Evidenc

Evidence
Law 309: Final Outline 2015
Natalie Pawson

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Table of Contents
SOURCES AND GOALS OF LAW OF EVIDENCE

Basic Rule of Evidence (how to Determine Relevancy)

Goal of Evidence Law
Reasons to Exclude Relevant Evidence
Sources of Evidence
Trial Process

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PROOF WITHOUT EVIDENCE

Main Baskets of Evidence

Formal Admissions
Judicial Notice
Documents

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WITNESSES

To Be an Eligible Witness
Oaths and Affirmations
Calling Witnesses
Memory
Competency
Spousal Competency
Childrens Competency
Adult with mental disability Competency
Competency and Compellability of Accused

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RELEVANCY, PROBATIVE VALUE AND PREJUDICIAL EFFECT

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Exclusionary Rule #1: Residual Discretion

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BURDEN AND QUANTUM OF PROOF

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Persuasive burden
Evidentiary Burden
Civil Litigation
Criminal Prosecution
Miscellaneous Charges

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HEARSAY

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Hearsay Definition and Rule

*Mapara Test for Hearsay* - START HERE FOR AN EXAM
Categorical Approach
Exception: Res Gestae (Spontaneous Utterance)
Exception: Statements Against Interest
Exception: Prior Judicial Proceedings
Criminal Context, s.715 CC
Civil Context, Rule 12-5(54)
Exception: Statements Concerning Body and Mental Condition
Exception: Statements of Intention
Exception: Statements by Parties
Exception: Business Records
Exception: Prior Inconsistent Statements

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Principled Approach

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OPINION EVIDENCE

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General Rule
Exception: Lay Opinion Evidence (Non-Expert)
Exception: Expert Evidence
Mohan Test for Expert Evidence (Modified by Abbey)
Expert Evidence and Hearsay

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CREDIBILITY

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General
Child Witness Credibility
Rule Against Oath Helping
Exceptions: Expert Evidence
Exceptions: Reputation of accused (Evidence of Good Character)
Exceptions: Prior Consistent Statements
Impeachment
Expert Witness Witnesss Testimony is Unreliable
Evidence of Bad Reputation/CHARACTER
Prior Inconsistent Statements of Opposing Witnesses
Prior Inconsistent Statements of your Own Witness
Prior Convictions
Collateral Facts Bar
Corroboration for Accomplices

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RETENTION, PRESERVATION AND SPOLIATION OF EVIDENCE

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Duties
Spoliation
Electronic Documents

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CHARACTER AND RELATED ISSUES

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General Rule
Putting Character in Issue
Proving Character: Accused
Reputation
Specific Acts
Psychiatric Evidence of Disposition
Proving Character: 3rd Party
Proving Character: Victims
Similar Fact Evidence Doctrine
Thoughts For Reflection

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CONFESSIONS AND IMPROPERLY OBTAINED EVIDENCE

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Common Law Confessions Rule

Person in Authority?
Voir Dire Required?
Voluntary?
Oickle Test For Confessions
Confessions Confirmed by Subsequent Evidence
Mr. Big Confessions

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Hart Test

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PRIVILEGE AGAINST SELF-INCRIMINATION

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s.5 of Canadian Evidence Act

s.13 of Charter and R v Henry

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PRIVILEGE AND RELATED ISSUES

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Exception to General Rule of Evidence

Class/Blanket Privilege
Solicitor-Client Privilege
Exceptions to Solicitor Client Privilege
Criminal Purpose
Public Safety
Innocence at Stake
Litigation Privilege (work product)
Implied Undertakings of Confidentiality
Settlement Privilege (without prejudice)
Spousal/Matrimonial Privilege
Informer Privilege
Public Interest Privilege
Case-By-Case Privilege
Test to Determine if Privilege Exists
Production of 3rd Party Records

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Sources and Goals of Law of Evidence

Basic Rule of Evidence (how to Determine Relevancy)

All Evidence is admissible IF it is:

Relevant and material to matter in issue; AND
o Logically relevant does the evidence tend to disprove/prove fact in issue?
o Legally relevant
NOT subject to exclusion under any other rule or policy (exclusionary rule)

Process of Evidence:
1. Is the evidence relevant to a material issue?
2. Is it subject to an exclusionary principle?
3. If admissible, what weight does it deserve?

Relevancy Test: any matter that has any tendency as a matter of logic and human
experience to prove a fact in issue (Watson, Morris) (pg.90)
o Does existence of Fact A make existence/non-existence of Fact B more/less
probable than it would without Fact A?

Goal of Evidence Law

Truth prove the facts in issue (legal truths)

o Rules of evidence can operate to limit truths/evidence
Fairness if fair process, more likely to have fair result

Issues: A2J concerns regarding financial issues for litigation

Reasons to Exclude Relevant Evidence

Reasons to exclude relevant evidence:
o Social Policy basis for doctrine of privilege
o Fair play fairness in process, basis for rule of hearsay (dont want gossip to
convict)
o Weight air of evidence (do you believe it? What weight does it get?)

Sources of Evidence

Common Law case law

Statutory Law Canada and BC Evidence Act, Criminal Code
o CEA: applies in federal court, criminal matters, non-criminal federal prosecution
o BCEA: applies to matters in provincial jurisdiction, civil litigation
Aboriginal Law allows for evidence by oral tradition
Constitution and Charter ensures admin of justice doesnt fall into disrepute (s.7,
13, 11(b), 15)

Trial Process
1. Look at indictment/summary conviction for information of charge
a. Sets out charges with particulars of allegation facts Crown must prove BARD by
tendering evidence
b. If evidence falls short of BARD, D can ask for acquittal
c. Direct/Cross examination of witnesses to prove evidence

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2. Conclusion of evidence closing argument about weight to be assigned
a. Heard by Judge alone or Judge and Jury
i. Judge = questions of law, admissibility (what goes to jury)
ii. Jury = questions of fact, weight
3. Civil proceedings: information is in the pleadings/notice of civil claim
a. Lay out allegations and cause of action
b. Discovery to determine facts surrounding the claim

Proof Without Evidence

Main Baskets of Evidence

To get into a basket, evidence must be MATERIAL AND RELEVANT, not subject to
exclusion
1. Formal Admissions TRY THIS FIRST (good practice)
2. Judicial Notice TRY THIS FIRST (good practice)
3. Witnesses
4. Documents
If you want to give evidence, must be authenticated by a witness

Formal Admissions

General Rule: Any party in a proceeding can admit a fact in issue and dispense
with need for proof by other party
o Only deal with points of contention, instead of basic things saves time and
money

Criminal Context: 2 forms

o

Plea omnibus admission, admitting to all facts necessary to establish the

elements of the offence as set out in the indictment (relieves Crown of BARD
burden)
NOTHING MORE than basic elements of the offence Crown may want
to rely on other things for sentencing (add colour), must prove those
facts BARD
Made if evidence isnt there for allegations (Air India) plea for
manslaughter accepted because not enough evidence for 1st/2nd degree
murder
No guarantee of sentence courts jurisdiction so cannot bargain with
Crown for this, court can do what they want (careful not to mislead!)
Positives: accept responsibility, facilitate rehab, certainty of outcome for
conviction, relief of witnesses/victims, meaningful for sexual assault
S.606 CC court must be satisfied the plea is voluntary, A understands
what plea means, court not bound by agreements between parties
Potential to withdraw plea difficult: requires (pg.750)
1. Valid reason for withdrawing
2. Consider if plea was informed, voluntary, overall justice
Issues: accept guilty plea if there isnt reasonable likelihood of conviction
otherwise? Allow client to plea if you think they have a case?

Admission as to discrete facts less than guilty plea, admit to some facts but
not all
Can be in writing or oral, vary in scope/content depending on situation
Good practice to admit facts not in issue

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Common in regulatory proceedings

Potential arguments: if fact admitted, look to words used to frame
admission, interpretation to fact admitted is open!! analyse
critically

Civil Context
o Admission can be made by formal statement in pleadings or by failure to give
pleadings (every pleading begins with D denying/admitting claims set out
admissions)
o Can be through agreed upon facts between the parties (oral or letters
requesting admission written before trial)
Failure to respond is bad practice, unreasonable potential cost orders for
not replying to requests, delays dispute
Potentially unethical/sharp practice
Issue: may just not have enough money to respond? A2J
o BC Rules of Court, Form 2

Judicial Notice

If unable to admit something under Formal Admissions, try this next

Rule: judges presumed to know nothing
o Exception to the rule: allowed to take JN of a fact and dispenses with
requirement that parties prove the fact
o Morgan Test: Court may take JN of facts that are either so notorious or
generally accepted as not to be the subject of debate among
reasonable persons OR facts are capable of immediate and accurate
demonstration by resort to readily accessible sources of indisputable
accuracy (Morgan, NFLD v NAPE)
Rationale: avoid situation where court reaches factual conclusion that contradicts
accessible sources of indisputable accuracy (NFLD v NAPE)

Can take Judicial Notice of:

o

Things Generally Known based on ideas of fair play, so obvious it would be

silly to make people prove them (Spence)

The Law domestic law is automatically proven

DOES NOT apply to foreign law! must prove this by use of expert, unless
you get the other side to admit it (usually ignore this unless it makes a
difference)
S.24(1) CEA court must take JN of native treaties
Other related material must be integrated/referenced into legislation to
fall under this, like guidelines (St.Lawrence)

Facts fact must be clearly uncontroversial to take JN of, otherwise it wouldnt

be fair to the other side who doesnt have chance to defend against it strict
enforcement of threshold of notoriety from Morgan Test

Apply the Morgan Test: application will depend on how important the
fact is
Dispositive = really important, case turns on them (strictly
applied)
o Difficult to have JN here fact must be notorious
Less dispositive = less important, draw inferences from them
(elastic)

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Adjudicative = to be decided by DM,

o Meaning of Roma and Gypsy, just use dictionary for
adjudicative facts (Kermusky)
Social = context, economic, social scientists used if important
o Biases and social attitudes, unlikely to take JN (Find)
Legislative = non-adjudicative that establish purpose/background
of legislation with social, economic and cultural context (Danson)

Morgan TEST: adjudicative has STRICT application (Find) and legislative has elastic
application (Spence)

Can take JN of FACTS that are either:

1. So notorious or generally accepted as not to be the subject of debate among
reasonable persons; OR
2. The facts are capable of immediate and accurate demonstration by resort to readily
accessible sources of indisputable accuracy

If it is a legislative fact and it does NOT meet the Morgan test: (Spence)
1. Would the fact be accepted by reasonably informed people as not being subject of
reasonable dispute for the particular purpose for which it is used?
2. The more dispositive the fact, the greater the need for truthfulness and reliability

Discussion about Funt J. bringing introducing his own research (Jan.13)

Documents

Rule: Documents must be brought into body of evidence through authentication by

witness (verification by witness that something is what it is alleged to be: is this the
gun you found?)
Process: often through a series of witnesses, chain of evidence/continuity person who
found it is not always the same person who arrested or entered it in the locker or came
to trial
o Use witness to link evidence to the crime, then another witness to authenticate
o Pens example: prove that the pens seized by officer (are these the pens you
seized?) were the pens that were stolen (are these the pens stolen from you?)
Exceptions to authentication rule: certain documents have inherent reliability so
you dont need to verify that through authentication (BCEA, CEA)
o Business records statement of fact recorded in business record is admissible
as evidence of that fact IF:
Document is made in the usual course of business; AND
It was a usual and ordinary practice of the business to make a document
of that nature
o Get witness to confirm it was usual course of business to make document, if
confirmed then you can rely on entries as fact

Witnesses

Rule: all information from trial must be brought into evidence through a witness (see
Documents) to verify facts
Largest source of evidence

To Be an Eligible Witness

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To be eligible to testify: All witnesses are presumed competent and all competent
are compellable
o Give a oath or solemn affirmation (or other similar substitute) tell the truth
o MUST be competent (able to) AND compellable (forced to/must)

To determine if a witness is eligible, ASK:

1. Threshold question: Are they competent?
a. General rule everyone is competent, even children
b. Ask if they have personal incapacity that would exclude them
2. Are/should they be excluded for policy reasons?
a. General rule competent witness is compellable (by subpoena)
b. See exclusions for competency can they be made to testify?
c. Main exception: accused cannot be forced to testify against themselves
(s.11(d)
3. If witness is competent AND compellable, are there any parts of the evidence
that would be excluded by doctrine of privilege?
a. See Privilege section

Oaths and Affirmations

Rule: Witnesses must swear an oath to tell the truth (religious) or provide solemn
affirmation to the same effect in order to testify
o S.14, CEA and s.20, BCEA in lieu of oath, can make solemn affirmation
o S.21 BCEA if person has no religious belief or different belief, no effect on oath
o S.6, CEA and s.17, BCEA accommodation for people with disabilities

CL requirement: person must understand it is a serious oath and there is an obligation

to tell the truth, court must be satisfied they understand
o Low threshold moral obligation to tell the truth (no spiritual requirement),
must understand the seriousness of nature and consequences to be
competent, mere assertion to tell the truth will be sufficient (Bannerman,
Walsh)
Credibility of witness is dealt with after evidence is heard (Walsh)

Exception: evidence in affidavits evidence that would otherwise be given through live
witness
o S.55 can make statement of fact, opinion, belief or knowledge through affidavit
Appendix A of Rules of Court, Form 109
o Must be written in the witnesses voice and reflect the language they would adopt
on the stand must be ready for cross on the affidavit, legalese would be difficult
o Swear oath here too lawyer must be satisfied of same thing or potential
misconduct
o Review to see if any parts opposing affidavits would be inadmissible and make
application to strike out any objectionable parts
Strike out based on PV vs. PE of evidence

Calling Witnesses

Viva Voce (live witness): witness evidence that is given in either direct or cross
examination
o Method to bring forward affidavit evidence (Civ.Pro. Rule 22.2(12))

Direct Examination questions by party calling the witness

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o
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NO leading/closed questions just open ended, descriptor questions (tell a

story)
No prompting allowed (evidence could then be objectionable and get
lesser weight if admitted at all)
Be very careful about how questions asked
Exception: hostile witness and non-controversial matters
If convince court that the witness is hostile, then can switch to leading Q

Cross Examination questions by opposing party of other parties witness

o Ask leading or closed questions
o Wider latitude given questions on either:
Facts in dispute: if they can prove facts here, dont have to call their own
witness (cost effective)
Assessment of Witness: difficult asking about reliability and
credibility
Is evidence impaired by ability to perceive evidence? Might be less
reliable evidence
Quality of memory drunk, trauma, illness, age, subsequent
contamination (new memory overrides original)
Credibility telling the truth? Find discrepancies in evidence,
motivation to lie
Distinction between reliability and credibility!!!

Ways to assess truth are all problematic (polygraphs) use facial expressions generally,
gives rise to cultural issues (R v NS)

Memory

Past Memory Refresh: permission to use stimulus to refresh memory as long as the
memory being refreshed is a PRESENT memory (Fliss)
o Cannot create a new memory, just refresh present one eg. Drive to crime scene
before trial, cannot testify about what they saw on the drive, must be about day
of crime
o Recognition of how memory works
o If concern, ask stimulus to go into evidence describe how it has contaminated
the memory and court can reject evidence or assign it less weight

Past Recollection Recorded: memory that was recorded in a reliable way and witness
asserts it accurately reflects their knowledge/recollection at the time (Davey, pg.78-79)
o Use to overcoming shortcomings in memory
o Conditions to use record (Davey)
Establish memory was recorded in a reliable way
Sufficiently fresh and vivid, accurate
Witness asserts that it accurately reflects their knowledge and
recollection at the time, knew it to be true
Original must be put into evidence (or photocopy if original unavailable)

Limitations for memory on cross: must put to a witness the facts on which you
intend to rely on to impeach their evidence, fair play (Brown v Dunn)
o Obligation to lay foundation for cross raise every issue, but CANNOT be a
fishing expedition, must have good faith basis for asking question (Rondell,
Lyttle)

Very important for lawyers to keep accurate records cannot remember every
case

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Concern about contamination of witness memory

Competency
SPOUSAL COMPETENCY

Civil cases: spouses are competent and compellable

Criminal cases: COMPLEX (law about to change?) defence can call spouse but Crown
has limits
o

For analysis, start with Statute (CEA), then go to CL:

S.4(1) spouse is competent witness for defence
S.4(2) spouse is competent and compellable by Crown ONLY for
charges that involve the safety of person, liberty or health of the witness
spouse
S.4(3) spouse cant be compelled to disclose communication made
during marriage, essentially spousal privilege (see Privilege section)
S.4(4) spouse is competent and compellable by Crown ONLY for
charges that involve violence against children (sexual or otherwise)
S.4(5) preserves CL rules

Common law: spouse incompetent witness for Crown in criminal cases where
spouse is accused EXCEPT if it involves person, liberty or health of witness
spouse (same as 4(2)) (Salituro, Hawkins)
Irreconcilably separated spouses can be competent witness for Crown, no
marriage bond to protect (Salituro)
Rationale: would cause discord between spouses, favouring marital harmony
and valuing marriage over testimony (Salituro)

Victim Bill of Rights: calls for 4(2) to be amended no person is incompetent witness
for Crown only by reason of marriage to the accused
o Would eliminate CL and only Spousal Privilege would remain

CHILDRENS COMPETENCY

S.16(1) children under 14 years presumed to have capacity (previously presumed

incompetent) (Bannerman)
o (2) dont have to take oath or make affirmation
o (3) evidence to be admitted if they can understand and respond to questions
o (6) just have to promise to tell the truth

Weight may have less ability to observe, recollect, frame responses, varying
understandings of moral responsibility to tell the truth

ADULT WITH MENTAL DISABILITY COMPETENCY

S.16(1) conduct an inquiry to see if person understands the nature of the

oath/affirmation and if the person is able to communicate the evidence
o (2) if they understand and are able to communicate, continue
o (3) Unsworn Evidence: if they dont understand nature of the oath BUT are
able to communicate, they can testify on promise to tell the truth
o (4) if they dont understand nature of oath AND arent able to communicate,
will not be allowed to testify

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COMPETENCY AND COMPELLABILITY OF ACCUSED

S.4(1) accused is competent to testify in their own defence (starting point!)

S.4(6) failure of accused to testify shall not be subject of comment by judge or Crown
o S.11(d), Charter CANNOT be compelled to testify against themselves
o Failure of A to testify cannot be used as evidence to help Crown prove BARD,
right to silence, presumption of innocence and right against self-incrimination
(Noble)
o No onus to prove innocence by taking the stand when incriminating evidence
comes forward (McConnell) tell jury about the right (pg.66)
o TJ should explain right to remain silent to jury (Procefuw)
o EXCEPTION: if D is putting forward defence of alibi, by not testifying about the
alibi, can draw inverse evidence from silence (Procefuw)
Failure to give evidence in time (disclose in timely fashion) can draw
inverse
Rationale: alibis easily fabricated crown entitled to investigate
(Procefuw)

If crowns argument isnt sufficient to prove case BARD, DO NOT put accused on
stand defence on the weaknesses of Crowns case
o Must consider manner of accused as to whether to put them on the stand

Relevancy, Probative Value and Prejudicial Effect

Exclusionary Rule #1: Residual Discretion

Otherwise relevant evidence will be excluded if PE (to A or witness) outweighs

PV relevancy will not always = admission (Watson, Seaboyer)

Direct Evidence: statement of fact (it is raining)

Circumstantial Evidence: facts to draw reasonable inferences from to establish facts
o Does existence of fact A make the existence/non-existence of fact B more
probable than it would without fact A? (Watson)
o STOP before Speculation! no stereotypes or assumptions
o Eg. Motive, means by which something was done, post-defence conduct (what
they did after the fact to prove what they did)

Residual Discretion: specific and general exclusionary rule at discretion of TJ

o If evidence is relevant to material fact and not subject to specific exclusionary
principle, can it be excluded under general RD?
o Balancing: does Probative Value outweigh Prejudicial Effect?
o Criminal Context
Crown If PE outweighs PV = exclusion
Defence if PE substantially outweighs PV = exclusion (more freedom)
o Civil Context same for both parties
Policy: some trust TJ to use discretion to deliver equity where law creates unjust result
and some are concerned because they dont trust judges (potential for bias,
stereotypes, discrimination)
o Lord Mansfield: the law of Tyrants is discretion (always unknown result, depends
on temper of the judge)
o After Seaboyer: drafted legislation for process of balancing, s.276.1 CC

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Probative Value: importance of the evidence judge will look at:

o How strong the evidence is (direct/compelling evidence)
o If it goes to the facts at issue
o If circumstantial then to what extent does it support an inference
o How material is it (close connection to facts in dispute?)

Prejudicial Effect: judge will assess the likelihood that evidence is going to have a
detrimental effect on trial or create unfair disadvantage to A
o 5 forms of PE to be concerned with: (Seaboyer)
1. Danger the evidence will arouse the jurys hostility, emotions,
sympathy
2. Danger the evidence will create a side issue that will unduly distract the
jury from the main issue (protracted trial)
a. Might be relevant to a dispositive issue, but not the main one
3. Concern that it will consume an undue amount of time (time
consuming to deal with that piece of evidence)
4. Danger of unfair surprise to opponent tolerated for D, NOT for Crown
5. Will usurp the purpose of the jury and determine the issue (eg.
Experts)

Burden and Quantum of Proof

How much evidence should party tender to discharge obligations?

o Onus = Who: the party that has the onus has to prove something
o Standard/Quantum = How Much: what level of proof is required
Burden of Proof = Onus + Standard/Quantum

Persuasive burden

Burden with party that is required to prove facts in order to succeed (Crown in
criminal, plaintiff in civil absent reverse onus)
o

Beyond a Reasonable Doubt something more than probability but less

than absolute certainty (Lifchus) (will change depending on charges in
practice not in theory)
Burden will NEVER shift from Crown (WD) lack of As credibility doesnt
mean there is proof BARD
Intertwined with presumption of innocence (Lifchus) be really sure they
are guilty before depriving of freedom
Must be logically connected to evidence/absence of evidence, based on
reason and common sense, NOT sympathy/prejudice (Lifchus)

If accused takes the stand, TJ must give these instructions: (WD)

1. If you believe, you must acquit
2. If you do not believe but left with RD then you must acquit, OR
(modified by court in R v JHS) if you cant decide who to believe, you
must acquit,
3. Even if left in doubt by evidence, must ask whether on basis of the
evidence you do accept if you are convinced BARD of the guilt of
accused

Balance of Probabilities more probable than not (Denning), 51% sure

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In practice, it is floating standard depending on charge (sexual

misconduct or integrity offences would have higher)

Evidentiary Burden

Air of Reality Test (Sum Evidence test) burden with the party whose duty it is to
RAISE the issue
o Generally with A in criminal context duty to raise a defence and prove it
o Must advance some evidence defence must have an air of reality
(Cinous)
o If there is ANY evidence sufficient to justify the defence, it MUST be put to the
jury (Pappajohn) does the evidence support the theory of defence? (Pappajohn)
Burden discharged it there is some evidence that a jury could use and
decide the issue (Fontaine)

Test for Acquittal: if there is any evidence which if believed by a properly instructed
jury, acting reasonably, would justify a conviction, TJ may NOT enter an acquittal
(Monteleone)
Defence of Automatism (insane, non-insane) requires A to prove elements BOP to meet
the evidentiary burden (Stone)

Civil Litigation

PB on plaintiff (aspect of EB within this) on BOP

o If P cant show some evidence may be application for non-suit (early dismissal,
D is saying there isnt enough evidence to justify going to trial)
o P can bring application for summary judgment (Rule 18) defence is so weak
that it isnt worth going to trial

Criminal Prosecution

PB on Crown on BARD
o Failure to prove PB BARD (even EB) results in application by accused for directed
application for acquittal (=non-suit in civil)
EB on Accused for defences and have an air of reality applies to ALL defences
and only have to prove on BOP

Miscellaneous Charges

Regulatory can have strict liability offences (Sault St. Marie): crown discharges PB by
proving actus reus and then onus shifts, A has PB to show due diligence on BOP
Constitutional claimant has PB to prove charter breach on BOP, if breach found, then
onus shifts to Crown and prove the breach was justified under s.1 to standard of cogent
and persuasive (between BOP and BARD, more rigorous than BOP)
Reverse Onus allowed in exceptional circumstances (Eg. S.16)
o Challenged as unconstitutional but upheld (Oakes)
Appeals Can you appeal? On what ground: question of law and/or fact? What
can Crown do? What can Accused do?
o Civil: no appeal from finding of fact UNLESS it is established that TJ made a
palpable, overriding error (Stein v Kathy K)
o Criminal: Crowns appeal right is limited to questions of law ONLY
Accused s.675 allows appeal on question of fact or mixed law and fact
BUT must have leave of the court to determine appeal:

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Was the verdict one that a jury properly instructed and acting reasonably
could have rendered? objective and subjective assessment
(Biniaris)
Applicable to judgement of sole judge as well (ID flaw in
reasoning that explains conclusion and justifies reversal) (Biniaris)

Hearsay
Hearsay Definition and Rule

Definition: an out of court statement tendered for truth of its contents (Williams,
Khelawon, pg.248), includes express and implied hearsay
o Declarant isnt present in court (dead, unable to come, out of jurisdiction, cant
find them just not in court)
o Eg. My mom says you have an allergy to barley hearsay if that is tendered as
evidence that you have an allergy to barley
If tendered for a different purpose, it is NOT hearsay
Eg. My mom says I have an allergy to barley which is why I dont drink
beer allowed if it is tendered to prove habit (not drinking), rather than
allergy

Non-hearsay words when a statement is NOT offered for its truth, it will NOT be
hearsay (Wildman, Subramaniam)
Implied Hearsay equivalent of express hearsay, assertions that can be implied form
words or assertive conduct (Wright v Tatham, Wysochan, McKinnon)
o Assertive conduct (pointing, shaking or nodding head) = hearsay (Wright v
Tatham)
o Non-assertive conduct = NOT hearsay (McKinnon)
o Statements that imply fact but found to be circumstantial are NOT hearsay
(Wysochan)

To determine if something is hearsay, identify the purpose it is used for

(Baldtree)
(1) Material issues?
(2) Statement made out of court?
(3) What fact is the statement being used to prove?
(4) What is the relevance of the fact?
Onus on party trying to admit the hearsay (Khelawon)

Rationale: hearsay is presumptively inadmissible because of difficult in testing

reliability of assertion (Baldtree, Khelawon, pg.248) dont want to convict someone
based on gossip
o Difficulty in assessing what weight (if any) should be given to a statement by a
person that the judge and jury have not seen testify and statement hasnt been
subject to cross examination (Blastland)
o Additional concerns: (Baldtree)
1. Misperception of facts
2. Wrongly remembered even if correctly perceived
3. Narrative may have occurred in unintentionally misleading manner
4. Sincerity may have knowingly made false assertion

Constitutional Element to Hearsay: s.7 As right to full answer and defence, but
not a right to cross examination

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Require cross of hearsay because the basis of the system is that trustworthiness
can be brought to light under examination (Khelawon)

*Mapara Test for Hearsay* - START HERE FOR AN EXAM

1. Hearsay is presumptively inadmissible UNLESS it falls under an exception to the hearsay

rule (traditional exceptions to the hearsay rule remains in place under categorical
approach)
2. A hearsay exception can be challenged to determine whether it is supported by
indicia of necessity and reliability, required by the principled approach. The
category of exception can be modified as necessary to bring it into compliance
3. In rare cases, evidence from (2) may be excluded because indicia of necessity and
reliability are lacking in particular circumstances (no sufficient guarantee of
trustworthiness)
4. If no exception applies, it MAY STILL BE ADMITTED if indicia of reliability and necessity
are established on a voir dire (catch-all) principled approach

Categorical Approach

Hearsay is presumptively inadmissible UNLESS: (Baldtree) see Mapara Test

1. It falls under a traditional exception (categorical approach); OR
2. If indicia of reliability and necessity are established on voir dire (principled
approach)

Someone should get rid of these categories - Lawrence

EXCEPTION: RES GESTAE (SPONTANEOUS UTTERANCE)

If statement is made under immediate and uncontrolled domination of senses and

during brief period when considerations of self-interest could not have been brought
fully to bear by reasoned reflection, the utterances can be trustworthy and admitted as
exception (Clarke)
o Words become part of the event (stick em up during a robbery)

Rationale: statements in this context are somehow reliable, danger of insincerity is

minimized because there is no opportunity to fabricate or danger of faded memory
just reacting
o Problematic! rarely gets questions because of long history as an exceptions
o What about misperception? Overly sensitive peoples statements? Less likely to
lie or no ability to lie in situations?

STILL CONSIDER RESIDUAL DISCRETION AND BALANCING!

EXCEPTION: STATEMENTS AGAINST INTEREST

Declarants statements that are against their own interest (penal, pecuniary,
proprietary) will be admissible for truth (OBrien)
o Rationale: why would lie about thing against your own interests?
o If declarant is unavailable AND the statements are against their interest, should
be admitted (Pelletier)

Conditions for Admission of Statements: (OBrien from Ward, Pelletier, Demeter,

pg.171)

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(1) Fact must be within knowledge of declarant
(2) Fact was made to immediate prejudice of declarant (not conditional on future
event that may/may not happen)
(3) Declarant knew statements were against his interests when they said it
(4) Must be unavailable to testify (i.e. dead, insanity, grave illness, absence from
jurisdiction list is not exhaustive)

Criminal context: statements against penal interest are ONLY admissible to exculpate
the accused, not inculpate incriminates them without chance to cross examine (Lucier)

Problems: assumptions about human nature might not be sound

o No regard for mental illness

EXCEPTION: PRIOR JUDICIAL PROCEEDINGS

If declarant testifies at prior proceedings but is unable to testify at current proceedings,

testimony is hearsay
o CL exception BUT it has been displaced (Feb.5)
Criminal: displaced by s.715 CC
Civil: displaced by Rule 12-5(54)

Criminal Context, s.715 CC

S.715 witnesses whose evidence was given at PP of same charge who refuses to be
sworn OR is no longer available, if their evidence was given in presence of accused and
subject to cross examination (reliable) can be admitted without further proof
o If accused had opportunity to cross witness without undue limitation, that will be
enough (Potvin) if they didnt take advantage of it at the time, too friggin bad
(Potvin)
Judge has RD to exclude evidence even if it is admissible here
Problems: might be unfair if Crown uses it (didnt try hard enough to find witness? A
has no resources to investigate, Crown knew they wouldnt be available but didnt tell A)
o Judge still has RD though if there is unfairness
Useful for similar face evidence series of sexual offences, wanted proof of 1 past sex
crime conviction and it was sufficiently similar that you could infer guilt for the others
(Jesse)
o Rely on previous convictions to prove guilt, not having to reprove entire thing

Civil Context, Rule 12-5(54)

Liberty is not at stake so rules are relaxed

Prior criminal proceeding and conviction used in civil trial will be hearsay but very
reliable
o BCEA as long as ALL appeal rights are exhausted/expired, proof of conviction
or finding of guilt is admissible as proof that A committed the offence

EXCEPTION: STATEMENTS CONCERNING BODY AND MENTAL CONDITION

It hurts, I feel sick, Im dizzy must be contemporaneous with condition described

and it will be admissible for truth of its contents (no other way to prove feelings)
(Youlden)
o Reliability drawn from spontaneity (problems like for res gestae?) (Youlden)
o No other way to get that information dont know what the person is feeling or
mental condition unless they say it

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LIMITS: cannot speak to past pain, statements about causes of the pain (Youlden)

EXCEPTION: STATEMENTS OF INTENTION

Evidence of declarants state of mind is admissible (PR)

o If it shows direct or inferable intention, then it is admissible as evidence that they
acted on that statement of intent (PR)
o ONLY speaks to declarants state of mind, NO ONE ELSE
o Generally only relevant if acted upon (something happens because of
intention)

Ask: Is this even relevant?

EXCEPTION: STATEMENTS BY PARTIES

Different from Formal Admissions and Statements Against Interest

Criminal: dealt with under Confessions
Civil: available to capture statements made by ANY party to civil proceeding
o Anything the other side said or did EVER is admissible so long as it is
relevant
o Consider RD!!
Rationale: same for statements against interest reliable because it is made by that
party
o Hard to guard the client against and prepare them for interviews by
police

EXCEPTION: BUSINESS RECORDS

Self Authenticating Documents (see Proof Without Evidence)

Contents of documents are hearsay if tendered for truth of contents
o If it is not a self-authenticating document, is it a business record to get in through
this exception category?

CL position (pg.193)
o S.29, CEA entry is admissible in absence of proof to contrary, provided it was
made in normal course of business, ordinary record and in custody of institution
and is a true copy
o S.30, CEA oral evidence would be admissible where record made in respect of
the matter is admissible (in ordinary and usual course of business)

Rule for admitting Business Records requires: (Monkhouse)

(1) Original entry;
(2) Made contemporaneously;
(3) In the routine;
(4) Of business;
(5) By a recorder functioning in usual and ordinary course of business in preparation
of business records;
(6) Who had a duty to make that record; AND
(7) Has no motive to misrepresent.

EXCEPTION: PRIOR INCONSISTENT STATEMENTS

See Credibility

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Generally NOT admissible for truth but is admissible to challenge voracity of the
statement given at trial do we believe what you are saying now or what you said
then?
Difficult to have them go in for truth exceptions are KGB statements (KGB), based on
PA
PIS will be admissible for truth of contents IF it has sufficient guarantees of
trustworthiness (reliability on BOP) to determine if PIS is admissible (KGB)
o

Threshold: PIS are only admissible if they would have been admissible as
witnesses sole testimony (if they couldnt have made statements at trial, cant
be admitted through back door)
Threshold reliability is different from ultimate reliability can meet
threshold but be assigned very little weight under ultimate reliability
(Hawkins)

Reliability: New Admissibility Rule

(1) That statement has been made under oath (or equivalent), following
administration of explicit warning to witness about results of lying under oath
(2) If statement is video taped (duplicates experience of seeing witness in
courtroom)
(3) Opposing party has opportunity to cross examine witness respecting the
statement

Necessity: for recanting witnesses, it is NECESSARY to admit them because

they are recanting them no other way to get the same evidence of same value
from any other sources so it meets requirement

Principled Approach

Movement away from categorical approach seen as arbitrary, ad hoc

o Outlines problems with categories (Myers, UK)
Lord Myers: against public policy to have uncertainty which comes from
categories, PA has air of common sense but problematic in practice
o Minority view from Myers followed in Canada, rules must be restated (Ares)
o Revolution and Principled Approach (Khan, Smith, KGB)

Principled Approach: flexible and functional

o Reliability sufficient guarantees of trustworthiness OR substitutes for testing
reliability
o Necessity necessity of evidence to prove a fact in issue (Smith)
Are there other ways to get the evidence or is hearsay the only way to
get it? (dead, trauma (Khan), out of jurisdiction, recanting witnesses and
PIS)

Problematic on the ground! certainty AND uncertainty now

o Difficult to figure out if evidence will be admitted in any particular case
o Effort to be more fair and common sense BUT it jeopardizes trial process
Used to be able to know if it would fit in a category, now who knows?
o Better to have technical clear world (Lord Reid, Myers) or with common
sense but some uncertainty? (Lord Pierce, Myers)

Khelawon Articulation of Mapara (pg.249-50, 56)

(1) Starting point: hearsay is inadmissible

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a. When
i.
ii.
iii.
iv.
v.

there is a statement:
Is it out of court?
Is there something implied?
Is it conduct? Assertive or non-assertive?
Tendered for its truth?
Why is it being tendered?

(2) Can it be fit under an exclusion category?

(3) If it can be fit under the category, is it open to challenge on grounds of insufficient
indicia of reliability and necessity as required?
a. If so, can it be modified to bring it into compliance?
(4) If it doesnt fit in a category based on a strict application, can you be satisfied there is
sufficient indicia of reliability and necessity OR is it a rare case where there is a lack and
it should be excluded?
(5) If it is a statement clearly outside ANY existing category (Smith, Khan), should it still
be admitted under the Principled Approach because there is sufficient reliability and
necessity?
(6) Should otherwise admissible evidence be excluded under residual discretion
because PV doesnt outweigh PE? (Smith)

Opinion Evidence
General Rule

Rule: opinion evidence of witness is NOT admissible can only testify about
facts
o It is for trier of fact to decide on inferences to be drawn

Exception: Lay Opinion Evidence (Non-Expert)

Can give lay opinions IT they relate to matters within common knowledge or expression
of perceptions (height, speed, distance, intoxication (Graat), age)
o NOT allowed if it goes to the ultimate issue, a legal issue OR questions
of mixed law and fact (Graat)
Generally buttress opinion with facts to lay foundation for how opinion was formed

Exception: Expert Evidence

Expert evidence is admissible must meet the Mohan/Abbey test to be admitted

o Admissible to assist trier of fact if they have knowledge beyond a lay person,
help dispel myths and stereotypes (Lavalee)
An experts opinion is admissible to furnish the Court with scientific information which
is likely to be outside the experience and knowledge of a judge or jury.
o If on proven facts a judge or jury can form their own conclusions without
help, then opinion of the expert is unnecessary (Abbey)
o What is outside knowledge of judge and jury? changes over time
Concern: could lead to miscarriage of justice and wrongful convictions, opinion based
on research which is not before the court to test, expensive (A2J issues), potentially
immune to effective cross if lawyer doesnt have same knowledge or own expert advice

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o

Main concern: ultimate issue, usurp job of trier of fact jury might abandon
role and defer to expert or overvalue their opinion (more important the more
dispositive the fact)

Novel Science: is the science sufficiently established so as to have general acceptance

in the field where it is from? (Fry)
o Must be capable of testing, findings subject to publication and peer review
(Daubert)
o Concern about potential for error (Daubert)
o Reliability be careful!!
o Polygraphs: not expert evidence, goes to credibility of witness and that is the
function of the judge and jury (Beland)

Expert Reports: rules, timelines for them (See Privilege)

o Civil: Rule 11.3 allows court appointed expert to sit in and assist judge
Rule 11.6 allows for notice of expert testimony (at least 30 days before
trial)
Must understand role as aid to judge, NOT an advocate, no matter
what side is paying them and certify this in the report sufficient
independence?
o Criminal: s.57.3 notice by both parties of experts (name and qualifications)
Crown must disclose reports in advance
Defence must disclose at least before close of the case (fair play to allow
Crown to deal with them)
CEA only allows 5 experts maximum (usually not a problem)

Mohan Test for Expert Evidence (Modified by Abbey)

1. Mohan 4 preconditions to admissibility MUST be satisfied before admission
a. Proposed evidence relates to subject matter properly within subject of
expert (something outside common knowledge specialized)
b. Must actually be qualified to give opinion (have the specialized knowledge)
(Feb.19)
c. Cant run afoul of any other exclusionary principles (hearsay!)
d. Opinion must be logically relevant (does Fact A make existence/non-existence
of Fact B more/less probable?)
2. If ALL 4 are met, admission is based on courts discretion (RD) gatekeeper!
a. Cost-benefit (legal utility) benefits of admission outweigh the costs
i. Concern about expert usurping function of judge and jury and
determining a dispositive fact
ii. Concern about jury being swept away, unduly deferring to their opinion
iii. Concern about it being too close to the main issue, determining
b. Assess legal utility, significance, reliability, risks of admission that will contribute
to time, confusion and cost

Expert Evidence and Hearsay

Hearsay is admissible to show the basis of experts opinion but NOT for its
truth may testify about their opinion which may incidentally be based on hearsay
(Abbey)

Test if Expert Evidence is based on Hearsay: (Lavalee)

(1) Expert opinion is admissible if relevant, even if it is based on second-hand evidence

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(2) The second-hand evidence (hearsay) is admissible to show the information on which
the expert opinion is based, not as evidence going to the existence of the facts on
which the opinion is based
(3) Where the psychiatric evidence is comprised of hearsay evidence, the problem is
the weight to be attributed to the opinion
(4) Before any weight can be given to an experts opinion, the facts upon which the
opinion is based must be found to exist

Sopinka (Lavalee) Problem is that this test might allow for opinion to be
admission without PV or any weight! what is the point of admitting that
type of evidence?

Credibility
General

Starting point: Credibility is ALWAYS AN ISSUE and relevant (different from

Character which must be put in issue first)
o Assume credibility but evidence may NOT be reliable or sufficiently reliable to
meet the standard so it must be tested through corroboration and suppose
Questions is whether additional or different evidence about credibility can be adduced
or is it subject to exclusion?
Credibility: accuracy of witnesses perception and memory
o Memory truthfulness and voracity
o Reliability! evidence must be reliable, even if they think they are telling the
truth
o Requires harmony with the preponderance of the probability which a practical
and informed person would readily recognize as reasonable in that place and in
those conditions (Norman)
Take into account human characteristics and assess if they were
honestly endeavouring to tell the truth (sincere, frank, biased, evasive,
reticent)
o Weight given to being able to see and assess witnesses demeanour and
how they respond under examination (KGB, RS - hijab)
Assess giving consideration to ENTIRE factual matrix demeanour alone isnt
enough to make a finding of lack of credibility

Be aware of diversity and dont impose ethnocentric ideas on witnesses equally

credible witnesses can act in different ways and may be informed by culture (Ted Talk)
o Eg. Mother accused of killing child not crying or emotional doesnt mean they
arent credibility, people respond to situations in different ways

Factors to consider during Testimony for things to draw attention to and question
Credibility:
o Manner and demeanour in which witness testifies
o Character of the testimony
o Extent of the reported capacity of witness to remember, communicate about
what they are testifying
o Character for honest, veracity (or vice versa)
o Existence/non-existence of bias or other motive
o Consistency prior consistent statements with testimony vs. inconsistent PS

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o
o
o

Verification of existence/non-existence of fact testified too caught in a lie or

was the evidence corroborated
Attitude of the witness toward the action, giving testimony (attitude to their role)
Any admission of untruthfulness acknowledge a wrong or lied (maybe lie again)

CHILD WITNESS CREDIBILITY

Take a common sense approach and not held to the same standards as adults (WR)
o Flaw in testimony should not be given the same effect as a similar flaw in adult
No hard rules when evidence will be assessed by adult or child standard consider
mental development, understanding, ability to communicate (WR)
o Can act on evidence if jury is satisfied they are telling the truth UNLESS there is
danger on relying on it WITHOUT MORE (WR)
Adult testifying about childhood events assess evidence about events using
standard for child of that age, credibility assessed on adult standard (WR)

Rule Against Oath Helping

Oath Helping: adducing evidence to bolster credibility of the witness, asking questions
that show they are worthy of belief
o Problematic: if ask about where witnesses lives/works to show truthfulness it is
allowed BUT if asked in reverse, we would be concerned

General Rule: cannot lead evidence to prove a witness is truthful, more worthy
of belief
o Exceptions: expert evidence, reputation of accused, PIS
Presume credibility UNTIL it is attacked then can respond to it and oath help

EXCEPTIONS: EXPERT EVIDENCE

Rule against oath-helping applies to experts ultimate assessment of credibility is for

trier of fact to determine, not the expert (Marquard)
Allowed to explain behaviour of witness but may NOT render ultimate opinion of
witnesss credibility
Cannot lead expert evidence where the only relevance is to bolster credibility UNLESS
witnesss credibility has been attacked (Kyselka)
o Rationale: witness testifying about credibility of another witness distracts from
issue and can be cycle of testifying about credibility (Kyselka)
Requirements: (Marquard)
o Expert in area in human behaviour in question
o Evidence must be the sort the jury/judge need must be unusual! Not ordinary
behaviour, that is for tier of fact! (eg. Abused children, battered women)
o Jury must be carefully instructed about its function and duty in making final
decision without undue evidence from expert

EXCEPTIONS: REPUTATION OF ACCUSED (EVIDENCE OF GOOD CHARACTER)

Defence can lead reputation evidence to establish good character of the accused to
raise reasonable doubt about whether A committed the alleged act (enhance their
credibility) (Clarke)
o May NOT ask witness if they would believe A under oath (Clarke)

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This evidence is NOT admissible for OTHER witnesses UNLESS the credibility of
those witnesses is attacked in that case it is rebutting evidence

EXCEPTIONS: PRIOR CONSISTENT STATEMENTS

Statement made on earlier occasion (eg. Statement to police) that is consistent with
statement the witness is making on the stand bolster reputation for veracity
o NOT FOR TRUTH OF CONTENTS only to show the statement was made,
could be equally wrong/untruthful on all occasions, just consistent in their
mistake
o If put in for the truth, violates hearsay
Can be admitted when PCS is: description/narrative, prior ID, recent fabrication

Description/Narrative telling how something happened, tendered to give chronology

or understand conduct of complainant (FJE, Dinardo) tool for assessment of credibility
o NOT used as truth or proof the crime was committed (FJE, Dinardo)
o Instruct jury as to limits of use!
o Crown can lead this evidence as long as witness recounts relevant and essential
facts to describe their experience as victim (FJE)

Prior Identification evidence that witness previously identified accused, admissible

o Ask if it is relevant or helpful? might not need it depending on
circumstnaces
o Often ask witness if they recognize the accused in the courtroom helpful to
have a past ID to show that they IDd the person, not just based on whoever is
sitting in the accuseds box (See Mar.3)

Recent Fabrication principle exception: when suggestion that witness made

something up, can adduce evidence to rebut the suggestion of fabrication
o

General Rule: where one party alleges recent fabrication, opposing party may
rebut with evidence of PCS made BEFORE the allegation of fabrication
(Ellard, Rina Burke)
Allegation can be implied or express (Ellard, Rina Burke)
Recent = suggestion of fabrication is made AFTER the events testified
about (Ellard, Rina Burke)

Sexual Assault: s.275 CC eliminates doctrine of recent complaint in sexual

assault
Cannot make adverse inference of credibility form delay in reporting
sexual assault and TJ should give instructions to this effect (DD)
No need for expert to explain why there was no hue and cry accepted
(DD)

Accused: if it is alleged that A is fabricating story on the stand, D can adduce

PCS given on arrest (exculpatory) to bolster credibility and rebut recent
fabrication (Edgar)
If A testifies, can lead PCS evidence IF: (Edgar)
(1) Relevant to state of mind at time (statements to police at time of arrest)
(2) Where crown alleges recent fabrication (just to rebut allegation, not
for truth)
a. Exceptions for PCS, even if accused doesnt testify
(3) If statement is mixed (part inculpatory, part exculpatory), then accused
can lead exculpatory part

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a. Relevant to credibility if accused testifies, can put your own
statement in for its truth (hearsay exception)
(4) If prior consistent statement forms part of res gestae
(5) Statements made when first confronted with accusation on arrest (NEW)
if accused testifies, these MAY be admissible even if Crown doesnt put
them in

Impeachment

Cross examination challenging the witness credibility find gaps or frailties in

story
Ways to impeach a witnesses credibility: expert witness, evidence of bad
reputation/character, prior inconsistent statements of opposing witness or your own
witness, prior convictions

EXPERT WITNESS WITNESSS TESTIMONY IS UNRELIABLE

If abnormality in witnesses evidence that would bring their credibility into question or
cast doubt on the evidence get medical expert to show witness has a disability and it
should be considered when assessing their credibility
o Problematic: little is known on relationship between mental disability and truth
telling
Are mentally ill people less worthy of belief? more difficult to prosecute

Expert is allowed to give general opinion of how a mental condition would affect
reliability and credibility BUT if it is relevant to material issue, then inadmissible
(Toohey)
o If trier of fact could assess witnesses credibility without expert assistance, it
would be inadmissible (French)

EVIDENCE OF BAD REPUTATION/CHARACTER

Evidence about witnesses bad character and reputation for veracity not very
much PV and is ALWAYS subject to RD (Clarke)
Judge to instruct: (1) testifying under oath in court is different from truth-telling in
community and reputation there, AND (2) the witness hasnt heard all the evidence and
hasnt sworn a duty to render a true verdict (Clarke)
o Just another piece of evidence to assess credibility, not for defence to their
testimony
o Can likely ask: (Clarke)
Do you know reputation of witness as to truth and veracity in community?
Is that reputation good or bad?
NO MORE ALLOWED!

PRIOR INCONSISTENT STATEMENTS OF OPPOSING WITNESSES

Process to put PIS to opposing witness procedure is not in the course

o Manifestation of fair play if using PIS to contradict what witness said,
they should have that presented to them on the stand and have ability
to explain it

PRIOR INCONSISTENT STATEMENTS OF YOUR OWN WITNESS

If witness becomes adverse to your case, ask permission of court to proceed

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o
o
o

S.9, CEA if you witness becomes an adverse witness, you can contradict them
with prior consistent/inconsistent statements (Wawanesa)
MUST be proved adverse at judges discretion
Adverse hostile (Wawanesa)
Adverse = broad definition, opposed in interest, unfavourable OR hostile

PRIOR CONVICTIONS

Attack credibility of a witness using prior criminal convictions

o They are not worthy of belief vs. More likely to have committed the crime
(propensity for criminality)

Serious potential for PE on A

o Problematic: tend to be more likely to convict people already in the system and
these people tend to be from vulnerable, marginalized populations that are over
policed and therefore overrepresented in prison (Aboriginal people)
o Lawrence thinks they are more useful to integrity offences

S.12, CEA (s.15, BCEA) allows witnesses (including A if they take the stand) to be
questioned on prior convictions (St. Pierre) and can ONLY be used as relevant to
credibility, NOT likelihood of guilt (Corbett)
o Theory is that a person who committed an offence is less likely to be truthful (St.
Pierre)
o Crown can as about name of crime, substance and effect of indictment, place
and penalty but NOT any details of the offence (Laurier) not allowed to ask
if they took the stand in those trials
o Juvenile records count as an offence (Morris), provincial offences as well
o Does NOT include matters that resulted in an absolute discharge
o S.12 is constitutional since it is only for credibility, not likelihood of guilt
(Corbett)

Corbett Application: D can bring this application at close of Crowns case to apply to
have prior convictions excluded based on PE outweighing PV (RD!) by TJ
o TEST to edit/exclude prior convictions based on balancing: (Corbett)
Nature of previous convictions
Similarity of current charge
Remoteness of previous conviction
Potential unfairness to crown to refuses to allow it if defence made s.12
cross on Crown witness

COLLATERAL FACTS BAR

Collateral Fact: matter that is not relevant to material fact in issue (Hitchcock)
Not allowed to use outside evidence to impeach witness on matters that are immaterial
(pg.376)
o If irrelevant or immaterial, OBJECT! what is material? (pg.381)
o Idea of remoteness and dilution of relevance of evidence must have a nexus
between evidence and issue to get past the bar! (Lawrence)
Entitled to cross and discredit witness BUT you are NOT allowed to contradict the
witness on a collateral matter (Melnichuk)
Rationale: dont want witnesses to have to account for their whole lives on the stand
(Hitchcock)
o Concern about protracted trials, distracting from true issue

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CORROBORATION FOR ACCOMPLICES

Historically: for evidence of an accomplice, it had to be corroborated in order to convict

on that evidence alone (Baskerville) sets out restrictions
o This was reformed in Vetrovec (unduly complex and technical and no good
reason to have restrictions)

Vetrovec Warnings = Must give a clear, sharp warning to jury where it would
be unsafe to rely on an unsavoury witness evidence without some other
evidence to confirm it (Vetrovec)
o Look for corroboration not required, but good practice because the evidence is
dangerous to rely on without corroboration
o Elements of the Warning: (Vetrovec)
Draw attention to testimonial evidence requiring scrutiny
Explain why evidence is suspect
Caution the jury that it is unsafe to convict on unconfirmed evidence (can
if they want to) without more look for evidence from other source to
show they are telling the truth
o Situations to potentially apply the warning: accomplices, jail house
informants, children, unsavoury character (Vetrovec)

Retention, Preservation and Spoliation of Evidence

Just have to ID that there is an issue for these, the meanings of the theories and
consequences in Canada for breaches relaxed review of this
o Dont worry about Sedona principle
o Mar.5

Duties

Duty to preserve evidence by Crown and Police (La Case, Levin)

o Duty to disclose all relevant evidence to the defence (inculpatory AND
exculpatory) in a timely manner (Stinchcombe) within that is inherent duty to
preserve
o Applies from pre-conviction/trial through to end of appeal period (Trotta)
If after appeal, the evidence held tends to exonerate A, must retain it
(Trotta)
Protect against wrongful conviction
o Crown has obligation to continuous disclosure, Defence has obligation in diligent
pursuing of disclosure (Dickson)
If D does nothing even when they know there is relevant evidence that
hasnt been disclosed, that can be breach of due diligence, at minimum
(Dickson)
o Failure = s.7 violation potentially, violates right to full answer and defence
o Lawrence: thinks duty to preserve evidence tending to exonerate should trigger
if A asserts innocence

Spoliation

Spoliation: intentional destruction of relevant evidence when litigation is ongoing or

pending (McDougal, Black and Decker) have to find intention!
o If destruction was done in ordinary course of business, not spoliation (horse track
case)
o No duty to maintain items that MAY be evidence, unrealistic (horse track case)

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Presumption of negative inference, rebuttable presume if they were destroyed, it was

because of a guilty conscience, had something t hide
Potential for a tort of spoliation (tort in US intention or grossly negligent, not enough to
have inadvertence or ordinary negligence)
Remedies: costs, fines, claims/defences struck, witnesses/experts excluded, jury
instruction, order for searchers (Privilege), injunctions, judicial reprimand, contempt,
obstruction

Electronic Documents

Same rules apply to electronic documents as for paper (Mar.3)

Practical challenges to locate/generate data and making it useful for parties
Not much guidance here other than Sedona Principles (havent been endorsed though)
Policy: important to show diligence
o Freedom of information

Character and Related Issues

General Rule

Rule: Crown cannot lead evidence of character as part of its case in chief, general
exclusion
o MAIN Exception: A may lead character evidence as circumstantial
evidence of innocence IF they do this, Crown may do the reverse and rebut
their evidence but ONLY to NEUTRALIZE it
o Other Exceptions:
Statute admissible in dangerous/long term offender hearing, interest in
future wrongdoings and likelihood of reoffending
Defamation Lawrence thinks this exception is wrong, it is about
reputation, not character (mischaracterization)

Rationale: person has paid their debt to society on completion of the sentence and
have potential to return to society to be peaceful, productive member of society
o Have the ability to chose to not commit further offences (Bentham)
o On return to society, entitled to presumption of innocence in face of future
charges

Bad Character: inadmissible, even if relevant, because of PE, invites inference

that A is more likely to have committed the offence prohibited character
inference
o Just because bad in the past, doesnt mean they did the thing charged with
o Easy/tempting inference for jury to make so dont want it to go in
o To give it more weight than it deserves, might end up convicting people for who
they are and their past, rather than on the evidence for what they are accused of

Theory behind the law Classic Criminological Theory: belief that human
behaviour is product of rational choice
o Crime is product of hedonistic calculus weigh benefit of crime vs. costs
(Bentham)
Assumes a measure of reason in accused and free will to make decision
o Darwinism called this into question actions result of primal instinct
o Hard Determinism criminals are born criminals (Limbroso), on choice
Never fully explored issues with methodology

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Propensity arguments have no place in the courtroom!

Putting Character in Issue

Accused puts character in issue if they imply that they wouldnt have done
the things accused of because of their good character (McNamara) then Crown
can rebut with bad character evidence to neutralize the good character evidence
(Rowton)
o Crown cannot trick/compel accused to put character in issue in order to
cross examine them on past bad behaviour/character (Bricker)
Ways to put character in issue:
o Reputation adducing evidence of good behaviour
o Testify as to their own Good Character I would never do that
o Calling Expert Witness of propensity/disposition have psychologist say
A isnt type of person that would do that

Proving Character: Accused

REPUTATION

Evidence of reputation can be adduced to show bad character but reputation

must be known generally in community cannot render opinion on main issue, just
general reputation (Rowton)
o Can be evidence of reputation in the community beyond that of residential
community, extends to cultural or work community (Levasseur), not limited to
geographic community (Clarke) depends on which is most relevant
Flexible definition of community (Levasseur)
Extend to virtual communities? how to use that? Weight? From expert?
Character evidence can be given less weight in cases of sexual assault against
children by people in position of trust/control abusers build good character as
camouflage (Profit)

SPECIFIC ACTS

If A testifies about specific good acts, Crown can adduce evidence about
previous bad acts, ONLY to neutralize the good evidence (McNamara)
o Cannot be used to show A was more likely to commit the offence, only for
purpose of credibility (McNamara)
o Character evidence cannot be part of Crowns case in chief (Morin)

S.12, CEA applies to any witness on the stand, can apply to A if they take the stand
o Can adduce evidence of prior convictions subject to TJs discretion to edit out
problematic and prejudicial parts (Corbett)
o Only superficial information about conviction allowed

S.666, CC applies to character evidence if A puts character in issue, crown can

adduce evidence of prior convictions and cross A on specific acts of the conviction
o Allows Crown to go further than s.12 and ask about specific details of charge
o Question as to whether Corbett applies here not sure yet should it be?

PSYCHIATRIC EVIDENCE OF DISPOSITION

If A calls expert evidence about their disposition, it can be used to

prove/disprove character

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In cases of ordinary violence, it is inadmissible to show As psychological
makeup doesnt include disposition to violence (Robertson) not pedestrian
violence
o ONLY admissible if perpetrator OR accused has distinctive behavioural
characteristics so that a comparison would be of material assistance in
proving guilt or innocence (Mohan) must amount to badge or signature
(Morin)
o Subject to Expert Witness requirements
o If sole purpose of evidence is to show disposition, must be excluded (Morin)
Rare situation, not much guidance
Exception about character in reference to things that happen in private sphere (Profit)
and can be analogized to other crimes that happen in private (domestic abuse, porn)
o

Proving Character: 3rd Party

Rule: evidence of bad character of 3rd party is admissible wherever it is relevant to an

issue at trial can be adduced by any means (reputation, testifying, expert evidence,
specific acts)
o Subject to RD (relaxed) admitted it PR doesnt significantly outweigh PV
o Concerns about bad character for A doesnt apply here so it can be admitted
A does this to give rise to reasonable doubt, someone else did the act or had motive to
commit the offence (MacMillan) admissible if it is relevant to prove 3rd party committed
crime
Test for admissible of psychiatric evidence of 3rd party or A: (MacMillan) (Expert
Evidence)
1. Evidence is relevant to some issue in the case
2. Evidence is not excluded by a policy rule
3. Evidence falls within proper sphere of expert
More important if the offence is the kind only committed by members of abnormal
group so evidence about whether A/3rd party had the trait is relevant (MacMillan)

Proving Character: Victims

Character of victim is relevant for defence of self-defence shows victims character

and propensity to act a certain way (Scopelliti)
Victims of sexual assault legislative changes under s.276, 277 so they cannot be
cross examined on reputation or prior sexual history

Similar Fact Evidence Doctrine

Definition: evidence of prior misconduct that is somehow related to past acts of the
accused other than the ones A is charged with Crown can draw past convictions,
conduct, examples of immoral behaviour
o Useful if evidence for Crown is thin previous conduct to link to current
charge
o Open to corruptive lines of reasoning be careful!

For history, see Mar.12

o Initially: all SF evidence introduced for no purpose OTHER THAN to show
propensity is inadmissible BUT, if there is another purpose, it will be admissible
(Makin)
o Developed categories of relevant concerned with purpose of admission
This was criticized as too formal

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o
o

o
o

Similarity must be so overwhelmingly obvious that it eliminates possibility of

coincidence (Smith)
Excluded IF it tends to prove A committed other criminal acts other than the
one in indictment (Straffen)
Admissible if relevant to: intent, system, plan, malice, rebut defence of
accident or mistake, prove identity, rebut defence of innocent association
Abnormal propensity as means of identification as signature or pattern (Sims)
Abandon the categorical approach in UK and brought in principled approach
(Boardman)
Brought into Canadian law, focus on balancing PE against PV
(Sweitzer)
Initially had the strikingly similar threshold (Sweitzer)

Overwhelmingly similar (Smith) strikingly similar (Sweitzer) principled

approach (Handy)

Modern Day: rejection of categorical approach and strikingly similar standard

in favour of holistic approach (BCR) Criminal Context
o Principled Approach outlined in Arp and detailed in Handy (current state of
law)

Test for Similar Fact Evidence (Handy)

o Principled Approach SFE is presumptively inadmissible and crown must
satisfy TJ on BOP that PV outweighs PE in order to be admitted
1. What is PV of the evidence? if specific = higher PV, risk of collusion destroys
evidence
a. Factors to determine PV
i. Proximity in time
ii. Similarity in detail (STRONGEST factor specific pattern
linking case at bar, something that is hallmark or
signature)
iii. Number of occurrences
iv. Circumstances surrounding the similar act
v. Distinctive features
vi. Intervening events
vii. Any other relevant factor
2. What is PE of the evidence? want to avoid:
a. Moral Prejudice: idea that A is bad person so jury will want to convict
b. Reasoning Prejudice: dont want to give more weight to SFE than it
deserves, consumes time, induces feelings of revulsion or condemnation
for A, difficult for A to counter so mere allegation is prejudicial
c. Possibility of collusion increases PE
3. Balance PE against PV? which outweighs the other? RD of TJ
a. On different spectrums so it is difficult to judge (PE = trial fairness, PV
= proof)

Civil Context: SFE is admissible if evidence is logically probative, not unfair or

oppressive to opposing side and given fair notice otherwise prima facie inadmissible
(Mood Music, Denning)

Thoughts For Reflection

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Law prohibits character evidence based on rehabilitation and presumption of innocence

(Mar.12)
o Does this really reject determinism? allows evidence through exclusions
If truly reject it, there would be no exceptions at all
No logic of redemption or rehabilitation by entering character evidence
under the exclusions
o Where it is allowed, limited to where circumstances are unique or odd
is that ok?
Why is there a threshold? concerned about determinism?
o Overlook the impact of substance abuse on character if admission of
evidence of substance abuse would put their character in issue, is it
barred?
o Lots of faith in juries in use of the evidence, until there is revolution in law
Who do you trust more? Jury vs. Judge?

Confessions and Improperly Obtained Evidence

Common Law Confessions Rule

Rule: confession is not admissible UNLESS crown proves it was voluntary, not obtained
through fear of prejudice or hope of advantage exercised or held out by person of
authority (Ibrahim)
Rationale: danger of improperly instigated/coerced admissions casts doubt on truth
of statements arising from circumstances in which it was made

Seen as most effective way of solving crime and judge/jury see them as persuasive
evidence of guilt lots of weight placed on confessions
o Concern: false confessions because of oppressive police actions and then being
relied on, wrongful convictions result (John Crow)
o Will deal with a lot of Charter arguments here (7, 10(b) counsel, 24(2) exclusion)

Development of test: Ibrahim Bordeaux (brought it into Canada) Oickle

Key Questions from Ibrahim (pg.489) Framework!

1. Was the statement given to a person in authority? who is that?
2. What are the rules covering voir dire?
3. What grounds can a statement be found to be involuntary? fear of prejudice
and hope of advantage
4. How does it work in relation to the Charter?

PERSON IN AUTHORITY?

To trigger the confessions rule, the confession must be made to a person in authority
o If NOT made to person in authority, EXCLUSION DOES NOT APPLY (go to
voir dire to determine voluntariness exclusion could apply if it is not
found voluntary)
o Statement made to person in authority engages the rule OTHERWISE statement
is hearsay! (Hodgson)
Concern: people in authority are assumed to have level of coercive power derived from
office, law presumes that free will of suspects is more likely to crumble in this situation
o Power to influence false statements when coupled with FOA and HOA
Test to determine if it is a person in authority:

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o
o
o

Subjective Element: accused must reasonably believe that the person is a

person in authority (Rothman)
Undercover cop is NOT a person in authority dont think its a cop
(Rothman)
Family members who are aggressive and threatening COULD be person in
authority depending on what A believes (Hodgson, Wells)
Objective Element: the belief must be reasonable, have a basis for the belief
(Hodgson)
Possible for anyone to be a person in authority AS LONG AS accused
reasonable believes that the person has authority to control or
influence the proceedings against them
A raises issue of person in authority (if not normal category) and have voir dire
to determine voluntariness (meet evidentiary burden) (Hodgson)
Onus shifts to Crown: show person WASNT in authority OR statement WASNT
voluntary (Hodgson)
RARE: judge will make a motion to have voir dire (if A doesnt bring it up and
potential injustice would result) (Hodgson, Wells)

VOIR DIRE REQUIRED?

Key Points
1. Burden on A to raise the issue of voluntariness (apart from Mr. Big
confession) must put issue into play
2. Once raised, question of voluntariness must be resolved in VD, whether
statements were inculpatory or exculpatory (Piche)
a. If not conceded by A, must have VD to determine voluntariness
(Erven)
3. Crown has persuasive burden and must prove BARD that receiver wasnt a
person in authority AND statement was voluntary before it can be used
(Monette)
4. In rare cases, where it is apparent that voluntariness is a live issue, TJ can initiate
VD even if A doesnt raise their issue (Wells)
a. MUST initiate VD if accused doesnt in the interest of justice
5. Even if statement wasnt given to person in authority but was in suspicious
circumstances (violence), court must give instruction to jury about weight (less)

If A is witness for VD, this testimony CANNOT BE USED in Crowns case in

main trial (Magdish)
o UNLESS there is consent of both parties (Gauthier)
o VD is used to establish voluntariness NOT voracity (Declerq)

VOLUNTARY?
Requirements to be voluntary:
Fear of prejudice or hope of advantage: cannot be given under FOP or HOA strict
application!
o Often found to be involuntary even if there are minor threats/inducements
Eg. LeBlanc, Letendre, Parsons, Hayes, Reyat

Oppressive conduct: statement can still be involuntary even if no specific

threat/inducement (Prager, Hobbins)
o Something that saps free will and depends on factors: length of questioning,
given refreshment, characteristics of suspect (Prager)
o Situations that rob the suspect of human dignity and composure, wide variety of
situations that could do this, taking clothes (Serack)

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o

Subjective what is oppressive to one, is not to another (Prager)

Must be more than accuseds subjective timidity or fear of police to have finding
of oppression, must have external facts outside of mind of accused (Hobbins)
Concern: what about new Canadians with their own experiences with
police in home country? Past abuse by police? subjective fears are
grounded in reality and external circumstance
Under Hobbins, these would have limited weight: PROBLEMATIC

Operating Mind: accused must have an operating mind for confession to be voluntary
(Ward)
o Test: was person subject to FOP or HOA? Due to mental impairment were they
subject to FOP/HOA where a normal person wouldnt be? Could it be resulting of
operating mind? (Ward)
o Has sufficient cognitive capacity to understand what they are saying and what
they are being told, including ability to understand warning that evidence can be
used against them was there an active choice? (Whittle)
More restrictive than Ward
Concern: inattention to volitional impairment, was there volitional
control? (voices telling him to confession actually control? Lawrence
thinks no)

OICKLE TEST FOR CONFESSIONS

Pulls everything from above together and restates test may have actually changed it
and increased admissibility
o By adding overborne, this significantly changed the law must go beyond
whether it was their choice to speak and ask if it has overwhelmed the
suspect and caused their will to crumble (were they overborne?)
(Spencer)

TEST: Crown must establish BARD that it was As choice to speak, that statement was
voluntary and not overborne by:
o Threats/inducements quid pro quo (legal and moral inducements)
o Oppressive circumstances deprived of food, water, clothing, sleep, medical
attention, aggressive questioning, presenting fabricated evidence
o Lack of operating mind know what they are saying and that it is to their
detriment, low threshold (Whittle)
Examine elements in totality to see if police conduct would shock the community
overborne rule must be looked at all together
o Balance the 2 goals of CL Confessions Rule:
Recognition and protection of accused from improper interrogation
Have the above without unduly limiting the need and ability of officers to
investigate and solve crimes

Charter Considerations: if involuntary under CL test, then it is inadmissible and dont

need to consider the Charter
o BUT, if police conduct would shock the community, then the use of the
confession would bring the administration of justice into disrepute Charter
should exclude the evidence, s.7
o If confession on arrest, then s.10(b) right to counsel engages and argument there

Confessions Confirmed by Subsequent Evidence

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Derivative Evidence: get a confession and then on the strength of the confession,
police find evidence that confirms the confession and further implicates the accused
(eg. discusses location of the murder weapon and police find it with As fingerprints)
o Concern about truth and reliability (Ibrahim)

Rule: if evidence/confession but found to be involuntary and then discover evidence to

confirm the confession in whole or in part: (St. Lawrence)
o The evidence obtained as a result of confession is admissible
o Parts of confession that are confirmed by evidence are admissible
o No longer concerned about truth because it has been confirmed by physical
evidence

Mr. Big Confessions

Police impersonate crime organization and induct suspect into the organization in order
to gain their trust and get a confession as a way to move up in the organization
confess their crime to Mr. Big in order to advance
o Only use this for cold cases and serious crimes
o Concerns: potential abusive, oppressive tactics to get confessions from A, can
get useful evidence though, not always abusive need a way to deal with it!
Confession to Mr. Big is NOT a person in authority so not subject to CL rule no
subjective or objective belief of authority (Grandinetti)
New law developed to deal with the concerns (Hart)

HART TEST

Any confession made during Mr. Big operation is presumptively inadmissible

UNLESS:
1. PV of confession outweighs PE onus on crown on BOP
a. PV is function of reliability weigh the evidence, logically relevant?
i. Consider: length of operation, number of interactions, nature of
relationship, nature and extent of the inducements (what was
offered), presence of any threats, conduct of the interrogation,
personality of the accused (age, sophistication, mental health),
whether confession has markers of reliability (lead to other
evidence that confirms it? IDs holdback evidence? accurate
details?)
b. PE is about harmful character evidence - Consider risk of moral prejudice
(bad character) and reasoning prejudice (distracting the jury, undue time)
(See Similar Fact Evidence)
i. Must weigh the 2 residual discretion
ii. Evidence is showing that A is willing to get involved in criminal
activity (sometimes happily) remind jury its not real! Potential
for prejudice
2. Consider if there was any abuse of process by police onus on the
defence on BOP
a. No matter if the Crown proved PV outweighed PE, if there was abuse by
police, court will determine appropriate remedy (including
exclusion of confession or stay of proceedings)
b. Consider: Coercion, physical violence, threats of violence, preying on
vulnerable person (youth, addiction, mental health)

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This test was followed in Mac TJ must alert jury to issue of reliability and consider if
confession contains markers of reliability and PE of bad character evidence

Policy looking for remedy for people who were convicted by Mr. Big confessions in the
past
o What is appropriate?
o Law was changed after Lavalee based on expert evidence about battered women
got judge to review cases and determine if these women should be granted a
pardon or lower murder conviction to manslaughter

Privilege Against Self-Incrimination

Law is a mess right now! needs reform!

s.5 of Canadian Evidence Act

No witness shall be excused form answering any question on ground that the answer to
the question would tend to incriminate him or establish liability in civil proceedings
o Any answer given cannot be used against them in future proceedings other than
for perjury or giving contradictory evidence
MUST BE INVOKED BY WITNESS positive act, not automatic
o Can evidence gained here be used elsewhere? use s.13
Policy: want full and frank disclosure and in return give protection against selfincrimination
o If less than full and frank = perjury/contradictory evidence

s.13 of Charter and R v Henry

Read together with s.5, CEA

S.13 privilege against self-incrimination, automatically invoked in all criminal
proceedings
o Guarantees: witness who testifies in any proceedings has the right not to have
any incriminating evidence so given used to incriminate that witness in any other
proceedings except for prosecution of perjury or giving contradictory evidence
o Informed by s.11(c) (cannot be compelled to testify against themselves, right
not to take the stand) and s.11(d) (presumption of innocence

Only triggered when testimony from past proceedings is attempted to be used

in subsequent proceedings
o If testify at 1st trial, admitted to killing victim bu said it was justified, convicted,
mistrial declared and new trial ordered Crown cannot use testimony from 1st
trial based on s.13 (new trial was any other proceeding within meaning of .13)
(Dubuis)
o Doesnt matter if it is a re-trial on the same indictment = any other proceeding
o To protect people from being indirectly compelled to incriminate themselves, to
allow crown to do indirectly what 11(c) prohibits

Lead up to Henry is confusing (Noel, Kuldip, Mannion) (Mar.24) Henry clarifies

o Lines drawn around purpose the evidence is used for impeaching or
incriminating?
Arguably overlap so causes difficulties arbitrary findings

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Danger is that jury wouldnt be able to see the difference and possible to
have wrongful convictions as a result
No attention to compulsion, just focus on incrimination and danger

Henry: s.13 protects against testimonial self-incrimination automatically

o Protects the use of evidence given in one proceeding in any other proceeding
o Not available to the accused that volunteers to testify
o Available to accused who was compelled to testify in past case
o Cant use compelled testimony for any purpose includes impeaching credibility

Nedulco fucks it all up Alberta court was very confused in application (Rue)
o Not clear what evidence might be or become incrimination and not sure what the
importance of voluntary or compellable evidence is
o Says that s.13 only applies to incriminating evidence from any other
proceeding, non-incriminating could be used
Protection should apply whether testimony is voluntary or
involuntary uncertain about what they say about this
o Use prior inconsistent statements/testimony to impeach accused (s.13
doesnt engage)
o What the hell is happening?

Practice Tips until SCC deals with this:

o Protect clients: do not volunteer client to testify in either criminal or civil get
subpoena first!! (proof of compulsion)
o Invoke s.5 all the time
o If multiple proceedings, run criminal first conviction can be used in civil and it
has the highest level of proof, deal their first

Privilege and Related Issues

Exception to General Rule of Evidence

Most extraordinary exception to rule that all relevant and material evidence should be
admitted
o Certain relationships are so important in society that we protect disclosure of
communications that are made in those relationships

When communication is privileged, communication, the fact that a communication was

made and subject of the communication are protected from disclosure
o Assigned to classes of relationships and if not in class, then determined case-bycase
o Cannot be used as a shield to protect otherwise non-confidential information
(Bernardo, privilege didnt apply to tapes)
o LASTS FOREVER IF IT ISNT WAIVED
Privilege belongs to the client only one that can authorize disclosure of
information/waiver
o Waiver may be implied in certain situations

Based on idea of duty of confidentiality (from contract, statute, CL, implied,

professional ethics)
o If communication is confidential but NOT privileged, court can order disclosure
o If communication is privileged, it is not subject to disclosure by court order
Main exception to Privilege = waiver

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o

Privilege can be implicitly or explicitly waived by holder of privilege and then

the fact and content of communication is compellable
My lawyer told be to say no = waiver what did your lawyer say?
Be clear who the holder of privilege is

Class/Blanket Privilege
SOLICITOR-CLIENT PRIVILEGE

Oldest and most recognized class of privilege highest privilege known to law (Smith)
o Almost absolute privilege, as close to absolute as possible (McClure)
o Has been elevated from rule of evidence to fundamental principle of justice
have struck down provision of CC allowing search of lawyers officers (Lavalee et
al)
Privilege belongs to the client and is the only one who can waive it, or through
informed consent of client (Lavalee et al, Campbell)
Will not attach to crowns decision about whether or not to lay charges, that is not
advice from lawyer to client so no privilege (Davies Commission)
Lawyers bills are prima facie subject to SCP (Maranda) if subject of bills is unrelated to
issues at bar and wont cause prejudice, no SCP (Cunningham)
PRIVILEGE LASTS FOREVER IF IT HASNT BEEN WAIVED

Rational: preserves trust between lawyer and client, full and frank communications,
existence and operation of Canadas legal system (Foster-Wheeler)
o Need this privilege for a proper functioning of the legal system, preserves
the trust in the system (Foster-Wheeler)
o Client needs to be able to tell the lawyer everything and feel safe in knowing it is
protected, effective representation (McClure) encourages full disclosure
and protects clients rights
o As result, courts will bend over backwards to protect it, will step in to stop
unintentional waiver by clients or breach of privilege
Telling spouse about lawyers meeting = waiver
Youth charged for assault and tells dad = waiver
Asserting claim/defence relying on information from SCP = waiver
(Campbell)

Substantive Rule of Privilege (Descoteaux) (pg.616)

(1) Confidentiality may be raised in any circumstances where the information is
likely to be disclosed without the clients consent
(2) Unless the law provides otherwise, when a legitimate exercise of a right would
interfere with privilege, the conflict should be resolved in favour of privilege
(3) When law gives authority to do something that might interfere with confidentiality,
interpretation of exercising the authority should be in such a way that it prevents
interference unless absolutely necessary to achieve ends sought by
legislation
(4) Acts otherwise must be interpreted restrictively

Requirements to fall under SCP: (Solosky) communication must

1. Be between solicitor and client
a. Including agents of solicitor, legal assistants, articling students, anyone working
for lawyer, and client no formal retainer required
2. Entail seeking legal advice

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a. Not just any communication not always clear when acting as lawyers or
consultants/EE, might be business purpose
b. Legal opinions from in-house counsel are subject IF it is legal advice, MAY be
business purpose/non-legal advice (Pritchard) mark correspondence as
Privileged and Confidential to avoid this
3. Be intended to be confidential
a. Ask who is in the room, have to ask people to leave the room that are NOT the
client (presence of 3rd party is evidence that it wasnt intended to be
confidential)
If all 3 requirements are met, SCP is present whether or not it is claimed

Exceptions to Solicitor Client Privilege

Exceptions will be narrowly interpreted in order to protect privilege (McClure)

ASK IF THE EVIDENCE IS RELEVANT TO MATERIAL ISSUES!! if not, exceptions
dont matter

Criminal Purpose

Rule: no privilege if communication is to commit a future crime legal advice

must be lawful to attract privilege (McClure)
o Lying about financial situation to get legal aid = crime and no privilege
(Descoteaux, most commonly cited)
o ARGUMENT: require more than existence of crime and consultation with lawyer
would required some evidence that advice facilitated the crime somehow
(Campbell, obiter)

Rationale: privilege should only attach to communications that are lawful

o Antithetical to interest and admin of justice to give protection to communications
with a criminal purpose (Cox)

Public Safety

Rule: receiver of communication (lawyer) can disclose information to warn identifiable

person or group of persons about a specific threat posed by client, notwithstanding
otherwise privileged information, in the interest of public safety

Test: (Smith v Jones) determine if SCP will yield for public safety

1. CLARITY: is there a clear risk to identifiable person or group of persons?

a. Can be large, would require higher finding on other factors, must be specific
and clear
b. Evidence for long range planning, history of violence, prior assaults similar to
plan, increase of violence severity if history, directed at identifiable person
c. Group or person MUST be sufficiently clear
2. SERIOUSNESS: is there a risk of serious bodily harm?
a. Requirement that threat must be death or serious bodily harm, substantial
psychological harm counts if it interferes with health or well-being
b. If no threat of violence, exception doesnt apply
3. IMMINENCE: is the danger imminent?
a. Nature of threat must create urgency, statements made in fleeting moment of
anger dont count, must be defined, serious and clear
b. Applied flexibly imminence means different things in different
circumstances

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*weigh all but generally need YES to all 3 balancing
4. Extent of Disclosure: only information necessary to protect public safety should be
disclosed (protect SCP as much as possible), limit disclosure as much as possible

Innocence at Stake

Rule: privilege yields to As rights under s.7 to make full answer and defence WHERE it
stands in the way of an innocent person establishing innocence and there is danger of
wrongful conviction
o VERY difficult to establish
Rationale: lawyer isnt dumping ground for confessions if innocent persons liberty is
at stake, that communication can be excepted
Test, McClure Application (Brown) should be done at end of Crowns case when A
can assess if the evidence raised a reasonable doubt (burden on party seeking to
adduce evidence)
o

Threshold: A must establish on evidentiary basis, that the information they want
to get is not available from ANY OTHER source AND is otherwise unable to raise a
reasonable doubt and the evidence would raise one evidence could establish
doubt
Necessity: MUST BE THE ONLY WAY TO RAISE A REASONABLE
DOUBT

Stage 1: if A discharges burden, TJ examines the communication to determine it

it is LIKELY to raise a reasonable doubt strict burden!
Must go to one of the elements of the offence
Cannot be used to bolster/impugn credibility OR bolster existing evidence

If TJ determines it is likely to raise reasonable doubt, only information that is

absolutely necessary to raise doubt should be disclosed

Difficult to run the test saying you have a weak case and cant raise a reasonable
doubt

LITIGATION PRIVILEGE (WORK PRODUCT)

Privilege for TYPE of communication attaches to any document created for the
dominant purpose of litigation (not required to be the sole purpose) (Blank)
o Protects work done by counsel pursuant to instructions from clients, includes
notes, consultation with experts, legal research
o Can extend to related/same parties on same/related causes of action
(Blank)
o Privilege ends when litigation ends! (Blank) note appeal rights to see if it has
ended
Rationale: ensures efficiency of trial process, allows parties to prepare case without
interference or fear of disclosure (Blank)
Expert Evidence: Rule 11 if party intends to tender expert report as evidence, must
disclose the entirety of the experts file (notes, drafts, emails)
o ARGUMENT: law change in Ontario only report tendered UNLESS there is
foundation to establish a reasonable suspicion that counsel improperly
influenced the expert, then could be disclosure of entire file (Moore v Getehun)
o Would be a great change (Lawrence)

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LP protects the process, SCP protects the relationship distinct concepts (Blank)
o Conceptually different arguments about whether they are 2 branches of the
same tree or 2 different trees
Concerns: prepping document list how much do you have to include in describing the
documents? use term "all other documents covered by privilege so as to not have
them listed
o Questions about whether these documents may have to be itemized so other
side can decide if they want to challenge them (no case yet)

Implied Undertakings of Confidentiality

Rule: anything you learn in the course of litigation (eg. During discovery) including
potentially criminal conduct, cannot be used for any other purpose UNLESS the court
relieves you of the obligation
o Parties to litigation are subject to this implicit duty
o What happens in litigation, stays in litigation
o Duty not to disclose evidence adduced in the course of litigation for a collateral
purpose
o Normal in civil litigation, just extended to criminal litigation in 2011 (Basey)

TEST: cannot use oral/document discovery for any purpose other than the current
litigation UNLESS there is exemption by court order or exemption applies:
(Ducet)
o

o
o
o

Balancing of interests if interest of justice outweighs PE to party forced to

disclose, court can order disclosure and override implied undertaking
Onus on party seeking disclosure to show public policy outweighs rule
Should only allow in exceptional circumstances
Statutory exceptions legislative override of this
Immediate and serious danger, (Smith v Jones) allows disclosure to police
without court order
Impeachment use inconsistent statements made at discovery in one trial at
another to impeach credibility if they change their story
Potential for litigant to change their story with impunity without this
Suggested crimes exception cant go to police about criminal conduct found
out during discovery without court order, unless there is immediate/serious
danger

SETTLEMENT PRIVILEGE (WITHOUT PREJUDICE)

Covers without prejudice communications to protect and facilitate

conversations about settlement, exchange of letters, draft agreements, settlement
offers, plea bargaining
o Form of class privilege (Middlecamp)
o Without this, statements could be admissions of liability
Without prejudice = something in the conversation is intended to be treated
as confidential and NOT used in litigation
o Use of these words isnt determinative court will look to substance of letter to
see if it falls under privilege
o DO NOT USE for demand letters or cease and desist orders (asserting a legal
right and want that on the record, evidence of notice to the other side)
Rule: party seeking production must show a competing public interest that outweighs
the policy goal behind the exclusion (Middlecamp)

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For multiple party action, if some parties settle, the non-settling parties can have
copy of the settlement agreements but NOT entitled to the amount settled for (Ameron
v Sable)
o If material terms go beyond the settlement, can the law be extended to protect
those terms as well as the settlement amount? (Ameron v Sable) Lawrence
thinks that makes sense and should be extended

SPOUSAL/MATRIMONIAL PRIVILEGE

Subject to change Harper has changed laws to allow spouses to be compelled to

testify so privilege will be engaged more
S.4(3), CEA (pg.688) privilege applies to communications made DURING marriage
(not before or after) (Couture) and to husband/wives (read in Charter, applies to same
sex couples)
o Recipient spouse holds the privilege (Couture) if you tell spouse a secret,
they can waive privilege and tell
o Testimonial privilege can refuse to answer questions on basis of privilege
Discretion to TJ to protect privilege if it is inadvertently waived
Eg. Wire tap evidence should stop listening if suspect starts to talk to spouse (Lloyd),
same for if they call their lawyer

INFORMER PRIVILEGE

Rule: bars the disclosure of identity of police informers that could lead to retribution by
accused
o Exception to rule that A otherwise has access to all relevant evidence held by the
Crown, inculpatory and exculpatory, which would include informers ID
(Stinchcombe)
o The privilege is absolute and cannot be balanced against other
concerns (Liepert)
o Informer is the holder of privilege (Liepert) only informer and Crown can
waive
Crown can only waive it if the know ID of informer AND informer gives
permission to waive (Liepert)
If Crown doesnt know informer (anonymous), CANNOT WAIVE (Liepert)
Court cannot disclose anything because informer is not available
to waive the privilege and they dont know what would tend to ID
the informer to the accused
Might be innocuous detail like the time of the call
o Once established, privilege is ABSOLUTE (Named Person) only way to get
around it is to try to prove innocence at stake
o For transfer of privilege from one police agency to another, objective test to see
if reasonable person would expect privilege to transfer (Named Person B)
Rationale: encourage reporting of crime by protecting informers from potential
retribution

Extends to: (pg.662)

o Identity and name of informer
o Any other information that might implicitly reveal ID (Liepert) court doesnt
know what evidence tends to reveal ID

Exception: Innocence at Stake TEST, onus on accused (Liepert)

1. A must establish evidentiary basis to conclude that ID is necessary to
demonstrate innocence (essential to innocence, not just helpful)

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2. If basis is established, TJ will look at evidence to see if it is actually necessary to

prove innocence if it is, then TJ gives Crown a chance to stay the charges and
ONLY discloses what is necessary to prove innocence
Generally Crown will just argue the ID of informer isnt relevant before relying on
informer privilege if A proves it, usual practice by the Crown is to stay and charge
in order to not disclose ID
ID can be essential if: (Liepert, Named Person B)
o Informant turns out to be a material witness would be prejudice to A if
they couldnt get informer to testify
o If informer acted as agent provocateur
o ID might be essential under a challenge to s.8 (reasonableness of search)

PUBLIC INTEREST PRIVILEGE

Will NOT be examinable see notes if necessary (Mar.31)

o CL rules which are supplemented by s.37, 38, 39, CEA (pg.669-671)

Case-By-Case Privilege

If communications do not fit within any class privilege, must determine

whether the communications are still deserving of protection based on
Wigmore criteria

Rationale: arent many forms of privilege but there are situations where we expect a
high level of confidentiality and should be able to protect that
o Eg. Religious communications (Gruenke), psychiatrist (Ryan), doctor, journalist
(National Post, Globe and Mail), researcher (Magnotta)
o Society is interested in helping victims of sexual assault and need confidentiality
for that, need to be able to balance those interests (Ryan) avoid double
victimization of vulnerable populations, no fishing expeditions for A

Concerns about case-by-case: no certainty in law, the criteria is based on

hindsight
o No option to have declaration before communications so privilege would be
assured, would encourage disclosure in these situations
US allows application for certificate of privilege (researchers)
o This actually encourages litigation, not communication
o Theoretically strong but problematic

TEST TO DETERMINE IF PRIVILEGE EXISTS

Test to Determine Privilege: (McClure) (pg.614, 694)

1. Does it fit within a recognized category of class privilege? (blanket, prima facie,
CL)
a. If yes, then communication is privileged and presumptively inadmissible,
UNLESS other party can prove why it shouldnt be privileged (McClure)
2. If no, are the particular circumstances of the communications deserving of
privilege (case-by-case)? apply the Wigmore criteria for novel area
a. Communications must originate in confidence they wont be disclosed
b. Confidentiality must be essential to full and satisfactory
maintenance of relationship between parties
c. Relationship must be one that the community sedulously fosters
important

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d. Injury from not disclosing must outweigh benefit gained from disclosing
i. Cost-benefit analysis is it worse to disclose it than protect?

If all criteria are met, privilege attaches

Potential Argument: If it doesnt meet criteria, was possible to claim equity but
courts have become stricter and more restrictive in the approach (Slavutych)
NOTE: this applies in Quebec even though it is from the common law

Production of 3rd Party Records

CHECKLIST: Focus on whether there is protection for the relationship that produced the
records
1. Is there class privilege?
2. In absence of class, is there case-by-case privilege?
3. In absence of case-by-case, is there some protection against disclosure?
a. Under OConnor? all offences except sexual assault
b. Statutory regime sexual assault only

Strangers have no duty to assist the defence no obligation on crown to

disclose things it cannot obtain from 3rd parties
In order to disclose 3rd party records there must be balance:
o Privacy interest of 3rd party vs. As right to full answer and defence
o Common in sexual assault charges
2 regimes to deal with this type of evidence distinction between the type of offence
(McNeil)
o Both tests are constitutional (McNeil)

Sexual Assault: (strict)

S.278.1-278.91, CC and Mills test focus on privacy, protection of witness, elevating the
relationship to close to privileged status (onus on accused to satisfy the test, NOT
3rd party)
Legislation: lists types of records where there is reasonable expectation of privacy if it
is on the list, there is a presumption of privacy
o Applicant must prove there is no reasonable expectation of privacy
o Applies to documents held by the Crown
Mills Test:
STAGE 1:
a) Is the record likely to be relevant?
o Requires reasonable possibility that information is logically probative
to material issues in the case OR to question of credibility
b) Convince TJ that record is necessary in interests of justice based on 8 factors in S.278(5)
(2) (factors are not determinative)
o Probative value
o Nature and extent of 3rd parties reasonable expectation of privacy
o Whether production is premised on discriminatory belief or bias, stereotype
o Potential prejudice to complainants dignity, privacy or security of person
o Societies interest in reporting sexual offences
o Societies interest in encouraging treatment for victims of sexual assault
o Integrity of trial process

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STAGE 2:
c) True Relevancy: TJ looks at record and determines if any part of it should be given to A
(strict)
o Policy: Societies interest in reporting SA, encouraging treatment for victims and
integrity of trial factors to be considered, not conclusive
o Generally the discretion of TJ
All other offences: (more flexible)
OConnor Test (OConnor) procedure for OConnor application (McNeil)
o Test applies when Crown doesnt have the records
1. Threshold, Stage 1: accused must prove the documents are likely to be
relevant to an issue in the case or competence
o No evidential burden, low threshold, oral submissions fine significant
burden but not onerous, NO balancing here
o Judge decides whether to order disclosure if they do
2. If met, Stage 2: TJ decides whether to order disclosure and to what extent based
on factors: (balancing of interests stage) true relevance test
o Extent to which it is necessary to full answer and defence
o Probative value
o Nature and extent of 3rd parties reasonable expectation of privacy
o Whether production is premised on discriminatory belief or bias
o Potential prejudice to complainants dignity, privacy or security of person

*Only order disclosure for portions that have significant PV and are not
substantially outweighed by danger of PE to admin of justice or harm to privacy rights of
witness