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Chapter 1: Proof in Judicial Decision Making
Three big Q’s: is it admissible? For what purpose? Limiting instructions for jury?
A. INTRODUCTION
General statement re: statutory provisions
 Some proceedings are covered by Fed legislation and some by Provincial
 Criminal Code provisions = Federal Canada Evidence Act applies to federal proceedings
 Provincial proceeding = the BC Evidence Act
 Many of the BC provisions are similar – we are not really required to know any BC provision but know that
there is a difference of jurisdiction
 There also may be other laws that apply ie ATA
1. A Qualified Search for the Truth (Noel)
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Law of Evidence has two competing purposes in holding a Qualified Search for the Truth: (1) maximize
truth-finding and (2) minimize injustice (Noel)
 Basic Framework of a Fair Trial
(a) search for the truth
 the rules of evidence facilitate the search for the truth; create a reliable and proper process for the
search for the truth
 this means things should be left out also (ie prejudicial, irrelevant information)
(b) justice
 short and long term implications for the justice system
(i) immediate trial process
 ensuring accused receives a fair trial
(ii) broader concerns of the proper administration of justice
 social principles / values, or for broader notions of equity and policy (proper administration of
justice; public confidence in administration of justice; deterring police misconduct)
 Basic Test for All Evidence
 Balancing PROBATIVE VALUE and PREJUDICIAL EFFECT - the higher the prejudicial effect, the
higher the probative value must be
(1) Probative Value
 Does the evidence aid in the search for truth? Does it tend to increase or diminish the probability of
the existence of a fact in issue (Arp)
(2) Prejudicial Effect
(a) prejudice to the immediate accused
 ability of the information to mislead the trier of fact and cause prejudgment of the accused
(b) prejudice to the administration of justice
 negative effects or disrepute it would cause the justice system as a whole
2. The Adversarial System of Trial (Swain)
 Swain the SCC makes comments about evidence in the context of the adversarial system of trial
 In Canada we have an adversarial system which differs from an inquisitory system
 in our system both parties have great discretion to put forth their case as they wish.
 Each party has the autonomy to decide which evidence it wants to lead
 freedom/control has a corresponding obligation to know the rules of evidence very well and not make the
mistake of basing case around evidence that turns out can’t be admitted.
 limits to the autonomy the parties as to leading evidence:
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1. Duty not to mislead the court
 cannot lead irrelevant evidence for a malicious purpose;
 duty to court as well as client;
 Crown duty of fairness and
 Crown duty and goal is not to get a conviction but to see that justice is done.
2. Judge as gatekeeper
 Even though the adversaries have decided to bring in the evidence, judge can overrule this.
 Judges have a duty to ensure that all of the evidence is relevant.
 Judges will also get involved in questioning witnesses, especially expert witnesses in a limited
form (for clarification).
3. Discovery (Disclosure) in Criminal Cases (Taillefer & Duguay)
Crown obligations
 Fundamental concept that the Crown has an ongoing obligation to disclose to the defence all relevant
information within the control of Crown that is not privileged (Stinchcombe), and whether inculpatory or
exculpatory (Taillefer)
 Disclosure should be timely so defence can prepare and to avoid remedies
Defence obligations
 Defence has no corresponding obligation to disclose, except:
1. alibi evidence
2. expert evidence
 Duty to request further disclosure if it is needed – (defence counsel diligence is a factor in mistrial
determination)
Remedies for lack of disclosure
1. Adjournment;
2. Inadmissibility of evidence, and
3. Mistrial - in rare cases where there is some hint of malice or bad faith of Crown
Civil Sphere
 the duty is equal and reciprocal (because no one sided state apparatus problem)
B. PROBATIVE VALUE, PREJUDICIAL EFFECT, AND ADMISSIBILITY
(Arp; Seaboyer; B(F.F.); Penney)
PROBATIVE VALUE
 probative value = material + relevant
 To have probative value the evidence must simply tend to increase or diminish the probability of the existence
of a fact in issue (Arp)
 A fact in issue is something material, is it something the trier of fact has to determine
 the degree of probative value – will be important for the balancing; factors to assess the degree of probative
value are:
(1) the proximity of the evidence to the timing of the offence;
(2) the clarity of the evidence;
(3) the general nexus between the evidence and the fact in issue
PREJUDICIAL EFFECT
 A risk to inflame and perhaps act in an irrational way towards one of the parties – not that it might just hurt
the case of one side or the other
 Evidence that could be misused, cause a trier of fact to prejudge and make a decision on an irrational basis
Threshold for P/P balance - Seaboyer
 When does the P/P balance tip in favour of inadmissibility?
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 Threshold for Crown if the prejudicial value outweighs the probative value by the smallest amount then the
evidence will not be admissible
 Threshold for Defence – “Seyboyer Standard” Prejudicial value must substantially outweigh the probative
value in order to result in the evidence being inadmissible
 PURPOSE This is not as strict a test for getting information in as C is subjected to bc want to guard
against wrongful convictions.
Weight and Limiting Instructions - B(FF)
 Once evidence admitted, the next step is
(1) the weight that the evidence should be given AND
(2) the limit that the evidence can be used for.
 MUST warn the jury about the prejudicial effect and tell them why the evidence is being admitted. Need to
tell jury:
(1) Why getting evidence
(2) Warn against using it for prejudicial reasons e.g. prior bad acts.
C. TYPES OF EVIDENCE
1. Direct / Circumstantial
(Dhillon; Robert; Baltrusaitis)
 Direct evidence evidence which if accepted by the trier, the trier does not need to draw any further inference
from it in order to make use of it; the evidence speaks for itself (ie eyewitness evidence ) (Dhillon)
 Indirect or circumstantial evidence that you need to draw an inference from in order to make use of it
 nothing wrong with circumstantial evidence; it can be very strong; on the flip side you can have lousy
direct evidence (Dhillon)
Classic difference between the two are their respective potentials for error (Dhillon)
 Direct: two basic sources of error:
(1) witness mistake AND
(2) witness dishonesty
 Circumstantial: three basic sources of error:
(1) witness mistake
(2) witness dishonesty AND
(3) inference is not the right one
 there can be multiple interpretations and inferences made from any circumstance
 once we accept the evidence, we have to ask if there is another reasonable inference that can be drawn
(if so, must acquit)
“the Miller error”
 A common instruction to the jury was to consider evidence which it accepted or believed, and to reject and
not consider that which it did not
 problem: an accused is entitled to be acquitted on evidence that is not believed or accepted evidence might not
be believed or accepted, BUT could be sufficient to raise a reasonable doubt; AND questions if you should
even give this instruction as to the Crown’s evidence (Robert)
 The Miller error- gives the impression that you can only acquit on evidence you accept or believe; it is an
error of law as it requires the Defence to prove something - accused does not have to prove anything, just
raise a reasonable doubt (Robert)
 The circumstantial evidence from which the Crown would ask the jury to draw inferences must be proven
facts (Robert); but this proven facts instruction does not apply to the D
 accused does not have to prove anything, just raise a reasonable doubt
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2. Real / Demonstrative
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evidence that provides a first hand impression to the trier of fact
real in that it can be directly inspected by the trier of fact
Objects NOT witnesses (ie weapons, video and photos)
Video and Photos
 SCC said that real/demonstrative evidence is generally helpfully and very probative (Nikolovski)
 Can be powerful because this type of evidence seems neutral
 Danger with video or photos is that they can be highly inflammatory as it may be so graphic to make the
jury act in an inappropriate way – there is an inherent prejudicial impact so you must have a legitimate reason
why you are putting this information before the jury - Need to show that it demonstrates something that
something less graphic could not show (Kinkead)
 The factors which are considered in assessing the admissibility of videotapes are generally said to be the same
as those for photographs: (1) accuracy in truly representing the facts (2) their fairness and absence of any
intention to mislead (3) there verification on oath by a person capable of doing so (Penny)
(a) Videotapes (Penney)
The factors which are considered in assessing the admissibility of videotapes are:
(1) accuracy in truly representing the facts;
(2) their fairness and absence of any intention to mislead;
(3) there verification on oath by a person capable of doing so
 TWO STEP process to admit video evidence
1. authenticate explain the basic proves by which the evidence came into existence; methods:
a. Call the person who made the video or photo and have them testify as to how it came into
existence
b. Call a witness who was at the scene of events and who is willing to testify that it is an accurate
description of what happened.
c. Call a technician who set up the camera and/or who can testify as to the process of the camera.
2. establish a basic level of fairness
 basic P/P test again
a. for what purpose is the evidence being led? Counsel should set this out for the judge; depending
on the purpose of the test, the fact that it was edited may not be that important (ie if the only
reason for showing the tape is for identity)
b. show that it accurately represents what happened
 potential problems:
 intermittent / gaps in recording;
 selective editing;
 format changing
 Can weight issue if the problems are not too bad or an admissibility issue if lots of potential
problems
 Could argue compounding error
 Penny is an example of where compounding problems with authenticity of a video caused it
to be properly excluded
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(b) Photographs (Kinkead)
See above
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3. Documents
(a) Authentication
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Must authenticate: provide basis for the document of when, where, and how it was created: need to show its
basic history and how it came into existence (Lowe)
Can attach documents as admission if there is no debate among counsel, but if there is disagreement –
ONUS is on the person leading the evidence to provide evidence of its authenticity
Operation: how to authenticate
1. Have the person who authored the document testify.
2. Have someone who was present (e.g. board meeting) but didn’t author the document vouch that the
document is an accurate representation
3. Show that you found it in possession of X. Such as A or witness. This can be helpful depending on your
purpose of bringing in the evidence.
(b) Best Evidence Rule (Garton v. Hunder)
 RULE: the most original form of the real evidence is the best evidence and that is what should be put before
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the trier of fact (ie the original tape of the phone call; the original journal; etc)
This rule is outdated and applied flexibly with the relative reliability of modern technologies
Operation of Rule:
1. if you have the original use it (mark it, and make copies)
2. if you have to use a copy – authenticate it
3. if destruction of the original – if accidental – probably can use copy; if there is an allegation of some
substance that the document want purposefully destroyed there may be problems with admissibility and /
or weight and you would go back to the P/P balance (Garton v. Hunder)
D. JUDICIAL NOTICE
Olson
 a Judge may take judicial notice of a fact that is so obvious as to make it unnecessary to call evidence on that
point
 TEST is strict: a court may properly take judicial notice of facts that are either so notorious or
generally accepted as not to be the subject of debate among reasonable persons
Danson
 Even larger propositions such as the independence of the bar may need evidence adduced to support it
 (constitutional challenge - lawyers paying costs out of own pocket)
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Chapter 2: Extrinsic Misconduct Evidence
A. BAD CHARACTER OF THE ACCUSED
1. General Admissibility (Caudra)
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Extrinsic misconduct evidence or uncharged bad acts: misconduct of the accuse or a party that is outside
of the subject matter of the proceeding (ie bringing in a criminal record)
(Handy) (1) identified as a type of evidence which can lead to serious miscarriages of justice and (2)
questions the ability of juries to follow limiting instructions
FOUR ways extrinsic misconduct evidence may be prejudicial:
(1) propensity reasoning
(2) punish for previous bad act
(3) distraction
(4) may lower standard of proof
Risk of prejudice may be higher if the similar fact acts are morally repugnant
In a trial with judge alone rather than a jury trial, it will be more difficult to have similar fact evidence
excluded because it is assumed that judges can overcome prejudice
 Extrinsic bad character evidence is presumptively inadmissible (Handy)
 ONUS is on the prosecution to satisfy the TJ on the balance of probabilities that in the circumstances of the
particular case the probative value outweighs the prejudicial effect (Handy)
 A “strict test” for admissibility: evidence that does no more than to prove the general propensity of the
accused will not gain admission, for it will invariable have greater potential prejudicial effect than probative
value (Arp)
Caudra
 TEST for determining if bad character evidence can be admitted:
(1) Is it relevant to a material issue beyond general bad character? (credibility?)
(2) Does the probative value outweigh the prejudicial effect?
 If yes to both then admitted.
 Judge still needs to warn the jury of about what the evidence can and cannot be used for.
2. EXCEPTION: Similar Fact Evidence (Handy White; Peavoy; B(S.C.) )
Handy
 similar fact evidence is admissible if it shows a distinct and particular propensity to act in a specific
way under specific circumstances (as opposed to a general propensity to do bad things).
 Exception made because of a high level of similarity between the two or more specific acts
 Similar fact evidence does not need to go to some other point in order to be admitted.
 At some point there is such a high degree of similarities that the evidence’s probative value overcomes its
prejudicial effect. Thus the probative value is based on the level of similarities
 Similar fact evidence is based on the idea of “An improbability of coincidence”
 FACTORS to look at when comparing to see if the evidence meets the similar fact standard
1. proximity in time: closer in time, the more compelling
2. similar in detail: the conduct itself
3. number of similar acts: can make up for lack exactness; will add to the overcoming of improbability
4. circumstances and context around the acts: the most powerful similarities can be the context around the
act (ie target vulnerable people)
5. strength of reliability of the similar fact evidence:
6. amount of time it would take to adduce the similar fact evidence: if it would take an inordinate amount of
time, the prejudicial side goes way up
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Once similar fact evidence must be accompanied by limiting instructions
Do not have to have been charged or convicted of other act, but it cannot be brought in if tried and acquitted
Often a ruling can make or break your case because once a jury sees evidence of a pattern of conduct they are
much more likely to convict.
Similar Fact Evidence going to IDENTITY
 TEST is whether there is such a high degree of similarity between the acts that it is objectively improbable
that crimes where convicted by more than one person (Handy)
Similar Fact Evidence and the issue of COLLUSION
 TEST Where there is a chance that similar accusations against the accused could be the product of collusion,
that is an issue of weight; if there is an air of reality to the accusation of collusion then the issue is one of
admissibility, and the Crown must show on the balance of probabilities that there was no collusion before the
similar fact evidence can be admitted ()
Post Offence Conduct
White
 Changed the term “consciousness of guilt” label to the more neutral “post offence conduct” which is
indicative of the fact that multiple inferences can be drawn from the evidence.
 POC is just another piece of circumstantial evidence and goes not require special evidence rules
(1) In what circumstances can this evidence be led?
 For the issue of identity and of the evidence can lead to two competing inferences, then generally the
probative value will outweigh the prejudicial value and you lead it. (only one possible inference and that is of
not guilty then usually too prejudicial)
 Important that judge gives limiting instructions to the jury re application of POC and not to jump to
conclusion
(2) What is the standard that we consider this evidence on?
 The usual – treat as one piece of evidence that contributes to overall assessment of BYRD - BYRD standard
is not applied to individual pieces of evidence: you look at the evidence as a whole to see if it collectively
proves each element of the offence beyond a reasonable doubt (Morin)
Peavoy
(3) Can this go to level of culpability, not just identity?
 should only be used for identity and not level of culpability, but can be used if the accused has admitted the
elements of the offence and is arguing they are not culpable based on a defence then POC can be introduced
(ie self-defence, accident, NCRD) because that is not dealing with gradations of guilty but instead gulty or not
guilty.
 POC can also be admissible for determining mens rea (i.e. purposeful acts after an offence rebuts intoxication
defence as it shows a functioning state of mind)
 Depending on the purpose of the POC, the prob vs prej. balance will be different.
 Reinforces need to instruction jury on the purpose for which POC can be used.
B(S.C.)
(4) Can you lead it to show “Consciousness of Innocence”?
 RULE where there is POC from which one could reasonably inferred that the person is not guilty then the
evidence has probative value and should be admitted unless there is a substantial degree of prejudicial effect.
 The court says we have to go back to basic principles (Seaboyer - lower standard for D)
 Like consciousness of guilty evidence, consciousness of innocence evidence with multiple reasonable
inferences should be left to the trier of fact
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B. BAD CHARACTER OF THE WITNESS
 On a cross examination you can attempt to undermine a witnesses’:
(1) reliability
 associated not with honesty or trustworthiness but the accuracy of their evidence due to certain objective
circumstances (ie eyewitness saw quickly; was scared; was dark, etc)
(2) credibility
 Questioning the trustworthiness of the witness; witness may be lying, exaggerating, minimizing
 Common areas which give rise to an issue of credibility: inconsistent statements; interested in the judgment
(association, financial, related); other motivation; Questionable logic in their story; Demeanor on the stand;
or . . .
 Prior bad acts of witnesses: ie dishonesty related prior criminal offence (fraud; obstruction) – would this be a
relevant factor in assessing the witnesses’ credibility; may be a factor to consider how much weight or
emphasis should be put on that witnesses evidence
1. Prior Convictions (Canada Evidence Act s. 12; Corbett)
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Canada Evidence Act 12 (1) a witness may be questioned as to whether they have been convicted of any
offence
 recognizes the link between prior record and credibility
 because of the prohibition of general bad character evidence, s. 12 has been interpreted as requiring some
other permissible reason for brining in the evidence: prior record must go to a relevant issue,
 assessing the credibility of the witness is a relevant issue (Corbett)
Corbett
 However, SCC read in to s. 12 judges have a discretion not to allow in prior convictions when the prejudicial
effect outweighs the probative value (ie back to P/P)
 FACTORS used to determine which convictions should be brought in:
(1) if the prior offense has an element of dishonesty (fraud, obstruction, etc): more probative
(2) Temporal proximity: more recent convictions are more likely to have probative value; vice versa
(3) Nature of the crime: if previous crime and current crime are very similar then could be more prejudicial.
 When the witness is the accused: when you are just brining it for credibility you bring in the fact of the
conviction not the details of it unless you made a similar fact application or the accused opens the door to
talking about the offence
 Crown witness: a greater discretion to get into the details of those previous convictions and to explore the
convictions in more detail (Titan; Cullis)
2. Other Discreditable Conduct (Cullen; Titus)
 There is more freedom to introduce general discreditable acts for which witness has not been convicted when
the witness is non-accused than when witness is the accused (ie welfare fraud) (Titan; Cullis)
3. The Vetrovek Witness (Vetrovec; Kehler; Sauve; Dhillon)
 A Vetrovec witness is a Crown witness that has inherent, profound or serious reliability or credibility
concerns that go beyond regular like problems; a witness that has a demonstrated moral lack
 Recognized categories: jailhouse informant; witness that has lied under oath during this or another
proceeding; witness who has given multiple inconsistent statements; witness who is an accomplice and is now
getting a deal; witness getting a benefit for testifying (money; jailhouse privileges; plea bargain)
 These types of witnesses have been linked to wrongful convictions
 TEST for Vetrovek catagorization: (Sauve)
(1) degree of problems with their inherent trustworthiness
 some factors to consider:
a. Have they been involved in criminal activity?
b. Do they have an unexplained delay in coming forward with evidence?
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c. Did they lie to authorities?
d. Has witness sought a benefit for testimony?
e. Series of inconsistent statements?
 Can be one thing or a compilation of many – lying under oath probably good enough; jailhouse
informant
(2) their importance to the Crown’s case
 The more important the witness is to the Crown case, the less problems it would take to invoke the
caution; where the witness is less important – it would take much more credibility problems to invoke
the Vetrovek caution
Vetrovec evidence requires mandatory special instructions from the judge:
FOUR POINTS IN A VETROVEC CAUTION (Sauve)
(1) must separate out the witnesses from the other evidence: testimony requires special scrutiny
(2) identify the characteristics of the witness which bring the credibility into serious question
(3) caution the jury that although the jury is entitled to relied on the witnesses unconfirmed evidence, it is
dangerous to do so (unlike UK doctrine)
(4) Caution the jury to look for other independent evidence that tends to confirm other material testimony of
the Vetrovec witness
 What is Corroborating Evidence?
 Must be independent of the Vetrovec evidence and cannot confirm merely peripheral parts of the
evidence: mere marginal support for the witnesses evidence is not sufficient (Dhillon)
 however corroborating evidence does not have to confirm all aspect of the evidence, rather it is okay
if it goes only to some parts of their evidence (Vetrovec; Kheler)
 corroborating evidence does not need to implicate the accused - its purpose is only to credibility to
evidence of the Vetrovec witness in general (Vetrovec; Kheler)
 Judge sometimes will then review some corroborating evidence that might be considered to give
guidance on what types of evidence to look for (Dhillon)
 Main approach: look at the confirmatory evidence to decide if it restores your faith in the Vetrovec’s
evidence – this leads back to a balance: the more serious the Vetrovec, the more confirmatory
evidence will be needed to restore faith (Vetrovec; Kheler)
Criteria for Corroborating Evidence taken from Vetrovec, Kheller & Sauve cases
(1) Corroborating evidence has to confirm some material/relevant aspect of the witness’ evidence.
(2) Does corroborating evidence supports a rational/reasonable belief that the Vetrovec witness is telling the
truth.
(3) Corroborating evidence must be independent
(4) Vetrovec witnesses are on a continuum re their credibility, the deeper the problems of credibility with a
vetrovec witness the better quality & maybe larger quantity of corroborating evidence is needed
(5) Trier of fact must determine if they believe the Vetrovec witness’ testimony with corroborating evidence.
Still need to exercise a degree of caution with the Vetrovec witness’ evidence.
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Four Points re: caution from Sauve plus above 5 points.
4. Other Dangerous Evidence – Eye Witness Identification (Hibbert)
 can be very powerful: often comes from independent parties
 very problematic not from a credibility standpoint, but from a reliability standpoint: mistake / transposition
are common, and there have been many instances of eyewitness error leading to wrongful convictions
 indicia it may be more reliable: if witness knows accused; view; proximity; time
 jury charge
(1) may, but is not required like Vetrovec to tell jury to look for other evidence to corroborate
(2) SCC has stated that In eyewitness identifications the judge must clearly set out the Risk of mistake
(Hibbert)
(3) Where there has been potential tainting – the jury may get to hear it, but it is to be given very little weight.
(Hibbert)
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Chapter 3: Opinion
A. COMMON KNOWLEDGE / LAY OPINION
1. The General Rule (Graat)
Graat
 RULE: A witness to crime/incident can provide an opinion regarding something that is within common
knowledge/average persons common experience/doesn’t require expert qualifications.
 Based on the P/P balance, there are limits on allowing first-hand non-experts to be give opinion evidence.
 FACTORS Lay opinion evidence may/will not be permitted:
(1) If there is a question whether the witness is drawing a logical inference from the facts
(2) If the facts upon which the opinion is based are too speculative
(3) When having a witness provide an opinion that is phrased as legal conclusion. Want to be careful about
having too much invasion into the role of the trier of fact. Opinions are to assist trier of fact to assess not
to provide a conclusion and tell trier of fact what they should concluded. (e.g. witness can provide
opinion that “A seemed intoxicated” but can’t say “A was too intoxicated to drive”) These legally
conclusive statements are prejudicial
(4) If the lay witness is trying to give evidence that goes beyond common knowledge into expert evidence
(e.g. lay witness can’t say “X fell down and was having a heartattack)
 Remember weight Just because a witness can give an opinion there may be very significant issues to weight.
Is the lay witness really qualified to draw this inference even if common knowledge (e.g. maybe they
personally have less experience in this area e.g. intoxication)? Does the lay witness have a certain background
that would lead them to certain conclusion?
B. EXPERT EVIDENCE
STATUTORY CONSIDERATIONS
 Section 7 of the Canada Evidence Act puts limits on how many experts you can call on a certain issue. Need
permission to call additional expert witnesses.
 657 of CCC –Puts disclosure requirement of the defence for expert evidence – this is a statutory exception to
the rule that defence do NOT have to disclose.
 657 (1) permits application to have expert evidence to be entered by way of a report. (keep costs down; good
if expert evidence that will be easily accepted by the court)
 657(2): must give 30 days notice to the other party that you are going to call an expert. D has to provide an
outline of the evidence to the C 30 days in advance and the expert report before trial, the Crown has to hand
over expert report 30 days in advance.
1. The General Rule (Mohan)
Mohan
 Basically the P/P test, with particular features for opinion evidence
 FIVE STEPS
(1) Is the evidence that the expert would provide relevant to a material issue?
(2) Will the evidence assist the trier of fact in drawing an inference relative to the case?
 If expert evidence that goes to a relevant area is either too conclusive or too complicated have to question
if evidence will really help the trier of fact.
 Will the evidence overwhelm the jury or be too directive in telling the jury what to conclude?
(3) is it necessary to assist the trier of fact: does the trier of fact require assistance in this area (ie DNA or
technical scientific evidence that is not part of people’s common knowledge) (sometimes you cannot make an
argument without expert opinion evidence – like psychological diseases, etc)
(4) is it a qualified expert? Not usually controversial for admissibility, but will often become a weight issue – ie
better or worse – leading expert or just a run of the mill expert – usually cross for bias (ie always on one side
or paid a ton) or weight
(5) the absence of ay other exclusionary rule or something about this expert evidence that means it has limited
probative value and high prejudicial effect
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 Major concern with expert evidence: that the expert not usurp the role of the jury
 there are some circumstances where you cannot get around the expert commenting and providing a direct
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opinion (ie insanity defence); however, the court will prefer if the evidence is presented in a way which is less
TWO ways to do that
(1) using hypotheticals (posing those) and
(2) avoid having the expert go to the ultimate issue in the case
 ie ask for general factors that indicate whatever you are trying to show (ie what factors make it more
likely for an organization to be a cult, what makes it more)
2. The Hypothetical Question (Bleta)
 If counsel asks the expert to give opinions re the specifics of the case this may be a sign that the expert
opinion evidence may be crossing over into taking the decision away from the trier of fact.
 If expert evidence is led as facts of case, the court will be particularly tough in terms of admissibility of
probative v prejudicial test
 TWO situations in which counsel does not have to use a hypothetical question:
(1) If the evidence is not in dispute (e.g. evidence not in dispute re the consumption of alcohol and drugs.
Can directly ask the expert if a person of this weight and height would be intoxicates).
(2) If the expert has dealt directly with the accused (e.g. expert interviewed A and is giving evidence re the
state of mind of the A). (Bleta)
3. Ultimate Issue
 closer the opinion goes to ultimate issue – the stricter the test for admissibility (Mohan)
 There is no absolute rule that counsel can’t ask the expert to give an opinion on the ultimate issue in the case
(e.g. was a A too drunk to drive), but this will result in the court being particularly tough in terms of
admissibility of probative / prejudicial test (Bryan)
C. PARTICULAR MATTERS
1. Credibility of a Victim
R v. Llorenz
 Expert psychiatrist testifying re: sexual abuse victim; testimony re: 24 step questionnaire found to be oathhelping and going to ultimate issue
 Court said that credibility of the victim will absolutely not be subject to the opinion evidence
 The rule against oath helping prohibits the admission of evidence adduced solely for the purpose of proving
that a witness is truthful. The rule applies to evidence that would tend to prove the truthfulness of the witness
rather than the truth of the witnesses’ statements
 Law on expert evidence has allowed flexibility on the concept of ultimate issue, but not on the issue of
credibility
 Evidence may come in which effects credibility but may have another purpose: the other purpose is to
 you cannot lead expert evidence which directly engages the issue of credibility but you can lead expert
evidence which could indirectly influence the trier of facts inference of credibility
 evidence may still be admitted if, in addition to being oath-helping it has some other legitimate purpose
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2. The Basis and Weight of Expert Opinion
 Even if the expert is world-class, their testimony must still relate to the case, and it is the trier of fact’s role to
decide if the case at bar has similar circumstances, and, thus, if the expert ideas have any foundation
 SEQUENCE:
 Zero evidence brought to show foundation = issue of admissibility and expert opinion will not be
admissible (Abbey)
 Where there is SOME foundation with SOME evidence missing re basis on expert opinion = issue of
weight. (Wilband; Lavallee) This holds even if there are some fairly significant foundation issues.
(Lavallee)
3. Novel Scientific Evidence
R. v. L(J.L.)
 Here, new behavioral profiling procedure at issue; fails some of the basic reliability criteria and other Mohan:
this was evidence which went to ultimate issue
 Reinforces Mohan re: basic reliability and ultimate issue concerns (ie stricter threshold re: ultimate issue)
 Case sends a general message that need to tighten up admissibility standard for all expert evidence.
 The expert is in court to assist, not to tell trier of fact what to do: role is to present data which the trier of fact
uses to draw inferences
 critical statement from the court: trial judge should take seriously its gatekeeper role
 Proliferation of expert evidence and concerns re: junk science and preserving the role of the trier of fact
 TEST: new forms of science must be regarded with special scrutiny, the question is whether the science
sufficiently reliable to put before the court – FACTORS:
(1) Has the technique been tested, or can it be;
(2) has the theory or technique been subject to peer review;
(3) is the error rate known;
(4) generally accepted in the scientific community (US test imported, SCC says factor to examine)
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Chapter 4: Competence and Compellability of Witnesses
Basic ability to be courtroom witnesses
 If the issue is known before trial it should be brought before trial
 Except for limited exceptions, everyone is considered competent and compellable as testifying is a basic
public duty and usually necessary to facilitate the search for the truth
 TWO concepts, each construed broadly
(5) competency is the witness competent to testify: age; mental capacity; specific circumstances (ie spouse of
the accused); status as an accused person themselves
 where there are issues of competency – prevented from providing courtroom testimony
(6) compellability can they be compelled or forced to testify on the stand
Charter Exception
 accused person in a criminal trial pursuant to s. 7 and 11(c) of the Charter is competent but not compellable
 cannot draw an adverse inference from A’s choice not to testify (Noble)
(1) Competency
 at common law: to be competent to testify you must be under oath: general requirement that the person feel
morally bond to tell the truth through oath or affirmation
 CEA s. 14 (1) swear on Bible OR (2) can affirm - Both are given the same weight.
 TWO REQUIREMENTS of the witness:
(1) to understand the concept and moral weight of the oath or affirmation AND
(2) to be able to communicate their testimony in court
 The burden is on the party challenging the competency of the witness (CEA over 14 s. 16(5) and child
16.1(4))
 Very young people, and mentally challenged people are the two traditional categories of people with whom
competency becomes an issue
 There once was a similar threshold for young people and mentally challenged people, BUT NOW there are
now markedly different standards now: it is now difficult to challenge the competency of children as
compared to mentally challenged adults
Over 14 - mentally challenged
 CEA s. 16
(1) if capacity challenged . . . the court shall conduct an inquiry to determine . . .
 court is obliged if competency challenged – low threshold for getting a hearing
(a) whether the person understands the nature of an oath or affirmation
(b) is able to communicate their testimony
(2) if yes, can testify
(3) if do not understand oath – can testify on a promise to tell the truth
(4) do not understand oath + cannot communicate = cannot testify
(5) burden on person challenging
Under 14 – children
 CEA s. 16.1
(1) statutory presumption of capacity
(2) shall not take oath or affirmation
(3) evidence shall be received if they are able to understand and respond to questions
(4) burden is on party challenging competency to satisfy court there is an issue: re understanding and
responding
(5) if the court is satisfied there is an issue shall conduct inquiry
(6) shall make promise to tell the truth
(7) no questions can be asked re: understanding of promise to tell the truth
(8) Evidence given on a promise to tell the truth has same weight as evidence under oath
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Chapter 5: Examination of Witnesses
A. EXCLUSION OF WITNESSES
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Very strong presumption that a witness will testify, using name, in open court and on the public record
Basic policy:
(1) Legitimacy of justice system: hearings without scrutiny may be perceived as less accountable; as a vital
institution in our society, court must be seen to be open and transparent
(2) Full Answer and Defence: again, right to hear case made against you as an accused
(3) To Facilitate Truthful testimony: if witness is lying, someone may hear about it and bring forth the truth;
also, thought easier to lie when not in court
Must be balanced with: protection of vulnerable witnesses (young; at risk for testifying against criminal
organization), because without some protection the witness may not give full testimony
486 CCC – in order to protect a witness, the following things can be done:
(1) Screening witness cannot see A, but A can see witness
(2) separate room with video camera
(3) Publication ban
(4) Closed/Cleared courtroom No audience. Just witness. A and A’s lawyer.
 The standard for using a protection device is where it is necessary to obtain a full and candid account; it
is not enough that the witness is uncomfortable (R. v. M(P))
B. ORDER OF WITNESSES; IN CONTEXT OF EXCLUSION
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Can have strategic impact and potential evidentiary issues
Like in similar fact evidence, the evidence may be undermined if it is shown that the witnesses have talked.
A witness may be subconsciously or consciously influenced by the testimony of other witnesses.
This problem also holds for the order of calling witnesses, witness hearing other witnesses testimony in court
Very standard preliminary order is the exclusion of witnesses
However, the accused allowed to be in the courtroom the entire time, even if testifying because of his/her
right to make full answer and defence: must hear the cast against them
R. v. Smuk
 Crown argued that it was unfair that the A’s alibi witnesses testified before the A as A could tailor his
evidence: the wanted the A to testify first with the other’s excluded
 NO people are entitled to run their own defence; however, a judge may have discretion to place less weight on
the accused’s evidence if they go last – so issue of weight, not able to control
C. DIRECT EXAMINATION
(1) Leading Questions
 General rule: cannot ask leading questions on direct examination, but leading questions are allowed on crossexamination
 Exceptions
(1) introductory, non-controversial matters: to get them to the part in the story they have evidence on
(2) some witnesses may need more assistance: if they can basically communicate, they may still have trouble;
be very careful when you get to the heart of the testimony, but discretion to get them to the key portion
(3) asking to respond to very specific piece of evidence: you can put before a witness the specific evidence
which you are asking them to answer (ie documents; testimony of another witness)
(4) a witness who seems to be forgetting a key piece of their evidence: may ask to focus the witness to be
sure they do not overlook
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(2) Refreshing a witness’ memory
 a very common area of evidence: this problem will come up it litigation because trials can take place often
years after the relevant events
 where witness cannot remember on stand, but there is some kind of documentary evidence about what they
said ie contemporaneous notes they took; or evidence given in a preliminary hearing or a civil discovery
 your own witness who has some degree of memory problem and you think that you have a better piece of
evidence in your hands – something they said before which gives the picture more truthfully
 this give rises to two concepts: (1) present memory revived; (2) past memory recorded – these are
extraordinary procedures, so the processes must be followed in a careful manner because easy to taint witness
or process; courts will, in certain circumstances, condense these procedures (ie police using their notes)
 both of these may effect weight
(1) present memory revived:
 a document / evidence contemporaneous with the event allows witness regain the memory and the witness
actually provides the testimony in court
 seeing a document revives the witness’ memory and they give oral evidence
 the document itself is not the evidence it just assists - the document is not admissible for its truth, although it
will be marked for identification
R v. Shergill
 What type of documents/object can be used to spark a witness’ memory?
 Judge has the discretion to not allow certain things to be put to the witness – particularly someone else’s
opinion about what happened
 What factor’s will be considered by the judge?
(1) Contemporaneousness: and important factor, but not strict necessity that it was created right after and
(2) Author: does not necessarily have to have been created by the witness (ie minutes from a meeting would
probably be okay)–
(3) Mislead / Reliability: Will the document mislead witness into thinking they remember: document must
have some general reliability
 Court sets out the procedural steps for present memory revived, in reality (particularly in Provincial Court, the
procedure will be condensed)
(1) Bring application when jury is removed
(2) Exclude Witness
(3) Identify document and explain what counsel seeks to elicit from witness
(4) Judge must consider if witness’ memory appears to have been exhausted
(5) Judge determines if it is a situation of reviving memory or if it is past recollection recorded
(6) Judge examines document for appropriateness and reliability
(7) Improper purpose test: judge must satisfy herself that there is not an attempt (conscious or not) just to
get that document into evidence; supposed to be a bone fide attempt to revive the witness’ memory
(8) Judicial discretion according to the circumstances and attitude of witness
(9) Recall jury and explain that counsel calling witness as ask to refresh witness’ memory and judge had
granted permission
(10) put the document before the witness and let them read in silence without comment
(11) Take document away; ask non-leading questions
(12) Opposing counsel can examine document and cross-examine witness
(13) Judge may give a limiting instruction to the jury. (re: document not for truth or credibility)
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(2) Past Memory Recorded: (or past recollection recorded); witness has no current memory and the actual
document is entered as evidence capturing the past recollection; substituted for the testimony
 Memory has not been and cannot be revived, but the witness can say under oath that they remember making
the statement and that they were being honest at the time
 This is a common law exception, but there are a few statutory provision which create past recollection routes:
Criminal Code
s.715 where a witness provided testimony at preliminary hearing but is then not available for trial (dead;
insane; really ill; absent from Canada) you can bring in the preliminary hearing testimony in the trial –
unless accused can prove they did not have a full opportunity to cross the witness at the preliminary
hearing (which can happen if D counsel went easy at prelim to set a record to destroy witness at trial)
715.1 and 715.2 an ability for young complainants in sexual assault trial to have a videotape taken soon after
and it can be entered if adopted under oath
R. v. Fliss
 Police officer on stand; Transcript of undercover wire confession found to be inadmissible due to form:
witness never directly asked about if he was trying to be truthful at the time of the creation of the document
 case shows how strict the SCC is applying the criteria for this past relocation evidence.
 TEST re: past recollection recorded - FOUR requirements to get something in under the past recollection
recorded rule
 these are to be approached strictly because:
(a) witness was not under oath will making statement;
(b) witness cannot remember contents;
(c) it is being tendered for the truth of its contents; and
(d) cross examination is virtually impossible
TEST
(1) reliable: the past recollection must have been recorded in some reliable way:
 due to strict nature of the test, a high degree of reliability is required
 ie established process for keeping records (ie business minutes or something); audio or video tape of the
witness saying the memory; a written statement of the memory around the time of the event
 this is connected to number 2
(2) fresh & vivid: at the time this reliable recording is made, the events were fresh and vivid in the mind of the
witness
 contemporanety requirement not needed for present memory revived: made in close proximity to the
events in issue
 contemporanety must be looked at in context; this requirement is not always just about time but is also
about potential for influence and tainting in the time lapsed. (here details of kidnapping still fresh after 16
hours) (R. v. (R.))
(3) present voucher to accuracy witness is able to testify, under oath at the trial that they were attempting to be
truthful and accurate at the time the recollection was recorded:
 mechanism to carry the trial oath over to the document
 mandatory to have the witness be able to testify under oath that when they made the statement they were
trying to be truthful; this cannot be inferred – the witness must be able to clearly say under oath that they
were trying to be truthful or the evidence cannot come in
 if the witness actually wrote of the statement that is strong evidence trying to be truthful; if someone else
wrote it but the witness remembers having read it over and approved it or even signed it that is evidence
of truthfulness
(4) original record (best evidence) should be used if available
 related to the best evidence rule: same considerations
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D. CROSS EXAMINATION
Of Fundamental Importance
 A fundamental pillar of the search for the truth: important at common law and protected by the Charter
 Wigmore: “the greatest legal engine for discovery of the truth”
 Charter right per s. 7: principles of fundamental justice include a broad right to cross examine
 A limitation on cross will engage the Charter
 The fundamental means for testing the two fundamental challenges to evidence: credibility and reliability
Basic Concepts
 The right to cross examine is construed broadly: POLICY
(1) full answer and defence;
(2) attempt to bring out the truth;
(3) the Charter rights of the accused (right to cross falls under the umbrella of fundamental justice per s. 7 as
an aspect of the right to full answer and defence); and
(4) the more flexible Seaboyer standard, which is often applied in the context of cross-examination
 But there are clear limits: cannot harass a witness (repetitive to the point of futility); the area of inquiry is not
relevant or helpful
 Considerations during cross examination to undermine/test strength of testimony:
(1) Reliability - Even an honest witness may have misperceived a situation
(2) Credibility – bias; motive; prior convictions
(3) Inconsistent Statements: deviation from previous statements clearly goes to credibility and reliability
(4) Evidence of collusion between witnesses: Contact or more
(5) Corroboration: Look for details/facts that corroborate the story
(6) Air of Reality: does story have air of reality?
(7) Accuracy of the recollection: alcohol, tired etc?
(8) prior incident: Based on prior incidents does this story seem plausible? Be cautious re: general bad
character evidence.
The Specific Scenario Issue
 Leading a specific alternative scenario goes beyond testing reliability and credibility
 Risk of prejudice: in having theories without evidentiary foundation advanced; particularly to Crown; even if
you instruct the jury to not consider the question, as questions are not evidence, they may not separate and
could adopt
 The rule prior to Little – you cannot put forward a specific scenario without there already be some
supporting evidence, or you have indicated that you will lead evidence on that point – but putting forth the
scenario you are undertaking to provide some evidentiary foundation
 This created a problem – what if you have some basic evidentiary foundation for a proposition that is not
admissible?
R. v. Lyttle
 Beating for gold chain; D challenges victim ID re: victim had drug debt and to afraid to tell the truth and
exonerate accused
 This line of reasoning would be important to the defence but only had police notes with hearsay from an
unknown informant – not admissible
RATIO
 RULE NOW: do not need evidentiary foundation to advance a theory on cross: as long as counsel has a good
faith basis for the scenario, they can put forward any hypothesis that is honestly advanced on the strength of
reasonable inference, experience or intuition
 STANDARD: “good faith basis” – low threshold, but must be reasonable – an objective element is involved
 cannot put forward a theory that is manifestly tenuous or suspect or be reckless
 SCC strongly reaffirms a broad right to cross examination: right to cross examine must be “jealously
protected and broadly construed” but prejudicial effect must not outweigh probative value
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R. v. Carter (2005)
 The Rule in Browne v. Dunn: if counsel is going to challenge the credibility of a witness by calling
contradictory evidence, the witness must be given the chance to address the contradictory evidence in crossexamination while he or she is in the witness-box.
 POLICY: fundamental proposition that a court of law must treat all persons who come before it in any
capacity fairly; cannot cast doubt without allowing witness chance to respond
 This rule is not absolute
 This case places some limits on the general rule: this is a holistic analysis, rooted in the circumstances of
each case: failure to ask about significant matters upon which you will ultimately attempt to rely will engage
the rule, as distinguished from failures to put details to a witness
 Any instruction that comes about non-confrontation and drawing inferences from that should only be
done in the clearest of cases;
Final notes on cross-examination
 Watch out for the compound Q
 Cannot mislead the witness (ie putting to witness evidence already heard)
 Crown cannot reverse onus through cross: onus on Crown to prove, not on accused to give a good enough
explanation
 Transcript – what does it look like? Is there a good enough verbal record (pointing things out, etc)
E. RE-EXAMINATION
 To be used sparingly
 Party who led witness wants to re-examine following the other party’s cross
 Standards for permitting re-examination:
(1) Only where the cross examination has raised new issues
(2) If the Crown has already brought up an issue on direct examination, it will be tougher for them to reexamine
R v. Moore
 If D has cross-examined on part of a statement, the Crown cannot re-examine on the rest of the statement
 The re-examination has to deal only with something that was brought up at cross.
F. REBUTTAL EVIDENCE

The idea of the crown calling testimony after the D has put forth their case: generally not permitted because a
limit needs to be put on litigation, and the A has a right to know the case against her before presenting hers
 Could apply to re-open Crown’s case, but there is a strong presumption against this
 Stricter rule than re-examination
R. v. Krause
 As general rule the Crown or P cannot split its case: must enter own case and relevant evidence it intends to
rely upon for all issues in the pleading
 However, rebuttal evidence may be permitted where: TEST
(1) issue that could not have been reasonably anticipated or expected
(2) must be an issue that is not collateral: new issue raised must go to the centre of the case and cannot
be purely a credibility issue
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Chapter 6: Statement Evidence
Prior Inconsistent Statements
 Witness provides a statement in court that is inconsistent with a statement given before: classic cross
examination; potential impact on credibility and / or reliability; regular admissibility rule
 What about prior consistent statements?
A. PRIOR CONSISTENT STATMENTS
R. v. Ay
 In Ay jury heard about a prior statement and some of the details about this statement
 the jury were entitled to hear of the fact of the prior complaint as this was part of the narrative: the fact of the
complain was relevant and probative to the narrative; to understanding the chain of events, and if it had been
limited to the narrative it would have been admissible.
 Generally prior consistent statements are inadmissible (Low probative value: repetition does not
necessarily make it true); HOWEVER, a prior consistent statement can be led for (1) its fact, not for
content, AND (2) if a limiting instruction is given
TWO EXCEPTIONS TO GENERAL RULE
(1) fabrication of the current statement alleged counsel as part of its case
 However, this opens doors (ie D in sexual abuse case opens the door to whether or not there was an early
complaint, you can lead evidence that there was a complaint and the details of it)
(2) prior identification
 prior evidence of identification is admissible (R. v. Swanson)
 may be more reliable; may be preferable evidence – closer to offence and not when person is obviously
the accused (Hibbert)
Further notes from Ay
 W.D. Formula for applying reasonable doubt in the context of a case where credibility is central
 THREE PART TEST which is a required instruction to provide to juries where credibility is the central
issue
(1) if you believe the accused: you acquit
(2) even if you do not believe the accused’s evidence but it raises a reasonable doubt: you acquit
(3) unsure who to believe: you acquit
B. THE ADVERSE WITNESS
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If your witness (whom you cannot normally lead) turns on you, changes what they say and even adversely
impacts your case – what can you do?
Practicality is not thrown out the door – you can cross examine your own witness in certain circumstances
Purposes of such a cross can be:
(1) ask them about the difference between current testimony and prior statement and ask for an explanation;
(2) if you have to now deal with adverse evidence –would have to undermine the in-court testimony
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Canada Evidence Act
Section 9(2)
 A section 9(2) issue arises when a witness you are leading appears to have given a previous statement, maybe
recorded in writing or audio/video, that is highly inconsistent with their current testimony on the stand.
 If a section 9(2) application is granted, counsel can have limited cross-examination on this inconsistency
under
 does NOT make the statement admissible - the statement is not being put for its truth
 More limited than 9(1), but may be a stepping stone to 9(1)
Section 9(1)
 A section 9(1) issue arises when a witness you are leading becomes adverse or hostile and seems to be turning
on counsel.
 Where the witness has been declared adverse under s.9(1), counsel can turn to a general cross examination
of the witness
R. v. Milgaard
 Crown witness would not repeat in court prior statement re: David Milgaard told him he stabbed nurse aid
 Judge maintains discretion not to allow this process if he/she believes this is not in the interests of justice
 PROCESS re: declaring witness adverse
(1) advise you are going to make application;
(2) send jury out;
(3) produce recorded statement – may have to authenticate through a witness;
(4) judge discerns inconsistency – should be fairly significant
(5) opposing counsel should be allow to cross re: circumstances of statement in absence of a broader
interest of justice reason not to allow
(6) If judge allows cross examination, it is done in the presence of the jury
 If you go through the 9(2) analysis and the witness does not revert back to original testimony and is
displaying adversity, counsel can make a s.9(1) application.
 Note: There may be cases where counsel skip the s. 9(2) application and go straight to the section 9(1)
application. Section 9(1) does not require the prior statement to be writing so it should be used when there
was an oral statement.
Is a statement inconsistent just because the witness no longer remembers??
McInroy and Rouse v. R
 Where the judge finds there is a legitimate loss of memory, there may not be an inconsistency found and thus
no s. 9(2) granted.
 However, Where the trial judge in the voir dire comes to the conclusion that the lack of memory is feigned or
fake, that is a circumstance where you can find there is an actual conflict in the testimony and calls for cross
examination under 9(2)
Declaring adverse per 9(1)
Wawanesa v. Hanes & R v. Cassibo
 Sets out the four criteria required for a 9(1) application
(1) Court must find that the alleged prior statement was made.
(2) Prior statement was substantially inconsistent with previous testimony
(3) Court has to make a finding that witness is adverse
(4) Court has to determine if a 9(1) cross-examination would be in the interest of justice
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R v. Cassibo
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What does the term adverse mean? 9(1) generally interpreted as you have demonstrated some hostile animus
toward the party calling the witness – you have demonstrated you are adverse to their position they are taking,
you now seem to be supporting the position of the party against whom you were first to testify against
Judge maintains discretion
CONSIDERATIONS for the judge re: declaring adverse per 9(1)
(1) demeanor;
(2) did counsel calling the witness have fair notice of the witnesses change in story
 9(1) is seen by the case law to cover surprises
(3) how radical of a change;
 the more substantial and unexplainable difference, the easier it will be to draw the inferences
necessary to have them declared adverse
(4) any evidence of why this change happened (ie medication, etc)
 no evidence = strong inference that the witness is hostile
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Chapter 7: Hearsay
A. WHAT IS HEARSAY?
 DEFINED: an out of court statement which is admitted for the truth of its contents (Evans)
 Hearsay evidence is presumptively inadmissible (Khelawon) because:
(1) not a statement provided under oath (usually)
(2) lose the perceptive abilities that a trier of fact usually has – no ability to assess the demeanor of the person
making the statement (inflections; body language; tone);
(3) the evidence is not subject to cross examination (often seen as the most serious of the three)
 The rule against hearsay is intended to enhance the accuracy of the court’s findings of fact, not impede its
truth-seeking function (Khelawon)
What have we already done re: prior statements and admissibility for truth of contents
 When out of court statements are admissible they are distinguished according to whether they are admissible
for the facts/narrative and the inferences that can be drawn from this OR for the truth of the contents
 Usually out of court statements cannot be admitted for truth of contents (exceptions ss. 9(1) 9(2) and witness
physically unavailable or incompetent)
B. NON-HEARSAY USES OF OUT OF COURT STATMENTS
(1) Circumstantial Evidence of State of Mind
 using evidence for the fact it was said, rather than for its truth
 out of court statements can be admitted to demonstrate state of mind of declarant (Wysochien; Ratten)
Wysochien
 Hearsay evidence of murder victim calling for her husband after being shot was allowed in to demonstrate the
state of mind of the murder victim; to demonstrate a general non-aversion to her husband
 (ie would be for truth if you wanted to establish that it was true she couldn’t find her husband)
Ratten
 Call of panic and hysteria asking for police before victim shot allowed in for state of mind
 Crown allowed to use the out of court statement to show that this was not an accident
(2) Circumstantial Evidence of Knowledge (Evans)
R v. Evans
 Robbery; accused getaway driver; Crown trying to link accused to car via car sellers of the care who cannot
identify the accused as buying the car, but told them some personal information (ie has a pregnant dog, chain
link fence etc) which matched the accused
 Court says you take the specific facts re the A (in this case: pregnant dog + chain link fence) and generate a
limited class of persons who may have been the purchaser
 As such, the evidence is not being brought in for its truth, but to create a limited class of persons
 The same process could also be used by an accused trying to claim they are not the perpetrator
 Starts to open up hearsay rules beyond categories
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C. EXCEPTIONS TO THE HEARSAY RULE
Mapara
 Framework for balancing the traditional exceptions with the principled approach FOUR PARTS
(a) hearsay is presumptively inadmissible unless it falls under an exception: the traditional exceptions remain
presumptively in place
(b) A traditional exception can be challenged to determine whether it is supported by indicia of necessity and
reliability: the exception can be modified as necessary to bring it into compliance with principled
approach
(c) In “rare cases” evidence falling within an existing exception may be excluded because the indicia of
necessity and reliability are lacking the particular circumstances of the case
(d) 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
 Unless there is good reason to modify an established common law rule, the modern approach to
hearsay should be applied in a manner which preserve and reinforces the integrity of the traditional
rules of evidence (Couture)
TRADITIONAL EXCEPTIONS
1.
2.
3.
4.
5.
6.
7.
8.
Res gestae
Dying declaration
Present statement of future intention
Business Records and Statements in the Course of Business CEA; Wilcox
Declarations Against Interest Underwood
Co-conspirators’ Exception Carter; Marpara
Oral Evidence in the Aboriginal Context Mitchell
Spousal Exception Couture
1. The Dying Declaration
 Must show subjective perception that death is imminent
 Inferences about this subjective perception can be drawn from external circumstances (ie level of injury)
 Can be some time between statement and actual death, as long as at the time of the statement they had a
hopeless expectation of imminent death
 (necessity = not available to testify as they are dead; reliability = thought people will not lie in last moments)
2. res gestae
 a sudden statement intrinsically tied to an event
 a close contemporanety is required
 (reliability = little time for calculated insincerity; no problem of faulty memory as it happens at the same time
as the conduct, and you get a great insight into perception as there is an immediate description of physical
experience)
3. Present Statement of Future Intention
 a present statement of future intent without any circumstances of suspicion
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someone states that they are currently expecting to do something at a certain point, you can believe the truth
of that persons statement that they did indeed follow through (ie I am going to meet Bob at the gas station)
4. Business Records and Statements in the Course of Business
 standardized procedures give certain indicia of reliability which may reach threshold
 the following is applicable to documents in general
 a document is inherently hearsay (created outside of court)
Section 30 of the Canada Evidence Act
 30(1) basic rule: documents can be admitted for the truth of their content “where a record is made in the
usual and ordinary course of business”
 30(2) can draw on document for truth of contents AND to draw inferences from things that are missing from
the document (ie alleged to have bought 4 things but record only shows 3 things bought)
 30(10) limits Records made in course of investigation or inquiry or in giving legal advice do not follow under
this rule
 30(11) statute does not derogate from common law rules, are in addition to them: can use common law or the
statutory rules, depending on the circumstances
expresses common law rule; demonstrates the process of the three approaches
R v. Wilcox
 crab quota; no duty to keep record; kept independently; person does not recall specific numbers; Crown
needed those records admitted for their truth to make their case
 Goes through the three potential avenues for getting document in (1) statutory exception; (2) common law
exception; (3) principled approach
(1) statutory exception
 s. 30 CEA: cannot fit the document into the definition of “ordinary course of business” because the
person made it on their own initiative
(2) common law exception
 7 ELEMENTS:
(1) original entry (can be done through a mechanical process, not person)
(2) made contemporaneously
(3) in the routine (broadly interpreted)
(4) of business (broadly interpreted)
(5) by recorder with personal knowledge of the thing as a result of having done or observed formulated it
(6) who had a duty to make the record (reliability: if it is your duty you would fear censor / dismissal if
you made mistakes)
(7) who had no motive to misrepresent
 fails (no duty to make the record)
(3) principled approach
 necessity because no other means to get at evidence in that might well be probative because witness does
not have independent recollection of the numbers; reliable because middle person used a common method
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5. Declarations Against Interest- Statement Made Against Penal Interest
R v. Underwood
 Murder case; hearsay evidence of a dead third party which made it seem like he was responsible, not the
accused; ultimately admitted
 policy: reliable as people do not usually lie about things that they could go to jail for
 reliability spectrum: the less likely the statements will be used against you (less risk in your statement) the
less the reliability level; vice versa
 THREE criteria
(1) at the time of the declaration it was against the declarant penal interests;
(2) the statement was made in circumstances where the declarant should have known it is against penal
interest; and
(3) the potential for penal consequences was not too remote
 meeting the CL test is good, but not determinative - goes through the principled analysis
 Seyboyer note:. A number of cases have said that there is somewhat greater discretion for D to lead hearsay
evidence; this case emphasizes that C should not oppose hearsay in this situation because it is their job to get
a truth not win; more likely to get evidence in if you are D, but must still meet some threshold
6. Co-conspirator’s Exception
Mapara
 Acts and declarations made in furtherance of the conspiracy are admissible against co-conspirators
 Normal rules is that statements of other persons and their acts are only admissible against the maker or person
engaging in those acts – unless co-conspirators
 Conceptually, co-conspirators are agents for each other – all in an agency type arrangement with a joint goal
 Can apply where not charged with conspiracy; or where others are not charged at all
 Here counsel for A challenges the exception as not being in line with the principled approach
 court upholds the exception – it is a valid CL exception so it is presumptively admissible
 Co-conspirators’ statements have a res gestae quality because of contemporarity with the acts, and are made
in the course of actually trying to get the job of the conspiracy done
Carter
 THREE STEPS for a jury to determine if the co-conspirator’s exception applies
(1) BYRD there was a conspiracy on basis of all the evidence
(2) Likely a member of the conspiracy on the basis of evidence directly admissible against the particular
accused
(3) Acts and declarations were made in furtherance of the conspiracy: acts and statements must be made in
furtherance of the conspiracy to be admissible (not after or not connected, etc)
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7. Oral Evidence in the Aboriginal Context
R v. Mitchell
Challenge to customs because of historic aboriginal trading relationship with American aboriginal nations
BASIC RULE oral histories are admissible as evidence where they are both useful and reasonably
reliable
 usefulness: (1) no other means of obtaining the same evidence (2) provide the aboriginal perspective on
the right claimed
 reliability: the witness’ particular ability to know and testify to orally transmitted traditions may go to
admissibility and weight
 Oral history will in many respects be the best evidence from aboriginal people – this requires a certain degree
of flexibility in adjusting the rules of evidence
 Go back to the core rationales underpinning the rules of evidence – search for truth - fairness
 Rules of evidence are to be applied flexibly, purposively and to facilitate justice, not stand in its way: rigid
application of the traditional rules of evidence may actually injure the search for the truth
 Basic concepts underpinning our law of evidence
(1) the evidence must be useful in the sense of tending to prove a fact relevant to the issues in the case
(2) the evidence must be reasonably reliable
(3) even useful and reasonably reliable evidence may be excluded in the discretion of the TJ if its probative
value is overshadowed but its potential for prejudice
 Van der Peet test for establishing and aboriginal right protected under the Charter s. 35(1)
(1) the existence of the ancestral practice, custom or tradition advanced as supporting the claimed right;
(2) the practice, custom, or tradition was integral to the claimant’s pre-contact society in the sense that it
marked it as distinctive; and
(3) reasonable continuity between pre-contact practice and the contemporary claim


8. Spousal Exception
R. v. Couture
 Accused charged with two killings makes statements to a woman; they later marry; they separate and she
provides police with a statement re: declarations; at time of trial they are back together and validly married;
hearsay which the Crown argues is necessary and reliable; A tension between the two CL rules; not let in – no
real record; no ability to cross; takes the KJB route with reference to spousal rationale
 basic common law rule: a spouse is incompetent to testify against another spouse, except where one spouse
is the alleged victim
 Status is at time of trial
 Hearsay evidence may be admitted under the principled approach if it meets the twin criteria of
necessity and reliability and if its admission would not undermined the spousal incompetency rule or its
rationales
 Underlying rationale of the rule: (1) promote conjugal confidences; (2) protect marital harmony; (3) prevent
indignity
 CEA s. 4 (1) reinforced CL rule no spouse is competent witness against their spouse (3) no spouse is
compellable to disclose communications made during the marriage (4) unless child victim

Saltereo irrevocable separated by still legally married the exception does not apply as there is no marital
harmony to protect

Hawkins spouse testified at a preliminary inquiry which took place before marriage; rule was in effect but in
these circumstances – (a “rare case” - see Mapara) her testimony from the prelim is now necessary as she
cannot be called, and the evidence clearly KJB criteria: She was under oath, clear transcript, and she was
crosses at prelim
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THE PRINCIPLED APPROACH
 the law has come to recognize that the traditional hearsay exceptions were driven by two concepts:
necessity + reliability

BASIC TEST
from KJB before principled approach:
(1) Content of statement ordinarily admissible
(2) Onus on party wanting admission to establish on balance of probabilities
(3) Heightened caution for recanting witness
(4) No strong indication statement was produce of coercion, threats, excessive pressure
Principled approach
(5) Necessity
(6) Reliability
Final discretion
(7) Probative / prejudicial balancing
NECESSITY
 Necessity = necessary to discover the truth; Necessary to enable all relevant and reliable information to be






placed before the court (Khan)
no presumption of necessity and it should not be lightly assumed (Pelletier)
Established on the facts of each case (Parrott)
The witnesses’ in court testimony must be unavailable
Must show more that witness is adverse or disinclined to testify (Pelletier)
reasonable efforts must be undertaken to obtain the direct evidence of a witness (Pelletier)
threshold for excusing vulnerable witness: show a real possibility of psychological trauma (Khan)
R v. Parrott
 with mental fitness, should not jump to quickly to the conclusion that there is necessity: may require voir dire
 because a witness would prefer not to testify or feels intimidated will not meet the requirement necessity and
allow there evidence be admitted in hearsay for
 Necessity is established when something radical has changed
 Necessity is established on the facts of each case
R. v. B (K.G.) “KJB”
 the recanting witness
 If a witness rejects their prior statement and radically changes their testimony at trial this may satisfy the
necessity requirement to bring the prior statement in through hearsay evidence.
 Any argument re: pressure to make the original statement is dealt with in reliability
R. v. Pelletier
 fear or disinclination to testify in court, without more, do not constitute necessity: reasonable efforts
must be undertaken to obtain the direct evidence of a witness
 no presumption of necessity and it should not be lightly assumed
 Crown wanted witness to testify re: substance of conversation with the kingpin (not charged in this
proceeding) who they think ordered the “fake overdose” hit; SCC found inadmissible
 Crown argued calling Kingpin himself would be pointless because he obviously would not admit to what his
said on the phone
 Crown demonstrated that the witness was likely adverse or disinclined but that did not meet the element of
necessity
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RELIABILITY



this is usually the heart of the application
we are looking for indicia of reliability in a certain context
The trial judge acts as a gate-keeper in making the preliminary assessment of the threshold reliability of the
hearsay statement and leaves the ultimate determination of its worth to the fact finder (Khelawon)
Starr -OVERRULED BY Khelewon
 concerned the circumstances in which the statement was made – not the content of the statement
 statement is assessed independently
 not concerned about the declarant’s specific propensity to tell the truth
R. v. Khelawon
 the modern principled approach is built upon the underlying rational of the traditional concerns, not discarded
it (ie not easily admissible)
 lack of cross continues to be, while not determinative, a pre-eminent consideration
 overrules Starr proposition that when looking at threshold admissibility we do not look into the truth of the
statement
 can examine how the statement conflicts with or is in line with extrinsic evidence
 corroborated by real evidence – indicia of reliability
TWO PART ANALYSIS
(1) traditional KGB route – look at three court criteria and sufficient substitutes if those are met, should let
in because the dangers are not there; OR IF NOT MET
(2) inherent trustworthiness even though the circumstances of reliability are not met - does the content carry
with it such strong indications of truth that we think it meets threshold reliability and can go to jury
(developed in Khan)
 show that cross would not have really done anything; would not be fruitful OR, if you are opposing, talk
about lines of cross examination which would have been useful to test the statement
R v. U (F.J)
 example of inherent trustworthiness based on content with strong indications of truth: here the recanting
accused’s prior statement was admitted because it closely matched details of complaint’s account
 May be special cases where the unique circumstances of the statement cause it to be reliable, even in the
absence of the KGB factors
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R. v. B (K.G.) “KGB”
 video statement; warning from police re trouble if lying; in court recanting so can be crossed = admissible
 This is a recanting situation – more stringent analysis
 indicia of reliability are circumstances which are reasonably analogous to the circumstances of in court
statements: (1) courtroom oath; (2) physical presence; (3) contemporaneous cross examination
 can you find sufficient substitutes for these?
 closer to a courtroom setting the more reliable
 Reliability threshold: particular circumstances of the case; (ie R v. U (F.J) where the recanting accused’s
prior statement with none of the three was admitted because it matched details of complaint’s account)
 can have combo of not quite great an make it; can have all three perfect but still have other concerns
 this is a cumulative analysis
 If there are strong substitutes for each of the three criteria it will presumptively meet the test
 Key features and substitutes (best to lesser)
(1) courtroom oath
 spectrum – oath to counter oath
 Best substitution: witness under oath in another setting or where there are known clear consequences
for lying
 Put under promise to tell the truth
 words that point to the seriousness or statement ending up in court
 presence of “anti-oath”: such as “off the record”; fear of retaliation (which can cut both ways)
(2) physical presence
 re: importance of body language and demeanor
 best substitution: full statement in video form
 audiotape
 signed statement, preferably written by person
 police notes / testimony re: statement
(3) contemporaneous cross examination
 cross examine witness in court re: statement
 Remember how key cross is to make full answer and defence – important right which is engaged, but
because it is a cumulative analysis reliability may be met without it


This can be the most serious site of contention re: three
Also – Couture spousal privilege case – preliminary inquiry cross
 KGB also discusses some circumstances where none of the above three would be present because the
declarant is not longer available or never cooperated with police
(1) Consider that the three factors are missing; and also consider:
(2) motive to lie did the person making the original statement have a reason to be lying
(3) proximity of time of statement: longer gap in time = less reliable; closer, contemporaneous = more
reliable
(4) Form of the statement slight incursion into content: the flow of the statement; presence of a high degree
of knowledge; a logical flow of sequence
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Chapter 8: Admissions and Confessions
A. ADMISSIONS
 Two contexts: formal admissions (by parties); informal admissions (out of court statements of a party)
Criminal Code s. 655
1. Formal or Judicial Admissions Castellani
 In civil or criminal both sides can agree that matters are conclusively proved and therefore will not have to be
litigated
 Once you admit a fact you generally cannot take it back, but there is some judicial discretion to overturn
 Why admissions saves time; money; strategy (ie sanitize evidence which would be moving from witness
or pictures)
 Need specific client instructions to make admissions
 Judge cannot order admissions: in the hands of the parties
 No one can be forced to make admissions; and the Crown can still call evidence on a point if the D admits it,
but the Crown thinks the sterile admission is not sufficient to provide all information (Castellani) but if the
Crown insists on calling evidence in a certain form this can effect the P/P balance and weight (Ranger)
 Other remedy for a party who does not reasonably accept admissions? Basically a negotiating tool; Costs
in civil actions
2. Informal or Evidentiary Admissions Streu
 Out of court admissions of a party in the action are presumptively admissible without clearing the principled

hearsay analysis, because of the ability of the party to deal directly with the evidence: one can hardly argue
the KJB factors re themselves (Evans)
This idea is conceptually related to the statement against interest idea of hearsay exception
Streu
 If an informal admission of the accused contained double hearsay (ie relates what a third party said), that third
party statement may be admitted if the accused believed the statement was true; however, weight will be
carefully considered in these circumstances
B. CONFESSIONS


A very specific type of admission by an accused
Often the type of evidence that will make or break the case for either side

Crown considerations in leading a confession
1) Strategically, do I want to lead this evidence?
 Cannot lead a partial confession – entire statement will come in
 There may be evidence harmful to Crown’s case

may allow the D to run a positive defence without the risk of getting on the stand
2) Will all or part be excluded via Charter or CL?
 Can order the statement to be edited
 If confession is likely inadmissible, C needs to instruct the police to continue investigation and get
other admissible evidence.
3) What weight should be accorded to the confession?
 Is the statement reliable?
 Is the declarant credible?
 Is there a reason that A would be boasting?
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1. Probative Value Hunter; Allison
 Generally, something the accused is alleged to have said about themselves is considered to have high
probative value and questionable circumstances which give rise to issues of reliability and credibility go to
weight and not admissibility and will usually be dealt with via instructions - reliability and credibility go to
the jury
 EXCEPTION Court has made an exception for the partial overhear which will be scrutinized for
admissibility on the P/P scale (Ferris) Police officer overhears Ferris saying “I killed David” while talking on the phone w/o context:
inadmissible)
 Because of the power of confessions, when we don’t have a decent context for the statement, it should not be
admissible. (Hunter)
Note: Confessions and the Vetrovec
 some situations may even give rise to special instructions (ie Vetrovec)
 There are a lot of concerns re confessions, such as declarant being a Vetrovec witness, as they often are.
 Some A would argue that instructions re Vetrovec witnesses are not enough to overcome the potential
prejudicial value and thus the confession should not be allowed. This argument has not been very
successful.
 Contrast this with the partial overhear where very honest and reliable testimony of partial statement – not
admissible re: strong reliability argument; BUT here where a hugely unreliable person gives whole story
– not admissibility issue
2. The Voluntariness Rule Oickle
 No custody / arrest requirement
 Common law rule arising from power imbalance between the state and the individual
 Onus is on the Crown to show on voir dire that the statement to a person to authority was, beyond a
reasonable doubt, voluntary or the statement will not be admitted (ie must have evidence of what was said /
done to the accused or the statement will be considered involuntary)
 accused must clearly waive the issue of voluntariness, or the Crown must lead evidence to meet its burden –
in every trial

Balancing two interests
(1) integrity of justice system – police should not act inappropriately and the use of threats and trickery
derogates from the integrity of the justice system
(2) need to control crime: society wants police to find stuff out an solve crimes and make everyone safer
HARRIS
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R v. Oickle
TEST
(1) Was the confession made to a person in authority?
 authority in a legal sense means someone who the accused’s opinion can influence the investigation or
prosecution; confessor believes to be an agent of police or aligned with state authorities (Grandinetti)
 there is a subjective and objective component: accused must reasonably believe (Grandinetti)
(2) Was there (a) threat; (b) inducement; or (c) oppression?
 Cumulative / global analysis: can be one, or a combination
(a) threat
 threatening violence or danger (rare, but compelling)
(b) inducement
 most common
 there is a difference between proper and improper inducements: dividing line is gradated
proper
 moral inducements (appealing to conscience; guilt – you will feel better, etc)
improper
 legal inducements: attaching a legal inducement (conviction / sentencing) to making the
statement
 on own enough to render statement involuntary
(c) oppression
 can be physical: keeping awake; isolation; denial of food
 can be trickery: if it is about big/key things (ie forensic results)
 re: Singh right to silence – to and fro?
 oppression is often used in combination with threats
(3) Did that lead to the confession?
 Causal relationship does not need to be precise (ie not but for), but must have had a clear influence on
a balance of probabilities
3. What Constitutes a Confession Grandinetti
Grandinetti
 Who is in a position of authority for the purposes of voluntariness?
 authority in a legal sense means someone who the accused’s opinion can influence the investigation or
prosecution; confessor believes to be an agent of police or aligned with state authorities
 Generally, if confessor just believed undercover cop was a gang member – no position of authority even here where the undercover cops said they had access to dirty cops who could destroy evidence
 some of these types of confessions could be excluded on the basis of abuse of power – except this is hard
to prove (was rejected at trial and appeal, not heard at SCC)
4. Admissions of Co-Accused Grewall
Grewall
 confessions of an accused are not admissible against co-accuseds
 often co-accused are tried together and a problem arises when one accused makes a confession which not only
details her role, but the roles of her co-accused
 there are huge inherent reliability concerns (ie shift blame to co-accuseds)
 Possible solutions: splitting trial ($$$); editing (if it won’t affect tenor of statement); instructions to only use
for that accused (dangerous)
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Chapter 9: Exclusion of Evidence Under the Charter
 24(2) analysis for exclusion of evidence obtained via a Charter violation
 excluding evidence under 24(2) you are balancing how far you want to suppress the search for the truth

in contrast to other values such integrity of judicial system: must balance the importance of the
information and the severity of the Charter breach
common rights breached:
 10(a) must give arrestee reason for detention and
 10(b) basic duty to give arrestee opportunity to contact counsel
 8 search and seizure: requires reasonable and probable grounds that a person has committed an offence
and evidence will likely be found in that place
R. v. Buhay
 drugs in bus locker
 appellate deference the appellate Courts clearly say will give deference to trial judge’s view on this matter:
regular ideas of TJ deference, plus there is a local law enforcement context to consider (ie trends of
breaches?)
24(2) ANALYSIS
(1) will admission effect fairness of the immediate trial?
 Conscriptive: presumptively does effect; presumptively out because of policy: (a) reliability problems
(statements without telling rights) and (b) right not to incriminate
 non-conscriptive: does not likely effect; presumptively in
(2) seriousness of the breach
 the critical factor; the driving factor
(a) was the breach made in good faith
 did the police subjectively and objectively think they were not breaching the Charter
 good faith, trying to do job properly = less serious
 absence of good faith; cavalier attitude; flagrant breach = more serious
 technical breach = less serious
 substantive breach = more serious
(b) how invasive was the breach
 how serious was the conduct: ie s. 8 expectation of privacy rights – spectrum
 were they just shy of R&P grounds – or search based on pure rumour
 aggression? Manner of conduct?
(3) effect on the administration of justice
 No one factor is determinative –based on the particular facts of the case
 where is the best balance in this case: serving the truth or creating a just criminal justice system
(a) judicial control of investigatory procedures
 24(2) is not a police control provision – but need can be considered
(b) The evidence is essential to the Crown’s case
 More essential = less serious
(c) Seriousness of offence
 More serious charge = less serious breach
(d) circumstances of urgency?
 Urgency = less serious
R. v. Burlingham
 Denigration of lawyer’s advice leads to statement, which in turn leads to finding the murder weapon
(excluded, because but for statement, gun would not have been found at the bottom of the river)
 Derivative evidence: if the accused can show is a logical proximate relationship between the derivative
and original evidence, the derivative evidence is presumptively excluded and the onus is on the Crown
to demonstrate on BOP that the derivative evidence would have otherwise been found
HARRIS
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Chapter 10: Privilege
A. PRIVILEGE AGAINST SELF-INCRIMINATION
1. Privilege of the Accused and the Right to Silence Singh; Turcotte
 Traditionally s. 7 includes that in state custody you are not obliged to talk to the police
 Charter and the common law rule of voluntariness have different ONUS and STANDARD:
 Charter breach – onus on accused to establish on BOP
 Voluntariness – onus on Crown to establish on BYRD
Singh
 18 times during interview before giving damaging admissions re identity A said he did not want to talk; trying
to assert his right to remain silent
 5-4 decision that right to silence via voluntariness not breached
RATIO
s. 7 or voluntariness
 right to silence issues in custody will now be covered by the broad concept of voluntariness: a finding of
voluntariness will be determinative of the s. 7 right to silence issue
 most significant thing in bringing it in to voluntariness could help the accused because of the difference in
onus and standard
 conceptually sound because if the Crown proves voluntary BYRD cannot possibly raise BOP per s. 7 on same
statement; conversely, A raised s. 7 on BOP, Crown cannot prove the opposite BYRD
threshold of refusal
 allow a degree of to and fro; however, at some point will frustrate the rule of voluntariness – and this
threshold will be determined on modified objective standard – objective of person in position of
accused
 this is not a mathematical threshold – the number of times the accused asserts rights is part of the assessment
of all the circumstances but is not, in itself, determinative
 look to the effect that the to and fro is having on the person – breaking under the pressure? Or a degree of
emotional breakdown?
 can add the to and froing concept to cumulative mix re voluntariness
Balancing individual rights and the need for investigations
 common law right to silence: there is a right to remain silent – not necessarily a right not to be spoken to
 the Court notes the importance of police interrogations and approves of meaningful interrogations of
accused but if at some point in the to and fro you lost your free will – that will be a violation of the
voluntariness principle
NOTES
 Dissent: Would keep right to silence in s. 7 and says the to and fro violates 10(a) and (b) if the accused has
received legal advice to be quiet – the repeated attempts denigrate the advice
 There are a couple distance s. 7 issues which SCC cannot bring under voluntariness: undercover police officer
in cell while waiting for lawyer – in the SCC splits the difference: state cannot elicit a statement by taking
positive steps – can be passive listener (Hibbert)
Turcott
 Court clearly affirms absent a specific statutory obligation to do so, a common law right to silence
applies when accused not in custody
 If a person does speak:
 she is entitled to stop talking at any time
 there is no waiver of the right to silence by beginning
 cannot draw a negative post-offence inference from stopping
HARRIS
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2. Protection of a Witness Henry; Jabarianha; Re: Application under s. 83.28 of the Criminal Code


Can a witness be compelled to give evidence which incriminates themselves?
Must testify, but will be protected in two ways:
(1) protect from direct use of the statement
(2) protected from indirect or derivative use of the statement (ie police must prove BOP would have found
evidence without testimony)
 Charter rights in issue
 11(c) person charged with offense has the right not to be a witness in the proceedings against them
 13 witness who testifies in any proceedings has the right not to have any incriminating evidence to given
use to incriminate that witness in any other proceedings – exception for perjury
Kuldip - no longer the law eclipsed by Noel
 the previous incriminating testimony was not substantively admissible but could be used to assess accused’s
credibility
 Crown could admit statements for their truth or attempt to get accused to adopt, but could tender the previous
testimony as inconsistent previous statements
 There would be a limiting instruction to jury regarding use– but still practical reality it would be difficult to
ignore
Noel
 In rare cases previous testimony can be used for credibility, but only where there is NO risk of
prejudice
 Can only bring in prior testimony on innocuous matters to challenge credibility
Riley & Henry
 co-accused convicted of first degree murder in grow op duct tape death; both trying to reduce to
manslaughter; both run variations on the intoxication defence; remitted because of error on intoxication
instructions; Henry remembers less and Riley tells a totally new version of events
 creates different rules for different situations, underpinned by the purpose of s. 13, which is to protect
individuals from being compelled to indirectly incriminate themselves
(1) Witness who is later Accused: testimony cannot be used against for any reason: not substantive or to
show credibility
(2) A who testifies at first trial but not retrial: testimony from 1st trial cannot be brought in.
(3) A who testifies at first trial and then on retrial: Section 13 does not apply. If the A testifies in 2nd trial, C
can bring in testimony from first trial for substantive use and can cross-examine
R v. Jabarianha
 Unless there are exceptional circumstances in which counsel can show that witness is lying, counsel
cannot cross examine a witness to try to determine is they are aware of there s.13 rights (i.e. that
testimony cannot later be used against them)
 Problems with that: sidetrack trial; prejudicial; crossing into possibly solicitor/client privilege area; jury
may put undo weight on fact witness knows testimony cannot be used
HARRIS
EVIDENCE CAN
FALL 2007
Re Application under s. 83.28 of the Criminal Code
 Post 9/11 provision allowing for “investigative hearing” and investigative detentions
 If the state has reasonable grounds to believe you know about a terrorist offence that has or is about to happen
you can be required to come and tell the police what you know and turn over any material you have
 A statutory exception to the common law rule not having to talk to police
 Because the statements are statutorily compelled testimony, they cannot be used to incriminate the
testator
 Witness testimony cannot be used directly or indirectly/derivative against the witness in a later trial in which
they are the accused
 Derivative use protection extends to deportation and extradition hearings
 If the witness believes they are the actual target of the investigation they can apply for a Constitutional
exemption on the basis that they have a s. 7 right to remain silent
B. PRIVILEGE ATTACHING TO CONFIDENTIAL RELATIONSHIPS


There is a strong assumption that if you disclose information in the context of a privileged relationship that it
will be inadmissible in court
Privilege places a limit on the search for the truth in favour of other values (ie need to consult privately)
1. Solicitor-Client Privilege Hodgkinson v. Simms; Shirose; Brown
 Solicitor/client privilege is a fundamental principle of our legal system: people must be able to be totally
honest with their lawyers in order to get legal advice
 Solicitor/client privilege is subject to few exceptions, belongs to the client forever, and covers
communications for the purpose of getting legal advice
Hodgkinson v. Sim
 litigation privilege attaches to materials which the lawyer puts together for the case for the dominant purpose
of litigation
 litigation privilege will attach to:
 even if the documents themselves are subject to disclosure, your manner of organizing or structuring them
may be privileged
 briefs, memos, materials collected for the purpose of advising client
R v. Shirose
 accused was seeking stay because cop put himself out as selling dope under the abuse of process arm of s. 7
 cop argued got advice from DOJ lawyer but Crown argued this was privilege; no stay - limited disclosure of
the legal opinion was ordered
STAY
 in the rare, clearest of cases, a judicial stay will be granted per 24(2) if per s. 7 it would be fundamentally
unjust to continue the proceedings
 two reasons why a proceeding may be contrary to the principles of fundamental justice:
(1) no longer able to have a fair trial (ie lost evidence)
(2) abuse of process
 state misconduct so unbecoming that to continue would jeopardize the integrity of the justice system
 will require serious misconduct, almost always purposeful: this is an elevated threshold
 dependant on the particular circumstances of the case – how bad was the misconduct?
 police breaking a law is a factor, but not determinative – did the police seek legal advice?
ANALYSIS for whether solicitor-client privilege attaches when the Crown gives advice to the police
(1) is the opinion relevant?
(2) is the opinion privileged?
HARRIS
EVIDENCE CAN
FALL 2007
 Not all government / lawyer interaction will be privileged (this was though)
(3) if privileged – is there an exception?
(a) innocence at stake
 When the innocence of the accused turns on the privileged information there is an exception
(b) future crime
 Communications regarding legal advice about a crime you are going to commit are excepted
(4) was privilege waived?
 Can be explicitly and implicitly waived
 Courts will not easily find that privilege has been waived
(5) Extent of disclosure?
 Courts will often limit disclosure to immediate issue because of the importance courts place on privilege
Innocence at Stake Exception
R v. Brown
 Accused wants a third party’s confession of the crime to lawyer admitted as proof accused did not
 ONUS on accused to show that proof of their innocence turns on the privileged information
 prove the
 ANALYSIS
(1) is the information is essential to their case in that they are unable to raise a reasonable doubt without it
 Very high standard (underpinned by Courts’ traditionally cautious approach to privilege)
 Must be more than relevant – must be crucial
(2) if the judge allows an exception, there must be certain protections
(i) Carefully limited use of the information
(ii) No disclosure beyond this case
(iii) Information cannot be used directly or indirectly (derivative) against the person whose privilege was
broken but does not amount to transactional immunity (ie independent evidence found, can charge)
Crown Litigation Privilege
 Remember C has broad disclosure obligations, where as A has limited disclosure obligations
 While Crown must disclose to the defence all relevant information within the control of Crown that is not
privileged (Stinchcombe), and whether inculpatory or exculpatory (Taillefer); organization / structure of
materials will be subject to litigation privilege
3. Police Informer Privilege Leipert
R v. Leipert
 Police informant privilege is an important, recognized common law privilege
 This privilege is exception to the general disclosure rule that C must provide all relevant info to D (per
Taillfer)
 General rule: intently of informant and the information provided are privileged
 Belongs to the informant, the Crown cannot waive
 Rationale:
1. Protect informer from possible harm
2. To encourage people to inform about criminal activity.
3. To preserve ongoing investigations (informers may have an ongoing relationship with police)
 Exceptions
1) Waiver: informant waives privilege
2) Informant called as witness in the case in which they informed (still exists in all other proceedings)
HARRIS
EVIDENCE CAN
FALL 2007
Chapter 11: Lost Evidence
R v. Vu
 Caresella (sexual assault case with destroyed rape centre intake sheets) had been interpreted by some to mean
anything missing = stay
 SCC clarified in Vu
 Says it is not a fair trial case – it was an abuse of process case – the reason the trials were thrown out was not
because there was no longer a fair trail (which is a high threshold); it was thrown out because of the deliberate
destruction of the material
ANAYLSIS
 When should a stay be entered due to lost evidence?
 Stays will NOT be entered every time a piece of evidence goes missing
 in the rare, clearest of cases, a judicial stay will be granted per 24(2) if per s. 7 it would be fundamentally
unjust to continue the proceedings
 if you want a trial thrown out on fair trial basis you must establish “actual” prejudice (significant
prejudice)
 two reasons why a proceeding may be contrary to the principles of fundamental justice:
(1) no longer able to have a fair trial (ie lost evidence)
 must consider the value of what was lost (based on circumstantial evidence)
(i) smoking gun evidence evidence which on its own would acquit accused
(ii) relevant, not determinative some relevance, not enough alone to acquie
 When this type of evidence has been lost, you need to look at 2 factors to determine if there
should be a fair trial stay:
 Very high standard for non-smoking gun evidence
(a) The degree of relevance
 the more relevant the information lost, the more likely a stay: look to type of
evidence lost
(b) the conduct of the state in losing the evidence
 The worse the states explanation the more it weighs towards a stay
 Spectrum of explanation – accident, gross negligence – malicious would be getting
into the Catello say re abuse of process
This case is just about fair trial – but here is abuse of process for reference
(2) abuse of process (Shirose)
 state misconduct so unbecoming that to continue would jeopardize the integrity of the justice system
 will require serious misconduct, almost always purposeful: this is an elevated threshold
 dependant on the particular circumstances of the case – how bad was the misconduct?
 defence counsel though the threshold for remedy was to high . . . middle ground in Bero
R v. Bero
 lost blood evidence in drinking driving case; identity issue; blood and car gone; state failure – not malicious
 Can get a remedy less that a stay where you can show the state failed and a reasonable possibility that
the lost evidence would have assisted you
 Can go for a lesser remedy in fair trial and abuse of process situtations
 Example of lesser remedies
 educate trier of fact about the nature of the evidence lost: both bringing nature of lost evidence and state
irresponsibility to attention
 jury instruction with reference to reasonable doubt re: lost evidence