 - (1) A party producing a witness can’t go straight to character impeachment, BUT if the witness, in the opinion of the court, proves adverse, the party may contradict him by other evidence (or prior inconsistent statements) o Foster hates this: how can you contradict the witness with evidence without first proving him adverse? - (2) A party can apply to the court for leave to cross-examine their own witness on prior inconsistent statements without proof that the witness is adverse o This was an attempt to solve the problem of the drafting in 9(1) o The result was a separate remedy, so now if a lawyer makes a 9(2) application, she’s not looking to declare the witness adverse. All she wants to do is cross-examine own witness on prior inconsistent written statement o A successful application under this section gives you permission to crossexamine on a prior inconsistent written statement without calling the witness adverse o McInroy and Rouse Confirms that 9(2) is a way to, without proving adversity, cross-examine your own witness on a previous inconsistent statement 2) Expert Examination of the Witness’ unreliability Rule: Expert evidence can be used to impeach a witness if it is necessary to show circumstances that the jury would not understand (Toohey) o Experts CANNOT give an opinion as to whether or not the witness is telling the truth, only about factors affecting the witness’ credibility o Experts can only CONTEXTUALIZE a witness’ testimony R v. Toohey Boys in alleyways were found. One boy was upset and said he’d been assaulted. The defence was that there was no assault that the boy was just hysterical Held: - Testimony was relevant to the issue of whether the assault caused the hysteria or the hysteria caused the assault. - The accused was permitted to adduce medical scientific evidence as to the unstable mental state of the alleged victim 3) Witness’ Bad Reputation for Veracity HISTORICALLY the accused could call a witness and ask three things about the Crown’s witness: o Do you know the witness’s reputation? o Is the reputation good or bad? o Would you believe the witness under oath? This was an indulgence to the accused there was a concern about convicting the accused on the testimony of a known liar. RULE NOW the accused can call a witness to adduce evidence about a witness’s bad reputation for veracity, but can only ask the first two questions (Clarke) o Do you know the witness’s reputation? o Is the reputation good or bad? The third question usurps the jury’s function – the jury can assess credibility themselves Even when the first two questions are asked, the judge must still charge the jury tell them it is their role to decide credibility 4) Prior Convictions RULE: prior convictions are ALWAYS relevant to assessing the credibility of witnesses (Corbett) o This is an example of evidence law reflecting assumptions. We assume that criminals are liars – they are bad people who did something wrong in the past, and so they are more likely to do something wrong now. If they haven’t shown respect for the law in the past, why should the trier of fact believe their oath? Canada Evidence Act s. 12: - (1) Witnesses can be questioned on prior convictions during cross - (1.1) If the witness denies or refuses to recognize the conviction, the opposite party must prove it - (2) A conviction may be proved by: o (a) producing the certificate or form of proof o (b) producing proof of identity If the witness is a NON-ACCUSED witness: o At CL: you could always cross-examine a witness on their criminal records, but could not get into details about particular crimes. If the witness denied prior convictions, could only adduce extrinsic evidence if it was related to a non-collateral matter (collateral facts rule) Statute has changed the CL rules o 12(1) Can still question a witness on prior convictions during cross examination (same as the CL) Can question the witness on criminal code offences, other criminal statute offences (ie: CDSA), and offences under some provincial statutes o 12(1.1) If the witness denies prior convictions, the opposite party may prove the conviction (ie: can adduce the criminal record) This trumps the CL – gets around the collateral facts rule 12(2) can adduce a certificate or record, and proof of identity If the witness is the ACCUSED: o Prior to the Charter: “witness” in s.12 of the CEA included accused witnesses o However, with the introduction of the Charter: there was a concern that cross-examination on prior convictions of the accused might produce an unfair trial the jury might not be able to distinguish between using evidence for credibility and using it for character (ie: making the prohibited character o o o o o inference) This concern is dealt with by allowing the judge to retain the residual discretion to exclude evidence of prior convictions of the accused where probative value is outweighed by the prejudicial effect of the evidence and by requiring the judge to charge the jury (Corbett) Corbett Application: Before trial, an application to use the accused’s criminal record is made The judge decides what part of the record may be used and what part must be excluded – determines whether the probative value of the evidence is outweighed by the prejudical effect. Factors to consider (Corbett): Nature of the previous convictions – dishonest crimes (ie: perjury) have more probative value. Crimes that are similar to the one charged have more prejudicial effect Remoteness of the prior convictions Whether the accused attacked the character of the Crown’s witnesses Numbers of previous convictions – the more there are, the higher the prejudicial effects If the probative value of the prior conviction evidence outweighs the prejudicial effect, it should be admitted under s.12(1.1) of the CEA Trial fairness is not just about the accused – it is also about the state, public, and complainant. If the accused structures a defence around credibility, it is only fair that evidence of prior convictions is allowed (Corbett) If the prior conviction evidence is admitted under s.12 of the CEA, the jury must be charged that they can only use the evidence for credibility not for character R v. Corbett (1) S.12 of the CEA is not unconstitutional – because of the trial judge’s discretion to exclude (2) evidence of prior convictions can only be used to impeach the credibility of the accused – the jury must be charged that they cannot use the evidence to make inferences about character or ultimate guilt Accused convicted of first degree murder of an associate in the cocaine trade. He appealed on the ground that he had been deprived of his right to a fair trial – argued that s.12 of the CEA violates the Charter; it should not apply to accused witnesses and he should not be cross-examined on his prior criminal record. Held: Evidence of prior convictions of an accused person is normally inadmissible because it invites the inference that because the accused is of bad character, he is more likely to have committed the offence S.12 makes such evidence admissible for credibility ONLY: o There is a risk that the jury will consider the evidence in determining ultimate guilt but not allowing the information deprives the jury of information relevant to credibility and leaves the jury with a misleading picture. o The best way to balance these risks is to give the jury all the information, but at the same time give a clear direction as to the limited use they are to make of such information (ie: charge the jury) Furthermore, there are limits on the extent to which the Crown may use prior convictions. Examples: o The accused may be examined only as to the fact of the conviction itself – not the conduct which led to that conviction Accused cannot be cross-examined as to whether he testified on the prior occasion when convicted in order to show he is one who was not believed by a jury on a previous occasion o Crown is not entitled to go beyond prior convictions to cross-examine an accused as to discreditable conduct or association with disreputable individuals o Unless the accused takes the stand, Crown is not permitted to adduce evidence of prior convictions o Accused may be cross-examined only as to convictions, strictly construed. o There can be no cross-examination where the accused was found guilty and granted a conditional discharge, conditions subsequently having been fulfilled The trial judge still has a discretion to exclude prejudicial evidence of previous convictions in an appropriate case still subject to the residual discretion. o Collateral Facts Bar Basic Principle When you’re cross examining a witness, you can basically ask anything. You simply can’t harass or be vexacious. Collateral Facts Bar You can ask questions that are solely about credibility. But if you ask a question that is solely relevant to credibility, you may not contradict that witness with extrinsic evidence Two approaches: - Wigmore o If the evidence would have been admissible as relevant for a purpose other than to contradict the witness, it’s not collateral. This includes discrediting the witness’s credibility beyond the fact of the contradiction - Phipson o If it’s not relevant to a material issue, it’s collateral (except in some cases, like bias) Melnichuck Example of collateral facts bar barring some collateral facts Witness was asked by Crown if he’s ever described himself or held himself out as a chartered accountant. Witness said no. Crown then called a witness to contradict the accused as to whether or not he had held himself out. Then the accused called two witnesses to contradict the contradicting witness Held: - Evidence inadmissible o The evidence concerning whether the accused had held himself out as an accountant was only relevant to credibility, and not material to the case beyond credibility o This type of evidence is totally irrelevant to the charge – you can’t spend so much time proving or disproving an immaterial fact Hitchcock v. AG Leading Case! Collateral Facts Rule: cannot adduce extrinsic evidence to prove mere contradictions in a witness’s testimony Accused was a bootlegger. Crown witness, on cross-examination, was asked if he had been offered a bribe to testify against Hitchcock. He said no. Defence wanted to call a witness to say he had been offered a bribe. Held: This evidence was rejected on the ground that it was collateral. Collateral evidence: o If the answer of a witness is a matter which you would be allowed on your part to prove in evidence – if it have such a connection with the issue that you would be allowed to give it in evidence – then it is a matter on which you may contradict a witness o If it is not, it is collateral and you cannot contradict the witness on it. Reason: if counsel was permitted to contradict the witness’s answers, the witness would be allowed to call other evidence in support of the testimony he gave, those witnesses would have to be cross-examined – endless collateral issues. Corroboration Historically: - the law has seen some people as less credible – some people/events were seen as suspicious, but short of incompetent (ie: accomplices, children, sexual assault victims) - The notion of having a required number of witnesses translated itself in the common law to CORROBORATION - This translated into a became highly formalized and technical set of rules, which required for certain crimes certain numbers of witnesses The law tried to control the use of this suspicious evidence by the jury If a witness fell into a specific classification, the trial judge had to instruct the jury that it was dangerous to convict on the witness’s testimony alone – there had to be corroborating evidence that implicated the accused The judge also had to tell the jury what that corroborative evidence was This highly technical doctrine has now been virtually eliminated by statute: - Test for the credibility of child witnesses: Common law required corroboration for a jury to convict on child’s testimony S.586 of the Criminal Code held that a child’s testimony could not be relied upon without corroboration Wilson J abrogated the corroboration rule by basically interpreting 586 to basically incorporate the Vetrovec approach - Test for the credibility of accomplices/other “unsavory witnesses” Traditionally, the common law required the judge to charge the jury not to convict on the testimony of an accomplice without corroborating evidence that implicated the accused. The judge was also required to identify this corroborating evidence. SCC in Vetrovec identified problems with this common law rule: It is procedurally cumbersome – the judge has to decide whether the witness is an accomplice and then decide what evidence was corroborating and then charge the jury on it Rationale for the rule is no longer supportable – accomplices are not always testifying because they have made a bargain or because they are trying to help their friends. The rule is too technical and it does not focus on the real issue – a concern about credibility and the need to warn the jury The Modern Rule of Corroboration replaced the formulaic old system with the common sense idea that a witness’ evidence is easier to accept if there is other admissible evidence supporting it (no special rules) There are only three offences left where there cannot be a conviction without corroborating evidence i. High treason (s.47 Criminal Code) ii. Perjury (s.133 Criminal Code) iii. Procuring feigned marriage There is no more classification of witnesses just witnesses that are “unsavory” o It is no longer an accomplice rule – this rule applies to all unsavory witnesses Vetrovec Warning Where testimony of witness seen as potentially unreliable, because it comes from an unsavoury witness such as an accomplice or witness with record for perjury, a “clear and sharp” warning ought to be issued to jury warning of dangers of convicting based on unsavoury witnesses testimony without anything else Vetrovec warnings should 1. Draw the attention of the jury ot the testimonial evidence requiring special scrutiny 2. Explain why the evidence is suspect 3. Caution the jury that it is dangerous to convict on unconfirmed evidence of this sort – though they can if they want to 4. Tell the jury they should look for evidence from another source tending to show that the unsavory witness is telling the truth as to the guilt of the accused. In a Vetrovec warning, the judge must guide the jury on what kind of evidence can corroborate the unsavory witness’s testimony. The judge must say that corroborating evidence is: a. From an independent source b. Is material in the sense that it implicates the accused i. Should look at the judge’s charge to the jury as a whole – if the judge’s Vetrovec charge is not perfect, the overall charge may save it.’ Problem: when the judge, giving a Vetrovec warning, tells the jury they should look for “authenticating evidence” – isn’t that just the old corroboration rule that was abolished? Baskerville The OLD APPROACH to defining corroboration – this has been overruled by Vetrovec Evidence of corroboration must confirm both: - (a) that the crime had been committed - (b) that the accused committed it Vetrovec Changes the law of corroboration – there is no longer a special rule for accomplices. If a witness is unsavory, a Vetrovec warning should be given. This case tried to make the law less formalistic/technical. Vetrovec and Gaga were charged w/ conspiracy to traffic in heroin. Langvand, an accomplice, testified for the Crown. The trial judge instructed the jury that it was dangerous to convict on his testimony unless they found that it was corroborated, and that certain pieces of evidence were capable of corroborating Langvand’s testimony. Held: - (1) Removes the strict Baskerville description of the nature of corroboration evidence: o Modern approach to defining corroboration Wigmore: The point of corroborating evidence is that it is ANY evidence that tends to confirm the witness’ testimony - (2) Vetrovec Warning Elements: 2. Draw the attention of the jury of the testimonial evidence requiring special scrutiny 3. Explain why the evidence is suspect 4. Caution the jury that it is dangerous to convict on unconfirmed evidence of this sort – though they can if they want to 5. Tell the jury they should look for evidence from another source tending to show that the unsavory witness is telling the truth as to the guilt of the accused. Character Evidence Character evidence = evidence of disposition/propensity that suggests because of a trait/prior action/disposition, the accused is more likely to act in a particular way. Subject to the similar facts rule, the crown may not, as part of its case in chief, lead evidence that the accused has previously engaged in discreditable or criminal conduct, or is of bad character, BUT, IF the accused puts character in issue by introducing character evidence, such as circumstantial evidence of innocence, the crown may reply to this with evidence of bad character (McNamera, Morris) Presumption The Crown CANNOT offer character evidence of the accused for the sole purpose of suggesting that the accused is a person of bad character - Theory: o Crown is proving that accused committed a crime – they are proving an act, not what kind of person the accused is o It invites the inference that the accused is the type of person more likely to have committed the offence this is the “Forbidden Inference” (Rowton) o It distorts the trial process – the trial is about one particular crime, not about the past o There is a concern about accuracy – we tend to overvalue character evidence. We give it more weight than it is due, and may end up convicting a person for who they are rather than for the crime. Exception The Crown CAN offer character evidence of the accused: (1) Where character is directly relevant to an issue at trial o Example: where the Crown is trying to prove a dangerous offender characterization, evidence of the accused’s dangerousness is admissible (2) Where the accused puts his character at issue, by adducing evidence of good character (3) Where evidence as similar fact evidence o The admissibility will turn on the Handy test Accused Puts his Character at Issue: Process Exclusionary rule: the Crown cannot introduce evidence to show the accused is a person of bad character UNLESS the accused puts her good character in issue; therefore ask: 1. Has the accused put her good character in issue by expressly or implicitly asserting that she would not have done the things alleged against her b/c she is a person of good character? Accused can put her character in issue by: Offering general reputation evidence given by other witnesses (ie: Rowton) o Testifying on the stand to her good character (McNamara) NOTE: the Crown in cross-examination CANNOT induce the accused into putting his character in issue (Bricker) o Adducing expert evidence to show that she does have/does not have the particular trait that the perpetrator would not/would have (Lupien, Robertson, Mohan) In order for such evidence to be adduced, must pass the expert evidence rules first Expert evidence of character can be admitted if the trial judge is convinced that either the perpetrator or the accused has distinctive behavioral or psychological characteristics such that the comparison of one with the other would be of material assistance in determining guilt or innocence (Mohan) o Accused can also implicitly put her character into issue; can be deemed to have put her character at issue (McNamara) The accused can deny allegations and explain defences without putting character in issue. However, if the accused implicitly suggests that she is not the type of person to commit the offence, character has been put into issue (McNamara) Example: accused saying he had been earning an honest living has been held to be character evidence (Baker) Example: accused giving examples of times he found lost property and returned it to the police has been held to be character evidence (Samuel) o Attacking the character of a 3rd party (Scopelliti) In offering bad character evidence of a 3rd party, the accused is tacitly suggesting she is a better person, thus putting her character in issue This is called the “Scopelliti boomerang” 2. If the accused has introduced evidence of her good character, she is entitled to a charge to the jury a. “the jury may infer from that evidence that the accused is not the type of person that would commit the offence” (Loggocco) 3. If the accused has introduced evidence of her good character, the Crown can then rebut with bad character evidence in ANY of the following ways: Cross-examining the witness giving the general reputation evidence and the accused giving character evidence o The Crown can cross-examine on ANY character issue, including specific bad acts (McNamara) Adduce evidence of general bad reputation in the community through witness o This does NOT include evidence of specific acts and CANNOT be personal opinion (Rowton) Proving prior convictions of the accused o If the accused puts her character in issue, the crown can enter her entire criminal record into evidence (s.666 of the Criminal Code) Bringing expert evidence saying the accused shares characteristics the perpetrator must have had (Tierney) To enter expert evidence of character, even when the accused HAS put their character at issue, the Crown must meet the similar facts evidence standard o Notice that when the Crown brings evidence to rebut an accused’s character evidence, the judge must charge a jury that the evidence of bad character can only be used to “cancel out” the evidence of good character adduced by the accused (cannot be used to infer bad character of the accused) 4. All of the Crown’s rebuttals are subject to the residual discretion: the trial judge can exclude any character evidence if the probative value is outweighed by its potential for prejudice. S.666 of the CC Where, at trial, the accused adduces evidence of his good character, the prosecutor may in answer adduce evidence of the previous conviction of the accused for any offences, including any previous conviction by reason of which a greater punishment may be imposed. R v. Rowton If the accused calls witnesses to testify to his general character of the accused, the Crown’s reply is also limited to evidence of general reputation R was school master charged with indecent assault – called several witness to attest to his character as moral and well-conducted man, crown replied with boys who attended school and that said he was man capable of grossest indecency and flagrant immorality Held: - Crown could reply to R’s assertion of good character, but is restrained to give evidence of same nature of accused – because witnesses may only give evidence of good general reputation (not disposition), crown can only reply with evidence of bad general reputation (not disposition) - In this case, the Crown witness could not give personal opinion, since that went beyond general reputation R v. McNamera Example of the accused implicitly putting his character at issue by suggesting he is not the type of person who would commit the crime 13 individuals and corporations appealed their convictions for offences of conspiracy to defraud. Charges arose out of the alleged rigging of bids submitted on tenders for dredging contracts. McNamara testified the mandate of the company was to run legally, that he had no knowledge of any bid-rigging or other illegal activity, and that he was a director for many years over lots of operations… Crown cross-examined him about a previous transaction, where the accused had pleaded guilty to a charge of income tax evasion Held: - You can put your character at issue without intending to - Given that you put your character in issue: you can be examined on a particular transaction that tends to contradict your evidence of good character R v. Levasseur “General reputation in the community” is not limited to the residential community. This rule was deemed to be outdated any relevant community that knows the accused well can be a source of general reputation evidence. App was charged with breaking and entering and thefts – allegedly stole a truck and an automobile. The premises in question were owned by the app’s employer but were leased to Union Tractor. The app’s defence was that she removed the vehicles at the request of her employer and so had “colour of right”. She introduced testimony of a subsequent employer, to prove her good character. The trial judge excluded the evidence – said it was not general reputation evidence, because the employer could not say what the community thought of her Held: - “neighbourhood” requirement for reputation witness no longer relevant, reputation witnesses can be from work community - If you have not known accused for long period of time, and have to talk to others to evaluate accused’s reputation, not qualified to be reputation witness R v. Profit Character evidence should be given less weight where the accused is charged with sexual offences against children Sexual assault case – 7 witnesses called to support accused’s character. Held: - As a matter of common sense, a TJ may consider that in sexual assault of children, the misconduct occurs in private and in most cases will not be reflected in the accused’s reputation for morality in the community. Expert Evidence (For the Defence) When THE DEFENCE brings expert evidence of character, it is essentially saying that: - The specific offence has distinctive features which identify the perpetrator as having an unusual personality trait constituting him a member of an unusual and limited class of persons, and - That the accused is not such a person RULE: If the defense wants to bring expert evidence of character, it must satisfy the court that either the accused or the perpetrator had distinctive behavioral characteristics which would “amount to a signature or a badge” R v. Lupien First instance where the SCC held that there can be expert evidence designed to show that the offence would only be committed by a distinctive sort of person, and that the accused does not fall into that distinctive class of person Accused a federal beurocrat at conference in Vancouver, found by vice squad in bed with a man dressed as a woman. L charged with gross indecency (homosexual). Defence was he thought his companion was a woman, wanted to call expert to testify to effect that he was a homophobe and had violent reactions to homosexual practices Held: evidence allowed Note: EVERYTHING in this case has been overruled, except the premise that expert evidence can be adduced to give evidence of character where a jury needs help R v. Robertson Expert evidence can only be adduced to show character where the offence has distinctive features which identify the perpetrator as having an unusual personality trait constituting him a member of an unusual and limited class of persons R charged with murder of 9 year old girl – wanted to tender psychiatric evidence to show that accused did not person who committed crime would show characteristics of violence and aggression, and that R did not possess these tendencies Held: - Mere disposition to violence not so uncommon as to constitute an abnormal characteristic, regardless of the fact that the evidence shows the girl was brutally killed R v. Mohan Before an expert’s opinion is admitted as evidence, the trial judge must be satisfied, as a matter of law, that either the perpetrator of the crime or the accused has distinctive behavioural characteristics such that a comparison of one with the other will be of material assistance in determining innocence or guilt M charged with sexual assault on 4 patients, wanted to lead expert evidence that the perpetrator of such offences would be part of a limited and unusual group of individuals that M did not fall into because he didn’t possess those characteristics (specifically, that perpetrator fit profile of paedophile or sexual psychopath) Held: - Rejected – trial judge did not find that a person who committed sexual assaults on young women belonged to a group possessing abnormal/distinct characteristics Attacking the Character of a 3rd Party There is a general exclusionary rule for bad character evidence of the accused because: 1. Concern that the jury will over-rely on such evidence 2. Concern that the jury will be distracted However: when the character of a non-accused person is at issue, the concern about wrongful convictions has evaporated. That person does not face a deprivation of liberty. Thus, the rule about character evidence of non-accused persons is more relaxed. RULE: Evidence of bad character of a third party witness IS admissible wherever relevant to an issue at trial. It can be adduced through any way (general reputation evidence, the testimony of the accused, expert character evidence, prior bad acts, etc…). The evidence is always subject to the residual discretion If the accused raises the character of a third person, he puts his own character in issue – he tacitly suggests he is a better person. The Crown can then respond with bad character evidence of the accused (Scopelliti boomerang) There are two particular times when the accused would want to offer character evidence of a third party: 1. When the accused wants to suggest someone else committed the crime In these cases, evidence of bad character of a third party is relevant to the issue of IDENTITY(McMillan) As long as there is some other circumstance connecting the third party to the crime, character evidence of the third party that goes to identity is relevant, and thus admissible 2. When the accused wants to rely on an affirmative defence (ie: self defence, provocation, duress) that is based on the bad character of another Example: Scopelliti If the bad character evidence is relevant to the defence, it is admissible (Scopelliti) R v. McMillan Example of character evidence of a 3rd party admitted because it is relevant to the issue of identity. As long as something connects the third party to the crime, character evidence of that third party that goes to identity is relevant – thus admissible Man charged with killing his child. His defence brought in psychiatrist to testify that, based on their psychological profiles, it was more probably that his wife actually murdered their child Held: - Character evidence directed to prove that the crime was committed by a third person, rather than the accused, must meet the test of relevancy and must have sufficient probative value to justify its reception this means that the evidence will only be admitted if the third person is sufficiently connected by other circumstances with the crime charged o In this case, the psychiatric evidence, although character evidence, is relevant to the issue of identity offered to prove that it was the mother, not the father, that murdered the child o The mother is also connected by other circumstances to the crime - there was evidence that the mother had some opportunity to injure the baby and cause her death. There was also some evidence that the mother had a motive (didn’t want the baby) - SO: the evidence was admissible R v. Scopelitti Example of character evidence of third party admitted because it was relevant to a defence of self-defence – evidence of the deceased’s violent disposition, even if not known by the accused, is relevant to whether the deceased was the aggressor or not. Up until this point, when the defence was self-defence, evidence would normally be adduced of the deceased’s violent character as it was known to the accused (which goes to the reasonable use of force). In this case, the defence tried to introduce evidence of two shootings by the deceased that the accused did not know about when he defended himself. Held: Where self-defence is raised, evidence of previous violent by the deceased, known to the accused, is admissible to show the accused’s reasonable apprehension of violence from the deceased. o Evidence of previous acts of violence by the deceased, not known to the accused, is not relevant to show the reasonableness of the accused’s apprehension of an impending attack. HOWEVER: the evidence of the deceased’s disposition for violence IS relevant to show the probability that the deceased was the aggressor and to support the accused’s evidence that he was attacked by the deceased. There is no rule of policy which excludes evidence of the disposition of a third person for violence where that disposition has probative value on some issue before the jury. - Evidence admitted Similar Facts Evidence Similar Facts Evidence where the prosecution calls evidence of discreditable conduct (acts that speak badly of the accused’s character) by the accused that is not charged in the indictment Remember the general exclusionary rule: the Crown cannot adduce character evidence (including prior bad acts) on in its case in chief. EXCEPTION: Similar fact evidence When there is such a connection/striking similarity between prior bad acts and the current charge, that the prior acts don’t just point to character but start to prove other issues (such as identity, mens rea, or actus reus), the evidence of the prior acts may be admitted. Rationale: o The probative value of the character evidence is now much higher – it is not just proving character, but starting to prove another relevant issue. The character evidence is probative to some issue other than character. o However, similar fact evidence is dangerous – it is very prejudicial. Thus, we are very cautious about it. RULE: evidence of prior bad acts by the accused IS admissible if the prosecution satisfies the judge on a balance of probabilities that, in the context of the particular case, the probative value of the evidence in relation to a specific issue outweighs its potential for prejudice (Handy). the similar fact evidence must be sufficiently compelling on the non-character point to overcome the high potential for prejudice. TEST: Can the similar fact evidence be admitted? (Handy) Remember: Crown cannot adduce evidence of criminal allegations where the accused has been acquitted Basic test: the evidence has to be sufficiently compelling on a non-character point to overcome what will always be a substantial potential for prejudice that comes with similar fact evidence. Details of the basic test…ask: 1. Is the character evidence trying to prove a non-character issue? Similar fact evidence can prove identity (by showing MO) (ie: Straffon) Can prove mens rea (by showing there was malice/intent) Can prove actus reus (by showing it was not an accident) (ie: Makin) Can prove design (ie: MR+AR) (ie: Smith) 2. Evaluate the probative value of the similar fact evidence in relation to the non-character issue. Probative value is driven by the connection/nexus between the prior acts and the current offence. Factors to look at: i. Proximity in time between the past acts the current offence – the closer in time, the more unlikely it is that the accused has changed ii. Extent to which the other acts are similar in detail to the charged conduct – there must be a close nexus iii. Number of occurrences of the similar act – if there are more, there is a 3. 4. 5. 6. pattern iv. Circumstances surrounding or relating to the similar acts v. Any distinctive features unifying the incidents vi. Intervening events – is there anything that has severed the connection between the prior acts and the current offence (ie: jail, serious injury, counseling) vii. Any other factors which would tend to support or rebut the underlying unity of the similar acts Were the prior acts convictions or charges? Was there collusion? (Handy) Information spread – could it be a copycat? Evaluate the potential for prejudice. Consider moral prejudice how likely is it that the evidence will lead the jury to convict because the accused is a “bad person” who is more likely to commit this offence? Consider reasoning prejudice are the facts so complicated and abundant that they will create confusion in the jury and take up too much time? Balance the probative value against the potential for prejudice The threshold for probative value is HIGH – the connection must be so strong that it would be an “affront to common sense to suggest that the similarities are merely coincidence” (Handy) However, the similar fact evidence need not be conclusive (Handy) If the probative value is greater than the potential for prejudice, the evidence can be admitted If the evidence is admitted, judge must charge to the jury that the prior act evidence can be used to prove the non-character issue, but should not be used to suggest that the accused is the type of person who would commit the crime (Arp) Makin v. Attorney General for South Wales Example of prior bad acts proving actus reus admitted Two children were taken in by the Makins – they died, the Makins said it was an accident. Constables found remains of four infants in back yard of the Makins, all children who had been given to the Makins to care for. Held: General Pattern of a SFE Case (the law has moved on from here) o (1) generally, Crown can’t adduce evidence tending to show the accused has been guilty of other offences and is therefore more likely to be guilty of this one o (2) However, if the evidence adduced tends to show that the accused committed another crime which is relevant to a specific issue, or to rebut a defence that would otherwise be open to the accused, it may be admissible If the nature of the prior bad act tends to prove a relevant issue, it may be admissible. In this case, the prior acts tended to prove actus reus – showed the dead babies were not a mistake. The prior acts were so connected to the charge, they were admitted. R v. Smith Example of prior bad acts proving design admitted S charged with murdering wife BM – third wife to turn up dead in the bathtub. Defense is accident. Only charged with one murder, question is whether evidence of the other deaths can be admitted as SFE Held: - Evidence of other 2 deaths was properly admitted for purpose of eschewing design of S, trial judge correct in directing the jury that they were only to decide the case in regards to BM R v. Straffen Example of prior bad acts proving identity admitted S escaped from prison, during that time little girl was killed – denied killing her, but admitted that he had been convicted of killing 2 other little girls but not this one. Circumstances of death were all similar: all 3 manually strangled, no attempts of sexual assault, body left unhidden, no evidence of struggle Held: - Evidence of prior bad acts WILL be admitted if it tends to prove, not that the accused is a man who has criminal propensities, but that he was the man who committed the particular offence charged (ie: identity) o Presumption Evidence that tends to show that the accused was guilty of criminal acts other than the indictment are presumed inadmissible for the purpose of establishing that the accused is a person of criminal disposition o Rebutting the Presumption When the reason the evidence of other criminal acts is admitted is to show not that he is a man of criminal propensities, but that he is a man that has committed the particular offences charged Not admitted to show that S was a professional strangler, but to show that the person that killed this girl was the same person that confessed to killing in similar circumstances a year before Sweitzer v. The Queen Before similar fact evidence is admitted to the stage where the judge balances the PV and PE, there must be some link between the allegedly similar facts and the accused Man arrested and charged with 15 counts of sexual assault. Indictments severed, but Crown wanted to adduce the evidence from all of the charges. In 11 of the charges there was no identification evidence, only similar pattern. In 4 of the charges, there was positive identification evidence, including two charges where victims swore to his identity. Held: - In this case, 11 of the counts were improperly admitted o There was no connection between the counts and the accused o The prejudicial effect was very high, and the probative value not nearly great enough - Don’t want to open the door to charging one accused with every crime without an identified accused that is even vaguely similar R v. Arp SCC establishes a Two Stage Gatekeeping test in Identity Cases that must be applied to SFE before a judge weighs the PV and PE: (1) Are the acts sufficiently similar to be able to conclude that they were likely to have been committed by the same person? (2) Is there SOME evidence linking the accused to the similar acts? Accused was charged with and convicted of two counts of first degree murder- charges related to two separate incidents. Held: - if the evidence fails this gatekeeping test: o When charges are tried separately SFE is inadmissible When charges are tried together jury must be warned that evidence from one cannot be used in the other o This gatekeeping test was probably impliedly overruled, or at least made unnecessary, by the stricter standard in Handy - Note: unsure why the severance application was unsuccessful in this case, these charges seem factually different - This SFE would likely not be admissible under the balancing test in Handy o Propensity A Sub-Plot - R v. D(LE) o Sopinka writes this decision before dissenting in B(CR) o Emphasizes the need for careful jury selection - Main Prejudicial Effects of SFE of juries: They might convict based on propensity They might convict in punishment for past acts They might become confused and substitute a punishment for a past act - R v. B(CR) o Accused charged with sexual offences against his daughter. Accused’s defense was that he did not do it. Crown sought to adduce evidence of his previous sexual relations with his older daughter-in-law (with whom he had a father-daughter relationship). Trial judge admitted the evidence and convicted. Defence argued that the “similarities” of the SFE were not sufficient. o SFE is admitted because it is positively probative for the crime charged, BUT, the issue at stake is credibility, so the SFE is basically admitted to show propensity o Sopinka Dissents Vociferously: Evidence of propensity can absolutely never be admitted, it carries too much of a danger of the “forbidden inference” without sufficiently significant probative value - R v. C(MH) o Foster: looks like the court is unanimously overturning their decision in BCR, returning to Sopinka’s point of view Cannot admit evidence of propensity alone Too much danger of convicting on the forbidden inference R v. McFadden Example of SFE, Collateral Facts Bar, and Character Evidence Accused charged with 1st degree murder (planned and deliberate, murder while committing indecent assault). Accused testified that he had done it but doesn’t remember it because he was in a blackout rage (defense going for manslaughter or 2nd degree). Issues: - Murder while committing sexual assault o McFadden testified on cross that he was devoted to his wife – TJ held that this put his character in issue o Crown entered Pearce Incident (where he had suggested sex for a monetary debt) as SFE o Accused denied the Pearce Incident, and Crown sought to bring in Mrs. Pearce as rebuttal evidence - Evidence that killing was planned and deliberate o Defence entered expert character evidence to the effect that McFadden was a violent and impulsive person unlikely to kill someone deliberately Held: - The evidence of Mrs. Pearce to rebut the denial of the witness was inadmissible under the Collateral Facts bar o Decision of the jury should not be upheld despite the inclusion of the Pearce conviction R v. Handy The Leading Case! Established and applied the framework for balancing the probative value vs. the prejudicial effect of SFE Complainant, casual acquaintance of H, says that consensual sex following drinking session turned into hurtful non-consensual sex accompanied by physical abuse. Crown wanted to introduce testimony of H’s ex-wife, who had accounts of sexual and/or physical abuse on 7 occasions. The ex-wife had met the complainant before the alleged assault took place and told the complainant about her allegations of abuse during their marriage. Held: o Application of the Handy Test to the Case: o Issue in question: the actus reus – the actus reus of assault is unwanted sexual touching, and the similar fact evidence is offered to show that the sexual touching was NOT unwanted. o Probative value: The similar fact evidence occurred over many years, happened recently (only a couple months before the offence charged) No intervening events However, none of the incidents were very similar to the offence charged. None of the details matched The circumstances of the prior acts and the current offence were different – the similar fact evidence occurred in the course of a long-term marriage, not a one-night stand. Also, the ex-wife and the accused had lots of consensual sex as well. o Prejudicial Effect: Moral prejudice – if the evidence is believed, the jury will likely be more appalled by the pattern of domestic sexual abuse than by the alleged misconduct of a drunk guy in a motel room on one occasion. Thus, they may convict for being a bad person – the evidence has a serious potential for moral prejudice. Reasoning prejudice – the jury may be distracted by allegations of multiple incidents involving two victims is divergent circumstances. o Weighing the probative value against the prejudice: The Crown did not discharge its onus of establishing, on a balance of probabilities, that the probative value of the evidence outweighed its prejudice. Evidence was NOT admissible. Character and “Similar Facts” in Civil Cases Where a person’s character is directly in issue in a civil case, there are no special rules governing the admissibility of character evidence - Sometimes, such evidence will be barred by the Collateral Facts Rule Mood Publishing v. De Wolfe Ltd (UK) In civil cases the courts will admit evidence of similar facts if it is logically probative, that is if it is logically relevant in determining the matter which is in issue ∏ sued ∆ for making and marketing a song that sounded “very like” a song made some years before by the ∏. ∆ sent a letter to ∏ recognizing that the works sounded similar and that ∏’s work was produced prior to his own. ∏ sought to introduce evidence of a “trap” in which they had falsely told ∆ that certain music was off the air, and the ∆ had re-sold the music claiming it had been composed by another composer. ∏ also sought to enter evidence that ∆ had made music that “closely resembled” other existing copyrighted music Held: - SFE will be admissible in civil cases where it is logically probative and relevant, providing that: o It is not oppressive or unfair to the other side o The other side had fair notice of it and is able to deal with it - In this case: o The evidence is logically relevant to the issue: whether the songs are similar due to coincidence or copyright infringement Improperly Obtained Evidence This is an exclusionary rule based on policy extrinsic reason for excluding evidence from trial Rationale: - Designed to protect criminal suspects and defendants against overreaching by the state - Balancing the state’s need to obtain and use evidence of wrongdoing with the individual’s interest in liberty, privacy, etc. Common Law Confessions Rule Rule When a statement is made to a PERSON IN AUTHORITY, it is not admissible unless the Crown proves beyond a reasonable doubt that the statement was made VOLUNTARILY (and not the product of a will overborne by threats, promises, or inducement) In A Nutshell: Only applies to statements made to statements made to PERSONS IN AUTHORITY – a person who the accused subjectively and reasonably believed was in a position to “control or influence the proceedings against him” (Hodgson) o In Rothman an accused was put in a cell with an undercover cop, he asked the cop if he was a narc and the cop responded that he was a truck driver. Rothman admitted to the crime. The Court held that the confession rule did not apply because Rothman did not subjectively believe that the person was in a position of authority. THE RULE: For statements made by an accused to a person in authority to be admissible, the crown must establish, BRD, that the statement was VOLUNTARY in the sense that it was not the product of a will overborne by threats, promises, or inducements; by oppressive circumstances, or the lack of an operating mind. Policy trickery that would “shock the conscience of the community” is also grounds to exclude a confession (summarized in Oickle) o State must show the statement was not made in response to a threat, promise or inducement (Ibrahim, Boudreau) this is all about reliability State must show the statement was not made in response to conditions of oppression (Hobbins) reliability is a big concern that led to this rule as well o Accused must have an operating mind to give a voluntary statement (Ward, Horvath, Clarkson) This is about both fairness and reliability An operating mind knows what it is saying and appreciates the context of what he is saying – that the evidence can be used in a proceeding against him (Whittle) The STANDARD of voluntariness is high: the will must be overborne. A quid pro quo is not enough to breach voluntariness – need something that is so strong that the will is overborne, such that the accused is just a tool of the police (Oickle, Spencer) o The question is about the strength of the inducement o The accused is only involuntary when he has lost any meaningfully independent ability to choose to remain silent o **this law is in flux – see dissent of Spencer “Overborne” means that the statement must be made but-for the threat, promise, inducement, oppression or operating mind – the dissent argues that the majorities analysis in Spencer is turning the whole CL rule into an “operating mind” test EFFECT of a breach of the confessions rule = exclusion of the statement o Derivative evidence not excluded under CL confession rule – since the rule only concerned with reliability. Confessions Confirmed by Further Evidence o Rex v. St. Lawrence: Even where a confession has been found to be involuntary and thus inadmissible; where that evidence leads to the discovery of other objects of evidence, those objects are admissible along with the portions of the confession that directly pertain to the location of the found evidence o Reliability is the overriding concern o Person In Authority The CLCR only applies when the accused subjectively but reasonably believed that the questioner is in a position “to control or influence the proceedings against him” (Hodgson) - The CLCR basically applies as against the State R v. Rothman CCLR only applies to an accused that subjectively and reasonably believes he confessed to a person in authority The appellant was arrested, given a police warning and prior to being lodged in a cell - declined to give statement. Undercover constable was placed in the same cell in order to obtain information from the appellant. He did not identify himself as a police officer and the appellant did not appear to recognize him as such. During a conversation the appellant made a statement to the officer which the Crown attempted to introduce in evidence. The trial judge held that McKnight was a person in authority and excluded the statements on the grounds that the disguise was an improper means of eliciting the statement. Held: - Confession was allowable - Accused did not subjectively, reasonably believe that the person to whom he confessed was a person associated with the state - A claim for protection against self-incrimination can only arise where a tribunal or authority is seeking to compel an individual to disclose something which he does not wish to disclose Estey’s Dissent: - CLCR goes to the voluntariness of the confession - The accused expressed a desire to remain silent, and the tactics of the undercover police officer in ultimately obtaining a confession subverted the accused’s ability to exercise his right to silence R v. Hodgson “Person in Authority” refers to anyone that the accused believed to be in a position “to control or influence the proceedings against him” Appellant was friend of complainant’s family, occasionally babysat. Complainant (16 now) testified that he sexually assaulted her when she was 7 or 8. Complainant testified that appellant made a confession when confronted many years later. Appellant testified that he did not make a confession. Counsel did not request a voir dire to test the voluntariness of confession evidence. On appeal, contended that the judge erred in allowing the evidence and not conducting his own voir dire. Held: - While the family was capable of being persons of authority (if they were involved in the arrest, detention, examination or prosecution) the circumstances in this case would not have led to a reasonable subjective belief that they were persons in authority - HOWEVER - in circumstances where a statement of the accused is obtained by a person who is not a person in authority by means of degrading treatment such as violence or threats of violence, a clear direction should be given to the jury as to the dangers of relying upon it. - Policy concern of Fairness coming to rival Reliability o “it is apparent that from its very inception, the confessions rule was designed not only to ensure the reliability of the confession, but also to guarantee fundamental fairness in the criminal process” o Involuntary confessions are automatically excluded, regardless of their veracity If the truth of a confession was of paramount importance, there would be little to restrain the state from reprehensible investigation methods R v. Wells Accused charged with sexual assault. Father of victim had spoken to the police and planned to obtain an admission through trickery. When this did not work, he threatened the accused until he obtained a confession. Held: - New trial ordered - Based on the father’s connection to the police It was reasonable to conclude that this was one of those rare cases where the trial judge should have inquired whether there was need for a voir dire to determine whether the father was a person in authority Voluntariness For a statement to be voluntary, it must not be the product of a will overborne by: (1) Threats, Promises, or Inducement a. This is all about the reliability of the evidence b. A statement must be voluntary “in the sense that it has not been obtained from [the accused] either by fear of prejudice or hope of advantage exercised or held out by a person in authority.” (Ibrahim) (2) Atmosphere of Oppression a. Reliability is a strong concern here (3) Circumstances where the suspect lacks an Operating Mind a. Fairness to the accused is a primary concern alongside reliability of evidence b. In order for you to have an operating mind you must be aware of what you are saying and be able to understand that what you are saying could incriminate you (Whittle) (4) Where the police have engaged in “Appalling” Trickery R v. Serack Example of a statement obtained in oppressive conditions inadmissible Man arrested and charged with sexual assault, brought to the police station with no clothes. He was given a blanket, and left in the cell for hours, at which point he was taken and interviewed, still without clothes, and gave a confession. Held: - “A man’s trousers are, in a situation like this, essential to his dignity and his composure” - Police officer had a “palpable advantage, one that may quite disarm an accused of a wholly independent recollection and separate will” R v. Oickle Outlines the CL confessions rule confessions to authorities are only admissible if they are made VOLUNTARILY. The factors to consider when determining whether there is a reasonable doubt as to voluntariness are the making of threats or promises, oppression, police trickery, or lack of an operating mind. Man accused of arson, underwent very lengthy, multi-stage interrogation and a polygraph test. At several points in the interrogation he appeared very emotionally distraught. At every stage in the interrogation, the police correctly advised him of his rights. He was told he “failed” the polygraph test, and subsequently interrogated until late in the night. Held: - Fairness and Reliability o Court acknowledges that both concerns are at play in voluntary confession inquiry, but Oickle probably brings us back to a focus on reliability of the evidence (responding to fear of false confessions) - The Will Overborne o In all police investigations, the police need to try to convince the suspect to confess to what they know this process will only be improper when the techniques used by the authorities are coercive enough to overbear the will of the subject o “For statements made by an accused to a person in authority to be admissible, the Crown must establish, beyond a reasonable doubt, that the statement was voluntary in the sense that it was not the product of a will overborne by threats, promises, or inducements; by oppressive circumstances, or the lack of an operating mind.” - In this Case o Police did not go too far in obtaining confession there was no evidence of threats/promises/inducements sufficient to overbear the will of the accused o Police Did: Minimize the moral seriousness of the crime Suggest his fiancée would respect him more for confessing Offer psychiatric help Intimate it would be necessary to question the accused’s fiancée if he did not confess o None of this was strong enough inducement to raise a reasonable doubt as to the voluntariness of the confession Dissent - Linking threats/promises/inducement to the will overborne is tantamount to collapsing everything into an operating mind test you’re saying that threats/promises/inducement will mean nothing unless they remove the operating mind - The threats/promises/inducements were subtle but in the context of the “failed” polygraph test were sufficient to overbear the suspect’s will o The statements were obtained as a result of fear of prejudice or hope of advantage Confessions Confirmed by Further Evidence This Rule applies to situations where the police obtain a confession from the accused, and then discover further evidence that confirms the confession in whole or in part RULE: Even where a confession has been found to be involuntary and thus inadmissible; where that evidence leads to the discovery of other objects of evidence, those objects are admissible along with the portions of the confession that directly pertain to the location of the found evidence (St. Lawrence) R v. St. Lawrence Sets out the rule for derivative evidence obtained as a result of an inadmissible confession physical evidence is admissible, along with those parts of the confession that directly pertain to the location of the found evidence Accused confessed, in circumstances that made the confession inadmissible, to the location of a “twitch” and a wallet. Based on confession, police found the twitch (switch) and the wallet. Crown theory is that he used the twitch to beat the victim and stole the wallet. Is the derivative evidence of an involuntary confession admissible? Held: - The part of the accused’s confession that goes to prove the fact that he knew where the items were is admissible, but every other part of the confession is inadmissible - Clearly, the overriding concern is the reliability of the evidence R v. Sweeney Effect of the Charter on the Rule in St. Lawrence introduced more judicial discretion, but leaves the rule largely unchanged Accused made a statement that was involuntary, and the police found a gun as a result of the statement. Court considered whether the Charter had changed the rule in Rex v. St. Lawrence. Held: - Obiter Charter probably did change the rule slightly, in that it allowed more judicial discretion - In this case it is irrelevant, since: o s.7 right to silence would be infringed by involuntary confession o AND, Under s.7 the parts of the confession directly related to the obtained gun were admissible in accordance with fundamental principles of justice - Like Singh, this case suggests that the s. 7 right to silence and the voluntariness protection are functionally equivalent S.7 Right to Silence The Charter “Confessions Rule” is separate but not conflicting with the common law confessions rule – the Charter will exclude any confession evidence that is made in breach of its principles Singh In the case of confessions, note that the s. 7 Right to Silence is functionally equivalent to the Common Law Confessions Rule. - This means that if the confession is voluntary under the CLCR, you probably won’t be able to have it excluded under s. 7 of the Charter (Singh) - If your will was not overborne, your right to silence was not infringed Turcott An accused’s choice to exercise his right to remain silent cannot be used against him as evidence Accused drove up to police and told them they “had to check out” a certain farm. He refused to give any further details. At trial, the Crown sought to enter the evidence of his refusal to give any more details (effectively his right to remain silent). Illegally Obtained Evidence 24(2) S. 24(2) Charter 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 APPLIES any time an accused interacts with anyone who is objectively an agent of the state (Hebert) - Only when it is the accused’s Charter rights that have been allegedly breached, you can’t seek to exclude evidence against you based on a breach of someone else’s rights (Edwards) BURDEN is on the accused to show that the evidence was “obtained in a manner” that infringed their Charter rights - 24(2) does not call for a causal connection between breach and evidence obtained a temporal connection will be considered and the closer the connection, the more significant the breach (Strachan) - The temporal link between breach and securing of evidence must be so close to the production of evidence that it was an integral part of the transaction (Goldhart) When evidence is found to have been obtained in breach of Charter rights TEST for s.24(2) of the Charter = the Grant test Would a reasonable person, informed of all the relevant circumstances and the values underlying the Charter, conclude that the admission of the evidence would bring the administration of justice into dispute (Grant) 3 factors of inquiry in every case; the court must BALANCE all 3 and ask: is it is better for the administration of justice to include it or exclude it? *Court must consider this from a forward-looking, long term societal perspective. 1. The seriousness of the Charter infringing state conduct Inadvertent, minor; willful or reckless disregard; good faith on the part of police; part of a pattern of abuse 2. The impact of the breach on the Charter protected interests of the accused The interests engaged by the infringed right; the degree to which the violation impacted on those interests 3. Society’s interest in the adjudication on its merits Is the illegally obtained evidence reliable? (If no, then it is pretty much out) How important to the crown’s case? Seriousness of the offence cuts both ways Who can hear a 24(2) application: - Any “court of competent jurisdiction” o Any trial court, court trying regulatory offences, or extradition court o Administrative tribunals are competent when they have the authority to decide questions of law - Judicial officers presiding over pre-trial hearings are not competent Charter Rights Often Breached - Section 7 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 o Interpreted to include Right to Silence - Section 8 everyone has the right to be secure against unreasonable search or seizure - Section 9 everyone has the right not to be arbitrarily detained or imprisoned - Section 10 everyone has the right on arrest or detention o (a) to be informed promptly of the reasons therefore o (b) to retain and instruct counsel without delay and to be informed of that right To Whom does it Apply: R v. Hebert Charter confession protection (s. 7 right to silence) applies upon detention where an accused is in contact with someone who is objectively an agent of the state Almost identical facts to Rothman: accused arrested, made clear he did not want to talk to the police, put in a cell with an undercover officer who eventually got Hebert to give a confession. Under CLCR, nothing wrong with this. Held: - The undercover officer obtained a confession in breach of Charter rights (s.7) o 24(2) test is engaged - Charter applies, upon arrest or detention, to anyone objectively in a position of authority - This right does not apply to volunteered confessions o Distinction must be made between undercover officers observing the suspect and undercover officers subverting the intent of the accused to exert their right to silence R v. Edwards You can only claim your own Charter rights Accused suspected of possession and trafficking. Police suspected there were drugs in his g/f’s apartment. After taking accused into custody, they used a series of lies and half-truths to convince the g/f to let them into her apartment (Many Charter rights are breached, ss. 7 and 8). Much crack is found. His vehicle was subsequently searched without a warrant, much crack found. Edwards is convicted. Edwards appeals on the grounds that they breached his girlfriend’s rights. Held: - In this case, there is no need to inquire as to the reasonableness of the search, since the accused’s reasonable right to privacy was not infringed “Obtained in a Manner” Accused must show that the evidence was “obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter” Causal Connection Was the Charter breach the cause of the production of evidence? Temporal Connection Was the temporal connection between the Charter breach so close to the production of evidence that it was an integral part of the transaction? R v. Strachan 24(2) does not call for a causal connection between breach and evidence obtained a temporal connection will be considered and the closer the connection, the more significant the breach Police suspected accused of drug offence, obtained a warrant to search his apartment. Police arrived to find him with drugs and money. Accused was read his rights, officer denied his attempts to phone his lawyer until he had a chance to question them and search for guns. Accused finally got 10(b) rights 1.5 hours later. Held: - Causal connection is not demanded As long as the violation of the right is somehow involved in the evidence gathering process, it will be considered in application to exclude evidence o S. 8 guarantee against unreasonable search was not violated, but 10(b) guarantee of right to counsel was - In this case, the temporal connection between the breach of rights was very close to the production of evidence (even though the evidence was not produced in breach of Charter) o The evidence was not obtained through a breach of 10(b), but the temporal link was so close between securing the evidence and breaching the right that it became part of the same transaction - However, in this case the evidence was admissible under the Grant Test o Seriousness of the Breach Charter breach was inadvertent and was not part of a larger pattern of disregard for Charter rights the accused was not mistreated o Impact of the Breach on the Accused no self‑ incriminatory statements were elicited o Society’s interest in the Administration of Justice Evidence was important Offence was serious R v. Goldhart If there is no causal connection, the temporal connection must be so strong as to make the charter breach and the securing of evidence part of the same transaction Accused arrested on premises searched pursuant to invalid search warrant. Marijuana seized but excluded from evidence. Accused nevertheless convicted on basis of statement of a witness arrested with accused testifying for Crown at accused’s trial. Question is whether witness’ evidence obtained in a manner that breached the Charter and, if so, whether its admission would bring the administration of justice into disrepute. Was there a temporal connection between the witness’ evidence and the Charter breach and was any causal connection with the Charter breach too remote? Held: - While a temporal link can be significant, it will not be determinative, especially if the connection between the securing of the evidence and the breach is remote - In this case o the temporal connection between the production of evidence and the Charter breach was weak o There was no causal connection between breach and production of evidence - The discussion was moot in this case anyway, since the evidence of the witness used to convict the accused was not obtained in breach of Charter o The other witness’ decision to voluntarily confess was basically an intervening act R v. Witttwer Example of temporal and causal connection between breach and production of evidence causing evidence to be inadmissible Interviewed by constable who neglected to inform him of his right to counsel. Wittwer gave an extensive confession, authorities thought it would be likely inadmissible. Second officer goes in to talk to him without giving him any indication that he knew about the prior statement, and advises him of his right to counsel (but doesn’t facilitate his right to counsel. Third officer goes in to do the same, with right to counsel properly exercised, and provokes a confession by telling him about the previous two testimonies. Held: - “Tainted Evidence” - Statement inadmissible temporal and causal link between the first Charter breach “Bringing the Administration of Justice into Disrepute” To determine whether the admission of evidence obtained in breach of a Charter right would bring the administration of justice into disrepute, apply the GRANT TEST Pre-Grant Three Stage Test outlined in R v. Collins In Collins, the police grabbed the suspect’s neck to keep her from swallowing evidence – trial proceeded that evidence was obtained in breach of Charter (no reasonable and probably grounds) 1. Would admitting the evidence adversely affect trial fairness? RULE: if evidence is conscriptive and non-discoverable, it is excluded at this first step (Stillman) Trial fairness is about self-incrimination (Stillman) Conscriptive evidence would adversely affect trial fairness – evidence is conscriptive where an accused, in violation of the Charter, is compelled to incriminate himself by means of a statement or use of bodily samples (Stillman) Derivative evidence found as a result of these things is also conscriptive (Stillman) But trial fairness is not affected if the conscriptive evidence was discoverable (ie: would have been found anyways) 2. Was the Charter breach a serious one? 3. Would the exclusion of evidence bring the administration of justice into greater disrepute than admitting it? After Collins, commentators and courts began to critique the Collins test for setting up an automatic exclusionary rule at the first state - If evidence was held to be conscriptive and non-discoverable, then the evidence would be excluded w/out considering stages two and three of the Collins test. R v. Stillman Built on the Collins test If evidence is conscriptive, you can still move on to factors 2 and 3 if the evidence was discoverable Sexual assault and murder. Accused arrested and counsel advise him not to talk, and write letter to police advising them that they told him not to talk or submit physical evidence. Police ignore and physically force him to give hair and dental evidence. At trial the defence sought to exclude the evidence under 24(2) Held: - In order to prove that evidence was nonetheless discoverable, Crown must establish: o (1) that the evidence was inevitable o (2) that there is an independent source of the evidence This modification of the Collins test represented the growing concern that some very valuable evidence was being excluded, even when the breach of the right in question appeared to be really minor. The Law as it Stands R v. Grant Police officers confronted Grant on the street after becoming suspicious of his behavior “fidgeting with his clothes”. Police officers blocked the way forward on the street, and asked the accused if he had anything he shouldn’t have. Grant admitted to having a small bag of marijuana and a firearm. Grant was arrested and charged with 5 firearm offences. Held: Overturned Collins - It was a mistake to make “Trial Fairness” a distinct stage in the 24(2) analysis – a court must consider all of the factors when determining whether the administration of justice has been brought into disrepute o A fair trial "is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness to the accused" - 24(2) includes the words “with regard to all the circumstances” Established the Test for Whether the Admission of Evidence Would Bring The Administration of Justice into Disrepute: - When faced with an application for exclusion under s. 24(2), a court must ASSESS AND BALANCE the effect of admitting the evidence on society's confidence in the justice system having regard to: o (1) The seriousness of the Charter-infringing state conduct o (2) The impact of the breach on the Charter rights of the accused o (3) Society’s interest in the adjudication of the case on its merits Different types of evidence will be treated differently based on the considerations in the test - Statements by the accused o Heightened concern about reliability o Goes to society’s interest in the adjudication of the case on its merits - Bodily Evidence o Usually obtained with serious impact on the accused (Stillman categorized bodily evidence as coerced almost by default) o Goes to the impact of the breach on the accused - Non-Bodily Physical Evidence o Seriousness will be a fact-specific determination E.g. the court in Grant says a dwelling house attracts a higher expectation of privacy than a place of business or an automobile - Derivative Evidence o Since evidence in this category is real or physical, there is usually less concern as to the reliability of the evidence - the public interest in having a trial adjudicated on its merits will usually favour admission of the derivative evidence o In this case: - The evidence was admitted o Offence is Serious gun crimes are a scourge o Physical evidence not a strong worry about reliability o Good faith on the part of the police less serious breach R v. Harrison Example of an exclusion of evidence under the Grant Test Cocaine discovered as a result of an unconstitutional detention and search. Officer stopped a car without reasonable/probable cause, accidentally pursued based on offence in Ontario (though car was registered in Alberta) and followed through with detention to “preserve the integrity of the police in the eyes of the public” (was embarrassed). Upon detention, condition of the car raised suspicion, search revealed 35kg of cocaine. Held: - Application of Grant test: o Seriousness of the Breach Blatant disregard for Charter rights Aggravated by the officer’s lies on the stand o Impact on Charter Rights Notwithstanding the seriousness of the Breach, the impact on the accused’s rights was not terribly serious o Society’s interest in the adjudication of the trial on its merits R v. Calder Once evidence is excluded under the Charter, it cannot be admitted again for any purpose C was officer, charged with attempting to purchase sexual services of prostitute, gave statement as part of an internal disciplinary proceeding (cautioned that he didn’t have to say anything, asked why the caution several times with no direct answer but rather responses of reading sections of code, no 10(b) warning was given) during interview C denied going to place where alleged meeting was with prostitute – this was a lie, C’s testimony at trial contradicted by independent evidence. The statements were excluded (breach of 10(b)) and C was acquitted. During cross, the Crown sought to tender the excluded statements, argued that the change in the circumstances justified a reconsideration of the judge’s earlier ruling that the admission of the evidence would bring the administration of justice into disrepute. Held: - If evidence has been excluded by 24(2), it cannot be admitted again for any reason - Concerned with both reliability of the evidence and fairness of the accused Dissent: - this is conflating the Charter exclusion with a CLCR exclusion - There are changes in situations which could warrant the reexamination of the admissibility of evidence obtained in Charter breach o Where new evidence increased Society’s interest in the adjudication of the trial on its merits Privilege Against Self Incrimination Pre-Charter At Common Law Privilege against self-incrimination was a testimonial concept with 2 branches: (1) Even when an accused was competent to testify, they were not compellable (2) A witness could invoke a common law privilege and refuse to answer a question on the grounds that the answer might tend to incriminate the witness (judge would hold voir dire to determine whether statement was incriminating) Canada Evidence Act Section 5 Replaced the Common Law - 5(1) Incriminating Questions o No witness shall be excused from answering any question on the ground that the answer to the question may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person. - 5(2) Answer not admissible against a witness o Where with respect to any question a witness objects to answer on the ground that his answer may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person, and if but for this Act, or the Act of any provincial legislature, the witness would therefore have been excused from answering the question, then although the witness is by reason of this Act or the provincial Act compelled to answer, the answer so given shall not be used or admissible in evidence against him in any criminal trial or other criminal proceeding against him thereafter taking place, other than a prosecution for perjury in the giving of that evidence or for the giving of contradictory evidence. Essentially, After CEA s. 5: - In Canada a compellable witness does not have the right not to answer on the basis that it might incriminate them (think pleading the 5th in the US – we don’t have it) - Instead of being able to rely on your CL right not to answer, in Canada, you MUST answer the question; BUT if you invoke s. 5 of the CEA (see below) you enjoy what is called a “use immunity” the state cannot then use the statement in subsequent proceedings against you o The witness could object (“this evidence may incriminate you”) and down the road, if the witness was tried, there would be a statutory “bubble” that prevents the answer from being used against them Problems with CEA s. 5 that led to its failure: - It needed to be invoked; not automatic - There needs to be an objection o A witness generally does not have a lawyer, so the witness would need to object by themselves - Only if the witness apprehends the evidence might be incriminating will s. 5 be invoked Therefore, s. 5 was only useful for the sophisticated witness Section 13 of the Charter The Law as it Stands 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. This section of the Charter leads to the same outcome as s. 5: (Noel) - you must make the statement but later it will NOT be used against you - It guarantees the right not to have a person’s previous testimony used to incriminate him or her in other proceedings which would be tantamount to using the accused as a crown witness during his own trial o This relates to both: the right of non-compellability 11(c) and the presumption of innocence 11(d) – conscripted to help the crown in discharging its burden of establishing guilt BRD With the Added Benefit That: - the right applies to all witnesses, including an accused who chooses to testify, regardless of whether they invoke section 5 of the CEA o This fixes the problem of unsophisticated, unrepresented witnesses who were denied protection because they did not invoke CEA s. 5 “Any Incriminating Evidence” any evidence the Crown tenders as part of its case against an accused is, for the purposes of s.13, incriminating evidence - The only moment in time which is relevant to the assessment of the incriminating nature of the evidence is the second proceeding (s.13 does not require that the incriminating character of the evidence be evaluated in the first proceedings) (Dubois) “Any Other Proceedings” Includes: - A retrial of the same offence (Dubois) - Bail hearing, prelim, voir dire - Earlier independent proceedings (such as a civil trial) or an administrative hearing at which evidence is taken under formal process Rules and Scope of s. 13 (Henry) (1) If the accused does not testify at his trial, his testimony from an earlier proceeding cannot be used against him at that trial, regardless whether he was the accused or a mere witness at the earlier proceeding (2) Even if the accused does testify at his 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 (3) If the accused does testify at his trial AND he was not a compellable witness in the earlier proceeding, his testimony from an earlier proceeding can be used to crossexamine him a. S.13 does not protect those who have not been compelled to incriminate themselves R v. Dubois Court defines the scope of s.13 specifically; re-trials on the same issue constitute “other proceedings” under the meaning of s. 13 At first trial – accused testifies. Court of Appeal orders a new trial. At second trial – Crown enters accused’s testimony from trial 1, over his objections. Accused decides not to testify at trial 2. Crown argued that this was not barred by s.13 because a re-trial was not an “other proceeding” Held: Nature and purpose of s.13: section 13 relates to the right of non-compellability 11(c) and the presumption of innocence 11(d) of the Charter o The Crown must establish guilt BRD, they present their case first and if do not put forth enough evidence the accused is entitled to an acquittal. Only after crown has presented their entire case does the accused have to present their case – the right to know the case against him so as to make full answer and defence o Accused cannot be conscripted by his opponent to defeat himself the purpose of s.13 is to protect individuals from being indirectly compelled to incriminate themselves, to ensure that the crown will not be able to do indirectly that which s.11(c) prohibits – it guarantees the right not to have a person’s previous testimony used to incriminate him or her in other proceedings Beneficiary of the right: o applied to all witnesses, including an accused who chooses to testify “Incriminating evidence”: o The only moment in time which is relevant to the assessment of the incriminating nature of the evidence is the second proceedings S. 13 does not require that the incriminating character of the evidence be evaluated in the first proceedings as well as in the second. o Any evidence the crown tenders as part of its case against an accused is, for the purposes of s.13, incriminating evidence. “Any other proceedings”: o Specifically the court looks at whether this includes an accused who has chosen to testify at trial and if they are protected by s.13 in a retrial for the same offence o Yes; the accused is being conscripted to help the Crown in discharging its burden of “a case to meet” and is thereby denied his or her right to stand mute until as case has been made out To allow the Crown to use, as part of its case, the accused’s previous testimony would, in effect, allow the crown to do indirectly what it is estopped form doing directly by s.11(c) – compel the accused to testify In other words: if the crown can prove all or even parts of its case by using testimony that the accused furnished in an earlier proceedings, it would be tantamount to using the accused as a crown witness during his own trial o R v. Mannion (OVERRULED BY HENRY) Accused testifies at trial 1. At trial 2, accused testifies again, and Crown seeks to cross-examine him on his testimony from the first trial to impeach credibility Held: evidence was excluded, court held that Crown also cannot use the accused’s testimony from a previous trial for cross-examination of the witness - This is no longer the law (SEE Henry) - Note: This judgment was authored by Justice MacIntyre, who dissented in Dubois. Foster thinks this may have been a polemic him showing his fellow justices how wrong and obstructive to justice the law as laid down in Dubois could be when it was taken to its natural conclusion (allows an accused to stand up and tell two totally different stories with no prejudicial effect) R v. Kuldup (CORRECT RESULT, WRONG METHOD) Accused testifies in first trial and in second trial. His testimonies were directly inconsistent. Crown wanted to cross-examine him on his inconsistent testimony. Defense argued it must be excluded per Mannion. Held: statement is admissible, based on a distinction between a cross-examination designed to incriminate, and a cross-examination designed to challenge credibility - This only created more ambiguity (As long as you are cross-examining for the purpose of testing the accused’s credibility you can enter evidence from previous trial?) R v. Noel Example of s.13 excluding statements because the accused was a COMPELLABLE witness in the first proceedings Accused testifies at first and second trial. The first trial is not Noel’s trial, it is the trial of his brother (he was called as Crown’s witness and cross-examined, resulting in him giving incriminating statements). Resulted in the second trial being the direct prosecution of Noel. At the first trial he claimed the benefit of s. 5 of the CEA (underlining the fact that his testimony was compelled). Crown attempted to adduce statements from first trial at second trial. Held: Accused’s statements were inadmissible R v. Henry Leading Case! Articulates the rules for & scope of s.13 Botched “rip-off” of a grow op leads to first degree murder charge (suffocated man with duct tape). Appellants told a different story under oath then they had 5 years earlier at their first trial on the same charge (one changed from “intoxicated” to “don’t remember”, one testified that he had occasionally lied at first trial but now had a clear memory). They were cross-examined at the subsequent trial on prior inconsistent statements. Defense argued that cross examination for the purposes of impeaching credibility was “illusory”, that the examination was for incrimination, and that the statements should be excluded under s.13. Crown argued that, in volunteering testimony at the second trial, accused had stepped outside of s. 13 protection. Held: - Dubois Upheld: o Crown can’t introduce statements from a previous trial as part of its case in chief - Limits on Exclusion: o on cross examination, s. 13 is not available to an accused who chooses to testify at his or her retrial on the same indictment o The protective policy of s. 13 must be considered in light of the countervailing concern that an accused, by tailoring his or her testimony at successive trials on the same indictment, may obtain through unexposed lies and contradictions an unjustified acquittal, thereby bringing into question the credibility of the trial process itself - Purposive Interpretation of s. 13 to protect individuals from being indirectly compelled to incriminate themselves Derivative Use Immunity (S. 7) If the Crown respects section 13 in a second trial, but finds evidence that suggest the accused has committed a crime based on the testimony from the first trial o This is a derivative use of the testimony o S. 13 says nothing about this The court created a derivative use immunity under s. 7 of the Charter to solve the problem mentioned above “When the state is trying to use evidence against the accused that it would not have found but for the earlier compelled testimony, s. 7 of the Charter may provide a derivative use immunity” (R. v. S.(R.J.)) TEST: “Practically speaking, could the evidence have been located without the statement” or “would the evidence, on the facts, have otherwise come to light?” o The Crown has to show this on a balance of probabilities o If the Crown shows this, the evidence is admissible BURDEN: Although the burden here is formally on the accused (because it’s the claim of a right), the reality is that, if the accused shows a plausible connection between statements they made before and new evidence found, the Crown will have to prove on a balance of probabilities that the evidence would have been discovered, even without the new evidence This is NOT a solid exclusionary rule; it is in flux and argumentative (the Crown will have to demonstrate discoverability) but it addresses the issue that s. 13 only protects statements, not evidence found on the basis of these statements Privilege The Quintessential Example of an extrinsic exclusionary rule: even though the evidence is probative and reliable, it is excluded to preserve the integrity of a relationship or social process RATIONALE: to encourage open communication in certain settings or to protect relationships that have a particular value or society views as precious; to protect certain social processes The Presumption is that relevant evidence is admissible, privilege only exists as an exception in special circumstances Note: privilege vs. confidentiality: Confidential is a label that has absolutely NO legal impact in the law of evidence/on admissibility of evidence. The only bar on otherwise good evidence is PRIVILEGE. Most things that are privileged are confidential; but things that are confidential are not necessarily privileged (eg: medical records are confidential, but must be produced to the Court if the legal system asks for them.) Note: privilege vs. competency: Competency/compellability is about getting the witness on the stand Privilege is about what the witness can say on the stand, once he is on the stand We only get to privilege once a witness is found competent/compellable. Note: waiver: Every privilege is enjoyed by someone; someone holds the privilege. Privileged information is inadmissible subject to waiver. The only person who can waive the privilege is the person who holds the privilege o I.e. with spousal privilege, the listener holds the privilege TEST: is the communication privileged? (McClure) 1. CLASS PRIVILEGE If a relationship falls within a traditionally protected class, the relationship is protected by class privilege and is therefore warranted a prima facie presumption of inadmissibility. The other party must show why the communications should not be privileged (ie: why they should be admitted into evidence as an exception to the general rule) (a) Ie: solicitor-client privilege (b) Ie: informer privilege (c) Ie: matrimonial privilege (d) Ie: litigation privilege 2. CASE-BY-CASE PRIVILEGE Other confidential relationships (such as doctorpatient or religious communications) are not protected by a class privilege but may be protected on a case-by-case basis. T a. The Wigmore Test: (1) The communications must originate in a confidence that they will not be disclosed (2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation bwt the parties (3) The relation must be one which in the opinion of the community ought to be sedulously fostered (4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of the litigation Class Privileges If a relationship falls within a traditionally protected class, the relationship is protected by class privilege and has a prima facie presumption of inadmissibility. The party wishing to adduce the evidence must show why the communications should not be privileged (ie: why they should be admitted into evidence as an exception to the general rule) Solicitor-Client Privilege Constantly cited as the oldest and most important privilege. (this is a little self-serving) - “Highest privilege known to the law” (Smith v. Jones) - “As close to absolute as possible” (McClure) RULE: A communication between a solicitor and a client, of a confidential nature and related to the seeking, forming, or giving of legal advice, is privileged information. RATIONALE/PURPOSE: Clients need to be able to openly communicate with their lawyer in order to seek proper legal advice. If it was privilege, people might not tell everything to their lawyer out of fear thereby compromising their ability to get the best possible legal advice o Foster-Wheeler (SCC) lists the rationale: To preserve the relationship of trust between lawyers and clients To preserve full and frank communication between lawyers and clients To preserve the existence and effective operation of Canada’s legal system CREATION AND DURATION: Requirements for SC privilege (Solosky) 1. The communication must be between a lawyer and client There does not need to be a formal retainer It does not make a difference if it is in-house counsel if the other two criteria are met (Pritchard) 2. The communication must entail the seeking of legal advice 3. The communication must be intended to be confidential Once these three criteria are met, the privilege exists HOLDER/WAIVER: Privilege belongs to the CLIENT; it is for the client (and not the solicitor) to waive, although the client may authorize his solicitor to disclose the information Authorization to waive the privilege can be implicit (Campbell) E.g. In Campbell, reverse-sting operation (police selling drugs), claimed they had been advised by lawyer, accused wanted access to advice they alleged they had been given. DOJ claimed privilege. Held: SCC held that if they were going to rely upon the advice to justify an alleged abuse of privilege, they had impliedly waived the right to privilege SCOPE OF PROTECTION: Any communication with a lawyer & the information contained in those communications is protected o This has been read broadly In-house counsel are also subject to solicitor-client privilege (Pritchard) o As long as the communication entails legal advice and is intended to be confidential – looking at the nature of the relationship, the subject matter of the advice and the circumstances in which it was sought and rendered. SC privilege also protects communications made to employees or contractors of the lawyer/firm o Employees: Secretary, articling students SC privilege protects communications made to agents of the lawyer o Contractor/Agents: doctors, specialists working for the lawyer Note: A lawyer is not a safety-deposit box: privileged cannot be used to shield the client from disclosing otherwise non-privileged material Eg: Paul Bernardo videotapes: he had his lawyer pick up videotapes of him torturing his victims from his house and hold on to them – the videotapes pre-existed the solicitorclient relationship and ultimately had to be turned over to the crown (Note: the discussions about retrieving the videotapes were privileged) DURATION: Forever – even after death. EXCEPTION: wills wills are intended to be released upon death EXCEPTIONS: If a communication is protected by solicitor-client privilege, it is presumptively inadmissible. This presumption can be rebutted if there is an exception that permits disclosure 1) CRIMINAL PURPOSE: legal advice must be “lawful” to attract protection. If the communications are in themselves criminal, they are not protected To determine if this exception applies, the lawyer will need to show a foundation for the exception, and then a judge will look at it and determined if privilege should be waived 2) PUBLIC SAFETY: SC privilege will be set aside if there an imminent risk of serious harm to an identifiable person/group. The rationale is that the importance of the SC privilege is overcome by the need to protect public safety. There are three criteria for the public safety exception (Smith v. Jones) a. Clarity of risk Likelihood that the risk will happen Identifiable group at risk b. Seriousness of the risk It must be a risk of serious bodily harm or death This can include psychological harm c. Imminence of the danger This is the most flexibly applied factor. If clarity and seriousness are high enough, imminence will be found. Smith v. Jones Privilege is set aside for public safety when the contents of the communication disclose an imminent risk of serious harm to an identifiable group/person Jones was charged w/aggravated sexual assault of a prostitute – his lawyer referred him to a psychiatrist, Dr. Smith. The lawyer told Jones that the consultation with the psych was privileged, just as it would be for a consultation with him. Jones told Dr. Smith about his plan to find a victim prostitute, make her his sex slave, and then kill her. He said that he would do this to other victims as well. Dr. Smith told Jones’s lawyer that, in his opinion, Jones was a dangerous individual that would commit future offences unless he received future treatment. When Dr. Smith learned that the judge would not be advised of his concerns, he filed an application to have the communications between him and Jones disclosed under the public safety exception to the law of solicitor-client privilege Held: - Client communications to lawyers’ agents, like this communication to a psychiatrist, are privileged - In some circumstances the interest of public safety can outweigh the privilege - The privilege is waived only for In this case, the privilege was waived o a protective purpose, only so much of it as is necessary to warn of the danger o There was a clear danger to an identifiable group o The danger was serious o The danger was imminent Dissent: - Majority says you can disclose not just the danger, but some of the related material parts of the statement this goes too far o Public safety exception can be satisfied simply by the warning 3) INNOCENCE AT STAKE: privilege will yield to an accused’s right under s. 7 of the Charter to make full answer and defence, where it stands in the way of an innocent person establishing his or her innocence. Threshold Test: The accused must establish two elements on a balance of probabilities (McClure): o (1) That the information the accused is seeking is not available from any other source, AND o (2) That he is otherwise unable to raise a reasonable doubt as to his guilt Substantive Test: this is a two-stage test to appy IF the threshold requirement is met (McClure, refined in Brown). o Note: Due to the stringent nature of the test, only in rare circumstances will the information be disclosed (Brown) o Stage 1: the accused must establish an evidentiary basis on which to conclude that there IS a communication that COULD raise a reasonable doubt The communications must be the only way for the accused to raise a reasonable doubt as to his guilt – it cannot be ordered to bolster or corroborate evidence that is already available to the accused If there is some evidence on which a reasonable jury, properly instructed, could acquit, then the McClure application must be denied Procedurally: the McClure application should be delayed until the end of the Crown’s case – this allows the trial judge to better assess the strength of the Crown’s case and to determine whether the accused’s innocence is in fact at stake – if the judge believes that the crown has failed to prove its case BRD the application should be denied Issue: it puts the defence lawyers in a position of having to argue that their case is not strong enough to avoid conviction – if they fail in getting access to the privileged information, they have prejudiced their position by denigrating their own case NOTE: the accused will have to make this argument WITHOUT having seen the file/communication If this part of the test is NOT met, the privilege stands and the judge need go not further. If this part of the test is satisfied, the judge should proceed to the next stage of the test o Stage 2: trial judge should examine the communication to determine whether, in fact, it is LIKELY to raise a reasonable doubt as to the guilt of the accused It is important to distinguish that the burden in the second stage of the innocence at stake test (likely to raise a reasonable doubt) is STRICTER/HIGHER than that in the first stage (which was if it could raise a reasonable doubt) The evidence must go directly to one of the elements of the offence It cannot be ordered to bolster or corroborate evidence that is already available to the accused It cannot be ordered to advance ancillary attacks on the Crown’s case – eg: impugning the credibility of a crown witness Is this unduly restrictive? in many cases credibility is central to the trial If the innocence at stake test is satisfied, the judge should order disclosure of the communications that are likely to raise a reasonable doubt R v. Brown Refines/clarifies the McClure test for the Innocence at Stake exception to SC privilege. Baksh was found dead – he had been stabbed. Donna Robertson told the detectives that her boyfriend, Benson, had told her that he was the person who had killed Baksh. She said that Benson had confessed this to his lawyers. The police investigated Benson, found nothing. Brown, a guy who had bought drugs from Baksh, was charged with the murder. The charge was based on a jail house informant (McDOOM!) who said that Brown told another inmate that he had stabbed Baksh. Brown made a McClure application to disclose the communications between Benson and his lawyers in order to assess the reliability of the informant. Held: - In this case, the threshold test is not met: o The information may be available from another source – Donna Robertson’s testimony. It is unclear whether this testimony would be admitted as an exception to hearsay – the trial judge should have had a voir dire. o Brown could have raised a reasonable doubt – the evidence against him was not that good and it was speculative whether the Crown could have proved its case. Litigation Privilege RULE: Communications between a lawyer and third persons are privileged IF, at the time of the making of the communication, litigation was commenced or anticipated AND the dominant purpose for the communication was for use in, or advice on, the litigation. o Applies only in the context of litigation o Does not require that the communication be made in confidence o Is far more likely to be truncated [much less protected than solicitor-client] RATIONALE/POLICY: Litigation privilege protects the confidentiality of the work done by a lawyer in preparing for litigation o in the course of providing legal advice to a client, a lawyer will need to interview witnesses, consult with experts, and undertake copious research on the law o Litigation privilege works as a limit on disclosure during discovery – it protects the work done by counsel from disclosure to other parties, it protects counsel’s role in the litigation process and facilitates the adversarial process Purpose is to ensure the efficacy of the adversarial process (Blank) o parties to litigation, represented or not, must be left to prepare their contending positions in private o Litigation privilege protects a process, while SC privilege is about protecting a relationship Also called: “work product”, “solicitor-third party” or “anticipation of litigation” privilege HOLDER/WAIVER: Held by the client; can only be waived by the client SCOPE: Protects communications between a lawyer and a file - it protects documents made for the primary purpose of litigation It protects any preparation for a case – does not just protect client confidences, like SC privilege does o Does not require a SC relationship – can be a self-represented individual DURATION: Litigation privilege ends when the proceedings end. The end of the legal proceedings are defined broadly. (Blank) o Litigation ends when it REALLY ends. “Litigation” includes related issues/proceedings. UNRESOLVED ISSUE can you take information/documents from the public domain and make them subject to litigation privilege? - McEachern (Lyell v. Kennedy) in circumstances where a lawyer exercising legal knowledge, skill, judgment and industry has assembled a collection of relevant copy documents for his brief for the purpose of advising on or conducting anticipated or pending litigation he is entitled to litigation privilege - What does “the exercise of legal knowledge, skill, judgment and industry” mean? Blank v. Canada The CL litigation privilege comes to an end upon the termination of the litigation that gave rise to the privilege, absent any closely related proceedings. It is not a permanent privilege, like SC privilege. In 1995, the Crown laid 13 charges against the resp and Gateway Industries for regulatory offences under the Fisheries Act and the Pulp and Paper Effluent Regulations. These charges were quashed. In 2002, the Crown laid new charges, so the resp and the company sued the federal govt for damages in fraud, conspiracy, perjury, and abuse of its prosecutorial powers. The resp wanted documents from the govt relating to his prosecution in 1995 – they were denied to him on litigation privilege grounds. Held: - Litigation must be interpreted broadly in the context of litigation privilege o includes separate proceedings that involve the same or related parties and arise from the same or a related cause of action. o The privilege may retain its purpose and thus its effect where the litigation that gave rise to it has ended, but related litigation remains pending - In this case: no Privilege o the documents requested were prepared for a criminal prosecution relating to environmental matters. That litigation has come to an end. The civil action comes from a different judicial source and so it is unrelated to the litigation of which the privilege claimed was born. Dispute Settlement Privilege RULE: communications made during attempts to settle a litigious matter through negotiation or mediation are not admissible if the negotiation or mediation fails and matter is litigated - Such communications are often labeled “without privilege” → indicates party making them is asserting privilege - The label isn’t strictly necessary if it’s clear from the circumstances that the communication was made with the intent that it not be disclosed in litigation. POLICY: encourage settlement by encouraging parties to speak and negotiate freely - The duty of every lawyer is to settle disputes, and litigate as a last resort Middlecamp v. Fraser Valley Real Estate Board: This is a class or blanket privilege. To establish an exception, the party seeking production must show that a competing public interest outweighs the policy goals behind the rule Informer Privilege RULE: Any information which can reveal an informer’s identity, either explicitly or implicitly, is privileged RATIONALE/POLICY: Rationale: 2 fold o To encourage the reporting of crime (promoting a civic duty) o To protect retribution by criminals (protecting the actual informer) It is a really important privilege, it plays a vital role in law enforcement (Liepart) HOLDER/WAIVER: The privilege is held jointly by the Crown (civic duty purpose) and the informer (protection purpose) This is because of the two purposes the privilege promotes o Both need to agree for the privilege to be waived EXCEPTION: The ONLY exception is where the innocence of the accused is at stake. There is a multi-step procedure to apply this exception: R v. Scott “Necessary to protect innocence test”: the accused must show some basis to conclude that without the disclosure sought his/her innocence is at stake (note that this test is less than the actual innocence at stake test) o Three situations in which informer ID may be essential to innocence at stake (Scott) If the informant is a material witness in the trial If the informer has acted as an agent provocateur in the crime o [agent of the state in an entrapment sense] If the accused seeks to establish that the search was not undertaken on reasonable grounds and therefore contravened the provisions of s.8 of the Charter o [reasonable grounds for the search were based on information from the informant] If such a basis is shown, the judge will review the information to see whether the information is necessary to prove the accused’s innocence If it is, the judge should only disclose as much information as necessary Before disclosing the information, the Crown has the option to stay the proceeding (ie: if protecting the informant is more important that convicting the accused) If the Crown proceeds, the information essential to establish innocence may be given to the accused Note: this is a VERY strong form of privilege; the exception is quite limited R v. Liepert The police and courts are bound to protect the identity of informants from disclosure – the only exception to this informer privilege is the innocence at stake exception. The privilege is broad – it not only protects the name of the informant, but also any information which might reveal identity Police got an anonymous tip through crime-stoppers Vancouver. Accused wanted access to the document recording the tip. Crown regarded it as a request for the identity of an informant, and refused the request under informer privilege. Trial judge tried to allow an edited document. Crown stopped leading evidence, and basically took the matter to the CoA. Held: - Informer privilege is jointly held, cannot be waived by Crown or informer alone - Only One Exception Innocence At Stake - In this case, the identity of the Crime Stoppers tipper was protected by informer privilege and so the police and courts were bound to protect the identity of the informant from disclosure. o The Crime Stoppers document should not have been disclosed, even after editing – impossible to know whether the disclosure of the details that remained after editing might reveal the identify of the informer to the accused. o It was not established that the identity was necessary to establish the innocence of the accused and so the privilege remained in place. Matrimonial Communications Privilege The issue only arose when spouses were made competent witnesses in the mid-19th century (and even compellable in cases where there are allegations of abuse by the other spouse) CEA 4(3) No husband is compellable to disclose any communication made to him by his wife during his marriage and no wife is compellable to disclose any communication made to her by her husband during her marriage - only applies to husbands and wives that were married at the time of the communication Possible Oversight: the statute does not expressly apply only to confidential statements – this might apply to all statements (but this would be completely against the underlying principles of privilege) HOLDER: The spouse that heard the statement (Foster – is this an oversight?) INTERCEPTIONS: - Common Law Rule: privilege is lost when it the communication is not directly between spouses - CEA 189(6): Any information obtained by an interception that, but for the interception, would have remained privileged, will remain privileged o This is intended to mean that if you are on a wire tap and listening to a privileged conversation, the conversation does not lose its privilege because you are intercepting it. o Presumably, this does not overrule the Common Law Rule Example of an Interception R v. Rumpling Sailor wrote a letter to his wife confessing a murder, and gave it to another sailor. Other sailor read it and gave it to police. Husband argued the statement was inadmissible as it was meant to be a matrimonial communication. Held: Common Law rule applied. No privilege attaches, the nexus of communication between husband and wife was never established COMPELLABLE SPOUSES: There are conflicting principles in the case law, though Foster thinks that Zylstra is probably the better principle - R v. St. Jean If a spouse is on the stand because they are competent and compellable under 4(2), then they lose the protection of 4(3) - R v. Zylstra 4(3) is unambiguous – where a husband or wife is otherwise compellable and competent, there is no compulsion to divulge communications with a spouse o This makes more sense, since when else would a spouse rely on the privilege than when they were compelled to testify? o Remember Couture: wife’s hearsay statements were not allowable, partially because they would be in violation of the spousal communication privilege Public Interest Immunity The doctrine of public interest immunity, sometimes called “Crown Privilege”, is concerned with situations in which a public official objects to disclosure of information on the ground that disclosure would be contrary to the public interest Development: - Courts could create public interest immunity, and had jurisdiction to balance public interest in effective government v. the effective pursuit of justice (Conway) - Post 9/11 the government enacted changes to the CEA – as part of the anti-terrorism agenda – including CEA s.37, 38 & 39 CEA S. 37 General Claims of Federal Public Interest: Pretty much codifies the existing CL approach – balancing of interests public interest in effective government v. the effective pursuit of justice Covers claims of general federal public interest- the catch-all. If the fed government wants to make a general claim of public interest immunity, they use this section. A minister or public official of the Crown can object to disclosure of information on the basis of a specific public interest this is very much the CL approach. Once the objection is made, it is not disclosed until a superior court judge or federal court judge rules on it The judge will look at the information, consider the impact on the public interest that has been claimed by the minister or public official and BALANCE it The judge may: Order unconditional disclosure; Disclose with some limitations; or Prohibit disclosure CEA s.38 National Security related grounds: 2 Categories: Potentially injurious information: information of a type that, if it were disclosed to the public, could injure international relations or national defence or national security Sensitive information: means information relating to international relations or national defence or national security that is in the possession of the Government of Canada, whether originating from inside or outside of Canada, and is of a type that the Government of Canada is taking measures to safeguard note there is huge overlap between the two categories Section 38.01 imposes an obligation on “participants” in the proceedings to notify the federal AG about any possible disclosure of “potentially injurious” or “sensitive” information in proceedings PROCEDURES: - (1) s.38.04 provides for applications to a judge of the Federal Court – Trial Divisions, for an order concerning the disclosure of such information (can’t be a provincial judge, if the trial takes place in provincial court then it stops while the order goes to judge of the federal court) o Only designated judges of the federal court look at the information, because: there’s something about an expertise that develops when judges hear immigration and national security issues, so also having them decide public interest immunity claims makes sense all the national security information is in Ottawa and only the government lawyers are present when the information is looked at – there’s a consolidation of information in the Ottawa national security bunker it makes sure a judge in one province doesn’t make a different decision about the information as a judge in another province these are highly secretive - (2) The federal court judge will look at the information, consider the impact on the public interest that has been claimed by the minister or public official and balance it [note: this same as for s.37] The judge will then: Order unconditional disclosure; Disclose with some limitations; or Prohibit disclosure CEA s. 38.13: “The Attorney General of Canada may personally issue a certificate that prohibits the disclosure of information in connection with a proceeding for the purpose of protecting information obtained in confidence from, or in relation to, a foreign entity as defined in subsection 2(1) of the Security of Information Act or for the purpose of protecting national defence or national security. The certificate may only be issued after an order or decision that would result in the disclosure of the information to be subject to the certificate has been made under this or any other Act of Parliament.” [DIFFERENT than s. 37] Therefore, once the judge has listened to the arguments, looked at the info and made a decision, the AG can make a certificate to overrule this decision with no recourse We haven’t yet seen a challenge to s. 38.13 but this is a huge deviation from the history of public interest immunities; the final decision is given to the AG The AG can overrule the judiciary; it doesn’t even go to the SCC Lots of people thought that s. 38.13 might be used in Khadr, but they didn’t CEA s.39: Cabinet Security At CL, there was no special category for cabinet documents public interest immunity applied to make sure discussions and documents from cabinet would not be disclosed in proceedings Today: CEA s. 39 governs cabinet secrecy and it creates a completely different approach RATIONALE (for having special category for Cabinet Secrecy): “those charged with the heavy responsibility of making government decisions must be free to discuss all aspects of the problems that come before them and to express all manner of views, without fear that they read, say or act on will later be subject to public scrutiny.” (Babcock, SCC) If statements subject to disclosure, members might censor their words, consciously/unconsciously. They might shy away from stating unpopular positions, or from making comments that might be considered politically incorrect This isn’t that different from SC privilege; you need to be able to talk things through before coming to a decision PROCESS: S.39 protects confidences of the Queen’s Privy Council for Canada, essentially cabinet and committees of cabinet. S. 39(1) Where a minister of the Crown or the Clerk of the Privy Council objects to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by certifying in writing that the information constitutes a confidence of the Queen’s Privy Council for Canada, disclosure of the information shall be refused without examination or hearing of the information by the court, person or body “Confidences” include: proposals, recommendations, discussion papers, agenda, deliberations, decisions, communications between ministers relating to government decisions or policy and draft legislation. Once the information is certified it “shall” not be disclosed – there is NO balancing of interests between the need for confidentiality and the need for disclosure (Babcock) Time limit: 20 years for certificates; 4 years for discussions papers Provided the certificate on its face brings the information within the designated class, it is protected without the judge examining or hearing the information Under s.39 the Clerk/Minister (not the court) BALANCES the competing interest in protection and disclosure – once they certify the information as confidential, a judge or tribunal must refuse any application for disclosure, without examining the information (basically, once the information has been validly certified, there is no balancing to be done by the court – the information is protected) To certify, the minister or clerk must decide 2 questions: (1) is it a Cabinet confidence within the meaning of ss.39(1) and 39(2)?; and (2) is it information that the government should protect, taking into account the competing interests in disclosure and retaining confidentiality? The court has also pointed out that a valid certificate must meet these requirements (Babcock): o The certification must be done by the Clerk of the Privy Council or a minister of the Crown o The information must fall within the categories described in section 39(2) o The power exercised must flow from the statute and must be issued for the bona fide purpose of protecting cabinet confidences in the broader public interest It is not to thwart public inquiry nor is it to gain tactical advantage in litigation. If it can be shown from the evidence or the circumstances that the power of certification was exercised for purposes outside those contemplated by s.39, the certification may be set aside as an unauthorized exercise of executive power Section 39 applies to “disclosure”; where a document has already been disclosed s.39 no longer applies. So: Section 39 cannot be applied retroactively to documents already produced BUT implied waiver does not apply: the fact that the government may have released some documents does not prevent the Crown from protecting the non-disclosed under s.39. Section 39 applies to tribunals as well as courts (Babcock) o Safeguards to protect the sensitive information: Tribunal cannot inspect the documents in rendering a decision The government may appeal the tribunal’s decision Section 39 is constitutional (Babcock) o Does not fundamentally alter or substantially interfere with the relationship between the courts and other branches of government. DURATION: begins with certification – but information that falls within s. 39(2) may be certified long after the date the confidence existed or arose in Cabinet. If there has been a disclosure, s.39 no longer applies. o Protection continues indefinitely unless: The certificate is successfully challenged on the ground that it related to information that does not fall under s.39 The power of certification of the Clerk/minister has otherwise been improperly exercised Section 39(4) is engaged (ie: 20 years has expired) The Clerk/minister chooses to decertify the information JUDICIAL REVIEW for s.39: the section leaves little scope for judicial review of a certification of Cabinet confidentiality – it states that: “disclosure of the information SHALL be refused”. Furthermore, it must be refused “without examination or hearing of the information by the court, person or body” (Babcock) Therefore, s. 39 may only be challenged where: o The information for which immunity is claimed does not on its face fall within s.39(1) o Where is can be shown that the Clerk or minister has improperly exercised the discretion conferred by s. 39(1) Note: it has to be confined to information on the face of the certificate and such external evidence as the challenger may be able to provide – these limitations may have the practical effect of making it nearly impossible to set aside a s.39 certification R v. Babcock Section 39 is constitutional (though draconian). Outlines very narrow situations in which there may be a review of s.39 Crown prosecutors in Vancouver complaining that prosecutors in Toronto are being paid more. Evolved into a challenge of the constitutionality of s.39. Held: - Though it is a draconian section, there is nothing that violates the Charter or the Constitution Governments have traditionally had the authority to invoke this type of secrecy - VERY NARROW windows for review: o (1) certifications were done by the appropriate minister/clerk o (2) information falls within categories of 39(1) and (2) o (3) minister/clerk adhere to the bona fide purpose of protecting the public purpose of maintaining a strong government institution o (4) if the documents have been disclosed (no more 39 privilege) L’Heureux Dube’s Dissent: - Would have gone even further – no need for requirement (3) - Strict reading of the statute does not require the clerk/minister to do any balancing of public interest - Is this a polemic? Case-By-Case Privilege Relationships that are not protected by a class privilege may still be protected on a “case-by-case” basis when the situation warrants privilege. RATIONALE: There aren’t very many class privileges, but there are some situations where we expect confidiality. The law has dealt with these exceptions with CBC privilege. The law does not ignore our expectations of privacy EXAMPLES: doctor-patient o NO class privilege for religious communications (Gruenke) o NO class privilege for psychiatrist-patient communications (M.(A.) v. Ryan) o NO class privilege for journalist-informer communications (National Post) Case-by-Case privilege is created when the circumstances merit it (Wigmore Test – see below) o Note: if test met, the privilege only applied for that particular case – does not create a new category/precedent o Foster says: it is highly unlikely that the SCC will create new class privileges; they work against the trend (allowing in as much relevant/reliable evidence as possible) TEST: Wigmore Test (applied by SCC in Slavutych) 1. The communications must originate in a confidence that they will not be disclosed It must be a confidential communication 2. This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties The confidence must be an important part of the relationship 3. The relation must be one which in the opinion of the community ought to be sedulously fostered The relationship must be one that the community thinks is really important to protect 4. The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation This step is basically a cost-benefit analysis around disclosure This criteria is where all the work happens, where most cases fail Note: that the need to get to the truth and avoid an unjust verdict is somewhat less important of a consideration in a civil context vs a criminal context (Ryan) Should consider privacy interests, especially in a sexual assault case (Ryan) If ALL criteria are met, then privilege should attach - Issue: people will not know ahead of time if privilege will apply, so it does not really encourage open communication/protect relationships – which is really the goal of privileges Partial Privilege: case-by-case privileges can be partial (M.(A.) v. Ryan) o The degree of protection conferred by the privilege may be absolute or partial, depending on what is require to strike the proper balance between the interest in protecting the communication from disclosure and the interest in proper disposition of the litigation o Partial privilege may signify that only some of the documents in a given class must be produced Slavutych v. Baker Outlines and applies the Wigmore Test for creating a CBC privilege appellant was employed as an associate professor. Dr. Wyman, the president of the university, recommended that he be dismissed, wrote a letter to the appellant outlining his complaints. One of the complaints was about a document – the tenure form sheet. It was a sheet marked “confidential”, in which professors were supposed to state their opinions about the candidate for tenure – the app gave the candidate a bad review. Dr. Wyman said he made serious charges on no basis. The arbitration board found that the tenure form sheet provided sufficient grounds for dismissal. Held: - In this case: No New Class Privilege for Tenure Documents o (1) the communications originated in confidence o (2) confidentiality was essential to the operation of the procedure where fellow members of the university staff were requested to give their opinions as to an application for right as tenure o (3) It is in the interests of the university community that the relationship btw colleagues be fostered o (4) HOWEVER The interest in the operation of the proper procedures for dismissal do not outweigh the interest of preservation of the confidential nature of the communication R v. Grunke There is no class privilege for religious communications. In this case, the Wigmore criteria was applied to determine whether the religious communications should be privileged in this case – they did not meet the Wigmore criteria. Gruenke was a 22 year old woman, the victim was her client. He had befriended her and her mother when Gruenke was young, had loaned money to Gruenke to start her own reflexology business, and provided her with a car and an allowance. He had left her a life interest in his estate in his will. Gruenke and the victim lived together for a while, he made sexual advances toward her, she moved out. He kept asking her for sex, one day called and said he was coming over to see her. The app was scared, called her boyfriend, Mr. Fosty. Victim came over, made sexual advances, ended up dead. Gruenke argued that Mr. Fosty killed the victim while defending Gruenke. Crown argued that Gruenk enlisted the aid of Fosty in planning and committing the murder of the victim. Crown wanted to adduce evidence of communications btw Gruenke and her pastor and church counselor two days after the death, which involved discussion about her involvement in the murder. Held: - The first criterion is not satisfied - the communications did not originate with an expectation of confidentiality o there is evidence that the pastor and counselor were unclear as to whether they were expected to keep Gruenke’s conversation confidential o Gruenke did not approach them on the basis that the communications were to be confidential, o Gruenke said she was going to turn herself into the police anyways - Note: The court in this case said that to create a new blanket privilege, the policy reasons must be as strong as they are for SC privilege this is a signal that no new class privileges will be created, as SC privilege is the MOST important privilege Concurring: L’Heureux Dube: A general religious communications class privilege should be recognized – our society wants to encourage the creation and dev’t of spiritual relationships, and in order to do this, individuals must have a certain amount of confidence that their religious confessions, given in confidence and for spiritual relief, will not be disclosed. If no privilege is recognized, the relationship between clergy and parishioners may not develop, resulting in a chilling effect on the spiritual relationship within our society M(A) v. Ryan Wigmore Criteria are applied to psychiatrist’s notes: no new class privilege is created, but there is a partial privilege Civil suit brought against Dr. Ryan for injuries sustained as a result of gross indecency. Ryan admitted to the conduct, but denied causation. App sought psychiatric help from another doctor to deal with her difficulties – express concern that the discussions would remain confidential. The psych assured her that the discussions would remain confidential. Ryan wants the psych’s notes disclosed – the psych claimed privilege over her notes. The BC Court of Appeal ordered disclosure of the notes, but limited the disclosure – only Ryan’s lawyers and expert witnesses could see them, Ryan could not see them, any person who saw them could not disclose their contents, the documents could only be used for the litigation, only one copy was to be made by Ryan’s solicitors Held: - Wigmore Criteria applied: o Communications were made in confidence o Element of confidentiality is essential to the relationship o The community ought to foster the relationship o Must balance the interests served by protecting the communications from disclosure against the interest of pursuing the truth Though there is a compelling interest in protecting the relationship, the documents must be produced in order to get at the truth and prevent an unjust verdict - Solution, in this case, was partial privilege Mr. Ryan’s lawyer could look at the notes but not Mr. Ryan o If the court was unwilling to recognize a new class of privilege here, it is unlikely they will be willing to recognize a new class anywhere partial privilege is the court going out of its way not to create a new class privilege National Post Wigmore Criteria Applied no class privilege that protects journalist-informer communications (do not confuse with informer privilege) Reporter for the National Post received from a confidential source a copy of a loan authorization for a hotel in Chretien’s home riding – showed that Chretien was in conflict of interest with respect to the loan. Police obtained a search warrant requiring the National Post to produce the document and the envelope so they could see if it was forged. National Post challenged the search warrant – feared that forensic testing might identify the informer. Held: - Wigmore Criteria applied: o 1 and 2: Relationship was not based on confidentiality The source must have insisted on confidentiality, and the journalist must have promised it o 3: In general, the relationship btw journalists and their secret informers should be sedulously fostered o 4: Must focus on whether, in the instant case, the public interest served by protecting the identity of the informant from disclosure outweighs the public interest in getting at the truth. Focuses on specific issues before the court Given seriousness of the alleged offence, the public interest in protecting journalist-informer relationships is outweighed by the interest in getting at the truth o Important The fact that this is a criminal charge and that no one is being compelled to testify were weighted in favor of disclosure Note Globe and Mail v. Canada - In contrast with National Post, the court held that Case-by-case privilege might attach to journalist-informer relationship in this case, as the evidence was not physical evidence and it was not a criminal charge o Facts: sponsorship scandal, civil litigation in Quebec. A reporter was forced to disclose his source, he appealed to the SCC Protection of Third Party Records General Principle: DISCLOSURE - in a criminal proceeding, any evidence in the possession of the Crown MUST be disclosed to the defence unless it is clearly irrelevant or subject to a privilege. (Stinchcombe) But what if the record is not in the hands of the Crown? Principles: The case law and legislative response attempt to balance - the right of an accused to make full answer and defence - the right to privacy and dignity of a victim MacNeil Outlines the Usual Procedure: 1) Get a subpoena 2) Give notice of he application to prosecution/complainant 3) O’Conner Application brought before the judge - If the application is unopposed, then records are admitted 4) If documents are privileged, they will usually be protected regardless of relevance 5) Where privilege is not in question, the judge will determine whether they should be disclosed based on the procedure in O’Conner The Default Rule O’Conner For Third Party Record Production where not charged with a sexual offence Facts: Bishop charged with sexual crimes against girls in a residential school many years before. Defense sought and received production order for complainant’s medical, counseling, and school records. Crown refused to produce records, one of the prosecutors simply seemed to have felt it was wrong. Two Stage Analysis for Determining Whether Third Party Records Should be Produced: Stage one: Should the record be given to the judge? o The accused must establish that the records are “likely relevant” either to an issue in the proceeding or to the competence/credibility of the subject to testify o There is no balancing at this stage o Because the defence hasn’t seen the record, the burden is LOW – is there a reasonable possibility that the information is logically relevant? there is no balancing of interests at this stage Stage two: if the record is likely relevant, the record is given to the judge. The judge must determine whether to give the record, in whole or in part, to the defence o The judge must weigh the salutary and deleterious effects of a production order and determine whether a non-production order would constitute a reasonable limit on the ability of the accused to make full answer and defence. o The judge must BALANCE the accused’s right to a full answer and defence against the victim’s privacy interests o Factors to consider: (a) The extent to which the record is necessary for the accused to make full answer and defence (b) The probative value of the record in question (c) The nature and extent of the reasonable expectation of privacy in the record (d) Whether production of the record would be premised upon any discriminatory belief or bias (e) The potential prejudice to the complainant’s dignity, privacy, or security of the person that would be occasioned by the production of the record in question. For Sexual Offences CC Section 278 Parliament responded to O’Conner by establishing a specific test in the case of sexual offences Stage one: Should the judge see the records? o There are 11 bases that are insufficient on their own to establish “likely relevance” (a) that the record exists (b) that the record relates to medical or psychiatric treatment, therapy or counseling that the complainant or witness has received or is receiving (c) that the record relates to the incident that is the subject-matter of the proceedings Strange, as this is almost certainly basic relevance (d) that the record may disclose a prior inconsistent statement of the complainant or witness (e) that the record may relate to the credibility of the complainant or witness (f) that the record may relate to the reliability of the testimony of the complainant or witness merely because the complainant or witness has received or is receiving psychiatric treatment, therapy or counseling (g) that the record may reveal allegations of sexual abuse of the complainant by a person other than the accused (h) that the record relates to the sexual activity of the complainant with any person, including the accused (i) that the record relates to the presence or absence of a recent complaint (j) that the record relates to the complainant’s sexual reputation (k) that the record was made close in time to a complaint or to the activity that forms the subject-matter of the charge against the accused o This is constitutional; the SCC interpreted the legislation to mean these are not prohibited bases they are only bases upon which an assertion without some evidence is insufficient (Mills) o NEW Balancing Element: Likely relevance is no longer enough. The production of the record must also be “necessary in the interests of justice” (s. 278.5(1)(c)). This involves a balancing of 8 factors. Remember, there was no balancing in stage 1 of the O’Connor test The legislation adopts L’H-D’s idea that there is a balancing at the first stage SCC interprets the legislation to mean that these factors are just to be “taken into account” – they are just advisory (Mills) If there is an uncertainty as to whether production is required for full answer and defence, the court should err on the side of production (Mills) Stage two: Should the judge disclose, in whole or in part, to the defence? o judge shall consider the salutary and deleterious effects of the determination on the accused’s right to make a full answer and defence and on the right to privacy and equality of the complainant/witness. (s.278.7(2) of the CC) o Balancing occurs, as it does under O’Conner, but with 8 factors rather than the 5 from O’Conner it includes the extra 3 factors from L’H-D’s dissent These factors do not have “controlling weight” (Mills) o Factors = the 5 in O’Conner, PLUS (a) society’s interest in encouraging the reporting of sexual offences (b) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences (c) the effect of the determination on the integrity of the trial process Implied Undertaking RULE: in civil trials, because evidence given on pre-trial discovery is compelled, it may be used only for the litigation that produced it – unless it is revealed in open court in that litigation RATIONALE: Privacy the information given in this fashion is presumed to be information to which a reasonable expectation of privacy attaches - Note: the court in Juman specifically does not tie the privilege to self-incrimination, it holds that the privilege against self-incrimination is tangential to the rationale behind the implied undertaking, which is that “what is disclosed in discovery stays in the court” DURATION: Discovery Information is privileged forever (rationales do not expire, unlike the rationale for litigation privilege How To Get Around It: - Burden is on the party that wants to release the information to prove on a balance of probabilities that the value of the information outweighs the principles being protected by the implied undertaking o Public Interest v. Privacy - Reasons to Order Disclosure: o Public Safety (Smith v. Jones standard) o Where a party is in two different actions, and has given two completely different stories - Generally, it must be parties to the litigation that requests disclosure of discovery information o Court will not deny standing to a third party like the AG or Police to request disclosure, but they will have a much harder time establishing that public interests outweigh the privacy in the public undertaking Juman v. Doucette Documentary and oral information obtained on discovery, including information which may be included in an investigation of criminal conduct, is subject to an implied undertaking unless and until: 1) the scope of the undertaking is varied by the court 2) a situation of immediate and serious danger arises (Smith v. Jones) Disabled child was dropped by social worker, civil suit brought by parents. The social worker (Juman) became aware that the police were also investigating her, and essentially raised implied undertaking rule. AG argued that there should be an exception to the implied undertaking when there is a bona fide request for criminal proceedings Held: - The information obtained in discovery is privileged o There are other ways for the criminal justice system to get information which are dependant on due process - An exception for good faith reporting to police evidence of a possible crime is simply unworkable o Risk of litigants releasing information to the police simply to harass the other party o Impossible to tell when the information would be given to the police in good faith Proof Without Evidence Formal Admissions GENERAL PRINCIPLE: in any proceeding a party may admit facts, dispensing with the need for the other party to prove them PROCEDURE: A formal admission may be made (Tunner v. Novack): - by a statement in the pleadings - by an agreed statement of facts filed at trial - by an oral statement made by counsel at trial (or by counsel’s silence in the face of statements made by the opposing counsel with the intention that they be relied upon by the judge) - by a letter written by the party’s solicitor prior to trial - by a reply or failure to reply to a request to admit facts Findings of fact founded on the concession made by counsel are as though proof of the relevant facts had been tendered at trial (Tunner v. Novak) IN CRIMINAL PROCEEDINGS Distinguish between a guilty plea and an admission of fact Admission of Fact: S. 655 CC where an accused is on trial for an indictable offence, he or his counsel may admit any fact alleged against him for the purpose of dispensing with proof thereof. - The Crown must accept the admission – they cannot withhold and then use it as a means of introducing prejudicial evidence - Why Admit a Fact? Sometimes the evidence introduced to prove the fact is so inflammatory that an accused would rather admit the fact than contest it and allow the evidence A Plea of Guilty: a guilty plea is a formal admission of the facts necessary to establish the elements of the offence, as particularized in the indictment - A guilty plea is only an admission to the facts the Crown needs to find you guilty, NOTHING MORE. - Not an admission of further facts that may be alleged during sentencing 606(1.1) CC A court may accept a plea of guilty only if it is satisfied that the accused 2) is making the plea voluntarily 3) Understands: a. The plea is an admission of the essential elements of the offence b. The nature and consequences of the plea c. That the court is NOT bound by any agreement between the accused and the Crown 4) The judge will listen to the facts and make sure that the foundational facts that are admitted to amount to the offence charged A guilty plea can be withdrawn, but it is very difficult - Valid reasons for withdrawing a plea include: o The accused did not understand the consequences o The accused did not intend to plead guilty o Accused shows that he/she was given bad advice IN CIVIL PROCEDINGS Pleading allows the parties to admit to certain alleged facts – the system is designed to dispose of as many factual disputes as possible outside of court efficiency! Rule 7(7) of the Supreme Court Civil Rules - Permits a party after a pleading to admit a fact - Permits a party to submit a demand to another party to admit a fact o Why succumb to a demand and submit a fact? If the party contests the fact, and the judge finds that it was unreasonable after the trial, there may be a multiplication of expenses Judicial Notice of Facts Judicial notice is the acceptance by a court of a fact or matter without the requirement of proof. - Doctrine recognizes that the vast majority of small facts and inferences and bits of evidence in a case are not supported by any solid facts at all - If judicial notice is taken of a fact, it is as if it is proven BASIC PROPOSITION: the Court is not supposed to know anything about the facts of a case until the parties lead evidence relevant to those facts. The Doctrine of Judicial Notice is an EXCEPTION to this very strong basic proposition a judge may, under certain circumstance, take notice of a fact despite a lack of relevant and admissible evidence. RATIONALE: there are certain facts that are so notorious or obvious that they don’t need to be proven. Theories: THAYER: notice is for convenience – it shortens the trial. A judge had the discretion to take notice or not, and JN is rebuttable with evidence. o Judicial notice is discretionary and not conclusive MORGAN: Notice exists because to ask for proof of certain facts would be absurd to the effect of bringing the administration of justice into disrepute. If a judge fails to take notice of what is so notorious/commonly known, the system would become a joke. JR is therefore mandatory to protect the administration of justice. o Thus, judicial notice is final and conclusive – not rebuttable with evidence. o This is the theory adopted as the GOLD STANDARD by SCC BURDEN: burden to establish that something should be judicially noticed falls on the party seeking the judicial notice. TYPES OF FACTS: 1) Adjudicative Facts: The facts to be determined in the particular case – who did what, where, when, how, motive/intent. These are facts that are specific and must be proved by admissible evidence (Danson v. Ontario) TEST: the Morgan criteria for judicial notice of adjudicative facts (SCC in Newfoundland (Treasury Board) v NAPE): o Can take JN of a fact that is so generally known and accepted that it can not be reasonably questioned What constitutes common knowledge is to be judged by reference to that which is common knowledge in the community where an when the issue is being tried [trial level] (Potts) o Can take JN of a fact when the fact can be readily determined or verified by resort to sources whose accuracy cannot be reasonably questioned Dictionaries are accepted indisputable sources (Krymowski) Judicial notice is discretionary as the issue gets CLOSER to the centre of the dispute – as the issue moves closer to the centre of the dispute, judges may be more uncomfortable with judicial notice (Zundel 1 and 2, Kmortsky) 2) Social Framework Facts: LEGISLATIVE FACTS are the broad general facts about social, economic and cultural context that establish the purpose and background of legislation o These facts are of a more general nature, and are subject to less stringent admissibility requirements (Danson) o These facts are used to decide questions of law o Eg: social unrest that leads to legislation 3) Social Framework Facts: SOCIAL FRAMEWORK FACTS are a hybrid category – also about broad and general facts about social, economic and cultural context but used to aid in fact finding for the specific case o These facts give a frame for interpretation to specific facts that occurred in the case o Eg: the existence of racial discrimination to help interpret why a detention occurred o Eg: battered women syndrome TEST (Spence): “a court ought to ask itself whether such fact would be accepted by reasonable people who have taken the trouble to inform themselves on the topic as not being the subject of reasonable dispute for the particular purpose for which it is to be used, keeping in mind that the need for reliability and trustworthiness increase directly with the centrality of the fact to the disposition of the controversy” o The Morgan criteria are still relevant, but they are not dispositive o “Centrality of the fact” = as the fact moves closer to the centre of the issue, the stricter the test gets social framework and legislative facts are best determined by experts on the stand – this is preferred (Spence) Danson v. Ontario Constitutional cases cannot operate on legislative facts alone, they need both adjudicative facts AND legislative facts. Also describes the difference between adjudicative, legislative, and social facts Lawyer brought an application for a declaration that rule 57.07 of the Ontario Rules of Civil Procedure was unconstitutionally invalid – it provided for the assessment of costs against solicitors personally in some circumstances. He did not provide any affidavits in support of the application – argued that he should be entitled to proceed with this application in the complete absence of adjudicative facts and that it was sufficient that he present in argument legislative facts in the form of textbooks and academic material about the prevailing understanding of the concept of the independence of the bar Held: - Decision quashed o Charter decisions should not and must not be made in a factual vacuum – the presentation of facts is essential to a proper consideration of Charter issues o Any Charter challenge based upon allegations of the unconstitutional effects of impugned legislation must be accompanied by admissible evidence of the alleged facts - It would be difficult, if not impossible, in this case for a judge to assess the merits of the application w/out evidence of the effects, by way of adjudicative facts and legislative facts R v. Krymowski “Readily accessible sources of indisputable accuracy” includes dictionary meanings of words Respondents were charged with the willful promotion of hatred arising from their participation in a demonstration to protest against the entry of Roma refugees into Canada. At the end of the Crown’s case, the defence called no evidence and argued that the Crown had failed to prove that the willful promotion of hatred was against “Roma”. Defence argued that the evidence showed only that the actions of the demonstrators were directed toward “gypsies” and that there was no evidence that Roma is the same as Gypsies. Crown asked for judicial notice of the shared meaning of the terms, trial judge rejected the application for judicial notice, accepted the defence’s argument, acquitted the respondents Held: - The trial judge erred because he should have looked at the totality of the evidence and drawn appropriate inferences to determine whether the respondents intended to target the Roma people - The trial judge also erred, because he could have taken judicial notice of the shared meanings of the terms o A court may take judicial notice when facts are so notorious or generally accepted as not to be the subject of debate among reasonable persons OR capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy. o In this case, the Crown presented the trial judge w/five dictionaries demonstrating a relationship btw “Roma” and “gypsy” - The fact that “Roma” was connected with “gypsy” was capable of immediate and accurate demonstration by resort to dictionaries, which are “readily accessible sources of indisputable accuracy” R v. Spense The Leading Case! Morgan is the gold standard for taking notice of adjudicative facts, and the standard is relevant but not determinative for legislative/social framework facts Leading case on Judicial Notice. Accused and intervener wanted the court to judicially notice that an indo-Canadian juror hearing a case about an indo-Canadian juror being assaulted by an African-Canadian juror would find it hard to judge the case impartially. Court was unwilling to find that it was sufficiently reliable social evidence to take judicial notice of it (wanted actual social scientific proof). Held: - If you are not going to bring expert evidence, you are definitely taking a risk that the fact will not be judicially noticed - The significant change in this case is that the standard for taking judicial notice of legislative/social framework facts is raised a bit o Morgan is the gold standard, it applies to all adjudicative facts o With respect to legislative/social framework facts you START with the Morgan standard, but it will not necessarily be conclusive Bartleman Hudson’s bay company originally made treaties with indigenous people on the island, though this treaty process stopped around 1850 (no one knows why this stopped). The North Saanich Treaty relevant to this case essentially witness that an aboriginal group gives up certain land forever, describe the land, and give conditions on the sale (one of the conditions is that aboriginal people retain the right to “hunt in unoccupied land, and carry on fishing as formerly”). Bartleman went hunting around Duncan, and shot a deer out of season and without a license. He invoked the North Saanich treaty of 1852. Remember: IA s. 88 says that provincial laws of general application apply to aboriginal people SUBJECT to any treaty. Issues: - Because Bartleman was from another territory (basically Mt. Doug to the Ferry), and he was hunting around Duncan – does the right to hunt extend to land in any treaty? - What does “unoccupied land” mean? Held: - The First Point o Preferred Interpretation “hunting on unoccupied land” applies to all treaty lands ceded to the Tsartlet people, regardless of whether it is in their specific resident land - The Second Point o The land is unoccupied o The Trespass Act and Wildlife Act are broad enough that, if you are hunting inseason with a license, you can hunt on land like the land in this case without the owner’s permission Judicial Notice: - Lambert takes judicial notice of the information on the treaty, and the meaning of the treaty, as derived from archival documents calls them indisputable fact, notoriously true o PROBLEM: what Lambert is doing here is mistakenly using the Morgan standard of adjudicative facts to describe taking judicial notice of what really were legislative facts - Illustrates distinction between adjudicative and legislative facts o How can you decide what the meaning of the treaty is? It takes interpretation, and an understanding of the social and cultural differences being navigated in the composition, negotiation, and formation of the treaty
