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*whenever the defence is introducing evidence - mention the more lenient SEABOYER standard applies***
Overarching goals
- The goal of the court process is truth seeking (noel)
- Integral to administration of justice and public trust in judicial system
- But the search for truth must be qualified in certain circumstances where more valuable principles apply (noel)
- Ensuring A receives a fair trial, deterring police misconduct, preserving integrity of judicial system
- POFJ that an accused be able to participate in a meaningful way in his defence, and make fundamental decisions
about the conduct of his or her defence (swain)
- The adversarial context is fundamental to our justice system
- A has a right to control his own defence (swain)
- But if A opens the door to a defence (ex evidence about mens rea), the Crown is allowed to walk through the door
- call into question A’s state of mind (swain)
Issues of Evidence
- 1. Admissibility
- 2. Purpose for which the evidence is entered
- Evidence can be admissible for certain issues, but not others
- If evidence is being brought in for a limited purpose, then instructions to the jury are critical
- 3. Weight - just because evidence is admissible, doesn’t mean it will be strong evidence
- Some evidence can have very limited weight
- Credibility is relevant here
DISCLOSURE
- Counsel need to exchange all potentially relevant documents (stinchcombe)
- Necessary for the other side to determine how to present/structure their case
- The prosecutor is part of the justice system - the information they collect belongs to the justice system, and in the
interests of justice it must be disclosed to defendant so they can make full answer and defence (taillefer/duguay)
- The Crown must disclose all relevant information, subject to the Crown’s discretion to refuse to disclose evidence
that is privileged or plainly irrelevant (taillefer/duguay)
- Relevance is judged in relation to both the charge and possible defences
- Concept of relevance is defined broadly, favours disclosure (taillefer/duguay)
- If it is of some use it is relevant
- Crown’s duty to disclose is triggered whenever there is a reasonable possibility of the information being
useful to the accused in making full answer and defence
- Disclose whether the information is favourable to the accused or not Lack of disclosure does not
automatically mean a new trial (taillefer/duguay)
- Disclosure is a constitutional right under s.7 of the Charter
- TEST: To determine whether there was an infringement of right to make full defence, A must show:
- 1. There was a reasonable possibility that the failure to disclose affected the outcome at trial, or
- 2. Affected the overall fairness of the trial process
- 1. Outcome at trial: 2 step TEST
- 1. Onus is on A to show there is a reasonable possibility that the verdict may have been different but for
the Crown’s failure to disclose
- 2. CA must determine that there was a reasonable possibility that the jury, with the benefit of all of the
evidence, might have had a reasonable doubt as to A’s guilt
- Examine the effect of the evidence in its entirety
- Even if this first test is failed, still go on to second step
- 2. Overall fairness
- Reasonable possibility that the undisclosed evidence could have affected the overall fairness of the trial
- Must be based on reasonably possible uses of the undisclosed evidence or avenues of investigation that
were closed as a result of the non disclosure
- Ex non disclosure of a witness who could have led to other witnesses, or statement of a witness
that could impeach another witness etc
- When accused seeks to withdraw guilty plea based on discovery of fresh evidence
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- A must demonstrate that there is a reasonable possibility that the fresh evidence would have influenced
his decision to plead guilty, if it had been available before the guilty plea was entered
- Objective test
PROBATIVE VALUE, PREJUDICIAL EFFECT AND ADMISSIBILITY
- To be receivable in a criminal case, evidence must be: (palma)
- Relevant - tendency to make the existence of any fact more or less probable than it would be without the
evidence
- Not a legal concept
- Material - a legal concept - an item of evidence must be concerned with an issue that is before the court
- Admissibility - to be admissible, an item of evidence must satisfy the law’s own auxiliary test and
extrinsic policies
- There is no minimum probative value required for evidence to be relevant (arp)
- Evidence has degrees of probative value
- Prejudicial effect: is it possible that this evidence could lead the jury to make irrational or prejudicial decisions
- Prejudicial effect of evidence has been linked to wrongful convictions (penney)
- Balancing of probative vs prejudice depends on who is leading the evidence (seaboyer)
- Defence gets a broader discretion to lead evidence
- In order to exclude evidence, must find that the prejudicial effect substantially outweighs the probative
value (seaboyer)
- In a sexual assault case, a complainants sexual history has no probative value about her credibility (seaboyer)
USES OF EVIDENCE
- Before basing a guilty verdict on circumstantial evidence, must be satisfied BRD that the guilt of the accused is the
only reasonable inference to be drawn from the proven facts
- Miller error: where the judge errs in instruction by limiting the jury’s assessment of reasonable doubt to evidence
found to be both credible and reliable (Baltrusaitis)
- 2 errors:
- 1. Forces the jury to look at evidence in isolation, rather than as a whole
- 2. Given the reasonable doubt standard, a jury could convict where they have a reasonable doubt
- For a guilty verdict - it can only be based on evidence found to be both credible and reliable, BUT that does not
apply to a verdict of “not guilty” (Baltrusaitis)
- For a not guilty verdict - jury should consider ALL evidence in determining whether there is a reasonable doubt
- The accused is not required to prove any facts (robert)
- Judge erred by holding that in order to convict, he had to be satisfied that the proven facts lead the court
to no other reasonable conclusion than the guilt of the accused
- This required A to provide a reasonable explanation for the fire on proven facts, and reversed the
burden of proof
- If there is a reasonable possibility that A’s defence scenario could have happened, even if the evidence is
NOT ACCEPTED, there is a reasonable doubt
TYPES OF EVIDENCE
- Direct evidence - evidence which goes directly to the proof of a fact in issue (dhillon)
- A saw B stab C
- 2 sources of error:
- Witness might be lying
- Witness might be mistaken
- Circumstantial - indirect evidence; evidence of a chain of circumstances from which you are asked to draw
inferences which may lead to proof of the fact in issue (dhillon)
- A walked in and saw B standing over C’s body with a knife
- 3 sources of error:
- Witness might be lying
- Witness might be mistaken
- Possibility of drawing the wrong inference
- Ex maybe B walked in seconds before A and found C already dead
- Still possible B didn’t kill C
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- Real evidence - Parts of the actual crime scene
- Ex murder weapon, rock with blood, twisted bicycle etc
- Demonstrative: In many scenarios, cannot preserve evidence or bringing into court is difficult
- So take photographs or video of the scene
- Demonstrative evidence is not always let in
- Accuracy, continuity, and integrity of those making the videotapes/pictures go to the weight to be given to the
evidence, not whether the evidence is to be admitted (penney)
- Admissibility of demonstrative evidence depends on: (penney)
- 1. Their accuracy in truly representing the facts
- 2. Their fairness and absence of any intention to mislead
- 3. Their verification on oath by a person capable of doing so
- Can be broken into 2 steps:
- 1. Authentication
- Where did the video come from
- Is it what it appears to be
- Person introducing only has to show there is some evidence on which a reasonable trier of fact
could conclude that the item is authentic
- 2. Is it fundamentally misleading
- Basically like probative vs prejudice
- Evidence establishing the video has not been altered or changed is a precondition to its admission as
evidence (penney)
- If a video is being used for ID, then it does not have to be continuous (penney)
- But if its being used to depict the event itself, there is an issue if its not continuous
- Admissibility of Photographs: (kinkead)
- What if they are prejudicial?
- Represents the reality of the nature and brutality of the crimes which cannot adequately be described orally
(kinkead)
- Can’t hide evidence from the jury, A is entitled to a fair trial, not a trial that is most favourable to him
- Can be used to show more animus towards one victim - motive (kinkead)
- Also can show the scene was staged - that the accused’s tried to cover up their crime to hide motive and their
identities (kinkead)
- If picture shows something the accused has already admitted, there is no probative value in it (kinkead)
- Admissibility of Documents:
- Want a witness to testify to this type of evidence, authenticate it (jenkinson)
- Ex person who typed the transcript
JUDICIAL NOTICE (olson)
- Judicial notice: acceptance by a court, without the requirement of proof, of the truth of a particular fact or state of
affairs that is of such general or common knowledge that proof of it can be dispensed with
- Court can take judicial notice of facts that are either:
- 1. So notorious or generally accepted as not to be the subject of debate among reasonable people, or
- 2. Capable of immediate and accurate demonstration by resort to readily accessible sources of
indisputable accuracy
- In this case, the relationship between the sport and career advantages cannot be readily demonstrated, and it
cannot be said to be of such general knowledge as not to be the subject of debate among reasonable persons
- Farden factors to determine whether a sport can enhance later career opportunities
- Full time vs part time
- Whether individual receives outside support
- Child’s ability to contribute to support via part time work
- Age
- Previous post-secondary education
- Whether the training is connected to, and likely to enhance the attainment of, the child’s career plans
EXTRINSIC MISCONDUCT EVIDENCE
- Also known as general propensity evidence
- Generally inadmissible (handy)
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- But there are some recognized exceptions, depending on whether its being lead against the accused or a witness
- 3 potential dangers (arp)
- 1. Conclusion that the accused is a bad person and therefore more likely to have done bad things
- 2. Punish the accused for past misconduct by finding the accused guilty of the offence charged
- 3. Jury becomes confused and substitute their verdict on another matter for the verdict on the charge
being tried
- EME is admissible if: (B(FF))
- 1. Relevant to some other issue beyond disposition or character
- Ex if A questions why they did not come forward sooner, evidence that A is a controlling and
scary person is relevant as to why there was no immediate complaint
- 2. Its probative value outweighs its prejudicial effect
- When the evidence is of a morally repugnant act committed by the accused, the potential prejudice is great and the
probative value must be high to admit it (B(FF))
- A jury instruction is necessary - cannot infer guilt from bad character (B(FF))
Bad Character of the Accused
- 1. Evidence which demonstrates bad character or a criminal propensity may be admissible if it is also relevant to
another issue at trial (cuadra)
- Ex - witness changed story at trial, say they lied earlier because they fear the accused
- Relevant to the witness’s credibility
- Must give jury instruction that it can only be used for the other issue, not to imply guilt
- 2. When accused runs a defence that someone else did it and there was a faulty police investigation it opens
the door for the Crown to lead evidence to show WHY the police focused on the accused by bringing in bad
character evidence(dhillon)
- 3. As a defence, the accused may lead evidence of the potential involvement of a third party, provided the third
person is sufficiently connected by other circumstances to the crime charged (grandinetti)
- The propensity of a 3rd person to commit the offence is probative and admissible if there is other
evidence which sufficiently connects the third party with the commission of the offence, so as to create an
air of reality (grandinetti)
4. Similar Fact Evidence (handy)
- When SFE is introduced, TJ must instruct jury to only decide the case at bar - not decide this case based on past
evidence (handy)
- Need a specific propensity to engage in specific conduct in specific circumstances
- General exclusionary rule - simple bad character evidence is inadmissible, because there is a natural human
tendency to judge a person’s actions on the basis of character
- Narrow exception - an issue may arise in the trial of the offence charged to which evidence of previous
misconduct may be so highly relevant and cogent that its probative value in the search for truth outweighs its
prejudice
- As the similar facts become more focussed and specific to circumstances similar to the charge, the probative
value of propensity becomes more cogent
- Process:
- 1. Examine the strength of the evidence in showing the past events occurred
- Credibility of the witness
- Motive to lie
- 2. Consider whether there was any potential of collusion
- Usually an issue of weight, if there is a bit of evidence of some possibility of collusion or conversation leave it to trier of fact
- But sometimes it is important for admissibility
- Need to have an air of reality that collusion occurred
- Onus is on person presenting evidence to show to TJ that the evidence is not the product of collusion
- 3. Consider the issue in question at trial
- Is the similar fact evidence relevant to this issue
- TEST: SFE may be admitted where the probative value of the evidence in relation to the issue in
question (ie guilt of the accused) is so high that it displaces the heavy prejudice which will inevitably
inure to the accused where evidence of prior immoral or illegal acts is presented to the jury
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- 4. Probative value
- TEST: In order for SFE to be admissible, must show that the situations are so similar, that absent
collaboration/collusion it would be against common sense to say it was coincidence
- Factors:
- Timing - the closer in time the events happened
- Conduct / actus reus - how similar is the actual crime
- Circumstances - surrounding the event
- Frequency of occurrence
- Distinctive features
- Intervening events
- Any other factor
- 5. Prejudicial effect
- Inflammatory nature of the acts
- Whether Crown can prove its point with less prejudicial evidence
- Potential to distract trier of fact
- Potential for undue time consumption
- 6. SFE probative value must be able to outweigh both reasoning and moral prejudice
- Reasoning prejudice - confused by multiplicity of incidents and put more weight than is logically
justified on SFE
- Moral prejudice - convict based on being a bad person rather than the case at bar
- SFE probative value must be able to outweigh both reasoning and moral prejudice
- If there are substantial dissimilarities it will dilute the probative strength of the evidence
Similar Fact Evidence and Identity
- Sometimes the way that two or more crimes are committed, supports the conclusion that they were each committed
by the same person
- Where the Accused can be linked to one of those crimes, the similarity between the crimes might demonstrate that
he committed them all
- Little bits of evidence, which on their own, will not be enough to connect the Accused to the crime scene
- But when brought in as similar fact evidence, they draw a consistent picture
- Although identity cases are resolved using the general similar fact evidence rule described above, the question of
when similar fact evidence will be probative enough to help establish the identity of the perpetrator prompted the
SCC in R. v. Arp to provide extremely formalized suggestions for analyzing such case
Similar Fact Evidence of Identity Test:
1. Is there such a high degree of similarity between the two acts, that it is objectively improbable that crimes where
committed by more than one person?
2. Is there some evidence linking Accused to the similar act?
3. If the picture is such that it is objectively improbable that the crimes were committed by more than one person,
then the evidence is admitted
Post Offence Conduct
- Judges have to be very careful about how they deal with this evidence - very big cause of reversible error
- Most commonly used for identity - to say a person is guilty of the crime
- The conduct of an accused after a crime may provide circumstantial evidence of A’s culpability for that crime
(white)
- Builds of the common sense idea that a guilty party will act guilty, and an innocent party will act innocent
- Ex innocent person wouldn’t run from police/scene, create a fake alibi or lie about their name
- Crown must provide one reasonable inference that A was acting out of guilt (white)
- Multiple possible inferences does not negate the probative value - its an issue for the jury to decide (arcongioli)
- Identity: POC has no probative value when the accused has admitted culpability for another offence arising out
of the same operative facts, and the evidence cannot logically support guilt of one crime over the other (white)
- But its still allowed - and its up to the trier of fact to decide
- As an admissibility issue - Crown must give at least ONE reasonable explanation that it was linked to this crime
(white)
- Then defence can put forth another explanation
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- And its up to the judge or jury to decide which is more believable
- Judge must instruct jury its of no probative value for one crime over the other
What about as evidence for level of culpability? (white)
- Not whether or not you committed one crime or another, but the severity of the crime
- Ie does POC show it was murder rather than manslaughter
- POC usually will not be admissible about the level of culpability (white)
Can be used for defence purposes though - to strike down a defence (white)
- If you say you were NCR - then why did you hide the weapon? If you lacked ability for intent you would
lack ability to know to hide weapon
- Self-defence - if you were defending yourself why did you hide the weapon
Intoxication exception: if A is claiming they lacked intent because of intoxication, Crown can use POC (such as
hiding weapon, tidying crime scene etc) to show level of culpability (peavoy)
- Because with intoxication defence - thats the only thing that drops it from murder to manslaughter
- So if you rebut the intoxication, you can imply they had intent for murder
Standard of proof: judge should remind jury that sometimes people flee or lie for entirely innocent reasons
(white)
- Jury doesn’t have to look at POC separately, the standard of proof of BRD applies to the verdict as a
whole, not every piece of evidence individually
POC can also be used to prove innocence (SCB)
Providing samples of hair and semen, cooperating with police etc that can show a consciousness of innocence
(SCB)
The accused’s efforts to aid the police can be indicative of innocence, provided they are not empty offers of help
(SCB)
- Ex lie detector test knowing its inadmissible, or offer of DNA isn’t as compelling if it was publicized that
the crime scene was accidently cleaned with bleach
But it should never be taken as evidence of guilt if the accused does not help the police
Presumption of evidence and other charter and constitutional rights say you do not have to help the police in the
investigation against you
BAD CHARACTER OF A WITNESS
Prior Convictions
- S.12 of CEA says a witness in a criminal trial can be asked about their criminal record
- If they do not admit to it, Crown/defence can bring it in
- Goes to the witness’s credibility
- S.12 also applies to accused IF THEY TESTIFY (corbett)
- Make a corbett application
- The TJ has discretion to exclude prejudicial evidence of prior convictions when appropriate
- Can only be used to attack their credibility, not to propensity to commit crimes (corbett)
- When its an accused, merely the fact of the conviction can be brought, not the details of it
- Concealing the prior record of an accused who testifies deprives the jury of information relevant to
credibility (corbett)
- Corbett application to bring in prior convictions of the accused:
- 1. Timing - how long ago was the crime
- 2. Nature of the crime - does it speak to some aspect of dishonesty?
- Theft, perjury, fraud, forgery
- 3. Similarity in the nature of past offence and charged offence
- If its too similar it will be used for propensity rather than credibility - which is why it was
admitted
- 4. Is Accused going after Crown witnesses criminal records
- Always concerned with jury getting a distorted picture
- For the purposes of challenging a witness’s credibility, cross-examination which demonstrates that a witness
was involved in discreditable conduct is allowed (cullen)
- Some witnesses can have credibility or reliability issues
- Job on the line, friend with the accused, hate the accused, trying to get off of other charges by helping
prosecution in this case, drug addict
- But a charge of which an accused has been acquitted cannot be proved against him as similar acts (cullen)
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- Cross-examination of a witness concerning an outstanding indictment against that witness is proper and
admissible for showing a potential motive to seek favour with the prosecution (titus)
- In-custody informer is someone who:
- Allegedly receives one or more statements from an accused
- While both are in custody
- Where statements relate to offences that occurred outside of the institution
- Generally, testimony of in-custody informers is unreliable
- There is a problem with false evidence concocted by informers with a view to furthering their own ends (murrin)
- Court finds that it is presumptively admissible (murrin)
- It is not unfair for a judge to admit evidence which he considered unreliable unless there is some particular
prejudice to the accused flowing from the admission (murrin)
- The jury will determine reliability and weight
- Vetrovec witness: a witness who, because of their amoral character, criminal lifestyle, past dishonesty or interest
in the outcome of the trial, cannot be trusted to tell the truth (khela)
- A witness falls into this category if they have severe credibility issues
- When a witness like this is in court, jury must receive a special warning
- Vetrovec Warning (sauve in khela)
- 2 purposes of the warning:
- Alert the jury to the danger of relying on unsupported evidence of unsavory witnesses
- Give them the necessary tools for identifying evidence capable of enhancing those witness’s testimony
- 1. Draw jury’s attention to the testimonial evidence that requires special scrutiny
- 2. Explain why this evidence is subject to special scrutiny
- 3. Caution the jury that its dangerous to convict on unconfirmed evidence of this sort, but that the jury is
entitled to do so if satisfied that the evidence is true
- 4. Tell jury they should look for evidence from another source which shows they are being truthful
- 5. Proportionality - the more unsavory the witness, the more confirmatory evidence required
- The fourth element tells the jury how it may be safe to rely on this evidence
- Based in the concept of corroborating evidence
- Confirmatory evidence must be capable of restoring the trier’s faith in relevant aspects of the witness’ account
- TEST: Confirmatory evidence must be independent and material (khela)
- Independence - Evidence that is not related to the witness, or which the witness did not have knowledge
of
- Where evidence is “tainted” by connection to the witness it is not independent and therefore not
confirmatory
- Ex if the independent evidence was often published in newspapers the witness saw
- If there is evidence of collusion - independence will be put in doubt
- Materiality - the corroborative evidence has to go to a material/important part of the witness’s
testimony
- But does not have to implicate the accused**
- Cannot go to a peripheral part of their evidence
- Even if there is corroborative evidence, still warn jury to treat the evidence with suspicion (khela)
- BUT if the only thing in dispute is whether the accused committed the offence - the jury must be comforted that
the impugned witness is telling the truth in that regard before convicting on the strength of that witness’s
testimony
- Instruction to the jury must make clear the type of evidence capable of offering support
- Not sufficient to simply tell the jury to look for whatever it feels confirms the truth of a witness’
testimony
- Must make clear that not all evidence is capable of providing a level of comfort or confidence
required for conviction
- Also, counsel have a responsibility to address the issue of unsavory witnesses and the presence or absence of
confirmatory evidence (khela)
- The fact that an informant has not benefited from his testimony does not strengthen his credibility (dhillon)
- Similarities between accused and informant may show that A was more likely to speak truthfully to the informant
but does not prove that the informant is being truthful about the confession (dhillon)
- Other suspects defence:
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- When accused runs a defence that someone else did it and there was a faulty police investigation it
opens the door for the Crown to lead evidence to show WHY the police focused on the accused
(dhillon)
- Can bring in EXTRINSIC MISCONDUCT EVIDENCE
- Evidence that would normally be inadmissible now has a probative purpose
- There still has to be a limiting instruction to the jury
EYE WITNESSES (gonsalves)
- Where vetrovec witness issue is credibility - with eyewitnesses the issue is RELIABILITY
- Even if eyewitness has no reason to lie and is being truthful, their testimony can still be very dangerous
- Factors:
- Was it a fleeting glimpse or more substantial
- Is the accused unknown to the victim
- Was it dark or light out
- Was the eye witness in a situation of stress or fear
- Is the description vague or general
- Intervening circumstances could taint the independence of the ID
- Eyewitness testimony is presumptively admissible
- Judge will generally instruct the jury - particularly where the viewing/sighting was compromised or weak
- Tell jury there have been many wrongful convictions based on EW testimony
- When its for identification purposes, police must exercise great care to ensure the ID process is unbiased and
uninfluenced (gonsalves)
- Improprieties or deficiencies in police procedures do not necessarily destroy the identification evidence or
render it inadmissible
- TOF can look to compelling confirmatory evidence of the ID to assess the safety of conviction
- But where confirmatory evidence is absent, the circumstances of the ID may be too suspect
- An eye-witness’s out of court ID of a suspect is admissible as a hearsay exception
- Proper ID process: (gonsalves)
- Have a double blind - an investigator not involved who doesn’t know whether or not there is a suspect in
the group
- Tell victim they do NOT have to pick someone
- Show them one at a time
- Include photos of people who are the same age and color as the accused
- Be executed using a sequential, not a photo spread
- Have at least 10 subjects
- Be video taped or audio taped
- Give no indications when you come to the suspects photo
- Don’t do anything that could possibly taint the investigation
- Weight of the evidence is affected by:
- Conditions under which the observation is made
- Care with which it is made
- Ability of the observer
- Exculpatory dissimilarities:
- Will look bad if W includes a feature A doesn’t have, or
- If W fails to note a distinctive feature (such as a cleft palate)
- But if witness doesn’t note a distinctive feature, but also does not say it did not exist, that is not
exculpatory dissimilarity
OPINION EVIDENCE
- There is a long list of subjects upon which a non-expert witness can give an opinion (graat)
- ID of handwriting, persons and things
- Apparent age
- Emotional state of a person
- Condition of things
- Estimates of speed and distance
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- No reason why a lay person should not be allowed to testify in the form of an opinion if it helps him more
accurately express the facts (graat)
- A non-expert can only give opinions on fact, not on legal issues (ex whether a person was negligent)
- A non-expert can give evidence that someone was intoxicated (graat)
- Intoxication and impairment of driving are matters which a modern jury can intelligently resolve on the
basis of common ordinary knowledge and experience
- When testifying as a non-expert, the opinion of a police officer is entitled to no special regard (graat)
EXPERT EVIDENCE
- Expert evidence is presumptively inadmissible
- There are both common law and statutory requirements
- If the expert is giving evidence as to disposition (mohan)
- In order for that opinion to be admitted, the TJ must be satisfied that either the perp or the accused has
distinctive behavioural characteristics such that a comparison of one with the other will be of material
assistance in determining innocence or guilt
- Has the scientific community developed a standard profile for the offender who commits this type of
crime
- If yes, it will have passed relevance and necessity criteria
Limitations on Admissibility of Expert Evidence
- Become more and more frequent to call an expert - and there are some real dangers (DD)
- Can distort the fact-finding process
- Highly resistant to cross-examination by counsel who aren’t experts in that field
- Very expensive and time consuming
- There is a slippery slope from impartiality to shopping for experts who will support your side
- Primary danger - that the role of ToF will be usurped from the jury
- *New Mohan/ Abbey TEST for admissibility*: (Abbey)
- (a) Presumptively inadmissible (mohan)
- (b) Any statutory requirements
- 1. Judge defines the scope of the evidence
- What the expert is allowed to talk about/ testify too
- Judge also determines how expert is allowed to articulate the issue
- Ex if there are issues A and B, and expert is only allowed to talk about A
- Have to make sure that in talking about A, they won’t talk about B
- How close to ultimate issue?
- The closer the opinion of the expert goes to the ultimate issue at trial, the stricted the test for
admissibility becomes (mohan)
- 2. Certain preconditions that must be met
- (a) Does it relate to a subject matter that is properly the subject of expert opinion evidence?
- Expert opinion on credibility is inadmissible (llorenz)
- Rule against oath helping - prohibits the admission of evidence adduced solely for the purpose of
proving that a witness is truthful (llorenz)
- Expert evidence on credibility may be admitted if it has some other legitimate purpose (llorenz)
- If there is a special factor in assessing credibility that jury needs assistance with
- Ex certain behaviours that are consistent with someone who has been sexually abused
- Must be presented in an indirect manner
- “it is common for children to recant even though it happened”
- Rather than “I think this child is lying in their recantation”
- So its not directly aimed at credibility, the evidence for credibility is merely a side effect
- Its a very fine line
- Weigh probative vs prejudicial
- A judge is required to instruct a jury on the limited use that may be made of evidence that is
admitted for one purpose but which is unfairly prejudicial to an accused in relation to another
(llorenz)
- An expert who testifies about a witness’s credibility does not automatically mean a new trial
- Judge can rectify with jury instruction
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- (b) Is the person a qualified expert
- Prove they have knowledge in the area that is significantly greater than the average person (mohan)
- Has to be such that the trier of fact will be unable to come to a satisfactory conclusion without the
assistance of the expert (mohan)
- The closer the evidence come to an opinion on the ultimate issue, the stricter the application of this
principle (mohan)
- (c) Does it go to a relevant issue
- Logical relevance: evidence tends to make the existence of a fact in issue more or less likely than it
would be without the evidence (Abbey)
- Usually not an issue because one side wont go through all the trouble of getting an expert if the issue is
not relevant to the case (mohan)
- (d) Necessary
- When its practical to do so, a jury instruction is favourable to expert opinion (DD)
- Saves time and money, given by impartial officer so removes prejudice
- Need to focus more on necessity requirement, and consider the cons when determining whether the
opinion is truly necessary (DD)
- An experts job is to provide jury with a ready made inference which the jury, due to the technical nature
of the facts, are unable to formulate (mohan)
- (e) factual foundation - does the opinion relate back to facts in the case (palma)
- Expert opinions that are based mostly on what accused and convicted criminals tell them
- While ultimately an expert’s opinion may rest in part on secondhand source material, it is nonetheless an
opinion formed according to recognized normal psychiatric procedures (palma)
- 4 propositions (palma)
- 1. Expert opinion is admissible if its relevant, even if based on hearsay
- 2. The hearsay is admissible to show the info on which the opinion is based, not as evidence of
the existence of the facts used for the opinion
- 3. An opinion based on hearsay is an issue of weight to be given to the opinion
- 4. As long as there is some admissible evidence to establish a foundation for the expert opinion
- it has weight
- All of the facts relied upon do not have to be proven by admissible evidence
- But the more the expert relies on unproven facts, the less weight the jury may attribute
to the opinion
- (f) absence of any other exclusionary rule?
- Is there something the expert is saying that relates to otherwise excludible evidence
- Ex if expert evidence is essentially evidence as to disposition, it is inadmissible due to the general rule
that prevents crown from adducing evidence of accused’s disposition unless the accused has himself put
his character under review
- 3. Balance probative vs prejudicial effect (TJ gatekeeper function)
- Legal relevancy: is evidence sufficiently probative to justify its admission despite the prejudice that may
flow (balancing act) (Abbey)
- (b) Weigh / revisit some of the preconditions
- Ex degree of the expert’s expertise
- (c) Overall reliability
- (d) Efficiency - how long will it take to deal with this expert evidence
- (e) If brought in indirectly, it is less prejudicial (bleta)
- Experts are presented with hypotheticals that mirror the case - not asked to give their opinion on
the particular case (bleta)
- The expert’s opinion does not have to be based on a hypothetical if the evidence is not
contradictory and it is clear which evidence he bases his opinion on (bleta)
- (f) Are there bias issues - always called by one side?
- Expert cannot speak directly to why a particular accused did something, but can offer an opinion based on his
research (Abbey)
Admissibility of novel scientific methods
- When a method is new there are very large reliability concerns (JLJ)
- Ex in (JLJ) - a certain type of offence committed, test those who have committed it for certain specific traits
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- Theory - unique traits almost always found with specific offences, then expert testifies as to whether or
not the accused has these traits
- Need to adjust the Mohan/Abbey criteria for novel evidence
- Even stricter application of necessity and reliability inquiries
- Factors in evaluating soundness of novel science:
- Whether the theory or technique has been or can be tested
- Whether the theory has been subjected to peer review and publication
- Known or potential rate of error
- Whether the theory has been generally accepted
- Has it been used for this purpose before?
WITNESS TESTIMONY
Competency / Oaths and Compellability of Witnesses
- 1. Competent
- Whether or not the witness is allowed to testify
- 2. Compellable
- Can they be forced to testify
- Generally, all witnesses are presumptively competent and compellable
- Exception - an ACCUSED cannot be forced to testify
- Competence:
- Ability to take the oath - demonstrate you are aware and are making a particular promise to tell the truth
- Ability to communicate the evidence
- Interpreters, typing, sign language
- Issue if, at some point, a witness cannot articulate/communicate the evidence
- S.486.2(1) CC - upon application, a child witness (under 18) or a vulnerable witness (mentally or physically
disabled) shall presumptively testify with the assistance of a testimonial aid
- Do not have to establish need
- Court is required to grant the application unless to do so would interfere with the proper administration of
justice
- A child witness may testify behind a screen, or in another room via video
- Does not infringe s.11(d) because the use of testimonial aids do not disturb the traditional safeguards of trial
fairness, including the presumption of innocence, burden on crown to prove elements BRD (JZS)
- A still gets to hear and cross-examine the complainant
- The accused does not have an absolute right to an unobstructed view of the witness (JZS)
- The right to face your accuser is not literal
- Its the right of the accused to be present in court, hear the case against him, and make full answer and
defence
- S.16.1 CEA - provides for the presumptive testimonial competence of a child under 14
- A child under 14 will not take an oath, the evidence will be received on a promise to tell the truth
- They cannot be asked any questions regarding their understanding of the nature of the promise to tell the
truth for the purpose of deciding whether their evidence will be received
- But once they testify, A is allowed to cross-examine the child witness on his understanding of the
nature of truth and lie
- Policy:
- Child witnesses can be equally as reliable as adult witnesses
- No relationship between a childs ability to answer a question about abstract concepts (truth and lie) and
whether they will actually tell the truth
- If a child promises to tell the truth, the child is more likely to tell the truth
Spousal Competency - CEA s.4
- At common law, spouse was deemed incapable to testify unless they had been abused by the accused
- Now, there is the idea of preserving marital harmony
- CEA - s.4(2) and (4) say that the spouse is competent and compellable for a group of offences
- A whole bunch of exceptions where a spouse can be called
- S.4(1) Then there is a section that says a spouse can be called any time by the defence - doesn’t have to be one of
those particular categories set out below
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- Those are when a spouse is competent and compellable to be called by the prosecution
- There is a general privilege held by the spouse regarding communication between spouses
- S.4 (3) No husband is compellable to disclose any communication made to him by his wife during their marriage,
and no wife is compellable to disclose any communication made to her by her husband during their marriage.
[Spousal privilege – means don’t have to testify about “conversations” – as opposed to what they “saw” (see
above)]
Order of calling witnesses
- An accused does not have to testify before all other witnesses, but where they testify may be subject to crossexamination regarding tainting (smuk)
- The accused is totally and completely free to decide whether or not to testify, and in what order his defence will
call witnesses (smuk)
- The credibility of anyone who testifies cannot be pre-judged by the court (smuk)
- Counsel generally cannot be forced to call a witness, as it is usually open to both sides to call the witness (jolivet)
- If one side fails to call a witness they repeatedly told the jury they would call, the defence may be entitled to make
a comment to the jury on the missing witness (jolivet)
- That it leaves a hole in the opposing side’s case
- Say that jury can put no weight on that witness
- But a statement of intention does not always amount to an undertaking
- Can make a comment if the counsel’s indications that they would call a particular witness produced prejudice
because it asserted the existence of corroborative evidence
- Which the other side could never test or cross
- In order to ask that the jury make an adverse inference from the missing witness, defence must show an abuse of
process (jolivet)
- Need to show Crown is essentially not calling the witness for an improper purpose
- Test for adverse inference
- Is there any reasonable explanation for the other side not calling the witness
- But the fact that the Crown announced to the jury that they would call the witness produced prejudice because it
asserted the existence of corroborative evidence
DIRECT EXAMINATION
Leading questions (maves)
- Questions that directly or indirectly suggest to the W the answer that he is to give, or contains the info that the
examiner is looking for
- Often leading questions will just require a yes or no answer
- On material points, leading questions are allowed in cross-examination, but not in direct examination
- But counsel can lead their own witness on merely introductory matters
- Some exceptions: need judges permission
- You can lead a witness on uncontested parts of their testimony/preliminary matters
- In a sensitive area, to avoid the W from testifying to incompetent or prejudicial matters
- Can lead a witness who is having challenges communicating their evidence
- Ex due to youth, trauma etc
- When a witness appears to be forgetful
- This is a regular aspect of litigation
Refreshing a Witness’s Memory
- Procedure: (shergill)
- Counsel should get permission from judge to refresh a memory
- TJ should review the document and passages counsel seeks to use
- Here, judge can decide whether to relax rule about leading questions and try to first elicit the info
through leading questions
- TJ should determine whether its PMR or PRR
- Determine whether the document is appropriate
- If PRR - need contemporaneity
- Is it reliable? Too suggestive?
- Ex a police summary is not sufficient
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-
- Determine whether there is an improper motive that makes the request unacceptable
- Recall jury - then have counsel give the document to the witness
- Then take away the document and ask a non-leading question
- Opposing counsel is entitled to examine the document and cross the witness
- Instruct jury that prior statements sole purpose is to refresh memory - nothing more
A witness pretending not to remember a statement is grounds for cross-examination under s.9(2) (mcinroy)
1. Present memory revived (shergill)
Witness can’t remember, is presented with document, if witness’s memory is triggered, the witness is permitted to
testify
A witness may consult any document - subject to exclusionary discretion where doing so would be too suggestive
(shergill)
Even evidence that is otherwise inadmissible can be used to refresh memory (fliss)
The witness’s revived memory is the evidence, not the document
So reliability comes from cross-examination
But W can use only those parts in his testimony that he now recalls (fliss)
*In BC, there is no contemporaneity requirement for present memory revived
2. Past recollection recorded (a common law exception to hearsay - so after PRR analysis, move on to
necessity/reliability analysis in hearsay*)
If notes do not revive witness’s memory, but he remembers making the document, that it was made
contemporaneously with the incident, and that he was being truthful at the time (shergill)
The early statement is received as evidence of its truth, under the guise of refreshing memory, as an exception to
the hearsay rule
Criteria for past recollection recorded (fliss)
- 1. Reliable record of the statement
- Summary, notes etc not reliable
- Better if audio recorded, written by witness, video taped etc
- 2. Contemporaneity requirement
- The other side is unable to test the witness’s present memory in cross-examination and so there
need to be other assurances of reliability = contemporaneity
- The document used must be either: (shergill)
- A document made by the witness at or near the time the event, or
- A document made by someone else and verified as accurate by the witness when
the facts were fresh in the mind of the witness
- Does not require strict contemporaneity, it is sufficient if the record is prepared closed enough to
the events to ensure accuracy (JR)
- Ex in JR 16 hours later was acceptable
- 3. Absence of Memory
- Does NOT need to be a total loss of memory (JR)
- 4. Present voucher as to accuracy
- I remember making the statement and attempting to be truthful - knew it to be true at the time
- If, at the time you made it you only had partial recall of the event that is insufficient (fliss)
- 5. Go to necessity/reliability analysis in hearsay
CROSS-EXAMINATION
- Has 2 basic goals
- Eliciting favourable testimony from the witness
- Discrediting the testimony of the witness (via credibility or reliability)
- Want to show inconsistency in witness statements
- S.10 CEA - need to call statement to witness’s attention when demonstrating an inconsistency
- So they know what they are being crossed on
- Right of accused to cross examine witnesses without significant and unwarranted constraint is an essential
component of the right to make a full answer and defence (lyttle)
- A question can be put to a witness in cross regarding matters that need not be proved independently, provided
counsel has a good faith basis for the question (lyttle)
- Cross may pursue any hypothesis that is honestly advanced on the strength of reasonable inference,
experience, or intuition
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- Do not need to have substantive proof of every theory / question on cross
- Good faith basis = information available to counsel, his belief in its likely accuracy, and the purpose for which it
is used (lyttle)
- As long as the cross examiner does not put suggestions to the witness recklessly or that he knows to
be false
- When a question does imply the existence of a disputed factual basis that is tenuous, a judge by conduct a
voir dire to make sure counsel has a good faith basis
- Crown cannot suggest a theory they know to be false, or that they are reckless as to the truth of
- Brown v. Dunn principle: If counsel is going to challenge the credibility of a witness by calling contradictory
evidence, the witness should be given the chance to address the contradictory evidence in cross while he or she is
in the witness box (carter)
- *THIS RULE IS NOW FLEXIBLE *
- Not a hard and fast rule - don’t want to force counsel to run their case a certain way
- Look at the cross-examination as a whole, see if the witness had an opportunity to respond to the theory (carter)
- Ex in Carter - the complainant know what D’s position was and had every opportunity to address it
- When a witness isn’t crossed on significant issues, and then the opposing party leads evidence to contradict the
witness on those issues, the trier of fact may take the failure to cross into consideration in assessing the
credibility of that witness and the contradictory evidence
- Options for judge to deal with this situation (carter)
- Prevent them from taking that position at the later time
- Mention to the jury that the theory was not put to the witness and to keep that in mind and maybe put
little weight on it
- To instruct jury that when considering credibility of the witness - certain questions that are being used to
undermine their credibility were never put to them on cross
- It has to be clear - has to be a significant, material matter not just peripheral details
RE-EXAMINATION / REBUTTAL
What about when the crown tries to split their case - lead evidence witnesses etc, close, then defence goes, and then
crown wants to go again
- Part of accused right to make full answer and defence that the crown goes first and present their WHOLE case
RE-EXAMINATION (moore)
- Right to re-examine exists only where there has been cross, and must be confined to matters arising in cross
examination
- New facts cannot be introduced on re-examination
- Ex Crown leads witness, defence crosses, then crown wants to re-examine on an issue brought by the
defence
REBUTTAL (Krause)
- If there is a new issue raised in the defence’s case, after the crown has already closed their case, crown has a right
to call rebuttal witnesses
- It is generally not permitted - crown cannot “split its case” - prevents unfair surprise, prejudice, and confusion
which could result if the crown of the plaintiff were allowed to split its case
- It has to be something new that the crown could not have reasonably anticipated
- TEST - you can call new evidence to rebut if the issue raised by the defence is:
- (1) new,
- (2) not reasonably anticipated,
- (3) and the new evidence goes to a substantive / essential, rather than collateral, issue
- Has to relate to a central issue, not purely a credibility issue
- Can’t just call to contradict the witnesses/accused’s testimony
- Credibility is usually collateral
- Cannot rebut on a collateral issue
- This is not applicable to cross - on cross you can bring up collateral matters
- Limited to introducing testimony/evidence on the unanticipated issue
STATEMENT EVIDENCE
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Admissibility of Prior CONSISTENT statements
- Generally, prior witness statements that are consistent with their testimony are not admissible (ay)
- Prejudicial
- Self-serving
- Low probative value
- Extends litigation unnecessarily
- Ex accused cannot get on stand and testify, then call prior statements to show he said the same story to others
- Exceptions:
- 1. For the purposes of supplementing the narrative and showing consistency of conduct (ay)
- Ex where allegation came from, how it got to police
- Limiting instruction must be made to the jury
- 2. Can be admitted to dispute accusations that W has recently fabricated portions of his evidence (stirling)
- Ex if crown is saying W lied for his benefit, then defence may want to bring in consistent statement to
show that previous to the alleged event of benefit, the witness told the same story
- * But the past statement can only be used to show that the witness’s story was the same before the alleged
motivation to lie arose, cannot be used to confirm the evidence was not fabricated (stirling)
- Cannot be used to enhance credibility
- But if it is disproving an accusation of non-credibility, then it essentially does support the
credibility
- The fact that a prior complaint was made, when it was made, and whether it was in a timely fashion are all relevant
and admissible to establish the conduct of C, from which the jury is entitled to draw inferences relative to the
credibility of C (ay)
- But the content of any prior statement cannot be used to demonstrate its consistency with, and therefore
the probable truthfulness of, C’s evidence at trial
- 3. Recent sexual assault complaints
- 4. Statements made with respect to previous identification of an accused (swanston)
ATTACKING CREDIBILITY OF YOUR OWN WITNESS
Prior INCONSISTENT Statements
- Because general rule is cannot cross-examine your own witness
- Start with s.9(2)
- Confers a limited right of cross-examination - only to the extent of the inconsistency
- Police notes of a statement, not signed by witness is not sufficient (cassibo)
- Procedure under s.9(2) (mcinroy)
- Have to find that its inconsistent - not just plain memory loss, it must be feigned or fake (milgaard)
- Inconsistency is not just honestly not remembering (milgaard)
- Counsel advise he wants a 9(2) application
- Absent the jury, the judge should look at the alleged inconsistent statement
- Counsel should prove the statement - ask witness about it, if they admit to it thats proof, if they don’t
counsel can call other evidence to prove it
- Then counsel should have a right to cross-examine
- The cross-examination provided for in s.9(2) must be made in the presence of the jury (milgaard)
- The purpose of the cross is to attack the witness’s credibility
- If its not in writing, move on to s.9(1) and have them declared adverse
- Judge must instruct jury that the previous statement is not admissible for its truth (milgaard)
- S.9(1) confers a broader right to cross-examination (cassibo)
- Requires the witness to be declared ADVERSE
- The prior inconsistent statement can be oral or written - maybe a second step after trying to go through s.9(2)
- 1. Prove the inconsistent statement
- 2. Prove that its substantially inconsistent
- 3. Prove adversity
- General demeanour
- Lack of reasonable alternate explanation
- Whether a witness is hostile is a matter of fact (cassibo)
- The inconsistency itself can be evidence of adversity (cassibo)
- Depends on their explanation for it at the voir dire
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-
-
- If the inconsistency relates to a vital issue (as it does in this case) the judge can determine on the
inconsistency alone that she is adverse
- Need to establish the reason for the inconsistency (cassibo)
- If its logical, the witness is not adverse (confusion, change in memory, were threatened before)
- If not - may be adverse
Not enough for s.9(1) to have a witness that just doesn’t remember - they must be hurting your case (mcinroy)
- Have to show she is interfering with their case by helping the other side, and therefore they must reduce
her credibility
- * mcinroy is not settled law - BCCA said it was s.9(1) but SCC said 9(2)
A witness pretending not to remember a statement is grounds for cross-examination under s.9(2) (mcinroy)
**S.9 does not affect the common law right of a party to cross-examine his own witness if the judge deems
the witness hostile ** (cassibo)
After attacking credibility of witness about their prior inconsistent statement, want to get the prior statement
included for its TRUTH - move on to hearsay
HEARSAY
- Hearsay - an out of court statement, admitted for its truth (subramaniam)
- Rather than just the fact that it was made
- Presumptively inadmissible (khelawon)
Non-Hearsay Uses of Out of Court Statements
Circumstantial Evidence of State of Mind
- It is not hearsay when you want to admit out of court statements to show a witness’s state of mind (baltzer)
- The mere fact that a witness’s evidence includes words spoken by another person does not render it inadmissible
(ratten)
- Its only hearsay when the words spoken are relied on as establishing some fact as narrated by the words (ratten)
- An out of court conversation of a peculiar nature can be lead, not to establish the truth of what W said, but to show
a state of mind that speaks to insanity (baltzer)
- An out of court statement can be evidence that the declarant was in a state of emotion or fear (ratten)
- The statement must show the state of mind of the declarant, not a third party, to be admissible (griffin)
- A statement that shows a victim had a particularized fear of the accused can be relevant to motive and
identification (griffin)
- If the evidence is introduced for state of mind, it can only be used for this limited purpose (griffin)
- TEST: To be introduced as evidence of state of mind, the statement must be: (griffin)
- Relevant,
- Made in a natural manner,
- Not made under circumstances of suspicion (ie don’t believe its a true state of mind)
HEARSAY EXCEPTIONS - when it is admissible for its truth
- The traditional exceptions to hearsay remain presumptively in place (mapara)
- If it falls into a recognized category - there is a strong assumption of admissibility, but still should do
necessity/reliability analysis
1. In for its truth?
a. Yes - hearsay
b. No - can do 9(1)(2) if its your own witness, or to attack credibility
2. Otherwise admissible - or subject to an exclusionary rule?
3. Coercion?
4. Common Law Exceptions
- 1. Dying declaration - why would you lie, hopeless expectation of death
- 2. Res gestae - words spoken are almost the same as a physical act that happened
- A “spontaneous declaration”
- Considered more likely to be true - because of its spontaneity
- 3. Past recollection recorded
- The past statement is entered into evidence
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- 4. Declarations Against Interest (o’brien)
- When someone speaks contrary to their liberty interests - there is a great assumption they are
telling the truth
- Test: the statement must be:
- To declarants immediate prejudice
- Made in circumstances where declarant would think they are actually putting their
liberty in trouble
- If the person is resistant to putting it in a form to cause them more prejudice (ie a sworn
affidavit), that is problematic
- 5. Oral History in Aboriginal Title Cases
- Mitchell v. Canada
- Test for an aboriginal right (van der peet):
- Existence of an ancestral practice custom or tradition
- Its integral to pre-contact society
- Reasonable continuity up to present day
- Test for admissibility of oral history
- 1. Evidence must be useful - tending to prove a fact relevant to the issues in the case
- Offer evidence of ancestral practices
- Provide aboriginal perspective on right claimed
- 2. Evidence must be reasonably reliable
- Does it represent a reasonably reliable source of the particular people’s
history?
- In applying this criteria, judge must be careful to avoid assumptions based on
eurocentric traditions of gathering and passing on historical facts and traditions
- Interpretation of evidence in these cases:
- Courts must interpret and weigh the evidence with a consciousness of the special nature
of aboriginal claims
- May need expert evidence - is the judge / jury equipped to assess weight to the oral evidence
- 6. Business Records
5. Statutory Exceptions
- Business records
- Started out as a common law exception, but moved into statute - s.30 CEA
- Common law exception test: (wilcox)
- Original entry
- Made contemporaneously
- In the routine of business
- By a recorder with personal knowledge of the thing recorded
- Who had a duty to make the record, and
- Who had no motive to misrepresent
- S.30 has no “duty” requirement, just has to be within “the ordinary course of business” (wilcox)
- Struggled in the case because he was not instructed to keep the record
- Found it did not satisfy either test
- Preferred to let it in on principled approach - Necessity / reliability
- Meets the criteria
- Necessity - cannot directly call it from witness because he doesn’t remember
- Sufficient trustworthiness
If hearsay does not fall under a recognized exception, it may still be admitted if it passes the principled
approach (mapara)
6. Necessity and Reliability (Principled Approach)
- Courts have adopted a principled approach - why do we want these statements entered in the first place?
- If it is necessary to the trier of fact, and is a reliable statement
- Proved by party seeking to admit it on BOP (BKG)
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- A party may want to admit a witness’s prior inconsistent statement for its TRUTH, rather than for credibility
purposes (BKG)
- Hearsay dangers: (BKG)
- Absence of oath
- Inability of TOF to assess demeanour and credibility of declarant
- Lack of contemporaneous cross-examination
- *TEST*:
- 1. “pre-criteria”
- (a) Threshold - prior inconsistent statements will only be admissible if they would have been
admissible as witness’s sole testimony (BKG)
- Ex no other exclusion rule applies
- Ex - if past statement includes bad character evidence then it would not have been admissible at
trial and cannot be used for its truth
- (b) Coercion - statement can be excluded if it is the product of state coercion
- 2. NECESSITY: (BKG)
- Necessity is usually satisfied by unavailability - death of witness, insane, otherwise unavailable
- By definition, if its prior inconsistent statement - the witness is available because they
testified
- What is unavailable is the prior statement because the witness is recanting - you can’t get the same
“value” of evidence (BKG)
- A person who does not satisfy competency under s.16.1 CEA may satisfy the necessity criteria
- If there are doubts about the complainant’s mental capacity to testify, and the witness is
physically available, the TJ should hear from them on a voir dire if it would not cause trauma or
adverse effects on the witness to testify (parrott)
- Shouldn’t just take an expert’s word for it
- People that are likely adverse or disinclined to testify will NOT satisfy necessity (pelletier)
- For both “likely adverse” and “maybe incompetent” - have to attempt to call the witness first, before
resorting to hearsay of their statement
- If you find necessity too readily then you risk depriving the defence of cross-examination when, with
more diligence it would be available (pelletier)
- 3. RELIABILITY - focus on the circumstances in which the statement was made
- In order for hearsay to be reliable, it must have reasonable substitutes for oath, physical presence, and crossexamination (BKG)
- Oath - if it was made under oath, or declaration that followed a warning on the consequences of perjury
or lying under oath
- There may be situations where the judge finds other substitutions for the oath, or finds the
statement reliable despite the absence of an oath
- Physical presence - Something that would allow the court to observe the behaviour and demeanor of the
declarant. If the statement was videotaped in its entirety, this is the best case scenario
- In rare circumstances may have a 3rd party testify about their demeanour
- Contemporaneous cross-examination: most easily remedied by cross-examining the witness at trial
- The BKG criteria was BROADENED in khelawon
- You are not limited to the circumstances in which the statement was given, can also look at the inherent
trustworthiness of the CONTENT of the hearsay (khelawon)
- Trustworthiness criteria (khelawon)
- (a) does the person who made the statement have a motive to lie
- Absence of motive to lie may increase the trustworthiness
- (b) contemporaneity - what is the temporal connection between the declarant and the witness
- (c) logic of the statement
- Is it consistent with basic understanding of how things generally unfold
- (d) corroborating evidence
- Compare the hearsay statement to the evidence
- The reliability requirement can also be satisfied by the similarity exception (UFJ)
- When A’s admissions mirror C’s complaint to a significant degree - seems to follow that the similarities
are evidence which increases the likelihood that the confession and complaint were true
- 5 possibilities: (UFJ)
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- Coincidence, Collusion, One knew of the others statement and conformed, Influence of 3 rd
parties, Truth
- If you can rule out the first 4 - then it can be said they were true
- Test for jury in similarity exception
- 1. Determine the previous statement was made
- 2. Compare similarities, and if striking - may draw conclusion from that about the truth of the
statements
- 4. OVERALL PV/PE ANALYSIS
- Are there any other factors which would bring the admin of justice into disrepute if the statement is allowed?
ADMISSIONS AND CONFESSIONS
Formal or Judicial Admissions
- Both sides can admit certain things in advance of trial
- Allows jury to focus on real issues
- Only get evidence called on matters that are seriously in dispute
- If something in evidence would be very prejudicial, may be less prejudicial if it is admitted rather than
introduced as evidence (pictures etc)
- Admission can get the evidence admitted in a less prejudicial manner
- Judge can’t force a party to accept an admission (castellani)
Informal Admissions
- Essentially statements made by a party to the proceedings outside of court, led for its truth
- Generally, an accused cannot lead his own statements at trial
- Rule against previous consistent statements
- An admission does not have to be a full confession*
- May be just probative of an issue
- Accused’s admissions do NOT HAVE TO SATISFY HEARSAY CRITERIA (palma)
- Accused previous statements do not need to pass necessity/reliability
- Accused is in a special position to explain/cross all the evidence against him
- Crown presumptively gets to introduce out of court statements of the Accused
- Evidence of an accused’s admission is presumptively admissible, but its weight can be determined based on
credibility of witness who reports it (murrin)
- But must be excluded if its unfair to the accused
- A partial overhear cannot meet the threshold of relevance required for admissibility because its meaning cannot
be determined without its context, or is so speculative that it ought to have been excluded because its prejudice
outweighs its tenuous probative value (hunter)
- Ex “I shot doug” - the person could have been saying “they say I ….shot doug….but I didn’t”
- It is unfair for the Crown to adduce only the part of a statement that incriminates an accused, while objecting to an
exculpatory portion (allison)
- Essentially drives the accused into the witness-box where he runs the risk of being disbelieved, and is
open to cross-examination on a number of matters (allison)
- Confessions have to be led in full or not at all (allison)
- *Doesn’t mean the crown has to say its all true
- Can say parts are true and others aren’t
- *its only presumptively admissible if the witness can appear in court and give testimony of the accused’s
admission - if that witness dies, bringing in their statement goes under hearsay
OFFICIAL ADMISSIONS
VOLUNTARINESS
- Common law rule - to exclude an accused’s out of court statement made to a person of authority, the defence
must prove it was involuntary on BOP
- Involuntary confessions are often unreliable
- Phenomenon of false confessions - leads to wrongful convictions
- Juries will accept a confession as true - why would someone confess when they didn’t do it
- If we allow police to use coercive powers - public will lose confidence in law enforcement, the justice
system and the courts
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- S.7-14 of the Charter are beneficial to an accused, but the Charter didn’t abolish the common law rule - the
common law confessions rule gives broader protection (oickle)
- Applies whenever a person in authority questions a suspect
- Charter represents a bare minimum, and the law can offer greater protection via common law or statute
- Twin goals - protect rights of accused, without unduly limiting society’s need to investigate and solve crimes
(oickle)
- Voluntary Confession Test: (oickle)
- 1. Can A prove on BOP that it was made to a person in authority?
- Its someone who is a perceived authority - an undercover police officer does not count (grandinetti)
- 2. Can the Crown prove BRD that it was voluntary?
- “moral persuasion” - you will feel better if you confess, stand up and be a man - etc.
- This is admissible
- Improper inducements: (oickle)
- 1. Operating mind - an investigation of whether the statements were freely and voluntarily made, even if
no hope of advantage and fear of prejudice could be found
- Ex - was the accused severely intoxicated, or in a state of complete emotional disintegration
- Crying during an admission is not sufficient (singh)
- 2. Legal inducement - quid pro quo, offering legal leniency in exchange for a confession (oickle)
- “if you admit they will go easy on you”
- “if you admit ill give you a deal”
- It can get complicated if the police intertwine moral and legal inducement
- “what do you aspire to? Don’t you want to still accomplish that? Your life can go on if
you talk - you will be out of here and you can fulfill that dream”
- 3. Offers of psychiatric assistance or other counseling in return for a confession
- Police interrogations should be recorded - offers tone and body language, shows more than notes can
(oickle)
- 4. Threats or promises
- Do not have to be directly aimed at A to have a coercive effect
- Threats can be subtle - “it wold be better if you confessed”
- 5. Oppression: If the police create conditions distasteful enough, a suspect may make a confession just to
escape those conditions (singh)
- Depriving of food, water, sleep, clothing or medical attention
- Denying access to counsel
- Excessively aggressive, intimidating questioning for a long period of time
- 6. Use of non-existent Evidence
- Not necessarily grounds for excluding a statement, but may be when combined with other
factors
- Police are allowed to exaggerate the reliability of incriminating evidence (oickle)
- 7. Other Police Trickery
- May be acceptable, but conduct that shocks the community will be excluded
- 3. If there was an inducement, was it causative of the confession?
- Must be contextual analysis: minor inducements may not exclude a confession
- Police may often offer some kind of inducement to obtain a confession - this is improper only when the
inducement, whether alone or combined with other factors, are strong enough to raise a reasonable
doubt as to whether the confession was voluntary (oickle)
- Its a subjective/objective test
- Accused’s actual perception - but it has to be reasonable
Confessions to Undercover Cops
- In order to trigger a voluntariness analysis, the accused must believe that the recipient of a confession can
influence the investigation by aiding, not thwarting, the states interests (grandinetti)
- Ex “since you’re in our gang, our man dying of cancer will confess for you - so tell us all the details”
would not exclude the statement
- The accused has to subjectively know that the person is of authority / able to secure some benefit for
them
- If its a promise of help via corrupt cops, the state’s coercive power is not engaged (grandinetti)
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- May be excluded in extreme circumstances
- Under abuse of process - when state does something so distasteful, evidence should be excluded
- If there is exceptional pressure on accused - ex tells A “you better confess or we won’t trust you and we
eliminate those people we don’t trust”
Confessions in General
- Weight:
- Also look at how consistent the confession’s details are with other evidence
- Were the details in the media?
- Are the details incorrect?
Admissions of Co-Accused
- In a joint trial - an admission by one party is only admissible against them (grewall)
- Policy: because A could confess to some involvement but make it look like B was the main culprit
- Then if A doesn’t take the stand, B can’t even cross-examine them
- A judge has discretion - if A’s confession has way too much about B, then judge can decide to keep it out because
jury can’t help but consider it against B too (grewall)
- Its in the public interest that those alleged to be jointly involved in criminality be tried together
- Policy - avoidance of inconsistent verdicts
- Economies of singular trial
- The mere fact that a co-accused is waging a cut-throat defence is not in itself sufficient to sever a trial
- The rule
- An accused is entitled to a fair trial, but not to exactly the same trial when tried jointly as A would have if tried
alone (grewall)
- But you can also edit the prejudicial parts out
- Editing must not affect the tenor of the statement
- Edited statements must be free from unnecessary prejudice, but the remaining portions must retain their
proper meaning
- The jury should have as much of the statement as possible
- Must give jury instruction that they can only use it against the accused who made it
CHAPTER 9: EXCLUSION OF EVIDENCE UNDER THE CHARTER
- When evidence against an accused has been obtained as a result of a charter breach
- S.10(b) - right upon detention to retain counsel without delay
- S.8 - unreasonable search and seizure
- S.9 - right not to be arbitrarily detained
- 1. Definition of “detained”
- For charter purposes - detention occurs when a state agent, by way of physical of psychological
restraint, takes away an individual’s choice to simply walk away (grant)
- A person is detained where he or she submits or acquiesces in the deprivation of liberty and reasonably
believes that the choice to do otherwise does not exist (grant)
- Psychological constraints amounting to detention: (grant)
- 1. Subject is legally required to comply with a direction or demand - ex roadside breath sample
- 2. No legal obligation to comply with a demand, but a reasonable person in the subject’s position
would feel so obligated / that they are not free to go
- Factors relevant to objective test detention:
- Circumstances giving rise to the encounter - general assistance, general inquiry, singling out an
individual
- Nature of police conduct
- Police placing a hand on the suspect’s arm
- Taking an aggressive stance
- Length of the encounter
- Depends on all of the circumstances
- 2. Is the detention “arbitrary” within the meaning of s.9 (grant)
- A detention is lawful if it is based on “reasonable suspicion”
- S.10(b) - right upon detention to retain counsel without delay (grant)
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- Upon detention, police must inform A of their right s.10(b) right to counsel, and if they choose to do so,
they need to help A obtain a lawyer, and must refrain from questioning A until he has contacted a lawyer
S.8 - unreasonable search and seizure
- A has to prove they had a reasonable expectation of privacy
- Home, office - generally recognized you have an expectation of privacy
- Subject to some exceptions - if police want to search those areas, they need to obtain a warrant
Exclusion of evidence obtained in violation of a Charter right: (grant)
S.24(2) where evidence is collected in violation of a charter breach, it should be excluded if, considering all of the
circumstances, its admission would bring the administration of justice into disrepute
- Focus is on systemic concerns - look at long-term consequences
- Must be proven on BOP by the accused
*OLD TEST* -- has been replaced by grant balancing test above
- Is the evidence conscriptive, or non-conscriptive
- Conscriptive - where accused participates in process of getting the evidence
- Ex providing a statement when you don’t know your legal rights
- Evidence is conscripted out of the accused
- Non-conscriptive - ex cops find a gun in your house without a warrant. It exists despite the
accused’s confession, the accused is not involved
- S.24(2) - conscriptive will almost always be excluded, but still want to consider all of the circumstances
S.24(2) TEST: balance the effect of admission on society’s confidence in the justice system, having regard to:
(grant)
1. Seriousness of the charter infringing state conduct
- Was it a good faith breach? An unintentional breach, tried to respect A’s rights but it was a technical
breach - Or a malicious/intended/deliberate breach
- Don’t want to send message that justice system condones state misconduct
2. Impact on the charter protected interests of the accused
- How serious was the violation from the accused’s perspective
- Ex looking in a desk drawer vs a cavity search
3. Society’s interest in the adjudication of the case on its merits
- The more serious the offence, the more interest society has in seeing it prosecuted
- Whether the truth-seeking function of the criminal trial process would be better served by admission of
the evidence or its exclusion
- Focuses very much on whether the breach undermines the reliability of the evidence
Application of s.24(2) to types of evidence: (grant)
(a) Statement evidence
- S.10(b) is part of a larger principle - the right against self-incrimination
- Need to contact a lawyer in order to know your rights
- The first 2 factors will often weigh against admission of statements obtained during a charter breach
(b) Bodily evidence
- Interests of privacy, bodily integrity and human dignity involved
- Will usually be favored by the 3rd branch - societal interest - because bodily evidence is usually reliable
(c) Traditional real evidence
- Ex guns, drugs etc
- Most often associated with s.8 right against unreasonable search and seizure
- Privacy is the general focus
- Overall balancing
- Did they have a warrant? Where did they find it?
(d) derivative evidence
- Evidence that combines statement and physical evidence - physical evidence discovered as a result of an
unlawfully obtained statement
- Discoverability - allows court to assess the strength of the causal connection between the charter
infringing self-incrimination and the resultant evidence
- The more likely it would be obtained without the statement, the lesser the impact of the breach against
self-incrimination
PRIVILEGE
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Privilege Against Self-Incrimination / Right to Silence
- Right to silence is under s.7
- This is a choice of the accused
- Where the accused knows he is talking to a person in authority, the voluntary test and s.7 test are
functionally equivalent (singh)
- Ie if a statement has survived a voluntary analysis, an accused cannot succeed in saying the statement was obtained
contrary to s.7 right to silence
- A suspect is usually thought to be the main source of information about the incident
- Importance of police interrogation to the investigation of crime
- Police have to ask questions in order to solve crimes
- There is a balance - not just all about individual rights
- If a person invokes their s.7 right to silence, the police can continue to ask them questions
- Its a right not to speak, not a right to not be spoken to (singh)
- There is a right to silence, the person should be explicitly told of this right upon arrest or detention
- Not necessary but strongly recommended
- Because after detention, a person is in a more vulnerable position
- May feel compelled to give a statement
- Warning should be given when there are reasonable grounds to suspect that the person being interviewed
has committed an offence
- Police are allowed to use legitimate means of persuasion
- Merely continuing the interrogation against the accused’s wishes is not a violation of the right to silence
- But police persistence in continuing the interview, despite repeated assertions by detainee that he wishes to
remain silent, may well raise a strong argument that any subsequently obtained statement was not the
product of a free will to speak to the authorities (singh)
- Can use (singh) as a marker - 18 times is not enough to say it was involuntary
- Factors to consider: (not determinative)
- Number of times A invokes the right
- Did the police, in continuing the questions, make statements over whether A has to talk
- Accused’s perspective - were they breaking down? Did they reasonably believe they had no choice?
Right to silence in non-detention circumstances
- Not permissible to view an accused’s non-detention choice of silence as post offence conduct (turcotte)
- While not in detention, a suspect still has a common law right to silence (turcotte)
- Silence is not a scenario from which to draw an inference of post offence conduct
- Would undermine the right to remain silent if a negative inference were drawn
- The fact that an accused chooses to provide some information, does not mean he waived his right - can still
remain silent on other issues
- It may be possible for the jury to hear about the silence if it has other probative value
- If the crown can establish a real relevance and a proper basis
- But it will need a limiting instruction (turcotte)
- Ex:
- To asses credibility in a joint trial when one accused talked and the other didn’t
- Narrative
- To avoid speculation - let jury know the conversation ended
- So they don’t assume more was said that they can’t hear
- Cases where A fails to disclose his alibi in a timely or adequate manner
Protection of a Witness
- S.13 of the Charter can force a witness to testify, but that testimony cannot be used to incriminate that witness in
any other proceedings except in a prosecution for perjury or giving of contradictory evidence (henry)
- EX what if a witness testifies at an accused’s trial that they were involved in a drug deal, then they are
tried for that drug deal and they say no I wasn’t involved
- You cannot use the previous statement and present it as a confession in the second trial
- But you can bring in the former statement to discredit credibility*
- Risk of jury using the past statement for its truth
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- Testimony from another trial may be introduced if its innocuous (noel, in henry)
- Ie - doesn’t hurt them other than the fact that there is an inconsistency
- Would be of no significance if it WAS used for its truth
- If, on a retrial, an accused refers to their past testimony, they waive their s.13 protection (henry)
- They open the door into their past statements
- That would apply to the same accused in two trials for the same indictment if the accused did not testify at
the second trial
- If the accused testifies at both trials for the same indictment - he waives his s.13 right (henry)
- Not fair to justice/truth to allow the accused to give a completely different story for the same trial just
because they got off the first time on a technicality
- Court makes a big distinction between a witness who becomes an accused and an accused who gives two different
statements at a trial and re-trial
- 1. Witness --> accused: quid pro quo, in order to encourage them to tell the truth, they get the full
immunity from s.13
- 2. An accused who testifies at his trial and his re-trial on the same indictment
- They are not compellable, so testifying is their choice - its voluntary
- If they are changing their story, s.13 does not apply
- *but this is only if the accused testifies at the second trial, if the accused doesn’t testify the
second time the crown can’t introduce their statement because that effectively forces the
accused to testify at the retrial which would offend s.11(c) of the Charter
S.83.28 Criminal Code
- Anti-terrorism act can compel people to attend judicial investigative hearing and answer all questions (re
application)
- Before a judge, with a prosecutor from the state
- You are NOT an accused
- Forced to talk about a prior of future terrorist action
- There are sanctions if you refuse to answer
- Protections under s.7: (re application)
- Derivative use immunity: cannot go find evidence based on their testimony, even if Crown can prove it
would have been discoverable by other means
- Use immunity: protects individual from having the compelled incriminating testimony used directly
against him or her in a subsequent proceeding
- Constitutional exemption: a form of complete immunity from testifying where proceedings are
undertaken or predominantly used to obtain evidence for the prosecution of the witness
- These protections are extended to extradition/deportation hearings, or proceedings in a foreign jurisdiction
SOLICITOR/CLIENT PRIVILEGE
Almost an absolute privilege - more sacred than doctor, counsellor etc
Has a constitutional dimension
Lawyers cannot operate unless clients are confident that they can confidentially speak to their lawyer
In order to incur privilege, have to show:
- Client spoke to lawyer about legal advice
- Ex business advice is not within legal parameters
- It was intended to be in confidence
- Waiver exception - the client holds the ability to waive, not the lawyer (shirose)
- Can be waived explicitly or implicitly
- Implicit - accused uses privilege to support something they say - once they open the door, its waived
(shirose)
- Ex consultation with lawyer used as basis for good faith defence
- By asserting that the interaction with the lawyer showed their good faith basis, the police were essentially
implying that the advice was that it was legal
- The defence has a right to know what it was and cross them on it
- Future crimes exception: (shirose)
- Privilege is waived if you get advice on how to commit a crime or how to obstruct justice/the law
- If lawyer seeks to facilitate the crime or is “duped” by the client
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- Innocence at stake exception: 2 stage test (brown)
- When an admission to a lawyer, by someone other than the accused, may contain a reasonable doubt as to A’s
guilt
- 1. Threshold
- Accused must establish:
- The information sought is not available from any other source
- A is otherwise unable to raise a reasonable doubt
- 2. Innocence at stake
- (a) A has to demonstrate an evidentiary basis to conclude that a communication exists that could raise a
reasonable doubt
- (b) if such an evidentiary basis exists, the judge should examine the communication to determine
whether, in fact, it is likely to raise a reasonable doubt
- The person whose privilege is violated gets protection, if that person is not the accused
- Cannot be used against them
- Gives use immunity and derivative use immunity
- Limit - does not give transactional immunity
- Immunity from any future criminal prosecution for the crimes which are the subject of the
solicitor-client communications