EVIDENCE OUTLINE: LAW 309 JUK FALL 2012
EVIDENCE Basics ................................................................................................................................................. 5
The Fundamental Rule ........................................................................................................................................ 5
Sources of Evidence Law.................................................................................................................................... 5
Burden and Quantum of Proof ............................................................................................................................ 5
Civil Proceedings: ....................................................................................................................................... 6
Criminal Proceedings: ................................................................................................................................. 6
WITNESSES: COMPETENCY AND COMPELLABILITY ............................................................................ 8
The Oath...................................................................................................................................................... 8
Spousal Competency................................................................................................................................... 9
Competency of Children/Mental Incompetents ........................................................................................ 10
The Accused: Compellability, Silence or Failure to Testify..................................................................... 11
Rules in CEA, Charter .............................................................................................................................. 11
RELEVANCE/MATERIALITY and PROBATIVE VALUE/PREJUDICIAL EFFECT ................................ 12
Relevance and Materiality ........................................................................................................................ 12
Probative Value and Prejudicial Effect ..................................................................................................... 14
Prejudicial Effect in Sexual Offences Seaboyer ....................................................................................... 14
Intrinsic Exclusionary Rules ................................................................................................................................. 18
HEARSAY........................................................................................................................................................ 18
The Hearsay Analysis ............................................................................................................................... 18
Testimonial Factors Baldree, McCormick text ........................................................................................ 18
Primary Criteria for Admissibility (Wigmore’s Ordering Principles) ...................................................... 18
Non-Hearsay Words.................................................................................................................................. 19
Implied Assertions and Hearsay by Conduct ............................................................................................ 19
Traditional Exceptions to Hearsay Rule ........................................................................................................... 20
1. Party Admissions Exception ................................................................................................................. 20
2. Res Gestae, Spontaneous Utterances, & Dying Declarations ............................................................... 21
3. Statements Against Pecuniary and Penal Interest ................................................................................. 23
4. Business Records (Declarations in Course of Duty)............................................................................. 24
5. Testimony in Prior Judicial Proceedings .............................................................................................. 25
6. Prior Criminal Convictions ................................................................................................................... 25
7. Statements Concerning Bodily and Mental Condition ......................................................................... 25
8. Statements of Intention ......................................................................................................................... 26
Principled Approach to Hearsay ....................................................................................................................... 27
R v. Post Principled Approach Summary ................................................................................................. 27
OPINION EVIDENCE ................................................................................................................................. 31
The General Exclusionary Rule ................................................................................................................ 31
Lay Opinion Exception ............................................................................................................................. 31
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EVIDENCE OUTLINE: LAW 309 JUK FALL 2012
Expert Opinion Exception......................................................................................................................... 31
The Mohan test for admitting expert opinion evidence ............................................................................ 32
Essential Features of New Expert Rules ................................................................................................... 33
CREDIBILITY – Goes to “witnesses”, though could be classed as exclusionary rule .................................... 35
Credibility and Reliability......................................................................................................................... 35
Assessing Credibility and Demeanour ...................................................................................................... 35
Examination of a Witness ......................................................................................................................... 36
Refreshing and Recording Memory .......................................................................................................... 36
Assessing the Credibility of Child Witnesses R v. W(R), R v. B(G) ....................................................... 37
Supporting Your Witnesses’ Credibility ....................................................................................................... 37
General Rule Against Oath-Helping ......................................................................................................... 37
Exceptions: 1. Expert evidence ................................................................................................................. 37
2. Accused’s reputation for veracity ......................................................................................................... 38
3. Prior consistent statements .................................................................................................................... 38
4. Narrative/rebuttal .................................................................................................................................. 39
5. Statutory Exception to Rule Against Oath Helping .............................................................................. 39
6. Recent Complaint/Fabrication in Sexual Assault Cases ....................................................................... 39
Impeaching Credibility Other Side’s Witness .............................................................................................. 40
1. Expert Evidence .................................................................................................................................... 40
2. Witness’s Bad Reputation for Veracity (Truthfulness) ........................................................................ 40
3. Prior Inconsistent Statements: Other party’s witness ........................................................................... 41
4. Prior Conviction .................................................................................................................................... 41
5. Bias or corruption ................................................................................................................................. 42
6. Direct Examination ............................................................................................................................... 42
7. Cross-Examination................................................................................................................................ 42
Collateral Facts Bar – Exclusionary Rule Phipson (Adopted by SCC) ........................................................ 44
Other Credibility Issues ................................................................................................................................ 45
1. Impeaching Own witness ...................................................................................................................... 45
Adverse Witness: ...................................................................................................................................... 46
2. Corroboration ........................................................................................................................................ 47
3. Accused as Witness (see above) ........................................................................................................... 48
CHARACTER EVIDENCE ............................................................................................................................. 48
Character Evidence and the Accused ............................................................................................................ 48
Putting Accused’s Character in Issue ....................................................................................................... 49
Character of 3rd Parties and Victims ............................................................................................................. 52
Character of victims in sexual assault cases: ............................................................................................ 52
Character of victims in self-defence: ........................................................................................................ 53
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EVIDENCE OUTLINE: LAW 309 JUK FALL 2012
Similar Fact Evidence Rule & Character ...................................................................................................... 54
Process for admitting SFE ........................................................................................................................ 54
Character and SFE in civil cases ............................................................................................................... 57
Extrinsic Exclusionary Rules (Policy Based) ....................................................................................................... 58
PRIVILEGE (exclusionary rule)....................................................................................................................... 58
Class Privilege .............................................................................................................................................. 58
Solicitor-Client Privilege .......................................................................................................................... 58
Exceptions to Solicitor-Client Privilege: Criminal Purpose, Public Safety, Innocence at Stake ............. 59
Litigation Privilege ................................................................................................................................... 61
Marital Privilege ....................................................................................................................................... 61
Settlement Negotiation Privilege “Without Prejudice” ............................................................................ 62
Informer Privilege ..................................................................................................................................... 62
Case-By-Case Privilege ................................................................................................................................ 63
Religious Communications Privilege ....................................................................................................... 63
Journalistic Privilege ................................................................................................................................. 63
Psychiatric Records Privilege ................................................................................................................... 64
Public Interest Immunity or “Crown Privilege” ....................................................................................... 64
s.37 CEA Disclosure and Public Interest .................................................................................................. 65
s.38-38.16 CEA National Security............................................................................................................ 65
s.39 CEA Cabinet Secrecy ........................................................................................................................ 66
Third Party Privacy: Protecting Privacy Without Privilege .......................................................................... 67
O’Connor Disclosure Regime: .................................................................................................................. 67
Mills Regime:............................................................................................................................................ 68
Implied Undertakings.................................................................................................................................... 69
Privilege Against Self-Incrimination ............................................................................................................ 69
s.5 CEA ..................................................................................................................................................... 69
s. 13 Charter .............................................................................................................................................. 70
s.7 Charter ................................................................................................................................................. 70
Statements by the Accused ............................................................................................................................... 72
The Common Law Confession Rule ............................................................................................................. 72
Person in Authority ................................................................................................................................... 72
The Voir Dire ............................................................................................................................................ 72
Voluntariness Considerations Oickle ........................................................................................................ 72
Right to Silence and Improperly Obtained Evidence ................................................................................... 74
s.10(b) Charter: Right to Counsel ............................................................................................................. 74
s.7 Charter: Right to Silence ..................................................................................................................... 74
Common Law Right to Silence ................................................................................................................. 76
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EVIDENCE OUTLINE: LAW 309 JUK FALL 2012
s.24(2) Charter Exclusion ......................................................................................................................... 76
Real and Demonstrative Evidence: Non-Testimonial Means of Proof ............................................................. 78
s.655 Criminal Code Admissions at trial .................................................................................................. 78
Admissions: BC Civil Rules ..................................................................................................................... 78
s.652 Views ............................................................................................................................................... 79
Admission of Real and Demonstrative Evidence ..................................................................................... 79
Admission of Documents .......................................................................................................................... 80
Photos and Videos..................................................................................................................................... 81
Judicial Notice .............................................................................................................................................. 82
Keep Four Concepts Distinct: ............................................................................................................................... 83
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EVIDENCE OUTLINE: LAW 309 JUK FALL 2012
EVIDENCE Basics
The Fundamental Rule
All relevant evidence is admissible unless subject to an exclusionary rule
 Intrinsic exclusionary rule: probative value outweighed by prejudicial effect
 Extrinsic exclusionary rule: relevant but there are policy reasons for exclusion (Charter, privilege)
Process for exclusion:
1. Is the evidence relevant:
a. Is it factually relevant?
b. Is it materially/legally relevant? [see page 8 test, show work for relevance if asked admissibility]
2. Is the evidence admissible on the ground of law or policy
3. Does the prejudicial effect outweigh its probative value
Objectives of Evidence Law:
1. Search for truth – especially in how we get info from witnesses
2. Ensuring a fair trial
3. Efficiency of trial process
4. Protecting other social values
Admissibility and Weight
Where evidence is admissible, the trier of fact may, but is not required to, accept, believe or draw inferences from any
specific piece of evidence – trier of fact determined weight given to evidence
Sources of Evidence Law



Common Law:
o Particular facts and situations drive need for rules of evidence
o Accepted that police drive may decisions
o Achieve dual ends of truth and fairness
Statutes
o Not a comprehensive code: Canada Evidence Act, BC Evidence Act, Criminal Code
o Rule particular to specific proceedings
Constitution
o Charter or Constitution will exclude evidence that was gather on basis of a violation of a right
Burden and Quantum of Proof
Burden and quantum/standard of proof provide trier of fact with a way of resolving close cases
Persuasive burden
Burden on the party who, in law, is required to establish the relevant facts to succeed
If case is too close to call, party that bears persuasive burden loses; decide “too close” by standard/quantum: BOP/BRD
Evidentiary burden:
Burden of producing sufficient evidence to justify a finding in favour of the party who bears it
On party who must raise an issue to adduce or point to relevant evidence capable of supporting a decision in their favour
 There must be some evidence on every element of the charge to meet the evidentiary burden; otherwise case ends
o Motion for directed verdict of acquittal: asserted by defence at end of crown’s case
 TEST: is it possible that a jury, acting judicially, would convict based upon the evidence
Quantum/Standard of Proof: DEGREE to which the party must convince the trier of fact in order to discharge the burden
Possible= anything that could be  Probable= air of reality  More likely than not= civil BRD= criminal Absolute
Certainty= unachievable in court
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EVIDENCE OUTLINE: LAW 309 JUK FALL 2012
Civil Proceedings:


Plaintiff bears burden
Quantum/standard: proof on a Balance (or preponderance) of Probabilities i.e. 50% + 1
o Contest of credibility sufficient to meet burden in Civil, not allowed in Criminal cases
 ONE BOP test applies to all cases; historically Lord Denning said civil sexual cases need crimelike degree of burden FH v. MacDougall

No Evidence: BCSC Civil Rule 12-5 aka “Motion for Non-Suit”
o P has not led evidence capable of supporting one or more of the elements of the cause of action (is it a
case at all); you want the case to stop before it even goes to jury, not meeting pleadings for cause of
action; judge will still make ruling of costs against you; failed to meet evidentiary burden
o Judge must determine it, assuming evidence true and making any reasonable inferences from evidence led
 (4) Application: At close of P’s case, D may apply for action dismissed, no evidence to support
P’s case
 (5) D is entitled to apply under (4) without being called on to elect whether or not to call evidence

Insufficient Evidence: BCSC Civil Rule 12-5
o Judges usually will hint; you want case decided on the weak evidence; failed to meet persuasive burden
 (6) There is evidence but it’s so weak you’re not calling evidence against
 (7) Defendant must elect not to call evidence [unlike No Evidence motion]

Summary Judgment: BCSC Civil Rule 9-6
o Really lousy case, not No or Insufficient, but can respond with Affidavit to get rid of parts so court can
narrow the focus of the case; but no bad faith or delay motives
Criminal Proceedings:


Crown bears burden
Quantum/standard: proof Beyond Reasonable Doubt
o Golden Thread: 1) Presumption of innocence and 2) Requirement of Proof BRD Woolmington v. DPP
o Charter s.11: Presumption of Innocence, guilt according to law, fair and public hearing, by independent
and impartial tribunal
 Purpose of presumption: fundamental liberty and human dignity protected; grave social and
personal consequences; presumption crucial, not overturned until Crown proves BRD R v. Oakes
o Jury must be satisfied of something more than probable guilt, but need not be absolutely sure of guilt
o Definition for BRD Lifchus:
Reasonable Doubt IS
RD inextricably intertwined with presumption of innocence
Burden lies with prosecution and never shifts to accused
Not based on sympathy or prejudice
Based on reason and common sense
Logically connected to evidence or absence
More than just “probably guilty”

Reasonable Doubt IS NOT
An ordinary expression with no special meaning
Standard for decisions we make in our everyday lives
Moral certainty
Serious, substantial, or haunting doubt
Not a magic incantation to be repeated word for word
Not absolute certainty or proof beyond any doubt
Not frivolous or imaginary doubt
Model Charge to Jury = Charge acceptable if in substantial compliance Starr
o Presumption of Innocence remains until guilt proven BRD
o Definition of reasonable doubt is NOT, and IS
o BOP and probably guilty is insufficient
o Absolute certainty not required
o Use “sure” only if above has also been explained
 Verdict ought not be disturbed if jury understood the charge
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EVIDENCE OUTLINE: LAW 309 JUK FALL 2012

Applying BRD Morin 1988
o Jury must consider evidence as a whole, not piecemeal, and determine whether accused is guilty BRD
o Beyond that, it is for jury to determine how to proceed
o “To inject into the process artificial legal rule with respect to the natural human activity of deliberation an
decision would tend to detract from the value of the jury system”

Charge if Accused Testifies: R v. W(D)
1. If you believe the evidence of the accused, obviously you must acquit
[Modification: If after careful consideration of all evidence, you are unable to decide whom to believe JHS]
2. If you do not believe the testimony of accused but you are left in RD by it, you must acquit
3. Even if you are not left in doubt by evidence of accused, you must ask yourself whether on basis of the
evidence you do accept, you are convinced BRD by that evidence of the guilt of the accused
o Charge will likely survive appeal scrutiny if clear that: i. jury not simply to choose between two versions of
events; ii. Jury must consider all evidence when determining RD; iii. Any RD must be resolved in favour of
accused
o Is credibility central to the case? Probably follow WD
 Credibility issues are matters of weight for jury, not for judge; judge must take the case at its highest

Directed Verdict
o Directed Acquittal
 “No Evidence”, even if believed, jury instructed, acting reasonably, that could support conviction
 Question on the Point of law, no weighing
 Note: One can lead case if it fails
 Prima Facie standard (like committal after preliminary inquiry)
 Motion for directed verdict comes after Crown case and before Defence case
o Insufficient Evidence
 Arguing on balance it is insufficient to meet burden of proof
 Note: if you lose this motion the case is over, saying I won’t call evidence

Putting a Defence in Issue:
o Burden on Defence to show evidence with air of reality to leading a Criminal Defence
o Air of Reality
 There is some basis upon which the defence can rest in evidence Pappajohn
 Judge must put to jury all defences that arise on the facts supported by any evidence (from Crown
or D) having air of reality, whether or not specifically raised by D, and keep from the jury
defences lacking any evidentiary foundation Cinous
 Could a properly instructed jury acting reasonably acquit accused on basis of the defence?
o Judge does not determine credibility of the witnesses, weigh the evidence, make findings of fact, or draw
determinate factual inferences
 The question is whether evidence discloses a real purpose for jury to decide, not how the jury
should ultimately decide it; if reasonable jury could acquit then it has to go to them
o If defence has air of reality: burden on Crown to disprove it to secure conviction, exceptions:
 Mental disorder – D must establish on BOP (it’s presumed that you are sane)
 Charter violation – D must
i. Prove on BOP and
ii. Under s.24(2) admitting evidence would bring admin of justice into disrepute Grant
 Strike legislation – onus is on person/D who wants to set it aside ex. Criminal Code
 Automatism and Involuntariness – D must be establish on BOP and back up by expert
 Defence of alibi?
o No Speculative Defences to Jury: speculative defences that are unfounded should not be presented to the
jury; it would be wrong, confusing, and lengthen trials R v. Osolin
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EVIDENCE OUTLINE: LAW 309 JUK FALL 2012
WITNESSES: COMPETENCY AND COMPELLABILITY
To testify, a witness must be competent and swear oath to tell truth or satisfy statutory substitute
Witnesses as Means of Proof
Parties prove or disprove all facts through oral evidence of witnesses; directly observed or ID physical/documentary
 Exhibits (entered through witnesses)
o Real evidence
o Demonstrative Evidence
General Rules re: Witnesses
1. Competence: whether or not you are allowed to get in witness box and testify, threshold
a. Capacity: ability use language/memory works/can understand things/can they observe
b. Responsibility: willing/trusted to tell the truth
c. At common law, witnesses are presumed to be competent
d. Is the witness apparently able to communicate and willing to tell truth?
e. General rule: everyone is competent to testify [even kids and mentally disabled]
f. Credibility is ultimate reliability question for the jury; competence is apparent reliability
2. Compellability: whether or not witness can be made to testify
a. General rule: a competent witness is compellable
b. Exceptions: accused competent but not compellable for Crown due to right to silence,
competent/compellable witness may avoid testifying because of privilege
c. But if Accused testifies, waives right to silence, any question relevant to proceeding must be answered in
Cross-X by Crown (subject to contempt of court or perjury)
d. Exception: Spouse neither competent nor compellable against his/her spouse
e. When you’re served with subpoena you’re obliged to answer all questions; if you don’t come you can be
arrested, if you lie you can be charged with perjury
3. Privilege: allows witness to not answer certain questions even when otherwise competent and compellable
4. Credibility: the reliability of the witness’s testimony
-
Incompetents at CL: Atheists, non- new testament-Christians, convicted felons, parties to dispute (accused too
biased), spouses of parties, children, mentally disabled adults
The Oath
-
-
To testify, witness must give formal indication he will be truthful, screens out those who won’t even claim to tell truth
 CEA s.13, BCEA ss.23
Solemn affirmation, binding like oath, minus GOD part; promises to tell truth ok too, some unsworn ok
 CEA 14(1), (2); BCEA s.20
Variety of non-Christian oaths
 BCEA s.20: if it’s too inconvenient to do your oath just have to do solemn affirmation
 Saucer oath or “Chicken” oath for Chinese Canadians at turn of century R v. Wooey
See below s.715.1 and s.715.2 CC for Statutory Exceptions
R v. Bannerman 1966 ManCA
 Unlawful sexual intercourse with 14 year old girl, gross indecency with her brother; claimed TJ erred permitting
brother to be sworn in without sufficient inquiry concerning his capacity to know nature/consequences of oath
 Court said he understood morally “on all occasions he should tell the truth esp. when he swears to” ; no need for
kid to “recognize” if he broke oath he’d go to hell – theologically and legally incorrect; TJ discretion
R v. Walsh 1978 ONCA
 Satanist found incompetent to testify because he didn’t recognize any social duty to tell truth to court, no disorder
 Appeal said that doesn’t matter, doesn’t have to realize penal consequence either; Walsh never refused to affirm,
or given chance to, under s.14 CEA; just has to be willing to solemnly affirm aka promise to tell truth
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EVIDENCE OUTLINE: LAW 309 JUK FALL 2012
Perjury
Criminal offence to lie under oath, though innocent misstatements are common, and lying is hard to reveal



Definition: s.131 CEA:
o Perjury where, with intent to mislead, witness makes before a person who is authorized by law to permit it to
be made before him a false statement under oath or solemn affirmation, by affidavit, solemn declaration or
deposition or, orally, knowing statement false
Punishment: s.132 CEA
o Indictable offence and liable to imprisonment for term not over 14 years
Corroboration: s. 133 CEA
o Not convicted of perjury on evidence of only one witness unless the evidence of that witness is corroborated
in material particular by evidence that implicates accused
Spousal Competency
At common law, married spouses [officially] are incompetent to testify against each other, so not compellable, unless:
 Charged with an offence that affected the person, liberty or health of the spouse Hawkins [now s. 4(5) CEA]
 Spouses are irreconcilable separates– competent and compellable; spouses are irreconcilably separated have no
marriage bond to protect but court says leave it to legislature to change Salituro
 The spouses are common law not legally married (presumably applies to unmarried homosexual couples)
 Note: Spousal Incompetence prevents person from testifying, while Spousal Privilege deals with substance of
what can be discussed and what can be done with it
Historical justifications for the rule Paciocco or Case Book
 Protection of marital harmony
 Natural repugnancy of compelling wife/husband to be the means to the other’s condemnation
 Once married woman’s legal identity incorporated into husband’s identity (no longer remains)
 Husband and wife have identical interests (no longer remains)
 Criticisms:
o Reflects role of women which is not compatible with sexual equality
o Making irreconcilably separated spouses not competent violates Charter values of respect for freedom of
all individuals (Salituro)
o Maybe say they’re competent but not compellable (US)
Relevant legislation
 CEA amendments:
o S. 4(1) spouse entitled to testify for the defence where person charged is charged solely or jointly with
any other person, could compel your spouse to testify for the defence
o S. 4(2) Wife or husband charged with [sexual and other offences listed] is competent and compellable
witness for prosecution without consent of person charged
o S. 4(4) Wife or husband of person charged [violent offences listed] where victim is under age 14 is
competent and compellable witness for the prosecution without consent of person charged
o S. 4(5) Retains CL: wife or husband of accused not compellable or competent at insistence of prosecution
 BCEA rules
o s. 6: the accused, and accused married spouse, are competent witnesses
 Doesn’t say compellable but likely are if competent Gosselin
 Doesn’t say “for the defence” but Charter would prevent accused c/c for Crown,
 Applies to person charged with offence, doesn’t prevent wife/husband being compelled
 Applies to criminal Provincial Offences i.e. MVA, Liquor Control
o s. 8: Spouses not compellable re:disclosure of communication made to them during marriage
o s. 7: When party to civil suits, husbands and wives are competent to testify
 BC Civil Rules 12-5: you can call opposing party in own case and cross-ex
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R. v. Salituro
 S charged with forgery, signed wife’s name on a cheque – she said he had no authority; wife’s testimony taken;
Couple irreconcilably separated, could she testify at time b/c of spousal competency rule?
 Harmony and repugnancy justifications for spousal competency rule don’t apply when irreconcilably separated
R v. Hawkins
 Hawkins undercover with motorcycle clubs; Hawkins dating Cherie, dancer, told police he gave info to Morin
 Cherie testified under oath; then said coached by police; married Hawkins week after committed to trial
 Crown wants: marriage solemnized after indictment then spouse competent; also want exception where accused
marries witness for purpose of insulating testimony/making her incompetent
o But can’t inquire into reasons unless clear evidence only purpose was to avoid criminal responsibility and
they had no intention of fulfilling care/support requirements (sham)
o Testimony from before to be let in because she’s no longer able to give it and it was reliable
 Dissent: she’s unwilling so only compellability matters; rule against spouse testifying if he/she wishes would
infringe on liberty and equality interests
Competency of Children/Mental Incompetents
At CL, children and others who could not understand meaning of an oath could only give unsworn evidence
 CEA Rules:
o S. 16: Affirmation or Promise to tell truth instead of oath where a person whose mental capacity is challenged
 Persons over age 14 presumed competent
 Inquiry undertaken only where challenged and court satisfied there’s an issue
 To give testimony on Promise to tell Truth requires (R v. D.A.I- read in):
 Witness able to communicate evidence
 Witness promises to tell truth (no need for abstract understanding of “truth”)
o S. 16.1: Promise to tell truth instead of oath in case of a child under 14 Marquard
 Presumption that children under 14 are competent to testify
 Evidence will be received if they have the capacity to understand/respond to questions
 Court can conduct inquiry into this if unsure of capacity for understanding/responding
 Inquiry undertaken only where child’s capacity is challenged and court satisfied there is issue as to child’s
 Burden on party who challenges a child’s capacity
o 16.1(7) Court can’t inquire on kid’s understanding on what it means to tell truth (which is distracting)

BC Civil Rules s.5:
 (1) must inquire into child/mental incompetent understands nature of oath, and can communicate evidence
 (2) person who understands an oath and can communicate evidence must testify under oath
 (3) person who does not understand nature of oath/solemn affirmation but is able to communicate
evidence may testify on promising to tell the truth
 (4) person who neither understands the nature of oath/solemn affirmation nor is able to communicate
evidence may not testify
 (5) burden in party who challenges capacity of person over 14
o
BCEA Rules
o s. 20: solemn affirmation and oath same effect, affirmation where oath will not conform with beliefs
o s. 21: absence of religious belief of person who takes an oath has no effect on oath’s validity
R. v. Marquard
 Facts: M aggravated assault – girl testified (unsworn) “nanny put me on the stove”; kid had burns, grandma and
grandpa’s testimony conflicted only slightly, they said she tried to smoke cigarette
 Dissent in this case led to enactment of s. 16.1; old s.16 CEA said children and people with mental capacity
challenges couldn’t testify under oath though could give unsworn
 Ability to communicate evidence means ability to understand and respond to questions – not remember events;
perceive and communicate capacity, the actual credibility is for jury to determine
 Notion that child testimony is inherently unreliable was rejected in Khan
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R v. D.A.I.
 Woman mental age 6 sexually assaulted; got truth vs. lying, no response to abstract questions; not competent
 Appeal says wrong application of CEA s.16(3), no abstract inquiry needed, focus on concrete acts
 Witness ability to testify: competence is initial threshold for testimony, exclude worthless testimony based on lack
of basic capacity to communicate evidence to court
 S.16(3) imposes 2 requirements for testimonial competence of adults with mental disabilities
o (1) ability to communicate the evidence, and
o (2) promise to tell the truth
 Policy: Social need to bring to justice sexual abusers of people with limited mental capacity- most vulnerable
people; hard for anyone to explain philosophical obligation to tell truth
 Policy: Ensure fair trial- not hurt by letting mentally disabled people testify, minimum threshold for reality met if
they have basic capacity; no guarantee ever of telling truth; we have cross-x for this
 Points: 1. Competence voir dire is independent inquiry from other vd’s; 2. Vd brief but hear all relevant evidence;
3. Source of determining competence is the witness herself, examine; 4. people close to her can give evidence on
her development; 5. expert evidence ok but close people first; 6. TJ ask 2 competence questions (understanding
affirmation’s nature, communicating evidence) 7.about concrete events; 8. look at true/false everyday situations
o Witness testifies under oath if she passes both parts of test and promises to tell truth
 Dissent (Binnie): Many mentally disabled people can say they promise but very suggestible, no understanding
The Accused: Compellability, Silence or Failure to Testify
An accused is competent, but not compellable, to testify at his own trial on behalf of defence; not competent on behalf of
Crown so Crown can’t compel accused to testify
 If he chooses to testify in own defence he can be cross-examined
 Tactical burden: accused must do something to defend after Crown evidence he’ll be convicted if he does nothing
Rules in CEA, Charter

CEA rules:
o S.4 (1): accused is competent witness for defence
o S. 4(6): judge/counsel for prosecution may not comment on failure of accused to testify

Charter rules:
o S. 11(c): accused has right not to be compelled to be a witness at his own trial
o S. 11(d): right to be presumed innocent until proven guilty according to law in fair and impartial tribunal
o S. 13: right against self-incrimination; witness has right not to have any given incriminating evidence
used to incriminate him in any other proceedings, except in perjury or giving contradictory evidence
Possible Allowable References to Accused’s Silence
1. Judge sitting alone who is satisfied BRD of guilt, may refer to an absence of any explanation which could raise a
reasonable doubt [note: judges give reasons for judgment when alone]
2. Judges sitting alone may say that he need not speculate as to possible defences
3. Judge can tell the jury that a point is uncontradicted
4. Alibi defence: An adverse inference may be drawn from a late-disclosed alibi or from failure of accused to testify to his
alibi [because alibis are easy to fabricate, need to be investigated]
R. v. Noble
 S catches guys breaking into cars, gets driver’s licence from N, compares picture and man; at trial can’t ID
accused; N convicted based on silence plus S’s identification; could easily say wasn’t me to disprove ID element
 Using accused’s failure to testify as indication of guilt is contrary to Charter s.11, 13 rights; if Crown doesn’t
meet BRD standard, failure of accused to testify can’t make up for that
 3 options for using silence if permitted:
1) Once Crown has made case, silence of A can be used to determining if A guilty BRD
2) Inferences of guilt may be drawn only where case made and A fits in cogent network of inculpatory facts
3) Silence of A means Crown evidence is uncontradicted and must be evaluated on this basis without regard
for any explanation of those facts that do not arise from the facts themselves – used
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


Court takes option 3: no speculating about other explanations; more of a tactical burden on accused
Problem with s.4(6) of CEA: TJ can’t instruct jury about not incorrectly using silence, though not at issue here
Alibi exception to right of silence: still can’t make them testify even if claiming defence of alibi, Vezeau gave
narrow exception to that showing possibly invalid defence
R v. Prokofiew ONCA 2012
 Obiter in Noble = judge can’t tell jury not to misuse accused silence to find BRD
 s.4(6) properly interpreted does not stop TJ from telling jury not to use silence against accused , in 3 earlier SCC
decisions; judge can comment on silence but warning not mandatory
 Unsure what will happen at this point
RELEVANCE/MATERIALITY and PROBATIVE VALUE/PREJUDICIAL EFFECT
Relevance and Materiality
The Rule: nothing is admissible unless it is relevant, which is determined by asking Watson
1. Does it have logical relevance: does the evidence tend to prove or disprove a fact?
a. As a matter of human experience and logic, does the existence of “fact A” make the (non)existence of
“fact B” more probable than it would be without “fact A”?
2. Is the evidence material or legally relevant: is this fact related to an issue in the case?
a. Is “fact B” itself a material fact in issue, or relevant to a material fact in issue?
3. Is the evidence otherwise admissible (not subject to exclusionary rule)? [If yes here, admissibility is met]
4. Does the probative value of the evidence outweigh its prejudicial effect?
-
Nothing is to be received which is not logically probative of some matter requiring to be proved and everything which
is thus probative should be received absent some other ground for its exclusion Seaboyer

NO minimum probative value (slightly more than zero) is required for evidence to be deemed relevant, may be
inadmissible where PV does not outweigh its PE Watson, Morris
Relevant evidence can be defined as evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be without evidence
Morris
Whenever a fact is relevant, the negation of that fact must be relevant


Factual Relevance
i. Does the evidence make a fact in issue more or less likely to be true?
Legal relevance
i. Is the evidence directed at a matter in issue in the case
ii. Does it help to resolve a fact that must be proved to establish the offence/charge, OR
iii. Is it relevant to a fact lying outside the facts that must be proved to sustain/defend against the cause of action
Relevance and Circumstantial Evidence
 Direct evidence
o If you believe it, proves a fact in issue without need of inference; not better, but less risky than inference
o Eye witness evidence; Confession
 Circumstantial evidence
o Definitions
 Requires inference of existence of fact to be of use; everything not direct
 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
 Establishes conclusion by inference from known facts otherwise hard to explain Oxford Dict.
 To be cogent, circumstances must necessarily or normally be connected to a fact. Circumstances
equally capable of other explanation are little or no evidence of the fact Oxford Law Companion
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o


Standard categories of circumstantial evidence:
 Means
 Motive
 Opportunity (ex. Close to scene; counter to this is Alibi)
 Post-Offence Conduct (indicates consciousness of guilt- can’t say anymore) ex:
o Flight: if you run from scene, doesn’t tell whether you did manslaughter or murder; can
show ID of criminal or party; or could show you’re from Guatemala and afraid of police
o Knowledge: Someone murdered June 25, body found July 25, only killer would have
known person missing prior to body being found, that shows unique knowledge of killing
o Fabricating Evidence
o Judge must assess value of Circumstantial evidence relative to cost (see probative below)
o Dangers: R v. Joyal, fact the person had a cell phone was circumstantial evidence he was a drug dealer
“No man would not accept dog tracks in the mud against sworn testimony of 100 eye witnesses no dog passed by”
Evidence may be relevant tho does not go directly to proof of material fact, provide basis for inference that the
material fact exists, but may become relevant by its combination with other evidence adduced
Relevance and Other Facts
 Difficult and arguably undesirable to lay down stringent rules for the determination of relevance of a particular
category of evidence; Relevance is very much a function of the other evidence and issues in a case Morin
 Relevance must be assessed in context of entire case and the respective positions taken by Crown and D Watson
 Must be determined in reference to facts at issue in the case:
o In criminal, this depends on offences charged in the Information or Indictment
o In civil, this depends on the causes of action and defences set out in pleadings
o Facts relating to the necessary elements of offence charged or cause of action pleaded (unless admitted)
and any defences raised are material
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) or an fact in issue
o Facts relating to credibility of witness giving direct or circumstantial evidence of fact in issue are relevant
o 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, are equally relevant
o If no nexus exists between the evidence offered and any one or more of the facts in issue the evidence is
excluded as irrelevant (not material) (Sopinka, in The Law of evidence in Canada)
Evidence of Habit vs. evidence of Disposition
o Habit: inferring conduct from conduct
 Belief that repeated conduct in a given situation is a reliable predictor of conduct in that situation Watson
o Disposition: inference of the existence of a state of mind from a person’s conduct on one or more previous
occasions, and further inference of conduct on the specific occasion based on the existence of that state of mind
 Belief that a person’s disposition is a reliable predictor of conduct in a given situation; harder than habit
Relevant evidence will be excluded where there are concerns with: Morris, Seaboyer
 Reliability:
o Where evidence has potential to distort, confuse, mislead the fact-finding function of court, or if it may
cause trier of fact to reason irrationally or inappropriately
 Trial Efficiency:
o Evidence only marginally relevant, confuse issues, unnecessarily prolong, create distracting side issue
 Fairness:
o It may unfairly surprise the opposite party, unduly arouse emotions of prejudice, sympathy, hostility
 Charter:
o Excluded where to include would bring administration of justice into disrepute
 Privilege:
o Excluded to foster certain relationships protected by confidential communication
 Exclusionary discretion:
o Where PV outweighed by PE, or where important value other than fact-finding undermined
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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, ex. Protecting privileged information
o To promote trial efficiency
 Exclusionary rules (more info below):
o Hearsay rule
o Opinion Evidence Rule
o Character Evidence Rule
o Collateral Fact Rule: how far you can go in disproving what somebody says
o Privilege
o And more…
 General exclusionary rule for logically relevant evidence: is probative value worth prejudicial effect (cost) Mohan
Probative Value and Prejudicial Effect
-
Definitions:
 Probative value: judge’s estimate of how important evidence, used properly, is likely to be in the jury’s reasoning
1. How strong is evidence R v. B(L)
2. To what extent does it support inference for which it’s advanced
3. How material is it to the real issues in the case
4. How reliable and credible is the evidence (not supposed to be done by judge, but is)
 Prejudicial effect: judge’s estimate of how likely it is that a properly instructed jury will use the evidence for an
improper purpose, or other detrimental effect on trial; unfair disadvantage, NOT increasing chance of conviction
1. How discreditable is evidence
2. To what extent does it support inference of guilt solely based on bad character
3. To what extent does it confuse issues or unduly prolong trial
4. What is other party’s ability to respond
o Moral prejudice: using evidence as a club against accused for unfair reasons
o Reasoning prejudice: misusing evidence, giving it more weight than it’s entitled to
-
Process:
 Judge has discretion to exclude evidence where PE outweighs PV, aka determines admissibility
 For the Defence: PE of defence evidence must substantially outweigh PV to exclude R v. B(L)
 Circumstantial evidence: weighing important because inferences made, need good evidence for good inference
o PV of relevant evidence depends on accuracy of premise supporting inference Delisle Evidence Principle
 Direct evidence: Relevance and PV of direct evidence is usually obvious and indisputable
o Issue: witness credibility jury decides weight (perceive, remember, communicate? Sincere or lying?)
o Basic Rule: weighing PV of direct evidence against PE not necessary, just matter of believing it
 Except: Overhearing very fragmented conversation without context Hunter
 Except: Eyewitness
 Except: Jailhouse informants (gravely suspicious and not of any weight, jury sternly warned)
Prejudicial Effect in Sexual Offences Seaboyer
1. Evidence that complainant has engaged in consensual sexual conduct on other occasions (including with accused) is
not admissible solely to support inference that complainant is by reason of such conduct:
a) More likely to have consented to sexual conduct at issue in trial
b) Less worthy of belief as witness
2. Evidence of c’s consensual sexual conduct may be admissible for purposes other than inference relating to consent or
credibility where it possesses PV on issue in trial and where that PV is not substantially outweighed by PE, examples:
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a) Evidence of specific instances of sexual conduct tending to prove a person other than accused caused physical
consequences of rape alleged by prosecution
b) Evidence of sexual conduct tending to prove c’s bias or motive to fabricate
c) Evidence of prior sexual conduct, known to accused at time of act charged, tending to prove the accused believed
c was consenting to act charged not absolute rule, but normally expect proximity in time between conduct
alleged to give rise to honest belief and conduct charged
d) Evidence of prior sexual conduct which meets requirements for reception of similar fact evidence, bearing in
mind that cannot be used illegitimately merely to show c consented or is unreliable witness
e) Evidence tending to rebut proof introduced by prosecution regarding c’s sexual conduct
3. Before evidence of consensual sexual conduct on part of victim is received, it must be established on voir dire (may
be held in camera) by affidavit or testimony of accused or 3rd parties, that proposed use of evidence of other sexual
conduct is legitimate
4. Where evidence that c has engaged in sexual conduct on other occasions is admitted on jury trial, judge should warn
jury against inferring from evidence on conduct itself, either that c might have consented to act alleged or that c is less
worthy of credit
-
Criminal Code Rape Shield Laws  limiting admissibility clarified in Seaboyer
 S.277: Excludes evidence of sexual reputation for purpose of challenging or supporting credibility of P
o Court says idea that credibility affected by sexual experience is universally discredited
o So evidence it excludes can serve no legitimate purpose in trial, not infringing Fair Trial Right
 S.276: Blanket exclusion of evidence subject to 3 exceptions: Rebuttal, ID, Consent (same occasion as trial issue)
o Question: does this exclude evidence which is relevant to D and PV is not substantially outweighed by
PE? Will evidence excluded be of trifling weight?
o Not ok provision: what about honest but mistaken belief raising RD; what about P lacking credibility for
being biased or having motive to fabricate; can’t deny building blocks of defence; evidence of sexual
activity may be relevant to explain physical conditions Crown relies on to establish intercourse or use of
force (semen, pregnancy, injury, disease) which may go to consent
o Where this evidence may draw inference on subsequent conduct, it’s like s.277 should be closely
scrutinized; in other cases this would be allowed for SFE, not fair to exclude just for sexual offences
o S.276 infringes on s.7 and s.11(d) Charter rights, renders inadmissible evidence which may be essential
to presentation of legitimate defences and fair trial; not saved by s.1 Oakes for overbreadth and injury
outweighing objective
R. v. Watson 1996 ONCA, Doherty J
 Facts: W was outside, H & C went into rental unit and deceased (D) was shot; W charged with murder, asserts
defence that didn’t know H had gun, so he wasn’t involved in the shooting
o Defence theory: spontaneous gunfight
 Relevance issue: friend said D carried a gun with him ‘like a credit card’, suggests evidence of habit
o Logical relevance: D always carrying gun made it more probable he was carrying a gun when shot
o Materiality/legal relevance: if D was armed when he was shot, this makes defences theory of spontaneous
gunfight more plausible, which allows jury to infer that W was not part of shooting
 PE: jury thinking D deserved it doesn’t outweigh PV: jury warning, other evidence showed criminal lifestyle
o Fact in issue: Was D carrying a gun? Evidence: he never left home without it; Premise: habit
 Inference: D probably carrying gun when he left home on day of shooting; significant PV
 Further inference from possession to use of weapon is essential to make M’s evidence relevant to any issue in trial
o Fact in issue: Was C shot by D or H? Evidence: D was target of H’s assault and H was C’s friend;
Premise: A person is more likely to be shot by his friend’s adversary than by his friend
 Inference: More likely that C was shot by D than by H
 Chain of Inference:
 If D’s habit was to carry gun, it is more probable that he carried gun on day of shooting
 If D carried a gun on day of the shooting, it is more probable that he (not H) fired the second gun
 If D (not H) fired second gun, it is more probable that this was spontaneous shoot-out not
premeditated ambush (second degree charge vs. manslaughter conviction)
 If spontaneous shoot-out not premeditated ambush, it is more probable there was no plan for ambush
and accused had nothing to do with shooting
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R v. Morris 1983 SCC
 TJ excluded as irrelevant newspaper clippings in accused’s house regarding Pakistan drug trade in charges for
importing drugs from Hong Kong; Is article related to importing from completely different country relevant?
 SCC Maj: clipping logically relevant to show preparatory steps taken, though low PV
 Dissent: relevant but inadmissible because it’s character evidence
 May be of no weight for jury, but test for relevancy is very low and there is no minimum standard; concerns
about prejudicial effects should be analysed under another exclusionary rule – effectively overrules Cloutier
R v. Mohan
 Dr charged with sexually assaulting 4 female patients, wanted expert evidence in that person who committed
these offences was likely sexual psychopath and accused wasn’t
 Court said expert evidence of distinctive character trait can be adduced, if accused or perpetrator having that trait
would be relevant such that comparison of the two is useful  wasn’t reliable science here
 Relevance is threshold for expert evidence like all other; a matter for judge as question of law, reliability PV key
 Prima facie admissible if so related to fact in issue that it tends to establish it, but that’s just logical relevance
 PV over PE: Other considerations regarding admissibility are cost benefit analysis; cost = impact on trial process
 Evidence logically relevant may be excluded if: PE over PV, inordinate amount of time not commensurate with
its value, or if it is misleading where effect on the trier of fact, esp jury, out of proportion to reliability
o Exclusion of logically relevant evidence on these grounds is more properly a general exclusionary rule,
but whether treated as aspect of relevance or an exclusionary rule, the effect is the same
R v. Seaboyer 1991 SCC
 Accused charged with sexual assault of woman who he had drinks with at bar
 Constitutionality of Criminal Code ss.276, 277 restricting right of defence in trial for sexual offence to crossexamine and lead evidence of a complainant’s sexual history
 Majority said s.276 offends Charter; but not going to let CL allow evidence even without having PV
o Focus on Thayer’s Maxim, relevant evidence be admitted and irrelevant excluded for fair trial, subject to
qualification that value of evidence must outweigh potential prejudice; focus on uses of evidence
 Relevance determined not in vacuum but in relation to issue in trial, evidence may be relevant to one issue and
irrelevant to another or may mislead trier of fact on second issue, could prejudice
 In Wray only exclude evidence gravely prejudicial to accused, tenuous admissibility, and trifling probative value;
more appropriate description in Sweitzer
 Most excluding power with Crown evidence; can exclude defence evidence if substantially PE
o Been reluctant to restrict defence because concerned about convicting innocent people
 Dissent from L’Heureux-Dube was that s.276 not violating s.7, excludes only irrelevant or prejudicial evidence,
and in the alternative it’s easily justified under s.1
R v. Hunter
 Attempted shooting of police officer, witness overheard accused and lawyer before prelim, accused said he had a
gun but didn’t point it; Crown wants evidence in
 Majority says utterance can’t meet threshold of relevance for admissibility because it’s meaning can’t be
determined without its context (which witness couldn’t give) or its meaning is so speculative it’d PE
 Give jury examples of surrounding words; I killed David or I had a gun has no probative value
 Context key: gives meaning, complete thought or not, even if some relevance exclude if meaning PE and so
speculative there’s tenuous probative value
R v. Tuck
 Tuck wants evidence that deceased Jabaji had Ecstasy tablets with him; says relevant to issue as to who smuggled
the knife into the club to kill Jabaji  if deceased brought it in not Tuck, then seems like deceased was aggressor
 Issue: smuggled contraband = smuggling knife
 Potential PE: jury may infer that he was violent person, propensity reasoning; PV is deceased brought knife in
not accused; will address PE with a limiting instruction to jury
 But seems like it should be “means” or “opportunity” [for bringing knife in] reasoning not propensity
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R v. Bell
 Evidence of trafficking in front of complainant; c said drugged before acc raped her; Crown wants evidence in a
assess after, since no jury – shows drug dealer would have better access to date rape drugs
 But court says no nexus, recreational drugs are of different nature to date-rape drugs, users don’t have same
access so dealers don’t either [yeah riiiiiight]; and dangerous to weigh admissibility at end
o Could use expert evidence or statistics that cocaine traffickers often did have access to date rape drugs
R v. D(A) 2008 SCC
 Deceased raped, murdered; voir dire on admissibility of hearsay evidence of deceased
 Dalzell (acc) says: she would have consensual sex with him even if he assaulted her friend because
o She continued close relationship with Mr. Shallow after being abused, shows a character trait that she’s
equally prepared to commence intimate relationship with Dalzell after he sexually assaulted her best
friend; Dalzell saying they had consensual sex and her death afterward had nothing to do with that
 Character trait evidence: “any proof presented in order to establish the personality, psychological state, attitude
or general capacity of individual to engage in particular behaviour”
 Relevance strained, don’t know anything about Shallow’s assault, no predicative value on her capacity to forgive
and become intimate with someone who was not her lover at a time of very different sort of betrayal
 Also trying to avoid prejudice jury with speculation that if Mr. Shallow hit her before he killed her now
R v. Abbey 1982 SCC
 Crown wants to qualify Detective as expert on existence and nature of Toronto street gangs, since victim
trespassed on accused’s gang territory, trying to prove ID of shooter in murder
 Accused admitting fact he’s gang member  gang members may have guns, may be PE and not admissible
 Relevant 1: being gang member makes “motive” for killing more probable; PV
o Properly instructed jury can disregard element of bad character, just focus on motive
o Negative impact is balanced between the deceased and the accused
 Inadmissible 2: gang members have guns, relevant to whether accused had gun, doesn’t greatly support inference,
not sure if he had one that day, and significant PE
 Criminal Code s.655: accused on trial for indictable offence may make admission to dispense with proof
R v. Rallo
 D charged with murder of wife and kids; appeal on error in admitting circumstantial evidence
 Neither fact that D read book “Torso” or his remarks after reading it had PV, shouldn’t have been admitted; said
“if you’re going to commit murder, do it in Hamilton” and “impressed” woman in book got off despite evidence
 On a charge of wife-murder, evidence that accused husband is cheating with another woman is relevant to issue
of motive, if relationship with other woman isn’t too remote in time; D said too remote to have PV but court said
jury can draw inference, is admissible, since D was trying to show self as faithful husband with cheating wife
 If error to tell jury D’s false statements on fidelity admissible as consciousness of guilt, still no major miscarriage
R v. Ruddick
 Poulin charged with murder of wife, slight possibility she died naturally but more likely asphyxiated said coroner;
D in financial troubles; insurance policy on wife = motive
 Evidence admissible on D’s misappropriation of funds belonging to 2 policy holders of his insurance company
and dealings with secretary (who he was sleeping with) from Mrs. Frew to show motive
 Forgery and misappropriation of funds not then discovered, the discovery was inevitable unless he returned the
funds; though evidence in that he’s chronic liar and TJ not properly instructing jury, still not miscarriage of justice
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Intrinsic Exclusionary Rules
HEARSAY
The Hearsay Analysis
1. Is it hearsay:
a. Is it an out of court statement?
i.
Is the declarant on the stand testifying right now?
b. Is it offered to prove truth of its contents?
i.
Is the statement being offered for the truth of its contents?
c. If not being offered for its truth:
i. It is not hearsay, but then you need to ask, what is its relevance?
ii. See “non-hearsay words”
iii. See “implied assertion and hearsay by conduct”
2. If it’s not hearsay, move on. If it is hearsay, it is presumptively inadmissible unless:
a. It fits with a categorical exception/traditional rule:
i. Party admission [Wigmore excluded this]
ii. Res gestae, or spontaneous utterances
iii. Dying declaration
iv. Statement against interest
v. Declaration in course of duty (Business records)
vi. Testimony in prior judicial proceedings [Wigmore excluded this]
vii. Prior criminal convictions
viii. Statements concerning bodily/mental condition
ix. Statements of intention
b. If doesn’t fit in a categorical exception, is it admissible in Principle i.e. “Principled Exception”
i. Is it reliable
1. Where necessity is great, judge may lessen reliability criteria
2. ex. Bank creating record following statutory duty shows reliability
ii. Is it necessary
1. Where evidence is extremely reliable, judge may lessen necessity criteria
2. ex. Claimant is dead means may be necessary for someone else to testify
3. If it is hearsay, but is admissible under an exception or in principle, there is a 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
(Couture)
b. You cannot get in through a hearsay statement that which cannot go in through the mouth of the declarant
if they were available to testify (speculation, “probabilities”, statement is inadmissible hearsay itself)
Testimonial Factors Baldree, McCormick text
1. Perception: interfering or enhancing [intoxicated, conditions for observation, eye sight, distracted]
2. Memory: [influences on, time since, intervening events affecting, notes taken]
3. Narration: [use of language; what do they mean by, “that man was tall”]
4. Sincerity: [do they believe themselves]
Hearsay Dangers:
-Three Conditions for testifying truthfully NOT satisfied with hearsay Baldree
1. Oath or equivalent
2. Personal presence at trial to show demeanour
3. Cross-examination
Primary Criteria for Admissibility (Wigmore’s Ordering Principles)
1. Necessity: choice of either receiving evidence untested or losing it entirely, declarant dead/not avail for cross=ex
2. Reliability: looked for some substitute for cross-ex to support trustworthiness of statement, in way statement was given
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Rationale for Hearsay Rule
 Second hand nature of evidence, it’s not the best evidence and we could go to the source
 Jury cannot assess testimonial factors, can’t assess weight or value because of hearsay dangers, not sure if reliable
 Cannot determine whether statement is hearsay from examining statement alone
o Need to know the purpose for which it is being tendered: is it for its truth, or for the fact that it was said?
 Note: one piece of evidence can have hearsay and non-hearsay aspects
Non-Hearsay Words
Out of court statements are not hearsay when being offered for something other than truth – ie statement is relevant
regardless of whether or not its true if it has PV
o A piece of evidence may have hearsay aspect though, so judge must warn jury not to use it that way
o Ex. Words that show state of mind: P fell on steps to D’s store, an hour before customer said steps covered
with ice need to be cleared, delivery driver overheard and customer can’t be found for trial: shows D had in
mind that steps needed to be dealt with even if there wasn’t really any ice
Subramanian v. Public Prosecutor 1956
 Man found with belt of ammo, could be charged under emergency statute in Malaysia
 Guerrilla’s threats to kill S (they abducted) unless he carried ammunition were relevant even if they were lying,
because relevance based on whether or not the statements were said at all, helped S establish defence of duress for
carrying ammo because he’s scared, reasonable person would have been scared by threats
o Non-hearsay use of out of court words admissible to establish state of mind of witness or other person
Creaghe v. Iowa Home Mutual 1963 US
 Insurance policy, insured told employee to tell broker we want to cancel policy and want cheque back, question of
whether employee saying “we want to cancel policy” was hearsay in later attempt by insured to get coverage
under now cancelled policy; words said to broker were contractual words
o Words of oral K legally operative words that have meaning and value unto themselves, not for truth
o Words that might constitute criminal offence like a threat, aren’t hearsay they’re actus of the offence
R v Wildman 1981 ONCA
 W’s statements of knowledge of circumstances of girls death made 2 days before body was found
 Wanted statements of himself and ex-wife to show how he acquired knowledge (ie that he wasn’t killer); W tries
to adduce evidence of conversation: his wife to his friend overheard by him
 Truth of statement not disputed, but is relevant for another reason: why or how it is W would know girl killed
with hatchet before info generally available/known
Implied Assertions and Hearsay by Conduct
An out of court statement which may implicitly assert facts that are relevant/material; hearsay where it implicitly asserts
facts or implies belief in facts relevant to matters in dispute; unclear area
o If implied assertion was not intended by the maker of the statement, then the assertion is not hearsay and
is admissible as circumstantial evidence Wright v. Tatham
 Non-verbal out of court conduct can implicitly assert facts or belief in facts relevant to dispute Wysochan
o Ex. Car accident, who was driver? Unknown witness pointed to X as driver, that’s hearsay conduct
o Action intended by maker of gesture/communicator to communicate a message about the very issue
Wright v. Tatham 1837 UK
 Will contested on grounds that testator not competent to make will; Marsden made will leaving lands to his
steward Wright, which otherwise would go to Tatham, who’s trying to prove incompetence
 Conversational letters written by people now deceased adduced showing competence of testator inadmissible
o Relevance in implied assertion that testator competent, letters treat him like normal functioning human
o Like all circumstantial evidence, court could infer competence; therefore inadmissible hearsay
 Statute in UK and US overrules: unless you intend to communicate through your gestures or words, mere fact that
one could infer from something you do doesn’t make it hearsay; intentionality needed
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R. v. Wysochan 1930 SKCA
 W and S accused each other in death of victim; Diefenbaker represented Wysochan; 3 statements as she dies:
1. Tony where’s my husband – not relevant unless you imply something from it
2. Stanley (husband) help there’s bullet in my body
3. Stanley help I’m too hot – second and third relevant if they imply she’s reaching out to husband, not
fearing him so implied assertion is that he didn’t shoot her, therefore W probably did
 Admissible as relevant circumstantial evidence of victim’s state of mind not fearing S, so S didn’t shoot her
 Implication is that W shot her, but court has no ability to determine if she saw who shot her
o Does implicit statement have hearsay use? If it’s not true, what relevance does it have? It does have
hearsay use, but questionable whether it should have gotten in as non-hearsay
R v. Baldree 2012 ONCA
 Accused arrested on drug charges, not tenant but found drugs and money on B; cell phone seized
 Officer answered call while they’re searching, caller wanted an ounce of “weed” delivered; officer agreed, didn’t
make delivery; evidence at trial included officer’s version of conversation with unknown caller, hearsay issue
 Dissent (Watt): Evidence properly admitted
o Drug purchase calls are Implied Assertion: conduct through words, caller’s requests implicitly asserting
fact that D was supplier of drugs; not hearsay requiring listed/principled exception; PV over PE
o Hearsay doesn’t depend on number of calls, the purpose for adducing matters to hearsay; admit if
evidence came about in trustworthy manner or contents are trustworthy
o Admissible in Ly; Call shows course of business, doesn’t matter if call truly for drugs so it’s not hearsay
o Lack of opportunity to cross-ex is an issue, but no problem with testimonial factors
o If people opening umbrellas outside and you see it, if many people do it vs. a few doesn’t matter – almost
always possible to imply assertions; may not be assertion “hey it’s raining” but still some evidence of rain
 Majority (Feltham):
o Too unsafe to rely on just one call of person who police never pursued, hearsay purpose and PE over PV
o Law in Ontario: Unless you have a number of calls to a phone like this, it is hearsay and more PE than
PV so not admissible; this might change when Ly gets to SCC and move us closer to US version
 Third judge says too hard, let’s just decide if it’s necessary and reliable
 Ex. Picketers outside drug house saying shut down drug house = hearsay; but people going in and out of house
coming out with drugs = circumstantial evidence
Traditional Exceptions to Hearsay Rule
1. Party Admissions Exception
Statement made or act done by party to lawsuit, which is or amounts to a prior acknowledgement that some fact is not as
he now claims it to be
 If part of statement includes hearsay (X told Y that the stereo was stolen), this likely goes in to show mens rea
 Theory that a statement against party’s interest is more likely to be reliable than a self-serving statement; but more
importantly this exception is motivated by the adversarial nature of CL trial
o Can’t say no opportunity to cross-ex self or that you are unworthy of evidence unless speaking under
oath: R v. Evans
 Not to be confused with formal admissions of guilt, or statements against interest; only criminal; only parties
 Note re adoptive admissions:
o If something said in presence of a party, and it would have been reasonable to respond in the
circumstances, and the person does not, person is said to have adopted the statement
o Does not apply where statements made in presence of person in authority, due to right to remain silent
 Note re engaged in common purpose
o Statements made by one party in furtherance of a common purpose (ex. conspiracy) is admissible against
another party acting in concert, not including conspiracy members simply “fingering” co-conspirators
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R v. Clark 1997 BCCA: Adoption by Silence
 Masked with intent to commit indictable offence, possession of firearm while committing robbery; Dairy Queen,
2 masked men robbed, one had gun; manager and 3 employees testified,
 Robber1 Bowers pled guilty prior to appellant’s trial because he was seen without mask; then refused to testify
 Callihoo said he and Bowers and Clark on cocaine, Bowers and appellant too Cali’s truck, came back with money
o Callihoo asked where’s money from they said never mind but it was done under nose of the police station
 Silence of party will render statements made in his presence evidence against him of their truth if circumstances
are such that he could reasonably have been expected to have replied to them; permits inference of assent Baron
o Callihoo’s questions were directed to Bowers and Clark since he was “asking” them, so Clark’s silence in
circumstances of this case made Bowers’ statements admissible against him
R v. Barrow 1987: Co-conspirator exception to Hearsay rule from Carter
 1. Trier of fact must first be satisfied BRD that alleged conspiracy in fact existed
 2. If alleged conspiracy found to exist then trier must review all evidence directly admissible against accused and
decide on BOP whether or not he is member of conspiracy
 3. If trier decides yes then he must decide whether Crown has established membership BRD; In this last step, only
trier of fact can apply hearsay exception and consider evidence of acts and declarations of co-conspirators done in
furtherance of the object of the conspiracy as evidence against the accused on the issue of his guilt
R v. Mapara 2005 SCC
 Mapara argues Binahmad’s (getaway driver who testified for Crown) evidence of discussion incriminating him in
planning of murder should have been rejected as inadmissible unreliable double hearsay
o Wasfi told B that “the little guy” who B took to be Mapara, had a job for them, main evidence that M
involved in planning Chand’s murder; M said double hearsay of co-conspirator who had reason to lie
 Co-conspirator exception, allows evidence of what co-conspirators say out of court in furtherance of conspiracy
o Carter’s Rule: Statements made by person engaged in an unlawful conspiracy are receivable as
admissions as against all those acting in concert if declarations were made while conspiracy was on going
and made towards accomplishment of the common object
o Co evidence in only if trier believes BRD conspiracy existed and independent evidence, against accused,
establishes on BOP that accused is member of conspiracy, threshold reliability ok for trier of fact
o M wants rule set aside so B’s evidence inadmissible, Carter not meeting reliability threshold, using
corroborating evidence to bolster reliability of hearsay declarations against accused, contrary to Starr
 Court says No: proof conspiracy existed BRD doesn’t just corroborate statement, it attests to common enterprise
that enhances general reliability of what was said in pursuing enterprise
o Concern not whether statement corroborated, but with circumstantial indicators of reliability: Carter
conditions give sufficient circumstantial guarantees of trustworthiness; hearsay statements furthering
conspiracy gives reliability because less chance for contrivance if said immediately
o Co-conspirator exception meets Principled Approach: rare for evidence fitting valid exception still not
admitted because necessity and reliability lacking
 Concerns that W had own reasons to kill Chand, motive to lie, don’t go beyond concerns in co-conspirator’s
exception/principled approach; weaknesses go to ultimate weight of evidence, for jury
2. Res Gestae, Spontaneous Utterances, & Dying Declarations
A spontaneous statement relevant to an issue, made by the victim of an attack or a bystander, is admissible provided that
the risk of concoction or distortion can be excluded
 Admissible if:
o Relates to starting event or condition
o Made when declarant under stress of excitement caused by event or condition
o Testimonial factors satisfied
o Idea that something said closely following event is likely reliable, less chance of reflection/fabrication
o But often our first impression is wrong, and some people are inveterate liars
 Not relevant to admissibility
o Unavailability of declarant: hard to say when “startling” event starts and ends
o Statement doesn’t have to be made exactly contemporaneous to attack, but must be connected to act
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

Res gestae: things done, what’s been done
o Ex. Accused found in possession of stolen item, Crown must prove item is proceeds of crime and accused
knew it was stolen; if they say when apprehended that they didn’t know, accused can lead that selfserving basically oath helping statement through apprehending officer and not even take stand himself
Dying declaration is made where declarant is under hopeless fate of death, and is admissible
o Why? Theory is that because people know they are dying they will tell the truth Woodcock
o Need: 1) Settled, hopeless expectation of almost immediate death
2) Statement was about circumstances of death
3) Statement would be admissible if declarant could testify (can’t be opinion, double hearsay)
4) Offence involved is the homicide of the declarant [Wigmore says absurd]
R v. Bedingfield 1879 UK
 B had threated to kill deceased, went to her house, shortly after she ran outside, throat had been slit, and she cried
out something, then died; Bedingfield said she stabbed me first, I stabbed her back
 Words were something like “look what Harry has done”; court said not dying declaration, no direct evidence she
knew she was dying (this part is crap, has not been followed)
o Court said not res gestae/spontaneous, as it happened afterward; not said while something was being
done; suggesting she’s concocting story he did it first not her and getting it out before he tells his
 Today it would be different, time and situational parameters expanded
Ratten v. The Queen 1972 Aussie
 Retired army officer’s wife shot to death with one of his guns – was shooting accidental or intentional
 He says cleaning gun, 1:09 call from accused’s father; 1:15 hysterical sobbing woman (only woman in house is
wife) says to operator get me police; 1:20 police call house, Ratten says oops accidently shot my wife
 Court says “get me police please” in hysterical tone is evidence with two aspects:
o Circumstantial: speaking in hysterical tone in sequence with innocent call, frantic call for police, and
confirmation that he shot her – inference he was pointing gun at her, no reason she’d call police if it was
accident; like Baldree I want to buy some drugs; truth of statement she “wants police” has value
o Testimonial value: hearsay concern is risk of concoction, which is slight if there’s little time in between;
doesn’t have to be immediately contemporaneous but if statements made after event judge must make
preliminary decision that they’re spontaneous enough to fit exception, go in
R v. Clark 1983 ONCA
 C went to ex’s house, got into altercation with his new wife (deceased), she’s a stalker; neighbour witness said
heard/saw deceased yell that she had been murdered/stabbed at top of driveway “I’ve been murdered, stabbed”
 Statement is sometime after the incident, and is kind of biased by characterizing it as murder
 Court found statement to be spontaneous and likely dying declaration, overturns Bedingfield, statements do not
have to be exactly contemporaneous to the act
 What matters is inherent credibility coming with these statements; frequently it’s 911 calls for res gestae
phoning after assault giving details to operator, that call can often be led because close enough in time to event so
low risk of concoction – like here with neighbour
Sunfield 1907 OnCA
 Witness said: I said what’s the matter Andy, did somebody cut you? And he said hi Billy, no cut, Jake shoot
(Polish guy); witness said are you hurt, I’ll get a doctor; he says “no doctor Billy, me die”; true belief in death;
“Jake shoot” is dying declaration; but “me die” might fit into exceptions about how you feel
 He gave statement before he proclaimed imminent demise, so did he have belief when he gave statement? Court
said whatever it was so close to when he died, this falls into exception
 Underlying necessity is that guy is dead now; reliability is that you apparently don’t lie when you think you’ll
die; court focussing stupidly on whether it was very last minute or not
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3. Statements Against Pecuniary and Penal Interest
Statement made by a person:
o Who is not a party to the proceedings,
o Who is now deceased or otherwise unavailable, and
o Statement is incriminating or against the persons interest, inculpatory to accused not exculpatory Lucier
 Admissible if:
o Declarant is unavailable - necessity
o Statement was against declarant’s interest at time it was made
o Declarant knew statement against his interests (but not necessarily that it’d be used as evidence against
him) at time he made it – reliability is no one will say they owe debt when they don’t
o Declarant had personal knowledge of facts stated
o If against penal interests: declarant must have been aware he was opening himself to criminal liability
 Presumed trustworthiness: highly unlikely a person would make false statement against their own interest O’Brien
Three Principles from Ward (statements against penal interests)
1. Fact stated was within peculiar knowledge of the declarant
2. Fact was one to immediate prejudice of deceased
a. If it can be construed as either for or against interests, or only against interests in certain future events,
doesn’t qualify and is inadmissible
3. Declarant subjectively knew the fact to be against his interests when it was made
Five factors from Demeter for determining if statement against penal interests
1. Made to person in circumstances where declarant would have apprehended vulnerability to penal sanctions as a
result – distinguished statement made to police from that made to family/lawyer
2. The vulnerability of penal sanctions is not too remote
3. Consider declaration in totality – if overall tenor is in favour of declarant, not admissible Pelletier
4. Are there other circumstances connecting declarant with crime, any connection between declarant and accused
5. The declarant is not available to testify Pelletier
R. v. O’Brien 1978
 O’B and J charged with possession for trafficking; O’B arrested, J fled; J admits to lawyer that just J did, agreed
to testify – J then dies; J told lawyer 10 months after O’B convicted, 6 months after charges against J dropped
 Demeter Factor not met: Despite statement being to J’s prejudice, no indication J intended it to be
o Circumstances: Made to lawyer after charges against him dropped, in lawyer’s office, not furnishing
evidence against himself
R. v. Pelletier 1978 ONCA
 D, C and P roommates, C killed, D told police C had fist fight w/C, D charged, dropped, P charged, D disappears
 Statement by D admissible as statement against penal interests, despite D raising it for self-defence, it also
incriminated him; Demeter factors only #3 and #5 considered
 #3: admission of assault to police when investigating manslaughter by assault, places body where found by police,
declaration regarded in light of all evidence shows declaration of D is against his interest
 #5 Not exhaustive, D unavailable, “ any reason why declarant can’t be brought should suffice, physical
incapacity, absence from jurisdiction, or inability of party to find him (McCormick)
 D was practicably unavailable, and more incriminatory than exculpatory: hearsay admitted
R. v. Lucier 1982 SCC
 L charged with arson, D (burned in fire) made statement to police that it was his fault because L had paid him to
set fire – D then dies
 Limit on hearsay exception for statements against interest, for purpose of inculpating accused, weird; no
possibility to cross examine D, there was issue of trial fairness
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4. Business Records (Declarations in Course of Duty)


S.29 CEA: a copy of an entry in a book or record kept by a financial institution is admissible as proof, in absence
of evidence to contrary, of the entry and of all the matters/transactions recorded therein, provided that the entry
was made in the normal course of business, was an ordinary record of the financial institution, and was in the
custody/control of the institution and is a true copy
S.30 CEA: where oral evidence of a matter would be admissible, a record made in the usual and ordinary course
of business that contains info in respect of that matter is admissible
Ares v. Venner
 Ares skiing in Jasper, fractured leg, Dr. Venner took him at hospital, under anaesthetic, cast; nurse recorded Ares
had no feeling in foot, didn’t improve, Dr checked a few times; leg amputated; Ares suing for negligence
 Modern rule makes admissible a record containing: (i) an original entry (ii) made contemporaneously (iii) in the
routine (iv) of business (v) by a recorder with personal knowledge of the thing recorded as result of having done
or observed or formulated it (vi) who had duty to make record and (vii) has no motive to misrepresent
 “Original entry” need not be made personally by a recorder with knowledge of thing recorded, it’s enough that
recorder is functioning in usual and ordinary course of system in effect for preparation of business records Wilcox
 Nurse’s notes meet modern conditions: hospital records contemporaneous, personal knowledge of matters
recorded and under duty to record is evidence prima facie of proof of facts; party can challenge accuracy still
R v. Martin 1997 SKCA
 Martin charged with defrauding Canadian Wheat Board of $1000, overstated amount of wheat and barley on hand
so CWB would advance him more money; using evidence of average crop yields in cities where he farmed,
looked at Statistics of gov’t departments, TJ said No, Martin can’t say how Stats Can collected info
o S.30(1) CEA double hearsay: info in record given to keeper who had no knowledge of its accuracy is ok
o S.30(6) CEA court can consider circumstances where info written, exclude double hearsay documents
o Anthes corporate files from info from person who got it from another; court said OCB, not 2x hearsay
o Penno admitted written record of inventory numbers prepared by person based on other’s info, “
o Grimba expert didn’t make record, no personal knowledge of accuracy, but described FBI repository for
fingerprint records, records admitted because systematically stored, produced and regularly relied upon,
under s.30 shouldn’t be barred from court, not 2x hearsay
o Biasi: when record made info was received from another party, isn’t inadmissible hearsay; CEA allows
such records as proof of facts in them even if record maker got info from other party so long as facts
recorded would themselves be admissible; s.30(1) allows document in OCB even if it’s 2x hearsay
 Policy: avoid cost and inconvenience of calling record keeper and the maker, just let documents in OCB in; and
matter of necessity document admitted; proof that document made in OCB prima facie fulfils qualification
hearsay must be trustworthy to be admitted; S.30 would accomplish little if author of data had to testify
R v. C.L. 1999 ONCA
 Factual statement in [medical records] hearsay and not evidence which you can consider if you read the material:
letter supporting abortion being performed; said 13 year old girl (CL’s wife’s sister), had pregnancy from 2 year
relationship with 15 year old, but appellant is 26 so evidence would implicate someone else
 Hospital records and letter admissible as business records made in OCB by responsible for making records
 Even if letter isn’t business record, hearsay admissible if reliable and necessary: hospital ppl can’t recall specific
event, no reason not to rely on record, not falsely recorded info suggested; judge can’t say it’s hearsay and ignore
R v. Larsen 2001 BCSC
 Autopsy report and other report of Dr. pathologist, Crown wants it in as declaration made in course of duty, or
principled approach; defence says hearsay; Dr now dead and unable to testify; another doctor corroborated
 They are records in course of duty: created routinely, relied on for business purposes, no motive to misrepresent,
duty to create and fear of dismissal if recorder fabricated; Dr had personal knowledge of info; Supplemental
report fails contemporaneous requirement
 Principled exception: necessary since dead, reliable threshold for both reports, circumstantial guarantees of
trustworthiness and corroborated by other Dr
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5. Testimony in Prior Judicial Proceedings


S.715 Criminal Code: testimony taken at prior judicial proceeding admissible in current proceeding if:
o Given at previous trial/prelim hearing involving same accused/charged
o Hearsay declarant dead, practicably unavailable, refuses to testify
o Testimony made in front of accused, signed by judge as being reliable/trustworthy
o Accused had full opportunity to cross examine the witness
 If accused chose not to cross examine for strategic reason, too bad
 If given in absence of accused because accused absconded, accused deemed to have been present
o Section confers discretion on judge to still exclude if it would be unfair/prejudicial Potvin
BC Civil Rules (54): re testimony from prior civil proceedings:
o Witness dead/practicably unavailable, court may permit testimony given under oath from any prior
judicial proceedings, whether or not involving same parties, if other party given reasonable notice
R. v. Potvin 1989 SCC
 P, D and T conspired to rob deceased, killed her in process; D testified at prelim hearing but refused to testify at
trial; crown applied to have testimony admitted through s. 715; D claimed s. 715 unconstitutional
 S.715 constitutional, doesn’t violate s.7 Charter (fair trial): only allows evidence where accused had opportunity
to cross ex aka still “full opportunity” to cross-ex, plus confers a judicial discretion to prevent unfairness
6. Prior Criminal Convictions
Criminal conviction of accused can be used offensively as evidence in a civil proceeding where the conviction would be
relevant evidence to an issue in the civil matter
 S. 71 BCEA:
o Person convicted/found guilty of offence and that offence is related to current proceedings, proof the
conviction admissible to prove a person committed the offence, whether or not person is a party
o If action is before jury, party has right to voir dire to argue that PV of the conviction is outweighed by its
PE and ought to be excluded
7. Statements Concerning Bodily and Mental Condition
A statement about declarant’s bodily/mental health, contemporaneous with the condition described, are admissible


Person claims to be experiencing a particular physical condition; reliability from spontaneity Youdon
o No other way to determine facts asserted in statements; we don’t know what other pain or feeling or
emotion another person is suffering, fact that statement is made at the time by the person feeling it makes
it more likely true
o Statements of this made to doctor thought more weighty than otherwise, since you’re unlikely to mislead
someone who is giving you treatment or assistance
Not admissible:
o Statements of past pain
o Statements as to cause of pain
Youldon v. London Guarantee and Accident Co 1910
 Y lifts beam at work, says right after he thinks he hurt himself – subsequently dies of bacterial infection believed
to have been caused from work injury; lifting end of 600 lb beam on his own while co-workers together lifting
other end; went out later and had ice cream but not well
 Is this worker’s comp covered?
 Y’s statement to co-worker admissible: contemporaneous, and that action could have been one way of bacteria to
invade, so court reasons lifting was cause of injury injury led to bacteria bacteria led to death
 Unlikely to be false, credible, hallmark of spontaneity; there is some flexibility on contemporaneity
 Note: had he said he hurt himself “because he lifted the beam” this wouldn’t be admissible because of the further
assertion as to the cause of the injury
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8. Statements of Intention
Relevant if acted upon; sometimes regarded as aspect of statements of mental condition, intention is like a mental state
 Admissible where statement is:
o A description of declarant’s own present state of mind (emotion, intent, motive, plan)
o State of mind of declarant is relevant if explicit
o Made in natural manner
o Not under circumstances of suspicion
 How it can be used: can prove declarant’s state of mind, but not someone else’s; in many cases state of mind of
declarant relevant because circumstantially it may prove something of state of mind of other person P(R)
 Statements which permit inference as to declarant’s state of mind are original testimonial evidence admitted as
circumstantial evidence from which state of mind can be inferred – being offered not for truth of contents but for
the fact they are said Ratten
 NOT used to prove past acts or events referred to in the statement
 Ex. Deceased had entry in day planner on morning of his death, “book cruise for anniversary”, wife saying he
accidently shot self while cleaning gun, insurance company says its suicide – this is being adduced for its truth
sort of: whether he actually did book the trip or mean to doesn’t matter but it shows intention to keep living
Mutual Life v. Hillmon 1892 US
 Mrs. H trying to collect insurance money; issue is whether H is dead, or if body found was W – W had written
letter stating he planned to travel to area with H, where his body was then found; maybe was trying to fake death
o H wants letters allowed to prove that W carried out intention to go to Wichita and that H went with him,
since if he went it might be H’s body found
 Must be connection between stated intention and act: letter relevant as evidence that shortly before time when
other evidence showed he went away he had intention of going away, makes it more probable that he did go there
o Letters were competent not as narratives of facts communicated to writer by others, nor as proof that he
actually left Wichita, but as circumstantial evidence that shortly before time when other evidence tended
to show that he went away, he had intention of going, and going with Hillman, which made it more
probable both that he did go and went with Hillman than if there had been no proof of such intention
 After his death, no other way to prove, and while he’s alive, his own memory of his state of mind at former time
is no more likely to be clear and true than a bystander’s recollection of what he then said, and less trustworthy
than letters written by him at the very time and under circumstances precluding a suspicion of misrepresentation
R. v. Wainwright
 Deceased made statement when leaving her house that she was going to house of HW, the accused
 Statement not admissible, it was only an incidental remark to act of leaving – only a statement of intention, which
may or may not have been carried out
R. v. P.(R.) 1990 ONHC
 Court accepted utterances made by deceased to several witnesses showed state of mind that: deceased unhappy
with relationship, feared accused, going to end relationship, intended to permanently cease involvement with him
o All those states were established by statements except fear
 Relevance: state of mind permits inferences that she had intention of ending relationship, giving motive for P to
kill her when combined with other evidence
o Circumstantially relevant: accused is killer, motive of rage, which goes to prove ID of killer
o Permit inference to her state of mind, as testimonial evidence and admitted as circumstantial evidence
from which state of mind can be inferred; hearsay that leads to inferences
o State of mind is circumstantial evidence that she acted in accordance with intention
 Not showing deceased’s state of mind or his reaction to her stated intention, or that past events actually occurred;
proving motive NOT his intention, which then goes to ID
o Then PE vs. PV: jury may use evidence of utterances for other than inferences on her state of mind, may
infer that accused was tyrannical obsessed with controlling deceased, then infer he’s sort of person who
would kill someone who challenges him- which is logical but propensity; supposed to be motive
 Note: even where relevant, remember to weight PV against PE
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Principled Approach to Hearsay
Admissibility = presumptively inadmissible hearsay
- Reliability: made in circumstances that don’t raise concerns, or there are ways of testing reliability Khan, KGB
o Presence of other corroborating evidence may test reliability Khan
o A function of circumstances statement made in: do circumstances negate possibility of unreliability Smith
o Adequate substitute to cross-examination for reliability: KGB statement,
 Applies in context of witness recanting prior inconsistent statement
 Prior inconsistent statement made under oath/affirmation similar to one given at trial U(FJ)
 Statement made after warning given as to seriousness/consequences of lying, importance of truth
 Statement videotaped with time ticker: demeanour, nothing edited out/confused while transcribed
 Opposing party has full opportunity to cross examine the witness respecting the statement
 Note: Judge retains discretion to exclude
 Note: does not have to follow this exact format, provided that reliability is still present
o Either/Or/ Both: Inherently trustworthy statement OR adequate substitutes for testing reliability Blackman
- Necessity: means reasonably necessary
o May be found where psychological trauma would be caused by requiring declarant to testify Khan
o Necessary to prove a fact in issue, not necessary as in necessary to prove the prosecution’s case Smith
 Not intended to produce result where uncorroborated hearsay evidence is admissible while
corroborated hearsay evidence is inadmissible
 Can’t get evidence in indirectly through hearsay if you couldn’t get it in directly
o May be made out where there is prior inconsistent statement, by fact that the evidence of the same value
cannot be received by the recanting witness or another source KGB
 Note: even where reliability and necessity are met, judge considers if the statements are otherwise inadmissible
because of another exclusionary rule Couture
Principled Approach in Smith (as refined in Khelawon)
Otherwise inadmissible hearsay admitted under principled exception to hearsay rule if:
1. It is Necessary: The direct evidence from the declarant is not reasonably available
2. It is reliable: Satisfied of the reliability of the evidence despite lack of cross-examination and observation under oath
3. Its PV outweighs PE
Traditional Exceptions after Starr
- Traditional remain presumptively in place
- In rare cases evidence in existing exception may be excluded because necc and reliab lacking in this case
- Hearsay evidence not under trad exception, may be admitted if reliability and necessity established on voir dire
R v. Post Principled Approach Summary
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
Hearsay is out of court statement for truth of contents, w/o contemporaneous opportunity to cross-ex declarant
Hearsay evidence is presumptively inadmissible
It is inadmissible because generally it’s not possible to test reliability of hearsay statement
Hearsay statement may be admitted for its truth if shown to be both necessary and reliable
Its reliability must be sufficient to overcome dangers arising from difficulties of testing it
Onus of establishing on BOP both necessary and reliability is on person seeking to adduce evidence
Overarching principle is trial fairness: rights of accused, societal concerns including truth as goal of trial process
2 main ways to Reliability: i. Circumstances when statement made, give no real concern about its truth, as in
dying declarations, spontaneous utterances, Khan/Smith; ii. Its truth and accuracy can be sufficiently tested, like
oath or equivalent, chance to observe statement being made (ex video), or to cross ex on earlier statement KGB
Trial fairness means PV over PE
TJ satisfied on BOP that statement wasn’t from coercion i.e. threats, promises, leading excessively by authority
figure/investigator
Threshold reliability (legal question for judge) vs. ultimate (trier of fact)
Starr extrinsic not allowed – but in Khelawon that was overturned; take functional approach
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R v. Myers 1965 UK
 Old approach problem: Highly reliable, conclusive proof excluded on basis it did not fit within “course of duty”
or “business record” exception as there was no evidence that maker of record was dead
 Each car has engine and chassis number, and a block number, indelibly stamped on engine; workman writes down
the 3 numbers on a card which is destroyed after being photographed on microfilm
o Accused charged with buying wrecks, stealing new cars ID, then affixing chassis and engine number
plates from wrecks to stolen to make them look genuine and sell
o Different block number proves not genuine; microfilm would prove conclusively accused sold stolen cars
 But exception didn’t apply: author of record couldn’t be determined and dunno if he’s dead
 Maj says: we’re going to be technical, not principle or common sense, because being flexible is against public
policy by creating uncertainty; let parliament fix disagreement between strict rules and common sense
 Minority (Lord Pearce) says rules created by judges over time, so change them when it makes sense; justice
shouldn’t be blind to truth; what would witness say anyway about his writing in cross-ex, yeah I wrote it down,
wouldn’t change trustworthiness of evidence
Ares v. Venner 1970 SCC
 Business records; court should adopt minority view in Myers; Don’t need author of record to be dead
R. v. Khan 1990 SCC
 Girl told mother K doctor “peed in her mouth”; by trial girl didn’t remember but mother remembered what
daughter told her and wants to testify; kid had wet spot on sleeve which was mix of semen and saliva
o Girl not competent under CEA, but SCC later found that was wrong , just needed to promise to tell truth
 Mother’s statement didn’t fit any categorical hearsay exceptions, not res gestae, obviously hearsay
 Categorical exceptions create certainty but inflexibility, moving to Principled Approach
 Necessary: yes, girl found incompetent to testify herself, also concerns of psychological trauma
 Reliable: yes, statement made in disinterested manner, she was too young to have known that what happened was
a sexual assault, made before any suggestion of litigation, no reason to fabricate, statement corroborated by wet
spot; rule be applied to kids more liberally esp. with sex assault
 From Ares v. Venner could require kid to be present for cross-ex, but reliability could be matter of weight for jury
to determine, not mandatory – receive comments if they meet necessity and reliability
R. v. Smith 1992 SCC
 S charged with killing; deceased called mother – first two saying that S had left her at the hotel, 3rd saying he
came back and is driving her home, 4th saying she was on her way, body found near that payphone
 Necessity met for all of the phone calls: deceased’s statements NOT present intentions or state of mind exceptions
 First 2 calls: reliability met, deceased had no reason to lie
 Third and fourth call: reliability not met
o Reason to lie: alleviate worrying, prevent mom from calling P, who deceased didn’t like, to pick her up
o Mom had called her a cab which denied her fare; she was seen getting out of cab and going directly to
phone booth, suggests lack of time to confirm S had come back and he was going to give her a ride
o Deceased travelling under false name with stolen CC, capable of lying
 Crown wins to get 2 hearsay statements in, but both about how Larry isn’t there which doesn’t help their case
 Court is looking at the way the statement came about, circumstances indicating nothing to be gained by cross-ex
and no motive to mislead; let jury decide weight; admit statements that meet necc/reliab and of PV over PE
 Reliability: going to inherent nature and circumstances of giving statement, like Khan, unlike KGB
R. v. KGB [B(KG)] 1993 SCC
 KGB charged with murder, 3 friends said KGB told them he did it, at trial all refused to adopt prior statements,
admitted they said it but they were lying to exculpate themselves from involvement; all 3 pled guilty to perjury
 Crown wants prior out of court statements in police reports/video of statements to police for truth of contents
 Hearsay:
i.
Prior statement relating direct evidence about material fact (I saw Y fire the gun) – no barrier
ii.
If repeating evidence of another person (X said he saw Y fire the gun) – not substantively admissible for truth
of other person’s evidence, could prove that statement made to the witness not that Y fired gun
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Present case (Y told me he fired the gun) relates hearsay, repeats evidence of another person like ii. but –
exception applicable because admission applies to prior statement, as if prior statement had been witness’ sole
testimony, circumstantial guarantees can allow it in
o Crucial that matters in prior statement would have been admissible if offered as witness’ sole testimony
Necessity: yes, only other evidence was “dock” ID of accused by deceased’s brother, unreliable
Reliability: sets out standard for admitting prior inconsistent statements
1. Must prove on BOP statement was voluntary
2. Dangers: no oath, no presence of witness, no contemporaneous cross-ex
3. Reliability concern over 3 conditions alleviated if: police put witness under oath before court, warn
witness of criminal repercussions for lying, available video, video in real time so demeanour and any
prejudicial events can be seen, witness produced and available for cross-ex
Videos big part of how statements for truth of contents can be taken out of court, after Milgaard procedure
Unlike Smith, this isn’t inherent circumstances when statement given, but other technical 3 Conditions, shows
other way of ensuring statement is reliable if those conditions met
Voluntariness of evidence needed on BOP; while test on proof is BRD
(Concurring) Conditions for determining admissibility: a) evidence in prior statement would be admissible if
given in court; b) statement voluntarily by witness, not from undue pressure/threats/inducements; c) statement
made in circumstances, viewed objectively, would highlight importance of telling the truth to the witness; d)
statement is reliable as fully and accurately transcribed or recorded; e) statement made in circumstances that
witness would be liable to criminal prosecution for giving deliberately false statement
iii.
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R v. Hawkins
 Spousal competency; not KGB but uses process for prior preliminary inquiry evidence; necessity test, and she was
previously under oath and cross-ex’d, fulfils reliability
R v. Starr 2000 SCC
 Deceased gets out of jail, spends evening with Gf1, next day with Gf2 and they go drinking, meet with couple The
Balls, will give them ride home, drunk; waiting at gas station, Gf1 comes up, concerned that Gf2 is there, doesn’t
confront him yet; Gf1 talks to deceased – she is witness, relevant statement: deceased says I have to go with
Robert (accused) to do Autopac scam and I’ll get $500 for wrecking vehicles for insurance purposes
 Accused said “we better get this done now”, The Balls say they leave when Gf1 talking to deceased; notice there’s
car following, maybe accused; Gf1 sees something on TV about a car she says “I think I saw that with accused in
it when we’re at gas station”; other witnesses hear popping and crunching, deceased and Gf2 killed in car
o “I’m going to do Autopac scam” Crown said proves he intended it, more likely carried it out, and
impermissible argument that deceased carried out = deceased’s intention used to prove accused intention
o Did exception for present intention meet tests of necessity and reliability; in contest of traditional and
principled approaches, traditional must yield to comply with necessity and reliability requirements
o Traditional doesn’t require statement be made in non-suspicious circumstances, so it didn’t meet
reliability; so we must now read in that statement not made in circumstances of suspicion
o Court said circumstances of suspicion: Gf1 being covert, mad, deceased’s statement may be excuse so he
can go with Gf2, she says unusual for him to talk about business, suspicious that he’ll actually carry it out
 Double hearsay: Intention of declarant to establish intention of 3rd party (accused) aka accused telling deceased
he intends to do it, that’s how accused knows deceased intends it, deceased tells declarant accused intends to do it;
or acc tells 3P who tells deceased who tells witness
 Division of duties between trier of law (threshold reliability) and of fact (ultimate reliability), threshold must be
limited, look at statement itself and how it came about, not in relation to rest of case/evidence [but that’s
inconsistent with Khan which considered corroborating evidence]
 Where evidence fits an old categorical exception, it is presumptively admissible, but open to other side to
argue that evidence is not necessary/reliable, so principled approach trumps categorical
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R v. Mapara (see above), clarifies Starr
 Necessity met because co-accused in a conspiracy case isn’t compellable one against other (since it’s both of their
trials), undesirable to try them separately; inherent value of statements can be lost to time
 Traditional exceptions still in place, but can be challenged to determine if it’s supported by indicia of necc/reliab,
exception can be modified to bring it into compliance
 In “rare cases” evidence falling within existing exception may be excluded where indicia absent in particular
circumstances of the case; if evidence doesn’t meet hearsay exception it may still be admitted where indicia are
established on voir dire
R. v. Khelawon 2006 SCC
 K charged with assaulting residents of seniors home, 4 of 5 residents dead by time of trial, 5th not competent to
testify; residents had given statements to police and others about abuse, videotaped- KGB principles, not under
oath, but warned of legal jeopardy of giving false evidence, did have full video, and witness had died before trial
 Necessity: met – none of victims available to testify
 Reliability: videotaped evidence not reliable due to circumstances
o Statements cause concerns of mental competency, understanding of consequences, being influenced to
make statements by disgruntled employee; injuries could have been caused by falling down
o Officer admitted to having to prompt at certain points to get S back on topic
o Statements by other victims not “strikingly similar”, posed difficulties on their own; would have had to be
accepted based on their own inherent trustworthiness
o Problems with police actions: while victim alive could take commission evidence under CC
 Not enough to say witness died, police must take steps while he was alive to make evidence good
o Starr threshold and ultimate reliability separation makes sense, but sometimes threshold means you must
look at corroborating evidence like Khan; the two strands of Khan/Smith and KGB aren’t mutually
exclusive, may have aspects of both which together meet reliability standard
 Court taking “Functional” approach to Reliability
o Criticism: Crowns must needs voir dire KGB statements, and lead corroborating evidence to meet
reliability standard; even if not supposed to run full trial before it goes to trier of fact they’re doing it,
more discretion to court, longer voir dires
 Two ways to be satisfied as to reliability:
1. Circumstantial guarantee of trustworthiness: statement made in circumstances which negate concern that
declarant mistaken or lying; corroborating evidence; TJ start with premise that hearsay presumptively
inadmissible then search for indicia of trustworthiness, no reversing onus (Blackman)
2. Functional substitute for oath, observation, and cross-ex: video evidence, party opposing statement has
opportunity to cross-ex witness in full so they can say why prior statement not true, trier of fact convinced no prerecording malignant influences KGB
R v. Blackman 2008
 Concerns about credibility of witness are not the concern of the principled approach, they can be addressed by
cross-ex; concerned about reliability of declarant and their statement
 Remember, presumptively inadmissible hearsay, do analysis, otherwise might risk reversing onus
 Reliability types (threshold and ultimate) not mutually exclusive
R. v. Couture
 C charged with murder, had confessed to Mrs. C before they were married, Mrs. C gave statements to police
while they were estranged, at time of trial C’s had reconciled
 Statements could not be admitted through hearsay because to do so would be to violate principle behind spousal
incompetency rule
 Avoiding Spousal Incompetency rules by doing Principled Approach would be back-dooring it; clearly shows
why you can’t use principled exception to let in otherwise inadmissible evidence
 Note re reliability: just because Mrs. C had made similar statements to several others, this does not mean they are
reliable – she could be a consistent liar
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OPINION EVIDENCE
The General Exclusionary Rule
Opinion evidence is generally inadmissible –role of witness is to testify to facts of which they have personal knowledge,
opinions based on those facts generally irrelevant and therefore inadmissible
 Fundamental principle of system of justice: up to trier of fact to draw inferences from the evidence and form his
opinions on the issue in the case; facts and inferences are building blocks of opinions R v. K(A) 1999
 Inference: forming conclusion from factual premises; I’m wet and was outside, so it was raining outside= fact; see
someone coming in with wet jacket and umbrella, you infer it’s raining= inference, indirect circumstantial
evidence not opinion
 2 exceptions: Lay opinion; Expert opinion
Lay Opinion Exception
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Ordinary witness permitted to communicate perceptions in form of opinion on matters that are:
o Within common knowledge
o Based on multiple perceptions that can best be communicated in a compendious format
Opinion must be something that an ordinary person can testify & give an opinion on:
o Identification of handwriting
o Apparent age
o Bodily plight or condition of a person, including death/illness
o Emotional state of a person (distressed, angry, etc)
o Condition of things (new, worn)
o Certain questions of value – ex. Jaguar drives by and you know it’s worth more than a Toyota
o Estimates of speed & distance
o Have witness state opinion, then describe exactly what they observed that led to opinion
Admissibility:
o Evidence must be “helpful” witness is in better position to form the conclusion
o It must be sort of thing upon which non expert can form an opinion
o Opinion must be really just “an abbreviated version of the witness’ factual observations (and inferences) ”
in a situation which it would be cumbersome or impossible to break down the facts
May not give opinions on a legal rule (can say someone driving carelessly, not negligently – that’s legal standard)
Ex. I’ll never forget those cold blue eyes – may sound like true fact; but it’s sufficiently unreliable that it requires
special warning to jury before they rely on it
When someone ID’s person in court room, they are forming opinion from the facts and circumstances that this is
the person they saw on the earlier occasion; need to justify that opinion
R. v. Graat 1982 SCC
 G charged with impaired driving, officers gave said based on accused’s behaviour it was their opinion that he was
driving under the influence of alcohol: court admitting opinion evidence on the very issue in the case – was G
driving while impaired
 Opinions about intoxication within abilities/capacities of the lay person, reasonable to allow witness to give an
opinion if it is compendious to a statement of fact – opinion evidence accepted
Expert Opinion Exception
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
Expert evidence is an opinion that the person gives as an area of his expertise
Provides ready-made inference when too complicated, or break down so trier of fact forms own conclusions K(A)
o Problem: Doctors don’t understand difference between advocating for medical path and advocating
legally for outcome; experts can be influenced by people who hired them, like engineers
o Problem: scientific language which the jury does not easily understand and submitted through a witness
of impressive antecedents, accepted as virtually infallible, more weight than it deserves Mohan
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Presentation and Evaluation of Expert Evidence Paciacco and Struesser
1) Expert Training
 General info; can be done without expert commenting on the case, trier of fact makes own conclusions
o ex. Phenomenon that abused children may continue to associate with their abusers
2) Expert Opinions Based Wholly on Personal Observations:
 Testify as eyewitnesses to underlying facts, then offer expert opinion on what those facts signify; rules apply to
opinions offered, not testimony they’ve observed unless observations can’t be made without expertise
o ex. Burn expert in Marquard who examined the burn before diagnosing
3) Expert Opinions based in Whole or Part on Hearsay or Inadmissible Information:
 They may conduct investigation prior to trial that includes interviewing witnesses or reading documents, then
offer opinion based on the facts they have “found”
 Trier of fact needs to know basis for opinion to be evaluated, expert can relate any inadmissible info they have
relied on including hearsay (judge supposed to forget it), allows trier to evaluate opinion, not to be proof of facts
o Abbey Rule: before the trier of fact may rely on opinion there must be admissible evidence that proves
hearsay info supporting opinion true, not on every fact, just some admissible evidence Lavallee
o SCC indicated if expert obtains and acts on info within scope of expertise which doesn’t come from party
to litigation, trier of fact can weigh opinion even if it doesn’t meet hearsay exception: B(SA) DNA report
o ex. Lavallee psychiatrist diagnosed accused as suffering from battered woman’s syndrome based on
conversations with her, mother, hospital records (convo’s couldn’t be proof of events accused described)
4) Expert Opinions Secured by Hypothetical Questions:
 Haven’t done own investigation, but asked for opinion on proper inference arising from facts of case evidence
 Expert can’t hear evidence and decide truth of facts opinion will be based on; party calling expert gives
hypothetical scenario reflecting facts the party hopes trier will find, if trier finds them, the opinion can be applied
 Offering conclusion he would draw based on facts offered, so trier may adopt conclusion without critical analysis
o Ex. R v. K(A) state of learning about behaviours exhibited by sexually abused children was insufficient to
enable expert to respond to hypothetical question about whether complainant had been sexually abused;
but sufficient for expert say the kinds of misbehaviours described in hypothetical could be result of sexual
abuse, educated jury on what to make of defence claim that c’s behaviours made her less credible person
5) Presenting the Expert Evidence and Explaining the Evidence to Juries:
 Counsel who called expert should ask witness to explain himself in language layman can understand Theriault;
SCC discourages TJs translating expert evidence into simpler language, technical evidence loses precision
The Mohan test for admitting expert opinion evidence
1. Relevance:
a. Threshold requirement – to be decided by judge as a question of law
b. Cost benefit analysis – does PV outweigh PE
c. Is testimony likely to assist or confuse/confound jury in fact-finding mission
d. Is jury likely to be overwhelmed with “mystic infallibility” of evidence, or objectively assess value
2. Necessary in assisting trier of fact:
a. Function: provide trier with ready-made inference which trier, from technical nature of facts, can’t form
b. If on the proven facts trier can form their own conclusion, expert not necessary
c. Necessary in providing info outside trier’s experience, subject ordinary ppl unlikely to correctly judge
d. Balance potential to distort fact finding (why credibility or oath-helping evidence excluded) Marquard
3. Evidence is not prohibited by any other exclusionary rule
a. Even if other criteria are met, not admissible if it would be excluded under any other rule (ex hearsay,
opinion of accused’s credibility where credibility not put in issue)
4. Expert Qualified
a. Must consider if it is a legitimate area of recognized expertise (Trochym), and if the particular expert is
qualified in that area of expertise (through knowledge or study)
b. Novel Science Factors for evaluating reliability Trochym/ R v. J-LJ 2000 SCC:
i. Whether the technique has/can be tested
ii. Whether the technique has been subjected to peer review and publication
iii. The known or potential rate of error
iv. Whether the theory or technique is generally accepted
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Re-structuring Mohan Test in Abbey (ONCA)
1. Four Preconditions for Admissibility; how they interrelate
a) Subject matter properly the subject of expert opinion evidence
b) Relevance
c) Properly qualified expert
d) Absence of exclusionary rule
2. Gate keeper function: is the evidence sufficiently beneficial to warrant the potential harm?
Essential Features of New Expert Rules
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1. No expert evidence without serving written report 84 days before trial; duty of experts Civil Rule 11-2
2. Reply report to be in writing and served 42 days before trial Rule 11-6
3. Report must set out qualifications, assumptions, or facts relied on Rule 13-6
4. Must set out detail of opinions
5. Report admissible in evidence Rule 11-7
6. Must produce expert’s file for examination by other side before trial
7. Must produce expert for cross-ex at trial on demand Rule 13-7
8. Expert can only testify in chief at trial to explain terminology in report, can’t add opinions
Family Rules 13-3, in some cases, must use joint expert ex. To value family home, one appraiser not 2
BC Expert Reports Rule 40A:
 Must have 60 days’ notice of expert testimony to avoid “ambush by expert”
 Must file report and give notice of:
o Intention to call expert, or Intention to not call expert
CEA s.7: in any trial or other proceeding, where anyone intends to examine as witness a professional or other experts
entitled to give expert opinion evidence, not more than five can be called by either side w/o leave of court
o Policy: avoid case degenerating into contest between experts
Criminal Code s.657.3:
(1) and (2): proceeding by affidavit (get evidence written and disclose to both so they can understand and investigate)
(3) Notice requirement for Crown (notice in reasonable period before trial) and Defence (must meet principle of case)
(4) Remedies for lack of notice (used to be 2 weeks, impossible to find another expert to analyse, respond)
(5) Other orders where notice and materials provided
o Permits expert reports, supported by affidavit, to be admitted on any issue in lieu of calling witness, though court
can require them to testify in chief or cross-ex; i.e. experts for blood/breath samples in DUI or narcotics
o Accused need not furnish actual expert report until close of Crown case
o No authority here to exclude expert evidence for non-compliance R v. Horan
BCEA s.10 [supplanted by Civil procedures mostly] – relevant in some administrative tribunals
(3) statement in writing setting out opinion of expert is admissible in evidence if at least 30 days before a copy is
furnished to every party adverse in interest
(5) If written statement given, any party can call expert (6) If doing that materially add to written, they pay costs
BCEA s.11: Expert opinion only given if written statement of opinion and facts its formed on is furnished min 30 days
before expert testifies, to every party adverse in interest
BCEA s.12: s.11 only applies to civil
Written Authorities to Examine and Cross-examine Expert
 Books and articles technically hearsay when relied upon as providing accurate info; but hearsay explanation of
expertise isn’t treated as problematic, it’s inherent in nature of study
 Can’t rely on books and articles in examination or cross-ex of experts unless certain criteria are met
 Expert can refer to and quote other authorities while testifying in chief if he adopts the opinions by agreement
 Expert can be cross-ex’d using texts, articles, studies, only where she acknowledges works used are authoritative;
if she accepts authority but rejects conclusions, she can be asked to explain, relevant to her credibility
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R. v. Mohan
 Facts: M charged with sexually assaulting 4 young girls, wanted expert testimony that circumstances of assault
matched someone who was psychopathic, and M didn’t fit that profile
 Rejected – science is not developed enough to characterize between “ordinary” and “extraordinary” sexual
assaults – not convinced that expert was reliable/that this was an actual area of expertise
R. v. Lavallee 1990 SCC
 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 Admissibility of Psychiatric testimony re: battered woman syndrome, why this may fit self-defence
 Relevance: ability of accused to perceive of danger from her mate, which goes to determining if elements of selfdefence are made out – yes it is relevant
 Necessary: few ordinary people understand battered women syndrome, expert evidence can dispel myths around
why women stay in abusive relationships which could adversely affect consideration of bws – 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, ok, facts upon which an opinion is based do not have to be proven before opinion is admissible
o Wilson: up to jury to decide whether accused’s perceptions and actions were reasonable. Expert evidence
does not and cannot usurp function of jury; jury is not compelled to accept the expert’s opinions, but
fairness and integrity of trial process demand that the jury have the opportunity to hear them
 Qualification of expert – psychiatric recognized as expert field
 As knowledge expands, capacity of triers to understand types of evidence expands, expert may no longer be
required in certain areas
 May be required to challenge questionable presumptions about human nature imbedded in common perceptions
R. v. Trochym 2007 SCC
 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
 Gate-keeper for reliability like R v. J-LJ
 Court sets out/applies factors to consider for evaluating reliability of novel sciences
o Hypnosis accuracy/effect difficult to test
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 on 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; admissibility of scientific evidence not frozen in time
R v. Walizadah 2007 ONCA
 ID of killer in murder appeal; no eyewitness, no forensic evidence linking appellant to crime; based on testimony
of deceased’s wife, Nafisa, that appellant had confessed to her
 W says error admitting video re-enactment, and allowing police to provide opinion about what it showed
o Ruling: i) not one-sided, ii) fairly accurate, iii) relevant and material
 Test for Admissibility of Video Re-enactment
o Overriding principle is whether PE outweighs PV
o TJ should consider relevance, accuracy, fairness and whether what it portrays can be verified under oath
 In MacDonald video lacked PV: many inaccuracies, shot at different time of year and day, different location (city
vs. sand quarry), different speed, vehicle; highly PE because portrayed only police officer’s version of events
 In Collins: experiment evidence, TJ discretion PE over PV; degree of similarity between replication and original
 In Nitkitin: video admissible, some differences but can’t perfectly replicate; key that TJ comprehensive and
scrupulous in charge to jury on issue, ID all factors defence says should diminish weight;
o “Re-enactment” where replicating conditions and some but not all relevant events
o “Experiment” where partial re-enactment purpose to ID ex. Point of first perception of bus
 Opinion testimony: significant, not most important evidence; key evidence was surveillance video; TJ told jury;
not error even if fact and opinion mix; can’t say van on video seems similar to one driven by accused
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CREDIBILITY – Goes to “witnesses”, though could be classed as exclusionary rule
General Rule
The credibility of each witness is a fact in issue – if someone does not testify, their credibility is not in issue
Credibility and Reliability
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Credibility and reliability are different
Credibility has to do with witness’s veracity
Reliability has to do with accuracy of witness’s testimony
Accuracy engages consideration of witness’ ability to accurately observe, recall and recount events
A witness who lacks credibility on an issue is incapable of giving reliable evidence on the issue
On the other hand, an otherwise credible witness may give unreliable evidence on an issue or point
Assessing Credibility and Demeanour
Distinguish between:
1. Is the witness telling the truth?
o Credibility in this sense is what is at stake at trial
o This can be cross-examined and probed fairly freely
2. Is the witness a truthful person?
o Credibility in this sense is a relevant but collateral issue – it doesn’t relate to the substantive issues in the
case, presents risk of distracting the jury/taking up time – however may be relevant in that a truthful
person is more likely to tell the truth than a person who is not truthful
o Cannot lead evidence, the only relevance of which is to (dis)prove the credibility of the witness
Means of Assessing Credibility White
 General integrity and intelligence of the witness
 Powers to observe, capacity to remember, accuracy in statement
 Is witness honestly endeavouring to tell the truth?
 Is witness sincere/frank, or biased/reticent/evasive
Advantages of Witness Testimony over Out of Court Testimony (Hearsay)
 Trier can observe witnesses reactions to questions, hesitation, degree of commitment to statements made
 Trier can assess relationship between interviewer and witness – testimony may be product of questioning
Credibility Should be Assessed in Context of All Evidence Norman
 Demeanour is not always a reliable or sufficient indicator of credibility
o Looking someone in the eye means different things in different cultures
o Witness convinced of statement may be persuasive even if statement is false
 Test of Truth of interested witness’ story, when there is conflict of evidence, is its harmony with preponderance
of possibilities which practical, informed person would readily recognize as reasonable in that place/conditions
R v. Norman
 Alleged rape, complainant said no memory just fear before she went to therapy
 TJ relied almost exclusively on impression of complainant in witness box; credibility solely on good demeanour
 But issue isn’t just complainant sincerely believes evidence true, but if it is reliable; judges have no divine insight
 Real Test of Truth (as above)
R v. Jeng
 Engineering students, Jeng lured girl into apartment, assaulted
 Arbitrary justice based on best actors in the box if credibility solely on appearance of sincerity [i.e. evasiveness of
appellant and use of eye contact] Fareena v. Chorney; Arbitrary because appeal judge can’t relive/review this
 Appearance of telling truth just one element for credibility
 Opportunities for knowledge, powers of observation/judgment/memory, ability to describe clearly what’s
seen/heard also matter – all go together to produce credibility
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R v. T.E.
 TE charged with sexually assaulting step daughter
 Adopted analytical framework of R v. W(D), on first part of test looked at demeanour
 Accused avoided eye contact with witnesses, expression passive, TJ rejected appellant’s credibility and his
testimonial denial of committing the offence; no accounting for Sudanese cultural background either
R v. Davis
 Appellant cop, sexual assault while investigating shop lifting, credibility key but no findings
 Interpreters/Translators: Demeanour assessment even more difficult with witness testimony filtered through
interpreter; delay and absence of simultaneous body language to spoken word, inevitable rewording and
interpretation of meaning in translation, fog over original meaning/impact; TJ must consider
 Cross examining through interpreter means confrontation impossible, no momentum, witness has lead time for
answers, maybe witness didn’t need this interpreter anyway; cross-ex with hands tied
Examination of a Witness
General rule: all evidence must be given/identified by the oral testimony of witnesses
Testimonial factors
Examination/cross examination aimed at the facts relevant to an issue, and at facts relevant to assessing the witnesses
testimony; cross-ex most important way of casting doubt on witness’s testimonial factors (p.14 outline)
Refreshing and Recording Memory

Present memory refreshed: witness may refresh memory before testifying by any means, whether or not the
stimulus for remembering would itself be admissible ex. document, or in principle can be anything Fliss
1. Establish a foundation for the refreshing document (technically not required, but…):
a) made or authenticated by the witness
b) made near the time of the events
c) document would assist memory
2. Present the document to the witness
3. Witness to read the document (silently to self: the words that come out of mouth of accused IS evidence)
4. Ask if that assists in refreshing witness’ memory
5. Re-ask the question
6. Witness to answer from refreshed memory

Past recollection recorded: where a witnesses is testifying from a record of his past recollection and cannot
remember the events on his own
1. Witness has genuine lack of recollection that cannot be refreshed
2. The past recollection was recorded in a reliable way
3. Record made when sufficiently vivid and “fresh” in witness’ memory to be probably accurate
4. Testifies record accurately represents knowledge and recollection at the time (“knew it at time to be true”)
5. Have the original or an accurate reproduction of the record, must use original if procurable Meddoui; and
6. The information in the record is otherwise relevant and admissible
Out of court assertion being adduced for truth of contents of statement; it is in a way, Hearsay; but circumstantial
trustworthiness is necessary, and you have witness to cross examine about the Testimonial Factors
o
R v. Bengert (No.2)
 Months after RCMP informant in the field, Crown decided Dunn should give evidence, he prepared notebook
relating to each meeting with accused; Crown asking for him to be allowed to refer to that to refresh memory
 Prepared notebook himself, sometimes working with Patterson
 Not case of past recollection recorded; witness trying to stimulate current recollection
 Risk that he might just recite notebook without genuine recollection exists
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R v. Wilks
 TJ allowed witness to refer to notes he made of conversations with accused for purpose of “refreshing” memory
 Present Memory Revived: Nature of aid, contemporaneity with event or others issues relating to it are not
relevant to admissibility of evidence; aid not evidence, so it can be inadmissible; it’s the memory jogged by aid
that’s articulated which is the evidence of witness
 Past Recollection Recorded: Allows people to supplement oral evidence with record preserving obscure or
intricate details they wouldn’t ordinarily remember; reliability is assured by contemporaneous nature of the
recording as well as the nature of info recorded; evidence of past recorded recollection must be admissible; no
present memory; technical detail ex. Licence number, there’s less worry of subjective interpretation of words
 Elements must be demonstrated for foundation to refreshing recollection of witness:
1. Witness knows facts, but has memory lapse on stand
2. Witness knows report or other writing will refresh memory
3. Witness given and reads pertinent part of report or other writing
4. Witness states memory has now been refreshed
5. Witness now testifies what he knows, without further aid
 TJ will have to assess witness answers on examination and ultimately rule whether evidence is present memory
revived or rejected as attempt to circumvent rules re: past recollection recorded
Assessing the Credibility of Child Witnesses R v. W(R), R v. B(G)
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Courts ought to use common sense approach (not stereotypes) – same exacting standard does not apply
o A flaw, such as contradicting statements, should not be given the same meaning as when an adult makes it
o Standard of “reasonable adult” not applicable/appropriate for child witnesses
Credibility should be assessed based on mental development, understanding, ability to communicate
Adult testifying about events that happened to her as a child
o Credibility assessed according to criteria applicable to an adult
o Inconsistencies like time/location, should be considered in context of age of the witness at time of events
Deference of Appellate Courts to Findings of Credibility
 Reason for deference: trial judge hears witnesses directly, can observe demeanour, hear tone in voice
o R v. Buhay= defer, R v. W(R)= can overturn
 Overturning decision as to credibility
o Will be done if, after review of evidence and with appropriate deference, the findings are unreasonable
o Test: could a jury or judge, properly instructed and acting judicially, have convicted
Supporting Your Witnesses’ Credibility
General Rule Against Oath-Helping
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Counsel often begins examination with questions designed to accredit the witness as worthy of believing
Party may not lead evidence, only relevance of which if to show witness is truthful
o Unless credibility is challenged, it is assumed witness is telling the truth, so oath helping is unnecessary
o Juries should decide credibility based on human experience and how the witness’ evidence fits into the
evidence as a whole Beland, cited in Clarke
Exceptions:
Exceptions: 1. Expert evidence
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May be admissible to help trier of fact to assess credibility of a witness for explanation of behaviour relevant to
credibility, where the assessment is beyond common experience Marquard
Used to understand significance of behaviour of a witness to whom common standard of credibility may not apply
Cannot be tendered in way that is directed at: proof of capacity to form, at material time, intent essential to
proving the charge Kyselka
Expert should not give opinion on credibility – should only explain phenomena for trier to consider
Not permitted if primary purpose is to bolster credibility Kyselka
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R. v. Kyselka et al
 K plus 3 charged with raping mentally challenged girl, she claimed no consent
 Psychiatrist expert said her mental age was 10, and his opinion is that these types of people are honest, easily
mislead, that an ordinary person would perceive complainant to fit this category, and she testified “very well”
 Inadmissible Oath Helping: Complainant’s credibility attacked, expert was recognized, but purpose of testimony
was to bolster complainants credibility (ie she was truthful person)
R. v. Marquard
 Girl said “nanna put me in the stove” first gave doctor at hospital a different story, Dr testified as to why abused
children may lie at first
 Excluded: Doctor said she didn’t believe first statement of child and believed second statement she was put in the
stove; expert may not give opinion on truthfulness of statement or give evidence on witness’ ultimate credibility
o Expert on human conduct and psychological and physical factors which may lead to certain behaviour
relevant to credibility is admissible to put witness testimony in proper context
 Dissent: expert never said she thought girl lying, just said surprised and suspicious, found inconsistencies, relates
to denial, protection of abuser, never said girl was an abused child
2. Accused’s reputation for veracity
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Defence can lead evidence to establish good reputation/character of accused for purpose of raising reasonable
doubt that he committed the crime; bolstering reputation Clarke
Witness other than accused: cannot lead evidence of reputation for veracity unless credibility attacked Clarke
If defence puts character of accused in issue via cross-ex of Crown witnesses or defence witnesses other than
accused, attacks on character confined to general reputation
o Where accused puts own reputation in issue, no such restriction
Cannot ask witness, who knows accused’s reputation for veracity, whether they would believe accused under oath
o Jury cautioned: regardless of community reputation (may assist), but testifying is different Clarke
Can only be in response to opposing party first leading evidence attacking or impeaching reputation: very rare
R. v. Clarke
 Facts: C (60 yr widower) charged with assault on woman – defence wanted to call 5 witnesses to give reputation
evidence; accused part of small Caribbean community; said C was trustworthy, and woman wasn’t
 Must warn jury: character witnesses have not heard all evidence, not sworn to duty of jury so don’t defer
 Defence can lead evidence of accused’s reputation in community and for veracity but; no oath helping/attacking
3. Prior consistent statements
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Generally not admissible to enhance witness credibility; Reasons: R v. Stirling
1. Mere fact that a witness has previously given a similar statement with current testimony is not probative
of truth – witness could be consistent liar
2. Even if prior consistent statements has some PV, the PV is minimal and does not justify time required for
statement to be presented and tested by cross-examination
3. If trier is expected to accept statement for its truth, it is hearsay and not admissible under any exception
Exceptions: prior consistent statements admissible where:
o It supports a witnesses’ ID at trial of the accused or another
 Evidence that witness previously ID’d accused admissible for parties to explore reliability of ID
o If it’s implicitly or explicitly suggested that complainant (other than in sexual assault) has made a recent
fabrication (Giraldi, Campbell, Stirling)
 To rebut allegation of fabrication, show witness has consistently maintained same position
o If contents of a prior statement are not admissible, fact the statement was made may be admissible where
it forms “narrative” and is significant in understanding the witness’s account of the events
Jury Instructions
o Limiting instruction usually required where prior consistent statements admitted
o Consistency is not same as accuracy, and prior statements can only be used to rebut the allegation of
recent fabrication, not to support fact at issue or general reliability Stirling
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R. v. Giraldi
 G acquitted of theft and possession of VW knowing it was stolen, said he was picked up by VW and then told by
driver it was stolen, he started driving b/c driver said he had been drinking
 G allowed to enter prior statement where he told same story to the police officer when in custody
 Allowed, considering all circumstances of case and conduct of trial, crown implied G recently fabricated story
R. v. Campbell
 C attempted murder of wife, said self-defence, or used excessive force in self-defence or was provoked
 Defence not allowed to solicit from crown witnesses prior consistent statements made by accused, just because
accused denies crown case doesn’t mean crown implicitly alleging accused’s story was recently contrived
o Accused wanted statements because claiming attempt to rebut an allegation of recent fabrication
R. v. Stirling 2008
 Facts: H testified that S was driving, defence suggested H had reason to lie (drug charges dropped)
 Crown was allowed to enter evidence that H had made prior consistent statements prior to being promised having
drug charges dropped and launching civil suit
4. Narrative/rebuttal
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Generally, witness may not say in testimony that they told the same story to others
Narrative justifiable as providing background to the story, giving chronological cohesion and eliminating gaps
which would divert the mind to the listener from the central issue; allows you to explain how you dealt with abuse
you suffered so Trier of Fact can fully assess credibility of complainant R v. F(J.E.) 1993 ONCA
Prior consistent statements admissible where they form part of witnesses’ narrative, as it advances story from
offence to prosecution or explains why so little was done to terminate the abuse or bring the perpetrator to justice
o Ex. Victim tells mother about it, they stew for a while before bringing it to police
o Like Recent Complaint but broader, can tell police this narrative
Jury must be instructed that narrative cannot be used as confirmation of the truthfulness of sworn allegation
R. v. Dinardo 2008
 D charged with sexually assaulting person with disability during taxi ride – complainant had self-admitted
tendency to lie, while testifying she recounted how she said the same thing to several people right away
 In circumstances, allowing statements in as part of narrative permissible, however TJ erred when he considered
contents of the complainant’s prior consistent statements to corroborate her testimony at trial
5. Statutory Exception to Rule Against Oath Helping
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
S.715.1 Criminal Code: if a child within reasonable time after offence provides statement that’s videotaped, then
testifies at trial and adopts the content of the video, the contents are admissible for proof of truth of context
S.715.2 Criminal Code: same as above, for witnesses with disabilities
o Then defence can cross-ex about perception, memory, language, questions asked in interview (testimonial
factors), any reliability or accuracy concerns
o Subject to overriding discretion of court not to admit it because it will interfere with administration of
justice i.e. PE over PV
o Used if kid or mentally disabled person isn’t being communicative in court, not comfortable
o Adopt it = agreeing that yes I said that and yes it’s true
6. Recent Complaint/Fabrication in Sexual Assault Cases
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S. 275 Criminal Code: no longer a presumption that you can draw an adverse inference of recent fabrication from
the failure to file a complaint soon after the incident; abrogates CL rules
If defence questions complainant as to timing of lodging complaint, inferring fabrication, crown can enter prior
consistent statements that would otherwise be inadmissible D.(D.)
Important factor is the actual reporting, the complaint, not the testimony; getting into details of prior statement is
matter for the court
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R. v. D(D.)2000
 10 year old complainant testified D sexually assaulted her when 5-6 years old, didn’t disclose for 2 years
 Defence led evidence story was fabricated, crown rebutted with expert evidence explaining delays in reporting
 Expert evidence should not have been admitted
o Failure of complainants to file a complaint must not be the subject of adverse inferences of fabrication,
and expert evidence not needed
o TJ should have instructed jury on this anyhow that there’s no inviolable rule on how victims of trauma
like sexual assault will behave; may delay for embarrassment, guilt, fear, lack of understanding
 No doctrine of recent complaint; expert evidence didn’t meet 2nd requirement of necessity in Mohan analysis
Generally: Allegation of Fabrication R v. Ellard
o Express or Implied allegation of recent fabrication
o “Recent” means since the event testified about
o “Prior” means statement must precede the alleged fabrication
o If rebutted, does not add weight to original evidence but “eliminates” or “rebuts” recent fabrication allegation
i.e. brings it back to zero from negative numbers
o If Crown doesn’t allege recent fabrication: Sometimes those statement can still be admissible
 Their spontaneous statement in the face of accusation or arrest may have more PV than prior
consistent statements of ordinary witnesses; circumstantial trustworthiness
 Critics: seasoned veterans with police can quickly concoct explanations
o May be admissible if accused testifies, from R v. Edgar ONCA; McCallum BCCA: no need to adopt Edgar
o Court could have said this falls into res gestae exception
Impeaching Credibility Other Side’s Witness
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Often futile, sometimes fatal, but indispensable ally in search for truth Lyttle
Impeaching: bringing down other side
All categories of Impeachment are collateral: not based on subject matter of case but on other factors showing
witness not believable; permitted
1. Expert Evidence
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You may lead expert evidence as to the witness’s abnormality and unreliability
o ex. Person psychopathic liar, vs. conditions that make witness look un-credible when they’re not
Where trier of fact able to assess witness credibility without expert evidence, expert evidence inadmissible D. (D)
Medical evidence admissible to show witness suffers physical or mental disability making testimony unreliable
Unlike character evidence, expert not confined to statement of opinion, may testify to all matters necessary to
show foundation of opinion
Tension: preventing jury being beguiled by a person unworthy of belief, but also preventing trials on side issues
Toohey v. Metropolitan Police Commissioner 1965 HL
 Officer found M crying hysterically, with T and others surrounding him; M said they tried to attack him and steal
his money, T said they found him very drunk and were trying to help when he hit his head and became hysterical
o Was the assault causing hysteria or was it just M?
 Police surgeon had said he found M to have been drinking, acting unusually and unable to answer questions
 1) Medical evidence admissible to show that witness suffers from disease/defect or abnormality of the mind that
affects the reliability of his evidence; 2) admissible to show extent to which credibility is affected
2. Witness’s Bad Reputation for Veracity (Truthfulness)
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Concerns about oath-helping evidence apply equally to oath-attacking evidence
Cannot ask whether, based on bad reputation, if witness would believe the person under oath – PE outweighs any
PV – ability of character witness to assess with another witness has told the truth under oath is limited
Jury may put too much weight on the testimony because the witness knows the other witness
Show by Cross-ex or other means
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Clarke Questions
1. Do you know the reputation of the witness as to the truth and veracity in the community?
2. Is that reputation good or bad?
3. From that reputation (or your own knowledge) would you believe the witness under Oath? [Rarely allowed,
usurps jury’s function to make credibility findings, PE over PV]
Limiting Instructions if Bad Reputation evidence allowed:
1. Testifying in court under oath is very different circumstance you need to bear in mind
2. Character witnesses have not heard all the evidence and have not taken an oath as a juror to render a true verdict.
While their evidence may be helpful, you should not automatically defer to that evidence
R. v. Clarke 1998 ONCA
 Several witnesses attacked complainant’s character as being bad; see Accused Reputation for Veracity
 Adopts 4 factors based on Seaboyer for deciding if evidence with some probative value meets test for legal
relevancy; see “Probative Value vs. Prejudice”
 3rd question PE outweighed PV, but deficiencies in jury charge minor, Crown didn’t show verdict affected
3. Prior Inconsistent Statements: Other party’s witness
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Unless prior inconsistent statement “adopted” by witness as true, it only goes to witness credibility, not truth of its
contents (if not adopted it’s Hearsay); but this is key to cross-ex: person said 5 different versions of story
CEA s. 10 or s.13 BCEA:
o When cross-examining a witness as to previous statements made in writing, or statements that have been
reduced to writing/recorded, there is no requirement to produce the statement for the witness unless the
intention of the cross-examination is to contradict the witness, in which case the witnesses attention must
be called to those parts of the statement
 If inconsistent materially, you’re allowed to cross-ex witness about it
 Must be relevant to subject matter
 Give chance to adopt or explain
 Includes statements made by someone else but signed or acknowledged by witness as truth
 Doesn’t include Police Officer notes (s.11) unless oral statement reduced to writing signed by accused
o Ex. According to you witness, it was x not y, they say no it’s y not x, then you’re about to contradict so
you say do you recall 2 years ago you were called to tell police, and do you recall you said x not y?
CEA s. 11 or s.14 BCEA:
o Oral Statements: Proof of prior inconsistent statement may be given if witness doesn’t admit making
statement on cross-ex, but first give proof of circumstances when it was made to remind them of it and
ask if they made it
 You may change evidence if they adopt: that out of court statement becomes testimony
4. Prior Conviction
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
CEA s.12 or s.15 BCEA:
o Any witness may be asked if he has been convicted of an offence (indictment or summary), unless
offence was designated under Contraventions Act and not entered after trial on indictment
o Applies to accused where accused chooses to testify
 Crown limited to asking for name of crime, substance and effect of indictment and place of
conviction and penalty, not details of offence
 Just undermining credibility of witness, not propensity reasoning, can be more PE
o “Conviction” includes”
 Juvenile record of delinquencies
 Provincial offences, such as contraventions of the MVA
 Does not include absolute or conditional discharges, even where there was a finding of guilt
Except for cross-examination under s.12, an accused may not be cross-examined with respect to misconduct or
discreditable associations (more limited for accused than other witnesses)
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Corbett Application
 Need a ruling to bring prior convictions in, up to Court discretion
 This happens in Crown’s case, but accused makes application to have record excluded or edited
 Comes before close of Crown case: accused should know before he elects to call evidence or testify to what extent
his record will be used against him when he does take the stand; if it’s out, then probably take stand
 Jury must be warned about the limited use to which record can be put
 Convictions alone show they’re type of person likely to tell truth (not propensity to commit a crime)
 In circumstances, accused may apply to have a specific offence not admitted as evidence (Corbett)
o Similarity of previous offence to current charge
 Where charged with offence that is similar to previous conviction, but it doesn’t fit under similar
facts exception, it should be excluded – PV outweighed by PE; i.e. jury making improper
propensity decisions more likely
o Nature of previous conviction
 Crimes such as theft, fraud, cheating are regarded as conduct which reflects negatively on persons
character than would a violent crime that has no bearing on honesty
o Remoteness or Nearness of prior conviction
 Old convictions less probative
o Fairness/Conduct of the defence at trial
 Where defence has attacked credibility of crown witnesses based on prior conviction, there is a
concern about not allowing crown to cross-examine accused on his prior record – would paint an
uneven picture
 This factor carries much less weight than first 2
R. v. Corbett 1988 SCC
 C convicted of murder, sought to not have s. 12 apply to him at trial (had previous murder conviction); case
turned on credibility and whether jury believed accused or crown witnesses
 Application denied, previous conviction in; accused had attacked credibility of crown witnesses based on past
convictions, would paint very uneven picture for jury
R v. Morris
 Important distinction between cross-ex re prior conviction aimed at witness’s credibility and cross-ex aimed at
weakening the evidence on the matter in issue
o Cross-ex of prior conviction: to lay down factual basis from which credibility inferences may be drawn
o Cross-ex aimed at weakening evidence on matter at issue: for eliciting answers that are contrary to
witness’s evidence in chief, attack credibility based on actual proof of witnesses unreliability in that case
5. Bias or corruption

Cross-ex permissible, if biased against opposing party or bribed this could affect whether jury should believe you
6. Direct Examination
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Direct examination is conducted by party who called the witness
Party must not lead his own witnesses on MATERIAL points
Leading question is one that contains or suggests its own answer
But really, lead when it doesn’t matter; don’t lead when it matters
Directive questions, to draw witness’s attention to subject you wish to cover, not the same as leading questions
ex. Was any money discussed?
ex. Is that person present here in court? Maves
7. Cross-Examination
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Any relevant/material matter in issue, including credibility, most important device for casting doubt on testimony
May use leading questions (not allowed in exam-in-chief), conducted by opposing party
Leading questions structured to drive witness to very narrow range of answers; don’t ask open Qs
o ex. “What did you see next?” – open ended
“You saw a car, didn’t you?” – leading
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
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Cross-exam of non-accused witnesses
o Can be about facts relevant to case, matters which might cast doubt on their credibility ex. Associations,
behaviour; but independent proof of false statements by witnesses is limited by Collateral Facts Bar
Cross-exam of accused
o Accused needs protection from irrelevant and prejudicial allegations, examination on discredible conduct
usually not permitted; can use right of silence not to be questioned by; protects presumption of innocence
so no questions on motive for exculpatory evidence
The Rule in Browne v. Dunn 1893
 Where you intend to impeach/contradict a witness, counsel is bound to give that witness an opportunity to make
some explanation of circumstances which suggest he’s not to be believed while still in the witness stand; fair play
 Where not done, can be remedied by:
o Recalling witness (if not possible, give jury instruction)
o Leave special instructions to jury to consider fact witness not questioned
 Scope questioned with R v. Dyck, but rule still generally in force
Alluding to Unproven Facts
 Counsel may ask question “isn’t it true that…” during cross-examination, where counsel asking question believes
that the statement following “that” is true but has no evidence to back up the suggestion
 There is an ethical line: can’t suggest ridiculous hypothesis or say things intended to harass/confuse witness Lyttle
R. v. Lyttle 2004 SCC
 Victim severely beaten by 5 men, ID’d L as one of them (only unmasked attacker); defence theory that victim
beaten as part of drug deal and fingered L to protect real perpetrators
 Defence allowed to put theory to victim, even though they didn’t have any facts to back it up, regarding matters
that need not be proved independently, so long as they believed in good faith the suggested state of facts is true
 Good faith basis for asking an otherwise permissible question in cross-ex allowed for expert and lay
o Info may be incomplete or uncertain, but cannot put suggestions to witness recklessly or known false
o Must not ask groundless question to “waft an unwarranted innuendo” into jury box
Maves v. Grand Trunk Pacific Railroad 1913
 Questions which directly or indirectly suggest answer to witness are prohibited in exam-in-chief, ok in cross-ex
 On introductory matters that form no part of the substance of the enquiry, it is allowable and proper for a party to
lead own witnesses, leading often allowed to pass without objection (by express or tacit consent)
 Leading questions with own witness not ok when sought to prove material and proximate circumstances; because:
o Witness has bias in favour of party bringing him forward, and hostile to opponent
o Party calling witness has advantage knowing what witness will prove, could only extract favourable info
o Witness, though intending to be fair and honest, may lack education/exact knowledge of words/alertness
to see what is implied, may honestly assent to leading question without expressing his real meaning
 Rule Against Leading: Exceptions
1. For identifying persons or things, pointing witness’ attention directly to them
2. Where one witness is called to contradict another on expressions used by latter but which he denies using, he
may be asked directly if the other witnesses used whatever expressions
3. Whenever witness is either hostile to party calling them or unwilling to give evidence, Judge may allow rule
to be relaxed; and if witness shows strong bias in favour of cross-ex party then rule stricter
4. When non-leading questions fail to bring mind of witness to precise point on which evidence is desired, and it
may be fairly supposed this failure is from temporary inability to remember [amended]
5. If it’s complicated matter
 If witness’ memory exhausted on contents of letter, he might be asked if it contained a particular passage recited
to him, or else impossible to come to direct contradiction
 Common to ask witness to repeat conversation from beginning; might include the lacking statement, can be tried
more than once, might go to different topic then return; if not judge should allow question referring to subject
matter of omitted statement, if not then direct question
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R v. EMW
 Leading questions: suggest answer or assume a state of facts that is in dispute
 Crown asked child, reluctant to respond, binary questions that gave her choice of answers, but this wasn’t
suggesting an answer; main components of offence were elicited by non-leading, proper
R v. Rose
 Party who calls witness is generally not permitted to ask witness leading questions, since witness favors that party
 But leading q’s routinely asked to elicit witness’ evidence on preliminary/non-contentious matter
 Leading q’s permitted when necessary to direct witness to particular matter or field of inquiry
o Does (Mr. Rose) supply you with crack cocaine? Defence objected to leading Q, Crown said it’s info I
have and I’m asking him to confirm or deny, not suggesting answer – was ok
o Crown then asked “well were you going to purchase crack cocaine from Mr. Rose on that date” and asked
“would you agree with me that it seems you were there to buy crack from him” – not ok
o Judge said those were suggestive of answers; questions concerned crucial and contentious matters
 Issue that testimony was proffered to meet the expectations of crown and police
Collateral Facts Bar – Exclusionary Rule Phipson (Adopted by SCC)
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Collateral Fact: Using extrinsic evidence to contradict in cross-ex; not matter relevant to material issue/credibility
May not, in general, impeach witness credibility by calling witnesses to contradict in irrelevant matters
o Answers thereon will be conclusive, even if it is not the answer the interviewer was looking for
These questions subject only to TJ’s discretion to limit on account of factors such as time and fairness
Not absolute: if the answer of a witness is a matter which you would be allowed on your own to prove in evidence
in that it has a connection with the issues in the case, then it is a matter in which you may contradict the witness
Proof of contradiction may only be given on matters:
1. Relevant directly to substantive issues in the case
2. Relevant to credibility if it falls within exception including: (like veracity impeachment)
a. Prove Bias, interest, corruption
b. Prove witness has previous convictions
c. Evidence of reputation for untruthfulness, other witness wouldn’t believe witness under oath
d. Expert/medical evidence on problems that could affect reliability of witness’s evidence
e. Where foundation laid, previous inconsistent statement may be proved to contradict witness
Consider: Importance of witness to the case, time practicalities
Consider: Weight/value of evidence in support of collateral fact –more determinative evidence seeking to be
called to contradict the witness more likely to be permitted – don’t want to be stuck with provable falsehood
Wigmore on Collateral Facts
 Where a witness has told a story of a transaction crucial to the controversy, to prove him wrong in some trivial
detail of time, place or circumstances is "collateral"
 But to prove a fact recited by witness untrue that if he were really there and saw what he claims to have seen, he
could not have been mistaken about, is a convincing kind of impeachment courts must allow, despite the fact that
it does not meet the test of admissibility apart from the contradiction; “lynchpin facts”
 Could the fact, which if flawed, have been shown in evidence for any purpose independently of the contradiction?
1. Facts relevant to some issue in case
2. Facts relevant to discrediting witness, including facts otherwise receivable for impeaching some
testimonial quality, criminal record, bias, etc.
3. Lynchpin facts: would not have been mistaken about it if story were true – added by McCormick
Paciocco and Struesser:
 Principled approach: PV vs. PE
 Contradiction should be allowed where PV and nature of contradictory evidence is such that it is not outweighed
by counterbalancing policy concerns
 In case of defence evidence, counterbalancing concerns must significantly outweigh value in receiving evidence
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AG. v. Hitchcock 1847
 H charged with manufacturing illegal alcohol, defence wanted to lead evidence that crown witness S took bribe
 Could ask S if he took bribe, but when S said “no”, could not lead evidence to contradict S on this collateral point
o Another witness overheard witness was offered a bribe before giving testimony, but in both question
asked and statement out of court to be proved, he said someone tried to bribe him, reflects on briber
o Not actual and provable which would have been evidence of bias and permissible
R v. Melnichuk
 In correspondence guy calls himself a CA, but he isn’t chartered; charged with fraud on other issue
 Crown says you sent letters saying chartered, he said no  Crown tried to prove showing letterhead leads
defence to call in surrebuttal evidence  that witness says accountant said take “chartered” out
 Trial within a trial; it is collateral because being chartered or not had nothing to do with nature of fraud
 Judge still said “chartered” was fraud; case overturned
R v. Prebtani 2008 ONCA
 Lawyer acted for him despite undertaking not to with Law Society for failing to maintain proper books and
records; Prebtani didn’t know but later argued he got ineffective assistance of counsel, incompetence deprived
him of fair trial and verdict unreliable
o Cross-ex’d complainant, trying to show her nature; TJ said that evidence was collateral and inadmissible
 Court says his lack of familiarity with Collateral Fact Rule did not affect fairness of trial; if you don’t get the rule,
it isn’t negligent incapacity by lawyer; court recognizing this is hard
 Evidence here would undermine complainant’s assertion that appellant, rather than she, was verbally abusive
party; and could undermine her assertion that she would never swear at appellant for hear he would abuse her
R. v. Raphael
 R convicted of fraud ; crown called evidence to prove he operated business and falsely represented he could get
landed immigrant status for victims; asked R if he ever didn’t file taxes, R gave answer crown could contradict
 Claimed that this was relevant as it showed R’s willingness to lie under oath, but court disallowed – this was a
collateral fact relating only to credibility, crown bound by answer it received
Other Credibility Issues
1. Impeaching Own witness
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General rule: cannot impeach/attack credibility of own witness through general evidence of bad character
o Can’t call reputation evidence on veracity, criminal record to discredit, old discrediting acts/associations
o Can’t cross-examine own witness
Why do it? If they suddenly recant, or have one good thing and rest sucks, or you want evidence out and replaced
At CL, where witness found to be “hostile” [betraying desire not to tell truth] to the party calling the witness, they
may be cross-examined with a view of discrediting his or her own character
The effect of prior inconsistent statement: impeaching credibility or proving truth
 Prior statements may be used to neutralize testimony given by witness at trial
 If witness doesn’t accept statement as true, it is hearsay
 New: Principled exception changes s.9(1) and s.9(2): if prior statement meets necessary indicia of necessity and
reliability, may be admissible through principled approach exception to hearsay (KGB)
 If witness told two different stories both under oath it’s useful for impeaching credibility
 If prior inconsistent statement not under oath, open to witness to take position that he is now being truthful
Sources of Prior Inconsistent Statements
 Criminal cases: sworn statements made by witness to the police, testimony by witness at prelim
 Civil cases: transcript of party’s examination for discovery
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Adverse Witness:
-
S.9(1) CEA or s.15 BCEA
 A party producing a witness not allowed to impeach his credit by general evidence of bad character; but if
court decides the witness proves adverse, the party may contradict him by other evidence, or may prove the
witness made at other times a statement inconsistent with his present testimony if they first give witness
circumstances of supposed statement and ask him if he did or didn’t make the statement
o Adverse is a pre-condition to get permission to lead evidence to prove witness made prior inconsistent
statements
 Not a pre-condition to get permission to call witness to contradict first witness; drafting error
o Adverse means: less than hostile; opposed in interest; includes where witness’s testimony merely
contradicts his proof; can be based on content of statement/evidence alone without any hostile demeanour
o Hostile: not giving evidence fairly and with desire to tell truth because of hostile animus towards
prosecution Re: Coffin
o No cross ex at large (like CL), only on the statement; unless it rises to level of hostility
o Interpretation/CL: you can contradict him by other evidence, even if they’re not adverse
o Maybe you wanted a statement they said out of court before, can’t use it so stuck unless you can go
through KGB exception to hearsay, so this exists
o Hearsay Principled exception: If witness says screw you I’m sticking with what I’m saying despite
inconsistent statement, you’re passing necessity requirement; can get ruling that out of court statement
can be considered by jury for truth of content; impeaching own witness not just destructive now
Previous statements not proved adverse:
- S.9(2) CEA
 Where the party producing a witness alleges the witness made at other times an inconsistent statement in
writing, reduced to writing, or recorded on audio tape or video tape or otherwise, to present testimony, the
court may, without proof that the witness is adverse, grant leave to that party to cross-examine the witness as
to the statement and the court may consider the cross-examination in determining whether in the opinion of
the court the witness is adverse
o Provides right of cross-examination independent of s. 9(1) on the statement with no need to prove adverse
o Ultimate discretion lies in the court

Milgaard Procedure:
1. Notice of Application under s.9(2) to court: counsel should advise court of intention
2. Jury Excused: court should direct jury to retire
3. Particulars of Application: advise judge of particulars of application and produce for judge the
alleged statement in writing, or the writing which statement has been reduced to
4. Assessing whether inconsistent: TJ should read it and determine, in fact, if there’s inconsistency
between prior statement to evidence given in court
 If no inconsistency, the matter ends; if there is then call upon counsel to prove statement or
writing i.e. bring in other witnesses
5. Proving Statement: counsel should prove statement or writing by producing it to witness; if they
admit or reduce to writing, proof is sufficient, if not then prove by other evidence
6. Examination on Making of the Statement: maybe don’t cross-ex if voluntarily given
7. Ruling: Where inconsistency exists, evidence will be admitted at discretion of judge
R v. Figliola ONCA
 Friend of accused and victim of homicide, called by Crown, adverse; cross-ex at large by Crown
 Effect was to “shred” her credibility and create a “factual matrix”: jury might well conclude witness was “not only
a liar” but “a witness lying for the very purpose of covering up for” the accused’s “wrongful deeds” and that the
accused “were therefore liars themselves, and guilty too”
 S.9 created injustice by over-use
 Held: error to permit cross-ex at large, and error not to give strong warning to jury that lack of any evidence of
collusion between witness and accused meant jury couldn’t draw any adverse inference that accused was liar
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2. Corroboration
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
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Two meanings:
o Common sense witness’ evidence easier to accept other admissible evidence supports it – no special rules
o Highly technical doctrine that once loomed large in evidence law – virtually eliminated by statute and CL
Situations were Corroboration Necessary to Convict:
o Treason
o Perjury
o Feigned marriages
Vetrovec Warning to Jury: Testimony of unsavoury witness potentially unreliable, such as an accomplice or
witness with record for perjury, dangerous to convict on that alone
o Corroboration: Independent testimony connecting/tending to connect to crime
Used to be technical rules reflecting scepticism about evidence of certain classes of witnesses (sexual assault
complainants, children, disabled people, accomplices)
o Evidence needed independent weight pointing to guilt of accused, not looking at whether this witness was
credible because basically assumed they’re not Baskerville
R. v. Baskerville 1916 – not law anymore
 B convicted of offences involving 2 boys appealed because of no corroborating evidence
 Evidence of accomplice is admissible in law, but rule for judge to warn jury of danger of convicting on
uncorroborated testimony of an accomplice and, in discretion of judge, to advise them not to convict on such
evidence, though it is within their ability to do
 Corroboration need not be direct evidence that accused committed crime, can be circumstantial
The Vetrovec Warning (Khela)
1. Draw attention of jury to evidence that requires special scrutiny
2. Explain exactly why evidence is subject to special scrutiny (why to be suspicious of jailhouse informants)
3. Why it is dangerous to convict on basis of this kind of evidence, but jury may do so if they find reliable/true
4. In determining veracity of witness, jury ought to look to other evidence (not tainted by that witness) to confirm
that the suspect evidence is reliable, use common sense, Unsavoury witnesses generally
 Looking at the witness’s credibility; may not implicate guilt of accused but can give support to story
 Purposes: 1) alert jury to danger of relying on unsupported evidence of unsavoury witnesses and to
explain reasons for such special scrutiny; 2) in appropriate cases, give jury the tools necessary to identify
evidence capable of enhancing trustworthiness of those witnesses
Vetrovec v. The Queen; Gaja v. The Queen 1982
 V & G charged with conspiracy to traffic heroin, L accomplice testified for crown; Following Baskerville, judge
instructed jury it’s dangerous to convict on accomplice’s uncorroborated testimony; Appealed instruction
 Evidence relating to L’s trip to Hong Kong to traffic it tends to connect appellants with drug trafficking generally,
CA and SCC say not too remote, it was corroborative and connects to committing crime charged, testimony need
not relate directly to the “overt act” described by accomplice
o Current law too wide: applies to accomplices who are trustworthy;
o Current law too narrow: applies only to participants in exactly same crime as charged against accused
 With accomplices or a disreputable witness of demonstrated moral lack (record for perjury), jury warning needed
 Warning highlights, repeats prejudicial evidence but something unsavoury about rewarding self-confessed knave
 Reason: guilty person can purchase impunity by falsely accusing others, may protect his friends; but isn’t always
true and anachronistic and impossible to determine credibility at outset, friendship doesn’t induce crime, and
sometimes immunity not offered, can’t predict people will minimize own fault, or moral guilt (Wigmore)
R v. Khela 2009 SCC
 Dangerous to rest conviction on single witness testimony/single evidence, but it is sufficient for most (3
exceptions), wrongful conviction more possible; don’t disregard, scrutinize it
 Unsavoury Witnesses: amoral character, criminal lifestyle, past dishonesty, interest in outcome, favour personal
advantage over public duty, suggests they can’t be trusted even under oath
 In case as whole, items of confirmatory evidence should restore faith in relevant aspects of witness’s account
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
Vetrovec instruction so jurors appreciate need for scepticism:
o No magic words, but clear and sharp warning, plainly emphasize dangers of reliance
o TJs not pigeonholing witnesses as accomplices but consider all facts that could impair credibility
o No technical definition of corroboration; does evidence properly weighed overcome its suspicious roots
1. Judge determine if there’s reason to suspect credibility of witness re: traditional ways ex. Lifestyle
2. Judge assess importance of witness to Crown’s case, warning is mandatory if witness is central in proving guilt
3. Accused as Witness (see above)
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Prior consistent statements and recent fabrication
Cross-ex of accused on motives of witnesses
o Asking accused about veracity of Crown witness improper; Accused’s opinion is irrelevant and could
prejudice her, render it unfair; prejudice by shifting burden of proof from Crown to accused Ellard
Evidence of character and discreditable conduct
Criminal record of accused
Comments upon failure to testify
Comments on accused’s silence
Voluntariness of statements to police
Use of prior testimony of accused
R v. Ellard 2003 BCCA
 Second degree murder, victim beaten twice and drowned in Gorge by Ellard and man; several young people
testified appellant admitted to participating in fatal assault; said was there for first not second, denied admissions
 Credibility issue led Crown persistently 18x asked why Crown witness would lie about admissions
o “You can offer no explanation why they’re saying these things”? “I could but it’s not my place to give an
explanation because I don’t know what they’re thinking and why. So I don’t know”. “Do you have any
credible explanation you can give this jury?”
 Asking accused about veracity of Crown witness is improper; accused’s opinion irrelevant, could prejudice her
 TJ gave instruction to neutralize damage by that cross-ex but that wasn’t enough, unfair trial
 Prejudice: this tends to shift burden of proof onto Accused, could induce jury to reason if accused can’t say why
witness would give false evidence then witness may be true,
o Undermines presumption of innocence and reasonable doubt; trier of fact must be fixed on whether
Crown proved its case and not diverted on accused providing motive for witness to lie
CHARACTER EVIDENCE
Generally: Evidence of bad character and bad acts of non-accused witnesses admissible whenever relevant; but evidence
of accused witness not admissible unless accused himself puts character in issue
Character Evidence and the Accused
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Character evidence usually circumstantial – trier asked to infer that person behaved in certain way at certain time
because that behaviour would be consistent with person’s character; throwback to old times
CL strictly limits admissibility and use of character evidence, due to policy concerns:
o Reliability and probative value of character evidence
o Efficiency concerns due to time and resources necessary to explore collateral issues
o Not lack of Relevance: Relevance with respect to accused’s character conceded, but:
 May cause undue prejudice in relation to its PV,
 May create unfair surprise, may unduly distract from issues,
 May be too time consuming in relation to PV
What is character?
o Propensity or disposition to behave in certain way
o Deeply engrained behavioural traits or sum of persons traits
o Compendious summary of person’s pas actions, good and bad
o Different from habit Watson
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

Habit: past conduct  inference  present conduct; ex. Type of cigarettes you buy, morning routine, repeated
past conducts allow us to infer how you’ll conduct self in present; character rules apply
Character: past conduct inference  disposition  inference  present conduct, ex. Repeated past angry
outbursts allow us to infer they’re an angry disposition, then infer presently they had this outburst
o Common Character Traits: violence, anger, paedophilia, honesty, dishonesty, public sexual morality
Character Evidence Rule
 Subject to the similar fact evidence rule, the crown may not, as part of its case in chief, lead evidence that the
accused has previously engaged in discreditable or criminal, or is of bad character,
 BUT, IF the accused puts character in issue by introducing character evidence, such as circumstantial evidence
of innocence, the crown may reply to this (McNamara, Morris)
o Theory: crown is proving accused committed a crime –an act, not what kind of person the accused is
 Inclusionary and exclusionary
o Rule of Exclusion: excludes evidence that demonstrates no more than general bad character of accused
o Rule of restricted admissibility: restricts inference that can be drawn from permissible evidence
Putting Accused’s Character in Issue
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S. 666 CC:
 Where at trial the accused adduces evidence of his good character (not just by testifying), prosecutor may
answer by adducing evidence of prior convictions of the accused for any offences, including any previous
conviction by reason of which greater punishment may be imposed
o Entitled crown to go further than under s. 12 CEA: permits cross examination about the specifics
underlying the conviction, rather than just the fact that there was a conviction
 Just as crown may not lead evidence of prior bad acts (subject to similar fact evidence), accused may not lead
evidence of prior good acts – but where accused does put character in issue, crown may respond
Three ways that accused might put his character in issue:
1. By adducing evidence of good reputation Rowton, Levasseur
a. Where evidence of good reputation by a 3rd party is called, crown may only rebut with its own evidence
of general bad reputation, not evidence of disposition
2. By testifying as to his own good character through specific good acts (direct or implicit) McNamara
a. Where accused does this by referring to specific instances that show good conduct, the crown is not
confined to only giving evidence of bad reputation, and may cross-examine the accused as to his
statements to show evidence of disposition
b. Normally, when accused does this, it is not intentional
Ex. I worship the ground my wife walks on; or Defence asks 3P Was Accused a Fighter?
3. By calling expert psychiatric evidence of propensity or disposition (Lupien, Robertson, Mohan)
a. Psychiatric evidence with respect to disposition or its absence is admissible on behalf of defence, if
relevant to an issue in the case, where the disposition in question constitutes a characteristic feature of an
abnormal group falling within the range of study of the psychiatrist, and from whom the jury can
therefore receive appreciable assistance (Robertson)
b. Recall Mohan test for expert psychiatric evidence:
i. Must be relevant
ii. Must be of appreciable assistance to trier of fact
iii. Must be evidence that would otherwise be unavailable to the ordinary layman without specialized
training
4. [Maybe: Attack on Character of Victim or 3P; basically getting to Corbett analysis, you paint such stark picture of
how bad they are you’re giving false impression that you’re so different]
Character NOT put in issue by:
- Standard introductory questioning, like oath helping stuff who are you, not how great are you McNamara
- Simply denying allegations, explaining defence or repudiating parts of Crown case; difference between putting
credibility in issue and character in issue where evidence can be led against McNamara
- Responsive answers to Crown cross-ex; Crown says you’re just a peace loving individual aren’t you, when nothing
has been led related in evidence in chief, you say well yeah and that’s it Bricker
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Process for Putting Accused’s Character in Issue:
1. Accused opens the door:
a. By cross-examination of crown witness
b. By one of three ways above
2. Crown’s reply:
a. By cross-examination of reputation witness
b. By cross-examination of the accused
c. By invoking s. 666 CC – essentially rebutting good character evidence with bad character evidence
d. By leading similar fact evidence (note, if it were really SFE, crown would have led it in case in chief, so
likely didn’t meet test for SFE, but is still “similar”)
Proving Bad character of accused (Crown)
1. Character is directly relevant to issue in trial
o ex. Dangerous offender cases, previous conduct
2. Evidence meets SFE test set out in R v. Handy
3. Evidence is relevant to issue in trial, and character aspect is incidental
o ex. Spousal homicide, previous evidence of threats, has bad character aspect but circumstantial aspect for
motive/opportunity/means
4. Evidence is incidental to proper cross-examination of accused on credibility
o ex. Chambers criminal conspiracy, in course of cross-ex they said accused tried to bribe witness, bad
character but relevant to accused’s disposition and credibility of that witness
5. Accused puts his character is issue (overt and inadvertent, double aspect evidence)
o ex. Accused’s statement to police introduced by Crown, says he’s not violent and is loving husband but
charged with manslaughter: Crown CANNOT introduce evidence of criminal record for assault, because
it’s Crown not Accused putting his character in issue; admissible statement but no character attack
Crown Rebuttal:
I.
To good reputation evidence led by accused must be confined to general reputation evidence, directed to showing
evidence from accused not true
II.
Accused has asserted particular disposition, may cross-ex accused on specific acts related to that disposition
III.
Limits of cross-ex when accused testified is moral
Ways to Use Bad Character Evidence:
 Substantive: use to prove guilt of accused
 Limited: for limited purpose, not to show accused is type of person who would likely have committed crime
 Neutralizing/Rebuttal: to rebut evidence of ‘good character’ led by defence (if overt)
Specific Acts
 Crown may not lead evidence of specific bad acts of accused which are not subject matter of charges before court
 If accused testifies, he may give evidence of specific instances of his own good conduct and thereby put his
character in issue [he can talk about reputation and specific acts]
 Witnesses other than accused may not testify to prior good acts of accused (still bound by Rowton)
Cut Throat Defences:
Co-accused pointing fingers at each other, lots of the limits are taken out, but it can disrupt innocence presumption; court
must balance right of one accused to have fair trial with right of other accused to make full answer and defence, warn jury
about improper uses of the evidence Prokofiew
R. v. Morris
 Crown wanted to use newspaper clipping that M had on heroin trade: logically relevant, showing interest and
informed of trafficking, relevant to importation of narcotics, even though low PV, jury can decide that weight
 Defence/dissent: clipping didn’t relate to charge in case, sole purpose of clipping was to attack accused’s
character and show that he has a disposition towards crime, which offends character evidence rule, prejudicial; its
inadmissible even if relevant
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R. v. McNamara et al 1981 ONCA
 JS one of many individuals plus corporations accused/convicted of conspiracy to defraud, while testifying made
statements about how he conducted himself honestly in business, that he gave mandates to run companies “as they
should be – legally”, and how he would declare interests at BofD meetings
 Accused went beyond repudiating allegations against him, because he was implying that he would not do those
things because he was a person of good character
o Now crown is allowed to give evidence of general reputation as well as his moral disposition, including
prior conviction for tax evasion- which he had said hadn’t ever happened before
R. v. Rowton 1865
 R school master charged with indecent assault, called several witness to attest to his good character; Crown
replied with boys from school who said he was capable of grossest indecency and flagrant immorality
 Crown could reply to R’s assertion of good character, but is restrained to give evidence of same nature of accused
o Witnesses may only give evidence of good general reputation (not disposition), so crown can only reply
with evidence of bad general reputation (not disposition) or individual opinion of witnesses
 Nothing more unjust than accused having advantage of character which may be reverse of what he really deserves
 Forms of Eliciting Reputation Evidence with evidence from witnesses called for character evidence
Q1: Do you know accused?
Q2: How long have you know him
Q3: In what circumstances do you know him (identity community ex. Workplace, church, see Levasseur)
Q4: Do you know his or her reputation (for honesty, morality) relevant character trait
R. v. Levasseur 1987 ABCA
 L charged with B&E, stole truck and car from employer; said she removed cars at employer’s request and had
colour of right, gave evidence of her good character via testimony from her next employer, what business
community thought; TJ said it could only be reputation of character in residential community
 “Neighbourhood” requirement no longer relevant, reputation witnesses can be from work community
o If you have not known accused for long period of time, and have to talk to others to evaluate accused’s
reputation, not qualified to be reputation witness
 Rule should seek to provide for best qualified witnesses, if they happen to be business associates not residential
neighbours, no rational reason for excluding testimony (in this day and age)
o Clarke increasing urbanization of society, person’s community will not necessarily coincide with
particular geographic location
R v. Profit 1993 SCC
 As a matter of common sense, but as principle of law, TJ may take into account that in sexual assault cases
involving children, sexual misconduct occurs in private and in most cases will not be reflected in reputation in the
community of accused for morality
 As matter of weight, TJ can find propensity value of character evidence as to morality is diminished in such cases
R. v. Lupien 1970 SCC
 L charged with gross indecency (homosexual), defence was he thought his companion was a woman, wanted to
call expert to testify to effect that he was a homophobe and had violent reactions to homosexual practices
 Cannot use expert to express his view of the intent of accused to jury, based upon evidence not before jury
 Dissent: evidence showed that L was not normal man – as a general rule psychiatric evidence of a man’s
disinclination to commit the offence charged should not be admitted, but in case of homosexuality where the
participants have a characteristic that makes them more identifiable as a group, it is appropriate
R. v. Robertson 1975 ONCA
 R charged with murder of 9 year old girl, wanted psychiatric evidence to show that person who would commit the
crime would show characteristics of violence and aggression, and that R did not possess these tendencies
 Evidence that the offence has distinctive features which ID perpetrator as having an unusual personality trait
constituting him a member of an unusual and limited class of persons would render admissible evidence that
showed the accused to not possess these traits: but disposition to violence not so uncommon to be abnormal
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R. v. Mohan 1994 SCC
 M charged with sexual assault on 4 patients, wanted to lead expert evidence that the perpetrator of such offences
would be part of a limited and unusual group of individuals that M did not fall into because he didn’t possess
those characteristics (specifically, that perpetrator fit profile of paedophile or sexual psychopath)
 Person who committed sexual assaults on young women not part of group with abnormal/distinct characteristics
 Legal question of normality or abnormality of accused is admissibility question, depends mostly on relevance,
governed not by scientific expertise but common sense and experience, with consideration to expert opinion
o No support of finding that profile of paedophile or psychopath has been standardized so he could be
matched with profile of the offender depicted in the charges; expert group profiles not sufficiently reliable
R v. SGG
 Woman running Fagan-like criminal enterprise in Vancouver; crown sought to lead prior sexual activity between
grown woman and young men in her gang
 Relevant because by virtue of her intimate connection with them, can draw inference that she could exercise such
significant control over them – they stole for her and killed for her; evidence had incidental character aspect, even
though this had discreditable aspect by not relating directly to murder charge
Morin 1988 SCC
 Accused charged with murder in sexual assault and stabbing death of 9 year old neighbour
 Defence was: I wasn’t there so I didn’t do it, but if I was there I was insane
o Leading psychiatric evidence to say he was schizophrenic and less likely guilty, Crown cross-ex’d expert
and found some of those traits would make him more likely killer
o Fails admissibility required particular psychiatric disorder to be unusual and sufficient to ID perpetrator
 To be relevant on issue of identity evidence must tend to show:
o Accused shared distinctive unusual behavioural trait with perpetrator of crime, trait being sufficiently
distinctive to be almost a badge or mark to ID;
o psychiatric evidence that male accused had strong inclination to choke partner during sex would be
relevant on issue of identity in murder case where someone died in from strangulation during sex;
o Conversely, fact that accused is member of abnormal group some of the members of which have unusual
behavioural characteristics shown to have been possessed by perpetrator is not sufficient
o the greater number of ppl in society having that tendency, the less relevant
 Dr evidence only showed the appellant is a simple schizophrenic; small percentage of them have tendency or
capability of committing this crime in the abnormal fashion in which it was committed; no evidence appellant has
these tendencies unless one assumes that he did the crime
Character of 3rd Parties and Victims
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Evidence directed at proving that someone other than the accused committed the crime is admissible so long as it
meets standards of relevance and sufficient PV McMillan
Where accused attacks character of 3rd party to show that person is more likely to be the perpetrator due to a
disposition, it is open to the crown to attack character of accused in similar manner McMillan
The disposition of a 3rd person, if relevant and admissible, may be proved by:
o Evidence of reputation
o Proof of specific acts
o Psychiatric evidence if disposition in question falls within proper sphere of expert
Character of victims in sexual assault cases:
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Like the accused, complainants of sexual assault are “protected”
s. 276 CC: cannot use complainant’s character to show that she was more likely to consent, or that she is not
credible; evidence of reputation can be used for other purposes but excluded unless it has significant PV over PE
s. 277 CC: in proceedings in respect of certain offences, evidence of sexual reputation whether general/specific is
not admissible for addressing the reputation of the complainant
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Character of victims in self-defence:
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Accused can lead evidence of character or violent acts of deceased to show apprehension of violence Scopelliti
No need for accused to have been aware at time of attack of the deceased’s previous bad acts or reputation for
violence; can show that deceased likely provoked the attack which makes self-defence more probable Scopelliti
Where self-defence is raised, following is admissible Scopelliti
1. Evidence of previous assaults towards 3Ps by deceased, know to accused
2. Evidence of deceased’s reputation for violence, know to accused
3. Evidence of deceased’s disposition for violence even if unknown to accused admissible where there is
other evidence of victim’s aggression on the occasion in question (can be accused’s testimony)
Accused’s state of mind relevant regarding past acts against him or past acts he knows about; the more he knows
from own personal experience, the more reasonable his fear and basis for self defence
R v. Darrach 2000 SCC
 Accused charged with sexual assault, tried to introduce evidence of complainant’s sexual history on voir dire,
 Challenged constitutionality of s.276.1(2)(a) (affidavit with detailed particulars about evidence), s.276(1) and
(2)(c) (governs admissibility of sexual conduct evidence generally), s.276.2(2) (complainant not compellable
witness at hearing determining admissibility sexual activity evidence)
 D right to make full answer and defence Charter s.7, right not to be compelled to testify against himself 11(c),
and right to fair trial not violated 11(d)
o S.7 not to give accused most possibly favourable procedures and only their interests accounted; never had
right to adduce irrelevant evidence, or to adduce misleading evidence to support illegitimate inferences
o PFJs include 3 purposes in s.276: i. protecting integrity of trial by excluding misleading evidence, ii.
Protecting rights of accused, iii. Encouraging reporting of sexual violence and protecting security and
privacy of witnesses
 Test for Admissibility s.276(2): evidence relevant AND more PV over PE
 S.276(1) only excludes twin myths, which are not probative of consent or credibility, severely distort; otherwise
evidence can be admitted but PV still over PE
o Myths: more likely to have consented and of being less credible witness due to past sexual experience
 S.276(2)(c) “significant” probative value raises threshold for admissibility in that section; not too high
R v. McMillan 1975 ONCA
 Accused charged with killing his baby; Adduced evidence that wife had a psychopathic personality disorder
 TJ wouldn’t let Crown adduce similar evidence on mental state of the accused; raised two issues on appeal:
o Character evidence on wife admissible: where 3P character evidence goes to ID, so long as there are some
other circumstances connecting that party to the crime, evidence can be admitted.
o If implicit purpose of adducing the evidence is to invite comparison to yourself re: who is more likely to
have done it, you have put your character in issue, Crown can rebut (The “Scopelliti boomerang”).
 Implicit in defence advanced that there were two people in house who could have inflicted injuries which caused
baby’s death: one was psychopath (wife) other person of good character (respondent);
 Crown ok to show two persons present in house who were psychopaths
R v. Grandinetti 2005 SCC
 Cory G first degree murder; his aunt Connie G found dead in a ditch; Connie may have been killed by 3P
 Where defence wants to lead evidence on 3P being killer, there must be some factual connection to this homicide
for relevance and PV = Alternate Perpetrator Issue
 Disposition of 3P to commit offence is probative and admissible provided there is other evidence tending to
connect 3P to the offence
 Rick made threat about drug debt to deceased a year before, but no follow up at all; court said that was merely
trying to point finger at innocent third party, no difficulties with deceased or motive to kill; not sufficient link
R. v. Scopelliti 1981 ONCA
 S charged with murder, self-defence, provocation, excessive force in self-defence: deceased constantly coming
into store and harassing/scaring S, S believed they were going to rob him
 TJ admitted certain acts of deceased not known to S (as justifying/corroborating S’s fear) – decision upheld
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Similar Fact Evidence Rule & Character
General SFE Rule: SFE presumptively inadmissible, but presumption can be rebutted if Crown satisfies judge, on BOP,
that in the context of the case the PV of proffered evidence re: particular issue outweighs PE, justifies reception (Handy)
 Exception to rule that evidence of prior bad acts is inadmissible; substantive use
 Admissible because it tends to prove:
o Not that accused is man with criminal propensities, but
o That he the accused was the man who committed the offence charged; need evidence that accused did it
 A variety of circumstantial evidence, drawing inference about guilt, strong enough inference is allowed; we know
evidence is PE, but PV enough to go to jury
Sources of Similar Facts:
1. Charges tried together: separate acts are being tried at same time on same “information” or “indictment”;
D can always apply to sever, if not severed, judge must say each of counts is separate, don’t mix up
evidence and charges unless Crown applies for SFE Rule to apply
2. Past Convictions: acts for which accused has been previously convicted, similar offence
3. Uncharged Acts: acts for which accused has never been tried and is not currently being tried
4. Stays and Acquittals: ordinarily impermissible; usually can’t say this offence similar to last because not
convicted of first ex. Kiting cheques, knew before you were overdrawn
 Title misleading; nature of offences may be different, but name relates to history of striking similarity – hit wife
with belt establishes motive for killing her with revolver later
Dangers of assessing the character of the accused
 Putting person’s entire life on trial
 Trial efficiency: how much time can you spend assessing whether or not accused did something bad 10 years ago
Process for admitting SFE (Handy) – always starting with relevance analysis
1. Starting point is presumption of inadmissibility
a. Whether PV over PE can only be determined in light of purpose for which evidence proffered
2. Ask, what is the probative value of the evidence
a. Identify the “issue in question” and how the SFE relates to that issue
i. Proceedings where character of accused/convicted is an actual live issue
1. Dangerous offender hearings
2. Sentencing hearings
3. Defamation suits
ii. If not one of those 3, consider how SFE is logically and legally relevant
b. Cogency: similarities and dissimilarities between the facts charged and the similar fact evidence;
connection between accused and SFE (Arp) and nexus between SFE and Issue
i. Likelihood of coincidence must be objectively improbable (Smith)
ii. Proximity in time of similar acts
iii. Extent to which the other acts are similar in detail to the charged conduct (Straffen, McFadden)
1. Search for similarities is question of degree
iv. Number of occurrences of similar acts
v. Circumstances surrounding or relating to similar acts (Handy)
vi. Intervening events
c. Consider potential for collusion Handy (wife who was victim of bad acts, spoke to complainant in case
and told her all she had to do was report to criminal injuries compensation ppl to get $ for reporting)- if
air of reality of collusion, Crown must disprove it
i.
Collusion destroys foundation on which admissibility sought
ii.
No obligation on defence to prove collusion
iii.
Where air of reality to collusion, Crown must satisfy judge on BOP that SFE not tainted
d. What is the strength of the evidence that the similar acts actually occurred/gatekeeper
i. Was there a conviction/admission to similar past acts (Straffen)
ii. Are there any concerns with credibility of person asserting past acts (Handy)
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iii. Usually frailties in evidence left to trier of fact; but if admissibility bound up with and dependent
on probative value, credibility of SFE is factor that TJ as gatekeeper can consider
3. Ask, what is the prejudicial effect of admitting the SFE
a. Moral prejudice: potential stigma of “bad personhood”; consider inflammatory nature of similar acts, how
serious SFE relative to charges; poisoning jury (Handy)
b. Reasoning prejudice: potential distraction and confusion of jury from actual charge against accused;
undue time consumption; revulsion and condemnation might deflect from dispassionate analysis,
unfairness in trial where accused denies SFE
4. Then, balance the probative value against the prejudicial effect
a. Evidence of prior bad acts will be admissible if prosecution satisfies judge, on balance of probabilities,
that in the context of the particular case the PV outweighs the PE in relation to the specific issue on BOP
b. No common measurement of PV and prejudice; not necessarily inverse relationship between PV and PE;
relative importance of issue, can Crown make point with less prejudicial evidence
5. Where the evidence is admitted, a special charge ought to be given to the jury (Arp)
a. Jury may find that the manner of the commission of offence is so similar that it was likely committed by
the same person
b. Judge shall review the similarities
c. If jury concludes that it is likely the same person then the evidence in the other cases may assist in
determining the count charged
d. If accepted, the evidence must only be used for the limited purpose for which it was offered
e. The jury must not use the evidence to infer character or disposition
f. [Must warn jury not to rely on prohibited inference; not punish for past misconduct; provide direction on
appropriate, non-prohibited use (Arp); not use evidence unless satisfied SF incident occurred; Direct jury
on frailties of SFE; where desired inference depends on coincidence reasoning, direct jury to consider
whether apparent coincidence can be explained by collaboration or contamination between witnesses]
Makin v. AG New South Wales 1894 UK
 Dead baby found in M’s backyard, more found in backyard of current house, and houses they used to live in
 Because the evidence adduced tends to show that the accused committed another crime which is relevant to a
specific issue, evidence of all dead babies may be admissible as SFE in prosecution of one/first dead baby
 Law has moved beyond this case
1. General Rule: Crown may not lead evidence of criminal acts other than those charged in indictment to show
accused by character or criminal conduct is likely to have committed offence charged (propensity) BUT
2. Second Branch: Fact that evidence tends to show propensity of other crimes doesn’t render evidence
inadmissible if relevant (enough) to issue before jury, and may be relevant if it bears upon question whether
the acts were designed or accidental, or to rebut a defence – court slotting in exceptions in these old cases
R. v. Smith 1915 UK
 Brides in the Bath; S charged with murdering wife BM – third wife to turn up dead in the bathtub, he stood to
benefit financially from all of their deaths; defence theory that she died accidentally
 Evidence of other 2 murders properly admitted for purpose of showing accident or design of S, trial judge correct
in directing the jury that they were only to decide the case in regards to BM
 Circumstances absolutely negating coincidence of multiple death, so leading evidence of so similar deaths was
proper, not to prove other acts, but that he was killer in this case
o Unexpectedly sudden deaths by lifting legs and submerging face; alone in house, money, same alibi
o Can look to see if evidence is part of a design, or party of a system
R. v. Straffen 1952 UK
 S escaped from prison, during that time little girl was killed – denied killing her, but evidence brought that he
admitted that he had been convicted of killing 2 other little girls but not this one
o Circumstances of death similar: all 3 manually strangled, no attempts of sexual assault, body left
unhidden, no evidence of struggle
 Evidence of past murders admitted as SFE to show that the person who manually strangled those two little girls
also killed this girl similarly: not propensity but ID of person who did crime, not categorical, but PV over PE
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DPP v. Boardman 1975 HL
 HL rejects categorical approach that required evidence to be relevant to one of a limited set of issues (ie. To prove
intent, a system, a plan, malice or ID, or to rebut defence of accident, mistake, or innocent association)
 HL adopts principled approach: admissibility will depend on balancing PE against PV
 SCC Adopts this approach in Sweitzer v. The Queen 1982: Categories remain as illustrations of applications of
general rule, like Starr not getting rid of other approaches totally for principled
R v. CRB SCC 1990
 Begin with recognition that general exclusionary rule applies about evidence only to disposition
 Where SFE is of morally repugnant act, potential PE great and PV must be high to permit reception
 Judge must consider distinctiveness degree or uniqueness between SFE and offences alleged, and connection if
any of evidence to issues other than propensity in determining whether, in context of the case, PV outweighs PE
 Only similarity: establishment of father/daughter relationship before sexual violations began, might show pattern
of similar behaviour showing complainant’s story is true – floodgate open
o SFE to show witness credible, but not sufficient evidence on that really – showing accused is bad might
by default make him look less credible than complainant; lack of specificity on how SFE should apply,
flood of sexual offence convictions; Dissent Sopinka
 “Heavy prejudice” is not risk of conviction, it is risk of unfocussed trial and wrongful conviction
R. v. Arp 1998 SCC
 A convicted of 2 counts first degree murder; admitted both murders as SFE against the other
o Murder 1: victim got into vehicle never seen again, body found later by cross country skier, death caused
by homicidal violence – victims rings and fibre from sweater found n A’s vehicle
o Murder 2: victim disappeared, body found in snow bank next day, had been physically/sexually assaulted
and strangled – DNA linked A to victim
 Concern is not A’s disposition to do something, but similarity between the 2 acts tended to show they were done
by the same person and A is that person
o Jury infers from degree of distinctiveness between the crime and the SFE that accused is the very person
that committed the crime;
o Not infer from accused’s habits or disposition he is type of person who would commit crime; inference
only possible if high degree of similarity rendering it objectively probable; can’t be coincidence
 Where adduced on issue of Identity, a high degree of similarity is required, achieved through:
a) highly distinctive detail amounting to “signature” or b) cumulative effect of a number of significant similarities
R. v. Handy 2002 SCC – The Basic Rule Today
 Complainant, casual acquaintance of H, says consensual sex following drinking session turned into hurtful nonconsensual vaginal/anal sex accompanied by physical abuse; Crown wanted testimony of H’s ex-wife on accounts
of sexual and/or physical abuse on 7 occasions; fails
 Court sets out test
o SFE would go to show H took pleasure in non-consensual intercourse, to prove no consent
o Concern of collaboration between wife and complainant – wife told complainant, before encounter
happened/complaint lodged, that she complained about H abusing her and got money
o Similarity in detail: events with wife began non-consensually, with complainant began consensually then
turned non-consensual
 ID needs high degree of similarity; if issue is animus/motive/actus it’s less similar
o Circumstances: sexual abuse in marriage vs. abuse during drunken one night stand
o Strength of SFE – H denies abuse with wife, issues with ex-wife’s credibility
o Moral prejudice – H at risk of prejudice of “bad personhood” – inflammatory nature of wife’s testimony
o Reasoning prejudice – H denies SFE, creates risk that there will be unfairness in right to respond because
H cannot counter with SFE to support his credibility (ie number of times sex with wife was consensual)
 Basic Rule: though presumptively inadmissible, evidence of prior bad acts by accused admissible if Crown
satisfies judge on BOP that, in context of case, PV in relation to specific issue outweighs PE
 Must be discreditable conduct by accused out of court, otherwise just circumstantial
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Difficulties applying test: propensity evidence is still that, sometimes that does matter like Smith it’s not
propensity as serial killer per se but his propensity to marry rich women and kill them in bath and we can stop
trying to call it something else
ID what evidence really supports; ID how similar it has to be to pass test; ID factors connecting out of court bad
acts with charged; Differentiate between improper general propensity with more focused; SFE need not be
conclusive, it’s a type of circumstantial and just needs to be PV over PE and tends to prove
Significant evidence attaches to this type of evidence, so court be more careful about letting it in
R. v. McFadden
 M charged with killing deceased while doing work on her house – claims he blacked out, isn’t denying killing so
the issue is if it is first or second degree murder or manslaughter
 Crown theory first degree: planned or deliberate, or committed during commission of sexual assault
 Crown wanted to lead evidence that M previously made sexual advances to a customer, P, on a previous occasion
to support theory for murder – court rejects, facts not similar enough to get in under SFE
 However, M puts credibility in issue by saying he loves his wife, has no reason go to elsewhere for sex
o Crown then puts P on witness stand – but issue arose as to what they were having her testify for –bad
character (allowed now), or to contradict M that in past he tried to go elsewhere for sex (this is collateral)
R v. Shearing 2002 SCC
 Accused led Kabalarians, enlightenment through steps of consciousness, sexual experience the means, charged
with 20 sexual offences with young girls; 2 complainants sisters living there because mom was housekeeper, 9
others at home were believers; counts tried together and each admitted as SFE for others
 At SCC, cogency of SFE rests on validity of double inference that 1. Accused had situation specific propensity to
groom adolescent girls for sexual gratification by exploiting cult beliefs/housing, and 2. He proceeded in that way
with each complainant
 Some evidence of opportunity for collusion or collaboration and motive, and of communication among
complainants; also evidence not strong so TJ right to let question of collusion go to jury; SFE admissible
 Circumstantial evidence: cogency of SFE rests entirely on validity of inferences it supports re: issues in question
R v. Perrier 2004 SCC
 Charges on accused in 2 incidents; issue was ID; Crown admitted gang membership rotated but said accused in all
3 incidents; TJ erred telling jury to consider evidence from one incident as SFE with respect to identification, not
of the gang, but of the accused for other incidents
 Similarities between incidents demonstrate it was likely same gang committing offences but don’t point to
individual trademark/characteristic to ID appellant
 Focus must be on high degree of similarity between acts, not evidence of accused’s involvement; more similar
means more PV; Then focus on whether same gang committed acts; then decide same individual
 Gang membership, just gives possibility he was there on other occasion; evidence of group activity needs also
evidence linking individual to each group offence by distinctiveness of his role or other independent evidence
Noor Mohamed v. The King 1949 British Guyana
 D goldsmith accused of murdering woman he lived with by causing her to take cyanide, which he had around the
house for his work; no direct evidence he caused her to take it, and some evidence she committed suicide
 Prosecution led evidence he had previously killed wife with cyanide on pretence of cure for toothache
 Appeal: Defence successfully argued the PE of evidence outweighed PV, so wrongly admitted
Character and SFE in civil cases
Mood Music v. deWolfe Ltd
 P & D both make and supply background music, P alleging D stole copyrighted songs, D said coincidence
 P wanted SFE they previously “trapped” D into infringing their copyright, and D had infringed others’ copyright
 Evidence of other instances of copyright infringement allegations sufficient for PV to be relevant, admissible
 In civil cases the courts will admit evidence of similar facts if it is logically probative… provided that it was no
oppressive or unfair to other ide and that the other side had notice and is able to deal with it
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Extrinsic Exclusionary Rules (Policy Based)
PRIVILEGE (exclusionary rule)
Generally
 Two Aspects: the right to say something without legal recourse; right/duty to keep certain things confidential
o ex. Anything you say in court can’t be used for defamation case
 Privilege protects info from disclosure in court even where relevant and probative
 Evidence that meets requirements of privilege is inadmissible unless the privilege holder waives it
 Privileged communications typically confidential, but confidential communications not necessarily privileged
 Privilege is a rule of evidence – something that is asserted at trial; also quasi-constitutional
 There are two types of privileges: Class privileges and Case-by-case privilege
Class Privilege
Class privileges lead to a prima facie presumption of inadmissibility, unless party urging admission can show why the
communication should not be privileged (and admitted as an exception); despite relevance McClure
Solicitor-Client Privilege
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Highest and best-recognized privilege in Canada, measuring stick for other privilege
Initially conceived of as rule of evidence, has evolved into a substantive legal principle, exclusionary rule
o SCC declared this in response to police showing up at law offices with warrants
o When the law gives someone authority to do something which, in the circumstances of the case, might
interfere with that confidentiality, the decision to do so and choice of means of exercising that authority
should be determined with a view to not interfering with it except to extent absolutely necessary in order
to achieve the ends sought by enabling legislation - enabling acts providing otherwise interpreted strictly
Purpose/Policy: preserve relationship of trust; encourage and preserve full/frank communication; preserve
existence and effective operation of Canada’s legal system Foster-Wheeler
Privilege doesn’t have to be claimed: where the test is met, privilege simply attaches
If there is 3P present, communication is probably not confidential
Presumption that lawyers’ bills are privileged
The privilege is of the client, not the lawyer, client may waive privilege expressly or impliedly
o Privilege can’t be abrogated by statutory inference; privacy comm couldn’t review privileged doc to
decide if gov’t assertion of privilege was valid Privacy Commissioner v. Blood Tribe Dep’t of Health
Inadvertent disclosure does not imply waiver:
o ex. If lawyer receives fax in error from another lawyer, there’s ethical onus on you to return it without
looking or using it to his client’s detriment
Test for Solicitor-Client Privilege Canada v. Solosky 1980 SCC
1. Communication must be between client and solicitor (including agents, employees, secretaries, articling students)
a. Only covers third parties that are an agent for solicitor/client relationship, in that they are a conduit for
communication (Smith v. Jones)
i. Agent includes psychiatrist who lawyer sent the client to, to providing better legal advice
b. Communication includes speaking, aids furthering communication (drawing diagram), acts done while
lawyer/client are communicating
c. Doesn’t include things that pre-exist prior to the lawyer/client communication (such as a bloody shirt)
2. Communication must entail the seeking of legal advice Foster-Wheeler
3. It must be intended to be confidential
a. Can lose privilege if circumstances do not suggest intention of confidentiality, such as bringing buddies to
the meeting, speaking at a party where people could overhear
b. Privileged: communication involved in seeking/giving of legal advice, can be meant to be confidential;
anything else client tells you about himself is confidential, but not privileged
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Wigmore Definition:
o Where legal advice (not business, policy advice of ex. In house lawyers) of any kind sought from professional
legal adviser (and his staff, agents), in his capacity as such, the communications (not objects, things lacking
communicative content) relating to that purpose, made in confidence by client (client intends it to be confidential,
not posts on fb), are at his instance permanently protected (even after client dies, unless he says in his will you
can disclose) from disclosure by himself or by the legal adviser, except the privilege be waived (express, implied
from circumstances ex. Ask advice in presence of crowd)
Exceptions to Solicitor-Client Privilege: Criminal Purpose, Public Safety, Innocence at Stake
1. Criminal Purpose: communication in furtherance of crime not privileged Descoteaux v. Mierzwinski
a. Legal advice must be lawful to attract protection
b. Confidential communication can lose that character if and to extent that they were made for purpose of
obtaining legal advice to facilitate the commission of a crime/fraud (Campbell obiter)
c. Where communication itself is material element (actus) of the crime, the communication is not privileged
d. Something more than evidence of existence of a crime and proof of anterior consultation with lawyer –
something must suggest that advice facilitated crime and lawyer was a “dupe or conspirator” Campbell
o Not clear whether this is actual exception or whether criminal purpose is not privileged ab initio
2. Public Safety: a lawyer may disclose if there is reason to believe that not disclosing may result in death or serious
bodily harm – ought to consider 3 factors Smith v. Jones
a. Is there a clear risk to an identifiable person or group of persons
i. Consider: long-range planning, method for carrying out, history of similar prior threats/assaults
ii. Threatened group doesn’t have to be small so long as it is a clearly identifiable group
b. Is there a risk of serious bodily harm or death?
i. Threat must be such that victim is in danger of being killed or suffering serious bodily harm
(includes psychological harm)
c. Is the danger imminent?
i. If imminent, danger is serious
ii. Imminent means risk itself is serious – nature of threat must create sense of urgency
iii. Defined in terms of circumstances – does not necessarily mean it will happen soon, just that there
is great probability that the threat will be carried out
o Note: Law Society rules grant an exception for lawyers to tell police in circumstances like this
3. Innocence at Stake: 2 stages – must be proven by accused on balance of probabilities (McClure/Brown); applies to
solicitor client and informer privilege; “the one true exception”
a. Threshold stage:
i. Info accused seeks from solicitor/client privilege is not available from any other source
1. Re necessity, any application will be based on “some” info that a potentially exculpatory
3rd part s/c communication exists
2. Means “no access” to communication from any other source
ii. Accused must be otherwise unable to raise reasonable doubt
1. Accused must show there is no other defence and the requested communications would
make a positive difference in the strength of the defence case
b. Actual IAS test:
i. Accused seeking production of privileged communication has to demonstrate an evidentiary basis
to conclude that a communication exists that could raise a reasonable doubt as to accused’s guilt
1. Requires some sort of evidentiary basis that the info could exculpate the accused
ii. If such an evidentiary basis exists, trial judge should examine the communication to determine
whether, in fact, it is likely to raise a reasonable doubt of accused’s guilt
1. Evidence must be able to stand on its own in raising a reasonable doubt, not that it will
help the defences case when considered cumulatively with other evidence
2. Cumulative effect will only be basis for disclosure when the s/c disclosure is needed to
make sense of other evidence and thereby raise reasonable doubt
c. Limits: only parts necessary to raise RD will be disclosed, crown only receives disclosure to extent that
defence relies on the evidence, client who lost privilege cannot have disclosed communication used
against him in any charges relating to statement
4. Somewhat of 4th exception: Client’s Best Interests
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a. Often in wills & estate cases where it would be in the client's best interests, in ensuring that the
disposition of assets was best dealt with, for the lawyer to disclose information that the client made
b. Also in a case where a woman was killed by her husband, court allowed the wife's lawyer to disclose
information she had given to him, because they believed it to be in her best interests
Pritchard v. Ontario (HRC) 2004 SCC
 P filed complaint with HRC against former employer, discrimination, harassment – HRC decides not to deal with
complaint, P seeks judicial review for motion for reproduction of documents, including legal opinion provided to
HRC by in-house counsel
 Legal opinion privileged: in house counsel opinion protected by same privilege as outside counsel for same matter
 Sometimes in-house counsel communication not privileged i.e. if business advice, owing to nature of work
 Criticism: legal profession is self-regulating, maybe overemphasizes this privilege
R v. Campbell 1999 SCC
 Unlawful trafficking by RCMP to catch trafficker; C claimed defense of entrapment, RCMP claimed no
entrapment/abuse of process because they were operating on advice of legal advice
 By claiming to be relying in good faith on legal advice, privilege to that legal opinion waived
 Obiter: had privilege not been found to have been waived, court would have been inclined to order production re
legal opinion on entrapment on basis that it may have counseled a criminal act
Smith v. Jones 1999 SCC
 Lawyer sent J to see S, psychiatrist, from meeting S was concerned about what J would do, and informed J’s
lawyer of this – communication between S and J was privileged – S agent of lawyer
 Court lays out test for disclosure where there is threat of public danger (rare)
o Clear threat: J had planned and prepared in significant detail attacks on prostitutes
o Seriousness: careful and detailed plan to rape, kidnap, murder, already carried out once
o Imminence: J at large since statement, assaulted prostitute prior to this, hadn’t done anything since –
however, breached bail, and possibly behaving because of acute awareness of consequences
 Court order to waive privilege and disclose; court said Dr taking legal action not only thing to do, there is
exception that applies, and in emergency it might be reasonable in certain circumstances to notify police or Crown
R v. McClure 2001 SCC
 Series of sex offences w/students; timing of one was suspicious b/c she filed complaint only after hearing about
charges and consulting a lawyer; defence wanted to see communications; Innocence at Stake
 McClure application: accused must show threshold, 2 substantive tests on BOP (see above, changed in Brown)
 Solicitor-client must be as close to absolute as possible to ensure public confidence and retain relevance does not
involve balancing interests on a case-by-case basis
R. v. Brown 2002 SCC
 B murder suspect, circumstantial evidence and jailhouse informant, DR tells police that bf Benson told her and his
lawyer that he committed the murder; evidence suggested another man had confessed to his lawyer he did it
 Normally access to communications denied, as info is available through witness testimony; unreliable but cross ex
 Stage 1: Threshold
o Not available from other source – DR poses problem but her testimony may be inadmissible hearsay and
there is a reliability problem possible
o Otherwise unable to raise RD – B may have been able to raise RD b/c crown’s case highly circumstantial
 Stage 2: actual Innocence At Stake: info disclosed
o Sufficient evidentiary basis that it could raise RD – yes, DR’s statement plus lawyer’s card with
instructions to Benson to “remain silent”
o Examine communication/is it likely to raise RD
 When IAS and choice is between admitting hearsay and privileged info or not, the former is safer
 Residual power to relax testing in favour of accused, disclosure for specific, exceptional purpose
 Crown can’t use exceptional purpose for disclosure of privileged material it wouldn’t normally get: if accused
doesn’t rely on privileged communications as evidence, they’ll never come to Crown’s attention
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Litigation Privilege
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Arises once litigation is on horizon, disappears once litigation is over
Attaches to documents/reports/etc that are produced by 3rd parties for purpose of litigation
Dominant Purpose Test: privilege attaches to documents created (copied, gathered) for dominant purpose of lit
o Efficacy of adversarial process; parties to litigation, represented or not, must be left to prepare contending
positions in private, without adversarial interference and without fear or premature disclosure Blank, Basi
Litigation defined broadly: particular proceeding which gave rise to claim, and separate proceedings re: same
issues, with same or related parties, arising from same or related cause of action
Privilege applies to all litigants (including self-represented litigants), independently of solicitor-client privilege
Protects: Documents, objects, communications including communications with 3Ps
o Prepared [BC- gathered, copied, or annotated] by counsel or persons under counsel’s direction
o For the dominant purpose of existing, contemplated, or anticipated litigation
o Until the litigation (or related litigation) ends
Litigation Privilege is Different from Solicitor/Client Privilege
 S-C privilege applies only to confidential communications between parties, litigation privilege applies to
communication of non-confidential nature between solicitor and 3P and includes non-communicative material
 S-C privilege exists any time client seeks legal advice and is permanent, litigation privilege applies only in
context of litigation itself and ends when litigation ends
 Rationale for S-C privilege based on fostering relationship, litigation privilege based on need for private “zone”
Blank v. Canada
 B requested access to office records pertaining to his and his corporation’s prosecutions, claiming damages for
fraud, perjury, conspiracy and abuse of prosecutorial powers in relation to proceedings against him
 Litigation over, still wants documents privileged; claim had been that it’s like S-C privilege
 Court said no those documents probably disclosed anyway
o Hypothetical possibility that related proceedings may occur in future not sufficient to claim lit privilege
o Matters not related enough for privilege to continue – documents created for prosecution of
environmental and reporting matters, now the litigation at hand is charges of conspiracy, fraud…
R v. Basi 2008
 Litigation privilege is neither a class nor a case-by case privilege; neither permanent nor absolute
o Some of what is protected in civil litigation context are not protected in criminal context: expert reports
and witness statements
 If document is made for dominant purpose of litigation, then litigation privilege will apply in criminal cases,
subject to right of accused to argue that production is necessary on the basis of his or her need to make full answer
and defence, a standard lower than innocence at stake
Marital Privilege
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Spousal privilege is purely statutory; at CL it wasn't necessary, spouses incompetent to testify against each other
s. 4(3) CEA:
o No husband is compellable to disclose any communication made to him by his wife during marriage, v/v
o Communications between spouses don't have to be confidential to be privileged;
o Can probably allow observations made by spouses; can waive
Included after spouses were made competent and sometimes compellable via s. 4(2) CEA for certain offences
Privilege is held not by person making the statement (ie accused), but by the spouse communication was made to
R v. Couture 2007 SCC
 C’s wife made statements to police when estranged from C, C said he killed 2 women before they were married;
At time of trial, coupled had reconciled
 Crown wanted statements in as necessary and reliable hearsay, despite fact that their marriage was valid and
subsisting making wife not competent or compellable: court says no, would undermine spousal privilege
 Not totally clear if s.4(1) just deals with competence not compellability; court assuming that spouse here, though
not compellable by Crown, could be compelled to testify for defence
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Settlement Negotiation Privilege “Without Prejudice”
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Communication made during attempts to settle a litigious matter through negotiations/mediation are not
admissible if negotiations/mediation fail and matter is litigated
Communications made with other side for purposes of settling are privileged (often says “without prejudice”)
Presence/absence of “without prejudice” at top of letter indicates purpose, but court will look at purpose of
communication – ie may finding privilege without words, no privilege even with words
Strong public interest in favour of settlement, so communication and info shared between parties in relation to
settlement are generally protected from disclosure
o Ex. During negotiation, your client may admit liability to settle, very prejudicial
Informer Privilege

Arises when law enforcement gives explicit or implicit guarantee of confidentiality to informer in exchange for
provision of info
 Premised on duty of citizens to aid in enforcement of law and recognition that they risk retribution by doing so;
very important in criminal cases
 Concealing informer’s identity both protects informers and encourages them and others to provide information in
future; but has led to stays of proceedings in serious cases
 Nearly absolute, overrides even Crown fundamental duty to make disclosure and deference
 Class privilege so can’t be balanced against other interests
 Once privilege established, judge has no discretion to order disclosure unless “innocence at stake test” established
 Court, Crown, defence (as officers of court) have obligation to take steps to protect privilege
o In R v. Barros 2011, however, SCC said accused or D can take independent investigative steps to try to
discover informer’s ID if those steps are lawful and purpose of making full answer and defence
1. Purpose: protect identify of police informants from retribution from criminals and encourage informers to come
forward; does not protect information provided unless releasing info might tend to identify informer; informant
information can be in form of direct evidence, hearsay, exhibits
2. Privilege belongs to the crown Leipert
a. Crown cannot, without informer’s consent, waive the privilege
b. Why? Flows from Crown’s interest in protecting informer
Identify of Informer Disclosed when:
1. Where informer is material witness (but ONLY where informer is ONLY material witness)
2. Where you can characterize the informer as an agent provocateur
o informer not only introduced police to accused but also played a role in case against accused; informers
identity could be revealed where accused needs to know identity to establish defence and has an
evidentiary basis for the defence - similar to "innocence at stake exception" to S/C privilege
3. Where there is a s. 8 issue regarding the reasonableness of a search - disclosure should be edited and done made in
circumstances where absolutely essential – don’t want to send negative message to future informers
R. v. Leipert 1997 SCC
 Police received tip L was growing marijuana in basement, took drug sniffing by house to confirm; one basis for
search warrant was informant’s Crime Stoppers tip
 Defence wanted edited copy of tip disclosed, to poke holes in info provided which gave rise to warrant
o Not allowed TJ attempt to edit the tip of all/any identifying info not acceptable, police and courts have no
power to diminish informer privilege – can’t know what info in tip will give away informer’s identity
 Informer privilege of such importance that once found courts cannot balance against other considerations
 Procedure for challenging informer privilege:
1. Accused must show some basis to conclude that without disclosure, his innocence is at stake.
2. If shown, judge reviews info to see whether it is necessary to prove accused’s innocence.
3. If it is, judge reveals only as much info as is necessary.
4. Before judge discloses info, Crown has option of staying proceedings instead.
5. If Crown proceeds, info essential to establish innocence may be given to accused.
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Case-By-Case Privilege



Other confidential communications not protected by class privilege may be protected on case by case basis;
people want things privileged to avoid putting evidence in
Burden on person asserting privilege, to show that while prima facie not privileged, it should be here
Doctor/Patient, Religious Communications; Psychiatric Counselling Records; Journalistic Sources
Wigmore’s Test
1. Confidential Communication: Communications must originate in a confidence that they will not be disclosed
a. Note: just because communication is confidential doesn’t mean it ought to be privileged, but to find a
privilege, communication must have been intended to be confidential
2. Confidentiality Essential: Element of confidentiality must have been essential to the full and satisfactory
maintenance of the relation between the parties
a. S/C paradigm for example
3. Protection of Relationship Important: Relation must be one which in the opinion of the public ought to be
sedulously fostered
4. Cost-Benefit Analysis: Injury that would injure to the relation by the disclosure of the communication must be
greater than the benefit thereby gained for the correct disposal of litigation
a. Makes approach seem utilitarian, in contrast with recent developments with privacy
Slavutych v. Baker
 S was professor at U of A, dismissed in accordance with faculty handbook in part for comments S made about
another faculty member in a tenure form sheet, completely unprofessional to trash a colleague;
 S under impression that tenure form sheet was confidential, said he only revealed his thoughts after begin
promised they would be kept confidential, and said he would go along with committee anyway
 SCC applies Wigmore criteria, kind of as obiter:
o Communication originated in confidence – confidence was stressed by S
o Confidentiality necessary for relationship – yes necessary to get honest opinions of fellow faculty
o Sedulously fostered – yes, interests of university community
o Injury of disclosure greater than benefit gained – interest in proper procedure for dismissal, but interest is
not any great than interest of confidentiality
 Tenure sheet form comments should have been inadmissible when deciding to terminate S; probably a tort/breach
of confidence anyway said court
Religious Communications Privilege
R. v. Gruenke 1991 SCC
 G and bf kill old man, G confesses to unordained priest, is now arguing for priest/penitent privilege
 Not Class privilege, no CL prima facie privilege for religious communications
o Test: are the policy reasons for supporting class privilege for these communications as compelling as
policy reasons underlying solicitor-client privilege? No
 Not Case by case privilege
o Wigmore #1: fails here – conduct of G did not suggest communication originated in confidence, made
remark that she say no harm in talking to him because she had already made up mind to turn herself in;
pastor testified he didn’t know if communication was intended to be confidential
o Lack of formal confession was not fatal, but may be strong indication of parties’ expectations
 Note: relevant that G wasn’t making confession for spiritual/religious purposes, but to relieve stress
o Likely that a religious purpose for priest/penitent privilege would withstand Wigmore criteria
Journalistic Privilege
R v. National Post 2010 SCC
 Argument for case-by-case privilege for reporters and their confidential communications with sources
o Claiming s. 2(2) freedom of press right; ONCA said no class privilege, case current at SCC
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

No class: 1. Immense variety and degrees of professionalism among journalists, 2. Uncertainty in scope of blanket
privilege (who could claim, who could waive), 3. Absence of workable criteria for creation or loss, 4. Class
privilege too rigid to be adapted to varied circumstances
Wigmore analysis “informed by Charter guarantee of freedom of expression and rights of press and other media
o 1 & 2: Source’s insistence on confidentiality as condition precedent to disclosure is essential to privilege
o 3: introduces some flexibility in court’s evaluation of diff sources and different types of “journalists”
o 4: does most of the work – weigh protection of confidence against any countervailing public interest (criminal
investigation, national security, public safety)
Psychiatric Records Privilege
M.(A.) v. Ryan 1997 SCC
 M saw R for psychiatric treatment, sued civilly for damages for psychological injuries due to sexual relations
o M saw second psychiatrist P who assured her communication kept confidential
o R’s defence was consent, so her state of mind about what happened was relevant
 P agreed to release reports for discovery, but didn’t want to release session notes, he was current psych
 Not Class, compared to Solicitor-Client; then consider Case-by-Case Wigmore
 Wigmore #1: yes, M stressed need for confidentiality; Apprehended possibility of disclosure does not necessarily
negate the privilege, otherwise privilege would seldom be found
 Wigmore #2: P’s practice and r/ship with M predicated on ability to assure of confidentiality; Clearly satisfied;
fact that patient/doctor feared court-ordered disclosure in future didn’t negate fact that confidentiality essential
 Wigmore #3: victims of sexual assault suffer trauma, public and victim interest in ensuring they get help; Clearly
satisfied, widely accepted it’s in interest of victim and society that such help be obtained
 Wigmore #4: interests of protecting community from disclosure include injury to M’s ongoing relationship with P
and her future treatment, also privacy and inequality interest
o However also strong public interest in truth finding process and correct disposition of litigation; Assess:
 Injury to on-going relationship
 Effect on ability of other persons suffering similar trauma to seek treatment
 Effect on society of lack of treatment of victims
 Privacy interest of person claiming privilege
 Inequalities possibly perpetuated by disclosure: compelling interest in protecting communications
 3 criteria met in psychiatrist/patient context, #4 will help balance competing interests and allow for some
documents to be disclosed where highly relevant to defence, but protect others;
o Balance:
 Need to find truth in litigation
 In criminal accused permitted to answer Crown, so justice allows D in civil suit to answer P’s case
 But disclosure in civil suit less compelling than in criminal
 Questionable relevance: Many communications won’t be relevant, no fishing expeditions by D’s
 Available for other sources? Can limit this
Public Interest Immunity or “Crown Privilege”

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
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
Balance public interest in disclosure against non-disclosure: weigh affected interests and factors for and against
Court oversight of Crown objections to disclosure
Protected by s.37 CEA and CL [Carey, Duncan, Conway]
Sometimes protects ID of people who have assisted police, like providing observation posts in home or business,
but are not at the level of informant Basi
Sometimes protects investigative techniques, whose disclosure would cause serious risk to admin of justice
1. If privilege claimed at trial, TJ must decide first if info might possibly affect outcome of the trial
o If not, privilege claim upheld
2. If so, TJ must consider whether upholding privilege claim would have effect of preventing accused from
making full answer and defence
o If so, TJ should consider giving Crown the alternative of either withdrawing the claim or entering
a stay of proceedings
3. If Crown refuses either, then TJ may permit introduction of evidence with safeguards Meuckon
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R v. Basi
 Crown concerned about revealing ID of informer, went to SCC: How do you litigate informer privilege?
 Whenever dealing with informer privilege, neither accused nor counsel can be present, not just in camera but ex
parte accused, no other way to ensure no one knows ID of informant
Reference Re Legislative Privilege
 Constituent told MLA confidential info re: crime; MLA refused disclosure saying it was privileged as he was an
MLA and r/ship with constituents needed to be protected
 Wigmore #3: r/ship between MLA and informer not one to be sedulously fostered – where person has info about
crime and is looking to protect public interest they take that to police, not their MLA
 Wigmore #4: can’t say injury cased to r/ship between MLA and constituent greater than benefit gained by
community by proper and unimpaired disposition of criminal cases
s.9 Crown Proceedings Act BC:
 Allows for discovery of the Crown as if Crown were a corporation
 Preserves Crown/Executive privilege to intervene in cases where it is not a party
 Where Crown argues that disclosure of a document would be injurious to public interest, the court may hold a
hearing and order disclosure based upon the public interest in the administration of justice
s.37 CEA Disclosure and Public Interest



A public official can object to disclosure for a specified public interest. Information is then withheld until either:
Superior or Federal Court has an opportunity to reassess (2) and (3)(a)
Options: 1) disclose, 2) qualified disclosure, 3) order of non-disclosure. These orders can be appealed.
Preserves CL that court has discretion to examine info in question and weigh competing interests
(1) Subject to s.38-38.16, Minister of the Crown or other official may object to the disclosure of information before the
court, person or body with jurisdiction to compel the production in any form by certifying orally or in writing that the
information should not be disclosed on the grounds of a specified public interest
(1.1) If objection made, the Court will ensure that the information is not disclosed except in accordance with this Act.
(4.1) Unless the information would encroach upon the specified public interest, court may authorize by order the
disclosure of the information.
(5) If determined that the information would encroach upon the specified public interest but that the public interest in
disclosure outweighs in importance the specified public interest the court may, after considering both the public
interest in disclosure and the form of and conditions to disclosure that are most likely to limit any encroachment,
authorize the disclosure, subject to any conditions that the court considers appropriate.
(6) If not ordered under (4.1) or (5), the court shall prohibit disclosure of the information.
s.38-38.16 CEA National Security



Post 9/11; gov’t has range of powers to prevent disclosure of stuff that might affect national security, IR
Oversight of these issues only at Federal Court, due to expertise and consistency
2 types of information involved:
1. Potentially Injurious Information: a if it were disclosed could injure IR, or national defence or security
2. Sensitive Information: Relating to IR or national defence or security that government is safeguarding
s.38.01 Obligation to disclose to the AG about possible disclosure of “potentially injurious” or “sensitive” information.
s.38.06(1) Unless injurious to IR, ND or NS, the judge may authorize disclosure.
(2) Judge may weigh competing interests and determine whether, and by how much to authorize disclosure.
(3) If not disclosed, judge will confirm prohibition of disclosure.
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s.38.13(1) AG may personally issue certificate that prohibits disclosure of information in connection with a proceeding for
purpose of protecting info obtained in confidence from, or in relation to, a foreign entity as defined in subsection 2(1)
Security of Information Act or for purpose of protecting national defence or national security. The certificate may only be
issued after an order or decision that would result in the disclosure of the information to be subject to the certificate has
been made under this or any other Parliamentary Act [can prohibit disclosure even once it’s been issued]
o The right of appeal is extremely limited, both institutionally and in the grounds; can apply to Fed Ct once
o It is not the person presiding over the proceeding who makes the decision either to issue the certificate or to
vary or cancel the certificate: these sections apply only after person presiding and a judge of the Federal Court
have done whatever they can do.
o No mechanism for correcting any effort by AG in assessing the balance b/n the interests in disclosure/non
o In short, the AG is permitted to second-guess the outcome of a proceeding to which he was a party.
o The SCC has held that this does not necessarily amount to an abuse of process Scott
s.39 CEA Cabinet Secrecy



Those charged with heavy responsibility of making government decisions must be free to discuss all aspects of
the problems that come before them and to express all manner of views (all pros and cons, defamations,
prejudices), without fear that what they read, say or act on will later be subject to public scrutiny Babcock
Cabinet confidentiality essential to good government. Right to pursue justice in courts is also primary importance,
and rule of law, accountability of executive, and principle that official actions must flow from statutory authority
clearly granted and properly exercised. But these can conflict Babcock McLachlin
CL a claim that deliberations of Cabinet should not be disclosed in legal proceedings is governed by same basic
principles that govern other claims of public interest immunity: objection must come from a proper official and
court has discretion to examine the information in question and determine whether disclosure is warranted Carey
(1) Where a Minister of the Crown or Clerk of the Privy Council objects to disclosure by certifying in writing which
confirms that the info constitutes a confidence of the Queen’s Privy Council for Canada, disclosure of the information
shall be refused without examination or hearing of the information [extraordinary power, gov’t does balancing]
(2) “A confidence of the Queen’s Privy Council for Canada” includes, within 20 years of being created(4):
(a) Memorandum
(b) Discussion paper, except where made public or 4 years ago (4)
(c) Agendum or recording deliberations
(d) Record used for reflecting communications or discussions b/n ministers
(e) Record for briefing
(f) Draft legislation
Balancing under s. 39 CEA
The minister or Clerk of the Privy Council must decide two things:
1. Is the information a cabinet confidence under s. 39(1)?
2. Is it info the government should protect, considering competing interests in disclosure and retaining confidentiality?
A valid certificate under s. 39 must...
1. Be executed by the clerk or minister
2. Relate to information in 39(2)
3. Be done in bona fide exercise of power... not an abuse of discretion
4. Be done to prevent disclosure of previously confidential information... can’t be used to protect info already disclosed.
This is all the court can review
Limited Judicial Review
In Babcock, the Court holds that the judiciary can review a s. 39 certificate but only:
1. To make sure that it falls within the scope of the statute;
2. To make sure that the Clerk or the minister has not abused the discretion... that the certificate has not been issued in
bad faith.
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R v. Ahmad 2011 SCC
 Terrorism prosecutions; SCC upholds Federal Court’s exclusive jurisdiction to decide national security privilege
claims made in terrorism or other criminal trials
 S.38 CEA is constitutional; was called a failure by Air India Inquiry
 Provincial trial judges in terrorism or criminal prosecutions, faced with national security confidentiality claims,
have had to adjourn the cases while Fed Court judges sort out privilege issues; condemned because it
unnecessarily bifurcates trials, causes long delays, and may cause unfair trials, lets RCMP or CSIS say not
answering on grounds of national security, so then trial process gets hijacked by Federal Court
Babcock v. AG Canada 2002 SCC
 Vancouver lawyer wanting to know why Toronto lawyers get paid more in DOJ. Government certified that 51
documents contained confidences of the Queen’s Privy Council for Canada, though some documents previously
listed as producible.
 s.39 CEA does not apply to government documents already disclosed, nor does it apply to 5 certified documents
in P’s possession or control; documents were disclosed by government in the context of litigation; so documents
should be produced
 s.39 does not offend rule of law, doctrine of separation of powers and independence of judiciary, is constitutional
 Crown must be able to waive privilege, otherwise any litigant against Crown couldn’t rely on gov’t to produce
documents
 TEST To certify the information, Clerk must know:
1. Is it Cabinet Confidence within meaning of s.39(1) and s.39(2)?
a) Clerk must provide description of info sufficient to establish on its face that its within s.39: like
S-C privilege, give date/title/author/recipient
2. Is it info which gov’t should protect, taking into account competing interests in disclosure/confidentiality
a) If Yes to Both, then s.39(1) protections apply, greater protection than CL
3. Power exercised must flow from the statute and issued for bona fide purpose of protecting Cabinet
confidences in the Public Interest
a) If from evidence or circumstances, this power was used for purposes beyond s.39, certification
may be set aside as unauthorized exercise of executive power Roncarelli
4. To be valid, information cannot have already been disclosed
 Protections from abuse are found in the litigation process.
o Gov’t witness may be cross-ex’d on info produced and refusal to disclose information may permit a court
to draw an adverse inference. RJR-MacDonald
Third Party Privacy: Protecting Privacy Without Privilege


Question of reproduction of records relating to 3Ps (ie complainants) is a problem of balancing accused’s s. 7
right to full answer and defence against 3P right to privacy and s. 15 right to equal benefit of the law
Often raised in sexual assault context; complainants historically treated almost like accused, used to have whole
history blown open, now it’s hard to get to
O’Connor Disclosure Regime:

The O’Connor Regime is the procedure where:
1. Record in possession of third party, and
2. Accused is not charged with sex offence, or accused is charged with sex offence but disclosure sought is
not a ‘record’ pursuant to s.278.1
Process for determining production of 3rd party records (except complainants in sexual assault cases) O’Connor
1. Establishing likely relevance
a. Court must decide whether document should even be produced to the judge for inspection
b. Exclusive Consideration: whether accused has established likely relevance
c. Burden is Low, on accused – though accused doesn’t know what is in the documents
d. Is there reasonable possibility that the information is logically probative to an issue at trial or to the
competence of a witness to testify?
i. Materiality possible where there is a "reasonably close temporal connection between" creation of
records and date of the alleged offense
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ii. Materiality possible when “reasonably close temporal connection between” decision to bring
charges against accused
 Contain info concerning unfolding events underlying the complaint
 Reveal use of therapy which influenced complainants memory of the alleged events
 Complainants credibility shown: quality of perception at the time and their memory since
2. TJ looks at document to decide if it should be produced, in whole or in part, to accused, balancing salutary and
deleterious effects of production and asks if non-production would be reasonable limit on full answer and defence
a. Should consider:
i. Extent to which record is necessary to making full answer/defense
ii. Probative value of record in question
iii. Nature/extent of the reasonable expectation of privacy vested in that record
iv. Whether production of the record would be premised upon any discriminatory belief or bias
v. Potential for prejudice to complainant's dignity, privacy, or security of the person that would be
occasioned by production of the record
3. If they are relevant, they will probably be disclosed
Mills Regime:



Use when disclosure is sought for a 3P record of complainant as defined by s.278.1 in sexual assault cases
Defining a ‘record’ s.278.1 CC:
o Any record containing personal info for which there is reasonable expectation of privacy, including
i.
Medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption
and social services records
ii.
Personal journals and diaries
iii.
Records containing personal info the production of which is protected by any other Act
iv.
Doesn’t include records made by persons responsible for investigation or prosecution
Non-disclosure Rule s.278.2 (1): “Records” not disclosed except in accordance with this procedure even if record
in possession of crown or police unless witness consents
Process for determining production of 3rd party records of complainants in sexual assault cases (Mills)
ss. 278.1 to 278.9 Code, enacted after O’Connor, mirrors dissent
1. Establishing "likely relevance" s.278.5
a. Application must be in proper form
b. Records must be likely relevant
i.
11 bases upon which an assertion without more evidence is insufficient s.278.3(4)
c. Production of record must be necessary in the interests of justice s.278.5(1)(c)
i.
8 factors to take into account s.278.5(2)
ii.
Unlike O’Connor, balancing analysis is really done here
d. Shifts onus and a higher threshold of relevance:
i. The information is not part of the state's "case to meet" nor has he state been granted access to the
information in preparing its case
ii. 3P have no obligation to assist the defence
2. Repeat the balancing after judge has seen the records s.278.7
a. Judge looks at records and assesses whether they should be produced to accused
b. s. 278.7(2) requires judge to balance accused's right to make full answer & defence, right to privacy and
equality of the complainant/witness, other person records relate to, in light of the 8 factors in s.278.5(2)
c. Can impose terms and conditions upon disclosure
R. v. O’Connor
 Facts: O’C was bishop prosecuted for sexual abuse while priest/teacher at residential school, trial judge made
wide order for disclosure to get records from therapists, crown not happy
 SCC distinguishes crown disclosure, and fact that it has no obligation to disclose anything not in its possession
 Court establishes framework, since abrogated for sexual assault complainants, but relevant for other 3Ps
R. v. Mills
 Court considers validity of s. 278.1-279.9 of Code, enacted after O’Connor, find it constitutional
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Implied Undertakings
Juman v. Doucette
 Group home owner/foster mother sued for allegations of abuse of kids in her care; litigation settled without
discovery material being tendered in court or made public in trial
o Could gov’t party disclose to police the contents of that material which would have shown criminal
conduct on her behalf
o Crown said no requirement on receiving party to maintain implied undertaking if there’s criminality or
public safety issues by not disclosing;
o Court rejected that, said in situations of public safety there may be something so serious and immediate
that party can disclose info, like Smith and Jones public safety exception to S-C privilege; otherwise
undertaking applies and you must apply to court to have it set aside, depends on facts of case, obligation
on recipient of info who wants to use material for purpose unrelated to litigation
 Both documentary and oral info obtained on discovery, including info thought by one of parties to disclose some
sort of criminal conduct, is subject to implied undertaking
 Not to be used by other parties except for the purpose of that litigation, unless and until the scope of the
undertaking is varied by a court order or other judicial order or situation of immediate and serious danger
 Rationale:
o Invasion of privacy: Public interest of getting at truth in litigation supersedes privacy interest in material,
but only to extent totally necessary to conduct litigation; Answers, documents required to be given,
compelled by statute; but where there is compulsion to produce/disclose/testify generally the court wants
to craft co-terminus right to limit use of that or prejudice to other side
o Truth seeking function of litigation will only be advanced if party giving discovery accepts that discovery
material won’t be misused, so they will make full disclosure and fulfil public interest
 Balancing required; if you wish to have implied undertaking set aside, you must demonstrate superior public
interest in doing so, that should only be done in exceptional circumstances; also may set aside where evidence in
prior disclosure is inconsistent with statements made in course of subsequent proceeding, you can’t hide and tailor
your evidence when truth will be found in discovery (contradictory testimony)
R v. Basi 2011 BCSC
 Implied undertaking in criminal context: accused who receives disclosure material pursuant to 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 proceeding
 Undertaking flows as necessary implication from the limited purpose for which the recipient has been given
access to the documents
 Gave special info in bidding process to BC Rail; accused wanted to use material for other purpose, court found
implied undertaking, not ok for accused to use material for other purpose
 Affects Crown Disclosure: you’re entitled to full disclosure but only for your criminal trial, and at end material
should be returned to crown
Privilege Against Self-Incrimination
s.5 CEA No witness privilege, but there is witness protection
1) No witness shall be excused from answering any question on the ground that the answer may tend to incriminate
him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person
2) If witness objects to answer on ground that answer may incriminate him or establish his liability in civil
proceeding… and [would have been excused from answering at CL] the answer so given shall not be used or
admissible in evidence against him in any criminal trial against him thereafter taking place, other than prosecution
for perjury in giving that evidence or giving contradictory evidence
o “Use Immunity”: if required to give an answer, it can’t be used against you later
o Note: must invoke this section to gets its protection; if you don’t object to answering you’re not covered
o At CL, privilege to refuse to answer that would incriminate: if compelled to testify, it would be unfair if
under compulsion and potential sanction for not testifying/giving false evidence when forced
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s.4(2) and (3) BCEA: Same as CEA, but extends to all provincial jurisdiction in civil or criminal, and “any proceeding
under any act”; also must claim this section
s. 13 Charter Privilege against self-incrimination for witnesses testifying at trial of another
o
o
o
A witness who testifies in any proceedings has right to not have an incriminating evidence given at that
proceeding used in a subsequent proceeding, except in a proceeding of perjury
It’s the Charter, so you don’t have to claim it or object; usually just use this instead of s.5 CEA
Henry is main case to know – clarifies s. 13 applicability
s.7 Charter: everyone has right to life, liberty, security of person and right not to be deprived thereof except in
accordance with PFJ i.e. covers where s.13 doesn’t with prior compelled evidence; not clear, case law all over the place
 In limited circumstances, s.7 may provide the following protections against self-incrimination:
 S.7 exemption cases: Is predominant purpose for obtaining earlier evidence to incriminate in current case?
1. Use Immunity: to incriminate
2. Derivative use immunity: if you uncover other evidence that would incriminate, that discovered evidence ex.
Testimony of witness you wouldn’t have known about except for compelled testimony; s.7 can provide further
protection so you aren’t compelled to testify against self
3. Constitutional exemption: ex. In Immigration, by virtue of s.7 you can be exempted from answering some Q’s
Dubois 1985
 Facts: D charged with murder and claimed self defence; testifies at his first trial, but not at second, crown uses
testimony from first trial at second; Judge let Crown read in testimony from 1st trial in 2nd
 Can’t do that – amounts to compelling accused to testify against himself in breach of s. 13; testimony from 1st
trial can’t be part of crown’s case, when they used evidence he didn’t wish to give at 2nd trial, they were in effect
compelling him to testify
 This is still good law after Henry
Mannion 1986
 Facts: M accused chose to testify at first and second trial (not compellable by crown), crown cross-examines on
statements made at first trial, to test his credibility and to establish his guilt; M says this violates s. 13
 At time, court says crown couldn’t use statements from first trial, shouldn’t have been used for proof of truth of
contents i.e. establish guilt – since overturned by Henry: accused chose to testify both times without compulsion,
so his credibility can be tested, and to extent that Crown can argue prior testimony is evidence like an admission
that can be used against him, it goes to his guilt not just credibility
Kuldip 1990
 K testified at 1st and 2nd trial, crown wanted to cross examine K on testimony at trial 1 to challenge credibility
 This was allowed, but only for purpose of impeaching credibility (allowed), not to proving inconsistencies, not to
incriminate – can only use to “nullify” K’s testimony
 In part this has been overturned by Henry: again it can actually be used for credibility and incrimination
Allen 2003
 Accused testifies as crown witness at first trial of other accused, and as court’s witness at trial of second coaccused, then testifies at own trial; crown used earlier testimony to impeach accused
 Cross-ex included admissions he thought he killed victim
 S.13 violated, no cross-ex allowed, danger that prior testimony could be used to incriminate
 Like Noel, prior proceeding he was compelled so next proceeding can’t use that testimony at all
Noel 2002
 Facts: N and brother charged, N compelled to testify at brothers trial as ordinary witness, has very low IQ; admits
at brother’s trial to being accomplice in homicide; at own trial he testifies, where charged separately from brother;
Crown said using just to prove lack of credibility but the cross-ex was so intense that jury would have thought that
because of admissions at prior trial he was guilty, not just non-credible; crown then wanted to use statements from
that trial at N’s own trial as the accused
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Henry says: This is classic case of what s. 13 is protecting accused from; prior testimony compelled and not
admissible in subsequent proceeding for any purpose, including impeaching credibility, and incriminating
Accused can only be cross-ex on prior testimony where there’s no realistic danger his prior testimony could be
used to incriminate; given extent of ferocious examination at noel’s own trial the only purpose of exam could
have been to incriminate not discredit
Henry 2007
 Facts: similar to Mannion and Kuldip, H testified at trial one and then also at trial two, using new and improved
facts at second one; crown cross-ex first testimony to impeach credibility; H wanted to keep trial 1 testimony out
 Court makes changes:
o Dubois stays intact, Mannion and parts of Kuldip overruled
o Noel stands
 The distinction is between compelled testimony
 Where accused chooses to speak at second trial, the risk of compulsion is not there, even through second trial is
considered a separate proceeding
 S.13 doesn’t give you right to give a bunch of false, inconsistent testimony in hopes that sometime later it will be
successful, defeats search for truth
1. If accused does not testify at his trial, his testimony at earlier proceeding can’t be used against him at trial
whether accused or merely witness at earlier
2. If accused does testify at his trial, his testimony from earlier proceeding can’t be used against him at that
trial if he was compellable (not compelled) as witness at earlier
3. If accused does testify at his trial, testimony from earlier proceeding can be used to cross-ex him at that
trial provided he was not compellable as witness at earlier proceeding
R v. Nedelcu SCC Nov 7, 2012 – Back to Square 1, thanks Justice Moldaver
 N took victim for ride on motorcycle; crashed into curb, causing victim permanent brain damage
 N charged with dangerous driving causing bodily harm, also civilly sued
 During examination for discovery, N testified he had no memory of events from day of accident
 But at criminal trial, N gave detailed account of events leading up to and during accident, blaming victim
 Crown counsel permitted to cross-ex N on his discovery evidence; N said “I have recollection of about 90-95%”
 N’s trial testimony found unreliable and he was found guilty of dangerous driving
 Judgment: s.13 doesn’t apply to just any evidence the accused may have been compelled to give at previous
proceeding
o Henry said too tough to say you’re using evidence to test credibility or incriminate; read out s.13 first
“incriminating”, to just say any compellable witness can’t have any evidence used against for any
purpose, avoids problems… which SCC is bringing up again in this new case!
 It only applies to Incriminating evidence (compellable or not) from prior proceeding
 Incriminating evidence: crown could use at subsequent proceeding, if permitted, to prove witness’s guilt on there
 Time to determine whether it’s incriminating is when Crown seeks to use at subsequent proceeding: even if
clearly not incriminating when given at first instance, look at trial circumstances now
 Using Nedelcu’s prior discovery evidence merely to test credibility doesn’t convert it into incriminating evidence
R v. S (RJ)
 Derived from compelled testimony: couldn’t have been obtained, or significance not appreciated, but for
testimony of witness, ought to be immune from subsequent use
 Not self-incriminatory as being created by accused; but self-incriminatory because couldn’t otherwise have
become part of Crown case
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Statements by the Accused
Sources of Statements
1. Family, friends, acquaintances – Non-state Actors
2. Police or other “Persons in Authority”
3. Undercover police officers or police agents
4. Surreptitious recording (audio or video) by police or other state actor
5. Surreptitious recording by non-state actor
Admissibility Issues
1. Hearsay (but party admission exception if not said to person in authority, no special rules)
2. Common Law Confession Rule – “Voluntariness”
3. S.7 Charter Right to Silence
4. S.10(b) Charter Right to Counsel
5. Common Law Right to Silence
The Common Law Confession Rule
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
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No Statement by accused is admissible against him unless it’s shown by Crown BRD to have been voluntary, in sense
that it was not obtained by fear of prejudice or hope of advantage exercised or held out by person in authority
Boudreau SCC quoting Ibrahim
Remedy for violation: Automatic Exclusion
Old concern was reliability, limited to threats or promises inducing statements
Person in Authority
R v. Rothman
 Said he didn’t want to speak to police, was put in cell – statements solicited by undercover officer admissible
because R didn’t know he was speaking to person in authority, so CL confessions rule didn’t apply
 May not apply after Charter: where you have state agent, active elicitation by the state after accused has
expressed right to remain silent violates s.7 and right to silence
 Test is Subjective: Did accused (reasonably) believe the person was police officer (or agent)? Aka person in
position to affect his legal status
 Shock the Community: It was outrageous they’d put undercover cop in cell and fool guy into giving up right to
silence; authorities must sometimes of necessity resort to tricks or other forms of deceit, and should not through
the rule be hampered in their work; what should be repressed is conduct on their part that shocks the community:
pretending to be duty counsel, pretending to give insulin injections; “Marquess of Queensbury Rules”
The Voir Dire
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Where Crown offers statement of accused given to person in authority for evidence, they must establish
voluntariness BRD for any purpose, including impeaching accused’s credibility Monette
If voluntariness not conceded, there must be voir dire; if it is conceded it can’t be used in Crown case in chief
If in voir dire accused does admit offence charged, admission can’t be used in main trial Brophy
Evidence from voir dire can’t be brought into main trial without consent of both parties Gauthier
Issue is voluntariness not truth of statement, but accused may be asked in voir dire if statement is true DeClercq
But that wasn’t followed in NBCA Tessier: they said HL had overruled case which established that
Voluntariness Considerations Oickle

In order for most statement made to a person in authority to be admissible the crown must establish beyond a
reasonable doubt in light of all of the circumstances that the will of the accused to choose whether to speak has
not been overborne by inducements, oppressive circumstances, or the lack of an operating mind. in addition, there
must not be police trickery that unfairly denies the accused's right to silence (Oickle)
o All the Circumstances: Means don’t assume you know what happened in interrogation room
o Will overborne: From Privilege not to self-incriminate and right to silence; emphasizes causation; did
accused rationally believe there was no other choice than to admit guilt/give statement
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1. Threats or Promises operating as Inducements
 Voluntariness requires absence of threats or promises as inducements strong enough to raise RD about whether
will of suspect has been overborne by questioner
i.
Was there an inducement?
ii.
What was the strength of the inducement?
iii.
Was there a quid-pro-quo offer by interrogators? Was the inducement a factor in A confessing?
o Spiritual/moral inducements (confess and feel better) generally don’t count
o Technically the inducement was to be related to prosecution being more lenient or harsh on A
o Inducements: Won’t get bail; I’ll get mad; things will go better for you if you give statement
2. Atmosphere of Oppression
 External Pressure, not all internal to accused
 Fact that accused is sensitive may be taken into account
i.
Deprivation of food, clothing, water, sleep or medical attention
ii.
Denying access to counsel
iii.
Excessively aggressive, intimidating questioning for prolonged period
iv.
Fabrication of evidence in combination with other factors
o Merely showing them inadmissible evidence, like lie detector test, or befriending, doesn’t vitiate
voluntariness; but use of non-existent evidence especially if very inculpatory, may do it
R v. Serack 1974
 A man’s trousers are, in a situation like this, essential to his dignity and his composure
 Police had right to take his clothes for examination but they ought to have supplied him with substitute clothing
not just a blanket, especially when waiting 8 hours
 Statements given were deemed involuntary
3. Lack of Operating Mind
 Accused must prove he didn’t know what he was saying, that he was saying it to police officers, who can use it to
his detriment; sanity question
 Intoxication generally not sufficient to prove lack of operating mind
Ward v. the Queen
 Single vehicle accident, respondent and his deceased lady friend found on ground outside vehicle, respondent
found unconscious but resuscitated, gave statement; TJ said involuntary because not fully conscious
 It’s proper for judge to consider whether mental condition could affect utterances being from operating mind;
Appeal wrong to say that’s determining weight or PV which should be done after admissibility determined
R v. Whittle
 Accused charged with murder, schizophrenic; weeks later he was taken into custody and made video statements
about his involvement in the death and led police to physical evidence connected with the crime; in statements he
talked about feeling like he has other people’s brains on him and wants to walk backwards to NB
 Found fit to stand trial, Expert doctors said he hallucinates but no evidence that was happening during statement
 Requires limited mental component of cognitive capacity, are they capable of making a choice in own interest
 Subjective part: inner compulsion can’t displace operating mind finding, unless involuntary from person in
authority
4. Appalling Police Trickery
 Statement will not be voluntary if product of police trickery so appalling it would shock community
 Different than inducements, oppression  those can go to reliability; this is about conscience
 Police can use some tricks, but must maintain integrity of system
 Won’t be voluntary if product of appalling trickery; could be Charter violation basis, but need not be
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Confessions Rule Today
R v. Oickle
 O charged with setting series of fires – given polygraph after which told he failed (but also told that results not
admissible) – O warned several times of his rights, after admitting to one first read rights again, O ended up
taking police around and describing how he set the fires
 Was admission admissible as being voluntary? Yes – CL confessions rule concerned with admitting statements
created in situations where they may not be reliable because they were involuntary – no oppression, inducements,
promises, threats or police trickery here
R v. Spencer
 Facts: S and girlfriend arrested, told that S and g/f would be charged with theft, after which S confessed, then later
said he was induced by police promises of leniency to g/f and talking to g/f
 Mere presence of some inducements will not be determinative of voluntariness – consider all circumstances – S
experienced criminal, tried to “bargain” with cops – statements voluntary
 A promise renders a statement involuntary only if the quid pro quo provides a strong enough inducement to raise
RD about whether the will of the suspect was overborne
Right to Silence and Improperly Obtained Evidence
s.10(b) Charter: Right to Counsel
-
Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that
right
R v. Sinclair 2010 SCC
 No right to have counsel present
 S.10(b) supports the detainee’s s.7 right to choose whether or not to cooperate with the police investigation
 Normally, a single consultation at the time of detention or shortly thereafter, gives the detainee the info he needs
to make a meaningful choice whether to cooperate with the investigation or decline
 There is no right to repeated consultations or to have counsel present during custodial interrogation
 Changed Circumstances
o May require a second consultation, in order to allow accused to get advice he needs to exercise his right to
choose in the new situation, ex:
 New procedures involving detainee
 Change in jeopardy facing the detainee, or
 Reason to believe that the detainee may not have understood the initial advice of right to counsel
s.7 Charter: Right to Silence
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Everyone has right to life, liberty, security of the person and right not to be deprived except in accord with PFJ
 Triggered by: arrest or detention (does not apply where accused/person is not detained) – question to ask is, if
person got up to leave, would officer detain them – if answer is yes, they are already detained
 Burden of proof: balance of probabilities on the accused
 Remedy for violation: excluded only if s. 24(2) satisfied
o Where court concludes that evidence was obtained in a manner that infringed/denied right/freedom
guaranteed by Charter, evidence shall be excluded if it is established that, having regard to the
circumstances, the admission of it in the proceedings would bring the administration of justice into
disrepute
o 4 issues arise under s. 24(2):
 Who has standing to apply for the exclusion of evidence?
 What does “obtained in a manner” mean?
 When does the admission of unconstitutionally obtained evidence bring the administration of
justice into disrepute?
 Does a change in circumstances during the trial every justify revisiting a s. 24(2) ruling? (Calder)
 What underlies s. 7 right to silence:
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
o Right to choose to speak to agent of state, whether or not to make a statement
o Includes negative right to be free from coercion, threats, promises or violence
Right to speak to authorities is objective, not subjective: (Hebert)
o Basic requirement: suspect possesses operating mind (subjective), then focus shifts to authorities
o Was the suspect accorded right to counsel
o Did police conduct effectively and unfairly deprive the suspect of the right to choose whether or not to
speak
Right is not absolute (Hebert)
o Accused can waive right, but waiver doesn’t have to be express
o 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 (Singh)
General points about right to silence
1. Nothing in the rule in s. 7 right to silence prohibits police from questioning accused in absence of counsel after
accused has retained counsel (Singh)
2. Right to silence is not violated by police continuing to question the accused after accused has “invoked” right to
silence
3. No requirement that police inform accused of right to remain silent
4. Police allowed to persuade accused to talk up to certain point
R v. Herbert 1990 SCC
 Facts: H said he didn’t want to speak to police, put in cell, undercover cop went in and elicited incriminating
statements
 CL confessions rule not violated, but s. 7 right to silence was, and H’s right to chose whether to not to speak to
person in authority was violated
 State not entitled to use superior power to override suspects will and right to choose
 The essence of the right to silence is that the suspect be given a choice… the freedom to choose… the freedom to
speak to the authorities on the one hand, and the freedom to refuse to make a statement to them on the other
 Rationale for Right to Silence:
o CL on confessions and privilege against self-incrimination reflect common theme in adversarial system:
the accused has right to choose whether to speak or remain silent before and at trial
o This right is “fundamental” and is protected by s.7
o Police must not engage in tricks which would effectively deprive a person in police custody of the right to
choose whether to speak
o The logic which led the majority in Rothman to conclude that a confession obtained by a police trick
could not be excluded, finds no place in the Charter
o The purpose is to control the superior power of state vs. individual who has been detained, in its power
Right to Silence Limits Herbert
1. Police may question and persuade accused to speak after he has retained counsel
2. The right applies only after detention
3. The right does not affect voluntary statements made to fellow cell-mates
4. UCO may observe accused in cells, bu can’t use subterfuge or actively elicit so as to undermine accused’s choice
to remain silent
R v. Singh
 S arrested for death of bystander who was killed by stray bullet – was advised of right to counsel and privately
consulted lawyer – subsequently during long interview said numerous times he didn’t want to talk about incident,
but then would sometimes answer questions – some of which were incriminating
 Trial – statements voluntary – S didn’t prove breach of his rights under s. 7 – upheld at SCC
 CL confessions rule and s. 7 right to silence are functional equivalents, meaning once confession is voluntary is
passes s. 7 scrutiny
 Right to be silent, not right to be spoken to – importance of police questioning in investigation of crime
o Question was whether “no” means “yes” where a police interrogator refuses to take “no” for an answer
from a detainee under his total control
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Ultimate question is whether the accused exercised free will by choosing to make statement
Considerable overlap between right to silence and post-Charter, broader voluntariness rule Oickle
o Tests functionally equivalent where detainee is in custody and knows he is speaking to person in authority
[R. v. Calder]
 Facts: C was officer, charged with attempting to purchase sexual services of prostitute, prior to being charged he
was cautioned that he didn’t have to say anything, asked why the caution several times with no direct answer but
rather responses of reading sections of code, or getting caution again – during interview C denied going to place
where alleged meeting was with S – this was a lie, C’s testimony at trial contradicted by independent evidence –
statements excluded - C acquitted
 Crown: the tender of C’s out of court statements for purpose of cross-examination constituted a change in the
circumstances, justifying a reconsideration of the judge’s earlier ruling that the admission of the evidence would
bring the administration of justice into disrepute
 No – once evidence is excluded under the Charter, it cannot be admitted for any purpose
Common Law Right to Silence
-
Pre-Trial Conduct
 Where a statement is made to person in authority, CL needs it be shown to be voluntary before it is admissible
o Why? Well recognized ability of persons in authority to induce, intentionally or unintentionally, false
confessions through torture, threats, bribery and other improper means
 Voluntariness broadly defined – any circumstance where accused did not have opportunity to choose Oickle
 Silence may be admissible if inextricably bound up in other evidence such as narrative and cannot be extricated
Turcotte
o By choosing to speak selectively to police, accused makes the whole conversation, including his silence,
admissible
R v. Turcotte
 Facts: T appeared at police station, made statements to police about rifle in truck, need to send car to where he
just was, and an ambulance, but wasn’t answering questions about what was going on
 Claimed that silence/conduct created a “consciousness of guilt” – not called “post offence conduct”
 Court does say jury can use silence to assess accused’s state of mind at the time – questionable??
 Since there is right to silence, it would be a snare to caution accused that he need not say anything in response to
police officer’s questions, but nonetheless put in evidence that the accused clearly exercised his right and
remained silent in the face of a question which suggested guilt
 CL right to silence exists at all times against the state, whether or not the person asserting it is within its power
o Like confessions rule, accused’s right to silence applies any time he or she interacts with a person in
authority, whether detained or not
o Law imposes no duty to speak or cooperate with police: severs any link between silence and guilt
 Jury Instruction when Silence Admitted:
o TJ obliged to tell jury in clearest terms that it could accused’s silence at police station could not be used to
support an inference of guilty in order to contradict an intuitive impulse to conclude that silence is
incompatible with innocence
s.24(2) Charter Exclusion
-
(1) Anyone whose rights or freedoms… have been infringed or denied may apply to a court of competent jurisdiction
to obtain such remedy as court considers appropriate and just
(2) Where, under (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or
freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, regarding all
circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute
o Jurisdiction: Only Court of Competent Jurisdiction may grant a remedy
o Standing: s.24(2) provides remedies only to applicants whose own Charter rights have been infringed
Edwards
o Obtained in a Manner: causal connection not strictly required; Generous approach is to be taken; is there
sufficient connection given temporal, contextual, causal factors for it to be said the evidence has been
tainted by the breach?
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TEST Collins, Stillman:
1. Would admitting the evidence adversely affect trial fairness?
2. Was the Charter breach a serious one?
3. Would the exclusion of evidence bring the administration of justice into greater dispreute than admitting the
unconstitutionally obtained evidence?
TEST s.24(2) Post-Grant
Three Lines of Inquiry
1. The seriousness of the Charter-infringing state conduct
2. The impact of the breach on the Charter protected interests of the accused
3. Society’s interest in the adjudication of the case on its merits
Court’s Role is to Balance the Assessments under each of the lines of inquiry to determine whether, considering all the
circumstances, admission of the evidence would bring the administration of justice into disrepute
Classification of Evidence
 Conscriptive:
 In violation of his Charter rights “accused is compelled to incriminate himself at the behest of the state by
means of a statement, the use of the body or the production of bodily samples” Stillman
 Derivative:
 Subset of conscriptive evidence; Accused conscripted against self, leading to discovery of real evidence
 Otherwise Discoverable:
 Evidence which could have been discovered by alternative non-conscriptive means or would have
inevitably been discovered
R v. Cote
 Seriousness
o 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
 Impact
o The impact may range from that resulting from minor technical breach to that following a profoundly
intrusive violation
o 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
 Adjudication of the Merits
o Reliability of evidence and its importance to Crown case are key
o Admitting unreliable evidence won’t serve Accused’s fair trial interests nor Public desire to uncover truth
o But excluding reliable evidence may undermine the truth-seeking function of the justice system
o Importance of the evidence to the Crown’s case is corollary to reliability
o Admitting evidence of questionable reliability is more likely to bring administration of justice into
disrepute where it forms the whole of the prosecution’s case but excluding highly reliable evidence may
more negatively affect the truth seeking function of the criminal law process where the effect is to “gut”
the prosecution’s case
 Discoverability
o If the police could have conducted the search legally but failed to turn their minds to obtaining a warrant
or proceeded under the view that they could not have demonstrated to a judicial officer that they had
reasonable and probable grounds, the seriousness of the state conduct is heightened
o If the search couldn’t have occurred legally, it’s considerably more intrusive of individual’s reasonable
expectation of privacy; on the other hand, the fact that police could have demonstrated they had
reasonable and probable grounds to believe offence had been committed and there was evidence to be
found at place of search will tend to lessen impact of illegal search on accused’s privacy and dignity
interests protected by Charter
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Real and Demonstrative Evidence: Non-Testimonial Means of Proof
Formal Admissions
 Criminal trial: where accused pleads guilty, this is a formal admission of the facts necessary to establish the
elements of the offence/ facts in indictment, but not an admission to any further facts
 Role of judge: must ensure that guilty plea is voluntary and based on full understanding of nature of the charge
and its consequences
 Note: Informal Admissions are saying in court “the evidence of Cop X” is admitted; if that ends up being a
problem or they need to clarify, that party must produce the evidence they’re relying on; doesn’t amount to final
resolution of fact like guilty plea or admission
s.655 Criminal Code Admissions at trial
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
Where accused is on trial for indictable offence, he or his counsel may admit any fact alleged against him for the
purpose of dispensing with proof thereof
Admissions reduced to writing
R. v. Adgey
 Facts: charged with robbery, made some statements in court that he wanted to explain, plead guilty
 Where accused is represented by counsel, trial judge is not obligated to look into the factual basis of the guilty
plea
 Dissent: based on what accused said in court, there may have been a colour of right defence available
Castellani 1970 SCC
 Accused of murdering wife, she died of arsenic poisoning, Accused wanted to include admission that he was
having extra-marital affair; Crown didn’t want that in
 Could accused in effect compel the crown to accept an admission which Crown wasn’t demanding? NO
 While crown’s case being put in, defence can’t make admission unless crown willing to accept, and defence can’t
admit a fact unless the allegation has been made; need to make allegation and then admit it, not for defence to lead
on what admissions will be
Proctor ManCA 1992
 Accused charged with murder, Crown wanted to lead evidence on murder count of attacks that occurred 2 weeks
prior to the killing on 2 girls which Crown alleged were SFE; use SFE of prior attacks to prove ID i.e. issue not in
dispute, Crown trying to bring in extremely PE evidence with no PV
 But accused wasn’t disputing that he was person involved in homicide; only issue was Criminal Responsibility
based on mental disorder
 Court cites Castellani, says Crown can’t refuse acceptance of admission to keep issue alive artificially
Korski
 Both counsel tendered agreed statements of fact: instead of saying this person on this date saw this stuff (facts),
they said Bob will admit that this happened
 Trying to admit evidence, not facts; that misses the point that you tender evidence and court decides what’s fact
 Evidence contradicted by another witness; could judge tell jury that this statement in this admission is different
from what this witness said so weigh it
 Court said that wasn’t necessarily improper, but if you have admission of fact where evidence called in trial
contradicting admission, it’s best for Crown to tender the evidence so jury can make credibility finding between
the two evidence, not testimony vs. paper
Admissions: BC Civil Rules
Rule 3-3: Responding to a Notice of Civil Claim Contents of response to civil claim
(2) A response to a civil claim must
(i) Indicate, for each fact, whether that fact is: admitted, denied, or outside knowledge of D
o If in the course of your pleading, any fact you admit proved is proved and you’re stuck with it
o Otherwise you must apply for leave to omit it, rarely granted, may have to pay for it
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o But formal admissions are part of the pleading of civil case
Rule 7-7: Notice to Admit
(1) Party may request any party to admit, for purposes of the action only, the truth of a fact or the authenticity of a
document specified in the notice
(2) The truth of a fact or the authenticity of a document specified in a notice to admit is deemed admitted, unless in 14
days after service of notice, party receiving notice serves on party serving notice a written statement that
(a) Specifically denies the truth or fact or authenticity
(b) Sets out detailed reasons why party can’t make the admission
(c) States that refusal to admit is based on privilege or irrelevancy, and sets out reasons for refusal
s.652 Views
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

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If there’s situation where particular location, view-line, physical setting, is important, the court can direct the jury
to go to the place
Must be very careful, what’s on the record, who’s talking to whom
Also within power of Civil Judge; also the judge alone can take a view with the parties
(1) If in interests of justice, at any time after the jury has been sworn and before it gives its verdict, a judge may
direct jury to have a view of any place, thing, or person, and shall give directions respecting manner in which the
things will be shown and may for that purpose adjourn the trial
Paciacco: Take a view to better understand the evidence
Issue: Is this evidence? Is what the judge who took a view saw evidence?
Meyers says it’s common sense the judge can form own judgment on real evidence of a view just same as oral
evidence of witnesses, people bring in scale models anyway; illogical to tell them to forget what they saw
Real Evidence
 Term usually applied to “original” things that allegedly played a part in the action before the court, such as the
“murder weapon”
Demonstrative Evidence
 Involves the use of visual aids to illustrate or explain. Used to assist a witness to illustrate or explain his evidence.
May include maps, diagrams, re-enactments, demonstrations
 Wigmore: circumstantial evidence: witness saying they saw accused has a hook for a hand, which has inference,
or showing scratch or mark made by the hook; OR you can just look at the hand, no need for inference just direct
perception based, like a view
Admission of Real and Demonstrative Evidence
1. Relevant and Material
2. Authenticated under oath by witness capable of doing so
 Could be easy, officer says I saw a body shot, and bullet casings around, here’s the bullet ok
 Harder with DNA samples where there’s chain of authentication, detective, lab guy, etc
 Judge determines whether there is sufficient evidence to permit a rational finding by jury that the item is
as claimed; this is what it’s purported to be
 The jury then weighs evidence to determine whether authentic
 Any evidence upon jury could find the thing is as it’s said to be Andrade
 Can be done by several witnesses or single depending on the item
3. Not subject to an exclusionary rule
4. PV outweighs PE (or if defence evidence PE does not substantially outweigh PV)
 i.e. basic application of rules of evidence to a physical object
 Cases with grisly autopsy photo or scene photo could be very prejudicial, or the piece of an ear if
someone’s head blown off, creates only sympathy or disgust so PE over PV
 But the bloody murder weapon, while grisly and offensive, is critical, and PV over PE
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Andrade
 Hair and fiber analysis, found on deceased’s body and linked to accused; in two instances the scientist who found
fibres on body described them in one way, then detective who seized it described it differently, then person who it
was given to gives another different description (one hair or two, including fibers or not)
 Accused said inconsistent, shouldn’t go in, can’t prove authenticity that hairs found by scientist were same as at
the end and then could be linked to accused
 Trial judge can’t weigh conflicting evidence on the source, that’s for the jury
Stannaforth
 Allegation that accused assaulted victim with 2 knives, she was shown knives and couldn’t say yes those were the
two
 Witness said appellant placed on of the knives in an unusual place in the bedroom, that’s where it was found; and
there was another on his person; some evidence linking knives to the locations, so relevant; then it’s for jury to
determine if those are the knives actually used
Mc..
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Search accused, find container of white powder, arresting officer gives to exhibits officer, sends to lab in Ottawa,
gives certificate, keeps sample and gives back rest, exhibit officer brings to court usually – but he died before
going to court
Could you prove that substance is the same? Is there continuity/authenticity
Court said there’s no duty upon Crown to show detailed continuity, lack of proof merely goes to weight
Patterson
 Should videotape go to jury…
Admission of Documents
Common Issues related to admissibility of documents:
1. Relevance and Materiality
 Mere fact of its existence may fit this, like Contract contents when that K is at issue is not hearsay
2. Authenticity
a) Call the writer of the document
b) Call a witness who saw the document signed
 ex. Wills, signor by definition won’t be there to testify
c) Call a witness who is familiar with the writer’s handwriting
 Layperson’s Opinion situation
d) Compare the writing in dispute with a writing proved to the court’s satisfaction to be genuine
e) Call an expert
f) Admission of opposing party
 In civil, especially commercial, there can be big binders of admitted documents
3. Hearsay
 May need principled exception, or business documents exception; most documents are hearsay
4. Best Evidence Rule
 Mostly irrelevant today where we can copy stuff quite well
 Required the original document be tendered when party seeks to prove contents
 Still exists for documents where party has original document and could produce it, but chooses not to and
it’s critical; flexibility urged Paciacco
Petrie
 Crown wants to tender letters found in accused’s cell, through woman who he’d been “keeping company with”;
he sent her 2 postcards which she read but did not keep; she also testified she got 2 letters from him while he was
in jail brought by “some of the boys”
 She didn’t see him write letters, and didn’t exchange in correspondence to have some circumstantial proof it was
actually him
 So she was not competent to ID handwriting on letters to prove it’s him
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Adam
 Judge compared two pieces of handwriting, jury or judge can actually make side by side comparison and come to
conclusion about whether it’s by same person
 But before using direct comparison approach, the judge is obliged to give parties notice he intends to do this, and
with respect to certain elements on the writing
 Judge being investigator, but he’s supposed to be neutral so he has to give notice so parties can say but wait
there’s inconsistencies
Cotroni
 Best evidence rule; original audio recordings lost, but re-recordings made, tendered in evidence
 Parties were not suggesting there’s any authenticity issue, but in any event the court cites old law on this rule and
says it’s useless mostly, unless if there’s original document available you must enter it
 Goodness or badness of it goes to weight, not admissibility: let everything in then decide
Morgan
 Best evidence rule for print out or copy of electronically stored documents
 CEA s.31.2 amended to provide special rules for authenticating computer records, need proof of integrity of
system it’s stored on or presumption satisfied
 Print outs: absence of evidence to the contrary, electronic document printed out satisfies Best Evidence Rule if
print out’s manifestly or consistently acted on, relied on, or used as record of info stored
Photos and Videos
1. Relevant and material
2. Authenticated – verified on oath by person capable of doing so that:
a) Accurately represents the facts
b) Fair, no intent to mislead
3. Not subject to exclusionary rule
4. PV outweigh any PE
Schafner NSCA
 Videos taken for everything now, video surveillance of cash register
 Could someone authenticate video images? Witness called said video taken on functioning system, which
recorded time and date on the video, that was then linked up with cash register tapes and other documents, to
show Schafner stole $23 from employer
 Didn’t need a person to say I saw this directly happening
Nikolovski SCC 1996
 Bank robbery; the teller could not ID the robber, described robbery, couldn’t ID in line up or in court
 There was clear video of robbery, which matched description of events and clothing of robber, etc
 Could video itself be sufficient to allow trier of fact to ID accused as the robber?
 The video evidence isn’t scared or startled like the bank teller who couldn’t focus on ID
 Trier can make the finding: yes that person on video is same as guy here
 Dissent: we only have assertion by the judge that it’s same person, don’t know what it was about the person that
allows judge to come to this conclusion, not tested by cross-ex
 As best practice, point out what it is about the video image that is similar to ID of person
Admissibility of Re-Enactments and Experiments
 Case by case analysis
 Overriding principle is whether PE of video re-enactment outweighs PV
 Considerations: R v. MacDonald 2000 ONCA
o Relevance
o Accuracy
o Fairness
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Walizadah
 Cab driver brutally murdered, police acquired video evidence of minivan going to parking lot, then couple of
hours later, the victim’s taxi was brought next to minivan; taxi had been used to dump deceased’s body
 Showing who owned minivan, got into taxi and brought it back- that’s in theory the killer
 Witness described minivan looking like a particular kind of van, which was not like the kind W drove (square
Dodge vs. rounder GM)
 Police did re-creation of van coming to the scene
 Bottom line from Collins:
o Relevance of experiment/re-enactment evidence will depend on the degree of similarity between the
replication and the original event
o If expert evidence, you’ll have to meet Mohan test
Diagrams and Sketches
Admission of Diagram:
 Witness familiar with scene, location, or structure, as it appeared at the relevant time, can swear that the diagram,
sketch, or map is a fair representation
 Diagram would assist the witness in giving evidence
Summaries
Foundation for admissibility of summaries:
1. Original documents are so voluminous they can’t be conveniently 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
Judicial Notice
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Judicial notice is an exception to the general rule that a court is not supposed to know anything until it is proven
in the course 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
Paciacco
o Some things are so obvious it would be silly to make people prove them Spence
Judges deemed to know, and thus obliged to take JN of:
o Contents of any statute passed by Parliament
o NOT bylaws; must prove bylaw was passed according to proper rules
o NOT foreign law; must call foreign law expert to testify about that law (foreign includes other provinces
or countries)
Adjudicative Facts
o Hardest to take judicial notice because those are the specific facts to be determined in the litigation
between the parties
Legislative Facts
o Broad, general facts about social, economic and cultural context that establish the purpose and
background of the legislation or decisions about judicial policy; they assist in determining questions of
law
Social Framework Facts
o Broad, general facts about social, economic, and cultural context used to aid the fact finding; they provide
context for judge to consider and apply the evidence in given case ex. Lavallee battered wife syndrome
o Social science used to construct frame of reference or background context for deciding factual issues
critical to resolution of a case
o Spence more rigorous for Legislative and Social Framework Facts: is “fact” acceptable to reasonable p:
i.
How close is the fact to the centre of the controversy (more central = more reliable/trustworthy)
ii.
Are facts adjudicative, legislative, or social
 Morgan relevant to Legislative/Social Science; but is Gold Standard and must be met in
Adjudicative
iii.
What is the degree of doubt surrounding fact
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The Morgan Test: Courts may take JN of facts that are either:
1. Notorious: so notorious or generally accepted as not to be subject of debate among reasonable people, or
 ex. Would be unreasonable to say take JN that Johnson Street Bridge is in BC and therefore
within Provincial Court jurisdiction
2. Readily Verifiable: capable of immediate and accurate demonstration by resort to readily accessible
sources of indisputable accuracy
 Dictionaries, calendars ex. What day of the week was Xmas that year; probably not Wikipedia
though, or Apple Maps which doesn’t function
 Tide-tables or sunrise/sunset charts relevant to drunk driving test might need witness to attest to
those, in some cases maybe not
Keep Four Concepts Distinct:
1. Privilege: protects confidential info/communication
a. Invoked by holder of the privilege
b. Protected sometimes by others (ex S/C protected by solicitor)
2. Disclosure:
a. Crown has to disclose all of their case except that which is irrelevant or privileged Stinchcombe; contents
of file not property of Crown but of the public
b. Issues re: privilege and relevance determined by court
c. Info in hands of 3rd parties – crown not obligated to disclose info in hands of third parties
i. Crown can usually get the info via search warrant [Crown includes police]
ii. Accused doesn’t have access to means of forcing disclosure, 3rd parties have no obligation to turn
over info to anyone
3. Production:
a. Term describing turning over info/records to accused
b. Requires court order from judge
4. Admissibility:
a. Just because there is disclosure from the crown or production by a third party doesn’t mean that the info is
admissible, that comes at the end of all this
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