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Table of Contents



Summary Analysis of Evidence Problems. 1

Step One: Is It Relevant And Probative?. 1

Step Two: Does An Exception To The General Rule Apply?. 1

Hearsay. 1

Opinion Evidence. 1

Character Evidence. 1

A Confession.. 1

Obtained Contrary to Charter or Quasi -Constitutional Document 2

Obtained in Breach of a Confidential Relationship. 2

Of Civil Settlement Discussions. 2

Step Three: Prejudice Versus Probative Value?. 2

Fundamental Principles. 3

Role of Evidence. 3

Probability, Relevancy and Materiality. 3

ThayerÕs Principle. 3

Probative Value and Countervailing Social Values. 3

Probative Value, Process and Unfair Prejudice:. 4

Evidence Adduced By An Accused:. 4

The Justice System... 5

The Adversary System:. 5

Counsel and Parties:. 5

R v Stinchombe. 5

Judges:. 5

Division of Duties Between Judge and Jury:. 6

Appeals and Evidentiary Review.. 7

Structure of the Courts:. 7

The Need for Error:. 7

The Appellate Court:. 7

Onus, Burden and Presumption.. 8

Burden of Proof:. 8

Circumstantial Evidence:. 8

Who Bears the Burden of Proof:. 8

Presumptions:. 9

Types of Presumptions:. 9

Presumption of facts:. 9

Rebuttable Presumptions of Law:. 9

Irrebuttable Presumptions of Law:. 9

Judicial Notice:. 9

Testimonial Evidence.. 10

Use of Testimonial Evidence:. 10

Competence:. 10

Level of Proof. 11

Compellability of Witness:. 11

Compellability of Judges. 11

Compellability and the Constitution:. 11

R.v.S.(R.J.). 11

Examining Witnesses. 12

Witness Preparation:. 12

Direct Examination:. 12

Cross-Examination:. 12

The Rule in Browne v Dunn.. 12

Re-Examination:. 12

Hearsay. 13

Introduction:. 13

Hearsay Defined By Purpose:. 13

Hearsay Implied By Assertive Conduct:. 13

Exceptions to the Hearsay Rule:. 13

Interaction of Exceptions to Hearsay Rule and Principled Approach:. 14

Starr. 14

Out Of Court Assertions That Are Not Hearsay:. 15

Present Knowledge and Refreshing Memory:. 15

Exemptions to the Hearsay Rule.. 16

The Exceptions:. 16

Testimony in Previous Hearings:. 16

Admissions:. 16

Statement Against Interest:. 17

Demeter. 17

Business Records:. 17

Past Recollection Recorded:. 18

Meddoui 18

Res Gestae:. 18

Existing Statement of Physical, Mental or Emotional State:. 18

Hillmon.. 18

Dying Declarations:. 19

Official Statements:. 19

Exclusion of Otherwise Relevant Evidence.. 20

Courts:. 20

Right Against Self-Incrimination:. 20

Right to Silence:. 20

R v Singh.. 20

Herbert. 20

Self-Incrimination and the Charter:. 21

R. v. Dubois. 21

Right to Counsel and Evidentiary Implications:. 21

Confessions. 22

Free and Voluntary:. 22

Person in Authority:. 22

The Voir Dire:. 22

Evidence Proven Collaterally True. 23

Evidence Obtained Illegally. 24

Illegally Obtained Evidence:. 24

Wiretap evidence. 24

The Exclusion Remedy Generally. 25

Creation of Remedy:. 25

Boyd. 25

Exclusion of Evidence Under the Charter. 25

Collins Test. 25

Relationship of s. 24(2) Factors:. 25

What Does Disrepute Mean?. 26

Collins. 26

Causation or Connection:. 26

Stillman.. 26

Burden of Proof:. 26

Protection of Confidential Relations. 27

Privilege In General:. 27

Solicitor-Client Privilege:. 27

Limitations of Solicitor-Client Privilege:. 27

Litigation Privilege:. 27

Other Class Privileges:. 28

Husband and Wife:. 28

State Privilege:. 28

JudgesÕ Privilege:. 28

Informant:. 28

General Policy Test:. 28

Privileges Not Existing by Class:. 28

Settlement Discussions:. 29

Overriding Exception to Privileges:. 29

Opinion Evidence.. 30

Opinions of Laypersons:. 30

Opinions of Experts:. 30

Basis of Expertise:. 30

Independence of Expert. 31

Factual Basis of Expert Testimony:. 31

Opinion Evidence and Ultimate Issue:. 31

Evidence of Character. 32

Character of an Accused:. 32

Character of Non-Parties:. 32

Complainants in Sexual Offences. 32

Propensity and Expert Testimony:. 32

Propensity and Prejudice. 33

Similar Fact Evidence and Credibility. 34

Character and Psychiatric Propensity:. 34

How Similar is Similar?. 34

Civil Cases:. 34

Credibility. 35

Collateral Facts Rule:. 35

Cross-Examining on Prior Statement:. 35

Prior Criminal Convictions:. 35

Impeaching Your Own Witness:. 35

Wright v Beckett. 35

Supporting Credibility:. 36

Polygraphs, Lie Detectors and Truth Serums:. 36

Corroboration:. 36

The Best Evidence Rule.. 37

Limitations of the Rule:. 37

When is Secondary Evidence Admissible?. 37

Future of the Best Evidence Rule. 37

Summary Analysis of Evidence Problems

Step One: Is It Relevant And Probative?

¯  If the evidence is relevant and probative, it is admissible unless excluded by some other specific rule.

Step Two: Does An Exception To The General Rule Apply?

¯  Even if an exception applies, he evidence may still be admissible but the relevant details of the exception must be considered.

¯  The main exceptions to the general admissibility rule arise if the evidence is:


¯  A statement is hearsay and, prima facie, inadmissible, if it is

o    An out-of-court statement,

o    Adduced in Court

o    To prove the truth of the facts therein.

¯  Evidence, even though hearsay, may be admissible if it falls within certain well-defined exceptions or, more generally, if the evidence is necessary and otherwise unavailable and there is some circumstantial indicia of trustworthiness.  The specific exceptions include:

o    Testimony in former proceedings.

o    Admissions

o    Declarations against interest

o    Business records

o    Past recollection recorded

o    Res gestae

o    Statements of physical, mental or emotional state

o    Dying declarations

o    Official statements

Opinion Evidence

¯  Opinions are not admissible evidence unless they are (a) a compendious way for the laity to testify to a common everyday experience or (b) opinions of someone skilled in a recognized science or art and necessary for the trier of fact to understand something otherwise beyond the trierÕs knowledge or understanding.

Character Evidence

¯  The State may not call evidence solely for the purpose of showing an individual is of bad character and therefore likely guilty of an offence. 

¯  However, evidence may be called to prove guilty (or disprove a claim of good character) which incidentally shows bad character.

¯  The forbidden reasoning process is bad character, therefore guilt; where guilt leads to a conclusion of bad character, no problem arises.

¯  An accused may call evidence of the accusedÕs general reputation for character in the community to show the accused is not likely guilty.  Where character is so raised, the State may rebut the claim by cross-examining or calling contrary evidence.

¯  Evidence of bad character of non-parties may be called if otherwise admissible.

A Confession

¯  A confession, that is, (a) any statement made by (b) an accused to (c) a person in authority, is prima facie inadmissible unless the prosecutor shows it was free and voluntary.



Obtained Contrary to Charter or Quasi -Constitutional Document

¯  Evidence obtained as a result (direct or indirect) of a breach of a Charter right is inadmissible if its admission could bring the administration of justice into disrepute.

¯  The burden of showing the breach and the disrepute lies on the party seeking to exclude the evidence.


Obtained in Breach of a Confidential Relationship

¯  Relationship privilege extends to criminal and civil proceedings.

¯  It applies by class or on a case by case basis.

¯  If a relationship is covered by a class, subject to exceptions special to each class, any commutations within the class are privilege and not admissible.

¯  Classes include (a) solicitor-client (b) spousal (c) state policy making and (d) informant identity. 

¯  Case by case privilege is established Wigmore criteria which require that the communication (a) arose in confidence (b) confidence was essential to the communication (c) the relationship sought to be protected is valued by society and (d) the harm caused by the disclosure is greater than the damage to the trial process.

Of Civil Settlement Discussions

¯  Civil settlement discussions are privileged and information disclosed therein cannot be used in evidence at the trial of the dispute the settlement discussion were intended to resolve.

Step Three: Prejudice Versus Probative Value?

¯  Even if the evidence is otherwise admissible, the party opposing such admission can still argue that the probative value of the evidence is slight (usually an argument that the evidence is only marginally probative as opposed to relevant) and the prejudice of such evidence is out of all proportion to its value.  The question is would a jury, on seeing such evidence, decide to convict (acquit etc), regardless of the matters actually proven?




Fundamental Principles

Role of Evidence

¯  Evidence only deals with admission of facts for consideration at trial.

¯  The main purpose of the rules of evidence is to limit the information put to a judge so they can make a practical decision in a limited time. 

¯  Evidence acts to exclude unnecessary and irrelevant material. 

o    The goal is accurate, but practical, fact finding.

¯  The rules are designed to limit the evidence to that which aids the trier of fact in determining the issue in dispute in a practical and pragmatic manner.

Probability, Relevancy and Materiality

ThayerÕs Principle

¯  Nothing which is not rationally relevant to issues in dispute is admissible. Subject to many qualifications, anything that is rationally relevant to issues in dispute is admissible.


¯  Issues in Dispute ˆ the questions the court must decide

¯  Relevancy ˆ speaks to the tendency of a fact to establish a proposition.

¯  Materiality ˆ speaks to whether the proposition is an issue before the court.

¯  So, proof the sofa was poorly built is relevant to prove it is a bad sofa, but since the quality of the sofa is not an issue for the court, it is immaterial. 

¯  If evidence does not relate to an issue in dispute it will be inadmissible

¯  For a fact to be considered by a court it must be both

o    Relevant (the fact tends to prove a proposition) and

o    Material (the proposition it proves makes a difference to the court).

¯  To be relevant, all a fact has to do is to render the relevant proposition more probably than it would be without the fact. 

¯  To be logically relevant, an item of evidence does not have to firmly establish the truth or falsity of a fact in issue. 

¯  The evidence must simply tend to increase or diminish the probability of the existence of a fact in issue.

o    Courts do not like to exclude evidence on the basis that its relevance is low

Probative Value and Countervailing Social Values

¯  The law of evidence is premised on a hearing before a jury and not a judge alone. 

o    Juries are assumed to be quite susceptible to giving undue weight to evidence that is relevant and material, but only in a marginal way. 

o    The clearest example is a prior criminal conviction.

á         But, unless the accused testifies this will not be an issue

o    However jury trials are rare

¯  As a general rule, if the evidence in question is likely to colour a juryÕs thinking, the court will exclude the evidence if the prejudicial effect of the evidence outweighs the evidenceÕs probative value.

o    Prejudice arises from an irrational weighting of evidence ˆ not from rational weighting of devastating evidence

¯  Evidence that is otherwise relevant and material is sometimes excluded to protect other social values. 

o    Evidence discovered in an illegal search is often excluded in this way.

¯  The Canadian Constitution expressly recognizes that, on occasion, evidence may be excluded because the negative impact of its admission on society as a whole outweighs any benefit to accurate fact finding.

o    Section 24(2) of the Charter: WhereÉevidence obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.


Probative Value, Process and Unfair Prejudice:

¯  Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.

¯  Evidence ay also be excluded if it tends to confuse the issues or mislead the jury, or if considerations of undue delay, waste of time, or needless presentation of cumulative evidence suggest evidence may be properly excluded.

¯  Probative value is the ÔtendencyÕ of the evidence to prove a proposition.

¯  Evidence is unfairly prejudicial if it encourages a decision based on improper reasoning such as emotion

¯  The probative value of evidence is the value which the evidence would have if it is believed.

o    Generally, if evidence has some probative value that evidence is admissible. 

o    That said, unfair prejudice, confusion and waste of time represent countervailing considerations, which may be a basis for excluding evidence, even if it is probative.

Evidence Adduced By An Accused:

¯  Is there a different standard to exclude evidence if adduced by an accused?

¯  Technical rules of evidence may be somewhat relaxed to allow an accused to raise a doubt of guilt.

¯  The courtÕs discretion to allow an accused to call evidence that may be, technically, inadmissible is not intended to allow an accused to evade justice, but rather to allow justice to be done.

¯  Where the exclusion of evidence would risk an injustice, or raise a concern for wrongful conviction, the court has a narrow discretion to allow the evidence to be adduced.


The Justice System

The Adversary System:

¯  Evidence presumes that disputes will be resolved by an adversarial trial and the rules of evidence are based on that presumption.

¯  There are three basic participants in an adversarial trial: Plaintiff/Prosecutor, Defendant/Accused and Judge.

¯  The jury decides the facts, but the judge decides what those facts then mean in terms of legal relevance.  Matters of law are determined by the judge and matters of fact by the jury.

Counsel and Parties:

¯  The judge, in our system, does no investigating, conducts no independent review of the facts, and rules solely on what is put before the court.  The judge can only listen to what the parties but before the court.

¯  Counsel are limited to honest partisanship. 

¯  A lawyer cannot break the law for a client. 

¯  A lawyer may not intentionally mislead the court, but counsel has no duty to volunteer information except as required by disclosure requirements. 

¯  There is no duty to highlight the weaknesses in your clientÕs case when materials are disclosed to the other side.

o    Allowing a party to testify falsely or relying on that testimony amount to misleading the court.

¯  The major exception to the openly partisan position of counsel is that of the criminal prosecutor. 

o    A prosecutor has a duty not to in but to ensure justice is done. 

o    A prosecutor must disclose their case to an accused so the accused can make a full answer and defense.

¯  The prosecutor has an obligation to disclose everything in the prosecutorÕs possession or control unless it is

o    Clearly irrelevant

o    Privileged, or

o    Falls within the ambit of the personal information provisions of the Criminal Code.

R v Stinchombe

¯  The fruits of the investigation which are in the possession of the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure justice is done.  In contrast, the defence has no obligation to assist the prosecution and is entitled to assume a purely adversarial role towards the prosecution


¯  A judge has two functions at trial. 

o    The first, during the testimony, is to deal with the evidentiary issues and ensure a smooth trial. 

o    The second is the decision making process after the evidence is adduced.

¯  The right to a trial before an independent and impartial tribunal is fundamental. 

o    Impartiality is assessed on both a substantive and objective basis.

¯  A writ of prohibition may issue where an applicant establishes a reasonable apprehension of bias on the part of the Judge. 

¯  A mere possibility of bias is not sufficient to establish a reasonable apprehension of bias. 

¯  Rather, the likelihood of bias must be real and substantial. 

o    The threshold for a successful allegation of apprehended bias is high. 

o    Bias refers to anything that may reasonable lead the adjudicator to decide the case on some basis other than the evidence before the tribunal and the law. 

o    Apprehended bias refers to anything that may lead the informed and reasonable observer to form a reasonable apprehension that the adjudicator might decide the case on some basis other than the evidence and the law.

¯  To establish a reasonable apprehension of bias, the applicant must establish that the reasonable person, with knowledge of the relevant circumstances, would have a reasonable apprehension of bias.

¯  This test involves two objective elements:

o    The person by whom bias is apprehended must be a reasonable person, invested with full knowledge of the circumstances said to give rise to bias and

o    The apprehension of bias, itself, must be reasonable and not farfetched or the product of an overly sensitive mind.

¯  In judge alone trials, the judge considers the evidence and gives a decision with reasons for that decision.  In such cases the judge is both the trier of law and the trier of fact.

¯  In jury cases the judgeÕs role is restricted to instructing the jury on the law, or, alternatively, to apply the law to facts found by the jury.

¯  The judge must assist the jury to decide facts but at all times making it clear it is the jury who is to decide what the facts are.

¯  Except where there is no evident to support a proposition, it is for the jury to decide whether a proposition is correct.

Division of Duties Between Judge and Jury:

¯  In a jury trial, the judge must determine the admissibility of evidence.

¯  In determining the admissibility of evidence the judge generally decides questions of law and, in some cases, preliminary questions of fact.

¯  Thus, the judge is required to determine preliminary questions of fact relating to the admission of evidence is in question, such as in exclusionary rules like hearsay, privilege, or the incompetence of a witness. 

¯  By contrast, generally, the jury determines issues of fact dealing with the weight and meaning of evidence.

¯  Where two witnesses give different versions of what happened, the jury decides who to believe.  The judgeÕs role is limited to deciding if the witness can testify and not as to who is to be believed.

¯  If there is some evidence in support of a proposition, even evidence the judge thinks is weak and unconvincing, the judge must turn the case to the jury because the judge is not a trier of fact. 

o    B contrast, if there is no evidence supporting a proposition, the judge is to withhold the case from the jury and decide against that proposition. 


Appeals and Evidentiary Review

Structure of the Courts:

¯  The concept that trial decisions are subject to review is well established in the common law world.

¯  Trial decisions can be appealed as of right to a provincial appeal court.  Further appeal, to the Supreme Court, exists but the Court must grant leave to bring the appeal and such leave is granted very seldom. 

¯  The issue of weight of evidence can be an issue of law.

¯  The judge should only withdraw a case from the jury is there is no evidence on which a jury could reasonably find for the party bearing the onus of proof.

The Need for Error:

¯  Appellate courts exist to rectify errors made at first instance. 

o    Absent some error by the court of first instance, there is no ground to appeal.

o    The error necessary to ground an evidence based appeal must come from the trial

¯  Unless a piece of evidence is objected to it will usually be presumed that the parties are content that the evidence go to the trier of fact and no appeal based on its admission will be allowed. 

o    This rule is sometimes waived by appellate courts if the admission of the evidence would lead to a substantial wrong or miscarriage of justice.

The Appellate Court:

¯  The Court of AppealÕs power to correct errors of law is significant. 

o    Appeal courts have absolute power to remedy errors of law

o    Errors of fact, however, are not so easily reviewed

á         Because the appeal court does not hear witnesses and is not in a position to question facts

¯  Appeal courts will look to see if the factual finding was clearly unreasonable ˆ if so may overturn

¯  A finding of fact will not be overturned on appeal absent palpable and overriding error.


Onus, Burden and Presumption

Burden of Proof:

¯  Essentially, burden of proof is an ambiguous term covering two different ideas:

o    The burden of producing evidence; and

o    The burden persuasion.

¯  The burden of producing evidence, also called the burden of going forward, is the responsibility of providing some evidence that a fact exists. 

o    When a party fails to satisfy this burden, there is insufficient evidence for a reasonable tie of fact to find a fact is even in issue.

¯  Unless the burden of production is met, a judge will withdraw the issue from the jury and decide the issue as a matter of law.

¯  The party with the burden of producing evidence is the party who must establish a fact.

¯  Once a fact has been put into issue by some evidence a directed verdict is inappropriate. 

¯  The parties try to persuade the trier of fact. 

¯  The trier of fact considers all the evidence and decides one way or another.

¯  The question of persuasion takes us to the second meaning of burden of proof, or the level of persuasion required.

¯  In a criminal case, the trier of fact must be convinced of guilt to beyond a reasonable doubt.

¯  A reasonable doubt is not an imaginary or frivolous doubt. 

o    It must be a doubt based on reason and common sense. 

o    Such doubt must be logically derived from evidence.

¯  The trier of fact, in determining criminal guilt, does not segregate each fact but rather looks at the overall picture to see if guilt follows.

¯  In civil cases the level of proof is much lower ˆ balance of probabilities

o    If the trier of fact thinks something more likely than not happened, then the trier has passed the necessary persuasive burden to make a finding of fact.

¯  Some confusion arises in civil suits for criminal acts ˆ there the burden of persuasion is still, in theory, a civil standard but the court gives a special scrutiny to the fact to be proven.

o    Allegations of morally blameworthy acts must be proven to a standard somewhat higher than the usual civil standard, but not to a standard of moral certainty.

Circumstantial Evidence:

¯  Circumstantial evidence poses a special problem in criminal cases. 

¯  Generally, the trier of fact is to consider all the evidence together and not one piece of evidence at a time. 

¯  But what if the stateÕs entire case is circumstantial?

o    The general rule is that, a purely circumstantial case can succeed only if the circumstances are consistent with the conclusion of guilt and inconsistent with any other rational conclusion.

¯  From case law it is clear that the decision whether every possible explanation other than guilt is excluded in a circumstantial case is a matter for the jury to decide

Who Bears the Burden of Proof:

¯  It is the plaintiff or the prosecutor who bears the burden of proving their case.

o    That said, on specific issues, the defendant or accused may have the burden of producing evidence. 

o    The defendant or accused has the burden of producing evidence for affirmative defenses including pleas of confession or avoidance.

á         For example, if self-defense is pleaded, the defendant has the burden of producing enough evidence to show self-defense could apply.

o    So, in a criminal case, all an accused need do to raise a defense is adduce any evidence upon which a reasonable tier of fact could conclude the defense succeeds. 

o    The persuasive burden remains with the prosecution ˆ the accused does not have to do more than raise a doubt.

¯  In a civil case the same rule applies, but since persuasion is only to a balance of probabilities, raising doubt is not enough and an affirmative defense needs to be established to a balance of probabilities.

¯  The burden of persuasion is the responsibility of persuading a trier of fact that some fact actually is true. 

¯  This is the burden to beyond reasonable doubt in criminal and to a balance of probability in civil cases.


¯  A presumption is a reasoning process whereby, to some degree, proof of one fact is taken to be evidence of another fact.

o    Example: If you show that a person is an adult, it is assumed that they are also legally competent.

o    Such a presumption of fact can be disproved if evidence is brought to show the contrary, but without evidence to rebut the presumption, it is assumed to be true.

Types of Presumptions:

Presumption of facts:

¯  Such presumptions are not prescribed by law but rather arise from common sense.

o    For example, if someone has a driverÕs license, it is presumed that they can drive.

Rebuttable Presumptions of Law:

¯  Such presumptions are prescribed by law but not conclusive if there is evidence to the contrary.

o    For example, living off the avail of prostitution.

Irrebuttable Presumptions of Law:

¯  These presumptions are prescribed by law and conclusive as to some issue.

o    For example, having a blood alcohol level above a certain level if proof of impairment, and no evidence brought to the contrary can rebut this presumption.

Judicial Notice:

¯  Judicial notice is the cognizance taken by the court itself of certain matters which are so notorious, or clearly established, that evidence of their existence is deemed unnecessary.

o    This fund of information changes and develops over time.

¯  A court may take judicial notice only of facts that are either:

o    So notorious or generally accepted as not to be the subject of debate among reasonable people; or

o    Capable of immediate and accurate demonstration by use of readily accessible sources of indisputable accuracy.

¯  The trier of fact will take judicial notice of such facts are generally known in the community and which are not capable of dispute among reasonable people.

¯  Judicial notice is the acceptance of a fact as true without the introduction of evidence of that fact.  Once a fact is taken judicial notice of, in Canada it is incontestable.

¯  The concept of judicial notice can lead to problems if it is to widely extended. 

¯  Just because a view is widely held in a community and not disputed among reasonable members thereof does not mean it is correct.


Testimonial Evidence

Use of Testimonial Evidence:

¯  As a general rule, evidence in a trial is given by either the testimony of a witness telling the court what happened or the court itself inspecting physical evidence.

¯  The distinction is important because a witnessÕs testimony suffers from the defects of faulty perception, memory and bias. 

¯  Real evidence, physical evidence, may be misinterpreted, misunderstood or given too much weight, but it will not suffer from being translated through anotherÕs experience.

¯  For a court to consider real evidence, some authentification of the evidence is necessary. 

o    Authentification is generally accomplished by testimony of a witness so witness testimony is usually needed even in a case of real evidence. 

o    The witness must give testimony that the real evidence is, in fact, the item actually in dispute.

¯  Absent the authenticating witness, the court has nothing.

¯  Witnesses, unlike real evidence, must communicate to the court what they perceived. 

¯  Witnesses must be:

o    Able to perceive an event.

o    Able to understand and remember the event in a coherent fashion

o    Able to relate that understanding and memory to the court.

¯  Errors in the perception and recitation can come in at all stages. 

¯  Nevertheless, in spite of all its limitations, testimony of witnesses is the most practical way to get facts before the court.


¯  Competence is the legal ability to give testimony court. 

¯  The determination of who is, or is not, competent, is a legal matter decided by a judge. 

¯  In practice, except for children, competence rarely causes a problem ˆ Adults are, until shown otherwise, presumed to be competent.

¯  The exceptions for adults are:

o    Spouses of criminal accused, who are not competent to testify for the prosecution (except in specific cases of spousal or child abuse.

o    Criminal accused, who are not competent to testify for the prosecution.

¯  At one time the ability, or lack of ability, to swear an oath was a significant issue. 

¯  In practice, no one is ever challenged on taking an oath. 

¯  To use an affirmation it is sufficient to say ÔI prefer to affirm.Õ

o    If children are mature enough to understand to the solemnity of giving testimony under oath or affirmation, they can give sworn evidence.

o    If a child, or indeed an adult, cannot understand the meaning of testifying under oath or affirmation, they may give evidence on promising to tell the truth. 

o    The situation of unsworn but accepted testimony is rare and is contrary to the general rule that evidence must be given under oath ˆ such testimony is admissible only by statutory amendment to common law.

¯  In order to testify upon promising to tell the truth, the witness must understand what a promise is and the importance of keeping it.

¯  Once allowed, evidence of a witness testifying on promising to tell the truth is to be weighed in the same fashion as evidence given under oath or affirmation.

¯  The ability to communicate is also required as part of competence. 

o    Witness must be able, at trial, to adequately relate the events testified about to the trier of fact.

¯  Competence presumes an ability to perceive the events testified about at the time of their occurrence.

o    Even if a person is able to relate testimony at the time of trial, they cannot testify if, at the time of the incident, they were unable, through disease, drug or extreme youth, to perceive the incident.

o    Because without the ability to perceive the incident a witnessÕs testimony is irrelevant

¯  The inability of a criminal accused, or their spouse, to testify in favour of the Crown reflects a deep seated societal opposition to compulsory testimony.

¯  Where intra-family crimes occur the accusedÕs spouse is competent.

¯  The common law compellability of a spouse against an accused includes, broadly speaking, offences against the souse, or children, affecting their person, health or liberty.

Level of Proof

¯  Competence of a witness is distinct from belief in that witnessÕ testimony.

o    A witness may be accepted as competent and then be totally disbelieved.

¯  Accordingly, the level of proof needed to find a witness competent is limited to balance of probability.

Compellability of Witness:

¯  A compellable witness is a witness that can be force to give testimony.

o    Specifically, a witness is compellable if, upon receiving a subpoena, that witness will be arrested and brought to court if the witness fails to attend at court and testify.

¯  Subject to constitutional considerations, all competent witnesses are compellable except heads of state, foreign ambassadors and their direct staff, and judges.

Compellability of Judges

¯  As a general rule judges cannot be required to testify regarding their reasons for a decision.

o    They are, however, competent and compellable witnesses regarding matters occurring during trial, but collateral to the trial (i.e. an incident having no bearing whatsoever of the trial or its process).

o    Case example – Thanet – riot in the courtroom ˆ judge could testify about the riot and what they saw

¯  Administrative or chambers matters occurring during the course of a trial which are related to trial are not incidental and judges cannot be compelled to give testimony regarding those administrative or chambers matters.

Compellability and the Constitution:

¯  As a fundamental constitutional principle a person cannot be required to give testimony against themselves in a criminal proceeding.


¯  An accused is compellable in a parallel criminal proceeding against a co-accused unless it is established that the predominant purpose in compelling the testimony of the accused is incrimination of the accused.


¯  There is a two stage test used to determine if a witness is compellable:

o    First, the court must consider the importance to the state of obtaining compelled testimony from the witness ˆ if court thinks it is to get evidence from the witness to use against themselves s.7 applies

o    If the court is of the view that there is a significant public purpose in their testifying the court must balance the right of the witness/accused against the interest of the state in receiving the compelled testimony, in way that insures that the Charter is upheld. 

¤   The witness will not be compellable if he can show that his right to a fair trial will be jeopardized even if he is protected from any derivative use of his prior testimony against him at his trial.

o    The two-stage test is strictly applied and it is a rare case where a person will be found to be non-compellable as a result of constitutional considerations.


Examining Witnesses

Witness Preparation:

¯  The order of examination of witnesses is direct examination, cross-examination and re-examination.

¯  It is proper to speak to as many witnesses as possible to find out what they will say. 

o    The only significant exception is speaking directly to a party represented by a lawyer other than yourself; represented parties can only be dealt with through counsel.

¯  The lawyer has a duty to speak to witnesses to determine what they will say, refresh their recollection as to dates and details by presenting them with any documents to be used, and to acquaint him with the sequence of questions so that the truth may be established in an orderly fashion and without confusion which may through doubt on it.

¯  The limitation is that in witness preparation the counsel may not prepare away inconvenient facts.

¯  Counsel may prepare a witness for trial and rehearse the anticipated evidence, provided that the testimony of the witness is not altered or skewed in some way.

Direct Examination:

¯  Direct examination is the examination by a party of witnesses called to testify by that party.

¯  Subject to certain exceptions leading questions are not allowed in direct examination.

o    Counsel may not lead their witnesses on material issues but should lead them on introductory or non-contentious matters. (R v Rose)

¯  The exceptions to the leading question rule are hostile witnesses and witnesses who are, for some reason, unable to testify coherently except in response to leading questions.

¯  If the judge declares a witness hostile, counsel may lead the witness on all points.

o    A witness is not hostile merely because the witnessÕ testimony is uncertain


¯  Use leading questions in cross-examination.

¯  The purpose of cross-examination is:

o    To destroy or weaken the fore of the witnessÕs testimony in direct examination;

o    To elicit something favorable; and

o    To discredit the witness.

¯  In Canada there is no limit on the scope of cross-examination

o    May ask the witness anything ˆ not limited to asking questions relating to the direct examination

The Rule in Browne v Dunn

¯  Unless counsel cross-examines a witness on a topic the counsel may be deemed to accept the witnessÕ story. 

¯  If counsel does not do this they may be precluded from putting their case at all

o    Need to put forth their case ˆ especially if wish to contradict evidence of a witness


¯  The witness is put questions which are always leading and usually denied. 

o    But if you donÕt do it you may not be able to present your case appropriately at all

¯  A party wishing to impeach the credibility of a witness must ordinarily put the contradictory material to the witness in order to give the witness an opportunity to explain it.


¯  Purpose of re-examination is not to ask new questions but rather to seek clarification of matters raised in cross.  

¯  The right to re-examine is limited to dealing with matters arising in cross-examination.

o    Should object to the introduction of new materials in any re-examination




¯  Hearsay evidence is

o    Any out of court assertion

o    Repeated in court

o    To prove the truth of that assertion.

¯  Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. 

¯  It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. 

¯  It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact it was made.

¯  Why is hearsay such a problem         

o    Because it is second hand information and nearly impossible to cross-examine on b/c the person who made the assertion is not in court to be questioned on it ˆ or to have their credibility assessed

¯  Hearsay evidence is, subject to many exceptions, generally rejected.

Hearsay Defined By Purpose:

¯  Definition stated above is the traditional definition of hearsay. 

¯  More recent definitions of hearsay have focused upon the precise evidentiary concerns underlying the exclusionary rule, namely the absence of an opportunity for meaningful, contemporaneous cross-examination of the out-of-court declarant in court under oath or solemn affirmation, regarding the truth of the specific statement or expressive conduct that is south to be admitted as proof of its contents.

¯  Hearsay may be considered to be any intentional assertion made outside of a judicial hearing repeated in the hearing for the truth of the contents of the assertion.

¯  Only assertions made to communicate facts amount to hearsay ˆ a statement made for other reasons is not

Hearsay Implied By Assertive Conduct:

¯  The implementation of our hearsay definition can be seen in the issue of conduct that implies an assertion.  Does such conduct create a hearsay problem?

¯  If a statement sought to be adduced by way of hearsay evidence is made under circumstances that substantially negate the possibility that the declarant was untruthful or mistaken, the hearsay evidence may be said to be reliable.

o    The implied assertions of out-of-court declarations do not raise the issue of a duplicitous or deceived witness and so hearsay and its attendant dangers are not present.

¯  Canadian courts treat out implied assertions or assertive conduct as not being hearsay.

o    Implied assertions are not hearsay; the concern with deceived witnesses is not present

Exceptions to the Hearsay Rule:

¯  Starting with the decision in R. v. Khan and continuing through to Starr, the Supreme Court has adopted what it calls a principled approach to hearsay evidence and exceptions to the general exclusionary rule.

o    Under this approach, evidence may be admitted, though hearsay, if it is necessary and reliable.

o    The approach recognizes that the dangers hearsay evidence attracts are not always present and, in specific cases, hearsay evidence is just as good a basis for judicial decision-making as sworn and cross-examined testimony.

¯  Broadly speaking, and prior to the Khan case, the analysis of hearsay in Canadian courts was relatively mechanical.

o    A determination would be made as to whether or not evidence was hearsay and, if it was, further consideration would be made as to whether the evidence is admissible, though hearsay, pursuant to a specific previously existing exception to the general exclusionary rule.

o    These exceptions are numerous and do not always fall within the obvious ambit of the principles of necessity and reliability.

¯  The old approach followed precedent alone ~ the function of cross-examination or value of the hearsay itself was not considered.

¯  The decision in Khan began a change in this approach. 

o    Specifically, following Khan, evidence which would otherwise be inadmissible as hearsay could be admitted even if it did not fall within any previously existing hearsay exception provided only the evidence was necessary and reliable.

o    Following Khan, the Supreme Court in Smith explicitly says the principle underlying the rule and its exceptions are necessity and reliability. 

o    The case law following Smith, up to and including Starr expands on this principled approach.

Interaction of Exceptions to Hearsay Rule and Principled Approach:

¯  A difficulty that has arisen from the determination that hearsay exceptions should be dealt with in the principled approach arises from the impact of the exceptions to the exclusionary rule. 

o    Are the exceptions to the exclusionary rule to be followed, as traditionally done, and then the principled approach applied only if no previously existing exception applies? 

¤   If this is so, then the principled approach expands the scope of admissible evidence but does not restrict the admission of hearsay evidence to that which is necessary and reliable.

á         It is possible that evidence which is not necessary or reliable might fall within an exception to the hearsay rule but still be admissible. 

o    Eliminating the traditional exceptions and holding that hearsay is generally inadmissible save when some overall test of necessity and reliability has been met could lead to greatly expanded inquiry at trial, lengthening trial and considerable unpredictability in the trial process.


¯  Evidence which is admissible under a hearsay exemption may not be admissible if it does not meet the twin test of necessity and reliability. 

¯  Hearsay evidence may only be admitted if it is necessary and reliable, and the traditional exceptions should be interpreted in a manner consistent with this requirement.

¯  In a majority of cases the presence or absence of a traditional exception would be determinative of admissibility

¯  Hearsay evidence may only be admitted if it is necessary and reliable

¯  May have evidence that falls under one of the exceptions being excluded because it is not necessary and reliable

o    But will be unusual cases and the party challenging the admission of evidence that would fall within one of the traditional exceptions would have the burden of proving its inadmissibility


¯  Under this analysis, any hearsay evidence, otherwise admissible under an exception to the hearsay rule, can be challenged as being neither necessary nor reliable. 

o    The exceptions, although being general guidelines for admissibility, would cease therefore to governs and, particularly where evidence was important to the determination of a case, a thorough trial within a trial would have to be conducted on the issues of necessity and reliability, regardless of the existence of an exception.

¯  The onus of proving that evidence is necessary and reliable will change depending on whether an exception does or does not exist

¯  The principled approach attempts to introduce some flexibility into the hearsay rule

¯  The case law since Starr has, in general, followed the reasoning in Starr without lengthy analysis.

¯  Starr results in the following considerations

o    Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule

¤   The traditional exceptions to the hearsay rule remain in place

o    A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by the principled approach

¤   The exception can be modified as necessary to bring it into compliance

o    In rare cases evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstance

o    If hearsay evidence does not fall under a hearsay exception it may still be admitted if indicia of reliability and necessity are established on a voir dire

Out Of Court Assertions That Are Not Hearsay:

¯  Unless the statement is being repeated to prove the truth of its contents, there is no hearsay issue.

o    Thus, if a statement is repeated in court for a reason other than its truth, the statement is not hearsay.

Present Knowledge and Refreshing Memory:

¯  If a witness does not recall the events they are called upon to give evidence concerning, there is nothing wrong with allowing them to review notes to refresh their memory.

o    If the memory is not refreshed, and all the witness can do is read the notes to the courts, there is a hearsay problem - the testimony is then hearsay and excluded unless it falls within one of the exceptions to the hearsay rule.

¯  Merely because the hearsay statement is being repeated by its initial author does nothing to alter the fact that the statement is hearsay.



Exemptions to the Hearsay Rule

¯  Prior to R. v Starr, the analysis of hearsay proceeded in three stages.

o    Was there a hearsay issue?

o    If so, did a traditional exception to the hearsay rule apply?

o    If not, could the evidence be admitted anyway, on the basis the evidence was both necessary and reliable?

¯  This analysis was changed in the Starr decision.  Now the analysis is:

o    Is there a hearsay issue?

o    Does a traditional exception apply?

o    If a traditional exception applies, can the party opposing admission show that the evidence is, nevertheless, not necessary and reliable?

¤   If a traditional exception does not apply, can the party seeking admission show that the evidence is both necessary and reliable?

¯  The traditional exceptions remain central to the admission of hearsay evidence.

¯  The traditional exceptions to the hearsay rule themselves are numerous and not always consistent.

¯  The exceptions usually apply where there is good reason to believe the hearsay evidence is particularly likely to be accurate or correct. 

¯  Broadly put, most of the exceptions can be explained on the basis of two elements, known as the Wigmore Criteria:

o    The evidence is relevant, material and important but cannot be adduced except by hearsay; and

o    There is some circumstantial indicia of trustworthiness that suggests the hearsay is believable.

¯  Reducing the hearsay exceptions to a uniform test of reliability and necessity simplifies matters enormously and in the long term simplicity usually pushes out complexity

¯  However the traditional exceptions are seemingly applied fairly mechanically and necessity and reliability are considered only where an exception is unavailable

The Exceptions:

Testimony in Previous Hearings:

¯  Where a witness has given his testimony under oath in a judicial proceeding, in which the adverse litigant had the power to cross-examine, the testimony so given will, if the witness himself cannot be called, be admitted in any subsequent sit between the same parties, or those claiming under them, provided it elate to the same subject or substantially involve the same material questions.

¯  The key to this exception to the hearsay is that the evidence deals with the same issue in the previous and current litigation, cross-examination was available at the first hearing, and the witness examined is unavailable through death, illness, mental instability or just cannot be found even tough reasonable attempts to locate the witness have been made. 

¯  A similar statutory provision exists under the Criminal Code ˆ s.715


¯  As a general rule, anything a party says can be used in evidence by the opposite party.

o    This is an extremely important and broad exception to the hearsay rule

¯  No issue of unavailability, circumstantial guarantees of trustworthiness or anything similar is required for this exception to the hearsay rule to apply ˆ if one party said it, wrote it or in any way indicated it a party opposite can use it.

¯  The admissions exception to the hearsay rule is limited in several aspects:

o    An admission is evidence only with respect to the party making the admission. 

¤   Where there are two defendants and one makes an admission, the plaintiff may use the statement in the plaintiffÕs case against the defendant making the admission and not the other. 

á         The case against the co-defendant must be made out some other way.

o    Silence may be used as an admission, but only where silence necessarily implies an admission. 

¤   A person may be taken to have adopted an admission where, based on conduct or silence when confronted with accusations, the person is seen as adopting the truth of the accusation.

¤   Admission from silence will be implied only if silence inescapably implies that admission.

á         As a practical matter, admissions from silence will rarely be found.

á         Do not apply in criminal cases, as silence is a right.

o    But R v Singh

o    Admissions, particularly by businesses, may be also be made by agents or employees.

¤   A statement by an employee or agent within the scope of their employment or agency may be admitted as an admission.

á         Will depend on the personÕs position and authority ˆ e.g. a bookkeeper making a statement about financial records would be admissible, but not the same statement by a receptionist

Statement Against Interest:

¯  The statement against interest exception to hearsay rule is often confused with the admission exception.

¯  The statement against interest exception differs from the admission exception in that it applies to anyone and can be used to adduce, for proof of its truth, any out-of-court statement if that statement was Òagainst interestÓ and the declarant is unavailable.

o    The admission exception applies only to parties. 

¯  A statement against interest is a statement that, at the time it was made, was so contrary to the declarantÕs interest that a reasonable person would not have made the statement if it were not true.

¯  Statement can be against either financial or penal interest but it must be to the declarantÕs immediate prejudice. 

o    Further, the statement must be wholly against the declarantÕs interest ˆ  a confession to shoplifting that gives the declarant an alibi for murder will not amount to a statement against interest.


¯  Four prerequisites to the admission of hearsay evidence as being against interest:

o    The declarant must have made a statement of fact within their knowledge

o    The fact was to the declarantÕs immediate prejudice.

o    The declarant knew the fact was to their immediate prejudice

o    The prejudice was against pecuniary, proprietary or penal interest.


¯  Additionally, the declarant must be unavailable die to death, insanity, illness or other serious reason.

¯  An oral or written declaration, by an unavailable person, of a fact that person knows to be against their immediate pecuniary or penal interest is admissible, though hearsay, of the facts continued in the declaration.

¯  If the statement cannot be used to the declarantÕs prejudice, the statement cannot amount to a declaration against interest.

Business Records:

¯  As a practical matter, organization generate a great deal of paper much of which is, effectively, anonymous. 

o    E.g. shipping invoices contain important information that is relied on every day ˆ but unnamed persons create them

¤   Such invoices, if allowed to prove their contents, are hearsay evidence.

¯  The business records exception is justified because

o    Such evidence is generally reliable and

o    It usually cannot be adduced otherwise.

¯  At common law a business record is admissible to prove the truth of its contents if:

o    It was made at or near the time of the matter recorded

o    It was made by someone with personal knowledge of the matter recorded and whose position obliged them to record the information and

o    It was made in the ordinary course of business.

¯  Business records are admissible as an exception to the hearsay rule if these common law principles apply

¯  Business records may also be admitted by statute. 

¯  The statutory requirements are less onerous than the common law prerequisites and it is more common for business records to be admitted pursuant to statute than common law.

¯  The key differences between the common law and the statutory exception are that personal knowledge of the facts recorded is irrelevant under statute, except as to weight

o    Written notice of the intention to call business records must be given before the evidence is to be called.

¤   S.35 of the Ontario Evidence Act, and s.30 of the Canada Evidence Act

¯  Merely delivering notice of the intention to call business records and then filing with the court those business records is not sufficient to allow the use of those documents to prove their contents. 

o    The other conditions precedent to the use of the documents (the circumstances of creation and their use as actual business records) must be proven independently. 

o    Mere production of a document is not sufficient to prove the document or its contents.

o    Unless agreed to someone must testify as to the circumstances of the creation of the business records for the exception to apply

¯  Generally speaking, the only time the common law exception is needed is if notice was not served.

Past Recollection Recorded:

¯  Often a witness at trial has no recollection of a relevant and material fact, but did make written notes about the fact earlier.  

o    Since such evidence is, often, necessary and has the reliability of being recorded at a time when memory was fresh, an exception to the hearsay rule is made for past recollection recorded.


¯  The Rules for admission are set out in Meddoui:

o    The past recollection must have been recorded in some reliable way.

o    At the time, it must have been sufficiently fresh and vivid to be probably accurate.

o    The witness must be able now to assert that the record accurately represented his knowledge and recollection at the time. 

o    The original record itself must be used, if it is possible.

¯  If the person whose past recollection is said to be recorded does not acknowledge making the recording of the recollection, then the exception does not apply.

Res Gestae:

¯  The res gestae exception to the hearsay rule can be stated as:

o    A hearsay statement relating to a starting event or condition that was made while the declarant was under the stress or excitement caused by the event or condition is admissible though hearsay.

¯  The statement must be made while the declarant still feels the shock of the event ˆ if the shock wore off and reflective thought occurred, the statement will not be admitted.

o    E.g. wife and husband are in a fight ˆ she made a statement to this effect and shortly thereafter was shot ˆ court admitted it stating that she had no time to fabricate the statement

¯  At its heart res gestae relies on the assumption that something said spontaneously and without time for reflection is likely to be sincere and believed

Existing Statement of Physical, Mental or Emotional State:

¯  As a general rule, an otherwise hearsay statement of the declarantÕs then existing state of mind, emotion, sensation or physical condition is admissible.

o    The statement must be of an existing state or condition and a recollection thereof is not sufficient to be admitted.


¯  Case is the leading decision on this exception. 

o    It was material to determine if a deceased did or did not go to a place in Kansas ˆ The deceased had written letters saying he intended to go to Colorado --> This was an intention held at the time the letters were written and it was sought to adduce these letters to prove intention. 

o    The court ruled:

¤   Wherever the bodily or mental feelings of an individual are material to be proved, the usual expressions of such feelings are original or competent evidence.  Such declarations are regarded as verbal actions, and are as competent as any other testimony, when relevant to the issue.  Their truth or falsity is an inquiry for the jury.

¯  An important limitation on this exception is that statements of existing intention are proof of the intention only of the declarant and cannot be used to prove the act or intention of any other person.

¯  Statement must also be of an existing condition ˆ e.g. Òmy head hurtsÓ as opposed to Òmy head hurt yesterdayÓ

Dying Declarations:

¯  The dying declaration exception to the hearsay exclusion is rarely seen.

¯  Where a hearsay statement is made by a dying declarant, who knows death is imminent, and that statement is sought to be adduced in a criminal proceeding for which the death of the declarant is a necessary element and the statement relates to the circumstances of death, the statement is admissible.

¯  Dying declaration exception only applies where five elements all apply:

o    The declarant is deceased

o    The declarant knew of impending death

o    The statement related to death

o    It is a criminal case.

o    An element of the criminal charge is the death of the declarant.

¯  This exception is generally found in homicide cases ˆfew other offences have death as an essential element

Official Statements:

¯  The Evidence Acts provide for the proof of certain government documents.

o    Thus, s. 31(2) of the Ontario Evidence Act provides that entries in books of account of a municipality are admissible as evidence of the truth of their contents without further proof.

o    This is a specific statutory exception to the hearsay rule. 

o    There is, however, a broader common law which provides: a written report or record of a public official is admissible if the official had first hand knowledge of the reported facts and had a duty to make the record or report.

¯  While normally the official statement exception to the hearsay rule applies to civil servants, it is not limited to them. 

o    The question is what role the declarant plays ˆ is it one related to a governmentally sanctioned role dealing with the public?

¤   If so the declarant is a public official


Exclusion of Otherwise Relevant Evidence


¯  Canadian courts now regularly exclude evidence that is otherwise quite reliable because its admission would offend a societal norm.

¯  Relevant and otherwise admissible evidence may be excluded if its prejudicial effect outweighs its probative value.

o    A trial judge has discretion to exclude otherwise admissible evidence to avoid an unfair trial and an appellate court will defer to that discretion.

Right Against Self-Incrimination:

¯  An accused cannot be compelled to give testimony against themselves in a criminal trial.

o    This is clear from both s. 11(c) of the Charter and s 5(2) of the Canada Evidence Act.

á         Section 11(c) of the Charter provides: ÒA person charged with an offence has the right not to be compelled to be a witness in proceedings against that person in respect of the offence.Ó

á         This provision includes federal and provincial offences.

¯  The right to not testify is not a prohibition on testifying

o    An accused can choose to testify. 

o    However, once testifying, an accused may be cross-examined.

¯  Section 4(6) provides that Òthe failure of a person charged to testify shall not be made the subject of comment by the judge or by counsel for the prosecution.Ó

¯  The court may not comment on the accusedÕs failure to testify but may state the law that the accused need not testify.

Right to Silence:

¯  The Charter does not provide a right to silence.

¯  The right to silence is deeply ingrained in our legal culture.  Surprise therefore it is not included.

¯  The right to silence is described by the Supreme Court in Chambers:

o    In Canada the right of a suspect not to say anything to the police is not the result of a right of no self-incrimination but is merely the exercise by him of the general right enjoyed in this country by anyone to do whatever one pleases, saying what one pleases or choosing not to say certain things, unless obliged to do so otherwise by law.  It is because no law says that a suspect, save in certain circumstances, must say anything to the police that we say that he has the right to remain silent which is a positive way of explaining that there is on his part no legal obligation to do otherwise.

R v Singh

¯  In this case police kept questioning a suspect despite 18 times saying wanted a lawyer

¯  Did not say anything directly incriminating but did say things to police that allowed for inference of guilt

¯  DonÕt have a right not to be questioned only a right not to answer ˆ anything you do say etc.

¯  SCC said the right to counsel, right to silence are subsumed into the confession rule

¯  If a statement is voluntary it automatically defeats the right to silence


¯  ÒThe common law confessions rule and the privilege against self-incrimination share a common theme: the right of the individual to choose whether to make a statement to the authorities or to remain silent, coupled with concern for the repute and integrity of the judicial system.Ó

¯  ÒThe common law rules relating to the right to silence suggest that the essence of the right is the notion that the person whose freedom is placed in question by the judicial process must be given the choice of whether to speak to the authorities or not.Ó

¯  Speaking directly about the trick the police played to get the accused to make the inculpatory statement the court held ÒThe scope of the right to silence must be defined broadly enough to preserve for the detained person the right to choose whether to speak to the authorities or to remain silent, notwithstanding the fact that he or she is in the superior power of the state.  On this view, the scope of the right must extend to exclude tricks which would effetely deprive the suspect of his choice.


¯  Once an accused says ÔIÕm saying nothing, I want to see a lawyer,Õ the state has no further right to obtain a statement from the accused either directly or indirectly (unless after obtaining legal advice the right to silence is waived.

Self-Incrimination and the Charter:

¯  Unlike the right to silence, the right against self incrimination is explicitly stated in s.11(c) of the Charter

o    A person charged with an offence has the right not to be compelled to be a witness in proceedings against that person in respect of the offence

¯  The right in s. 11(c) of the Charter is reinforced by s.13 of the Charter, which provides:

o    A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings except in a prosecution for perjury or for giving contradictory evidence.

¯  Section 13 protects an accused from being forced to testify in a mater in which they are not accused and having that unwilling testimony used against them in a subsequent trial.

R. v. Dubois

¯  The accused was tried twice for murder - in the first trial, later reversed on appeal, the accused freely testified.  During the second trial the accused did not testify, but his evidence from the first trial was read into the record over the accusedÕs objection. 

¯  Ruling the evidence from the first trial inadmissible, the court held:

o    ÒAs s. 13 guarantees the right of a person against self-incrimination, rather than the rights of a witness giving testimony, it inures to an individual only at the moment an attempt is made to use previous testimony to incriminate its author.Ó

¯  Accordingly, whether or not the prior testimony was given voluntarily is irrelevant to the right against self-incrimination.


¯  However, if an accused testified at an earlier trial, and their subsequent testimony contradicts their previous one, this prior inconsistent statement can be used in cross-examination.

o    This is because the prior statement is being used only to shake the present testimony and not as testimony. 

o    Such inconsistent statements are not proof of their contents but rather merely evidence of the inconsistency of the witness.

Right to Counsel and Evidentiary Implications:

¯  Section 24 of the Charter states that ÒWhereÉevidence was obtained in a manner that infringed É this Charter, the 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 dispute.Ó

o    In Collins, the court determined that the test is could bring the administration of justice into disrepute, rather than would.




¯  As a general rule, in criminal matters, confessions to public authorities are admissible only upon proof by the prosecutor that the confession was obtained freely and without any pressure on an accused.

o    Issue is that a statement may be either wrong or brought about in a way that society may not accept

¯  The rule regarding confessions is broad enough to encompass any statement whether inculpatory or not. 

o    Even an apparently exculpatory statement is subject to the voluntaries requirement. 

¯  Not all statement made by person accused are confessions. 

o    Statements made to people other than authorities are not confessions and even statements made to authorities are not confessions if at the time of the statement the speaker was not yet a suspect or accused.

¯  The rule respecting confessions is:

o    A confession is a statement made by an accused to a person in authority.  Such a confession is not admissible in a prosecution of the accused unless the prosecution proves beyond a reasonable doubt that the confession was made voluntarily.

Free and Voluntary:

¯  For a statement, which may be a confession, to be admissible it must be made freely and without the accused being coerced.

o    The question is subjective ~ is this accused making a free and voluntary statement?

o    Thus, giving the usual warning will do for most adults but not for persons of limited capacity.

¯  The courts have been quite clear that an element of voluntaries is that the speaker must have an operating mind.

¯  Thus, someone suffering physical shock, drunkenness, or lacking mental capacity cannot make an admissible confession.

¯  The prosecutor must show beyond reasonable doubt that the speaker

o    Knew what they were saying

o    Knew it could be used against them and

o    Comprehended the police warning.

¯  Beyond the operating mind requirement, voluntariness requires the confession was not obtained by hope of advantage or fear of prejudice.

¯  Before a statement can be said to be free and voluntary, prosecutor must show, beyond a reasonable doubt, that

o    The accused is in a clear state of mind

o    The accused knows the statement may be used in evidence and

o    That the accused has not been put under any physical or emotional stain so as to influence their thinking.

¯  For police the best practice is to videotape all interrogations

Person in Authority:

¯  A person in authority is anyone an accused reasonably believes is in a position to influence the prosecution of an accused.

¯  If the accused reasonably believed the person had the power to influence the prosecution then the person qualifies

¯  The confession rule does not apply if an accused makes statements to someone who is factually in authority but whom the accused does not believe is in authority.

o    Even if an accused believed someone to be in authority, such belief will not trigger the confession rule unless the belief is reasonable.

The Voir Dire:

¯  Once the issue of whether the confession rule applies, the prosecutor must prove, beyond reasonable doubt, that the confession is admissible.  Such proof is established in a voir dire.

¯  A voir dire is a trial within a trial ˆ in the case of confessions, the voir dire is held to determine whether a confession is voluntary and, therefore admissible.

¯  The jury is excluded during the voir dire, and does not hear the evidence taken during the voir dire.

¯  The voir dire should be held whenever an issue of a confession is raised unless the accused quite explicitly waives the need for one. 

o    Silence or lack of objection is not sufficient as waiver.

¯  The burden of proving a confession is voluntary rests with the prosecution. 

¯  If the accused wishes, the accused may testify during the voir dire but in such event the judge may allow the accused to be questioned on the truth of the statement.

¯  De Clercq. ˆ SCC held that the truth of a confession might be relevant to its voluntariness

¯  The accused has to raise the question of whether a confession exists. 

o    On the voir dire the accused has the evidentiary burden of showing there is a valid issue to consider. 

á         If that burden is met, the Crown bears the legal burden of showing to beyond reasonable doubt that either the recipient of the statement was a person in authority or, if the recipient was a person in authority, then the statement was free and voluntary.

Evidence Proven Collaterally True

¯  Why exclude a confession unless it is shown to be true and voluntary

o    Because judges may consider such evidence to be frail and suspect and not worthy or credit

o    Because of broader social prohibition of benefiting from prosecutorial misconduct

¯  Where a confession was proven true, until the Charter, it was admitted ˆ e.g. confess to stealing, police find goods where you indicated they were ˆ only so much of the confession as was demonstrated correct was allowed

¯  However, evidence obtained in violation of the Charter is to be excluded under the s.24(2) analysis



Evidence Obtained Illegally

Illegally Obtained Evidence:

¯  Evidence obtained as a result of illegal conduct by the state is not necessarily a breach of constitutional rights, though this is usually the case.

¯  Except for constitutional breaches, illegality does not taint admissibility of evidence. 

¯  The law regarding illegally obtained evidence is the same in both civil and criminal cases

o    Though in civil cases, a party may obtain an injunction barring the use of otherwise confidential materials obtained by some breach of that confidence

Wiretap evidence

¯  There is a statutory exception to the principle that illegally obtained evidence is inadmissible. 

¯  At present, and ignoring Charter issues, wiretap evidence is admissible if the limited notice and disclosure prerequisites are met.

¯  Prosecutor must provide notice of the intention to adduce the evidence with full particulars of the evidence



The Exclusion Remedy Generally

Creation of Remedy:


¯  The US Supreme Court found using illegally obtained evidence was akin to forcing someone to testify against themselves.


¯  Similarly Weeks held that to sanction unlawful seizers would be to affirm by judicial decision a manifest neglect of the prohibitions of the Constitution.

¯  Many criticism have emerges of such rigid exclusion, mostly directed at the concern that minor police irregulatories could allow serious criminals to go free.

¯  Subsequently, Canadian courts firmly rejected the exclusion remedy when dealing with the Canadian Bill of Rights.

Exclusion of Evidence Under the Charter

¯  Section 52 and 24 of the Constitution Act, 1982 are key to protecting the rights of Canadians and ensuring that the exclusion remedy is not likewise ignored under the Charter.

¯  Section 52 makes the Charter a part of the Constitution.  The Charter therefore is superior to, and overrules, any other law.

¯  Section 24 is more complex and provides:

o    Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

o    Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

¯  Subsection (1) is a general power to fashion a remedy ˆ for purposes of exclusion of evidence only subsection (2) is relevant. 

¯  Exclusion of evidence can be made only under s. 24(2); there is no jurisdiction to exclude evidence under 24(1).

¯  Exclusion of evidence under s. 24(2) of Charter requires two elements:

o    The evidence must be obtained in a manner that violated the Charter and;

o    The admission of the evidence would bring the administration of justice into disrepute.

¯  The first part of the test requires that there be some alleged Charter infringement. 

¯  Absent a specific Charter breach, there is no basis to seek an exclusion under Charter. 

¯  Merely raising an illegality will not trigger the exclusion ˆ only a Charter breach will suffice.

Collins Test

¯  The exclusion should be based on a practical consideration of three primary considerations:

o    Would the admission of the evidence affect the fairness of the trial?

o    How serious was the Charter breach?

o    What would the effect of the exclusion be on the repute of the administration of justice?

Relationship of s. 24(2) Factors:

¯  Of the three considerations under s. 24(2) trial fairness is the most significant.

¯  The impact of admitting constitutionally tainted evidence on trial fairness in the most important consideration in triggering an exclusion.

¯  Ultimately the concern in excluding evidence is to ensure the administration of justice is not brought into disrespect and justice is done. 

o    Accordingly trial fairness, while but one factor, is a critical factor.


What Does Disrepute Mean?


¯  The concept of disrepute necessarily involves some element of community views, and the determination of disrepute thus requires the judge to refer to what he conceives to be the views of the community at large. This does not mean that evidence of the publicÕs perception of the repute of the administration of justice, which É could be presented in the form of public opinion pollsÉ, will be determinative of the issue É The Charter is designed to protect the accused from the majority, so the enforcement of the Charter must not be left to that majority.


¯  There must be a Charter breach and then the court focuses on whether the admission of the evidence into the proceedings would bring the administration of justice into disrepute. 

Causation or Connection:

¯  It is unnecessary for the Charter breach to lead directly to the evidence which brings justice into disrepute for s. 24 of the Charter to be triggered. 

¯  A mere temporal link, that is breach before evidence, triggers s. 24 of the Charter, unless the breach and evidence are clearly remote.


¯  Evidence may be allowed if the state establishes on a balance of probabilities that the evidence would have been inevitaley obtained regardless of the breach

¯  Also have a distinction between real and conscriptive evidence


¯  Conscriptive evidence, as it owes its existence to a Charter breach, will seldom be admissible but non-conscriptive evidence, if not otherwise excluded, will seldom be excluded if otherwise obtainable or discoverable.

o    Also have derivative conscriptive evidence ˆ where real evidence was discovered through participation of the accused

Burden of Proof:

¯  The party seeking to exclude evidence under s. 24(2) of the Charter has the burden of demonstrating the need for exclusion. 

¯  The applicant must make it more probably than not that the admission of the evidence would bring the administration of justice into disrepute (Collins).

¯  The state has no onus to establish the admissibility of evidence;

o    However if evidence is otherwise to be excluded and the state still seeks the evidence to be admitted as being found inevitably despite the breach, the state must show that inevitability. 

o    Similarly, if the state wishes to establish a good faith exception to the exclusion, the state must bear the burden of proof for good faith.



Protection of Confidential Relations

Privilege In General:

¯  As an exception to the general rule that relevant and material evidence is admissible, certain communications, originating in confidence, are excluded from admissible evidence.

¯  The basis of the exclusion is purely societal; no issue of relevance is taken.

¯  The confidential communications protected are of two types: privileged by class and privileged by case.

¯  Those communications privileged by class include solicitor/client, husband/wife, and a few others.

o    No investigation into the impact of disclosure in the specific case is made for class privilege.

¯  By contrast, regardless of the formal relationship between the parties, case privilege may apply where a truly confidential relationship of value would be harmed by disclosure.

¯  Exclusion of evidence based on privilege is limited fairly strictly by the court.

Solicitor-Client Privilege:

¯  Communications between a solicitor and client in a professional capacity are privileged and, subject to a few exceptions, cannot be disclosed except with the consent of the client.

¯  The fact of the communication or the name of the client is not usually privileged ˆ only the contents of the communication are privileged. 

o    However, where the mere fact of consulting a lawyer, standing alone, would implicitly disclose the nature of the consultation, the fact of the contact is privileged.

¯  Communication between a lawyer and a third party made in contemplation of litigation are also privileged, subject to specific disclosure requirements. 

o    If a lawyer asks an expert to make a report, the discussions with the expert and the report they make are confidential. 

¯  The lawyer can ignore the report if it is unhelpful, as if it never existed.

o    This is generally considered to be litigation privilege, and is limited to where the communications were made in the expectation of trial. 

¯  Litigation is more limited than solicitor-client privilege.

Limitations of Solicitor-Client Privilege:

¯  Not all discussions involving lawyers are privileged.

¯  The person consulted must be a lawyer in the jurisdiction where the consultation occurs.

¯  The lawyerÕs agents and employees are covered by privilege.

¯  Independent paralegals are not covered by privilege.

¯  It is only the communication that is privileged ˆ Material evidence is not.

¯  Privilege does not apply to advice taken so as to commit a crime (Cox)

¯  The solicitor-client privilege is defeated by what has been called Ôinnocence at stake.Õ 

o    R. v. McClure ˆ the Supreme Court held that where a lawyer has otherwise privileged information that could assist an innocent accused, that information cannot be privileged, at least as respects the innocent accused.  ˆ Such otherwise privileged information cannot be used against the client who had the communication.

o    The Ôinnocence at stakeÕ exception applies only when there is no way to put the innocence to the court except by breaching privilege. 

o    Privilege will not be waived except in the most serious cases.

Litigation Privilege:

¯  Litigation privilege only applies when litigation is pending or at least anticipated.

¯  Litigation privilege only applies when a dominant substantial purpose of the document is to instruct counsel or for counselÕs use.

o    Once the dispute is ended the privilege is over as well

o    If the document should be created, at least in part, for litigation, the privilege likely applies.

¯  If litigation privilege applies, it will not be lost even if the work is shared with third parties; provided those parties have a common interest with the disclosing party and that interest is related to the litigation

¯  Litigation privilege is not a subset of solicitor-client privilege

o    R v Blank ˆ applies to anyone preparing for litigation

Other Class Privileges:

Husband and Wife:

¯  Except for specific sexual or child abuse offence, a spouse cannot be required to testify for the Crown against their spouse.

¯  Most Evidence Acts provide a spousal privilege for communication made during marriage. 

¯  For these privileges to apply the parties must be legally married.

¯  Spouse, however, is able to waive the privilege

State Privilege:

¯  Communications made for the purpose of governmental policy-making are privileged.

¯  This privilege is not absolute and is subject to weighing before the court.

¯  Purpose of the privilege is to allow for free and frank discussion of policy matters at a high government level

JudgesÕ Privilege:

¯  Judges cannot be compelled to disclose their discussions or reasoning in coming to a decision.

o    This privilege extends to members of administrative tribunals as well

¯  Jurors are, because of their judicial role, also, normally, not compellable to testify about their deliberation. 

o    However, where an issue of juror misconduct is raised, a juror may be called to testify.


¯  Police cannot, except in criminal cases where needed to demonstrate an accusedÕs innocence, be compelled to disclose an informantÕs name or identity.

¯  Also need the informant to accede to the disclosure of their name or identity before it can be disclosed

General Policy Test:

¯  There are some general principles underlying all confidential communication privileges which are usually called the Wigmore Criteria:

o    The communication must originate in a confidence;

o    This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties;

o    The relation must be one which in the opinion of the community ought to be sedulously fostered;

o    The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.

¯  If a communication not otherwise covered by a class privilege fits with the Wigmore Criteria, the court may exclude the communication from evidence.

¯  Privilege will arise on a case-by-case basis only in very narrow circumstances. 

¯  The party seeking to establish privilege exists must establish by clear evidence each element of the test

Privileges Not Existing by Class:

¯  There are many privileges not existing by class but commonly assumed to be privileged. 

o    These include priest/penitent, doctor/patient, accountant/client.

¯  These communications are, prima facie, not privileged and are admissible unless it is established, for this case the Wigmore Criteria apply to exclude the evidence.

¯  The court is generally disinclined to grant privilege in anything but the most obvious cases.

¯  In general the concern of the court for the full disclosure will require disclosure of communications even if that leads to a breach of confidence.

Settlement Discussions:

¯  Public policy favors the amicable settlement of civil disputes without trial. 

o    Resultantly, efforts to settle civil disputes are accorded special treatment so as to foster settlement.

¯  All discussions and communications, in a civil context, made for the purpose of resolving a dispute are privileged and cannot be used in evidence.

¯  For the settlement privilege to apply the discussions must be designed to lead to settlement ˆ a party cannot put privilege onto letters not intended to lead to settlement by writing Ôwithout prejudiceÕ

¯  The privilege survives settlement, as respects third parties ˆ an admission made during settlement cannot be used by a third party suing a party who settled.

¯  Statements made during the course of failed negotiations are protected by privilege in subsequent litigation.

¯  Two conditions must be met for settlement discussions to remain privileged:

o    A civil dispute must be ongoing or contemplated; and

o    The discussions must be intended as confidential, at least as regards the court.

Overriding Exception to Privileges:

¯  All privileges are subject to being overridden by the court if the maintenance of the privilege would post a threat to public safety. 

¯  Where serious harm to an identifiable person exists, privilege is waived, albeit only insofar as is actually necessary to avoid the danger.

¯  There are three factors to be considered:

o    Is there a clear risk to an identifiable person or group of persons?

o    Is there a risk of serious bodily harm or death?

o    Is the danger imminent.

¯  It must be emphasized that the public safety exception applies only to future harm - admissions of post violence, not matter how serious, do not fall within the exception.


Opinion Evidence

¯  Witnesses are asked to testify as to what they said, heard, tasted, perceived themselves.  That, n part, is the basis of the hearsay rule ~ courts want to hear fact, not gossip, and once the court has the fact then the court can try to work out what those facts mean.

¯  Witnesses are not called upon to speculate or make conclusions as to what is the meaning of what they perceived.  The determination of what everything means is the province of the trier or fact.

¯  The rule against opinion evidence:

o    Opinion evidence, that is conclusions drawn from facts, is inadmissible unless it is

¤   An opinion of a layperson that is necessary for a cleat understanding of their evidence, or

¤   An expertÕs opinion.

Opinions of Laypersons:

¯  LaypersonÕs opinion evidence is proper where it is rationally based on perception and is needed to understand the evidence of the witness.

¯  The opinions or beliefs of witnesses who are not experts are admissible É on grounds of necessity, more direct and positive evidence being often unavailable.

¯  The key for a lay witness giving an opinion is that the opinion deals with an everyday thing and the witness will not be able to give the testimony any other way.

¯  Excluding lay people, when based on personal experience, serves no purpose and hinders triers of fact

¯  Typical examples of acceptable lay opinion include intoxication, handwriting, identification of persons, speed, temperature and time of day.

Opinions of Experts:

¯  The reason expert testimony is allowed is because there are certain things a judge or jury cannot reasonably be expected to understand without the guidance of someone skilled in a recognized field.

¯  An expertÕs function is to provide the judge and jury with a read-made inference which the judge and jury, due to the technical nature of the fact, are unable to formulateÉ An expertÕs opinion is admissible to furnish the Court with scientific information which is likely to be outside the experience and knowledge of a judge or jury.

¯  Rule regarding expert testimony:

o    If specialized knowledge will assist the trier of fact to understand the evidence or a fact in issue, a witness qualified as an expert by knowledge, skill, experience or training may testify by way of opinion.

o    The opinions of skilled witnesses are admissible whenever the subject is one upon which competency to form an opinion can only be acquired by a course of special study or experience.

¯  An expertÕs opinion is admissible only if it is needed to allow the trier of fact to make sense of the evidence. 

o    Necessity is the test ˆ merely because expert evidence would be helpful is not enough.

¯  Expert opinion is allowed as an exception to the general rule against opinion evidence

o    Because there is a real risk that the evidence of an expert will be given too much weight by a jury

¯  The potential effect of the evidence must not outweigh its value to the trier of fact.

¯  Before admitting expert testimony a court must consider the following questions:

o    Will the proposed expert opinion evidence enable the trier of fact to appreciate the technicalities of a matter in issue? Or

o    Will it provide information which is likely to be outside the experience of the trier of facts? Or

o    Is the trier of fact unlikely to form a correct judgment about a matter in issue if unassisted by the expert opinion evidence? And

o    Is the need for the evidence sufficient to overcome its potential prejudicial effect?

Basis of Expertise:

¯  The qualifying of an expert requires proof that         

o    This person has some special or peculiar knowledge of their subject and

o    The subject they are expert in is a legitimate area of study.

¯  A topic must have reached a level of general acceptance as being a valid area of human endeavor before it can form the basis of expertise for an expert opinion.

o    Before expert opinion can be accepted, the field in which the expertÕs expertise lies has to have been generally accepted by the scientific, professional or academic community as having achieved a threshold level of reliability.

o    Hallmarks of reliability include

o    Falsifiability,

o    Peer review and publication,

o    Acceptance by the relevant academic community,

o    A known error rate

o    Existence and maintenance of standards.

¯  Unless there is a settled, and accepted, expertise, an expertÕs opinion is inadmissible.

¯  Experts are not qualified generally; a witness is found to be an expert in a specific area and they are allowed to opine only within their area of expertise.

o    There are also limitations in the Evidence Acts about the number of expert witnesses ˆ to save time

Independence of Expert

¯  Experts are retained by one side or the other

¯  Their evidence is often slanted to this side as a result

¯  But the expert must provide independent assistance to the court by being objective and unbiased in their opinion

¯  Where an expert does not retain independence their testimony may be rejected

Factual Basis of Expert Testimony:

¯  An expert gives an opinion as to the interpretation of fact ˆ often invariably, experts have no direct knowledge of the facts they base their opinions on.

¯  In order to determine if the opinion is of any value, the facts it is based on must be described and proven.

¯  Accordingly, expert testimony is usually given by way of a hypothetical question that sets out the fact the expertÕs opinion is based on.

o    This allows the trier of fact to determine whether the expertÕs evidence is worth anything

o    Because if the opinion is based on facts not accepted by the trier of fact the opinion is worthless

¯  The factual basis for an expertÕs opinion sometimes causes a concern for hearsay.

o    Provided otherwise acceptable, an expertÕs testimony, even if partially based on unproven hearsay, remain admissible, albeit subject to less weight.

Opinion Evidence and Ultimate Issue:

¯  Occasionally expert testimony is objected to as being directed to the Òultimate issueÓ of the dispute.

o    The concern is that an expert opinion on the very issue the court is to decide tends to usurp the role of the court as decision-maker. 

á         Such concerns are not determinative in Canadian law.

o    At most, the ultimate issue rule amounts to a principle that ought to govern a courtÕs consideration of an expertÕs opinion.


Evidence of Character

Character of an Accused:

¯  Evidence of bad character is not admissible to prove an accused committed a criminal act.

¯  A basic rule (with some exceptions) is that evidence of a personÕs character may not be introduced to support an inference that the person acted on a specific occasion in conformity with that character.

o    That said, an accused may adduce evidence of a community reputation for good character. 

o    If an accused adduces such evidence of god character, the state may rebut it by cross-examining about incidents in the accusedÕs past.

¯  In responding to evidence of good character the state may call

o    General evidence of bad character (although a witnessÕs personal opinion of the accusedÕs character is inadmissible.)

o    Evidence of similar acts.

o    Cross-examine the accused about specific past disreputable acts.

¯  Evidence tending to show the accused in a somewhat negative light is not, because of that tendency inadmissible

¯  Calling evidence to dispute good character does not breach the prohibition on seeking to prove an accused guilty by the use of bad character evidence

¯  The rule excluding such evidence applies only where the sole purpose of evidence touching on character is to show the accused is the type of person likely to have committed the offence

¯  An accused may adduce evidence of good character by calling witnesses, cross-examining Crown witness on the subject or by giving testimony.

¯  Accused may point to general reputation or specific incidents. 

¯  The Crown, with a few limited exceptions such as criminal record, may only refer to general reputation.

Character of Non-Parties:

¯  There is no limit, other than relevance and materiality, as to proving character of third parties.

o    Such character can be proven by reference to specific acts of charity or violence and not only by general community reputation

¯  But need to be careful because it is a short step from here to showing the accused is of good character

o    If you do that then the prosecution can adduce evidence of the accusedÕs bad character

¯  The character of a victim of crime could be relevant to a claim of self-defence

¯  But there is a danger that the character evidence of a victim will be misused ˆ is treated carefully by courts

o    However courts are loathe to limit evidence that is material and relevant even if it is prejudicial

Complainants in Sexual Offences

¯  There is a limit regarding bringing character evidence against victims of sexual assault.

¯  The Criminal Code in section 276 provides for the exclusion of evidence of the sexual experience and history of a victim of sexual assault, unless its probative value is substantially outweighed by the need to ensure a fair trial.

¯  In addition, general sexual reputation cannot be used to show a complainant unworthy of belief.

¯  The purpose of this protection is to keep the evidence from being used for an improper purpose

Propensity and Expert Testimony:

¯  If a state of mind or mental capacity is grossly abnormal, but within a particular field of expertise, an expert may offer opinion as to whether or not the accused has that mental capacity.

¯  In theory this is not proof of bad character but rather a psychiatric fact, just as proof of a psychological fact is admissible.

o    There is a fine line between a mere disposition for violence (which is not the subject of expert evidence) and a peculiar psychiatric tendency (which may be the subject of such evidence).

¯  Expert testimony of an accusedÕs mental state is proper but only if relevant to an issue other than mere propensity.

o    One way to look at the evidence is to ask whether it can be properly analogized to a physiological fact such as whether the killer was left-handed

¤   If the analogy is close then it is, subject to prejudicial effect, admissible as expert evidence

Propensity and Prejudice

¯  There is no blanket rejection of propensity when its probative value is high

¯  Only where the probative value is high with the prejudicial effect of propensity be outweighed


Similar Fact Evidence and Credibility

Character and Psychiatric Propensity:

¯  In order to prove a case, the plaintiff/prosecutor must demonstrate the facts alleged and cannot show the defendant/accused is a bad person and therefore more likely than not to be liable.

¯  Evidence of similar acts can be admitted, even though it may incidentally show bad character, if it is otherwise relevant.

o    You can prove guilt, and thereby incidentally show bad character; what you cannot do is prove bad character and thereby prove guilt.

¯  Evidence which tends to show bad character or a criminal disposition on the part of the accused is admissible if :

o    Relevant to some other issue beyond disposition or character, or

o    The probative value outweighs the prejudicial effect.

¯  The concern about similar facts arises from the perception that the prejudicial effect of allowing this type of evidence may overwhelm any probative value the evidence has.

¯  The real question to be asked is whether the prohibitive value of the evidence sought to be adduced outweighs the prejudicial effect of admitting the similar facts.

¯  Where there is a real issue of the similarity between the incidents is artificial (e.g. that two complainants colluded and created similar stories) prejudicial effect is greatly increased. 

o    In such cases the similar fact evidence is generally rejected.

How Similar is Similar?

¯  The evidence must be strikingly similar.

¯  The similarity must be to a high degree, although the standard to apply to the main inference from similar fact evidence is to a balance of probability.

¯  The onus to establish that the probative value of the similar fact evidence outweighs its prejudicial effect rests with the Crown, albeit to a civil standard.

o    Unless that onus is met, a court may not admit similar fact evidence.

Civil Cases:

¯  The similar fact rule also applies in civil cases.

¯  A civil case is limited to the facts in issue, not history, and unless there is some reason to believe similar prior acts have probative value exceeding prejudicial effect, the prior circumstances are not admissible.

¯  It is easier to adduce similar facts in a civil case if only because the risk of unfair prejudice is less

¯  Evidence of similar facts is admissible when it is logically probative or relevant to a material issue in the case, and it is not unduly oppressive or unfair to the other side



Collateral Facts Rule:

¯  The collateral facts rule prohibits evidence the sole purpose of which is to contradict a witnessÕs testimony regarding a collateral fact.

o    A collateral fact is a fact that is neither relevant nor material.

¯  If a question is put to a witness regarding a fact that does not impact on an issue in the lawsuit, the answer to that question, regardless of what the answer is, cannot be challenged by extrinsic evidence.

¯  The rule can be stated:

o    No extrinsic evidence may be called to contradict a witness on matters solely raised to challenge the witnessÕs credibility.

¯  The purpose of the rule is to limit the evidence before the court to that truly of assistance to the court

Cross-Examining on Prior Statement:

¯  There are two ways a prior statement of a witness can be used:

o    A statement by a party may be adduced by an opponent to prove its truth. 

á         This is merely the admission exception to the hearsay rule:

á         As a general rule, anything a party says may be used against that party even though it is hearsay.

o    You can use a prior inconsistent statement to cross-examine a witness. 

á         In such case the prior statement is not admitted to prove its truth (unless it is adopted by the witness) but to show the witnessÕs testimony is unreliable.

á         The statement is no evidence of the facts contained therein ˆ the statement is only evidence of testimonial weakness.

á         The prior statement can remove the present testimonyÕs effect but not more.

¯  A prior inconsistent statement may also be admissible as proof of its contents, even if not adopted by the witness, if the criteria of necessity and reliability are met.

Prior Criminal Convictions:

¯  The prior criminal convictions of any witness are relevant insofar as they impact on credibility.

o    This is true of accused as witness as well as any other witness.

¯  An accused may not be convicted on the basis they were a bad person. 

o    Thus, in accusedÕs criminal past is only relevant for credibility and nothing else.

¯  The court has discretion to exclude evidence of prior convictions in appropriate cases. 

o    Such exclusion of prior convictions is proper only where the risk of prejudice exceeds the probative value of the prior convictions, especially as regards credibility.

¯  An accused who elects to testify can be cross-examined on prior conviction like any other witness.

o    The purpose of such cross-examination is to weaken credibility and so the convictions of an accused are relevant only when the accused testifies

¯  Evidence of prior convictions cannot go in unless the accused testifies.

Impeaching Your Own Witness:

Wright v Beckett

¯  The general rule against impeaching come from Wright v. Beckett:

o    A party never shall be permitted to produce general evidence to discredit his own witness, for that would be to enable him to destroy the witness if he spoke against him, and to make him a good witness if he spoke for him, with the means in his hands of destroying his credit if he spoke for him.

¯  Nevertheless, at common law, it is very clear that you can contradict your own witness, but you cannot call evidence going to rely to the witnessÕs credibility.

o    You can though raise issues related to your witnessÕs character to deal with an issue likely to arise on cross-examination.

¯  The key is that by calling a witness you are asking the court to accept their testimony as honestly given ~it may be mistaken, but you suggest it is honest.  Put otherwise, if the witness is unworthy of belief, why are they being called?

Supporting Credibility:

¯  A prior consistent statement of a witness is generally inadmissible 

o    It proves nothing except that a witness has not changed their story.

o    This last point gives rise to the exception:

¤   A prior consistent statement can be adduced to rebut an allegation of recent fabrication.

¯  Specifically, if a witnessÕs account of some incident or set of facts is challenged (directly of implicitly) as being of recent invention, the party calling the witness is allowed to rebut that challenge by showing that at some earlier time the witness made a statement to the same effect.  

o    The earlier statement must have been made contemporaneously with the event or at a time sufficiently early to be inconsistent with the suggestion it is of late invention.

o    The earlier statement is adduced solely to prove consistency. 

o    The earlier statement itself is not evidence of the truth of its contents.

Polygraphs, Lie Detectors and Truth Serums:

¯  These devises are all directed as mechanical techniques to bolster the credibility of witnesses. 

o    General evidence called solely to bolster a witnessÕs credibility is improper, and thus these devises are disallowed.

¯  Similar, the repetition of statements given while subject to these devices that are consistent with present testimony amount to nothing more than prior consistent statements.

¯  As well, there is doubt as to the accuracy of truth measuring techniques.

¯  The admission of the results from these devices therefore has been rejected by the courts.

¯  Similarly, evidence that a witness offered to take a lie detector is rejected as amounting to oath helping.

¯  However, just because a lie detectorÕs test results are not admissible does not mean the interview itself is inadmissible. 

¯  Thus the transcript of a lie detector interview is admissible on the same basis as any other question and any statements made during the test can be used against the accused as an admission


¯  Whenever a case rests on the testimony of potentially untrustworthy witnesses, a judge is prudent to advise the jury to consider the risks of accepting such testimony.

¯  Corroboration is some independent evidence that affects a party and connects the party with the cause or offence. 

o    Specifically, it must be evidence that confirms not only that a cause exists or has occurred but also that the party in dispute is connected to it.

o    It need only go to a single material point and it is enough that it tends to show the cause exists and a party is connected to it.

¤   This means that if testimony is given by an uncredible witness, it is advisable the material evidence of some sort be shown to the court that backs up the testimony of this witness.

¯  Always best to have corroboration of evidence adduced by one witness ˆ gives it credibility


The Best Evidence Rule

¯  The best that the nature of the case will admit

¯  Proof of the contents of a written document ought to be made by production of the original document.

¯  This highly limited rule is the modern form of the best evidence rule.

¯  It is now well established that any application of the best evidence rule is confined to cases in which it can be shown that the party has the original and could produce it but does not.

¯  The best evidence rule is limited to require the production of an original of a document available to the party. 

o    Copies may be adduced if an explanation of why the original is missing is given.

¯  Additionally, where a copy, rather than the original, is produced, the court will reject the copy, and apply the best evidence rule, only where there is a legitimate dispute as to the contents of the document.

Limitations of the Rule:

¯  The best evidence rule deals with the contents of documents, not the existence or identification of the document.

¯  Where the existence, as opposed to context, of a document is relevant, proof of that existence is not subject to the best evidence rule. 

o    The best evidence rule applies to contents of documents only

¯  It may be that this rule does not apply to anything other than written documents and has no application to videotapes, photographs or similar items.

When is Secondary Evidence Admissible?

¯  If the best evidence rule applies, certain exceptions to the rule exist allowing the proof of a document by secondary evidence.

o    If the original has been lost or destroyed evidence from a copy may be admitted. 

¤   In such a case the copy must be verified as a true copy that contains the same terms as the original. 

o    Parol evidence of a lost or destroyed document is also admissible.

o    When a document is unavailable for court because the original exists, but is in the hands of a party outside the process of the court or who cannot be compelled to produce the original, secondary evidence of the documentÕs contents is proper.

o    Similarly, if a document is in the hands of a person subject to compulsory production to the court, but that person does not comply with their obligation to produce, the document may be proven by secondary evidence.

Future of the Best Evidence Rule

¯  Until recently the rule was on the way out ˆuntil e-mails came along

¯  With e-mails the original can be advantageous ˆ because of scripts in the header setting out time, sender etc.