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Evidence Outline
Basic Points
Overarching Values in Evidence Law
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Efficiency: All systems have some limits on relevant evidence due to efficiency concerns
Fairness: Can clash with relevancy
Truth: clashes with fairness when evidence is retrieved contrary to law
Accessibility: Often when Courts attempt to construct logically coherent rules they also become
very complex, and too difficult to apply and understand
o Note: privacy is an emerging interest of the law of evidence
Role of Evidence Law
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Concerned with:
o The means of proof that can be put before the trier of fact
o The permissible uses by the trier of fact
o And how the means of proof may be presented and tested
Reasons for Excluding Relevant Evidence
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May cause the trier of fact to reason irrationally or inappropriately
If it would uneseearyly prolong the trial or confuse the issues
Would undermine some other important value (value of solicitor/ client privilege)
If it is inconsistent with the adversarial process and the tier of fact’s role as an impartial decision
maker
If its probative value is outweighed by its prejudicial effect
Trends:
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Purposive Approach: a move to be more flexible standards: values of fairness and accessibility at
the expense of certainty
Development of General Exclusionary Discretion
Increased Admissibility of Evidence (consequence of purposive approach)
Sources of Evidence Law
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Main source is common law: common law – adversarial system has many more exclusionary
rules than other court systems (P&S)
Statutes: no complete code, but:
o CEA: applies in federal courts, in criminal matters, in non-criminal federal prosecutions,
in federal administrative proceedings, in bankruptcy matters, and in federal civil
matters. Note also s 40: which incorporates by reference the laws of evidence in force in
the province in which the proceedings take place, subject to Any federal Act
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BCEA: applies to matters within provincial jurisdiction, including provincial prosecutions,
provincial administrative proceedings and in most civil litigation
o Other statutes: such as the Crim Code contain particular evidence rules for that
particular statute
- Constitutional Law: residual discretion of comm. Law courts to exclude evidence tendered under
statutory evidence requirements whose prejudicial impact on the fairness of the trial outweighs
its probative value (Corbett)
- 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
The Trial Process
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Criminal trial begins with the charging document: the indictment or the information
Discolure:
o In civil trials: full disclosure subject to privilege
o Crim trials: Full disclosure subject to relevancy and privilege on behalf of the Crown
Motions: Generally pre-trial motions regarding anticipated issues regarding the admissibility of
Evidence
Crown’s Case:
o Opening statement, defence can then make opening statement or can wait till the close
of the Crown’s case
o Evidence mostly introduced through oral testimony of witnesses:
 Examination in Chief: no leading questions on anything related to material
issues in the case; governed by relevance principle
 Cross-Examination: may ask leading questions
 Possible Re-examination: any matters that arose which could not reasonably be
expected. Generally no opportunity to respond to this
o Voir-dires: “trials within a trial”
At close of Crown’s case the A may bring a motion for a directed verdict of acquittal: if granted,
means that the Crown’s , even believed, is insufficient to establish the elements of the offence,
if granted, TJ should enter verdict of acquittal themself (Rowbotham)
o Directed Verdict of Acquittal: “no-evidence” motion – it is a question on a point of law:
involves no weighing of the evidence,
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Insufficient Evidence Motion: A motion that there is insufficient evidence ot meet the
burden of proof. Election to call no evidence. If motion is lost the case is over. Asks that
that the evidence is weighed, and there can only be one point in the trial when this is
done
Defence’s Case: Essentially the same as the Crown
Reply: Available only if the Defence brought up issues that the Crown could not have anticipated
or put things in issues that were not previously an issue (such as if A put character in issue)
Judgment/Verdict: judges gives judgments, only juries give verdicts
Sentincing (costs in civil)
Appeals: Right to appeal only is a statutory right
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Accused may appeal: on questions of law as well as mixed fact and law, findings of fact
may only be overturned if the TJ made palpable and overriding error
Crown may appeal: on questions of law only
Appeal Court may:
 Uphold the verdict despite improperly admitted/ rejected evidence pursuant to
s 686(1)(b)(iii) of the CC if the error resulted in no substantial wrong or
miscarriage of justice
 Otherwise may(CC ss 686(2)(3)(4):
 Quash conviction,
 Substitute verdict
 Order new trial
Fresh Evidence on Appeal: an appeal should be argued on the basis of the trial record,
but the appellant court does have the power to hear additional evidence (CC s 683;
Palmer and Palmer
 Normally only allowed if the evidence was not available at the time of the trial
The Adversarial System
Ways it is has been relaxed:
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Professional ethics limit conduct
Unrepresentated litigants: expose the difficulties created where there is an unequal playing flied
Discovery: Huge modification to the adversarial system
Fundamental Rule:
Everything that is relevant to a fact in issue is admissible unless there is a legal reason for excluding it
(Collins). In other words:
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Evidence is only admissible if it is:
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Relevant and
Not subject to
exclusion under any other rule of law or policy
Summary Test in Order to be Admissible (Stewart):
1. Is the evidence factually relevant: meaning does it tend to disprove or prove the fact it is
directed to?
2. Is the evidence material: meaning is the fact that the evidence is directed to legally significant in
establishing an element of the cause of action, offence, or defence that is at issue?
3. Is the evidence in admissible on any ground of law or policy?
4. Does the prejudicial effect of the evidence outweigh its probative value?
If the Accused is offering the evidence, in order to be excluded the potential for prejudice must
significantly outweigh its probative value (Seaboyer)
Materiality
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Q1: What is the opponent trying to prove?
Q2: Is that thing a matter in issue?
Primary materiality: Evidence that relates to a primary issue at issue
Secondary materiality: Evidence that relates to the quality of the material evidence (such as the
credibility of the witness or the eyesight of a an eye witness). Because of trial efficiency
concerns this evidence is often accompanied with strict limits on its admissibility
Direct Evidence
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Proves or disproves a material issue without the need for a logical inference to be drawn,
therefore the concept of relevance is not important (example: “I saw that man rob the bank” is
direct evidence)
Circumstantial Evidence
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Requires a bridging inference before it can resolve a material issue (ex: I saw a man with a
teardrop tattoo rob the store requires the inference that because this tattoo is uncommon, the
A is likely to the robber)
Must meet threshold level of logical relevance
Logical Relevance
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Evidence is relevant where it tends to increase or diminish the likelihood of the probability of a
fact in issue (Arp)
Low threshold, to be admissible does not have to establish a fact but only have a logical
tendency to contribute to a finding on a material fact
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Witnesses: Competency, Compellability and Direct and Cross-Examination
The Oath and Its Substitutes
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In order to testify under oath The witness must understand the solemnity of the occasion and a
moral obligation to tell the truth (Bannerman).
o Must be something that binds one’s conscious, usually the threat of divine retribution
 Bannerman: young teenager did not need to profess to know what the spiritual
consequences would be if he failed to tell the truth
If a person objects to swearing an oath, they may make a solemn affirmation to tell the truth
instead (s 14 CEA). A solemn affirmation requires only an understanding of the penal
consequences of failing to tell the truth and does require a recognition of a moral or societal
obligation to tell the truth (Walsh)
o Originally developed for Quakers and other Christian groups who believed it was
contrary to God to take an oath, followed then by recognition that it could bind atheists
and agnostics as well
 Walsh: sociopath who committed to telling the truth, but only because it was in
her best interests to tell the truth, not because of some exterior obligation,
should be permitted to testify
Competency in Children
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S 16.1: Children under the age of 14 are presumed to have the capacity to testify (1)
Children under the age of 14 are not to be asked to testify under oath (2). Children may testify
under a promise to tell the truth (6) and if they have the capacity to understand and respond to
questions (3)
o There is no need for children to understand the nature of a promise to tell the truth (7)
o Once the requirements of s 16.1 are met, there is no distinction in law between a child
of five and one that is 13 (Khan)
 Khan:
Evidence given by children that is received into court has the same affect if it was taken under
oath
Competency in mentally challenged adults
A person whose mental capacity is challenged and who does not understand the nature of an oath or a
solemn affirmation, but who can communicate the evidence, can testify on promising to tell the truth (s
16(3)) (DAI)
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The burden is on the party challenging the mental capacity of the witness to satisfy the court
that there is an issue as to capacity (s 16(5))
“communicate the evidence”: involves: - the capacity to observe, the capacity to recollect and
the capacity to communicate (Marquard). It may be useful to inquire whether the W can
differentiate between true and false everyday factual statements
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3.5 year old child was able to communicate the evidence as she was aware of what she
did yesterday, could recollect it, and communicate it to the Court
“promise to tell the truth”: does not require any understanding of a moral or abstract duty to
tell the truth (DAI). Only requirement is that the witness can communicate the evidence and
makes the promise
o Critique: without any understanding of the meaning of promise, a promise seems like an
“empty gesture” (dissent); also the difference with s 16.1: s16 does not contain (7) –
restriction on questioning based on the understanding of the nature of a promise
(majority explains this by saying likely motivated by need for greater certainty for kids)
o Witness may be questioned on ability to tell the truth in concrete factual circumstances
as part of inquiry into ability to communicate the evidence
o TJ’s questions were too abstract: “tell me what you think about the truth”, “if you steal
something and no one sees it, will anything happen to you, why?” “is it important to tell
the truth?”
Application of s 16(3):
o Others familiar with the witness can testify as to capacity, independent voir dire should
be held
o Questions should be phrased appropriately
o Experts on capacity should prefereably have held direct and regular contact with W
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
Spousal Competency and Compellability
Spouses of the Accused are not competent or compellable except where:
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The Accused and their spouse are competent witnesses for the defence (s 4(1) of CEA)
o Unanswered question, but it is general rule that competent witnesses are also
compellable
The wife or husband of a person charged with an offence under subsection 136(1) of the Youth
Criminal Justice Act or with an offence under any of sections 151, 152, 153, 155 or 159,
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subsection 160(2) or (3), or sections 170 to 173, 179, 212, 215, 218, 271 to 273, 280 to 283, 291
to 294 or 329 of the Criminal Code, or an attempt to commit any such offence, is a competent
and compellable witness for the prosecution without the consent of the person charged (s 4(2)
of CEA)
The wife or husband of a person charged with an offence against any of sections 220, 221, 235,
236, 237, 239, 240, 266, 267, 268 or 269 of the Criminal Code where the complainant or victim
is under the age of fourteen years is a competent and compellable witness for the prosecution
without the consent of the person charged (S 4(4))
The common law exception to spousal immunity also remains in force (s 4(5) of the CEA): when
the charge against the accused involves the spouse’s, or the spouse’s child’s, person, liberty or
health the spouse is competent (BCCA case says that therefore spouse is compellable)
At civil trials spouses are competent and compellable
*NOTE: Even if competent and compellable, a spouse may relay on spousal privilege (s 4(3) of
the CEA) when on the stand
“Wife or husband”
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Applies to legally married couples, but does not apply to separated couples with no reasonable
hope of reconciliation (Salituro)
Applies to events before or during a marriage only while the marriage continues to be valid
(Hawkins)
o Hawkins: Court declined to change common law rule to make spouses competent if the
marriage was solemnized after the issuance of the indictment or where an accused
marries a witness for the purpose of insulating that witness from being subpoenaed.
 Distinct from change in Solituro: this changes would affect the heart of the
policy reasons for spousal incompetency (unlike modification in Salituro)
 Statements made at prelim when witness was no longer dating accused. They
reconciled and got married before the trial
Policy Reasons for the Rule
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Four original justifications (Salituro)
Protects marital harmony (critique: concerns about protecting marital harmony would seem to
immunize other familial relationships as well, but the law does not do this)
“Natural repugnance” of every fair-minded person to the idea that a spouse could be compelled
as part of the means to the other’s condemnation (Wigmore)
Old justification: at law husband and wife are a single person and that they are disqualified on
the basis that their interests are identical
Rule in UK & US: spouses are competent but not compellable for the prosecution
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Spousal competency rule and the Charter: suggestion in Salituro and Hawkins that where a spouse
wishes to testify but is incompetent due to the rule may violate liberty and equality interests
guaranteed by the Charter
Direct and Cross-Examination
Testimonial factors: the trier of fact must make inferences regarding the witness’ reliability, including:
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Witness’ use of language
Sincerity
Memory
Perception
Past recollection revived
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A witness may use a memory aid, such as previously-made notes, that act as a trigger for the
memory
The recollection is the evidence, not the memory-aid, which could be inadmissible hearsay
(Fliss)
Past Recollection Recorded:
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Although the witness has no present memory, but testifies from a record made in the pertaining
to the event
To be admissible must meet the following 4 requirements (Meddoui):
o Must have been recorded in some reliable way
o At the time of the recording, it must have been sufficiently fresh and vivid to be
probably accurate
o The witness must be able to assert that the record accurately represented their
knowledge at the time
o The original record should be used, if possible
HF: really it is an established exception to the hearsay rule. It is out of court evidence that
opposing counsel can only cross-examine on the procedures followed when the record was
made, not the record itself
Obligation to Cross-examine a witness counsel later intends to contradict
If counsel intends to present a totally contradictory version of the events that have been presented
by an opposing witness there is a duty to cross-examine that witness and allow them to respond to
the version that counsel intends to put forward (the rule in Browne v Dunne)
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If counsel neglected to do this (Moldover):
o The witness may be recalled
o If the witness is unavailable or it would be impractical to recall the witness a special
instruction should be given to the jury that when assessing the uncontradicted second
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version, they make take into account the fact that the opposing witness was not
question about it and they may take this into account when assessing the credibility of
the opposing witness
Limits on the foundation for Cross-Examination
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In order to put an other admissible question to a witness during cross-examination, counsel
must have a good faith basis for posing the question. It is not necessary that this basis be
provable independently (Lyttle)
o Question may be based on a reasonable inference, experience or intuition
o Trial judge may insist on a voir dire to ensure that a good faith basis exists
Still subject to parameters of relevancy and materiality
The Failure of an Accused Person to testify
S 4(6): the failure of the accused to testify, or their spouse to testify, shall not be made the subject of
comment by the judge or counsel for the prosecution
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Policy decision that failure to testify cannot be taken to be evidence against the accused
(part of right against self-incrimination and right to silence)
Defence counsel can emphasize that there is no duty to testify to the jury but cannot express
personal belief in the accused innocence
Doesn’t apply to co-accused, a co-accused may emphasize that the other accused didn’t testify
and therefore A’s testimony is uncontradicted, but not that the jury may infer guilt from failure
of co-A to testify (Prokofiew)
Doesn’t apply to judge alone trials
“Comment”
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A statement of the law and an explanation of the legal right of an accused to not testify is not a
“comment” pursuant to s 4(6) of the CEA (McConnell & Beer)
o TJ has pointed out that jury did not have to accept unsworn testimony of A which
entered through the mouths of police officers on cross-examination (HRS exception).
o As counsel object, TJ then instructed the jury that the accused were under no duty to
prove their innocence or this testimony through taking the stand and this should not
influence their decision –Majority was fine with this
The significance of a failure to testify
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Accused failure to testify cannot be taken as an adverse inference of guilt (Noble) (s 11 of the
Charter)
o S 11(c): A has the right to not be compelled as a witness in their own trial
o S 11(d): A has the right to be presumed innocent until proven guilty
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A TJ may make a remedial instruction to the jury that the A has the right to silence and this
cannot be taken as evidence of guilt, where there is a realistic concern that the jury may place
evidentiary value on an A’s decision not to testify (Prokofiew)
o Overturned obiter in Noble: s 4(6) does not prohibit all types of statements of the law
regarding the right of the A not to testify.
 Prokofiew: a remedial instruction was warranted since the co-accused counsel
had gone too far and suggested that an adverse inference could be drawn from
A’s failure to testify
 Maj and minority disagree as to whether the charge to the jury was sufficient to
be considered remedial (majority thought yes)
The Exception – Alibi defences
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Where the A puts forward an alibi defence and does not provide the police the opportunity to
investigate the truthfulness of this alibi before trial, if the A fails to testify, an adverse inference
from the A’s failure to testify may be drawn (Vezeau)
o Rationale: alibi evidence is easily fabricated
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Relevancy, Probative Value and Prejudicial Effect
Relevance
Evidence of fact A meets the threshold requirement of relevance if, as a matter of human experience
and logic, the existence of fact A makes the existence or non-existence of Fact B more probable that it
would be without the existence of Fact A. So long as Fact B is a material fact in issue or is relevant to a
material fact in issue than Fact is relevant and prima facie admissible (Watson)
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Fact B does not have to be directly relevant to a material issue (whether A was part of a plot to
kill the V), but if Fact B triggers a chain of inferences, based on logic or experience, which
ultimately make a material fact more or less likely, than Fact A will be relevant (Watson)
o In Watson: the evidence that it was the habit of the V to always carry a gun makes it
more likely that the V had a gun on him when H shot him (Fact A is Relevant to Fact B)
o The forensic evidence supported that either H was holding two guns or the V had a gun.
o The fact that the V had a gun on him when H shot him made it more likely that the
shooting happened in an armed confrontation between the two men, which it made it
more likely that the confrontation arose during a discussion between H and the V, and
the A did not have anything to do with it
Morris: the evidence of the newspaper clipping of the heroin trade in Pakistan is minimally
relevant (but still relevant) to whether the A was involved in a conspiracy to import heroin from
Hong Kong
Limits on relevancy
Evidence called by the Crown:
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Relevant evidence may be inadmissible if the probabtive effect of the evidence is outweighed by
the prejudice caused to the accused by its admission (Seaboyer)
Evidence called by the Accused:
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Relevant evidence the accused wishes to call should only be excluded through the discretion of
the trial judge if the prejudice to the trial process substantially outweighs the value of the
evidence (Seaboyer)
Limits on Evidence in sexual assault cases
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Evidence of sexual conduct and reputation is not relevant of the complainant’s credibility (CC s
277) or consent (the twin myths) (Seaboyer)
o Where the defence wishes to enter evidence of consensual conduct for other purposes,
it must be established on a voir dire that the proposed use of the evidence is legitimate
(procedures in revised s 276)
o Where evidence of past sexual conduct is admitted, a warning that it cannot be used to
support the twin myths should be given
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Possible examples of situations where evidence of consensual sexual conduct would be
admissible:
 Evidence of sexual conduct tending tp prove bias or motive to fabricate on teh
part of the complainant
 Evidence of specific instances of sexual conduct tending to prove that person
other than the A cased the physical consequences of the rape
Seaboyer held that s 276 as written undermined the accused right to a fair trial and s
11(d).
277. In proceedings in respect of an offence under section 151, 152, 153, 153.1, 155 or 159, subsection
160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, evidence of sexual reputation, whether general
or specific, is not admissible for the purpose of challenging or supporting the credibility of the complainant.
The Burden and Quantum of Proof
Evidential and persuasive burdens
Evidentiary Burden
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On the party whose duty is to raise an issue. This party must be able to point to some relevant
evidence that if believed could justify a finding in favour of the party that raises it (Stewart)
Persuasive Burden
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Refers to the legal burden on the party required by law to convince the tier of fact that they
have succeeded in proving their case on the relevant standard of proof
Civil cases
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Typically(but not always) the plaintiff bears both the evidentiary and the persuasive burdens
Motions for Non-Suit
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At close of plaintiff’s case the defence may make a motion for non-suit, which is a motion that
the plaintiff has failed to meet their evidentiary burden on a required element of the cause of
action
No-Evidence Motion
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BCSC Rules 12-5(4) – (5) provide that:
o (4) At the close of the plaintiff's case, the defendant may apply to have the action
dismissed on the ground that there is no evidence to support the plaintiff's case.
o (5) A defendant may make a no-evidence motion while reserving the right to lead
evidence after the motion is made
Insufficient Evidence Motion
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BCSC Rules 12-5(6) At the close of the plaintiff's case, the defendant may apply to have
the action dismissed on the ground that the evidence is insufficient to make out the
plaintiff's case.
(7) Unless the court otherwise orders, an application under sub rule (6) may be made
only after the defendant has elected not to call evidence.
Proof on a Balance of Probabilities
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Clearly, it is not that there is more than a 51% chance that the defendant is responsible
Application for Summary Judgment
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Brought before a trial, the moving party is claiming that the respondent party’s case is so weak it
is not worth bringing to trial (BCSC Rule9-6)
Burden and Degree of Proof in Penal Proceedings
Directed Verdict of Acquittal
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Criminal equivalent of the non-suit motion
At close of the Crown’s case the A may ask the TJ to rule that the Crown has not met its
evidentiary burden
o Accused not required to elect whether to call evidence before the J decides this motion
o If granted, the J will take the case away from the jury and enter an acquittal themself
o TJs aren’t supposed to weigh the evidence, but in cases where all the evidence is
circumstantial, there will have to be some weighing
o Requires the same evidentiary burden as that which applies in preliminary hearings
o Test is: is the evidence reasonably capable of supportin the inferences the Crown wishes
the jury to draw
Putting a Defence in Issue
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The defence must be the “air of reality test” (Pappajohn)
o Meaning that there must be some evidentiary basis for the defence (Cinnous)
o The evidence must provide a “real issue” for the tier of fact to decide
o This is a question of law
o Same standard even if burden is on the A to prove the defence on bop (automatism) –
Fish reverses Stone on this point
“Proof Beyond a Reasonable Doubt”
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The standard has a special legal meaning and should not be analogized to decision-making
standards in everyday life (Lifchus)
Other adjectives besides “reasonable” should not be used to describe the required level of
doubt (Lifchus)
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TJs should make it clear that PBRD is irrevocably linked with the presumption of innocence and
the burden is on the prosecution and never shifts to the A
It is based on common sense, not sympathy or prejudice
It is logically connected to the evidence or lack thereof
It does require absolute certainty or abscence of any doubt, but requires more than a belief that
the A is “probably” guilty
o In Lifchus: the charge to the jury was that the words PBRD had their ordinary every day
meaning – this was insufficient
Applies to the case as a whole:
o Proof beyond reasonable doubt is not required for every piece of evidence that is relied
on for a finding of guilt (Morin)
o Evidence should not be looked at in isolation, but rather as a whole
Presumptions
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A true presumption provides that if Fact A is proven, fact B is also true, unless the opposite party
can either:
o Mandatory presumption: the presumption is mandatory unless the other party brings
some evidence to the contrary, (s 11(d) is a mandatory but rebuttable presumption of
innocence of the A)
o Reverse Onus: A must prove the contrary on a bop (in criminal cases violation of s 11(d)
must be justified by s 1)
Distinct from definitions: definitions in the CC
Distinct from permissive inferences: common sense inferences a jury may be instructed that
they may draw (such as the A intended the natural consequence of their actions, but the jury
does not need to find this)
Appellate Review of Factual findings
Civil cases
Factual findings should not be overturned on appeal unless the trial judge made some palpable and
overriding error which affected the TJ’s assessment of the facts (Stein v the Kathy K)
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The error must be “glaring” and must have had strong possibility of affecting the result in order
to be overturned
CA should not have overturned TJ’s apportionment of the blame for the accident from 75/25 to
0/100
In Criminal cases
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Generally the same “palpable and overriding error” standard applies to questions of fact
Whether a conviction is “reasonable” is a question of law (Biniaris) (Test is whether a properly
instructed jury, acting judicially could reasonably had reached that verdict)
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In this situation the appeal court is not usurping the role of the jury, but rather
determining that the jury did not “act judicially”, meaning they could not have decided
the case dispassionately, deciding only based on the record before them
o In the case of a jury trial, a new trial must be ordered
Crown’s right of appeal is limited to a question of law alone (s 6767(1)), therefore the Crown can
only appeal a factual finding indirectly, by poiting to some error that tainted the fact-finding
purpose
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Hearsay
Definition of Hearsay
Hearsay is evidence, the probative value of which depends on the credibility of someone who cannot be
cross-examined. A statement is hearsay if:
1. It is an out of court statement
2. Offered for its truth
An out of court statement may be relevant for purposes other than to assert the truth of its contents, in
which case it will not be hearsay for this purpose (Subramaniam)
Other Purposes of Out of Court statements
Subramaniam
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The A’s testimony of what the terrorists said to him was relevant to the issue of whether the A
was acting under duress. The truth of the statements (whether it was true that they would
follow through on threats to him if he did not comply with their demands) – were not relevant
Wildman
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The statement may be relevant to the A’s state of mind, in this case the truth of the statement is
not disputed. There was no dispute as to whether the V was killed by a hatchet but the
statement that the Wife had called the neighbour while the A was present and accused them of
killing her daughter with an axe before the daughter’s body was found. The statement was
relevant to how the A knew how the V was killed before it was public knowledge
Creaghe
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The out of court statements were relevant because of the fact that they were made, not for
their truth.
o The out of court statements were performative statements that had legal effect as part
of an oral contract. It did not matter whether it was true that the defendant “wanted
the policy cancelled” or that “he didn’t need it anymore”, but it mattered if they were
made, since they established that an oral contract to cancel the insurance was made
Implied Assertions
In some instances an out of court statement not offered for its direct truth will still be considered
hearsay if it implies an assertion that would have been hearsay if the assertion had been directly stated
(Wright v Tatham)
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In Wright: the tone of the letters written to the Testator implied that he had sufficient capacity
although they didn’t go right out and say that. Held that therefore they were inadmissible for
the implied assertions they contained
Contrast with Wysochan
-
In Wysochan: statements of the V after she had been shot implied that her state of mind was
that she felt kindly towards her husband. Statements were admitted since they were out of
court statements not offered for their truth, rather they were offered to show the state of mind
of the declarant
o But: V’s state of mind was only relevant for the implied assertion that she believed that
the A had shot her and not her husband
 The rationale for the hearsay rule is ensure reliability through cross-examination
 The V could not be cross-examined on whether she had actually seen who shot
her
 Since she could not be cross-examined as to whether she say the A, the
statement was highly prejudicial
o Note: it was not clear that she intended the statements as an assertion
Hearsay by Conduct
-
A non-verbal assertion, such as pointing at something is still considered an out of court
“statement” (Mckinnon)
Conduct that is not intended by the “declarant” to be an assertion of the inference the party
wishes the trier of fact to draw is not hearsay
 In Mckinnon the fact that the wife accompanied the police to the location of the
gravesite was not hearsay, despite the fact that it supported the inference that
the Wife knew the location of the grave because her husband (the A) had told
her
 This evidence is admissible circumstantial evidence
The Rationale for the Rule Against Hearsay
-
Recognition of the difficulty in properly assigning weight to a statement that cannot be crossexamined or assessed for credibility
The declarant cannot be cross-examined as to testimonial factors
The statement was not made under oath
Exceptions to the Rule Against Hearsay
Approach (Khelawon)
1. Hearsay evidence is presumptively inadmissible unless it falls under one of the traditional
exceptions
18
2. A hearsay exception can be challenged to determine if it is supported by the indicia of necessity
and reliability and can be modified if necessary
3. In rare cases, evidence falling within an existing exception may be excluded because the
necessary necessity and reliability are lacking in the particular case
4. If hearsay evidence does not fall under a hearsay exception, it may still be admitted if reliability
and necessity are established on a voir dire
5. If otherwise admissible, the evidence may still be excluded if the probative value does not
exceed prejudicial effects
Rationale for continued use of the categories: serve to provide greater certainity and foster judicial
effiency so should not be abandoned, but their application must still comply with the principles of
necessity and reliability (Starr)
Admissions Exception
Anything the opposing party said or did is admissible as an exception to the hearsay rule provided that it
is otherwise admissible
-
Wigmore does not even consider admissions to be HRS - rationale: you can’t complain about not
being able to cross examine yourself
Admissions are only admissible against the party that made the statements, with the following
wrinkles:
1. Include adoptive admissions:
o Preconditions:
 A statement is made in the presence of the party, in circumstances that they
would be expected to respond, that the party’s failure to respond could
reasonably lead to the inference that the silence meant that the party adopted
the statement and PB > PJ
o The example given is the breach of promise cases: the non-response of the A when his
honour was insulted can be taken as evidence of an admission
2. Statements by an Agent of the party when the agent was acting within the course of their
employment are admissible under this exception
a. The agency relationship must be proven
b. And th the statemet must have been made to a third party or even to the employer
during the subsistence of the agency and related to a matter within the scope of the
agent’s duties or employment
3. Common purpose conspiracy: one party’s statements are admissible against a coconspirators if at the time the statements were made the two were acting in furtherance of
a common purpose or conspiracy
4. Admissions may be based on hearsay if the party indicates in the admission in a belief or
acceptance of the hearsay (Streu)
19
Where the Hearsay Declarant or the Testimony is Unavailable (at common law generally had to be
deceased)
Declarations against pecuniary or proprietary Interest – Applies to non-party witnesses
-
A declaration against pecuniary or proprietary interest may be admitted where:
o The declarant is unavailable to testify
o The statement when made was against the declarant’s interest
o And the declarant had personal knowledge of the facts stated
o Declarant does not need to realize that the statement could be used against them
o Allows the entry of all matters that are part of the statement, even if portions are not
against the declarant’s interests (Higham v Ridgway)
 The midwife’s receipt that her fee was paid, which also stated the birthdate of
the child was admissible for the purpose of proving the child’s birthdate
Narrow hearsay exception for statements made against Penal interests
A declaration against penal interest is admissible as an exception to the HRS rule if the following
conditions are met, and is only available to the defence (OBrien):
1. The declaration is made in circumstances that the declarant would have understood themselves
to be at risk of penal consequences (O’Brien)
a. Since charges against him had been stayed, the declarant was not a real risk of penal
consequences
2. There must be a real vulnerability to the penal consequences (O’Brien)
a. The possibility that the stay could be lifted was remote in the circumstances of the
declaration
3. Whether the declaration was against penal interests should be determined by considering the
totality of the statement(Pelletier)
a. Although the declarant’s statement that he pushed him – despite purportedly in selfdefence was still on the whole against the declarant’s penal interests
4. In a questionable case, a Court may consider whether there is other evidence or circumstances
connecting the declarant with the crime and any connection between the declarant and the
accused
5. The declarant must be unavailable to testify
a. Includes a situation where the declarant cannot be found (Pelletier)
When the statement inculpates the A it should not be admitted for this purpose (Lucier)
-
Evidence that the Court is concerned with the potential unreliability of these statements
Rationale is that it robs the A the right to cross-examine (but this is true for all of the HRS
exceptions)
20
o
Facts: Man ran out of a burning building on fire. Confessed to police to setting the fire
and said that the A paid him to do it, but later died in hospital. Statements were not
admitted under this HRS exception
Rationale for strict approach to this exception
-
Traditionally, the common law was very suspect of potentially false confessions, there are
many reasons a person may confess to a crime besides actual guilt
Dying Declarations
-
-
The declarant must have a settled and hopeless expectation of impending death.
o Very strict standard: for example cases of Wysochan and Wainwright did not qualify for
this exception
The rationale being that a person does not wish to die with a lie on their lips
Confined to declarations as to the cause of death in homicide prosecutions for the declarant’s
death
Declarations made in the course of duty (notably business records)
records that are made reasonably close to the time of the events and that were made in the course of
duty by persons having perno reason to misrepresent the events are admissible under this common law
exception (Ares)
-
applies to both oral and written statements
no notice requirement
In Ares: notes by nurse could be termed opinion whereas some statutes only allow facts
Includes only the record itself, not the whole statement as in the case for statements against
interest
Statutory Rule:
CEA:
-
-
any entry in any book or record kept at a financial institution is prima facie evidence of the entry
and the transactions and accounts recorded if the record was an ordinary record of the financial
institution, the entry was made in the ordinary course of business and the record was in the
control of the financial institution (s 29)
A record of what would otherwise have been admissible oral evidence is admissible if it was
made in the ordinary course of buisness (s 30)
Testimony from Prior Judicial Proceedings
Civil Cases
21
If a witness is dead, or is unable to attend and testify because of age, infirmity, sickness or
imprisonment or is out of the jurisdiction or his or her attendance cannot be secured by
subpoena, statements made by that witness in any proceeding at which the evidence was taken
under oath, whether or not the proceedings involved the same parties, the statements may be
put into evidence (BCSC Rule 12-5 (54))
- but reasonable notice must be given
- Much broader than common law rule and s 715 as it applies to testimony taken at any
proceedings
- Note: Wigmore did not consider this to be hearsay exception, because there was the
opportunity to cross-examine the evidence when it was taken
Criminal Cases – s 715 of CC
-
Testimony from a prior proceeding is admissible if it was given at a previous trial on the same
charge, the preliminary of the same charge, or during an investigation for the same charge, and
the A had the opportunity to cross-examine the witness if the witness later refuses to testify or
is likely:
o Dead,
o Become insane
o So ill that cannot travel to testify
o Or is absent from Canada
 Section 715 does not violate s 7. It is not a PFJ to be able to cross-examine a
witnesss fully in front of the trier of fact (Potvin)
 There is however, a constitutional discretion on the part of the TJ to refuse the
admission of prior testimony if the A can show that they did not have “full
opportunity” to cross-examine the witness at the time the evidence was taken
 A tactical decision to not fully cross-examine the witness at the
preliminary will not warrant the application of this constitutional
discretion (Potvin)
 Note: A witness who later becomes incompetent (Hawkins) will not qualify for
the application of this section
Verdicts from Prior Criminal trials introduced in civil trials
A conviction of an offence anywhere in Canada where the commission of the offence is relevant to any
issue in an action may be admissible to prove that that person committed the offence (s 71 of the BCEA)
-
A party may argue in a jury trial that the evidence should not be admitted as its prejudice would
outweigh its probative value (s 71(3))
The weight to be given to the conviction is to be determined by the trier of fact (71(8))
Criminal Proceedings
22
Jesse
-
Overturns Hollington rule: proof of a criminal conviction was not admissible as evidence that the
A had committed the offence in a civil action involving the same fact (UK Rule)
o the conviction, although identity had been an issue, was evidence that it was the A who
had committed the similar fact evidence.
o The TJ is not required to accept it as proof however, if the A could bring evidence that
assured the TJ on a bop that the A had actually not committed the previous offence
Where the Hearsay Declarant is available
Previous (out of court) identifications
As in court identifications have little probative value do this exception allows for a person to testify that
the witness had previously
Past recollection recorded
- Witness made a record at the time but no longer actually remembers the actual event. Reliance is
placed on the witness’ system of record keeping, which can be cross-examined on
Spontaneous Statements - Where the Exception does not depend upon the (un)availability of the
Hearsay Declarant
Statements of Present physical condition
-
The statement must be contemporaneous with the event (Youlden)
Often not considered hearsay if it is not be admitted for its truth but rather the state of mind
In other cases, such as the declarant saying “I’ve hurt my back!” the statement is going in for its
truth and therefore must go in under this exception (Youlden example)
Statements of Present mental or emotional state (including intention)
Evidences of state of mind are admissible as an exception to the hearsay rule. If they are explicit
statements of a state of mind, that are admitted as exceptions to the hearsay rule. If they only produce
an inference of a state of mind, than they are not hearsay but rather circumstantial evidence from which
one can infer state of mind (P(R)) – but in either case, the result is the same.
-
-
Cannot be admitted as evidence of a state of mind or actions of other people other than the
declarant, even in cases involving joint action (Starr)
o Declarant’s statement that he intended to do an autopac scam with Robert was not
admissible as it would have established the intention of “Robert” (the A) and not just
the declarant
P(R): evidence that the victim made statements showing that she was unhappy with her
relationship with the A and that she intended to leave him and permanently sever their
relationship qualified under this exception to the hearsay rule
23
o
However, some of these utterrances that were made several months before the V
disappeared had little probabtive value in determining her state of mind at that time
and would be highly prejudicial, since they described that the A was a tyrant. Therefore
these were excluded but the rest were admitted
US Rule: statements of intention are admissible as proof of the intention (Hillmon)
UK: a statement of intention is not admissible for its truth (Wainwright, Thomson)
-
-
The fact that the victim made a statement to the witness when she departed is not hearsay, but
the contents of that statement – that she was going to the house of the A, is inadmissible
hearsay
Thomson: the statement that the victim intended to perform the abortion herself was not
admissible
Excited utterances
-
-
-
Must be spontaneous utterances, exact contemporaneaty is not necessary (Clarke)
o The V’s statements “Help! I’ve been murdered! I’ve been stabbed!” were sufficiently
spontaneous and connected to the event to be admissible under this exception
 “I’ve been murdered” – since what qualifies as murder is a question of law, this
opinion statement of the victim would probably not be included now
(Ratten)
o What was said to the operator was admitted as either not hearsay or under this
exceptions. The statements was that a sobbing female voice said she needed the police
Earlier rule was that statements must be contemporaneous with the event (Bedingfield)
o “Look at what Harry has done to me” is not contemporaneous with event as she said it
after she ran out of the room with her throat cut
The Principled Approach to Hearsay
The Principled Approach
Hearsay evidence is presumptively inadmissible. Hearsay evidence that its admissible under one of the
traditional exceptions is presumptively admissible. Hearsay evidence that does not fit into one of the
established exceptions to the rule may still be admissible if it is reasonably necessary and reliable
(Khan).
Evidence that is prima facie admissible under a recognized hearsay exception may nonetheless be
excluded if it more prejudicial than probative (Starr)
- all the statement of intention made by the declarant had some suspect probative value in
determining his intention, its prejudicial effect on the A made it inadmissible
24
- “I’m going to do an autopac scheme with Robert” was not reliable because it could have been
motivated by a need to provide an excuse to the witness as to why he wouldn’t go home with
her
-
When determining admissibility under the purposive approach, a TJ should adopt a functional
approach and may consider the wider context and any corroborating evidence, not just the
immediate circumstances around the statement itself (Khelawon)
- Reversed Starr on this point
- Khelawon
-
Khan:
o Statements by a young child that refer to sexual events are unlikely to be fabricated, the
V was did not have the capacity to testify and therefore the hearsay evidence was
necessary, as well
Smith:
o Held that Khan principled approach applies in all cases. At issue were statements made
over the telephone by the V to her mother
 Problematic result that the first two conversations were admitted –
 First two: the V said the A had left the V at the hotel
o There was no reason for the V to lie, and the dangers associated
with hearsay evidence (that the declarant’s
perception/testimonial factors could not be cross-examined)
was not relevant
 Third phone call: V said Larry has come back for me
o Less reliable since V might have been lying to her mother since
she might not have wanted to get a ride from a person that was
suggested who had previously assaulted her
o It seems odd that she would have known that Larry would giver
her a ride when she hadn’t spoken to him yet
o Baldree: ONCA disagreed over whether a phone call asking for drugs to the A’s phone is
implied assertion hearsay. Majority felt if it was hearsay, one call is not enough to meet
the principled approach (although would not follow UK case Kearley – where 17 calls
were not admitted)
 Dissent thought it was not hearsay – rather it was circumstantial evidence as the
declarant did not intend to assert that the A was a drug dealer
-
Development
Myers: UK case – business records where the block numbers had been recorded by unknown employees
– didn’t get in under business records exception because it could not be proven that the employees
were dead, despite technicality, UK judges refused to modify the common law approach
25
Ares: (Canada): Adopted dissent from Myers – created exemption for hospital records and determined it
was not necessary that they be unavailable, but modified or created new exception rather than a
revolution
Prior inconsistent statements (KGB)
-
-
Prior inconsistent statements may be offered for their truth in select situations where the
statements meet the requirements of necessity and reliability (KGB). The party wishing to call
the witness must prove on a bop that it is admissible
o Reliability satisfied where (ideal conditions):
 The statement was made under oath
 The entire statement was video taped
 The opposing party has the full opportunity to cross-examine the witness
respecting the statements
o These indicia of reliability are not necessary if the Court is satisfied that other indicia of
reliability are present
o The prior statement must be otherwise admissible and not hearsay (Khan)
o Necessity: should be understood felexibily, where evidence of the same value is not
otherwise available
Hawkins: Although she could not be cross-examined at trial, the W was cross-examined by the A
at the preliminary inquiry, meant realiability and necessity threshold
Prior Consistent Statements
- continuing issue: generally an A can’t get prior exculpatory statements in if the A doesn’t testify
unless they can in through the mouth of a police officer as an excited utterance
- Note Edgar: response to wrongful conviction in Morin
- in the context of spontaneous statements made by an accused on arrest or when first
confronted with an accusation the ONCA indicated that if the A takes the stand and exposes
themselves to cross-examine the rationale for this rule “evaporates” and the statements may be
admissible (Edgar)
26
Opinion Evidence
Opinion Evidence is presumptively inadmissible (Graat)
Lay Opinion
-
However, in matters of common knowledge, lay people can give their evidence in the form of an
opinion where it is difficult for the witness to separate the particular facts from the inference, as
the opinion is based on multiple perceptions that can best be communicated in a compendious
format rather than narrated individually (Graat)
o Police officer could testify that the A appeared to be drunk
o Held that intoxication was a matter of common knowledge that police did not have
expert opinion in
o Officer was essiently offering opinion on the sole material issue in the case. Court held
that “impairment” was a factual inquiry and that the CC had adopted everyday
knowledge into this definition, distinct from standard of “negligent” which is a legal
standard
Identification Evidence
- Eyewitness identification is the most problematic type of lay opinion evidence
Expert Evidence
Mohan is the leading SCC case on the admission of expert evidence. In Mohan the Court identified four
factors that are relevant to whether expert evidence should be admitted. These are:
-
-
-
Relevance
o Question of law threshold that involves weighing of PV and PE: will the “mystic
infallibility” of science overwhelm the jury?
necessity in order to assist the trier of fact
o the evidence must be helpful, meaning that it provides ino that is likely to be outside the
experience and knowledge of the jury
absence of an exclusionary rule
o Evidence has to be otherwise admissible (cannot violate other rules of evidence)
a properly qualified expert
o The witness must have acquired special or peculiar knowledge through study or
experience on the matter
Abbey Formulation
First Stage: Preconditions
27
-
The subject matter of the proposed oionon is beyond the common understanding of the
ordinary person
The witness is qualified as an expert on the relevant issue
The evidence is otherwise admissible
The proposed opinon must be llogically relevant to a material issue
Second Stage: Gatekeeper Analysis
-
Discretionary gatekeeper role of the trial judge to determine that the opinion has some legal
relevance. Involves Limited weighing of the costs and benefits of admitting the opinion in
order to determine whether the PV outweights the PE of admission of the evidence
When is a matter relating to human nature beyond common knowledge
-
A subject matter that is subject to a large group of myths and sterotypes in beyond the realm of
the average juror and is thus suitable for explanation by an expert (Lavalle)
o Considering the prejudice and stereotypes involved when the average person wonders
why a battered spouse doesn’t leave, the expert evidence was relevant to whether the
A’s apprehension of imminent danger to herself was reasonable
Novel areas of Science
-
novel science is subject to special scrutiny (Mohan)
o HF: in practice novel science is generally admitted, particularly if it is defence evidence
If the expert evidence involves novel areas of science, the Court should adopt the role of
gatekeeper while considering the following four factors flexibly (Daubert):
o The evidence is capable of being tested and has been tested
o Has been published and peer-reviewed
o There is a known or potential rate of error
o General acceptance in the scientific community (this is a factor, but is no longer
determinative)
Polygraph Evidence
-
Polygraph evidence is not admissible (Beland)
o Rationale is concern that expert will ursupr the role of the trier of fact in determining
credibility
o Supported by rule against oath-helping and reluctance by the Court to allow others
besides the tier of fact to give opionon about the truthfulness of others
Problems with expert testimony
-
expert opion evidence is often based on studies not before the court and which cannot be crossexamined on
28
-
experts are costly and may exacerbate access to justice concerns and imbalance in the
adversarial system
Counsel may have difficultly cross-examining experts sufficiently since they are more
knowledgeable on the subject
Many view scientific evidence as infallible, when in reality expert evidence has played a role in a
number of wrongful convictions
Ultimate Issue Rule
-
-
Experts may give evidence on the central issue in a case (Mohan) and the ultimate issue rule is
no longer the law, except for where it survives in the rule against oath helping and the ban on
experts giving expert opinion about (rather than just relevant) to the credibility of the witness
Also, an opinion cannot be given on a question of pure domestic law – that is for the judge and
the lawyers
The closer the opinion is to the central element in the case, the more stict the test for reliability
and necessity will be (Mohan)
Expert Opinon Based on Hearsay
-
-
-
-
Inadmissible hearsay evidence an expert relies on (such as conversations with the A) can be
recounted to permit the trier of fact to know the basis for the expert’s opinion (Lavalee)
o This evidence can only be used to enable the trier of fact to evaluate the opinion, not as
proof of the facts recounted in the hearsay evidence
An expert opinion that is based entirely on hearsay evidence will receive no weight however and
cannot be relied on by the trier of fact (Abbey)
o Psychiatrist’s evidence was based entirely on what the A had told him. Since the A did
not testify at trial, none of what A had told the expert was supported in the evidence.
 If it had been admitted, it would essentially allow the A to put his version
(potentially self-serving) of his mental state into the record without having to be
cross-examined
It is not necessary that every fact an expert opinion relies be admissible evidence, rather as long
as there is some admissible evidence to establish the foundation for the expert’s opinion, that
opinion can be admitted (Lavalee)
o Since psychiatrist’s opinion was based on admissible police records in addition to
conversations with the A and her mother, there was enough of an evidential foundation
for the opinon to carry some weight
o Even though the accused was likely the major source for the opinion the expert
evidence was still admissible
The weight given to an expert opinion is directly related to the amount and quality of admissible
evidence on which it relies (Lavalee)
Expert Evidence based on General knowledge in a field
29
-
-
-
Sopinka in Lavallee drew a distinction between expert evidence that is based on evidence
drawn from the expert’s area of professional expertise and expert opinion that is drawn from
information supplied by the parties to the litigation
In the former case it is not necessary that the evidence on which the expert’s opinion is based
be admissible evidence
o Example of an opinion of housing values based on the expert’s accumulated knowledge
in that field
It is only the later case- where the expert is relying on information directly touching an issue in
the litigation that has been supplied by one of the parties
o Such as conversations with the accused (Abbey) – this information is more likely to be
self-serving and unreliable
Experts adopting other published sources (such as textbooks)
An expert can only be cross-examined on works he or she has adopted as authoritative, but cannot be
cross-examined on other texts the expert does not recognize as authoritative (Maquard)
Questioning of Expert witnesses
If the facts are in dispute, the counsel should state facts to the witnesss in the form of questions based
on hypothetical facts
BCSC Rules about expert reports – Rule 11-6
-
An expert report that is offered as evidence must be signed by the expert and certified (1)
An expert’s report must be served on the other party at least 84 days before trial (3)
BCSC Rules about Expert Opinion Evidence at trial – Rule 11-7
-
-
-
Unless the Court orders otherwise, except for evidence of an expert appointed by the Court
under Rule 11-5, opinion expert evidence must be included in a report prepared by that expert
(1)
If the other party demands (within 21 days of service) that the expert attend at trial in order to
be cross-examined, the report cannot be offered as evidence at the trieal unless the party
whose expert it is complies (2)
If this demand is not made, than the expert who made the report need not attend trial to give
oral testimony and the report may be tendered and accepted as evidence at trial
Procedures involving expert evidence at Criminal Trials – s 657.3 of the Criminal Code
-
Both the Crown and dfence must provie notice before trial of any expert witnesses they intend
to call as well as the witness’ qualiffications
The Crwon must disclose a copy of its expert’s report or summary of its evidence
30
-
The defence must also disclose this, but only after the close of the case for the prosecution (this
is an exception to the Stichcombe rule that the Crown only has disclosure obligations
Number of Expert Witnesses that may be called
-
s 7 of the CEA permits a party to call up to 5 expert witnesses plus more may be called if the
party receives leave from the court
o some dispute, but generally felt that this limitation applies to the total amount of
experts a party may call (Altana Pharma)
31
Assessing, Supporting and Impeaching Credibility and the Limits on Each
Assessing Credibility
The Demeanor of a witness
-
-
Assessing demeanor is important in determination of credibility, however it cannot be the only
factor. Even though a witness may sincerely believe their evidence to be true, does not mean
that their evidence is reliable (Norman)
Credibility: is the person a truthful person
Reliability: is this person telling the truth right now
Assessing the Credibility of Child Witnesses
-
a more flexible approach should be taken when assessing the credibility of a child witness.
Inconsistencies in their testimony will not ncecessarily make their evidence more unreliable
(W(R))
Deference to findings of credibility at trial by appellate courts
-
An appellant court may overturn findings of credibility if there are unreasonable (W(R))
o However this is very very rare
Limits on supporting credibility - Rule against oath helping
Subject to certain exceptions, a party cannot lead evidence the relevance of which is to show that
another witness is a truthful person unless that witness’ credibility has been attacked (Kyselka)
-
-
Kyselka – Crown called an expert psychiatrist to testify that persons of the V’s mental capacity
were not able to make up stories like the one the V recounted in her testimony
o Since the W’s credibility was not disputed, this evidence violated the rule against oath
helping
o Dr’s evidence was particular to this witness
Rationale: Motivated by trial efficiency concerns
Exception One: Where the assessment of the credibility of a witness requires knowledge that goes
beyond common knowledge
-
An expert can give evidence as to the signifance of certain behaviours when assessing the
credibility of witnesses to whom the common standards of credibility do not apply (Marquard).
However in this case the expert should not express an opinion on the actual credibility of the
particular witness (Marquard)
o This has been described as putting the credibility in context
32
o
In Marquard: Dr. Mian evidence would have been admissible if it had restricted itself to
explaining why children may lie about the cause of their injuries initially, however since
she went as far to express her personal opinion that the V’s first statement was a lie
while her second explanation was the truth, her evidence was not admissibele
Exception Two: Good Reputation for telling the Truth
-
The defence in a criminal trial may lead reputation evidence the point of which is either to show
evidence of the A’s good character or to enhance the A’s credibility if he or she testifies (Clarke)
However, a party cannot lead evidence of another witness’ reputation for truth telling unless
their credibility has been attacked
“Reputation” Evidence
-
-
Lay witnesses can only testify as to whether they know the person’s reputation in the
community for truthfulness and if that reputation is good or bad. They cannot be asked the third
question: which is “from that reputation, would you believe this person under oath?”
has to reputation within the community, not just the witness’ personal opinion (Rowton)
o although doesn’t have to be a community in the geographic sense, “community” refers
to a circle of people (Levasseur)
Prior Consistent Statements
Prior consistent statements are not generally admissible. Why:
-
the fact that a statement has been said in the past does not make it more likely to be true
Any probabtive value is minimal and does not justify the time required to enter it into evidence
and cross-examine it
If it is being offered for its truth it is hearsay
Exceptions:
1. The prior consistent statement is relevant to the mens rea of an offence
2. Prior identifications
a. If a witness identifies a party in court this is not particularly probabtive, so evidence of a
prior identification can be entered to allow the original identification to be explored
3. Recent Fabrication
a. Where one party has alleged that the other party has recently fabricated something,
that party accused of recent fabrication can bring evidence that prior statements were
made before the alleged fabrication took place and that these statements are consistent
with the story at trieal (Ellard)
4. Prior Consistent statements that form part of the narrative of events are admissible (F(JE)
33
a. Prior consistent statements that provide background and context to the story told in
testimony are admissible not to prove their truth but provide a cohesive narrative for
the trier of fact (F(JE)
5. Prior Consistent Statements that are circumstantial evidence of credibility other than on the
impermissible basis that the statements show credibility because of consistency
a. The distinction is between using narrative evidence for confirming the truthfulness of
sworn testimony and for narrative evidence that can be used for the permissible
purpose of showing the fact and timing of a complaint which may assist the trier of fact
in the assessment of truthfulness or credibility (Dinardo)
i. Statements by the witnesses made right after the assault could only be relevant
to providing context for how her credibility should be assessed, considering her
mental capacity. The TJ erred by using these statements corroborate her
evidence (mentally disabled woman sexually assaulted by taxi driver)
6. Prior consistent statements where the Accused takes the stand (Edgar):
a. Prior consistent spontaneous statements made on the accused’ arrest or upon being
accused, may be persuasive evidence of innocence
b. In certain circumstances these may be admissible in circumstances where the context of
the prior consistent statements are more probative than prejudicial
i. After the A has testified to these statements the A may call the police officer
who heard the statement to verify that it was made to the jury
c. In response for inquiry in the wrongful conviction of Moran who was very upset that he
had repeatedly asserted his innocence and these statements did not go in at trial
Doctrine of Recent Complaint
Since s 275 of the CC has abolished the doctrine of recent complaint there is no need to call expert
evidence on why victims in sexual assault cases might not have “raised the hue and cry” (D(D))
-
The doctrine of recent complaint had allowed the Crown to tender evidence that the sexual
assault victim previously reported the assault to the police
o Expert evidence is not necessary to support the argument that Canadian law as in the
Criminal code is correct
o S 275: 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
Impeaching Credibility
Four Methods:
1. By expert evidence
2. Reputation evidnce
3. Prior inconsistent statements
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4. Prior convictions
Expert Evidence impeachment
Medical or expet evidence can be offered as evidence that a witness has psychological abnormalities
that render them unreliable (Toohey)
- This expert opinion is only admisslable where the trier of fact would not be able to assess the
witness’ credibility on this point without expert assistance
o Expert evidence was admissible to show that the V sufferedn from a mental illness that
made him get hysterical easily
Impeachment through Reputation Evidence
Impeachment of credibility can be done through reputation witnesses who testify as to the person’s
reputation for truthfulness in the community (Clarke). However, witnesses generally will not be able to
testify as to whether they would believe the person under oath, as the prejudicial effects will usually
outweigh any probative value
- 3rd question: ursurps the jury’s role, testifying under oath is not the same as reputation in the
community
- Trial efficiency: response to cases such as Taylor, where 20 witnesses were called to give reputation
evidence
- Character evidence of a witness is not limited to general evidence in the community, but note Clarke
restrictions
Impeachment through prior inconsistent statements of the other party’s witness
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
o This removes the common law restriction that required the document first be shown to
the witness
- 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
o Proof of the contradiction pursuant to s 11 can only be admitted if it deals with a
matter relevant to a material issue, in which case it can be proved in court for the
purpose of the contradiction
 Otherwise the collateral facts rule applies
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Procedure:
- Counsel has the witness confirm the present testimony
- The witness is then confronted with the making of a prior statement
- The prior statement is put to the witness showing the contradiction. Usually this involves the crossexaminer reading the portion of the prior inconsistent statement out loud for the record. If it is an
oral statement, the circumstances of the occassion of the alleged statement will be put to the
witness
- Finally the witness will be asked to adopt the prior inconsistent statement for its truth. If the witness
refuses to adopt the prior statement, unless the prior inconsistent statement qualifies as an
exemption to the hearsay rule, the statement will go in for the purpose of impeaching the credibility
of the witness
Prior Inconsistent Statements of one’s own witness
- common law rule was that in order to impeach your own witness the wtiness had to be hostile and it
was unclear whether a hostile witness could be cross-examined on a prior inconsistent statement
- A party that called a witness could never impeach that witness through general bad character
eviedence (s 9(1) the CEA
- Despite the wording of s 9(1), a party can contradict their own witness’ testimony through offering
other evidence provided by other witnesses
- Counsel can also use leading questions and other techniques to refresh the witness’ memory
Cross examining one’s own witness
- At common law, this could only be done if the witness was hostile. If a witness is hostile they can be
cross-examined at large (Figliola)
o Hostile: demonstrates antagonistic attitude towards the party calling them
- An adverse witness pursuant to s 9(1) of the CEA is one that is opposed in interest to the Crown
(Figliola)
o However, it may be difficult to prove that the witness is adverse without cross examining
on the prior inconsistent statements
- A s 9(1) cross-examination cannot go so far to suggest that the witness and the party are
corroborating to cover something up Figliola)
- s 9(1) of the CEA:
o A party calling a witness cannot impeach their own witness through general bad reputation
evidence, but if the witness is adverse, the party may contradict him by prior statements of
the witness that are inconsistent with the witness’ present testimony.
 First the party must prove that the witness is adverse on a voir dire
 If the Judge finds that the witness is adverse the party will be allowed to show
proof of the statement to be brought
36


First the witness must receive notice of the circumstances of their previous
statements
IF they deny making these statements then the statements can be proven by calling
other witnesses if necessary
Where the prior inconsistent statements were in writing or were reduced to writing
In this case s 9(2) governs: A party may cross-examine on and prove prior inconsistent statements
without having to first prove that the witness is adverse (McInroy)
-
Milgaard Procedure
If the witness does not adopt the prior statement as true the default is to attempt to fit the
statement within the KGB criteria
 Problem: Creates different standard for if the prior inconsistent
statement is in writing or not, if the prior inconsistent statement is not
in writing in order to cross-examine your own witness on it you need to
first prove the witness is adverse – which may be difficult to do without
proof of prior inconsistent statements
Impeaching a Witness through showing prior convictions
-
-
-
A witness can be cross-examined about previous convictions in order to impeach credibility (s 12
of CEA)
If a witness denies the fact or refuses to answer it the opposite party may prove the conviction
(s 12(1.1))
o This is an exception to the collateral facts rule
o Proof of the prior conviction can be done by entering a certificate or record and proof of
identity
S 12 also applies to Accused who take the stand (Corbett)
o However the jduge has a discretionary power to determine whether and what portions
of the record can be offered to show the accused is not credible. This is done by weiging
of the probative value and prejudicial effects
o 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
 Fariness to the Crown and society’s interest in justice must also be considered
Limits of s 12 Evidence
o If the prior conviction is admitted pursuant to s 12 the jury must be warned of its limited
use
o Cannot cross-examine about the details of a crime (Laurier)
37
-
Cross-examination on a juvenile record is permitted (Morris)
Application in Corbettt
-
Majority (Dickson) felt that as the Accused had seriously attacked the credibility of witnesses on
their basis of their records the previous murder conviction could be entered by the Crown
LaForest felt that the prejudicial effect of an entry outweighed any probative value on credibility
o The A had other convictions that could be entered to impeach credibility and the other
circumstances of the case clearly showed that the A was an unsavoury character
Collateral facts
-
-
-
-
A party may ask questions that are not directly relevant on cross-examination of a witness.
However that party cannot lead extrinsic evidence to disprove evidence on a collateral matter
(Melnichuk)
o Whether or not the A had ever held himself out to be a chartered account was not
dirently relevant to the Crown’s case of mortgage fraud. Therefore when the A denied
that he had ever held himself out be a chartered account (denied that the document
shown to him had been produced him) the Crown was not entitled to lead evidence on
this issue
o Hitchcock: the witness denied ever being bribed. Evidence that the witness said he had
been bribed was too collateral of the main issue, which was whether another person
had made illegal alcohol
Wigmore definition
o If evidence would have been admissible as relevant for a purpose other than to
contradict the witness, its not collateral.
Phipson Definition
o Subject to certain exceptions, if the fact is not directly relevant to a substantive issue, its
collateral
 Exceptions:
 Bias, interest or corruption
 Previous convictions
 Evidence of reputation for untruthfulness
 Expert evidence on problems that could affect the reliability of the
witness’ evidence
Mccormick
o In addititon to Wigmore’s definition, believes it is necessary to account for linchpin
evidence, which is a background fact that on its own is insignificant, but the
contradiction undermines the entire testimony
Corroboration
38
It is up to the discretion of the trial judge to decide whether a warning that a certain witness’ evidence is
untrustworthy should be given to the jury (Vetrovec)
-
If the trial judge thinks it is necessary, a clear and sharp worning can be given that it is unsafe to
rely on the evidence of an unsavoury iwtness without some other evidence that confirms or
agrees with it
- (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:
1. Draw the attention of the jury of 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.
At common law, the evidence of a number of different witnesses had to be independently corroborated
before it could be used to support a conviction(Baskerville)
-
Corroboration under Baskerville had meant that there had to be independent proof of both the
crime and that the accused was responsible
39
Character Evidence
-
-
Subject to the similar facts rule, the crown may not, as part of its case in chief, lead evidence
that the accused has engaged in discreditable or criminal conduct, or is of bad character.
- The exception to this is if character is at issue (such as in a defamation case)
- Character evidence cannot be offered for the “forbidden inference” (Rowton):
i. Which is that the accused is likely guilty because they are a bad person
- Evidence of bad character is only admissible to “neutralize” good character evidence if
the A has put his character in issue (McNamara)
The rule against character evidence is only engaged where the relevance of it consist of an
inference that on the occasion in question the person acted in conformity with his or her
previous conduct or reputation
Putting Character in Issue
- Accused can lead good character evidence and put character in issue by:
- Offering evidence of good reputation in the community (Rowton)
- Testifying to his own good character (McNamara)
- calling expert evidence of propensity or disposition (Mohan)
- attacking the character of a 3rd party (Scopelliti)
i. McNamara:
1. “the mandate was to run the company like it should be run, legally” put
the A’s character in issue because the A asserted that he would not
knowlying permitted the company illegally and that he was a law
abiding citizen
ii. McFadden:
1. “I have the most beautiful wife in the world” put the A’s character in
issue since implied that because of this he was not the type of person to
assault and murder women
Offering Good Character evidence through good reputation witnesses
- An accused can offer witnesses to testify that the accused is not the type of person to have
committed the crime (Rowton),
- This evidence must be in the form of general reputation in the community (Levasseur)
i. The community does not have to mean community in the geographic sense,
rather it refers to a circle of people
1. Levasseur: the A could bring evidence of her reputation in her business
community
-
Rowton: the Accused was charged with indecent assault of school children. He brought
witnesses to testify that he was of an excellent character
i. the Crown could only rebut this evidence though general evidence of reputation
in the community not evidence of particular opinions
- Weight of good character evidence
- evidence of good moral character, while maybe relevant in a trial concerning dishonesty, may
have little weight when the crime is the abuse of children, which often occurs in private (Profit)
- Profit: the A called 22 character witnesses to testify about his moral character. The trial
judge was entitled to believe that the accused still committed the sexual assault on a
student despite the many character witnesses as the sexual abuse committed by people
40
in positions of trust often occurs in secrecy and so in this case the Accused reputation
for morality carries less weight
The Introduction of Good character evidence through expert opinion
- Where the trial judge is satisfied that the perpetrator of the crime had a distinctive behavorial or
phsycialogical characteristic the A may offer expert opinion evidence that he or she does not
have this trait (Mohan, Lupien)
- In reality very difficult test to meet
- Most crimes are only capable of being committed by those who aren’t members of an
abnormal and peculiar group
Capability for violent actions can be determined by the trier of fact and does not
necessicitate an expert witness (Robertson)
i. the 9 yr old victim was killed with great violence however it is not clear in the
judges mind that the perpertrator had to be a psychopath. Therefore his
attempt to offer an opinion that he was not capable of such violent acts was
rejected
- Mohan: sexual assaults on yong girls are not only committed by a particular and
abnormal groups, therefore’s the psyc evidence that it was a sexual psychopath
pedophile had committed the assault was rejected
- Lupien: accused was charged with gross indecency of sleeping with a man, was
successful in convincing the Court that he could lead evidence establishing that he was
homophobic in order to advance his defence that he thought the man was a woman
Putting character in issue through the introduction of bad character evidence about a 3rd party
- If an accused introduces bad character evidence about a third party, the inference often is that
the A’s character is better than that of the third party. Therefore if the A does bring this
evidence, the A will generally have put their character in issue (McMillian)
- A was permitted to bring expert evidence of his wife’s psychopathy but in doing so he
put his character in issue and the Crown was permitted to bring expert evidence of his
bad character in order to “neutralize” the inference that the wife was more likely to
have committed the crime.
i. The reply evidence of the Crown can still not be used for the prohibited
inference
- The inference does not automatically occur every time an Accused points the finger at
another person
- When bad character evidence of a third party is offered to cast doubt on identity, there
must be some circumstantial link of the 3rd party to the crime as well (McMillian)
- An accused person can lead evidence of specific bad acts of the victim if it is relevant to a theory
of the defence (Scopelletti)
- Most courts have left it to the trial judge to determine whether or not this puts the
Accused character in issue
- Scopellitti: The Accused was charged with killing two people that were causing trouble in
his store. His defence was self-defence however he did not know that they had a history
of a propensity for violence. Evidence of the victims bad character – which was lead to
show that they victims were likely to behave in the way the A testified they had at trial
was admissible for this purpose
41
-
An accused can put their character in issue while being cross-examined, but the Crown can’t
adduce good character evidence in cross-examination in order to get the accused character in
issue (Brickker)
Rebuttal Evidence of bad character
- When the A puts his character in issue through his own testimony The Crown is not required to
restrict itself to evidence of general reputation in the community and can cross examine on
specific instances (McNamara)
- In circumstances where the Crown wishes to rebut good character evidence through the
introduction of bad character evidence through evidence of specific bad facts, unless the acts
meet the requirements for similar fact evidence, this evidence will only be rarely admitted as its
potential for prejudice will likely outweigh its probative value (McFadden)
Rebuttal through previous convictions
- Where an accused has put their character in issue the Crown may reply through offering
evidence of previous convictions (s 666) – this goes farther than s 12 of the CEA and
allows the Crown to question the Accused on the facts underlying the convictions
Bad Character evidence led by the Crown in Rebuttal
- Normally restricted to evidence of general reputation, similar fact evidence or previous
convictions (McFadden)
Similar Fact Evidence
Similar Fact evidence is presumptively inadmissible. The onus is on the prosecution to satisfy the
trial judge on a bop that in the context of the particular case the probative value of the evidence
outweighs its potential for prejudice (Handy)
The Prohibited Inference
- Evidence that only shows that the Accused has a general bad character trait that makes it more
likely that he or she committed the crime is prohibited from being led by the Crown, as its
marginal probative value is outweighed by its prejudicial effect (Handy)
- However, situation specific propensity evidence may in some cases be admissible, if it meets the
criteria laid out in Handy.
The Principled Approach to Similar Fact Evidence
- When determining whether evidence of the Accused bad acts can be lead by the Crown in their
case in chief, the Crown must satify the trial judge that in the context of the particular case the
probative value of the evidence outweighs its potential for prejudice.
- When determining whether the Crown has met this burden the following factors must be
considered:
- The Probative value is first evaluated, considering:
i. If there is an allegation of collusion that has an air of reality the trial judge must
first determine whether the Crown has disproved collusion on a balance of
probabilities
1. Allegation of collusion is not enough for there (Shearing)
ii. The issue in question: the issue the that the similar fact evidence is offered to
prove must be identified. The issue must be something other than the general
disposition of the Accused
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-
-
1. “credibility of the complainant” is not specific enough, in Handy the
similar fact evidence was offered to support the actus reus of the
offence and show that the Accused had a propensity to refuse to take
no for an answer
iii. Identification of the required degree of similiarity: the required degree of
similiarity will vary depending on the issue the Crown is trying to prove.
1. In identity cases: the events must have a high degree of similiarity
iv. The trial judge must then identify the connection between the similar acts and
the charge factors that may reveal similiarity include:
1. Proximity in time of the acts
2. Extent to which the other acts are similar in detail
3. The number of occurrences of thee similar acts
4. Circumstances surrounding or relating to the similar acts
5. Any distinctive features unigying the incidents
6. Intervening events
7. Any other factors that support or rebut the underlying unity of the
acts
the Assessment of the Prejudice
- the trial judge should consider the potential of both reasoning and moral prejudice
i. reasoning prejudice: the danger that the trier of fact will be distracted by a
number of side issues involved with proving that the similar fact event occurred
ii. moral prejudice: the danger that the trier of fact will actually make the
prohibited inference
1. strong risk in this case because the pattern of spousal abuse will be seen
as worse than a refusal to take no for an answer during casual sex
The Weighing of probabtive value versus prejudice
- Similar Fact Evidence need not be conclusive of guilt
i. It is for the trier of fact to determine guilt, the trial judge is only to be a
gatekeeper and inconclusive evidence that otherwise is more probative than
prejudicial may still be admissible
- Diferreintating admissible from inadmissible propensity evidence
i. Handy recognizes that all propensity reasoning is not prohibited, but the Court
must. Propensity evidence may provide a compelling inference if it is repeated
conduct in a particular and highly specific way
- Application in Handy
i. Crown wanted ex-wife’s testimony in to support the witness’ credibility. Unlike
reasoning
Similar Fact Evidence in identity cases
In cases where similar fact evidence is offered to prove identity, courts must first serve a gatekeeping
function and determine that the acts have a high degree of similiarity and were likely commiteted by the
same person (Arp):
- 1. Considering the facts of the similar instances, there must be a high degree of similarity
between the acts.
- This includes situations where there is a strikingly similar signar and circumstances
where a number of significant similiarities are considered cumulatively
- If the trial judge believes the acts are sufficiently similar, the evidence may be put to
jury
43
-
2.The jury must be warned that if they believe that the acts were committed by the same
person then the evidence on each of the events can be used to assist the jury in determining if it
was the accused that committed the acts (is there some evidence linking the accused to the
similar acts?)
- Juries are still not permitted to make the prohibited inference: the evidence of the
similar fact event cannot be used as evidence that the accused has a bad character trait
making it more likely that he committed the other crime
i. Arp: the two counts involved the murder and sexual assaults of two women
whose bodies were then left outdoors in the open. It is a borderline case, but
the trial judge’s holding that the two events were sufficiently similar was upheld
Similar Fact Evidence may prove design
Smith: the fact that the Accused had been charged with the killings of other women who had also been
found dead in the bath and whom is stood to gain financially from, was admissible to rebut his defence
that the death was an accident
Similar fact evidence to prove actus reus
Makin: similar fact evidence proved that the babies had been killed. the fact a number of dead babies
had been found in the yards of various homes occupied by the accused was admissible as evidence that
rebutted the defence theory that the victim baby had died of natural causes
Similar Fact Evidence to prove identity
Staffen: The crime’s MO was so similar that it was admissible to prove that the identity of the killer was
very likely the Accused, who had been in jail for two similar crimes until he escaped right at the time the
third victim was killed
Sweitzer: Accused was charged with 15 assaults over a period of 4.5 years. Severance was granted and
the Crown attempted to lead evidence of the other 14 assaults as similar fact evidence tending to show
that it was the accused who was responsible. As the accused was only identified as the perpetrator in 3
of the 14 cases, the cases were not sufficiently similar to be used against the accused to prove that he
was the perpetrator.
- the similiarities were limited to sexual assaults of women in Calgary at night in their homes. This
is not perculiar enough to have probabtive value in proving that it was the accused that was the
perpetrator in the one assault.
McFadden: Crown was trying to prove that it was first degree murder committed through indecent
assault. Previous proposition of a woman was not a similar fact and could be admitted on the Crown’s
case. When the A put his character in issue, the Crown could then cross-examine on this incident, but
could not disprove it when McFadden denied it, because if it wasn’t a similar fact and it prejudicial
effects outweighed admitting it as
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
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- 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
45
Improperly Obtained Evidence and the Privelege against self-incrimination
Pre-Trial Right to Silence
Basic principle of law that one is not required to speak to an agent of the state. An adverse inference
cannot be drawn from silence or even selective silences (Turcott)
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.
- Designed to ensure fairness not just reliability (Hodgson)
Common law Confessions Rule
- Only applies to statements made to persons subjectively held to be in authority (Rothman)
o Did the Accused reasonably believe at the time of the declaration that the person was
allied with the authoritie and could influience the investigation or prosecution against the
Accused (Hodgson)
 Application: although the accused may have viewed the complainant and her
family as persons in authority there is nothing to suggest that the family had
already spoken to the policy or that there was any evidence that the accused
subjectively believed that they had any control over ciminal proceedings
o Rothman: A was put in a jail cell with undercover cop and therefore his statements to the
undercover cop were not bound by the common law voluntariness rule
o Wells: Parents of the victim had consulted with the police and tried to get the accused to
confess. Based on this connection, the trial judge should have inquired as to whether there
was a need to do a voir dire to determine whether the father was a person in authority
- Voluntariness
o 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)
 A finding of voluntariness should only be overtuned by an appeal court, if the trial
judge has considered all relevant circumstances in the case of palpable and
overriding error (Oickle)
 Essence is causation between the circumstances and whether there is a reasonable
doubt as to whether the accused lost the freedom to choose
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




Operating Mind
 Ward: the statements were made right after the accused regained
consciousness after a car accident. The tj was correct to hold that if there
was RD that the A did not have an operating mind when the statement was
made
 The operating mind test is concerned with whether the accused as sufficient
cognitive capacity to understand what he or she is saying and that it could be
used against him/her Whittle
o There is no obligation on the crown to prove a higher level of
cognitive ability
o The fact that the accused did not care about the consequences
because of the voices in his head doesn’t matter
Oppression
 Serack: Confession ruled involuntary where the Accused was questioned
and led through the police station while naked. Clothing is essential to a
person’s dignity and composure
 Permissible for police to gain A’s trust (Oickle)
 Permissible for police to exaggerate effectiveness of polygraph, so long as it
is not held out as a threat (that it would be used at trial)
 Although the A fell apart emotionally, this was not a result of police
behaviour
Threats or promises of inducements
 LeBlanc: the Poice made a threat to withhold bail, this threat made the
confession involuntary
 Must be real life inducements, not spiritual ones
 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)
Police trickery that would shock the community:
*Note:on voir dire must consider entire circumstances, which could mean producing
everyone that was involved in the production of the confession, up to defence to
concede that it does not need to question everyone
Application in Oickle
- Oickle:
o
o
o
o
Police minimized moral significance but they didn’t minimize legal consequences
Police suggested that the accused need psychological help but didn’t suggest that they could
provide it to him if he confessed
Suggested that he would feel better if he confessed and people would respect him for
confessing
No suggestion of a quid quo pro
47
o
o
Police said they wouldn’t need to polygraph fiancée if he confessed, but this wasn’t a strong
enough inducement to raise RD as to voluntariness
 Also lack of causal connection (A thought they had already spoken with fiancée)
Overall, considering that the A was generally treated well, there was not enough evidence to
suggest that the confession was involuntary
Criticisms
- Renewed focus on reliability rather than fairness
- 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
Spencer
Spencer (SCC 2007) Inducement must be so strong that it overbears A’s will to remain silent
Facts: A charged with 18 robberies. While in custody, PO interviewed him for 8/9 hours. A tried to obtain a more
lenient treatment for his gf so he confessed to some of the robberies. He was then promised a visit with his gf if he
confessed to the rest of the robberies; after the visit he confessed to all the robberies.
Issue: confession voluntary? Yes, A’s will cannot be said to have been overborne. voluntary and thus admissible.
No offer of leniency was made for the girlfriend. The promise of a visit with gf was not a strong enough
inducement to render the statement’s inadmissible. It is also relevant that A was aggressive, mature, and savvy –
he tried to secure deals with the police. These are factors that can be considered in a contextual analysis.
Dissent (Fish): The “will overborn” standard is too high – it should be that the will of the detainee must have been
overborne in the sense that he would not otherwise have given a statement but was persuaded to do so in order
to achieve an expected result. TJ did not give enough weight to the most important consideration: the quid pro
quo. In this case there was an implicit threat (that his girlfriend would be charged) and an implicit promise (of a
visit and of leniency) that rendered the statement inadmissible.
Charter s 7 right to Silence
- Includes the right not to speak to the state to the state when one is in custody (Hibert)
o Police may still overhear confessions as undercover officers placed in custody
- Upon detention , the Right to silence s 7 right is functionally equivalent to the common law
confessions rule (Singh)
- Using an undercover PO to elicit incriminating statements from a detained suspect who had invoked
his right to silence violates s. 7 (Hebert) (wouldn’t be barred by the CLCR because A does not know
he is speaking to a person in authority)
Confessions confirmed by subsequent Fact
48
Common law rule
- Where the discovery of a fact confirms the confession than the part of the confession that has been
confirmed is admissible (St Lawrence)
o The fact that the A said wehre the weapon and the victims wallet would be found was
admissible, but not statements that he put the items there
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
Derivative Evidence at Common law
- At common law if the evidence was otherwise admissible evidence than it does not matter how it
was obtained, subject to a small exdception if the evidence is gravely prejudicial, the ammisability is
tenuous and its probative force in relation to the main issue is small Wray
Illegally Obtained Evidence
- Where evidence was obtained in a manner that infringed a Charter right, the evidence is to 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 (s 24(2) of the Charter)
o Applies any time an A interacts with anyone who is objectively an agent of the state
(Hebert)
o Only applies when it is the A rights that have been violated, not a third party’s (Edwards)
 The state had violated his girlfriend’s right to privacy, but not his since he did not
have a right to privacy in her apartment there was no limitation on how this
evidence was used
Prerequisites
49
- Only applies in Court of competent jurisdiction (does not include prelims)
- Standing
- “obtained in a manner”: more relaxed test, as long as there was some temporal connection between
the violation and the illegally obtained evidence
- Other discretion to exclude evidence? In Harrer and Terry the court noted that the Charter does not
apply extra-territorially BUT the court indicated that when the accused got back to the trial in
Canada, there may be a discretion to exclude the confessions on the grounds of fairness under s.7 or
s.11d. This is the only time where the court says that there is another discretion in the Charter to
exclude evidence other than s.24(2). Interesting because the court also found in Therens that the
only section that could exclude evidence was s.24(2)
“Bringing the administration of justice into disrepute”
The Grant Test
Grant Test: Would a reasonable person, informed of all the relevant circumstances and the values
underlying the Charter, conclude that the admission of evidence would bring administration of justice
into disrepute? Must consider all three steps and balance them, using a forward-looking, long term
societal perspective regarding the effect of admission on the administration of justice:
Step 1) Seriousness of Charter-infringing state conduct
o
More serious = greater need for court to not appear to support such misconduct, so will
exclude evidence
o Inadvertent or minor breach in good faith vs. willful and reckless disregard for Charter
1. Look at police conduct. Is the conduct part of a pattern of abuse? Urgency?
Alternative means? Intrusiveness of the search? (Buhay)
2. Look at whether the evidence is conscriptive? Non-discoverable?
Step 2) Impact of breach on Charter-protected interests of A
o
More serious breach = if condoned, would send the message that Charter rights are of
little value.
o Look at the degree of the violation on the infringed interests.
1. I.e. illegal search: does it intrude on an area with high expectations of privacy?
2. S. 9 breaches are generally considered less severe than a s.10b breach
Step 3) Society’s interest in an adjudication on the merits
o
o
o
o
What will the public think of a system that lets this criminal go free?
How important the evidence is to the Crown’s case
Reliability of the evidence
Seriousness of the offence (although this argument swings both ways)
Types of Evidence
Conscriptive evidence: evidence that A has been compelled, in violation of his Charter rights, to give
that incriminates them (statements, use of body, bodily samples, derivative evidence)
50
Derivative evidence: physical evidence discovered as a result of an unlawfully obtained statement (can
be considered conscriptive evidence)
Discoverable evidence: could have been discovered in the absence of unlawful acts (Crown must
demonstrate that there was an independent source of the evidence or that the lawful discovery was
inevitable even without the breach on a BoP)
Application of Grant to Different Kinds of Evidence
-
-
-
-
Statements by A
1. not a big change; likely still inadmissible; not reliable
2. The right against self-incrimination is an overarching principle in criminal law. Informs
confession rule, right to silence, right to counsel, right to non-compellability, and right
to immunity
3. Police conduct heavily constrained in getting statements. Police must adhere to Charter
to preserve admin of justice's reputation. Seriousness of breach important. (Usually
violation will occur under 10(b) failure to inform of right to counsel)
4. Undermines A's right to meaningful choice as to silence, and protection from selfincrimination.
5. Just as compelled statements are unreliable, so too are Charter breached statements.
Detainee might be making statement based on misconceived notion of how to get out
of predicament.
Bodily Evidence
1. Big change; less egregious bodily evidence may be admitted
2. Replaces issue of conscriptive vs non with flexible test based on circumstances
3. Determined by asking disrepute question – consider the three factors
4. Considerations are privacy, bodily integrity, and human dignity
5. Generally this evidence is reliable (i.e. blood, saliva, etc)
Non-bodily Physical Evidence
1. Big change; this is reliable so it may be admitted if the breach wasn’t serious
2. Usually stage 2 will be breach of s.8 search and seizure rights
3. Some places higher expectation of privacy than other places. Consider human dignity
Derivative Evidence
1. Big change; this was previously excluded (unless discoverable) and it may be admitted
now
2. If the derivative evidence was independently discoverable, the impact of the breach on
A is lessened and admission is more likely.
3. Evidence should be excluded where there is reason to believe police deliberately abused
their power to obtain a statement which might lead them to such evidence.
4. Usually the third factor (society’s interest) favours admission
Application in Grant
-
Derivative evidence
The breach was not serious enough to undermine public confidence in the administration of
justice
1. Police thought they were operating lawfully and the law on this point ws unclear
2. Police conduct not abuseive
51
-
Very strong impact on the A’s interest, otherwise non-disvocerable
The gun was highly reliable
Application in Harrison
The application of the Grant factors is not a mathematical formula and should not devolve into a simple
balance btw the degree of police misconduct and the seriousness of the offence
-
The disregard for Charter rights was flagrant
1. There was not possible valid basis for the detainment and the search
The seriousness of an offence and reliability cannot be given too much weight, otherwise it
would deprive charter protection for those chared with serious crimes
1. Facts: PO pulled over car even though he realized that the car did not have to have a
front licence plate and because it was going the speed limit
Application in Cote
-Under Grant discoverability of evidence is not determinative


Charged with murder in death of H. Police made numerous violations and obtained involuntary
statements. On application of Collins/Stillman test the TJ exculed all evidence obtained through
the illegal search
o Systemativ and deliberate police violations
o It was a serious offence, but this cuts both ways
o Numerous and long police abuses of search, detainment in her home where she had a
high expectation of privacy
o Police were not forthcoming at trial
High deference to finding of TJ
Pre-Grant Collins Test
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?
52
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.
Using inadmissible evidence for other purposes
Once evidence is excluded under the Charter, it cannot be admitted again for any purpose in all but the
rarest of circumstances (Calder)
o
Statements excluded for violating s 10(b) warning and not admissible under s 24(2). Crown
could not then use them to impeach credibility when cross-examining the A at trial
53
Privilege against self-incrimination
Common law
- At common law there was a right to not answer a question that would tend to incriminate. If judge
agreed on voir dire that the statement would be incriminating the w had the privilege not to testify
Section 5 of the Canadian Evidence Act
S 5(1): abolishes the common law right to refuse to answer any question on the ground that the answer
will tend to incriminate him, or may tend to establish his liability to a civil proceeding at the instance of
the Crown or any person
S 5(2): the answer to a question compelled under s 5(1) cannot be later used against the witness in
criminal proceedings against him, other than in a prosecution for perjury
Application
- In order for s 5(2) to apply the witness must invoke s 5 when testifying
- In practice many witnesses do not have a lawyer and may not know that they had the right to invoke
s5
- If an accused testified at trial and an appeal resulted in a new trial the Cronw would regularly use A`s
testimony at previous trials in their case in chief
- The statements of a witness who invoked s 5 could not use these statements for any purpose (such
as cross-examining on prior inconsistent statements)
S 13 of the Charter
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.
Henry
-
S 13 applies regardless of whether the witness invoked it or s 5 of the CEA
S 13 and s 5 of the CEA will lead to the much the same result
s 13 does not protect those who testified and were not compellable in the earlier proceedings
Incriminating evidence```: this is assessed at the second proceedings
Any other proceedings:
o Includes a retrial of the same offence, bail hearings, preminiary inquiry (Dubois) and
o Earlieer independent proceedings (such as a civil trial)
- If the accused does not testify at Trial 2:
o His testimony from an earlier proceeding cannot be used against him at that trial,
regardless whether he was an accused or a mere witness at the earlier proceeding
54
- 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
- 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 cross examine him
- Facts in Henry:
o Trial 1: two accused, H and R, testified and put forward intoxication defence
o Trial 2: H stuck with intoxication defence and said he forgot much more than what he
originally said, R said he remembered more and this time he wasn`t in the room when the
victim was killed
Dubois
Facts:
- T1: D testifies, T2 Cronw files D`s first testimony as part of case in chief. T2 Dubois does not
testify and is convicted again
- Court: A retrial is ``any other proceeding`` under s 13 and introducing this testimony
indirectly compels the A to testify against themselves
- Henry: says this is the correct result. HF not convinced, how can this not be admissible while
a voluntary confession at the police station is admissible
Mannion- overruled by Henry
Facts:
- T1 M testified, T2 M testified and gave a different story. Crown asked to cross-examine on T1
testimony, SCC held that Mannion was improperly cross-examined because the crossexamination was used to incriminate M
Kuldup – Correct result, wrong method
Facts
- T1 K testifies, T2 K testifies. Defence argues that K can`t be cross-examined on discrepancies
between the two. SCC develops distinction between cross-examiniton for incrimination and
cross-examination to impeach credibility
- Many feel that this is an unworkable distinction, jury had to be warned about the limited use
of the evidence, even though it would be an exception under the hearsay rule
- HENRY: overruled distinction between credibility cross-examination and incrimination crossexamination
Noel
55
- Accused testifies as a witness and implicates himself at T1. At T2 N is the accused and
testifies and the cronw is allowed to cross-examine him on previous statements on the
credibility issue at trial
- Held that the prior statements were inadmissible
- Henry confirmed this is the right result
``Incriminating evidence``
o
o
What is incriminating evidence is determined at second trial (Dubois)
o Generally, if the Crown wants it in it is incriminating
However there remains a distinction between ``innocuous`` evidence and evidence that is
incriminating (Nedelcu)
o Nedelcu: testified at discovery for civil suit (was compellable party). At that time he
testified that he didn`t remember anything from the accident. At criminal trial
remembered a lot more
 A voir dire would have to be held to determine if it was incriminating
S 7 protection against self-incrimination
-
1. Residual protection against self incrimination in several situations:
o 1: Hebert protection (protection against undercover cops eliciting confession
when detained)
o 2. Sweeney: more judicial discretion to not omit portions of involuntary
statements that are confirmed by derivative evidence
- 2. Derivative use Immunity
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?”
- The Crown has to show this on a balance of probabilities
- 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
56
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
4. Constitutional exemption: rare, vague idea that you can quash a subpeoana where the primary
purpose is to incriminate yourself and use immunity and derivative immunity do not sufficiently
protect you (generally could be dealt with through a publication ban
57
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
Class Privilege:
- Recognized at common law and for which there is a prima facie presumption of admissibility
Case by case Privilege: relationships that may be protected on a case by case basis
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
Solicitor-Client Privilege
58
- A rule of evidence as well as a substantive principle of fundamental justice
- Protects legal advice given in a professional context, but does not protect physical evidence or preexisting material or unlawful communications (PrichardI)
o Pritchard: a legal opinion prepared by in house counsel is protected by privilege
 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
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 Privilege
- Extends to communitcations made to agents of the lawyer (Smith v Jones)
Exceptions to Solicitor-Client Privilege
-
-
Criminal purpose:
in order to even receive protection legal advice must be lawful (McClure)
- if a client seeks legal advice to facilitate a crime or fraud that advice can
later be used against the client (Cox v Railton)
- Also includes situations where the communication itself is a part of the
actus reus of the offence
- If the legal opinion could be said to have in some way facilitated the
crime, then it would be produceable (Campell)
- In order for a judge to consider lifting the privilege there must be more
than just a bare allegation
- Cox principle has not been definitively extended to tort and breach of
contract cases, but has been extended in some situations
Public Safety (Smith v Jones)
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
59
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

Application in Smith:
-
-
Clearly identified group (sex workers in the downtown eastside)
Very serious threat
No evidence of very imminent threat, but A had breached bail conditions to go to the downtown
eastside and he might only have been on best behavior while he had bail conditions attached to his
movements
Dissent: the public safety could had been satisfied with a warning. It was not necessary to relate all
of the details of the A`s statements (which were used against him at a dangerous offender hearing)
Innocence at Stake Exception: : 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 (McClure)
-
1. Threshold test: the accused must establish that 1) the information the A is seeking
is not available from any other source and 2) that the A is otherwise unable to raise
a reasonable doubt as to his guilt
a. Application: 1- girlfriend`s accusatory statements should have been voir
dired first, 2 - Tj should have waited until it was determined whether JH
informant could testify
2. Substantive Innocence at Stake test: if the threshold test is met the A must
establish that 1) an evidentiary basis exists that there is a communication that could
raise a reasonable doubt as to guilt and 2) the trial judge should examine the
communication to determine whether in fact the communication is likely to raise a
reasonable doubt as to guilt
a. Application: yes: the gf`s statements were corroborated by the lawyer`s
card
Burden is on the Accused to prove each element on a balance of probabilities
Suggestion (Arbour and L`Heureux- Dube) that other rules of evidence should be relaxed before
solicitor client privilege is violated
60
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. (Blank)
o
o
o
o
o
Applies only in the context of litigation (Blank)
Does not require that the communication be made in confidence (Blank)
Applies to all litigants not just those with lawyers
It may retain its purpose and effect when the initial litigation has endend but related
litigation remains pending or is anticipated
Applies to documents whose dominate purpose of creating them was for litigation
Is far more likely to be truncated [much less protected than solicitor-client]
- Blank: 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.
Rationale: to faciliatate the preparation of a case in the adversarial process
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?
Protection of Dispute Settlement
Applies to communications made during attempts to settle a litigious matter through negotiations or
mediation
- `without prejudice`` label is not actually necessary
- Policy:`encourages and allows parties to negotiate freeling without fear that wahat they say could be
used to their detriment
- In BC it is settled law that this is a class privilege
- Applies in both civil and crim contexts, but in criminal situations it is dangerous that the admissions
will go in as voluntary if there is no inducement
Informer Privilege
Any information which can reveal an informer’s identity, either explicitly or implicitly, is privileged
(Leipert)
61
- Once informer privilege is found there should be no balancing of it with the Accused right to know the
case against them, with the limited exception that informer privilege may only be lifted subject to the
innocent at stake exception
- This exdception would apply where:
o The informer is a material witness to the crime
o The informer is agent provacetur (participated in making the crime happen)
o Where the accused is challenging evidence invoked through a search and seizure and the
accused is subject to an illegal search (like the A has a good case that the drugs may have
been plante and then the informer tipped the police off
- Generally, if informer privilege is going to be lifted the Crown will just stay the proceedings
- Leipert: tip-line informant statements cannot be edited to try to edit out identity of the informer since it
cannot be known which portions of the statement will actually identify the informer
- Commission of Health Records in Ontario: Very guarded privilege. The court upheld an RCMP
decision to not reveal the identities of people releasing confidential information to a commission that
had been set up for that exact purpose!
Matrimonial Communications Privilege
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
Note: does not expressly limit to confidencital communications
The privilege belongs to the spouse that hears the statement (Couture)
Does not apply to statements that were received before the marriage (Couture)
Intercepted Matrimonial communications
- 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 Odd wording, considering an intercepted communication would not have been privileged at
common law
Example of an Interception at common law  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
62
and wife was never established
Privileges in instances of 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
o Did not comment as to whether an adverse interest could be drawn if the spouse invokes
privilege
Case by Case Privilege
Case by case Privilege: relationships that may be protected on a case by case basis
-
Case by case privilege is determined through application of the four wigmore criteria (Slavtch)
b. The Wigmore Test:
 (1) The communications must originate in a confidence that they will not be
disclosed
 The recognition by the parties that the communications might become
unprivileged through a court order does not undermine this factor (Ryan)
 (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
Problem with case by case approach:
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Inefficient
Since the weighing of public concerns over two conflicting values must
focus so much on the individual case (Ryan) there is little room for
creating consistency and predictability in the law
It undermines the original rational for privilege that was across broad
policy decisions
Court unlikely to recognize new class (Ryan)
Application in Slavtch: the Prof had thought his opinion on another professor would be confidential in
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the context of a relationship that should be fostered in the university community. Interest in proper
procedures for dismissal did not outweigh the benefits of non-disclosure of the document
No class privilege for religious communications (Gruenke)
- Evidence was not intended to be confidential – said she was going to go
turn herself in, therefore failed first stage of wigmore test
Communications between a psychologist and a patient are not automatically privileged (Ryan)
- In the context of a civil litigation brought against a former psychologist
for indecent relations
- Despite strong interest in confidentiality and society`s interest in
fosetering ability of a victim of sex abuse to seek help, justice requires
that defence be able to answer the plaintiff`s case
- In this case, limited disclosure ordered, only Mr. Ryan`s lawyer was
allowed to see the psychologist`s notes
Journalist-informer communications
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Not a class privilege (National Post)
- Application- weighed towards disclosure:
a. Real evidence (copy of a loan authorization) probably was a
determining factor
b. Involved a criminal charge
c. The journalist was not compelled to testify
- Often in these cases, the fourth factor weighs toward disclosure
Implied Undertakings
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 (Juman)
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This is subject to a limited exception if an application to Court is made and disclosure is warrated in
the public interest
The implied undertaking rule protects an A`s right to not self-incriminate, also encourages full and
reliable disclosure in civil matters
Thus police cannot use evidence collected in civil discovery process related to the alleged crime
unless the limited exception applies
Remedy if breached: could result in stay or contempt proceedings
2. Generally, it must be parties to the litigation that requests disclosure of discovery information
a. 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
Bind the client as well as the lawyer and survive the litigation
If the police have reasonable grounds, a search warrant would give them access to the transcripts,
however any use of them in Court would be bound by Nedelcu
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Proof without Evidence
A guilty plea
- s only an admission to the necessary elements of the offence. It is not an admission of other facts suach
as the number of blows in an assault, that the Crown might want to rely on in a sentencing application
(Gardiner)
- An accused may change his plea if he can persuade a court that there is a valid reason for doing so
(Adgey)
This would include situations where it is questionable if the guilty plea wasn`t voluntary
Admission of Fact:
Formal Admissions
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)
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
- or properly informed
Admission of Facts in Civil Cases
- if a party has formally admitted a fact they cannot later dispute that fact on appeal or in some other case
(Novak)
- Notice to admit
(1) In an action in which a response to civil claim has been filed, a party of record may, by service of a notice to
admit in Form 26, request any party of record to admit, for the purposes of the action only, the truth of a fact or the
authenticity of a document specified in the notice.
Effect of notice to admit
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(2) Unless the court otherwise orders, the truth of a fact or the authenticity of a document specified in a notice to
admit is deemed to be admitted, for the purposes of the action only, unless, within 14 days after service of the notice
to admit, the party receiving the notice to admit serves on the party serving the notice to admit a written statement
that
(a) specifically denies the truth of the fact or the authenticity of the document,
(b) sets out in detail the reasons why the party cannot make the admission, or
(c) states that the refusal to admit the truth of the fact or the authenticity of the document is made
on the grounds of privilege or irrelevancy or that the request is otherwise improper, and sets out in
detail the reasons for the refusal…
Withdrawal of admission
(5) A party is not entitled to withdraw
(a) an admission made in response to a notice to admit,
(b) a deemed admission under sub rule (2), or
(c) an admission made in a pleading, petition or response to petition
except by consent or with leave of the court…
Judicial Notice
The test for adjudicative facts (Morgan test):
The threshold is strict: 1 – the fact must be so generally accepted as not to be the subject of debate among
reasonable people or it is capable of immediate and accurate demonstration by resort to readily accessible
sources of indisputable accuracy (Spence)
The Test for legislative and social context facts (Spence)
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Theories
the Morgan test is the starting point when considering whether judicial notice of a fact
should taken. For non-adjudicative facts one starts with the Morgan test but is not
conclusive.
The Morgan test will have greater weight where the fact is very relevant to the issue of
the trial
For these facts, the question is whether a the fact would be accepted by reasonable people
who have taken the troupble to inform themselves on the topic would think that the fact is
not the subject of reasonable dispute for the purpose for which it is offered
Warning to lawyers that the SCC is wearing of social context facts that do not involve a
witness that is placed on the stand and that can be cross-examined
o Downside: access to justice and efficiency
o L`H-D concerned that judicial notice of social context facts such as the
feminization of poverty are particulary relevant in family law cases where very
likely the litigants will not be able to afford expert witnesses
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Thayer: argued judicial notice should be widely used and judges should be able to make
prima facie assumptions. Believed cases should not be decided on technacalities because
of minor gaps
o Motivated by trial efficeny
Morgan: concerned about potential for abuse: if judicial notice is taken it must only be on
an irrebutable fact
o Concerned about judges having more power than they should
Davis: Courts should consider 3 factors: whether the issue is close to the main issue
between the parties or merely background, whether it is a legislative or aduciative fact,
and the degree of certainty or doubt that relates in relation to the fact
Adjudicative Fact: specific facts relevant to resolving the dispute between the parties. involves who, what,
where, when (Danson)
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Krymowski: as five dictionaries say that the word gypsy refers to Roma, since theis can
be easily verified the judge was entitled to take judicial notice of this despite Crown
error in leading this
Legislative Facts:

LEGISLATIVE FACTS are facts releveant to legal reasoning and the law-making process, often
are facts that establish the purpose and background of legislation (Danson)
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
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
Zundel
Issue: could the judge take judicial notice that the holocaust happened, which would essentially be
accepting a key element of the offence without any proof (crime was spreading false news) – wrinkle with
Morgan test
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Trial judge was correct to take judicial notice of the background of mas murder and
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extermination of jews, but did not take judicial notice of the specifics
Barlteman:
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Lambert J looked at secondary sources to assist in treaty interpretation, tried to justify
through Morgan criteria
- But really the use of aids to assist in treaty interpretation is a legislative fact
- 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
Judges may not use personal experience to decide cases
Judicial Notice of Law
Judges are bound to take judicial notice of domestic law, although this is not true for all subordinate
legislation and usually bylaws have to be proven
International law has to be proven