Fundamentals
Trends in the Law of Evidence
Three trends in Canada:
 1) the move to a contextual or “purposive” approach
o In the past, the law prized certainty; clear predictable rules that would apply equally to all cases.
o However, this lead to overinclusion or underinclusion.
o Two social developments accelerated or amplified the shift:
 1) sexual offence awakening
 2) Canadian Charter of Rights and Freedoms
 2) the development of the overarching exclusionary discretion
o judges now have discretion to exclude evidence, even if it is technically admissible.
 If the probative value of the evidence is outweighed by it’s prejudicial effect.
 3) increased admissibility
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Objectives of the law of evidence
Search for truth
a. Legal truth; not objective, scientific, or philosophical
b. Relative; not absolute
c. Historical, inevitably a reconstruction of past events with incomplete and imperfect information.
Ensuring a fair trial
Efficiency of the trial process
Protecting other important societal values
Sources of the Law of Evidence
1. The common law
a. Judicial efforts to explain, rationalize and develop principles governing the admissibility, exclusion and
application of evidence.
b. Rules of evidence are intended as a means for achieving truth and fairness – not as an end in
themselves.
2. Statutes
a. Canada Evidence Act (CEA)
i. For federal jurisdiction.
ii. But, CEA incorporates provincial evidence act provisions through s.40
b. British Columbia Evidence Act (BCEA)
i. Secondary, supplemental to the CL
c. Other acts may contain provisions concerning the applicable evidentiary rules that may apply in the
matters they govern
i. IE: Criminal code and drug offences
3. Aboriginal Law
4. The Constitution
a. Overarches both CL and statutory evidence law.
i. S.52(1) - Any evidentiary law that is inconsistent with constitution is of no force and effect
ii. CL rules must be developed in accordance with the Charter
b. Division of legislative authority
i. Limitations on federal and provincial authority defined in ss.91 and 92 of the Constitution apply
equally to rules of evidence.
c. Canadian Charter of Rights and Freedoms
i. Provides express constitutional protection for some evidentiary principles in criminal
proceedings (IE: presumption of innocence under s.11(d)).
ii. S.7 is an important vehicle for the constitutionalization of evidentiary principles
1. Always applicable in criminal proceedings, b/liberty is always at stake.
iii. Where evidence is obtained in a manner that infringes a charter right, remedy is available under
s.24(2)
1. At CL, didn’t matter how evidence was obtained, except for the CL confession rule.
The fundamental rule of the law of evidence
All evidence that is relevant to a fact in issue is admissible unless it is excluded by an exclusionary rule or
principle, or its probative value is exceeded by its prejuidical effect.
To be admissible, a piece of evidence must pass the following tests:
1. Is the evidence factually relevant?
2. Is the evidence material (legally relevant)?
3. Is the evidence inadmissible on any grounds of law or policy (IE: subject to an exclusionary rule)?
4. Does the prejudicial effect of the evidence outweigh its probative value?
Exclusionary rules
Grounds for excluding relevant evidence include:
 Issues of reliability:
o Its potential to distort the fact-finding process
o IE: Hearsay
 Issues of efficiency
o Unnecessarily prolonging a trial or confusing the issues
o Collateral facts rule
 Because its admission would undermine an important value other than fact-finding
o IE: rules of privilege
o IE: evidence that unfairly surprises the opposing party
o IE: evidence obtained in breach of Charter
 Judicial discretion
o Its probative value is outweighed by its prejudicial effect
The Trial Process
Calling Witnesses
 Examination-in-chief (direct examination)
o Trying to get witnesses to say what is relevant to the case as clearly/concisely as possible.
 Then defence counsel cross-examines
o Rules of cross-examination are much more relaxed, as goals are different.
o Probe weaknesses, seek facts that may help your case.
 Possibly, Crown may be allowed to re-examine.
o Previously, could not re-examine on anything that should have been examined the first time around.
o However, judges are now a little more tolerant in their enforcement of the rule.
 Once Crown complete, the accused may call witnesses.
 The accused may, but need not, testify.
Criminal Proceedings:
 Criminal trial begins with a charging document (called an indictment, or the information), which specifies the
offence charged, and contains a typically brief statement of the facts to be alleged by the Crown.
 Before the trial begins, Crown has a constitutional duty to disclose all relevant and non-privileged information to
the defence (R v. Stinchcombe)
o There is no corresponding duty of disclosure on the defence
 Presumed innocent and burden is on Crown; otherwise would oblige accused to assist Crown in
case against them.
 At outset of trial, accused will plead guilty or not guilty (other pleas available as well)
o A plea of guilty is a formal admission of the facts necessary to establish the Crown’s allegations.
o A plea of not guilty indicates that the accused will dispute the Crown’s case, thus requiring that the
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Crown adduce sufficient evidence to establish each element of the offence.
Judge/Jury have distinct roles; trier of law vs. trier of fact
Order of trial:
o With a few exceptions, in criminal cases the Crown is required to prove the facts it alleges beyond a
reasonable doubt.
 Because of this burden of proof, the Crown calls its witnesses first (Crown’s “case in chief”)
o At close of Crown’s case, accused may bring motion for directed verdict of acquittal.
At the close of Crown’s case, the accused may call witnesses and may testify on his own behalf (although not
required)
After both cases are presented, counsel for each party will address the jury on the facts.
o Order of these addresses is determined by CC s.651 and R v Rose
 If defence calls evidence, then counsel for the accused will address the trier of fact first.
o Judge then instructs the jury on the law, and jury retires to consider verdict.
 If jury acquits, accused is free to go (unless in custody on another matter)
o If jury finds guilty, accused is remanded for sentencing by TJ.
Appealing on the Basis of Evidence Rulings in Criminal Cases
 The accused may appeal from conviction on a question of law, as well as on other grounds
 The Crown may only appeal acquittal on a question of law.
 The trial judge’s decision to admit or exclude evidence is a question of law.
o Decisions of admissibility are therefore frequent grounds of appeal for both the Crown and the accused.
Civil Proceedings
 Begin with a statement of claim from the P, a statement of defence from the D, and further pleadings from any
other party to the action.
o Pleadings frame the issues for trial, and provide basis for determining whether evidence is relevant to
material issues.
 Following exchange of pleadings, the rules of civil procedure provide for pre-trial discovery.
o Transcripts from this case can be read in a trial to demonstrate admissions, and can also be used to
impeach witness at trial if contradiction/inconsistency arises.
 Just as in criminal cases, civil appeals can be founded on alleged errors in admission/exclusion of evidence.
 Evidence in interlocutory proceedings:
o Before trial, may have to determine procedural issues, for which it may be necessary to establish facts in
support of the motion.
o In this situation, evidence is typically presented in form of affidavits/sworn statements.
o In some cases the witness (deponent) in the affidavit may be required to attend and be cross-examined
by a special examiner.
3. Burdens, Quantum’s of Proof, and
Presumptions
CIVIL - Burden & Degree of Proof
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In civil proceedings, the plaintiff typically bears both the evidentiary and persuasive burden on all the elements
of the action.
 The plaintiff must lead evidence capable of supporting the facts the plaintiff alleges, and the plaintiff must then
satisfy the trier of fact on a balance of probabilities that the alleged facts are true (there are some exceptions)
A. Motion for Non-suit (BC Supreme Court Civil Rule 12-5)
 At close of the plaintiff’s case, the D may argue that the P has not met his/her evidentiary burden.
 IE: the D argues that the P had not led evidence capable of supporting one or more of the elements of the cause
of action.
 A motion for non-suit is determined by the trial judge:
o The judge must determine whether, assuming the evidence is true, and making any reasonable
inferences one can from the evidence led, there is support for the element(s) in question.
B. Proof on Bop
 “50 + 1”
C. Summary Judgment
 A summary judgment is a judgment without a trial.
 The moving party asserts that the responding party’s case is so weak that it is not worth bringing to trial.
Burden and Degree of Proof in Penal Proceedings
The “Golden Thread” (Woolmington) – 1. Presumption of innocence, and 2. Requirement of proof BaRD
S.11(d) of the Charter – right to be presumed innocent until proven guilty
1. Directed verdict of Acquittal
 The verdict of acquittal is the criminal analogue of the non-suit.
 At the end of the prosecution’s case, the accused may ask the trial judge to rule that the Crown has not
led evidence capable of establishing the elements of the offence (IE: not discharged it’s evidentiary
burden).
 Formula = no reasonable jury, properly instructed and acting judicially, could find guilt beyond a
reasonable doubt.
o Monteleone:
 “Where there is before the court any admissible evidence…which, if believed by a
properly charged jury acing reasonably, would justify a conviction, the trial judge is not
justified in directing a verdict of acquittal. It is not the function of the trail judge to
weigh the evidence, to test its quality or reliability once a determination of its
admissibility has been made. It is not for the trial judge to draw inferences of fact from
the evidence before him; these are functions of the trier of fact.
o Where circumstantial evidence is concerned, the judge can weigh the evidence to some extent
to determine that the facts necessary to support the inference are in the evidence, and that it
would be reasonable to make that inference.
2. Air of Reality - Putting a Defence in Issue
 Air of reality test = test for trial judge to determine whether a defence will be left for the jury.
o Cinous/Pappajohn
 The trial judge must determine if the evidence put foreword is such that, if believed, a
reasonable jury properly charged could have acquitted.
o It’s a threshold test to determine whether the defence will be “put into play”, IE: the merit’s of
it considered by the trier of fact.
o A trial judge has a positive duty to keep from the jury defences lacking an evidential foundation
– an air of reality.
o It is an evidentiary burden, not persuasive.
3. Proof Beyond a Reasonable Doubt
R v. Lifchus
 A trial judge must instruct the jury on the reasonable doubt standard
 What it is:
o BaRD is inextricably intertwined with the presumption of innocence
o A reasonable doubt is not a doubt based upon sympathy or prejudice; rather, it is based upon
reason and common sense.
o It is logically connected to the evidence or absence of evidence
o It does not involve proof to an absolute certainty
o More is required than proof that the accused is probably guilty
 What it is not:
o An ordinary expression with no special meaning
o The standard we apply to decisions we make in our everyday lives
o A “moral certainty:
o “Serious”, “substantial”, or “haunting” doubt
Starr modification:
 Describe standard to jury as “much closer to absolute certainty to proof on a BoP”
R v. Morin (SCC) 1988
 Proof BaRD does not apply to the individual items of evidence, but to the total body of evidence.
 Jury should be told not to apply he reasonable doubt standard to individual facts in isolation, but
examine all facts together.
R v. W.(D.)
 If the accused testifies:
o First, if you believe the evidence of the accused, you must acquit
o Second, if you do not believe the testimony of the accused, but you are left in a reasonable
doubt by it, you must acquit
o Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself
whether, on the basis of the evidence you do accept, you are convinced BaRD by that evidence
of the guilt of the accused.
R v. J.H.S. (modified R v. W.(D.):
 If, after a careful consideration of all the evidence, you are unable to decide whom to believe, you
must acquit.
Presumptions and Reverse Onuses
Presumption:
 1. Presumption without basic fact
o A conclusion that can be drawn until the contrary is proved.
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2. Presumption with basic fact
o A conclusion to be drawn upon proof of the basic fact.
 Basic fact presumptions can be further categorized into permissive and mandatory
presumptions (IE: optional or mandatory that an inference is made).
Presumptions may be either rebuttable or irrebuttable.
o If rebuttable there are three potential ways the fact can be rebutted:
 1. Accused may be required to merely raise a reasonable doubt as to its existence
 2. The accused may have an evidentiary burden to adduce sufficient evidence to bring
into question the truth of the presumed fact.
 3. The accused may have a legal or persuasive burden to prove on a BoP the nonexistence of the presumed fact.
Presumptions are either presumptions of law or fact.
4. Relevance, Materiality, Direct/Circ. Evidence
KEY ADMISSIBILITY QUESTIONS:
1. Is the evidence factually relevant – that is, does it tend to prove or disprove the fact for which it is
tendered?
2. Is the evidence legally relevant (material)? – that is, is the fact that the evidence tends to prove or disprove
legally significant in establishing an element of the cause of action, offence or defence at issue?
3. Is the evidence inadmissible on any ground of law or policy (IE: subject to an exclusionary rule?)
4. Does the prejudicial effect of the evidence outweigh its probative value?
1. Relevance & Materiality (AKA: “Relevance”)
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Relevance = “whether as a matter of human experience and logic the existence of “Fact A” makes the
existence or non-existence of “Fact B” more probable than it would without the existence of “Fact A”.
If it does, then “Fact A” is relevant to “Fact B”.” (Watson)
o Evidence is relevant if it had any tendency to make the existence of a fact in issue more or
less probable than it would be without the evidence. (Watson)
o Absence of a direct connection does not determine relevance; a chain of inferences, based on
logic or experience, will suffice (Watson)
o No minimum probative value is required for evidence to be deemed relevant (Watson, Morris)
o Evidence of a victim’s character/habits/disposition is admissible so long as it is relevant to the
case (Watson)
 Evidence of habit = inference of conduct based on past conduct (Watson)
 Evidence of disposition = inference of the existence of a state of mind based on past
conduct that makes certain conduct more likely (Watson)
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Materiality (legal relevance) = evidence is material if it goes to a matter at issue in the case.
o Relevance must be assessed in the context of the entire case and respective positions taken by
the Crown and defence. It must be determined in reference to the facts at issue in the case
(Watson)
 In criminal cases, this depends on the offences charged in the information or indictment
 In civil cases, it depends on the causes of action and defences set out in the pleadings.
o Relevance must be determined in relation to some issue in the trial; evidence which may be
relevant to one issue may be irrelevant to another issue.
o A fact will be relevant not only where it relates directly to the fact in issue, but also where it
proves or renders probable the past, present, or future existence (or non-existence) of any fact
in issue.
Facts relating to the necessary elements of the offence charged or cause of action pleaded (unless
admitted) and any defences raised are material.
Facts relating to the credibility of a witness giving direct or circumstantial evidence of a fact in issue are
relevant.
A fact that proves the existence or tends to prove the existence of a pre-condition to the admissibility
of a piece of evidence, such as the voluntariness of a confession, the authenticity of a signature on a
document or the statutory conditions for a legal wire-tap is equally relevant.
If no nexus exists between the evidence offered and any one or more facts in issue, the evidence is
excluded as irrelevant (not material)
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R v. Watson
Fact in Issue: Was the deceased carrying a gun?
Evidence: “he never left home without it”
Underlying Premise or Generalization: people in the habit of behaving in a certain way in certain
circumstances usually behave in that way in those circumstances.
Sub Conclusion: the deceased was in the habit of carrying a gun (he “never left home without it”), therefore
the deceased was probably carrying a gun when he left home on the day of the shooting.
Fact in Issue: Was Cain shot by the deceased or Headley
Evidence: the deceased was the target of Headley’s assault and Headley was Cain’s friend.
Underlying Premise or Generalization: a person is more likely to be shot by his friend’s adversary than by his
friend.
Sub conclusion: the deceased was the target of Headley’s assault and Headley was Cain’s friend. Therefore, it
is more likely that Cain was shot by the deceased than by Headley.
Chain of Inferences:
 If the deceased’s habit was to carry a gun, it is more probable that he carried a gun on the day of the
shooting.
 If the deceased carried a gun on the day of the shooting, it is more probable that he (not Headley)
fired the second gun.
 If the deceased (not Headley) fired the second gun, it is more probably that this was a spontaneous
shoot-out not a pre-meditated ambush.
 If this was a spontaneous shoot-out not, not a pre-meditated ambush, it is more probable that there
was no plan for an ambush and the accused had nothing to do with the shooting.
R v. Hunter
 Context plays an important role in giving meaning to spoken words. Where an overheard utterance is
known, but the context of the utterance is unknown, it may be impossible to know the meaning of the
overheard words or to otherwise conclude that those words represent a complete thought.
R v. Bell
A woman believes she was date raped, then sexually assaulted by the accused. Crown wishes to tender
evidence that accused was a drug trafficker, selling ecstasy, cocaine, and pot, for the purpose of advancing the
proposition that the accused, as opposed to others, would have better access to a date rape drug.
D: Not relevant - there is no logical connection between the proposition that the accused is a drug trafficker
(in recreational drugs) and the conclusion that he had better access to the date rape drugs in question.
R v. D.(A.)
In past, the victim had continued in a relationship with her BF after he physically abused her. Accused argues
that this reveals a character trait in the victim that might then result in her being equally prepared to engage
in an intimate relationship with the accused, even after the accused had sexually assaulted her best friend.
 In other words, the accused seeks to prove a character trait of the victim by adducing evidence of
conduct on a previous occasion in order to support an argument that as a result of that character trait
she likely acted similarly on this occasion.
?: Can it be inferred from the victim’s maintaining a relationship with her abusive husband that she had a
disposition to forgive that could make it more likely that she would forgive the accused’s betrayal of her when
he sexually assaulted her best friend, and she entered into an intimate relationship with him.
D: Not relevant – it has no predictive value when it comes to the victim’s capacity to forgive and become
intimate with someone who was not her lover at the time of a very different sort of betrayal.
2. Direct & Circumstantial Evidence
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Direct Evidence = evidence that, if believed, proves or disproves a fact without the necessity of an
inference.
Circumstantial evidence = evidence that, if believed, permits one to infer the existence of a fact.
o Evidence that tends to prove a factual matter by proving other events or circumstances from
which the occurrence of the matter at issue can be reasonably inferred (Cinous)
o IE: Everything that isn’t direct evidence
o Relevance isn’t generally an issue with direct evidence, but it’s always a question with
circumstantial evidence.
3. Exclusionary Rules
 Grounds for excluding relevant evidence include:
o To further the truth-seeking function by excluding unreliable evidence;
o To further trial fairness by excluding illegally or unfairly obtained evidence;
o To further other important societal values by, for example, protecting privileged
information;
o To promote trial efficiency
 Exclusionary rules include:
o Hearsay rule
o Opinion evidence rule
o Character evidence rule
o Collateral fact rule
o Privilege
5. Probative Value & Prejudicial Effect
Fundamental Principle: nothing is to be received which is not logically probative of some matter requiring
to be proved and everything which is probative should be received, unless its exclusion can be justified on
some other ground. (Seaboyer)
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A TJ may exclude relevant evidence that:
o 1. May unduly arouse emotions of prejudice, hostility, or sympathy;
o 2. Will potentially mislead, confuse, or otherwise distort the fact-finding process;
o 4. Undermine an important value other than fact finding;
Admissibility will depend upon the probative effect of the evidence balanced against the prejudice
caused to the accused by it’s admission (Seaboyer; Sweitzer)
The TJ’s discretion to exclude evidence has two forms:
o A) Crown evidence = if its prejudicial effect outweighs its probative value
o B) Defence evidence = only if its prejudicial effect SUBSTANTIALLY outweighs its probative
values (Seayboyer)
 Rationale = an innocent person must not be convicted.
Probative Value v. Prejudicial Effect
1. Assessing Probative Value:
 Strength of the evidence;
 Extent to which it supports inference sought to be drawn from it;
 How material is it to the real issues in the case?
 Extent to which the matters it tends to prove are at issue in the proceedings
 How reliable and credible is the evidence?*** this is for the jury, but maybe some assessment of
reliable/credibility is done by the TJ???
2. Assessing Prejudicial Effect:
 How discreditable is the evidence;
 To what extent does it support an inference of guilt based solely on bad character;
 Does it prove facts that are not in issue?
 Is there risk the jury will misuse the evidence to prove a fact in issue?
 To what extent does it confuse issues or unduly prolong the trial; and
 What is the accused’s ability to respond to it? Will it unfairly surprise opposing party?
Weighing direct vs. circumstantial evidence
 The relevance and probative value of direct evidence is usually obvious and indisputable.
 The only issue is whether the witness is credible, but that is for the jury to decide.
 So weighing the probative value of direct evidence against its prejudicial effect is generally not
necessary.
 Standard categories of circumstantial evidence include:
o Means
o Motive
o Opportunity
o Post-offence conduct
 Flight
 Knowledge
 Fabricating evidence
o The judge must assess the value of circumstantial evidence relative to its cost.
 For circumstantial evidence to have any value there must be some premise or generalization allowing
the inference to be made.
o IE: evidence that “roses were in bloom”, tendered to prove that it was springtime, has meaning
only if we accept the premise or generalization that roses usually bloom in the spring.
o Thus, the tendency of evidence to prove a proposition, depends on the validity of the premise
which links the evidence to the proposition.
 The probative worth of the relevant evidence depends on the accuracy of the premise which supports
the inference. Sometimes the premise will be indisputable, sometimes always true, sometimes often
true, and sometimes only rarely true.
o Always (or almost always)
o Usually (more often than not)
o Occasionally (less often than not)
o Never (or almost never)
 IE: roses usually bloom in spring = high probative value
 IE: roses bloom in spring especially when Winter is mild and short
 IE: roses bloom in spring except when winter is severe and cold.
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Example:
Fact in issue: did John murder his wife?
Evidence: after her murder he attempted suicide
Underling premise or generalization: men who attempt suicide after their wives have been murdered are
more likely to be responsible for the murder.
Conclusion: John attempted suicide after his wife’s murder. Therefore John is more likely to be responsible
for his wife’s murder.
Fact in issue: did john experience extreme guilt after his wife’s murder?
Evidence: john attempted suicide
Underlying premise or generalization: men who experience guilt [always/usually/occasionally/never] attempt
suicide.
Fact in issue: did John murder his wife?
Evidence: John experienced extreme guilt after his wife’s murder
Underlying Premise or Generalization: men who murder their wives [always/usually/occasionally/never]
experience extreme guilt afterwards.
Conclusion:
 Men who murder their wives are more likely to suffer extreme guilt.
 Men who suffer extreme guilt are more likely to attempt suicide.
 Men who attempt suicide after their wives are murdered are more likely to have committed the
murder.
 John attempted suicide after his wife’s murder therefore John is more likely to have committed the
murder.
Men who attempt suicide after their wives are murdered are likely to have committed the murder especially
when they were obsessively jealous husbands.
Men who attempt suicide after their wives are murdered are likely to have committed the murder except
when they were kind and loving husbands.
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A. Means of Proof I: Witnesses
A1. Competence, Compellability, Capacity & the Oath
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In order to testify, a witness must be competent and must swear an oath to tell the truth.
o Alternatively, can satisfy one of the statutory substitutes for the oath.
Competent:
o Is the witness apparently able to communicate and willing to tell the truth?
 General Rule: everyone is competent to testify
Compellable:
o Can the witness be made to testify?
 General Rule: a competent witness is compellable.
COMPETENCE AND COMPELLABILITY: Spousal Competency
General Rule: At common law, a married spouse is generally an incompetent witness in criminal proceedings
in which the other spouse is an accused.
Common Law Exceptions:
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The married spouse of the accused will be competent for the PROSECUTION if:
1. The spouses are irreconcilably separated (Salituro); or
2. The accused has threatened the spouse’s person, liberty or health, or that of their children
(Lord Audley’s Case – Cited in Hawkins).
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As a general common law principle, a competent witness is generally compellable (Gosselin; McGinty;
Moore)
 But note Moore: spouse was competent (and thus compellable), but still refused to testify; she
was only fined $1 and released.
S.4(5) of the CEA - preserves these common law exceptions to the general spousal incompetency rule.
Statutory Exceptions:
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S.4(1) of the CEA – makes the spouse of the accused a competent witness for the DEFENCE.
o
As a general common law principle, a competent witness is generally compellable and the rule is preserved byb
s.4(5) of the CEA. (Gosselin; McGinty; Moore). However, S.4 does not explicitly state that a spouse of the accused
will also be compellable for the defence.
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S.4(2) of the CEA – the spouse of the accused is competent and compellable for the PROSECUTION
without the consent of the person charged for offences under:
o Youth Criminal Justice Act: s.136(1); OR
o Criminal Code: ss. 151, 152, 153, 155, 159, 160(2) or 160(3), 170 – 173, 179, 212, 215, 218, 271273, 280 – 283, 291 – 294, 329
 S.4(4) of the CEA – the spouse of the accused is competent and compellable for the PROSECUTION
without the consent of the person charged for offences under:
o Criminal Code: ss. 220, 221, 235, 236, 237, 239, 240, 266, 267, 268, 269, where the complainant
or victim is under the age of 14.
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R v. Hawkins
 A court may find a spouse compellable for the prosecution where the marriage was only entered into
for purposes of evading testifying and with no intent to carry out a marital relationship by fulfilling
their mutual obligations of care and support.
Wife provided evidence to police against husband. Before trial, Wife and Husband married and she refused to
testify.
D: wife is NOT a competent witness, and thus no need to assess whether she was compellable.
Note: L’Heureux-Dube observes that barring a spouse who wants to testify from acting as a witness against
their spouse may be a breach of s.15 equality rights.
R v. Salituro
Policy notes:
 Two defunct justifications for the rule of spousal incompetency:
o Spouses were a single person at law (inequality of women)
o Interests are identical and thus cannot act as witnesses for or against
 Two surviving justifications for the rule:
o Danger to marital harmony
o “Natural repugnance” of forcing someone to be the means of their spouse’s condemnation.
14
THE OATH AND IT’S SUBSTITUTES:
CEA:
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s.14(1) – a person may, instead of taking an oath, make the following solemn affirmation:
o “ I solemnly affirm that the evidence to be given by me shall be the truh, the whole truth and nothing but the
truth.”
o s.14(2) – where a person makes a solemn affirmation, his evidence shall be taken and have the
same effect as if taken under oath.
BCEA:
 s.20(2) – a person may, instead of taking an oath, make a solemn affirmation in the prescribed form.
o S.20(4) – a solemn affirmation in the prescribed form has the same force and effect as an oath.
 S.21 – if a person has taken an oath, the validity of the oath is not affected by the person’s religious
beliefs.
Understanding the Nature of The Oath:
R v. Bannerman
 It doesn’t matter whether the witness knows what it means to swear on the bible, so long as they are
capable and understand the moral obligation of swearing to tell the truth.
D charged with sexual assault on two young siblings. Issue of whether boy fully understood meaning of Oath.
D: Witness was capable and understood the moral obligations of swearing to tell the truth.
Understanding the Nature of the Solemn Affirmation:
R v. Walsh
 If accused understands penal consequences, this can be sufficient even where the witness does not
recognize the moral consequences and social duty to tell the truth to the court (Walsh).
 If a witness is mentally competent, willing to tell the truth and swear under s.14 of the CEA, then he
should be affirmed (even if he is a Satanist) (Walsh)
TJ ruled a witness incompetent to testify because he was a Satanist and didn’t recognize any social duty to tell
the truth, but he did know he could be prosecuted and punished if he gave false evidence.
D: witness = mentally competent and willing to affirm; should be allowed to affirm and testify under s.14 CEA.

COMPETENCY: MENTAL CAPACITY OF ADULTS: CEA
Persons over 14 years are presumed competent to testify.
CEA s.16 – Witnesses whose capacity is in question (adults)
 S.16(1) - A party may challenge a proposed witness’s capacity to testify and an inquiry will be
undertaken only where the court is satisfied on the issue.
 S.16 - A person who understands the nature of an oath or a solemn affirmation and is able to
communicate the evidence shall testify under oath or solemn affirmation.
 S.16(1)(3) - If a person does not understand the nature of an oath or a solemn affirmation, but is able
to communicate the evidence, they may testify on promising to tell the truth.
o The only requirements are that witness is able to (1) communicate the evidence and witness
(2) promises to tell the truth (need not demonstrate understanding of duty to tell truth in
abstract) (R v. D.A.I)
 S.16(1)(4) - A person who does not understand the nature of an oath or a solemn affirmation, and who
is not able to communicate the evidence shall NOT testify.
15
R v. Marquard
 “Communicate the evidence” refers to more than a mere verbal ability. It refers to a witness’s
capacity to perceive, remember, and communicate
Young girl severely burned while in care of grandmother. Based on statement made of child, Crown alleged
grandmother put her fact against a hot stove door to punish her.
D: Child could sufficiently communicate the evidence.
R v. D.A.I.
Competence Inquiry Notes:
 inquiry into competence not to be combined with other voir dires.
 Here all available relevant evidence that can be reasonable considered.
 Proposed witness is the primary source of evidence and should be examined using clearly phrased, simple questions.
 Persons familiar with the proposed witness in his/her everyday situation may be called as fact witnesses to provide
evidence on his/her development.
 Expet evidence must meet criteria for admissibility; preference given to experts with personal and regular contact with the
proposed witness.
 TJ must make two inquiries:
o 1. Does the proposed witness understand the nature of an oath or affirmation; and,
o 2. Can he/she communicate the evidence?
 Ability to communicate: can witness relate concrete events by understanding and responding to
questions? Can she differentiate between true and false everyday factual statements.
 Witness to testify under oath or affirmation if she passes both parts of test; testify on promising to tell the truth if passes
only the second part.
Policy:
 (1) Bringing the abusers to justice, (2) ensuring fair trials and preventing wrongful convictions; support allowing adults
with mental disabilities to testify.
o Regarding (1): Rejecting the evidence of alleged victims on the ground that they cannot explain the nature of the
obligation to tell the truth in philosophical terms would exclude reliable and relevant evidence, immunize an
entire category of offends from criminal responsibility for their acts, and further marginalize the already
vulnerable victims of sexual predators.
o Regarding (2): Allowing an adult witness with mental disabilities to testify when the witness can communicate the
evidence and promises to tell the truth does not render a trial unfair.
Dissent:
 Majority judgment unacceptably dilutes the protection Parliament intended to provide to accused persons by turning
Parliament’s direction permitting a person “whose mental capacity is challenged” to testify only “on promising to tell the
truth” into an empty formality – a mere mouthing of the words “I promise” without any inquiry as to whether the promise
has any significance to the potential witness.
COMPETENCEY: Children Under 14 Years: CEA
CEA S.16.1 – The Competency of Child Witnesses (under 14)
 S.16.1(1) – Children are presumed to have the capacity to testify.
 S.16.1(6) – Children (under 14) may ONLY testify on a promise to tell the truth.
 S.16.1(2) – A child shall NEVER take an oath or give a solemn affirmation.
 S.16.1(4) – A party may challenge a child’s capacity to testify but this party bears the burden of
satisfying the court that there is an issue as to the capacity of the child to understand and respond to
questions.
 S.16.1(5) if the court is satisfied that there is an issue, the judge must conduct an inquiry to determine
the child’s capacity to testify.
 S.16.1(3) – the test under this inquiry is simply whether the child can understand and respond to
questions.
16



S.16.1(6) – if the child has the capacity, the child may testify upon giving a promise to tell the truth.
S.16.1(8) – testimony given under a promise to tell the truth has the same effect as if it were given
under oath.
COMPETENCE & COMPELLABILITY: The Accused
CEA S.4:
o (1) every person charged with an offence….is a competent witness for the DEFENCE, whether
the person so charged is charged solely or jointly with any other person.
o (6) the failure of the person charged, or of the spouse of that person, to testify shall not be
made the subject of comment by the judge or by counsel for the prosecution.
 Under s.4(6) the judge and Crown are not allowed to comment on the accused’s failure
to testify. In Noble, the SCC suggested in Obiter that a judge cannot tell a jury not to use
an accused’s failure to testify in determining guilt beyond a reasonable doubt.
However, subsequent cases have ruled that s.4(6) does NOT prohibit a jury instruction
that an accued’s failure to testify cannot be used against the accued (R v. Prokofiew).
 However, judge may explain the law on this matter to the jury (McConnel).
R v. Noble
 It is an error of law for triers of fact to draw inferences of guilt beyond a reasonable doubt from the
failure of the accused to testify in a criminal case.
o However, where the evidence in the case already shows the accused to be guilty beyond a
reasonable doubt, the trier of fact may use the failure of the accused to testify to conclude that
the accused has no explanation that could raise a reasonable doubt.
 There are possible allowable references to an accused’s silence:
o 1. Judge sitting alone who is satisfied BaRD of guilt, may refer to an absence of any explanation
which could raise a reasonable doubt.
o 2. Judge sitting alone may say that he need not speculate as to possible defences.
o 3. Judge can tell the jury that a point is uncontradicted.

Alibi Exception: If accused claims an alibi defence:
o If the accused does not provide reasonable notice of an alibi sufficient to enable time for
investigation of the alibi, the accused’s failure (to testify OR to if kept silent pre-trial) may be
considered and the trier of fact may drawn an adverse inference from the accused’s silence,
notwithstanding s.4(6).
 This is a principle of fundamental justice which trumps the Charter right to silence and
presumption of innocence.
Building manager catches guys breaking into vehicles. Gets drivers license from one. Does comparison of
license picture and man before him. Cannot ID at trial. The trial judge uses A’s failure to testify as evidence
going to identification.
?: Can accused’s silence at trial be used as evidence upon which trier of fact can become convinced beyond a
reasonable doubt?
==========================================================================================
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COMPETENCY & COMPELLABILITY: PROVINCIAL OFFENCES & CIVIL PROCEEDINGS
Witnesses Whose Capacity is in Doubt (Children & Adults)
 BCEA S.5:
o (1) If a proposed witness in a proceedings is a person under 14 years of age OR a person whose
mental capacity is challenged, before permitting the person to give evidence the judge must
inquire into whether:
 (a) the person understands the nature of an oath or a solemn affirmation, and
 (b) the person is able to communicate the evidence.
o (2) if the person understands the nature of an oath or solemn affirmation and is able to
communicate the evidence they must testify under oath or solemn affirmation
o (3) if the person does NOT understand the nature of an oath or solemn affirmation but is able
to communicate the evidence they may testify on promising to tell the truth.
o (4) If the person neither understands the nature of oath/solemn affirmation nor is able to
communicate evidence they must not testify.
o (5) party who challenges capacity of person over 14 bears burden of satisfying judge there is an
issue with capacity.
Person Charged (Accused) & Spouse = Competent
 BCEA S.6:
o A person CHARGED WITH AN OFFENCE and the spouse of a person charged is a competent
witness whether the person charged is charged solely or jointly with any other person.
 No mention “for the defence”
o A spouse is competent, thus likely compellable (R v. Gosselin).
o Charter would prevent accused from being competent or compellable for Crown
Parties to Civil Causes and their Spouses may be Witnesses:
 BCEA s.7(1):
o Parties to a CIVIL ACTION, and their spouses, are competent witnesses and compellable to
attend and give evidence in the proceedings.
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A2. Examination of Witnesses &
Reliability/Credibility
Examination of Witnesses
A) Examination & Cross Examination
Examination in Chief (and Direct Examination – party who called witness)):
 On material points one must not lead his own witness, but on points that are merely introductory and form
no part of the substance of the inquiry leading questions are permitted and one should lead. (Maves v. Grand
Pacific Railway; R v. E.M.W.)
o Leading questions = questions which directly or indirectly suggest to the witness the answer to give, or
assume a state of facts that is in dispute (R v. E.M.W.)
 IE: “You saw a car, didn’t you?”
 There are some exceptions to the general rule (at the discretion of the trial judge) (Maves v. Grand Pacific
Railway):
o 1. For the purpose of identifying persons or things, the attention of the witness may be directly pointed
to them.
o 2. Where one witness is called to contradict another as to expressions used by the latter, but which he
denies having used, he maybe asked directly.
 IE: “Did the other witness use such and such expression?”
o 3. Where a witness is hostile or unwilling to give evidence, the judge may allow the rule to be relaxed.
o 4. Where the inability of a witness to answer questions put in the regular way arises from defective
memory or from the complicated nature of the matter, the rule may be relaxed.
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(1) Refreshing Memory

1. A witness is entitled to refresh his/her memory, before testifying or while testifying, by any means which
helps rekindle recollection, whether or not the means is itself admissible (R v. Fliss)
o In this circumstance it is the memory, now articulated in the testimony, which becomes the evidence
of the witness.
o The following elements must be demonstrated to establish a foundation for refreshing the
recollection of a witness (ultimately TJ’s discretion) (R v. Wilks): (GENERAL GUIDELINE)
 1. Witness knows the facts, but has a memory lapse on the stand.
 2. Witness knows his report or other writing will refresh his memory.
 3. Witness is given and reads the pertinent part of his report or other writing.
 4. Witness states his memory has now been refreshed.
 5. Witness now testifies that he knows, without further aid of the report or other writing.
R v. Bengert (No. 2)
 Witness allowed to refresh memory from document that was written months after event and even where
document was made with assistance of other people.
Witness wants to refresh memory from a notebook that he wrote months after the event and with the assistance of
other people. Furthermore witness is unable to identify which notes were his own and which were from the
memories of the other people.
D: It is not the notebook going to evidence, but the witness’ recollection. Thus the witness is allowed to refer to his
notebook.
(2) Past Recollection Recorded
 2. Test for admissibility of a past recollection recorded: (R v. Meddoui)
o 1. The past recollection must have been recorded in some reliable way.
o 2. At the past time, it must have been sufficiently “fresh” and vivid to be probably accurate.
o 3. The witness must be able now to assert that the record accurately represented his knowledge and
recollection at the time of recording.
o 4. The original record itself must be used, if it is procurable.
o 5. The information in the record must otherwise be relevant and admissible.
A) Assessing Credibility
 The demeanour of the witness is very important to a witness’ credibility (R v. Norman)
o However, demeanour alone is not sufficient in establishing a witness’ credibility (R v. Norman)
 Credibility must be assessed in context of all the evidence (R v. Norman)
 Appellate courts are deferential to the finding of trial judges (TJ hears witness directly, therefore they acquire a
great deal of information that is not necessarily evident from a written transcript (R v. Buhay)
o However, an appellate court CAN overturn a verdict based on findings of credibility where it concludes,
following a review of the evidence and with appropriate deference to the trier of fact, that the findings
are unreasonable (R v. W.(R.))
 Must be a palpable and overriding error.
R v. Jeng
D: Credibility consists of various factors including: personal demeanour, opportunities for knowledge, powers of observation,
judmgenet and memory, ability to describe clearly what he/she has seen and heard.
R v. T.E.
D: TJ did not acknowledge effect of cultural background on demeanour (absence of eye contact and passivity) and equated these
traits with rejection of the appellant’s credibility.
A1) Assessing the Credibility of Child Witnesses
20

Evidence of children will be approached not from the perspective of rigid stereotypes, but on a “common sense”
basis taking into account the strengths and weaknesses which characterize the evidence offered in the particular
case (R v. W.(R.))

When an adult is testifying as to events occurred when he/she was a child, his/her credibility should be assessed according
to criteria to him/her as an adult witness. However, with regard to evidence pertaining to events that occurred in
childhood, the presence of inconsistencies, particularly as to periphereal matters such as time and location, should be
considered in the conext of the age of the witnesss at the time of the events (R v. W.(R.)
CREDIBILITY
Credibility is at issue for every witness who takes the stand
- Definition: the quality, capability, or power to illicit belief
- Relates to the issue of weight → how much weight should be placed on evidence
- Includes both issue of truthfulness and quality of perception and recollection
- Appellate courts generally defer to trial courts assessment of credibility b/c they get to see their demeanour on
the stand (Buhay), but can reverse when there is a palpable and overriding erro (R. v. W.(R.))
Q1: Is the witness telling the truth? Always relevant
Q2: Are they a truthful person? Relevant, but often not allowed b/c would make trial too long
Direct examination → job is to elicit info that supports your case & to get trier of fact to believe your witness b/c she
seems credible –
- May recover/bolster credibility in re-direct examination
Cross-examination → job is to undermine creditability of other side’s witness.
3 ways creditability comes into play:
1. Support your own witness’ creditability
2. Impeach creditability of other side’s witness
3. Other creditability issues (IE: impeaching own witness, and rules of corroboration)
Supporting Your Own Witness’s Credibility (“Oath Helping”)
Rule Against Oath Helping: Generally, a party is not permitted to lead evidence or ask questions or solely to bolster the
credibility of their own witnesses. So called “oath-helping” is inadmissible.
Rationales: Don’t want series of witnesses testifying about a person’s credibility only – leads to jury confusion and prolonged trials
(2) Presumption that a competent witness is also credible (3) Determination of credibility is duty of jury (trier of fact)
4 Exceptions to Oath Helping Rule:
1. Limited introductory questioning
2. Expert evidence
3. Prior consistent statement exceptions
4. Reputation for veracity (truthfulness)
---------------------------------------------------------------------------------------------------------------------------------------------------------------1. Limited Introductory Questioning
 Limited introductory questioning of a party’s own witness is permitted (Clarke)
o IE: OK = age, family/employment status, connection to case, etc.
o IE: Not OK = charitable work, religious views, etc.
---------------------------------------------------------------------------------------------------------------------------------------------------------------2. Expert Evidence
 In some circumstances, the trier of fact may require expert assistance to understand the significance of the
behaviour of a witness to whom common standards of credibility may not apply.
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

In such circumstances, expert evidence on human conduct and particular psyhcogical and physical factors that
relevant and necessary in the trier of fact’s assessment of the witness’ credibility is admissible (Marquard;
Kyselka)
o However, expert evidence that draws a conclusion, either directly or indirectly, about a party’s witness’
ultimate credibility is not admissible (Marqurd; Kyselka)
Jury Charge: jury must be carefully instructed as to its function and duty in making the final decision without
being unduly influenced by the expert nature of the evidence
Application:
#Kyselka – expert testified child was not imaginative enough to concoct stories. D: not admissible
#Marquard – Dr. explained tendencies of children to lie to people of authority BUT also commented that it was her
personal opinion that the D’s second account of the facts was more likely to be true. D: not admissible; crossed the line
between expert evidence on human behaviour and assessment of credibility of witness.
---------------------------------------------------------------------------------------------------------------------------------------------------------------3. Prior Consistent Statements
General Rule: In general, the prior consistent statements of a witness are NOT admissible to enhance the witness’
credibility.
 Rationale: lack probative value, a witness can be a consistent liar.
-
Exception 1 – Prior Identification: admissible to support the reliability of his/her identification at trial of the
accused or another witness.
-
Exception 2 – To Rebut Allegation of Recent Fabrication (other than sexual assault):
o Where one party implicitly or explicitly suggests that the opposing party’s witness has recently (after the
event testified about) fabricated his/her testimony, the opposing party can rebut the allegation by
introducing prior statements made before the alleged fabrication arose (Ellard).
 The witness’ prior consistent statement is only admissible to rebut the allegation by
demonstating that the witness has consistently maintained the position (Ellard; Stirling)
 A mere contradiction in the evidence is not enough to engage the exception; however, a
“fabrication” can include being influenced by an outside source (Ellard)
 Applies to the accused (if testifying) (Giaraldi)
o Note: CL doctrine of recent complaint abrogated for various sexual assault offences by s.275, of the CCC.
Now, complaint can be asked about delay in reporting (implies recent fabrication) and complainant can
respond with evidence of PCS.
 A delay in disclosure, standing alone, will never give rise to an adverse inference against the
credibility of the complainant (D.(D.))
o Note: If the accused testifies, a spontaneous exculpatory statement made by the accused in the face of
accusation or arrest is relevant to credibility and may be admissible (Edgar)
o Jury Charge re: Rebuttable of Allegation of Recent Fabrication:
 Jury should be told that consistency is not the same as accuracy, and prior statements can only
be used to rebut the allegation of recent fabrication, not to support the fact at issue or the
general reliability of the witness.
-
Exception 3 – Narrative
o A PCS may be admissible if it is necessary to help the with the witness’ narrative and is significant in
understanding the witness’ account of the events (Dinardo).
 The evidence may only be used for the purpose of helping the trier of fact to better understand
the story as initially disclosed, which may assist the trier of fact in the assessment of credibility.
o Jury Charge: jury must be told that they should not use the PCS as corroboration to prove the truth of its
contents (Dinardo)
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S.715.1(1) – Evidence of Minor Victim or Witness: if a victim or other witness was under 18 at the time of the alleged
offence, a video recording made within a reasonable time after the alleged offence in which the victim/witness
describes the acts complained of, is admissible in evidence if the victim/witness adopts the contents of the recording
when testifying (unless judge thinks will interefere with proper administration of justice).
S.715.2(1) – Evidence of a Victim or Witness with a Disability: if a victim or other witness is able to communicate
evidence but has difficulty doing so due to mental/physical disability, a video recoding made within a reasonable time
after the alleged offence, in which the victim/witness describes the acts complained of, is admissible in evidence if the
victim/witness adopts the contents of the recording when testifying (unless judge thinks will interefere with proper
administration of justice).
---------------------------------------------------------------------------------------------------------------------------------------------------------------4. General Reputation for Veracity
 Accused witness: The defence may lead evidence to testify that the accused has a general reputation for
veracity in the community for the purpose of enhancing his/her credibility if the accused testifies.
o (See Charater Evidence)
 Non-accused witness: Only after the opposite party has attempted to impeach or attack the witness’ credibility
is oath helping evidence admissible for witness’ other than the accused (Clarke)
o Note: Defence may NOT ask the character witness whether they would believe the accused under oath
(Clarke)
23
Impeaching Credibility of Other Party’s Witness’
You can impeach credibility by leading or cross-examining on:
1. Expert evidence
2. Witness’ bad reputation for veracity (truthfulness)
3. Prior inconsistent statements
4. Prior convictions
One of the main ways of impeaching credibility is through cross-examination, which can be done subject to:
1. The rule in Brown v. Dunn
2. Alluding to unproven facts
3. The collateral facts bar
-------------------------------------------------------------------------------------------------------------------------------------------------1. Expert Evidence
 A party may lead expert evidence which shows that a witness suffers from some disease or psychological
abnormality of the mind that may affect the reliability of their evidence (Toohey)
o The evidence is not confined to a general opinion of the unreliability of the witness. The expert may
give all the matters necessary to show both the foundation of and reasons for the diagnosis as well as
the extent to which the credibility of the witness was affected (Toohey)
 But, expert cannot state whether he believes witness is telling the truth (Toohey)
 Note: where the trier of fact would be able to assess the witness’ credibility without expert evidence, the expert
evidence is inadmissible (D.(D.))
-------------------------------------------------------------------------------------------------------------------------------------------------2. Evidence of Witness’ Bad Reputation for Veracity (Truthfulness)
 Clarke (questions sought to be asked):
o 1. Do you know the reputation of the witness as to the truth and veracity in the community
 (Rarely disallowed)
o 2. Is that reputation good or bad?
 (Rarely disallowed)
o 3. From that reputation (IE: from your knowledge), would you believe the witnesss under oath?
 (Rarely allowed; TJ will usually disallow because PE outweighs PV)
 Jury Charge: TJ must instruct jury that (1) testifying in court under oath is a very different circumstance one
needs to bear in mind, and (2) character witnesses have not heard all the evidence and have not taken an oath
as to juror to render a true veridict. While their evidence may be helpeful, one should not automatically defer
to that evidence (Clarke)
-------------------------------------------------------------------------------------------------------------------------------------------------3. Prior Inconsistent Statements – Cross-examination permitted for:
 CEA, S.10 (BCEA, S.13) – Prior Recorded Statements:
o Witness may be C-E as to a previous recorded statement that is relative to the subject matter of the case
and there is no requirement that the recording is shown to the witness.
 But if the recording is intended to contradict the witness, the witness’ attention must first be
called to the parts of the statement that are used for the purpose of so contradicting the
witness.
 CEA, S.11 (BCEA, S.14) – Prior Oral Statements:
o Witness may be C-E as to a former statement (may be oral) made by him relative to the subject matter
of the case that is inconsistent with his present testimony. If the witness does not distinctly adit that he
made the previous statement, the circusmtances of the statement must be disclose to the witness and
the witness shall be asked whether or not they did make the statement. Proof may subsequently be
given that the witness did in fact make the statement.
---------------------------------------------------------------------------------------------------------------------------------------------------------------4. Prior Conviction
24



Evidence of prior convictions is admissible for the purpose of undermining the credibility of the witness (IE:
person with criminal record less likely to be truthful than witness without) (Corbett)
CEA, S.12 (BCEA, S.15) – any witness may be questioned as to whether he has been convicted of any offence
(indictment or summary) in the past.
o If the witness denies the fact or refuses to answer, the opposing party may prove the conviction by
adducing a certificate of conviction and proof of identity (CEA, s.12(1.1))
“Conviction” includes:
o Juveilne record (Morris)
o Provincial offences, such as contraventions of the MVA
o Does NOT include absolute or conditional discharges, even where there was a finding of guilt.
4.1 - Application: Non-Accused:
 Witnesses, other than the accused, may be C-E on the facts underlying the criminal conviction.
4.2 - Application: Accused:
 CEA, S.12 applies to the accused IF the accused testifies.
o C-E of the accused is limited and questions about details of the offence are not permitted (Laurier)
 Can ask: name of crime, substance/effect of indictment, place of conviction/penalty (Laurier)
 The accused may make a Corbett application to have the record excluded or edited.
o The application is made before the close of the Crown’s case as the accused needs to know whether any
or all of his record will be admissible before he elects whether to testify in his own defence.
 Under a Corbett application, the TJ retains discretion to exclude evidence of the accused’s prior criminal
convictions where the PE outweigh PV
o CORBETT FACTORS:
 1. Nature of the previous conviction – crimes of dishonesty are more probative of credibility.
 2. Similarity of previous conviction to present charge – the greater the similarity, the greater
the prejudice.
 3. Timing – old conviction is less probative then recent conviction.
 4. Fairness – conduct of the defence at trial (IE: has the defence attacked credibility of the
Crown witnesses like in Corbett).
 Jury Charge (if included): jury must be warned evidence of prior criminal conviction is only admissible for the
purpose of undermining the credibility of the accused, but cannot be used to infer the accused is a bad person
or more likely to have committed the offence (Corbett).
Note: important distinction between cross-examination regarding prior conviction aimed at the witness’ credibility and
cross-examination aimed at weakening the evidence on the matter in issue.
 C-E of prior conviction – designed to lay down factual basis from which inferences of credibility can be drawn.
 C-E aimed at weakening evidence on matter at isse: aimted at eliciting answeres that are contrary to the
witness’ evidence in chief
===============================================================================================
5. Cross-Examination
** Importance of PMLS in Cross-Examination**
Perception: anything interfering with (or enhancing) the witness’ observations? Intoxication? Distracted? Conditions for
observation?
Memory: What factors affect the witness’ recall of the events? Recent vs old? Notes? Intervening tainting events?
Unique or important event?
Language: How does the witness express himself and what does he mean by the words used? Difficulty articulating
story? Confusing inferences with facts?
Sincerity: Demeanour – how do they react to being questioned? Are they evasive? Does the witness believe what he is
saying?
25
Cross-Examination is Subject To Limitations:
1. The rule in Brown v Dunn
 Counsel has an obligation to cross-examine a witness whom one intends to contradict.
o The witness whose credibility has been undermined must be given an opportunity to provide an
explanation for the inconsistency or ambiguity.
 Failure: if the witness is not able to be recalled, TJ must charge jury that while it heard evidence of an
inconsistency, failure of counsel to properly put issue before witness may result in little weight being put on
evidence of inconsistency.
---------------------------------------------------------------------------------------------------------------------------------------------------------------2. Alluding to Unproven Facts
 Counsel must not ask irrelevant groundless questions as to “waft an unwarranted innuendo” into the jury box
(Lyttle)
 However, counsel can ask questions with no direct intent to prove them (IE: does not require evidence to
support), so long as they have a good faith reason for asking them (Lyttle)
o
#Lyttle - Defence allowed to put theory to victim, even though no facts to back it up, so long as they believed in
good faith that the suggested state of facts is true.
---------------------------------------------------------------------------------------------------------------------------------------------------------------3. The Collateral Facts Bar
Counsel is entitled to cross-examine witnesses on: (1) matters relevant to the material issues in the case, and (2) matters
relevant to the witness’ credibility.
Collateral Facts Rule: However, a party may not impeach the credibility of his opponents witness by calling on evidence
to contradict the witness on so called “collateral matters”. Furthermore, the witness’ answers on collateral matters are
final. The cross-examiner is stuck with the answer as it may not be contradicted with extrinsic evidence.
Rationale: to keep trial focus on important issues
Collateral Facts: Tests (Consider both!)
1) The Wigmore Test: Could the fact have been shown in evidence for any purpose independently of the
contradiction?
 Facts relevant to some issue in the case.
 Facts relevant to impeaching a witness’ credibility.
2) The Phipson Test: Proof of contradiction may only be given on matters:
 Relevant directly to the substantive issues in the case.
 Relevant to credibility if it falls within an exception:
(a) bias, interest or corruption,
(b) previous criminal convictions,
(c) bad reputation for veracity; or
(d) expert evidence on problems that could affect the reliability of the witnesses’ evidence
(e) prior inconsistent statements
Important Considerations – TJ decides whether issue is substantial to credibility. Consider:
 Importance of the witness to the case;
 Weight/value of the evidence in support of the collateral fact – the more determinative the
evidence seeking to be called to contradict the witness, the more likely to be permitted.
 Practicalities: time required, etc.
26
Other Credibility Issues: Impeaching Own Witness & Corroboration of “Unsavory Witnesses”
1. Impeaching Your Own Witness
General Rule: Generally, a party is not allowed to impeach/attack the credibility of their own witness.
At CL, a witness who is found to be “hostile” to the party calling the witness may be cross-examined at large for the
purpose of discrediting that witness’ testimony.
 “Hostile”:
o Not giving evidence fairly and with a desire to tell the truth because of a hostile animus towards the
prosecution (Re Coffin)
o Hostile to the party and by his manner of giving evidence betrayed a desire not to tell the truth (Boland)
2 situations:
I.
CEA, S. 9(1) (BCEA, s.16) → If the witness proves adverse in the opinion of the court, the party who called
the witness may contradict them with other evidence or admit prior inconsistent statement.
 “Adverse” = something less than hostile; opposed in interest; includes a case where a witness’
testimony merely contradicts his proof; can be based on the contents of the statement alone without
anything in the demeanour of the witness to show active hostility.
 A finding of adversity does not allow you to cross-examine at large; the cross-examining is limited to
the prior inconsistent statement and circumstances surrounding them (Figliola)
 If going to contradict, need to follow Browne rule to let witness know and give them opportunity to
explain.
II.
CEA, S. 9(2) (BCEA, s.16) → if the witness gives inconsistent testimony, and counsel has prior
written/recorded proof of that inconsistency, then:
o Don’t need to declare witness adverse
o Allows you to cross-examine witness with prior recorded statement that is inconsistent w/ current
testimony to neutralize witness.
2. The effect of prior inconsistent statement:

Witness does not adopt (IE: recants/no memory) = hearsay = credibility only: At CL, where a non-party witness
does NOT ADOPT a prior inconsistent as true, the prior statement is hearsay and only admissible as to credibility.
o IE: if both statements made under oath, useful for impeaching credibility by establishing witness told
two different stories under oath.
 If not under oath, open to witness to take position that he is now being truthful.
o But, if offered for its truth, may be admissible under Principled Approach if new voir dire taken: The
principled approach exception to hearsay may, however, allow admissibility of hearsay evidence for its
truth if meets necessary indicia of necessity/reliability and would otherwise be admissible (KGB)
Milgaard
Section 9(2) Procedue
Notice of Application: counsel should advise court of their intention to make an application under s.9(2).
1. Jury Excused: court should direct the jury to retire.
2. Particulars of Application: upon retirement of the jury, counsel should advise the learned TJ of the particulars of the
application and produce for the TJ the alleged statement in writing, or the writing to which the statement has been
reduced.
3. Assessing Whether Inconsistent: the TJ should read the statement and determine whether, in fact, there is an
inconsistency between such statement and the evidence the witness has given in Court. If the TJ decides there is no
inconsistency, that ends the matter. If he finds there is an inconsistency, he should call upon counsel to prove the
statement.
4. Proving Statement: counsel should then prove the statement. This may be done by producing the statement to the
27
5.
6.
witness. If the witness admits the statement, such proof would be sufficient. If the witness does not so admit, counsel
then could provide the necessary proof by other evidence.
Examinations regarding Making of the Statement: if the witness admits making the statement, counsel for the opposing
party should have the right to cross-examine as to the circumstances under which the statement was made. A similar right
to cross-examine should be granted if the statement is proved by other witnesses. It may be that he will be able to
establish that there were circumstances which would render it improper for the TJ to permit the cross-examination,
notwithstanding the apparent inconsistencies. (If offered for truth, extra voluntariness requirement from KGB). The
opposing counsel, too, should have the right to call evidence as to factors relevant to obtaining the statement, for the
purpose of attempting to show that cross-examination should not be permitted.
Ruling: the TJ should then decide whether or not to permit the cross-examination. If so, the jury should be recalled.
----------------------------------------------------------------------------------------------------------------------------------------------------------------
2. Corroboration of Unsavory Witnesses


Where testimony of a witness is seen as potentially unreliable, due to the fact that it comes from an unsavoury
witness such as an accomplice or witnesss with record of perjury, a Vetrovec warning out to be issued to jury
warning of danagers of convicting based on unsavoury witness’ testimony without anything else.
Purposes:
o To alert the jury to the danager of relying on the unsupported evidence of unsavoury witnesse and to
explain the reasons for special scrutiny of their testimony; and
o In appropriate cases, to give the jury the tools necessary to identify evidence capable of enhancing the
trustworthiness of those witnesses.
Elements of a Vetrovec Caution:
1. Draw attention to the testimony requiring special scrutiny;
2. Explain why the evidence is subject to special scrutiny;
3. Caution that it is dangerous to convict on unconfirmed evidence of this sort, though entitled to do so if satisfied
the evidence is true; and
4. In determining the veracity of the suspect evidence, the jury should look for evidence from another source
tending to show that the untrustworthy witness is telling the truth as to the accused’s guilt.
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3. C-E of Accused on Motives of Crown Witnesses
R v. Ellard:
 Asking the accused about the veracity of a Crown witness has long been considered improper.
 The accused’s opinion is irrelevant and the questioning could prejudice him/her and render the trial unfair.
 The potential prejudice arising from this form of questioning is that it ends to shift the burden of proof from the
Crown to the accused.
28
D. Hearsay Exception
The Hearsay Analysis:
1. Is it hearsay?
a. Is it an out of court statement? (IE: absence of contemporaneous cross-examination of the declarant)
i. Out of court statement may be verbal, written, or implied.
1. Hearsay by Conduct – a person’s non-verbal conduct may amount to ‘hearsay by conduct’
where the out-of-court conduct implicitly asserts facts or implies a belief in facts relevant to
the matters in dispute.
2. Implied Assertions - an out-of-court statement, thought not expressly asserting facts, may
be hearsay where it implicitly asserts facts, or implies a belief in facts, relevant to the
matters in dispute (Wright)
a. However, although never overruled, Canadian courts do not often follow the rigid
approach in Wright and sometimes overlook or ignore evidence of implied
assertions (Wysochan).
b.
i. In Wysochan: victim was shot by either X or Y. While dying, victim said ”X, hold my
hand”. Implied assertion is that Y shot her, b/c she wanted X to hold her hand. D:
Admissible. NOT hearsay. Statements showed victim’s belief and feelings towards
X.
Baldree (IE: do drug phone calls implicitly assert that person was a drug dealer?):
i. Dissent – 1 phone call to drug dealer’s phone answered by police was NOT hearsay;
it was circumstantial evidence of the nature of the business carried on by the
person.
ii. Majority: - phone call is hearsay. Thus necessity/reliability analysis, and PV vs. PE.
But here, a single call would likely NOT meet necessity/reliability (police never tried
to contact caller).
ii. Previous out-of-court statements made BY A WITNESS who testifies are hearsay if witness recants or
testifies that they have no memory of making statement (Khelawon)
1. Note: no ability to C-E on why witness giving inconsistent testimony if have no memory.
iii. NOT HEARSAY – If witness repeats/adopts previous out-of-court statement (Khelawon)
b. Is it offered to prove the truth of its contents? (IE: what is the PURPOSE of evidence)
i. Not hearsay if offered for something other than its truth:
1. Subramanian – not hearsay if statement is relevant regardless of truth.
a.
In Subramanian: Accused claims defence of duress. He describes what terrorists said to
him. D: not hearsay. The importance in the law of duress is the fact that threats are made.
The truth of the statements was of no significance (IE: didn’t matter whether the terrorists
would have acted on their threats.)
2. IE: truth of statement not under dispute, but is relevant for some other reason (Wildman
[statement not hearsay b/c adduced to explain why H had info]
3. IE: legal significance of the statement does not depend on its truth (Creaghe)
4. IE: a statement offered to show recipient had notice, knowledge, or motive of some state of
events is not hearsay (Baldree)
5. An out of court statement that is offered simply as proof that the statement was made, is
not hearsay, and is admissible as long as it has some probative value.
a.
IE: Plaintiff slips on ice. Delivery driver testifies that an hour earlier a customer came into store and
told manager “your steps are icy.” In action of negligence, knowledge of potential hazard relates to
reasonability. Customer’s statement is significant in that it amounts to a warning that a hazard existed.
If statement was offered to prove that ice covered the steps, it would be hearsay.
c. If not being offered for its truth:
i. It is not hearsay. But then need to ask, what is it’s relevance, and PV vs. PE.
2. If it is hearsay, it is presumptively inadmissible unless:
a. It fits within a categorical exception:
29
i. Party admission
ii. Res Gestea (spontaneous utterance)
iii. Dying declaration
iv. Statement against interest
v. Business records (declaration in course of duty)
vi. Testimony in prior judicial proceedings
vii. Statements concerning bodily/mental condition
viii. Statements of intention
b. If it does not within a categorical exception, is it admissible under the principled exception? TJ must
determine on a void dire whether necessity/reliability have been established. Onus on party seeking to
establish these criteria on a BoP.
i. Is it reliable?
1. Where necessity is great, judge may lessen reliability criteria.
ii. Is it necessary?
1. Where evidence is extremely reliable, judge may lessen necessity criteria.
3. If it is hearsay, but is admissible under an exception or in principle, the TJ retains discretion to exclude it where
the probative value is outweighed by the prejudicial effect (Starr)
a. Would the evidence be inadmissible under any sort of other rule? If so, can’t admit it through hearsay
(Coutoure)
i. IE: You cannot get in a hearsay statement that which cannot go in through the mouth of the
declarant if they were available to testify.
---------------------------------------------------------------------------------------------------------------------------------------------------------------Rationale for the Hearsay Exclusionary Rule:
 Fundamental concern is about the inability to test the reliability of hearsay statements.
 Second hand nature of evidence
 Three features of credibility missing: testimony under oath/affirmation, cross-examination, and observation of
witness.
o Thus cannot inquire into declarant’s perception, memory, narration, and sincerity.
 IE: boils down to concerns about necessity and reliability.
Categorical Exceptions to Hearsay Rule
1. (Informal) Party admission (applies ONLY to parties of the proceedings, not ordinary witnesses)
Requirements:
Party admissions are admissible for their truth. A party may introduce into evidence against an opposing party any
relevant:
1. statement made by the opposing party
2. act of the opposing party
3. statement made by a third person which is expressly adopted by the opposing party;
4. statement made by a third person where it may be reasonably inferred that the opposing party has adopted it;
 adopted = by words, action, conduct, SILENCE, demeanour, etc. (Clark)
5. vicarious statement of opposing party
6. statement made by a co-conspirator in furtherance of a conspiracy.
 (See Mapara/Barrow)
Note: need to consider CL Confessions Rule if statement by accused made to person in authority (IE: police); statements
made in presence of person in authority have special rules due to right to remain silent.
R v. Clark
 If something is said in the presence of a party, and the circumstances are such that they could reasonably have
been expected to have replied to them, the party’s silence may permit an inference of assent (IE: #4).
D: hearsay evidence admissible. Adoption by silence. Accused sat silently well other person discussed crime.
30
1.1 Co-Conspirator Exception
R v. Mapara
#Co-Conspirator
 The co-conspirators’ exception permits the admissibility of evidence of what co-conspirators say out of court in
furtherance of the conspiracy.
 Rule: Statements made by a person engaged in an unlawful conspiracy are receivable as admissions against all
those acting in concert if the declarations were made while the conspiracy was ongoing and were made towards
furthering the accomplishment of the common object.
o IE: a guilty plea or full confession to police NOT admissible b/c made after the fact and not in
furtherance of the conspiracy.
D: Co-conspirator exception to hearsay established, notwithstanding reliability issues of motive to lie and reasons to
have person killed (questions of ultimate weight for ToF). Court also examined whether admissible evidence should
nonetheless be excluded b/c of lack of necessity/reliability indicia, but rejected this.
1. Necessity:
 Co-accused declarants not compellable for the Crown
 Undesirability of trying alleged co-conspirators separately.
 Evidentiary value of contemporaneous delcarations made in furtherance of an alleged conspiracy.
 2. Reliability:
o Statements made in furtherance generally will be made spontaneously and contemporaneously with the
events at a time where there is little motive/opportunity for false hood.
R v. Barrow:
#Co-Conspirator
Co-conspirator’s Application: A jury may only consider a hearsay statement by a co-conspirator, if
1. Based on all the evidence, the ToF satisfied BaRD that the alleged conspiracy in fact existed; AND
a. Note: can include the co-conspirator evidence to establish conspiracy in fact existed, b/c at this stage
the statements are circumstantial evidence of the existence of a conspiracy due to the fact they were
said (IE: not hearsay b/c admission does not depend on truth of their contents).
2. If the alleged conspiracy is found to exist, then the trier of fact must review all the evidence that is directly
admissible against the accused and decide on a BoP whether or not he is a member of the conspiracy.
3. If satisfied, the ToF may apply the hearsay exception and consider the acts/declarations made by the coconspirators in furtherance of the conspiracy as evidence against the accused on the issue of guilt BaRD.
----------------------------------------------------------------------------------------------------------------------------------------------------------------
2. Res Gestea (spontaneous utterance)


The spontaneous utterance of a declarant that is related to a startling event or condition and made under the
stress of excitement caused by the event or condition is may be admissible (Ratten; Clark)
The statement does not need to be made in precise contemporaneity with the event or condition, but it must be
sufficiently connected in that its spontaneity could safely exclude concoction or distortion (Ratten; Clark)
Note: the unavailability of the declarant is NOT a pre-condition to admissibility.
Ratten
Women called 911 in frantic/panicked state just before the victim was shot.
D: Admissible. Requirement is not precise contemporaneity, but rather sufficient spontaneity.
Clark
D: admissible evidence when victim yelled “I’ve been murdered/stabbed” at top of driveway.
----------------------------------------------------------------------------------------------------------------------------------------------------------------
3. Dying declaration
Admissible where:
31
1.
2.
3.
4.
Declarant has a settled and hopeless expectation of almost immediate death
Statement was about the circumstances of the death
Statement would have been admissible if the declarant had been able to testify
Offence involved is the homicide of the declarant.
R v. Sunfield
Declarant stated “Jake shoot”, “no doctor, Billy, me die.”
D: Admissible. When the declarant stated this, it demonstrated the hopelessness of his condition because he
considered it useless to get a doctor and he refused when the offer was made to get a doctor.
---------------------------------------------------------------------------------------------------------------------------------------------------------------4. Statement against declarant’s interest (applies to non-parties)
1. Declaration against Pecuniary/Proprietary Interest:
Admissible if:
1. Declarant is unavailable to testify;
 “Unavailable” = practically unavailable, not absolutely unavailable (Pelletier)
2. Statement was against the declarant’s interest at the time it was made;
3. Declarant subjectively knew the statement was against his interests at the time he made it; and
 Statement made to close accomplice and serving life sentence = not against interests (Demeter)
4. Declarant had personal knowledge of the facts stated.
Note: no requirement that declarant knows statement could be used as evidence against him.
2. Declaration against Penal Interest: (IE: dead person confession)
Admissible if:
(**4 criteria from above) PLUS:
5. Declarant apprehended vulnerability to penal consequences at time statement made
6. Vulnerability to penal consequences was not too remote;
7. Totality of statement to be considered:
a. If statement has both exculpatory and inculpatory aspects, the court must look to which predominates.
If the hearsay statement is more exculpatory than inculpatory, it is on a balance not a statement against
penal interests = inadmissible (Pelletier)
8. If unclear, court to consider whether declarant otherwise linked with crime or with the accused;
R v. Pelletier
3 roomates. One is killed one night. Roommate 1 made statement to police that he and deceased got into a fight.
Roomate 1 was charged at first but then charges were dropped and Roommate 2 (defendant) was charged. Roommate
1 then disappeared.
D: statement by roommate 1 is admissible as exculpatory statement against penal interests for the accused.
R v. Demeter (SCC)
Accused wanted to admit hearsay evidence that deceased confessed to witness of murdering accused’s wife. At time of
statement, declarant (deceased) was serving life sentence. Furthermore, witness/declarant(deceased) were
accomplices in crime for many years and witness said he would NOT have tesitifed if declarant were alive.
D: not admissible. Does not meet requirement that declarant subjectively knew (#1-3) that statement was against his
interests because made to close accomplice.
Policy: “a person is as likely to speak the truth in a matter affecting his liberty as in a matter affecting his pocketbook”
----------------------------------------------------------------------------------------------------------------------------------------------------------------
32
5. Business records (declaration in course of duty)
Note: declarations under this exception may be admitted by the party responsible for the record in order to support his
case (R v. C.L.)
>>>1. CL Rule: (Ares) A business record, though hearsay, may be admissible if:
1. Made reasonably contemporaneously

IE: not 14 months later (Larsen)
2. In the ordinary course of duty
3. By persons having knowledge of the matters
4. Who are under a duty to make the record or report; and


IE: witness at accident gives information to police = not under duty = NOT admissible.
IE: one employee relies on observation of other employees = all under a duty = admissible.
5. There is no motive present to misrepresent the matter
Note: applies to both oral and written statements.
----------------------------------------------------------------------------------------------------------------------------------------------------------------
>>>2. Statutory Rule CEA:
CEA, S.30(1) – Records Admissible – Where oral evidence in respect of a matter would be admissible in a legal
proceeding, a “record” made in the usual and ordinary course of business that contains information in respect of that
matter is admissible in evidence.
 “Record” (broad definition): includes the whole or any part of any book, document, paper, card, tape or
other thing on or in which information is written, recorded, stored, or reproduced (CEA, S.13(12))
 “Business” (broad definition): means any business, profession, trade, undertaken of any kind whether for
profit or otherwise, including activity carried on by any government, commission or agency of any
government, by any court or other tribunal or by any other body performing a function of government (CEA,
S.13(12))
3. Other CEA provisions:
S.30(2) – Copy of Record if not reasonably practicable to produce record, a copy of the record plus a document
explaining why it is not possible to produce the record and another document that attests to the copy’s authenticity will
suffice.
S.30(4) – Record Requires Explanation: where production of a record in (1) or (2) would not convey to the court the
information contained in the record because it needs an explanation, a transcript of the explanation of the record/copy
prepared by a person qualified to make the explanation is admissible.
*S.30(7) – Notice of Intention to Produce Record – must give other party notice of intention to produce record at least
7 days before its production.
*S.30(1) – Nothing in this section renders admissible in evidence such part of any record as is proved to be:
 a record made in the course of an investigation/inquiry, a record made in the course of obtaining or giving legal
advice or in contemplation of a legal proceeding, a record in which privilege exists, a record alluding to a
statement of a person who is not competent/compellable
 OR, any record which would be contrary to public policy.
4. Financial Institution
CEA, S.29 – Record of Financial Institution: A copy of any entry in any book or record kept by a financial institution is
admissible in evidence as proof, in the absence of evidence of the contrary, of the entry and of the matters, transactions
and accounts therein.
 The record will only be admissible where the book/record was, at the time of the making of the entry, one of the
ordinary books/records of the financial intuition and the entry was made in the usual and ordinary course of
business.
33
R v. Ares
Case of medical malpractice.
?: are nurses notes admissible?
D: Yes. Even though nurses were in court and able to testify, still admissible.
R v. Larsen
Autopsy report and subsequent supplemental report made 14 months later tried to be admitted.
D: autopsy report admissible under CL rule. Supplemental report NOT admissible under CL rule, because does not
meet contemporaneity requirement (#1). BUT, admitted under principled approach because of necessity/reliability.
R v. Martin
 S.30(1) renders admissible a document notwithstanding that it contains double hearsay (IE: information
contained in a record was given to the record keeper but who has no actual knowledge of its accuracy) so
long as the twin requirements of s.30(1) are met (IE: double hearsay was made in usual/ordinary course of
business).
Wheat Board relied on information from Stats Canada that was collected from oral statements by individuals.
D: Admissible. Wheat Board and Stats Canada record made under the usual and ordinary course of business.
R v. C.L.
 Re; s.30(1): Where an established system in a business or other organization produces records which are
regarded as reliable and customarily accepted by those affected by them, they should be admitted as prima
facie evidence.
o There is no need to actually identify the recorder, so long as the court is satisfied that the maker was
acting under a duty to record the information.
D: record admissible, notwithstanding doctor may/may not have actually written record (may have been her
assistants).
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6. Testimony in Prior Judicial Proceedings
>>>1. CL Rule: Though hearsay, prior testimony may be admitted if:
1. The witness is unavailable;
2. The material issues and the parties in both proceedings are substantially the same;
 Not necessary that all issues in the two actions correspond nor that the causes of action be the same.
o What is required is that the evidence relates to any material issues that are substantially the same in
both actions, to ensure that the cross-examining party in the earlier proceeding was motivated to
challenge the evidence in the same way as the present party.
3. In the prior proceeding, the party against whom the evidence is being tendered, or a party with a common
interest, had an adequate opportunity to cross-examine the witness.
>>>2. Criminal Code S. 715:
S.715(1): Though hearsay, testimony from prior criminal proceedings may be admissible at the current trial of the
accused if certain conditions are met:
1. The witness must have provided the testimony at a previous trial/preliminary hearing/investigation involving the
same charge against the same accused person;
2. The witness refuses to be sworn or give evidence OR is dead, insane, ill, or absent from Canada;
3. The testimony was made in the presence of the accused and is signed by judge; AND
4. The accused had full OPPORTUNITY to cross-examine the witness,
a. Note: Actual cross-examination not necessary so long as opportunity was adequate (R v. Potvin)
= it may be admitted as evidence in the current proceedings without further proof.[==
Note: In application of S.715 of the CCC, the TJ retains discretion to exclude the evidence if it would its admission would
be unfair or prejudicial (Potvin).
34
Note: S.715 + judicial discretion = constitutional (Potvin)
R v. Hawkins
At preliminary inquiry, Crown’s witness was the accused’s girlfriend. After the inquiry but before the trial, the witness
and the accused got married and thus she was incompetent for the Crown. The Crown sought to adduce the evidence
she had given at the preliminary inquiry.
D: earlier testimony was NOT admissible. CL rule of spousal inompetency disqualifies a spouse from giving evidence,
regardless of choice.
---------------------------------------------------------------------------------------------------------------------------------------------------------------3. BC Supreme Court Civil Rules:
BC Rule 12-5(54): if a witness is dead, or unable to attend and testify because of age, infirmity, sickness, imprisonment, or is out of
the jurisdiction or attendance cannot be secured by subpoena, the court may permit a transcript of any evidence of that witness
taken in any proceeding, hearing or inquiry at which the evidence was taken under oath, whether or no involving the same parties,
to be put in as evidence, but reasonable notice must be given of the intention to give that evidence.
----------------------------------------------------------------------------------------------------------------------------------------------------------------
7. Statements concerning bodily/mental condition
A statement made by a person claiming to be experiencing a particular physical condition is admissible to prove that the
person was indeed experiencing the condition at the time and to establish its duration (Youldon)
Not Admissible:
1. Statements of past physical condition (IE: pain) are not admissible.
2. Statements asserting the cause of the physical condition are not admissible.
Youldon
Worker lifts beam and says he thinks he hurt himself. Subsequently he dies of bacterial infection, which may have been
caused by injury.
D: admissible.
Policy: spontaneity indicates reliability
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8. Statements of intention
Explicit statements of a declarant’s OWN state of mind may be admitted as an exception to the hearsay rule where:
1. The declarant gives a description of his/her own present state of mind (emotion, intent, motive, plan)
2. State of mind of the declarant is relevant
3. The statement is made in a natural manner and not under circumstances of suspicion (Starr)
a. IE: reliability
Use of Evidence:
1. Can be used as evidence of the declarant’s state of mind; and
2. Circumstantial evidence that the declarant acted in accordance with the stated plan.
Not Admissible:
1. To show the state of mind of persons other than the declarant.
2. To show that a person other than the declarant acted in accordance with the declarants stated intention.
3. To establish past acts or events referred to in the statement.
a. IE: declarant’s diary wrote: “I tried to kill myself last night, but the drugs didn’t work.”
Examples:
IE: “I intend to kill myself” = admissible.
IE: “No one likes me; no one would miss me = not admissible b/c not being tendered for its truth.
35

Note: But if those statements permit an inference as to the speaker’s state of mind, they are regarded as
original testimonial evidence and admitted as circumstantial evidence from which a state of mind can be
inferred – being offered not for the truth of their contents, but for the fact they are said (Same result).
R v. P.(R.)
Deceased made several statements to witnesses about how accused treated her, including intention to leave
relationship for good.
D: Admissible. Utterances showed state of mind that deceased was unhappy. Relevance = state of mind of deceased
permits inferences to be drawn that she had intention of ending relationship, which may establish motive for accused to
kill her when combined with other evidence.
36
The Principled Approach
1. Traditional Exceptions:
(Starr; Khelawon)
 Categorical Exception Challenge: A hearsay exception can be challenged to determine whether it is supported
by indica of necessity and reliability, required by the principled approach. The exception can be modified as
necessary to bring it into compliance.
o In “rare cases”, evidence falling within an existing exception may be excluded because the indicia of
necessity and reliability are lacking in the particular circumstances of the case.
---------------------------------------------------------------------------------------------------------------------------------------------------------------Hearsay statements are presumptively inadmissible. However, otherwise inadmissible hearsay evidence may be
admissible under the principled approach if the party who seeks to adduce the evidence establishes, on a BoP, both
necessity and reliability of the evidence.
Principled Approach in Smith (as refined in Khelawon):
1. Is it NECESSARY?

The direct evidence from the declarant is not reasonably available (Smith; Khelawon)
What does “necessary” mean?
 Reasonably necessary (Khan)
 Where there is a prior inconsistent statement, necessity can be made out by the fact that evidence of the same
value cannot be obtained from the recanting witness or another source (KGB)
 Necessary to prove a fact in issue, not necessary in sense that Crown requires evidence to prove its case (Smith)
 Whether proponent of evidence took all reasonable steps to try and preserver evidence of declarant (Khelawon)
 Flexible definition that is capable of encompassing diverse situations. The common factor is that the relevant
direct evidence is not available (Smith)
 Two types of necessity (Khan):
o 1. Witness unavailability;
o 2. Evidence of same value from this or other source cannot be obtained now or again.
Circumstances where necessity found:
 testifying may cause psychological trauma to declarant (Khan)
 declarant refuses to testify or take an oath/affirmation
 Declarant dead, ill, dying, insane, dementia, or out of country
 Cannot be located and reasonable efforts made to locate
o In Baldree, no reasonable effort was made to locate the declarant, even though police had his address.
 Child not competent to testify (Khan) – But, given addition of s.16.1 providing for low threshold of admissibility
for testimony of child, would the evidence meet reliability requirements if child not competent to testify?
----------------------------------------------------------------------------------------------------------------------------------------------------------------
2. Is it RELIABLE


TJ must be satisfied the reliability of the evidence is such that it should be considered by the trier of fact.
Relevant factors to be considered on admissibility inquiry should no longer be categorized as going either to
threshold or ultimate reliability; a functional approach should be adopted (Khelawon)
In Khelawon, court held reliability is either:
1. Inherent Trustworthiness of the Statement: (IE: There is no real concern about whether the statement is true or not
because of the circumstances in which the statement came about (Khelawon; Smith; Khan)
o [[[IE: reasoning of: dying delarations, spontaneous utterances, statements against interest]]]
o Statement made in circumstances which substantially negate possibility that declarant was untruthful or
mistaken (Smith; Starr)
37
o
o
o
o
o
o
o
o
o
o
o
o
o
o
Spontaenous (Khan)
Statement arose naturally (Smith) without suggestion or prompting (Khan)
Reasonably contemporaneity with the events (Smith)
Made by a person who had no motive to fabricate / lie (Smith; Khan)
 IE: not financial or other gain, personal bias, or co-accused.
In circumstances where inaccuracies or fabrications would be detected/exposed, declarant believed lie
would be detected.
Unreasonable to expect evidence to change had there been cross-examination (Smith)
Two statements are strikingly similar (U(F.J.))
Declarant under a duty to make the record
Statement made to public officials
Statement was against the person’s interest in whole or in part (pecuniary, property, penal)
Absence of dangers of misperception or poor recollection
“Own special stamp of reliability” (Khan)
 IE: young person who would not likely have knowledge of the acts (such as sexual acts) (Khan)
 IE: absence of any alternative source for the substance of the information provided (Khan)
Corroborating evidence (Kelawan; Khan; Blackman)
Character of the declarant
 In Khan, considered the intelligence and understanding of the child
 In Smith, considered that deceased was a person capable of deception (credit card fraud, etc.)
 In Khelawon, the mental state of the declarant.
OR
2. Adequate Substitutes for Testing of the Evidence: (IE: There is no real concern arising from the hearsay evidence
because its truth and accuracy can be sufficiently tested by means other than contemporaneous cross-examination.)
o Prior statement video or audio taped (KGB)
 Time ticker on video enables confirmation that not doctored.
o Statement made under oath (Potvin; KGB)
o Opportunity to cross-examine the declarant at time of making earlier statement (Potvin)
o Warning is given as to seriousness/consequences of lying and punishment/consequences of false hood.
o Presence before the accused (Potvin)
o Opposing party now has full opportunity to C-E declarant (KGB)
 But Note: In a KGB situation if a witness denies/has no memory of making prior statement,
cross-examination is thwarted. Effective C-E only available where witness recants and gives
reason for earlier prior inconsistent statement. Thus, other indicia of reliability become more
important.
---------------------------------------------------------------------------------------------------------------------------------------------------------------Principled Approach CASES
R v. Khan (1990, SCC)
Young girl told mom that Doctor “peed in her mouth”. The hearsay evidence did not fit under res gestae exception
(occurred 15 minutes after – not spontaneous) nor under the pressure/emotional intensity exception.
D: Admissible.
1. Necessary – girl found incompetent to testify and there were concerns about psychological trauma if she did testify.
2. Reliability – statement made in “disinterested manner”; she was too young to have known that what happened was a
sexual assault; she made statement without any prompting from her mother; and the statement was made before any
suggestion of litigation.
R v. Smith (1992, SCC)
Accused charges with murder. Deceased had placed several phone calls to mother before death – first two saying that
accused left her at hotel, 3rd saying that accused came back and was driving her home.
D: Partial admission (first two calls OK, but not 3rd.)
38
1. Necessary – met for all 3 calls.
2. Reliability – for the first two calls, reliability was met. Deceased had no reason to lie when she said that the accused
had left her at the hotel.
But, for the third call reliability was NOT met. Deceased had reason to lie: to alleviate mom’s worrying and to
prevent mom from calling Z to pick her up instead (accused didn’t like Z). Furthermore, circumstantial evidence showed
she was capable of lying because there wasn’t enough time for her to confirm that accused was indeed going to drive
her (call #3) and because she was travelling under a false name with a stolen credit card. It would be impossible to say
that the evidence was unlikely to change under cross-examination.
R v. KGB
 For prior statements, the TJ must be satisfied on a BoP in the the voir dire that the statement was not the
product of coerecion of any form, whether it involves threats, promises, excessively leading questions by the
investigator or other person in a position of authority, or other forms of investigatory misconduct.
3 friends of accused gave statements to police (videotaped) that accused told them he had killed the victim. At trial, all
3 refuse to adopt prior statements saying they lied before. Pursuant to s.9(2) CEA, TJ allows Crown to cross examine on
prior inconsistent statements. TJ held that only use that could be made of prior inconsistent statements was against
credibility, not for truth of their contents (IE: not as proof that accused actually made the admission.
D: Admissible
1. Necessary – no other reliable evidence
2. Reliability – yes – presence of an oath and a video were coupled with availability of declarant at trial.
Prior Inconsistent Statements (KGB)
The prior inconsistent statements of non-party witnesses may be admissible for the truth of their contents under the
principled approach. In KGB, the SCC held that with regard to prior inconsistent statements, necessity is established
whenever a witness recants his/her earlier out-of-court statement effectively taking it “hostage”. Necessity is
warranted because evidence of the same value is unable to be obtained in similar quality from another source.
Reliability: Question of reliability more complicated. Look to factors.
 But a key variable with respect to prior inconsistent statements is the availability of the declarant to be crossexamined on the prior inconsistent statement.
o When witness denies or cannot recall making the statement, cross-examination is of limited value.
o Cross examination only allowed where witness admits making the earlier statement and provides a
reason for his/her recantation.
o Thus, when cross-examination is of limited value, the need for other reliability indica rises.
 TJ retains discretion to refuse to admit a statement for its truth “where there is any concern that the
statement may be the product of some form of investigatory misconduct.”
Not all prior inconsistent statements can be admitted for their truth, even where they comply with the KGB criteria.
The prior inconsistent statement has to be otherwise admissible.
o IE: if the witness could not testify as to the statement in court, is it not rendered admissible simply
because it was made out of court.
o IE: In KGB, IF one of the youths videotaped said: “I was told by X that Y stabbed the victim”, then this
would be a hearsay statement. Thus the youth would not be allowed to repeat this statement in
court, and the party calling the youth should not be allowed to repeat it using KGB.
o In the actual case, the video taped statement could be admissible for its truth in that the youts
were repeating an admission made by the accused. Admissions are a well recognized hearsay
exception.
NOTE: prior inconsistent statements can also be admitted because of their inherent trustworthiness (R v. U(FJ))
39
R v. Starr
 Each level of double hearsay must fall within an exception, or be admissible under the principled approach.
Girlfriend of a murder victim finds him in car with another woman. She wanted him to come home with her, but he
stated that he could not because he had to go do a scam with Robert (the accused). Statement being used to show
Robert’s intention of doing scam.
D: Hearsay. Not admissible under present intention exception because was statement of intention of a 3P (not of
declarant). Also not admissible under principled exception, because lacked reliability (declarant could have been lieingto
cover up why he was with another woman).
R v. Mapara (See co-conpsirators exception for party admissions under “Party Admissions Exception”
R v. Khelawon
 TJ may now consider evidence going beyond the circumstances under which the statement was made at the
threshold reliability stage.
o TJ can consider corobborative and/or conflicting evidence.

“Courts should adopt a more functional approach and focus on the particular dangers raised by the hearsay evidence sought
to be introduced and on those attributes or circumstances relied upon by the proponent to overcome those dangers”.

Re; Reliability – a police video (where declarant told importance of truth/consequences of lying) with nothing
more is not sufficient to establish an adequate substitute for testing of the evidence.
Crown wants to introduce evidence of three statements made by person who is unable to testify as a witness. Thus, all
hearsay statements, but none fit under traditional exceptions. Thus, principled approach necessary. Statemnets were:
1. To employee of retirement home.
2. To doctor who treated his injuries
3. Videotaped statement to the police (not given under oath, but police explained important of telling the truth
and that if he lied he could be charged.
1. Necessesary – Yes, declarant dead.
2. Reliability – NO. Mental capacity at issue; possibility injuries from fall; he was helped by care taker when giving
statement (and she had motives to discredit the accused b/c had been fired) which may have influenced his statement;
declarant himself had issues on how care home was run.
40
FRAMEWORK FOR ANALYZING HEARSAY
PRELIMINARY QUESTIONS:
1. What are the words (or act) being tendered as evidence?
2. Why is this evidence being tendered? How does the evidence advance the party’s case?
Is there an implied statement beyond the actual words?
STEP ONE: Is it Hearsay?
1. Out of Court Statement? Is the declarant on the stand testifying to the statement right
now?
2. Offered for the truth of its contents? If the significance of the statement
STEP TWO: Is Statement Admissible pursuant to a Traditional Exception?
Part One: Does the Hearsay fall within a Traditional Exception?
Hearsay evidence is presumptively inadmissible unless it falls within an exception to the
hearsay rule.
A hearsay statement fitting within a traditional exception is presumptively admissible.
If the statement contains multiple layers of hearsay, each level of hearsay must fall
within an exception, or be admissible under the principled approach (Starr)
Part Two: Does the Hearsay Exception meet the requirements of Necessary & Reliable?
A hearsay exception can be challenged to determine whether the exception itself meets
the requirements of the principled approach, necessity and reliability. The exception can
be modified as necessary to bring it into compliance.
Part Three: Are Necessity & Reliability Lacking in this Specific Case?
In "rare cases", evidence falling within a traditional exception may be excluded because
the indicia of necessity or reliability is lacking in the particular circumstances of the case.
STEP THREE: Is the Statement Admissible under the Principled Approach?
If hearsay evidence does not fall within a traditional exception, it may still be admitted if
established on a voir dire that the evidence is:
1. Necessary (not reasonably available); AND
2. Reliable, meaning:
a. Circumstances surrounding the statement offer circumstantial guarantee of
trustworthiness (Smith, Khan) OR
b. Truth & accuracy of the statement can be sufficiently tested by other means (KGB)
STEP FOUR: Probative v. Prejudice Analysis
Otherwise admissible Crown evidence may be excluded if its prejudicial effect exceeds it
probative value. Defence evidence will be excluded only where the prejudice substantially
outweighs the probative value.
41
E) Opinion Evidence


Opinion Evidence = an inference from an observed fact.
Rule: Opinion evidence is generally inadmissible.
o Rationale: the role of the witness is to testify to facts of which they have personal knowledge,
observation and experience. It is up to the ToF to draw inferences from the evidence to form his/her
opinion on the issues of the case.
 Exceptions:
o 1. Lay Witnesses – opinion on matters that are (1) within common knowledge and (2) based on multiple
perceptions that can be be communicated in a compendious format.
 IE: no special training or skill is required.
o 2. Expert Witnesses – opinion where ToF may require assistance in order to understand the significance
of the evidence, or require assistance to determine what inferences can properly be drawn from it.
Note: When determining whether lay or expert exception rules apply, the issue is not whether the witness is an expert,
but whether the witness is offering information that requies special training/experience to observe.
---------------------------------------------------------------------------------------------------------------------------------------------------------------NOTE: No witness, expert, or otherwise, can provide an opinion on a pure question of domestic law (Graat)
 Opinion in Graat was OK b/c “impaired driving” does not have its own technical definition; the concept of
impairment in the offence refers to nothing more than the fact of impairment.
RECALL: witnesses cannot give opinions about credibility by expressing whether or not they believe a particular witness
is telling the truth.
Lay Person Opinion Evidence
Conditions for Admissibility: (Graat)
1. Witness is in a better position than ToF to form the conclusion;
2. The conclusion is one that persons of ordinary experience are able to make;
3. The witness, although not an expert, has the experiential capacity to make the conclusion; AND

IE: young child may not have experiential capacity to give some opinions.
4. The opinions being expressed are merely a “compendious (concise) statement of facts that are too subtle or too
complicated to be narrated separately and distinctly.”
Examples of Allowable Lay Opinions:
 Identification of handwriting, persons and things
 Apparent age
 Bodily condition of a person, including death or illness
 Emotional state of a person (distressed, angry, aggressive, affectionate, depressed, etc.)
 The condition of things (brand new, used, shabby, worn, etc.)
 Certain questions of value
 Estimates of speed, distance, etc.
R v. Graat
Accused charged with impaired driving. TJ permitted officer witnesses to offer opinion evidence about whether the
ability of accused to drive was impaired.
D: admissible. Opinions about intoxication within abilities/capacities of a lay person.
Note: opinion of police officers who had experience w/ drunk drivers is still NOT expert opinion evidence.
R v. Walizadah
D: Admissible: Officer permitted to express opinion about what surveillance and reenactment videos showed even
though jurors were capable of seeing the video themselves.
42
Expert Opinion Evidence

“It is only when the ToF is unable to form his/her own conclusion without help that an exception to the opinion
rule may be made and expert opinion evidence admitted.”
Conditions for Admissibility:
Expert opinion evidence is presumptively inadmissible. It can be admissible where the party calling the evidence
satisfies the following four pre-conditions of admissibility on a BoP:
Two Part Test: (Abbey; Mohan)
1. The 4 Pre-conditions of Admissibility:
1. Subject matter properly the subject of expert opinion evidence
 Expert opinion evidence must assist the ToF in drawing inferences in areas where the expert has
relevant knowledge or experience beyond that of the lay person. (Lavalee)
o If ordinary people are unlikely to form a correct judgment without assistance the first precondition will be established (Mohan).
 IE: dispel a myth/sterotype (Lavalee)
2. Relevance
 The expert evidence has the tendency as a matter of human experience and logic to make the
existence of a fact in issue more or less likely than it would be without that evidence.
3. Properly qualified expert
 A person has an “expertise” when they possess special knowledge or experience going beyond that
of the ToF in the manner testified to.
4. Absence of exclusionary rule
 IE: hearsay, opinion of accused’s credibility where credibility not put in issue
2. Gatekeeper Function: (Even if 4 conditions are met) is the evidence sufficiently beneficial to warrant the potential
harm?
Note: Test is highly contextual and whether evidence will satisfy Mohan test is NOT a matter of strict precedent.
Note: it is essential for the party proposing the expert opinion evidence to indicate with precision what the scope and
nature of the expert testimony will be and what facts it intends to prove.
Note: admissibility determined during a voir dire.
43
Step 2: Gate Keeping Function

If the 4 pre-conditions are satisfied, the expert evidence will be admissible provided it passes the highly
contextual gate keeping function during which the TJ determines whether the benefits of admissibility
outweigh its costs.
1. Determining the Benefit:

The benefit of the expert opinion evidence requires consideration of (1) the probative value of the evidence
and (2) the significance of the issue to which the evidence is being adduced.
Reliability:
The reliability of the evidence is an important consideration of probative value.
 1. Methodology:
o Is it well established/accepted by courts, or is it a (1) Novel Science or (2) a non-science?
o Where admissibility is well established by the case law, judges can generally rely on past practice to
assume that the technique ot science is reliable enough to warrant admission (Trochym)
 BUT, note: established practices of admitting some kinds of evidence can be reasonably
challenged and subsequently shown to be unreliable, as was the case in Trochym.
 2. Expert’s own level of expertise/qualifications (Abbey)
 3. Extent to which the expert is shown to be impartial and objective
o Extent to which expert used methods accepted within the field, the degree to which boundaries and
limits established in the field were honored (Abbey)
 4. Quality of Expert’s performance in the case
o IE: clear, concise, convincing evidence that is not likely to be misunderstood.
Necessity in assisting ToF / Can procedural safeguards reduce costs?
 The necessity standard is generally not applied “too strictly” (Mohan)
o Note: special standard for Novel Science
 If the jury is fully equipped to decide without that opinion the benefit is zero and the evidence should be
excluded (Abbey).
 Opinion evidence that is essential to a jury’s ability to understand and evaluate material evidence will
register high on the “benefit” side of the scale.
 SAFEGUARDS: Are substitutes/procedural safeguards available to reduce costs or address the ToF’s
knowledge gap?
o Jury charge, partial admission of testimony, C-E,
o Court may also modify the nature/scope of the opinion or edit language used to frame opinion.
2. Determining the Costs




1. Too Much Weight: In Abbey, the court stated that the “most important” danger is that the jury will be
unable to make an effective and critical assessment of the evidence.
o This may be due to the complexity of the subject matter, the expert’s impressive credentials, the
confusing jargon, or the cross-examiner’s inability to expose the opinion’s shortcomings.
o Furthermore, the jury may be susceptible to abdicating its fact-finding role on the assumption that a
person labeled as an expert knows more about his/her area of expertise than do the individual
members of the jury. This may result in more weight may be placed on the expert’s opinion evidence
than is deserved.
2. Undue consumption of time
o Unduly protract and complicate the proceeds.
3. Confusion / Diversion of Attention from Real Issues
4. Resource Advantage (usually the Crown) (Abbey)
----------------------------------------------------------------------------------------------------------------------------------------------------------------
44
Novel Science

Expert evidence will be treated as novel science where there is:
o 1. No established practice among courts of admitting evidence of that kind, or “new” within the
scientific community;
o 2. Where an expert is using an established scientific theory or technique for a new purpose, or the
theory/technique behind the science is not sufficiently established (Trochym)
o 3. (CHALLENGED SCIENCE): Even where there is an established practice of admitting a kind of evidence,
if the underlying scientific theory or technique is reasonably challenged because that technique has not
been sufficiently scrutinized, or because of changes in the base of knowledge, the expert evidence
should not be admitted without confirming the validity of the assumptions (Trochym)
Where the science or theory is novel, three particular requirements are imposed:
 1. “Although the necessity requirement is not to be applied too strictly for established science, with respect to
novel science the opinion must be “essential in the sense htat the ToF will be unable to come to a satisfactory
conclusion without the assistance of the expert.” (Mohan)
 2. A party wishing to rely on novel scientific evidence must first establish that the underlying science is
sufficiently reliable to be admitted in a court of law (Trochym). The court must test the reliability of a “novel
science” strictly and with “special scrutiny” by asking: (Mohan)
o Whether technique can be and has been tested
o Whether the technique has been subject to peer review and publication
o The known or potential rate of error; AND
o Whether the theory/technique has received general acceptance in the relevant academic community.
 Note: techniques for therapeutic purposes are not necessarily sufficienrly reliable for use as
evidence in a court of law (Trochym)
 3. The closer the expert opinion evidence approaches to an opinion on an ultimate issue, the stricter the
application.
---------------------------------------------------------------------------------------------------------------------------------------------------------------R. v. Lavalee
 Facts: L shot boyfriend in back of head while leaving room – abusive relationship, claimed self-defense, if she
hadn’t shot him he would of shot her
o Psychiatric testimony re: battered woman syndrome and reasons why this may fit definition of selfdefence admitted at trial – this is the issue
 Relevance: goes to ability of accused to perceive of danger from her mate, which goes to determining if
elements of self-defence are made out – yes it is relevant.
o Also why accused remained in the relationship so long may assist jury in assessing the nature and extent
of the alleged abuse – relevant.
o Why an accused did not flee may assist jury in assessing reasonableness of her belief that killing was her
only way to save her life.
 Necessary: few ordinary people understand battered women syndrome, expert evidence can dispel myths
around why women stay in abusive relationships – yes it is necessary
 Subject to any exclusionary rule: hearsay present (L didn’t testify), opinions of expert based on statements made
by L to expert – this is fine – facts upon which an opinion is based do not have to be proven before the opinion is
admissible
 Qualification of expert – psychiatric recognized as expert field
R. v. Trochym
 Facts: eyewitness gave testimony at trial that she saw T go into deceased’s apartment on relevant day/time –
witness had been hypnotized, this wasn’t revealed at trial
 Court sets out/applies factors to consider for evaluating reliability of novel sciences
o Hypnosis accuracy/effect difficult to test
45
o
Hypnosis not new technique, issue with usefulness as forensic tool – has been subject of peer review,
weaknesses of hypnosis well documented
o Medical community knows very little about how memory functions/role of hypnosis in recalling
memories
o Hypnosis and impact not understood well enough for post-hypnosis testimony to be sufficiently reliable
to use in court
Note: TJ may have to rule on a request to allow a witness to testify in respect of which questions were not asked during
the hypnosis session. Although this testimony may be tainted by post-hypnosis memories and on C-E the witness may
be impaired, the TJ may nonetheless be satisfied that the PV outweighs the PE.
---------------------------------------------------------------------------------------------------------------------------------------------------------------NON-SCIENCE: Scientific validity is not a condition precedent to the admissibility of expert evidence because not all
expertise purports to rest in science (Abbey)
 Where the expertise does not depend on principles of science, the court will determine whether experience and
research permit the expert to develop a specialized knowledge that is sufficiently reliable to justify placing the
evidence before the ToF (Abbey)
o Consider ALL factors, including:
 Whether expert’s field is a recognized discipline or area of specialized training;
 Degree of quality assurance measures in the field;
 If data is used, how accurate it is apt to be (including whether it was gathered for the purpose of
litigation) and how accurate it has been recorded;
 Extent to which the reasoning process used by the expert can be explained.
---------------------------------------------------------------------------------------------------------------------------------------------------------------Relevant Provisions (see handout for more)
CEA, S.7 – in any trial or other proceeding (criminal or civil), a party is limited to calling a maximum of 5 expert’s to give
opinion evidence, unless obtaining leave of court.
CCC, S.657.3: Expert opinion evidence
 (1) and (2) – proceeding by affidavit
 (3) notice requirement for crown and defence
 (4) remedies for lack of notice
 (5) other orders where notice and materials provided.
BCEA, S.10
 (3) a statement in writing setting out the opinion of an expert is admissible in evidence, if at least 30 days before
a copy is furnished to every party adverse in interest.
 (5) if the written statement of an expert is given in evidence, any party to the proceeding may require the expert
to be called as a witness.
 (6) however, if a party requires an expert to be called and the evidence obtained does not materially add to the
written statement, the party calling the expert may be required to pay costs.
BCEA, S.11 and 12:
 S.11 – expert opinion evidence may only be given if a written statement of that opinion and the facts on which
the opinion is formed has been furnished, at least 30 days before the expert testifies, to every party that is
adverse in interest, unless order pursuant to s.11(12)
 S.12 – S.11 only applies to civil proceedings.
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46
Presentation and Evaluation of Expert Evidence

Depending on the circumstances, there are a variety of ways in which expert evidence will be presented:
1. Expert Training
 Expert witness provides general, background information to ToF that is useful in assessing evidence.
 This can be done without commenting in the particular case.
2. Expert Opinions Based Wholly on Personal Observations
 Expert offers their interpretation of a given set of facts.
 At times, expert may be witness to the facts forming the foundation of their opinion.
o IE: expert in Marquard who examined burn before diagnosing it.
 These witnesses will testify as eye witnesses to the underlying facts, and then offer an expert opinion as to what
those facts signify.
3. Expert Opinions Based in Whole or in Part on Hearsay or Inadmissible Information
IE: expert witness conducts investigation before trial that includes interviewing witneses/reading documents (IE: rely in
part or in whole on hearsay), to form their opinion.
 Rule: Inadmissible information, including hearsay, relied on in whole or in part by an expert to form the basis of
his/her opinion may be considered by the ToF solely to enable the ToF to evaluate the opinion, but not as proof of
facts.
o However, before the ToF can rely on that opinion there must be some admissible evidence that proves the
(IE: hearsay, etc.) information that the expert relied upon was true (Abbey; Lavalee).
 It is not necessary to establish all the facts that the expert relied on (Lavalee). As long as there is
some admissible evidence to establish the foundation for the expert’s opinion, that opinion may be
accepted.
 JURY CHARGE: TJ must warn the jury that the more reliance the expert’s opinion places on
facts not proved in evidence, the less weight the jury may attribute to the opinion (Lavalee)
 But, where an opinion is based mainly on information not proven by admissible evidence, it is
appropriate for a judge to direct a jury that the opinion is entitled to no weight.
 In determining whether a sufficient evidentiary foundation has been established in order for an opinion to be given
weight, the evidence relied upon by the expert must be considered:
o 1. Expert’s Independent Expertise: If the expert obtains and acts on information that is within the scope of
his expertise AND which does not come from a party to the litigation, the ToF is free to weight the opinion
even if that information does not meet established hearsay exceptions.
o 2. Information Derived from Party: If the expert opinion is based on information derived from an interested
party to the litigation, that hearsay foundation must be proven by admissible evidence.
 IE: hearsay / other exceptions apply.
 It is then up to the ToF to decide whether it considers the admissible hearsay evidence to be
reliable/opinion worthy.
4. Expert Opinions Secured by Hypothetical Questions
[IE: expert witness who has NOT conducted his/her own investigation is asked to offer an opinion on an inference arising
form the actual uncontested facts of the case or to make an expert observation relating to evidence that has been
presented in court. Unless those facts are uncontested (IE: material facts not in dispute or expert is commenting on
significance of an ite of real evidence that has been admitted) it is inaapropriate to have the expert listen to the evidence
to form a conclusion as to the facts upon which their opinion will be based.]
The party calling the witness may present the expert with a hypothetical factual scenario that reflects the facts that the
party hopes the ToF will find, bearing in mind that before any weight can be given to the expert’s opinion, the facts upon
which the opinion is based must be found to exist. If the ToF finds that the facts contained in the hypothetical exist, the
opinion can be applied. But, if the ToF finds facts materially inconsistent with the hypothetical, the opinion becomes
47
useless. For example, if in Abbey the expert was asked to offer an opinion on the significance of a teardrop tattoo worn
by a member of an urban street gang, and there had been no evidence linking Mr. Abbey to an urban street gang, the
experts opinion would have been useless.
Posing hypothetical questions to an expert heightens the risks associated with expert testimony. Here the expert is
drawing a conclusion based on the facts offered. IE: ToF may be more likely to adopt expert’s testimony without critical
analysis. Expert may give general answers to hypothetical questions (IE: whether a sexual abuse victim be more likely to
lie to police) without going so far as to offer opinions on the significance of hypotehticals that tracked the particular
facts of the case (IE: whether a 15 year old girl abused by her father 3 times is more likely to lie to police).
5. Presenting Expert Evidence and Explaining Evidence to Juries
 If an expert’s testimony is highly technical the party who called wit witness should ask the witness to explain
himself in language the layman can understand (P&S)
The use of Written Authorities to Examine / C-E the Expert


Technically books/articles are hearsay when they are being relied upon for the truth of their contents.
o OK that expert has gained his knowledge through study, etc
But, reliance on books / articles in the examination / C-E of experts is not permitted unless certain criteria are
met.
o Testifying In Chief: The expert can refer to and quote from other authorities while testifying in cheif so
long as he adopts the opinions contained those authorities as his own.
o Cross Examination: the expert can be cross-examined using texts, articles, studies, etc, but ONLY WHERE
the expert (1) acknowledges that the works being sued are authoritative AND (2) adopts the opinions of
the author (Marquad)
 Where expert acknowledges authority but rejects its conclusions, he/she can be asked to explain
why, and the responses can be of relevance to the credibility of the opinion offered.
48
G. Evidence of Character and Disposition
Intro: What is Character Evidence?
Character = a person’s propensity or disposition to behave in a certain way, good or bad
 Deeply ingrained behavioral traits
 Different from a habit.
o Habit = past conduct > inference > present conduct.
o Character = past conduct > inference > disposition > inference > present conduct.
 Common character traits: violence, anger, pedophilia, honesty/dishonesty
----------------------------------------------------------------------------------------------------------------------------------------------------------------
A. Character Evidence to Prove the Propensity of the Accused
Reason for Relevance of Character Evidence #1: Character Directly in Issue
 Sometimes a person’s character is something that a party must prove as an element of its cause of action.
 For example, if Crown makes dangerous offender application under s.753, must prove that person is dangerous
and has propensity to commit violence, and character evidence is thus direct evidence.
Reason for Relevance of Character Evidence #2: Character for Credibility
 Either party could establish honesty, dishonesty, or poor memory of a witness by means of character evidence.
**Reason for Relevance of Character Evidence #3: Character as Circumstantial Evidence**
 Most commonly, evidence of a person’s character is circumstantial:
o Argument: the person is more likely to have behaved in the alleged manner because he/she has a
disposition to behave that way.
----------------------------------------------------------------------------------------------------------------------------------------------------------------
B. Why is the Use of Character Evidence Limited?

CL strictly limits admissibility and use of character evidence due to policy concerns of:
o Reliability and probative value of character evidence;
o Efficiency concerns due to time and resources necessary to explore collateral issues
 “if the prosecution were allowed to go into such evidence, the entire life of the prisoner would
be ‘ripped up’” (Rowton)
o Potential unfairness, especially to the accused.
 “The Prohibited Inference”: Risk that the jury will use evidence of bad character to assume that
because the accused is a bad person, they are more likely to have committed the offence.
 Particularly of concern when ToF is a jury.
o (Relevancy is not the issue with regard to character evidence)
----------------------------------------------------------------------------------------------------------------------------------------------------------------
49
C. The Rules on the Use of Evidence of the Accused Character and Propensity:
1. The Crown may never lead evidence of the bad character of the accused to show propensity [unless it meets
the threshold for similar fact evidence – see below; Handy]
2. The Defence may lead evidence of the good character of the accused to encourage the jury to reason that
the accused is therefore less likely to be guilty of the crime charged. The defence can lead character
evidence in three ways:
a. Reputation Witness: testify to the community reputation of the accused for relevant character traits,
but never specific acts.
b. Accused’s Own Tesitmony: the accused can testify to their good character generally, and they can
assert specific acts.
c. Psychiatric Expert Witness (very high threshold – See Mohan)
3. If the accused puts his character in issue, the Crown may respond with character evidence of their own:
a. Rebuttable Reputation Witness (or cross-examination of defence reputation witness)
b. Where the accused asserts their own good character, the Crown can adduce evidence of past
conduct (specific acts) in order to rebut it.
i. And S.666
c. Rebuttal expert Witnesses
Putting Accused’s Character in Issue / Methods of Proving Character / Crown Rebuttals
>>>Three Traditional ways the accused puts his character in issue (And the Crown Rebuttals)
---------------------------------------------------------------------------------------------------------------------------------------------------------------1. By adducing evidence of good reputation: (Rowton; Levasseur)
 Where evidence of an accused’s good general reputation in the community is offered by a character witness,
the Crown may only REBUT with its own evidence of bad general reputation, NOT evidence of disposition (IE:
reference to specific acts).
o Crown may also cross-examine the character witness.
[Note: witness cannot give own opinion of accused’s character]
R v. Levasseur (Alta. CA, 1987)
 Reputation evidence for an accused person can derive from a reputation in any community so long as the
witness is familiar with the accused’s reputation because they share acquaintances.
R v. Profit (1993, SCC)
 As a matter of weight, a ToF is entitled to find that the propensity value of evidence of good reputation is
diminished in cases where the misconduct occurs in private and is not likely to be reflected in the accused’s
reputation in the community.
D: Evidence of good reputation given little weight when accused charged with sexual assault involving children.
---------------------------------------------------------------------------------------------------------------------------------------------------------------2. By testifying as to his own good character or good acts: (McNamara)
 If the accused testifies, he may give evidence of specific instances of his own good conduct (McNamara)
o Where the accused testifies to specific instances of his own good conduct, the crown is NOT confined to
only giving evidence of bad general reputation and may cross-examine the accused on prior bad acts
related to that particular disposition or call on rebuttal witnesses (McNamara)
 The Crown evidence can be used to:
o 1. REBUT the evidence of the accused’s good character; or
o 2. Show the accused has lied in their examination in chief (IE: goes to credibility).
o But CANNOT be used to show that the person was likely from his character to have committed the
offence.
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Note: Character NOT put in issue by:
 Standard introductory questioning (McNamara)
 Simply denying allegations, explaining defence, or repudiating parts of Crown case
 Responsive answers to Crown cross examination (Bricker)
R v. McNamara
 An accused’s character will be put in issue if he asserts, expressly or impliedly, that he would not have done the
things alleged against him because he is a person of good character.
D: Character in issue when responded to question: “like any company should be run, legally” (implicit = I would not
give an instruction to run the company illegally, because that’s wrong and I’m not that type of person)
NOTE: CCC, S.666 – once an accused puts his/her character in issue at trial (regardless of if accused testifies), the
Crown may adduce evidence of the previous convictions of the accused for any offence.
 S.666 allows the accused to be questioned on the specifics underlying the criminal convictions.
o Note: This is more expansive than CEA, S.12, which only allows the witness to be questioned on the
fact of having been convicted, not the substance of the conviction, when going to credibility.
---------------------------------------------------------------------------------------------------------------------------------------------------------------3. By calling expert psychiatric evidence of propensity or disposition (Robertson; Mohan)
 Expert psychiatric evidence with respect to character or disposition is admissible in limited circumstances where
the TJ is satisfied that either the perpetrator of the crime or the accused has distinctive behavioral
characteristics such that a comparison of one with the other will be of material assistance in determining
innocence or guilt (Mohan).
o Will it assist ToF? If the offence or the accused are ordinary, then anyone can assess it (Mohan)
 Recall: Mohan test for expert evidence.
R v. Robertson (1975, OCA)
 Where the crime alleged is such that only a perpetrator with distinctive characteristic would commit it, expert
psychiatric evidence showing that the accused is not such a person is admissible.
o Crown permitted to rebut this by calling own psychiatric evidence.
Accused charged with murdering 9 y/o. At trial, he tried to adduce psychiatric evidence showing that he did not have
any violent or aggressive tendencies.
D: Not admissible.
Reasoning: murder was not so brutal as to only be the work of a psychopath – and a mere disposition for violence is not
so uncommon as to constitute a characteristic of an abnormal group.
R v. Mohan (1994, SCC)
Accused charged with sexually assaulting 4 girls. Accused wanted to adduce expert psychiatrist evidence to testify that
the perpetrator of such offences would exhibit particular personality traits which the accused did not possess.
D: Not admissible. The crimes are not extraordinary and neither is the accused; absence of reliability.
R v. Morin
 Crown may NOT lead expert psychiatric evidence of propensity or disposition where the sole relevance or
primary relevance is to show disposition.
----------------------------------------------------------------------------------------------------------------------------------------------------------------
Proving Character of 3Ps: Alternate Perpetrator / Victim

In the case of third parties, there is no concern about the jury making the prohibited inference (IE: that a bad
person is more likely to be guilty of the crime charged). Thus, if the character evidence is relevant, it is likely
also admissible.
o The disposition of a 3P, if relevant and admissible, may be proved by:
 Evidence of reputation
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 Proof of specific acts
 Psychiatrict evidence
----------------------------------------------------------------------------------------------------------------------------------------------------------------
4. Character of Alternate Perpetrator



An accused may adduce character evidence tending to show that a third party committed the offence rather
than the accused (McMillan)
The disposition of the 3P to commit the offence is probative and admissible provided that there is other
evidence that establishes a sufficient connection between the 3P and the crime (McMillan; Grandinetti)
o Without this link, the evidence is neither relevant nor probative (Grandinetti)
o Must be something more than mere speculation (Grandinetti)
 IE: motive / opportunity in Mcmillan
Crown Response:
o 1. The crown may rebut the 3P character evidence with it’s own character evidence of the 3P and may
also cross-examine the accused’s character witness (McMillan)
 Can adduce reputation evidence, proof of specific facts, or psychiatric evidence of disposition
(Scopelliti)
o 2. When an accused person defends himself by pointing a finger at a third party and suggesting that
that person has a propensity to commit the crime charged, the accused will be taken to have put his
own character in issue (McMillan)
 Thus, the Crown can adduce character evidence of the accused for the purpose of neutralizing
the implicit suggestion made by the accused that he is not the type of person to commit the
offence (McMillan)
R v. McMillan
Accused charged with murder of daughter. At trial, he brings psychiatric evidence (this is pre-Mohan) that shows his
wife, who was in the house at the time of baby’s death, was a psychopath.
?: Can defence adduce character evidence of 3P? Whether Crown should be allowed to cross-examine the expert.
D: Yes. Yes.
Reasoning: law of evidence excludes character evidence not because it is irrelevant, but on policy grounds (prejudicial
effect, inefficiency). These policy grounds disspear when character in question is that of a third party. Thus evidence of
the disposition of a 3P to commit the crime in question is admissible, if relevant, to prove that the crime was committed
by the third 3P. The character evidence about the third person is relevant when the third person is connected with the
alleged crime by other circumstances (only then does it have enough PV). Here it was the wife’s opportunity to commit
the crime, and motive (comment she made “she didn’t want the baby” anyways.)
----------------------------------------------------------------------------------------------------------------------------------------------------------------
5. Character of the Deceased Victim
Where self-defence is raised, the following evidence, if relevant, is admissible for the defendant:
 1. Evidence of previous assaults towards third parties by the deceased, known to the accused.
 2. Evidence of the deceased’s reputation for violence, known to the accused.
o 1 & 2 both admissible to show accused’s reasonable apprehension of violence.
 3. Evidence of the deceased’s disposition (specific previous acts) for violence even if unknown to the accused is
admissible where there is other evidence of victim’s aggression on the occasion in question (can be the
accused’s testimony)
 Crown’s Response:
o 1. Crown may rebut the 3P character evidence with it’s own character evidence of the 3P and may also
cross-examine the accused’s character witness.
 Can adduce reputation evidence, proof of specific facts, or psychiatric evidence of disposition
(Scopelliti)
o 2. The accused call’s his own character into issue when adducing this evidence.
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
Thus, the Crown can adduce character evidence of the accused for the purpose of neutralizing
the implicit suggestion made by the accused that he is not the type of person to commit the
offence (McMillan)
----------------------------------------------------------------------------------------------------------------------------------------------------------------
6. Character of Complainant
CCC, S.276 – in proceedings with respect of [listes sexual assault offences], evidence that the complainant has engaged
in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by
reason of the sexual nature of that activity, the complainiant:
 (a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge, OR;
 (b) is less worthy of belief
Purposes: protecting the integrity of the trial by excluding misleading evidence, protecting rights of the accused,
encouraging the reporting of sexual violence and protecting the “security and privacy of the witness” (Darrach)
CCC, S.277 – in proceedings in respect of [listed sexual offences], evidence of sexual reputation, whether general or
specific, is not admissible for the purpose of challenging or supporting the credibility of the complainant.
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Similar Fact Evidence
Though presumptively indadmissible, evidence of prior bad acts by the accused will be admissible if the prosecution
satisfies the judge on a BoP that, in the context of the particular case, the probative value of the evidence in relation to a
specific issue outweighs its potential prejudice and thereby justifies its reception (Handy). SFE thus constitutes an
exception to the general rule that bad character evidence is inadmissible.
In such cases, the jury is not asked to infer from the accused’s habits or disposition that he is the type of person who
would commit the crime, but rather is asked to infer from the degree of distinctiveness of uniqueness that exists
between the commission of the crime and the similar act that the accused is the very person who committed the crime.
(Arp) The inference is only possible when the degree of similarity between the act tenders the likelihood of coincidence
objectively impossible (Arp).
1. Assesing the Probative Value
1. Identify the issue in question:
a. PV cannot be assessed in the abstract; it can only be determined in light of the purpose for which the
evidence is adduced:
i. IE: identity? Motive? Actus reus?
2. Assess the cogency of the evidence including the identification of connecting factors:
a. Required Degree of similarity:
i. The required degree of similarity depends upon the issues in the particular case, the purpose for the
the evidence is sought to be introduced and the other evidence.
ii. Identity = a high degree of similarity is required (Arp), which can be established through:
1. A highly disctinctive detail amount to a “signature”; OR
2. The cumulative effect of a number of significant similarities.
iii. Motive = a prior incident of the acused stabbing the victim may be admissible even though the
victim was ultimately shot.
b. Examine the extent to which the evidence supports the desired inference:
i. >>>1) Link to the accused:
1. There must be “some evidence” linking the accused to the alleged similar act. Although the
standard is low, evidence which discloses no more than a mere opportunity or possibility
that the accused committed the alleged similar act will not suffice to render the evidence as
admissible (Arp)
a. In Arp, a ring belonging to a murder victim was found in accused’s truck which
helped establish link to the accused.
ii. >>>2) Connectedness (nexus) between SFE and the offence charged:
1. Because SFE is admitted on the basis of objective improbability of coincidence, the evidence
primarily derives its value from the degree of similarity between the acts under
consideration (Arp).
Factors:
2. Extent to which the other acts are similar in detail to the charged conduct
3. Proximity in time between past act and current offence
a. Lapse of time opens up greater possibility of character reform (Handy)
4. Number of occurences of the similar acts
a. An alleged pattern of conduct gains strength in the number of isntances that
composes it (Handy)
5. Distinctive features unifying the events
6. Intervening events
7. Any other factor tending to support or rebut the unity of the past acts and the conduct now
in question.
3. Potential for collusion
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a. Collusion destroys the foundation on which admissibility is sought. Where there is an air of reality to an
allegation of collusion, the Crown is required to satisfy the TJ on a BoP that the SFE is not tainted with
collusion (Handy)
i. The mere opportunity for collusion is will usually be left for the jury (Shearing)
ii. In Handy, there was a potential for collusion due to the fact that the complainant had spoken to the
estranged wife BEFORE her interaction with the accused, and she had learned abou this history and
that she could get money from merely making a complaint.
4. Strength of Similar Fact Evidence (IE: that the events actually occurred)
a. Is the witness’s testimony reasonably capable of belief?
i. Credibility?
ii. Motive for deceit?
iii. Conviction? Confession?
b. In Handy, testimony of wife was reasonably capable of belief even though she delayed reporting the
incidents for several years, and only after becoming aware of other similar charges against her ex-husband.
----------------------------------------------------------------------------------------------------------------------------------------------------------------
2. Assessing the prejudicial effect of the evidence (Handy)
1. Moral prejudice
a. Risk of an unfocussed trial and a wrongful conviction where guilt is inferred from an accused’s general
disposition or propensity rather than factual proof (Handy)
b. Inflammatory potential of the similar acts
c. Seriousness of the SFE relative to the charges
i. Equivalent gravity = less risk of moral prejudice.
2. Reasoning prejudice
a. Potential confusion and distraction of the jury from the actual charge
i. Jury vs Judge?
b. Potential for undue time consumption
i. Is SFE before jury in the form of charges against the accused?
c. Limitations on accused able to respond?
d. Jury may think b/c he did it before, he’s done it again.
e. Unfairness in trial process where accused denies SFE
----------------------------------------------------------------------------------------------------------------------------------------------------------------
3. Balancing PV vs. PE
1. Starting point that SFE is presumptively inadmissible.
a. Crown must establish on a BoP that the likely probative value will outweigh the potential prejudice.
2. Not necessarily an inverse relationship between PV and PE.
3. What is the relative importance of the issue?
4. Can Crown make the point with less prejudicial evidence?
----------------------------------------------------------------------------------------------------------------------------------------------------------------
4. If admissible, special warning to jury is required
1.
2.
3.
4.
5.
Must warn jury not to rely upon the prohibited inference.
Not to punish for past conduct
Provide directions on appropriate, non-prohibited use per Arp
Direct jury on the frailties of the SFE
Where the desired inference depends upon coincidence reasoning, direct the jury to coinsider whether the
apparent coincidence can be explained away by collaboration or contamination between witnesses.
---------------------------------------------------------------------------------------------------------------------------------------------------------------Sources of SFE:
1. Charges tried together: separate acts are being tried at the same time on the same “information” or same
“indictment”.
55
a. (normally evidence relevant to one count cannot be used to support the charge in another count against
the accused. However, if the test for SFE is satisfied, then the evidence from one count can be used, as
SFE, to support the charge in the other count)
2. Past convictions: acts for which the accused has previously been convicted.
3. Uncharged acts: acts for which the accused has never been tried and is not currently being tried.
4. Stays and acquittals: ordinarily impermissible.
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H. Privilege


Although relevant, privileged communications are excluded because of overriding policy reasons (McClure)
o The exclusion of privilege is an acknowledgement by the legal system that truth is not an absolute value.
Evidence that meets the requirements of privilege is inadmissible unless the holder of the privilege waives it.
Two Types:
 “Class Privileges”
o Communications presumptively inadmissible; onus on person trying to adduce the information.
o IE: solicitor/client, informer, spousal and litigation privilege
 “Case by Case Privileges”
o Communications presumptively admissible; only privileged if the person who asserts the privilege
convinces the court its an appropriate case in which to uphold the privilege.
o IE: doctor/patient, psychologist/patient, journalist/informant, religious communications.
1. Solicitor – Client Privilege: (Class Privilege)
Policy (Foster Wheeler): preserve relationship of trust between lawyers and clients; (2) encourage and preserve full and
frank communication between lawyer and client; (3) preserve the existence and effective operation of legal system.
When does it arise?
In these conditions, privilege attaches whether or not it is claimed: (Solosky)
1. Communication must be between a solicitor and a client;
a. “solicitor” can include their agents (secretaries, students, etc.)
2. Communication must entail the seeking of legal advice;
3. Communication must be intended to be confidential
 When a government agency seeks legal advice from in-house counsel, that constitutes the seeking of legal
advice for the purposes of solicitor-client privilege (Pritchard)
 Although not every fact within a solicitor-client relationship has to do with the giving of legal advice, the fact
that information arises in this context will raise a presumption of privilege (Foster Wheeler)
---------------------------------------------------------------------------------------------------------------------------------------------------------------Exception 1. Criminal Purpose:
 Communications made in order to facilitate the commission of a crime or further any criminal purpose will not
be confidential, REGARDLESS of whether the lawyer is acting in good faith (Descoteaux)
 In order to bring about the destruction of the privilege, however, there must be something to suggest that the
advice facilitated the crime or that the lawyer otherwise became a dupe or conspirator. (Cambell)
---------------------------------------------------------------------------------------------------------------------------------------------------------------Exception 2. Public Safety:
Smith v. Jones
Lawyer refers client to doctor for assessment relevant to case. Lawyer told client consultation with doctor was
privileged. Client tells doctor plans to kidnap, rape and murder prostitutes. Doctor commenced action to disclose.
D: Yes. Solicitor-client can be breached in the interest of public safety.

Test for when public safety outweighs SCP:
o 1. Is there a clear risk to an identifiable person or group?
 Consider: evidence of long-range planning? Specific method for attack thought out? Prior history
of violence? Similarity of that prior history.
 A group or person must be ascertainable; but it can still be a large group.
o 2. Is there a risk of serious bodily harm or death?
 Serious psychological harm qualifies as bodily harm.
o 3. Is the danger imminent?
57
 Does not necessarily mean it is happening soon.
 Nature of the threat must create a sense of urgency.
 Scope of disclosure:
o Majority: limit disclosure to that indicating imminent risk. Includes past planning/future plans, and all
underlying details.
o Minority: limit disclosure to non-conscriptive evidence. This would limit disclosue to the expert’s
opinion that there is something to be concerned about. The public safety would thus be better served
not by disclosure, but by encouraging people to seek the treatment needed.
---------------------------------------------------------------------------------------------------------------------------------------------------------------Exception 3. Innocence at Stake: (McClure) – APPLIES TO OTHER PRIVILEGES AS WELL!!!
 A privilege may be infringed in a case where there is a danger that an innocent person may be wrongfully
convicted (McLure; Brown)
o However, exception only be infringed where core issues going to the guilt of the accused are involved
and there is a genuine risk of wrongful conviction (Brown)
 (McClure) Accused must establish each element on a BoP:
1. Threshold test:
a. The information sought is not available from any other admissible source.
i. Brown: voir dire to determine admissibility of evidence should come BEFORE McClure.
b. The accused is otherwise unable to raise a reasonable doubt as to guilt.
2. Substantive test – “Innocence At Stake”:
a. Stage 1: the accused must establish an evidentiary basis on which to conclude that there is a
communication that could raise a reasonable doubt to his guilt.
b. Stage 2: the judge will examine the file to determine whether there is something in the
communication that is likely to raise a reasonable doubt.
i. [Must be the ONLY way for accused to raise a reasonable doubt; not simply support his
case or bolster credibility.]
3. Limits: If accused establishes innocence is at stake, there are limits on disclosure:
a. Only what is necessary to raise a reasonable doubt, while protecting privilege as much as
possible.
b. The crown cannot “piggy-back”
c. Limited by use and derivative use immunity
i. IE: cannot be later used as direct evidence against the privilege holder in a proceeding
where he is the accused. See S.13 / S.7
Note: due to the stringent nature of the test, and because the accused must establish each element on a BoP, suceesful
McClure applications will be difficult and likely rare (Brown)
Note: the communication may still be otherwise inadmissible even after McClue due to other rules of evidence.
R v. Brown
TJ granted McLure application b/c found it likely hearsay evidence would not be admitted. D: premature – ought to
decide on admissibility of evidence before McClure application.
----------------------------------------------------------------------------------------------------------------------------------------------------------------
2. Informer Privilege (Class Privilege)




Arises when law enforcement gives explicit or implicit guarantee of confidentiality to informer in exchange for
provision of information.
Premised on duty of citizens to aid in enforcement of the law and recognition that they risk retribution by doing
so.
Concealing informer’s identity both protects informers and encourages them and others to provide information
in the future.
Note: Informer privilege subject to:
58
o
(1) innocence at stake exception – 3 situations where evidence establishes basis for exception (Scott):



o
1. Where informer is material witness and disclosure of informtant’s identity is necessary to demonstrate
the innocence of the accused;
2. Where informer acted as agent provocateur in the crime
 IE: agent of the state and accused is relying on defence of entrapment.
3. Where accused seeks to establish that a search warrant was in contravention of S.8 of the Charter and
accused needs identity of informant to show the grounds were not reasonable.
(2) public safety exception.
What does Informer Privilege Protect?: (Leipert)
 Identity of the informer
 It does NOT protect the information provided – unless releasing the information might tend to identify the
informer.
 Informant information can be in the form of direct evidence, hearsay, or exhibits provided.
Nature of Informer Privilege: (Leipert)
 Nearly absolute; overrides even the Crown’s fundamental duty to make disclosure to defence per Stinchcombe.
 Belongs to the Crown; but the Crown cannot waive it unilaterally
 Court, Crown and defence (as officers of the court) have an obligation to take steps to protect the privilege.
 NOTE: however, in R v Barros the SCC said that an accused or defence counsel can take independent
investigative steps to try to discover the informer’s identity IF those steps are lawful and are for the purpose of
making full answer and defence.
Dangers of Disclosure: (Leipert)
 Judges should be exceedingly cautious about ordering the producing of even a carefully edited tip sheet or
report for which informant privilege is claimed
 Judges should recognize that any confidence they may have about their ability to edit out information that
might disclose the identity of an informant is probably misplaced, and possible dangerously so. The court
cannot step into the shoes of the accused and decide, on the basis of his knowledge, that an informant will not
be identified.
 The accused may know that only some very small circl of persons, perhaps only one, may know an apparently
innocuous fact that is mentioned in the document.
#Leipert – Accused wanted to receive details of anonymous tip to CrimeStoppers. D: no.
----------------------------------------------------------------------------------------------------------------------------------------------------------------
3. Spousal Privilege (Class Privilege)
CEA, S.4(3) – Privilege for Martial Communications: Married spouses are not compellable to disclose any
communications made between them during the course of their marriage.
 Note: holder of the privilege is recipient of the communications, and they can waive it.
R v. Couture (2007, SCC)
 Broadens spousal privilege to cover out-of-court statements made by a spouse during the marriage to police or
other 3Ps.
 Spousal incompetency/privilege cannot be undermined by application of the principled exception to hearsay
with KGB.
4. Litigation Privilege (Class Privilege)
Rule: Parties to litigation, represented or not, must be left to prepare their contending positions in private without
adversarial interference and without fear or premature disclosure (Blank)
59
Scope:





Litigation privilege protects: (Blank)
Documents, objects, or communications, including communications with third parties.
Prepared by counsel or perosns under counsel’s direction;
For the dominant purpose of existing contemplated, or anticipated litigation;
Only until the litigation (or related litigation) ends.
But note: (Per Basi)
o Some of what is protected in the civil litigation context, such as expert reports and witness statements,
are not protected in the criminal law context.
o If the document is made for the dominant purpose of litigation, then the litigation privilege will apply in
criminal cases, subject to the right of the accused to argue that production is necessary on the basis of
his/her need to make full answer and defence.
 Standard lower than innocence at stake
5. Settlement Negotiation Privilege (Class Privilege)


Communication and information shared between parties in relation to settlement are generally protected from
disclosure.
It is a class privilege.
6. Public Interest Immunity (“Crown Privilege”)



When a public official objects to disclosure of information on the ground that disclosure would be contrary to
public interest.
In federal proceedings, now governed by SS.37 – 38.16 of the CEA.
o S.37 can also be used to address informer privilege
Federal cabinet confidences can be claimed under specific regime of s.39.
1. General Public Interest Immunity (2 choices – CL or CEA)
 Protected by s.37 and the CL.
CL:
 It is a case-by-case privilege subject to the weighing of affected interests and factors both for and against
disclosure.
 Sometimes may be used to address informer privilege situations:
o IE: people who have assisted the police, for example by providing observation posts in their home or
business, but this assistance does not, according to case law, accord these persons necessarily with the
status of an informant (Ahmad; Basi)
 (Meuckon) If the privilege is claimed in a criminal trial, the TJ must first decide whether the information might
possibly affect the outcome of the trial;
o if not, the privilege should be upheld.
o If yes, the TJ must consider whether the upholding of the claim of privilege would prevent the accused
from making full answer and defence. If so, Crown given opportunity to withdraw claim of priviledge or
enter stay of proceedings, If Crown refuses to do either, TJ may permit introduction of evidence but
impose whatever safeguards it sees appropriate
CEA, S.37: - Application for Non-Disclosure on Grounds of Specified Public Policy
 (1): Subject to ss. 38-38.16, a public official may object to the disclosure of information before the court on the
grounds of a specified public interest.
 (1.1) if an objection is made under (1), the court shall ensure that the information is not disclosed other than in
accordance with this Act
 (4.1) Unless the court have jurisdiction to hear the application concludes that the disclosure of the information
would encroach upon a specified public interest, the court may authorize by order the disclosure of the
information.
60

(5) if the court with jursidction concludes disclosure of the information would encroach upon a specified public
interest, but that the public interest in disclosure outweighs in importance the specified public interest, the
court may authorize full or partial disclosure, subject to any conditions the court considers appropriate.
---------------------------------------------------------------------------------------------------------------------------------------------------------------2. National Security Public Interest Immunity
CEA, S.38:
New regime of public interest immunity that applies to:
 “Potentially injurious information” = information of a type that, if it were disclosed to the public, could injure
international relations or national defence or national security
 “Sensitive Information” = information relating to international or national defence or national security that the
government is taking steps to safeguard.
 S.38.01 – imposes duty on participants in proceedings to notify attorney general about possible disclosure of
potentially injurious/sensitive information.
 38.06(1) – unless judge concludes disclosure would be injurious to national defence/security, the judge may
authorize the disclosure of the information.
 S.38.13 – the AG may prohibit the disclosure of information that would otherwise be disclosed after federal
court judge weighs public interest with interest of disclosure.
R v. Ahmad
 S.38 does not violate the charter because it can be interpreted to ensure that the accused either receives a fair
trial or is not tried at all (stay of proceedings under s.38.14)
---------------------------------------------------------------------------------------------------------------------------------------------------------------3. Cabinet Secrecy
 Federal cabinet subject to CL rules, but its deliberations are protected by S.39 of the CEA:
CEA, s.39:
 (1) where a minister of the Crown / clerk of Privy Council objects to disclosure of information before a court,
disclosure of that information shall be refused without examination or hearing of the information by the court.
 Under s39, the minister or clerk of the privy council must decide two things:
o 1. Is the information a cabinet confidence under s.39(1)?
o 2. Is it information that the government should protect, considering the competing interests in
disclosure and retaining confidentiality.
 A valid certificate under s.39 must:
o 1. Be executed by the clerk or minister
o 2. Relate to information in s.39(2), which includes:
 (a) memorandum presenting proposals/reccomendations to council
 (b) discussion paperpresenting policy options
 (c) agendum of council or a record of deliberations of council decisions
 (d) a record used for reflecting communications or discussions between ministers of the Crown
 (e) record which breif’s ministers of the crown on some topic
 (f) draft legislation
o 3. Be done in bona fide exercise of power (IE: not an abuse of discretion)
o 4. Be done to prevent disclosure of previously confidential information (IE: cannot be used to protect
information already disclosed)
 Babcock – the court can review the above 4 to make sure the s.39 certificate calls within the scope of the
statute, and to make sure that the clerk or minster has not abused the discretion (IE: that the certificate has not
been issued in bad faith).
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Case by Case Privilege
1. New Class Privilege?
Test: Are the policy reasons supporting a class privilege for these communications as compelling as the policy reasons
underlying solicitor-client privilege?
 IE: SCP essential to the effective operation of the legal system; lawyers legally and ethically required to
uphold and protect the public interest in the administration of justice; need for confidential advice in
prosecuting one’s rights and prepating defences against improper claims.
2. Case-by-Case
Wigmore’s test for the establishment of privilege against disclosure of communciations was adopted into Canadian
common law in Slavutych:
1. Confidential communication: the communication must originate in confidence
2. Confidneitality essential: confidentiality must be essential to the full and satisfactory maintenance of the
relationship from which the communication arises.
3. Protection of relationship important: the relationship must be one which should be sedulously fostered in
the public good.
4. Cost-benefit Analysis: If all 3 requirements are met, the court must consider whether the interests served by
protecting the communications from disclosure outweigh the interest in getting at the truth and disposing
correctly of the litigation.
a. Note: In the balancing act of step 4, the conclusion does not have to be all-or-nothing; court can
make an order for partial privilege (IE: only to degree necessary to serve the ends of the
ascertainment of truth in the trial) or edit documents/impose conditions on who can see them (M.A)
1. Religious Communications
R v. Gruenke
?: Are accused’s confessions to church pastor privileged based on a a class privilege or case-by-case privilege?
D: no class privilege for religious communications. Also doesn’t satisfy case-by-case privilege criteria.
Reasoning:
1. Class privilege for religious communication?
 Test: are the policy reasons supporting a class privilege for these communications as compelling as the policy
reasons underlying solicitor-client privilege?
o D: no; policy reasons are not essential to the effective operation of the legal system, and inextricably
linked with the justice system.
2. Case-by-Case privilege established?
 Wigmore criteria from Slavutych:
o D: No. Fails on #1. The communications were not originally confidential (IE: not intended to be
confidential). Lack of a formal “confession” was indication of parties expectations.
----------------------------------------------------------------------------------------------------------------------------------------------------------------
2. Psychiatric Counseling Records
M.A. v Ryan
D wants to see notes/reports of P’s psychiatrist.
D: majority = partial privilege in case-by-case analysis.
Application to Wigmore:
 #1 – yes; communications were confidential
o The fact that they apprehended possibility of disclosure does not necessarily negate the privilege,
otherwise privilege would seldom be found.
 #2 – yes; confidentiality is essential to continued existence and effectiveness of therapeutic relations.
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o
The fact that patient and doctor feared possibility of court-ordered disclosure in future did not negate
fact that confidentiality was essential.
 #3 – yes; society wants foster good mental health among all people, especially victims of abuse.
 #4 – fourth criteria requires the balancing of the benefits of granting the privilege against the benefits of not
granting it:
o Privlege:
 Privacy, preserves relationship for others, prevents inequality which may be perpetuate by
disclosure, prevents negative effects on other people seeking similar treatment.
o No-privilege
 Truth seeking, preventing unjust verdict.
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3. Journalist Source Privilege
R v. National Post
1. Class privilege? D: Not a class privilege for 4 reasons: immense variety and degress of professionalism among
journalists; uncertainty in the scope of a blanket privilege (IE: who can claim, who can waive); absence of workable
criteria for creation or loss; class privilege too rigid to be adapted to varied circumstances.
2. Case-by-case?
#1 & #2 – sources insistence on confidentiality as a condition precedent to disclosure is essential to privilege.
#3 – introduces some flexibility in the court’s evaluation of different sources and different types of journalists.
#4 – protection of confidence vs public interest (IE: national security; public safety; etc.)
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Protecting Privacy WITHOUT Privilege: Records in the hands of THIRD PARTIES
Note: Disclosure vs. Admissibility (IE: privilege): just because there is disclosure from the Crown or production from a
3P does not mean that the information is admissible (IE: may still be barred by privilege or other exclusions).
Note: Records held by Crown must be disclosed per Stinchcombe. But no obligation to disclose anything not in its
possession.
Two options: CL O’Connor regime or Mills/legislative regime.
1. O’Connor (3P record and accused not charged with sex offence OR not a “record”

O’Connor regime is the procedure for when:
o 1. Record in possession of a third party; AND
o 2. Accused is not charged with sex offence, or accused is charged with sex offence but the disclosure
sought is not a record pursuant to s.278.1
O’Connor Disclosure:
Stage 1:
 Court must first decide whether the document should even be produced to the judge for inspection.
 The accused must satisfy the judge that the document is likely relevant, and include specific grounds for
production in a formal written application.
o Burden is not onerous as the accused does not know the contents of the documents.
 Judge must be satisfied that: there is a reasonable possibility that the information is logically probative to an
issue at trial or to the competence of a witness to testify.
o Includes evidence probative to a material issue or evidence relating to credibility of a witness.
 There is a possibility of materiality where there is a “reasonably close temporal connection”
between the creation of the records and:
 1. The date of the alleged commission of the offence; or
 2. The decision to bring charges against the accused.
o This may be material because contains info concerning unfolding of events
underlying the complaint; reveal the use of therapy which influenced the
complainants memory of the alleged offence; contain info that bears of
complainants credibility including quality of perception of events at the time of
the events and their memory since.
Stage 2:
 Judge looks at the document to decide if it should be produced, in whole or in part, to the accused.
 In making determination judge must balance salutary and deleterious effects of a production and asks if nonproduction would be a reasonable limit on full answer and defence.
 Factors:
o Is it necessary to full answer and defence?
o Probative value of the record?
o What is the nature and extent of the reasonable expectation of privacy in the record?
o Is production premised on any discriminatory belief or bias?
o What is the potential prejudice to the third party’s dignity, privacy, or security interests?
NOTE: record holder may claim privilege, which if established, will bar the accused’s claim for disclosure (McNeil)
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2. Mills Regime (3P record and accused charged with sexual offence)
The Mills Regime is the process for determining production of 3P records of complainants in sexual assault cases.
CC, S.278.1: Defining a “Record” – any record containing personal information for which there is a reasonable
expectation of privacy, including: medical, psychiatric, therapeutic, counseling, education, employment, child welfare,
adtopion/social service records, personal journals and diaries.
CC, S.278.2(1) – “Records” are not to be disclosed except in accordance with this procedure even if the record is in
possession of Crown or police unless witness consents.
Stage 1:
1.1. “Likely Relevant”
 Onus is on the accused to satisfy the judge that the info is likely relevant.
 Accused must bring a formal written application supported by affidavit setting out the specific grounds for
production.
 S.278.3(4) – Assertions by the Accused that are not sufficient on their own to establish “likely relevance”:
o (a) that the record exists
o (b) that the record relates to medical or psychiatric treatment, therapy or counseling that the
complainant or witness has received or is receiving.
o (c) that the record relates to the incident that is the subject-matter of the proceedings
o (d) that the record may disclosre a prior inconsistent statement of the complainant or witness;
o (e) that the record may relate to the credibility of the complainant or witness;
o (f) that the record may relate to the reliability of the testimony of the complainant or witness, merely
because the complainant or witness has received/receiving psychiatrict treatment, therapy or
counseling.
o (g) that the record may reveal allegations of sexual abuse of the complainant by a person OTHER than
the accused.
o (h) that the record relates to the sexual activity of the complainant with any person.
o (i) that the record was made close in time to a complaint or to the activity that forms the subject-matter
of the charge against the accused.
1.2. “Necessary in the Interests of Justice”
S.278.5(1) requires not only that the record be “likely relevant”, but also that its production to the TJ be “necessary in
the interests of justice”. This requires a balancing of (1) the salutary and deleterious effects of the determination of the
accused’s right to make a full answer and defence (2) the right to privacy and equality of the complainant or witness and
person to whom the record relates.
 S.278.5(2) – Factors:
o (a) the extent to which the record is necessary for the accused to make a full answer and defence
o (b) the probative value of the record
o (c) the nature and extent of the reasonable expectation of privacy with respect to the record
o (d) whether production of the record is based on a discriminatory belief or bias;
o (e) the potential prejudice to the personal dignity and right to privacy of any person to whom the record
relates;
o (f) society’s interest in encouraging the reporting of sexual offences;
o (g) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences;
o (h) the effect of the determination of the integrity of the trial process.
Stage 2:
 S.278.7(2) requires that the judge look at the records and then assess whether they should be produced to the
accused. This requires another balancing relying once again on the factors of S.278.5(2).
 The judge may then make a final decision as to disclosure and may impose any terms and conditions as seen
necessary.
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Pre-Trial Discovery Records / Implied Undertaking
Doucette
 Rule: Documentary and oral evidence obtained on discovery, including information thought by one of the
parties to disclose some sort of criminal conduct, is subject to an implied undertaking
o It is not to be used by the other parties except for the purpose of that litigation, inless and until the
scope of the undertaking is varied by a court order or a situation of immediate and serious danger
emerges.
 Rationale: pre-trial discovery = invasion of privacy. Public interest in getting the truth is outweighed by the
examinee’s privacy interest, but the latter is nonetheless entitled to a measure of protection.
 Exception:
o Onus on applicant to demonstrate a superior public interest in disclosure and an undertaking should
only be set aside in exceptional circumstances.
 1. Public safety exception.
 2. deponent has given contradictory testimony about the same matters in different
proceedings.
 3. The public interest in investigating crime is not always sufficient to relieve against the
undertaking. Will depend on the facts.
Criminal Context
 Accused who receives disclosure material pursuant to the Crown’s Stinchcombe obligations, or to a court order,
does so subject to an implied undertaking not to disclose its contents for any purpose other than making full
answer and defence in the proceeding (Basi)
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I) Statements by the Accused and the Exclusion of Evidence
Privilege against Self-Incrimination
CHARTER:
S.11(c) – Ay person charged with an offence has the right not to be compelled to be a witness in their own trial.
S.11(d) – any person charged with the offence has the right to be presumed innocent until proven guilty according to
law in a fair and public hearing by an independent and impartial tribunal.
---------------------------------------------------------------------------------------------------------------------------------------------------------------CEA, S.5(1) [and BCEA, S.4(2)] – no witness shall be excused from answering any question on the ground that the
answer to the question may INCRIMINATE him (or establish liability in civil proceedings)
 Overruled CL right for witnesses to refuse to answer questions during testimony which would tend to
incriminate them.
CEA, S.5(2) [and BCEA, S.4(3) – with respect to any question a witness objects to answer under (1), the answer given is
inadmissible in evidence against him in any criminal trial (or civil proceedings), other than a prosecution for perjury or
for the giving of contradictory evidence.
= while witnesses can still be prosecuted for the offences their testimony reveals, the incriminating answers they give
cannot be used against them in subsequent prosecution for ANY purpose.
Note: must invoke s.5 to get protection.
Note: non-incriminating answers can still be used against witness subsequently. “Incriminating” = incriminating at time
of testimony.
----------------------------------------------------------------------------------------------------------------------------------------------------------------
S.13 – (Burden on Crown)
Charter S.13 – Self-Incrimination – 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: (1) perjury or
(2) for the giving of contradictory evidence.
NOTE: s.13 only applies to witnesses subsequently being prosecuted.
NOTE: s.13 not available to an accused who chooses to testify at retrial on the same indictment (Henry)
R v. Henry (Partially Overruled)
Clarification of S.13:
1. if the accused DOES NOT testify at his trial, his testimony from an earlier proceeding CANNOT be used against
him at the trial, regardless of whether he was the accused OR merely a witness at the earlier proceeding.
2. If the accused DOES TESTIFY at his trial, his testimony from an earlier proceeding CANNOT BE USED against him
at that trial IF HE WAS COMPELLABLE as a witness at the earlier proceeding.
3. If the accused DOES TESTIFY at his trial, his testimony from an earlier proceeding CAN BE USED to cross-examine
him at that trial provided HE WAS NOT COMPELLABLE as a witness at the earlier proceeding (either for the
purpose of impeaching credibility or proving guilt).
R v. Nedelcu (SCC, 2012)
 If the accused DOES TESTIFY at his trial, his testimony from an earlier proceeding CAN BE USED against him at
that trial even where he WAS COMPELLABLE as a witness at the earlier proceedings, but only where the
evidence is NOT “INCRIMINATING”.
o = cannot be used by ToF to infer accused’s guilt on charge being tried.
o The use of non-incriminating compellable evidence from the first proceeding merely for impeaching in
the second proceeding does not, on its own, convert it into incriminating evidence.
D: compellable evidence given by an accused in a civil pre-trial discovery may be used to impeach the accused.
Reasoning: S.13 does NOT apply to “any” evidence the accused may have been compelled to give at a previous
proceeding.
 It only applies to “incriminating” evidence (compellable or not) from a prior proceeding.
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
“Incriminating” means evidence the Crown could use at the subsequent proceding, if permitted to do so, to
prove the witness’ guilt on the charge being tried.
 The time to determine whether it is “incriminating” is when the Crown seeks to use it at the subsequent
proceeding.
 Using an accused’s evidence from prior proceeding (including discovery) merely to test credibility, does NOT
convert it into incriminating evidence.
Criticism:
 Further erosion of the right against self-incrimination which has been described by the SCC as the “single most
important” organizing principle of our criminal justice system.
 Distinction between “incriminating” evidence and impeaching a witness’s credibility is meaningless and arbitrary.
o Impeaching witness’s credibility necessarily helps the Crown.
o Henry changed this by eliminating confusion and distinction between use of prior evidence for
compulsion as opposed to incrimination.
 Henry = where accused compelled to testify at earlier occasion, that evidence couldnot be used
for any purpose at the accused’s subsequent trial.
 Without knowing in advance how their evidence might be used in future proceedings, witnesses will undoubtedly
be less likely to display honesty.
o Will also lead to people trying to delay criminal trials until after civil proceedings.
 Jurisprudence/development leading up to Henry was established.
o Now uncertainty between “incrimination” vs. credibility distinction.
S.7 Protections (BURDEN FALLS ON CLAIMANT on a BoP)
Charter, S.7 – everyone has the right to life, liberty and security of the person and the right not to be deprived thereof
EXCEPT in accordance with the principles of fundamental justice.
Note: s.13/s.5(2) do not immunize evidence derived from a witness’s self-incriminating testimony. But S.7 covers that.
In limited circumstances, S.7 may provide the following protections against self-incrimination:

1. Use immunity (Same effect as S.13 and S.5(2) – serves to protect the individual from having the compelled incriminating
testimony used directly against him/her in a subsequent proceeding.

**2. Derivative use immunity – Evidence derived from the self-incriminating testimony of a
compellable witness is not subsequently admissible in a proceeding against that person, unless that
evidence was discoverable through other means.. (R v. S.(R.J.))

3. Constitutional exemption – provides a form of complete immunity from testifying where proceedings are undertaken or
predominantly used to obtain evidence for the prosecution of the witness (Very Rare)
R v. S.(R.J.)
 Question to ask: practically speaking, would the evidence, on the facts, have otherwise come to light? Burden
shifts to Crown on a BoP: If yes, Crown can use it. If no, Crown cannot use it (it will likely be excluded pursuant
to s.24(2) of the Charter).
RJS and JPM were charged with the same offence, but indicted and tried separately. The Crown tried to call JPM in RJS’
trial to provide evidence against him. KPM argued that this violated his right against self-incrimination.
?: Can KPM be compelled to testify at RJS’ trial?
D: Yes, but JPM entitled to immunities regarding the use of evidence against him.
Reasoning:
 In subsequent proceedings against JPM, if he testifies he is entitled to use immunity for any incriminating
statements he made at the previous trial (S.13 Charter; Nedelcu).
 He is also entitled to derivative use immunity for his previous statements at trial.
o IE: JPM’s evidence cannot be used to find more evidence [IE: physical evidence] that the Crown would
otherwise NOT have discovered] (S.7)
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NOTE: If MCLURE APPLICATION, THAN PERSON IS COMPELLED, thus use/derivative privilege apply.
 Because they are not testifying or the accused, cannot claim the right not to testify under s.11(c) or the
protection of S.13 of the Charter.
 But the immunity of the privilege holder can still be addressed by the broader principles of fundamental justice
inherent in S.7 of the Charter.
 The privilege holder whose information is disclosed pursuant to a McClure application gets use immunity and
derivative use immunity.
 Thus, these communications cannot be used in subsequent cases against the privilege holder as direct evience,
or from impeaching his credibility.
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Statements of the Accused Made to Others
Sources of Statements:
1. Non-state actors (friends, family, etc.)
2. Police or other “persons in authority”
3. Undercover police officers or police agents
4. Secret recording (audio or video) by
a. police or other state actors
b. non-state actors
Admissibility Issues with Statements of the Accused:
1. Hearsay (but party admissions exception)
2. Common law Confession Rule (CLCR) – voluntariness; [Derivative Evidence = Admissible]
3. S.7 – Right to Silence
4. S.10(b) – Right to Counsel
Common Law Confession Rule (Onus on Crown, BaRD)
No statement made by an accused to a (1) person in authority is admissible unless the Crown can establish, BaRD [voir
dire], that the accused’s choice to speak was (2) voluntary in the sense that it was not overborne by threats,
inducements, oppressive circumstances, or the lack of an operating mind (Oickle).
In addition, police trickery that would “shock the conscience of the community” may also prevent the admission of an
accused statement to a person in authority (Rothman)
 Pretending to be truck driver to secure conviction of trafficker = NOT shocking
 Pretending to be a drug addict to catch dealers = NOT shocking
A) “Person In Authority” – In Rothman, the court established that the test for a “person in authority” is subjective. The
question is not whether the person is in fact a police agent, but whether the accused held a reasonable belief that the
person was a police agent.
 Undercover: Thus, right to silence not protected if accused does not believe that the person is a PO (Rothman)
B) “Voluntary”
Factors: The factors must be looked at together in a contextual anlaysis (Oickle)
 Threats / Promises acting as inducements that overbear the accused’s free will
o While a quid pro quo is an important factor in establishing the existence of a threat or promise, it is the
strength of the inducement that is to be considered in the analysis (Spencer)
 Oppressive circumstances: (Oickle)
o Deprivation of food, clothing, water, sleep, medical attention
o Denying access to counsel
o Excessively aggressive, intimidating questioning for a prolonged period.
o Fabrication of evidence in combination with other factors.
o

In Serack, clothing of accused taken and given blanket for 8 hours = oppressive = inadmissible
Operating mind: An accused will only fail to have an operating mind if he/she does not possess the limited
degree of cognitive ability necessary to understand what he is saying or to comprehend that his statements may
be used to his detriment (Oickle). There mere fact of having a mental illness is insufficient (Whittle)
Conclusion: If a confession is involuntary per Oickle, it is inadmissible at CL and therefore there is no need to look at the
Charter or the application of Grant.
---------------------------------------------------------------------------------------------------------------------------------------------------------------#Spencer – not allowing accused to see GF until at least partial confession given was an inducement, BUT not strong
enough to render the accused’s statements inadmissible.
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S.7 Charter - Right to Silence (Onus on accused on BoP)
S.7 – everyone has the right to life, liberty, and security of the person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
Hebert
 An accused’s right to choose whether to speak or remain silent before trial is a principle of fundamental justice
enshrined in s.7.
 Limitations:
o Charter right to silence applies only AFTER detention/arrest.
o Police MAY question and persuade accused to speak AFTER he has been given opportunity to retain
counsel, so long as they do not deprive him of his right to speak or not to speak.
o Right does not affect voluntary statements made to fellow cell-mates
o Undercover: Undercover police may observe accused in cells, but cannot actively elicit so as to
undermine the accused’s choice to remain silent.
Singh

Police persuasion short of preventing the accused from exercising his right to choose, or removing from the
accused an operating mind, will not violate the Charter.
o IE: If accused gives a voluntary statement to police after retaining counsel and police repeatedly
question him, even after he informs them he wishes to remain silent, the confession is valid and s.7
rights are not infringed.
Note: “Agent of the state” determined objectively.||| Note: S.24 analysis ||| Note: Onus on Accused on BoP
--------------------------------------------------------------------------------------------------------------------------------------------------------------->>>> Where Accused Does Remain Silent
 The CL right to remain silent applies any time the accused interacts with a person in authority. Given this, an
accused’s decision to remain silent is irrelevant and the Crown cannot prove the silence of the accused as part of
its case in chief or when cross-examining the accused. The ToF cannot use an accused’s silence to support any
adverse inference against the accused (Turcotte). Furthermore, an accused’s silence is not post-offence conduct
(Turcotte).
o But note, In Turcotte the ToF learned of accused’s silence b/c was necessary as part of witness narrative.
o Note: (Noble Alibi exception – silence may be used as adverse inference)
S. 10(b) – Right to Counsel (Onus on accused on BoP)
Charter, S.10(b): “everyone has the right on arrest or detention…to retain and instruct counsel without delay and be
informed of that right.”
 S.10(b) supports detainee’s s.7 right to choose whether or not to cooperate with the police.
Sinclair:
 Normally, a single consultation at the time of detention/arrest or shortly thereafter, satisfies an accused’s
s.10(b) rights.
o There is no right to repeated consultations
 Once accused has requested to consult counsel, police have a duty to cease questioning or attempting to illicit
evidence from the accused until that person has had a reasonable opportunity to retain and instruct counsel.
 However, if circumstances change a second consultation may be required.
o IE: new procedures involving detainee;
o IE: a change in the jeopardy facing the detainee;
o IE: reason to believe that the detainee may not have understood the initial advice of the right to counsel
Note: “Agent of the state” determined objectively.||| Note: S.24 analysis ||| Note: Onus on Accused on BoP
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Exclusions Pursuant to S.24(2)
S.24(1): anyone whose rights or freedoms have been infringed or denied may apply to a court of competent jurisdiction to obtain a
remedy.
S.24(2): where, in a proceeding under (1), the court concludes that evidence was obtained in a manner that infringed or denied any
rights or freedoms guaranteed by the Charter, the evidence shall be excluded if it is established that, having regard to all the
circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
S.24(2) of the Charter provides that when a court concludes evidence was obtained in a manner that violates an
individual’s constitutional rights or freedoms, it shall be excluded if it is established that, having regard to all the
circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
“Obtained in a Manner”
 Requires that applicant establish a connection between Charter breach and the discovery of the evidence.
o It is not necessary to establish a strict causal relationship (Wittwer)
o So long as the discovery of the evidence is part of the “chain of events during which the Charter
violation occurred”, and the connection is not too remote, it can be said that the evidence was obtained
in a manner that infringed the Charter (Strachan)
 In Strachan: IE: valid search warrant; find drugs; but no s.10(b) right to counsel = Charter
violation, b/c part of same transaction: the search of the home
 IE: police learn of witness during an unconstitutional search = too remote (Goldhart)
o Consider: temporal/contextual factors.
o The link can be broken due to intervening events.
 In Ouellette, police failed to read s.10(b) rights, but accused did in fact speak to a lawyer.
Subsequently failed breath test. D: intervening event broke chain.
 In Wittwer, accused gave confession before being given s.10(b) right to counsel warning. Police
realized error, and he was given a proper warning. He then made “new” statements which
Crown wanted to present as evidence. D: the fact that accused said nothing until new officer
mentioned he was aware of first statement left the temporal link intact between the initial
breach and ultimate statement = not admissibe.
Classification of Evidence:
1. Conscriptive evidence – Accused is compelled to incriminate himself in violation of his charter rights by means
of a statement, the use or the body or the production of bodily smaples (Stillman)
2. Derivative evidence (subset of conscriptive evidence): evidence is derivative when it is discovered as the result
of the finding of other unconstitutionally obtained evidence.
a. IE: accused conscripted against self, leading to discovery of real evidence.
3. Otherwise discoverable – evidence which could have been discovered by alternative non-conscriptive means or
would have inevitably been discovered.
R v. Cote:
Re; Seriousness: the more serious the state conduct constituting the Charter breach, the greater the need for courts to
distance themselves from that conduct by excluding evidence linked to the conduct.
Re; Impact: the more serious the impact on the accused’s constitutional rights, the more the admission of the evidence
is likely to bring the administration of justice into disrepute.
Reliability/Importance to Crown’s Case: the reliability of the evidence and its importantce to the prosecution’s case are
key factors.
 Admitting evidence of questionable reliability is more likely to bring the administration of justice into disrepute
where it form’s the whole of the prosecutions case.
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
But, excluding highly reliable evidence may more negatively affect the truth seeking function of the criminal law
process where the effect is to “gut” the prosecutions case.
Re; Discoverability:
 If police could have conducted search legally but failed to obtain a warrant the seriousness of the state conduct
is heightened.
 If search could not have occurred legally, it is considerably MORE intrusive of the individual’s REOP.
o But, the fact that police could have obtained a warrant will tend to lessen the impact of the illegal search
on the accused’s privacy and dignity interests protected by the Charter.
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J) Real & Demonstrative Evidence||| & Proof Without Evidence
Formal Admission (IE: Guilty Plea)
Guilty Plea (Formal Admission):
 Accused admits to committing crime and a convicting is entered into without any trial.
 Accused relieves Crown of the burden to prove guilt BaRD, abandons his non-compellability as a witness and his
right to remain silent and surrenders his right to offer full answer and defence to a charge (Castellani)
Other Formal Admissions:
CCC, S.655 – 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.
 A formal admission dispenses with the need to prove a fact in issue.
 If an accused makes a formal admission, the issue is no longer in dispute and thus evidence cannot be adduced
which is solely relevant to that undisputed issue (Proctor)
 Once a formal admission is made, the accused cannot contradict it without leave of the court to withdraw the
admission (Korski)
 Admissions must be first accepted by Crown; however, Crown is not entitled to refuse acceptance where its
purpose in doing is to keep an issue alive artificially (Proctor)
 If it becomes apparent that the parties did not actually agree upon the same facts, and that inconsistency relates
to a material matter essential in the proceeding, more evidence is admissible notwithstanding a previous formal
admission (Korski)
o Formal admissions that are “merely agreements as to what the witnesses would have said, not that
what they say is necessarily true”, are not valid formal admissions (Korski)
Views
CCC, S.652 - the judge may, where it appears to be in the interests of justice, at any time after the jury has been sworn
BUT before it gives its verdict, direct the jury to have a view of any place, thing or person and shall give directions
respecting how they are shown to the jury.
 IE: in order to better understand the evidence.
 The observations of the ToF made during a view were evidence (Meyers; P&S)
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Real and Demonstrative Evidence
Real evidence = tangible items exhibited to the ToF.
 Can be directly linked to the occurrence (Real evidence) or may be “demonstrative” (IE: aids to illustrate or
explain).
 Demonstrative evidence is a testimonial aid and is not original evidence of what occurred.
Admissibility:
1. Real evidence must be relevant and material.
 Not relevant if does not go to a material fact in issue.
2. Authenticated under oath by witness capable of doing so;
 TJ must be satisfied that there is any evidence to support the conclusion that the item of real evidence is
what the party claims (Andrade)
o ToF ultimately weighs evidence to determine whether it is authentic
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If Crime Scene Evidence:
o Crown is under obligation to establish “continuity” of the real evidence so not to raise a reasonable
doubt about the exhibit’s integrity (Andrade; MacPherson)
 However, the case law establish there is no duty upon the Crown to show deailed continuity
of the location and handling of the exhibits from the time of seizure (MacPherson)
 Breaks in continuity reduce the weight of the evidence which is for the ToF to decide.
 Circumstantial evidence may point to authenticity of real evidence (Staniforth)
#Staniforth – claimants could not identify knife itself, but could identify where knife was placed (in bedroom – which
was an odd location) = sufficient authentication.
R v Patterson
Counsel for accused raise issue of complainant’s demeanour during recorded police interview. He played portions of
the tape.
D: ToF allowed to watch the whole videotape, as was necessary to see whole interview to make proper assessment
about complainant’s demeanour. Jury should be charged with potential misuse of video, but can be avoided by clear
cautionary instructions.
3. Not subject to an exclusionary rule
4. PV vs PE
 IE: PE – inflaming emotional passions, or misleading ToF.
 In Muchikekwanape, photos (real evidence) of gruesome murder ADMISISBLE b/c defence claimed victim
“fell” off bridge, whereas Crown claimed she was beaten to death first (IE: PV > PE)
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Documents
Best evidence rule: Where a party has the original document (including video/tape) and could produce it, it is generally
required that the original document be tendered to prove the contents of that document (Cotroni)
 Courts will apply the rule with flexibility and may allow non-original documents if the party adducing the
evidence satisfies the original was lost, destroyed, or otherwise cannot be obtained (Cotroni)
Authentication: Documents may be authenticated in a number of ways: (Pitre)
 Calling writer
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Calling witness who saw document signed
Calling witness who is familiar with writer’s handwriting (IE: regular correspondence)
Calling of experts
Through admission of other party
Circumstantial evidence may also point to the authenticity of a document (see Staniforth above)
Note: If opinion is being given as to authenticity, see: Lay opinion or expert opinion evidence
---------------------------------------------------------------------------------------------------------------------------------------------------------------1. Handwriting Identification: (Note: hearsay?; admissible under Party Admission or other exceptions?)
#Pitre – D: 2 post cards and 2 letters unanswered, without any indication as to their contents, or any circumstances
brought out which indicate that the witness had reasonable to believe that they were actually the handwriting of the
accused = insufficient authentication = inadmissible.
CEA, s.8 [& BCEA, S.45] – provides that evidence of comparison of handwriting may be submitted as proof of
identification of handwriting.
 A ToF may compare handwriting without expert or lay witness assistance (Adam)
 However, a ToF cannot compare handwriting without official notice being given to all counsel (Adam)
o Opposing party should be able to present their own evidence or argue there were significant
dissimilarities (Adam)
---------------------------------------------------------------------------------------------------------------------------------------------------------------2. Computer Generated Documents (NOTE: hearsay? admissible under business records exception?)
1. Crown must first prove authenticity (and relevancy/materiality/PV v PE)
2. Crown must establish that electronic document satisfy the best evidence rule and therefore is admissible (Morgan)
 To do this, must comply with CEA S.31.2:
o (1) proof of integrity of the electronic documents system;
o (2) despite (1) and in the absence of evidence to the contrary, an electronic document in the form of a
printout if the printout has been consistently acted or relied on, or used as a record of the information
recorded or stored in the printout.
Photographs and Videotapes
Admissibility:
1. Relevant & Material
2. Authenticated – (Schaffner) verified on oath by any competent person who is capable of testifying that the
video/photo:
 (a) accurately represents the facts; AND
 (b) is fair, with no intent to mislead
 #Maloney – slow motion shots of fight inadmissible b/c distrorted true reality of events
3. not subject to an exclusionary rule
4. PV outweighs PE
R v. Nikolovski
 A video tape of sufficient quality and clarity, once authenticated, can stand on its own as a “silent witness”
without the need for corroboration from a witness (IE: sufficient probative value)
 Althought it is open to ToF to make conclusions as to identity based soley on a videotape, they must be
instructed to consider the significane of doing so and consider the clarity/quality.
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Re-Enactments/Experiments – DEMONSTRATIVE EVIDENCE
Walizadah
 Case by case analysis – courts should be very careful before admitting such evidence
 Overriding principle is whether PE of video re-enactment outweighs its PV
 Considerations for PV vs PE:
o Relevancy, accuracy (standard of perfection not expected), fairness, necessity, and whether what it
portrays can be verified under oath.
 The relevance usually depends on the degree of similarity between the replication and the
original event (Collins)
o Probative value rests on the accuracy of its re-enactment of un-disputed facts. The more a video relies
on disputed facts, the less probative it becomes (McDonald)
#Walizadah – videos were relevant and material, re-enactments fairly accurate, videos did not portray a one-sided
account of disputed facts (presented several different scenarios) = ADMISSIBLE.
#McDonald – video was inaccurate (different day of year, different location, different speed, different vehicle = lacked
PV) and one sided = highly prejudicial. It permitted Crown to put before Jury its own neatly distilled version of what
occurred. Note: did video violate hearsay/prior consistent statements rule??
Diagrams / Sketches
Admission of a diagram:
 1. Witness familiar with scene, location, or structure, as it appeared at the relevant time, can swear that the
diagram/sketch/map is a fair representation.
 2. Diagram would assist the witness in giving evidence.
Summaries
Foundation for Admissibility of Summaries:
1. original documents are so voluminous they cannot be convenient examined in court
2. witness has examined the original data
3. witness is qualified to produce a summary of the info and did produce it
4. exhibit is fair and accurate summary of the underlying information.
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Judicial Notice
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JN is an excpetion to the general rule that a court is not supposed to know anything until it is proven in the court
of the litigation between the parties.
Under certain circumstances a judge may take notice of a fact despite a lack of relevant and admissible
evidence.
o Adjudicative Facts = those specific facts to be determined in the llitigation between the parties.
o Legislative Facts = broad, general facts about social, economic, and cultural context that establish the
purpose & background of legislation or decisions about judicial policy (Spence)
o Social Framework Facts = broad, general facts about social, economic and cultural context used to aid in
the fact finding.
 IE: they assist in determining questions of law.
Morgan Test:
A court may take judicial notice of adjudicative facts that are either:
 1. Notorious – so notorious or generally accepted as not to be the subject of dabte among reasonable people;
OR
 2. Readily Verifiable – capable of immediate and accurate demonstration by resord to readily accessible
sources of indisputable accuracy.
Spence – 3 Factors to Consider:
1. How close is the fact to the center of the controversy?
2. Are the facts adjudicative, legislative or social science based?
a. For legislative/social science, Morgan test is relevant, but not determinative.
b. For adjudicative, Morgan test is the “gold standard” and must be met
3. What is the degree of doubt surrounding the fact
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