LAW OF EVIDENCE IN A NUTSHELL...................................................................................................................

2
RELEVANCE.................................................................................................................................................................4
Multiple Relevance................................................................................................................................................4
Probative Value.....................................................................................................................................................4
Materiality.............................................................................................................................................................4
PROOF...........................................................................................................................................................................4
BURDEN OF PROOF.....................................................................................................................................................4
First hurdle = evidential burden:.........................................................................................................................4
Second hurdle = persuasive burden:....................................................................................................................5
TYPES OF EVIDENCE...................................................................................................................................................5
PRESUMPTIONS...........................................................................................................................................................6
Mandatory presumption:.......................................................................................................................................6
Reverse onus presumption:...................................................................................................................................6
Oakes Test.............................................................................................................................................................6
JUDICIAL NOTICE........................................................................................................................................................7
Adjudicative facts..................................................................................................................................................7
Legislative facts....................................................................................................................................................7
Social framework facts..........................................................................................................................................7
CHARACTER EVIDENCE.........................................................................................................................................8
EXCEPTION TO CHARACTER EVIDENCE RULE: SIMILAR FACTS.................................................................................9
CHARACTER OF THIRD PARTIES OR CO-ACCUSED...................................................................................................10
Character of the Victim.......................................................................................................................................10
HEARSAY....................................................................................................................................................................11
THE PRINCIPLED EXCEPTION....................................................................................................................................11
TRADITIONAL (CATEGORICAL) EXCEPTIONS............................................................................................................11
Admissions – most important exception..............................................................................................................11
Exceptions where the declarant or the testimony is unavailable:......................................................................12
Exceptions that do not depend on the availability of the declarant:..................................................................13
Exceptions where the Declarant is available:....................................................................................................13
THE OPINION RULE...............................................................................................................................................14
EXPERT OPINION.......................................................................................................................................................14
Novel Science......................................................................................................................................................14
Ultimate Issue Rule.............................................................................................................................................14
Use of Textbooks (form of hearsay)....................................................................................................................15
Effect of hearsay on the probative value of the expert opinion:.........................................................................15
PRIVILEGE................................................................................................................................................................16
CLASS PRIVILEGES...................................................................................................................................................16
Solicitor-Client Privilege....................................................................................................................................16
Marital or Spousal Privilege..............................................................................................................................17
“Without Prejudice” Communication.................................................................................................................17
Identity of Informers...........................................................................................................................................18
CASE-BY-CASE PRIVILEGE.......................................................................................................................................18
DISCLOSURE AND PRODUCTION OF THIRD PARTY RECORDS...................................................................................18
WITNESSES...............................................................................................................................................................19
COMPETENCE AND COMPELLABILITY.......................................................................................................................19
Children Under 14..............................................................................................................................................19
Mental Capacity..................................................................................................................................................20
Spousal Competency and Compellability...........................................................................................................20
 Test for Spousal Incompetency:.........................................................................................................................20
COMPELLABILITY OF THE ACCUSED.........................................................................................................................20
Principle Against Self-Incrimination..................................................................................................................20
Common Law Right to Silence............................................................................................................................21
Charter s. 7 - Pre-trial Right to Silence..............................................................................................................21
Common Law Confessions Rule..........................................................................................................................22
Note on Corporate Officers................................................................................................................................23
MANNER OF QUESTIONING IN DIRECT AND CROSS-EXAMINATION.........................................................................23
Leading Question................................................................................................................................................23
Past Recollection Recorded vs. Present Recollection Revived...........................................................................23
Videotaped Statements by Children....................................................................................................................24
Cross-Examination..............................................................................................................................................24
Collateral Facts Rule..........................................................................................................................................24
IMPEACHMENT..........................................................................................................................................................25
Impeaching Opponent’s Witness on Prior Inconsistent Statement......................................................................25
Impeaching Your Own Witness – Trickier!.........................................................................................................26
Bias.....................................................................................................................................................................27
Character of a Witness........................................................................................................................................27
Accused as a Witness..........................................................................................................................................27
Defects in the Capacity of a Witness...................................................................................................................28
SUPPORTING CREDIBILITY OF A WITNESS................................................................................................................29
 Recent fabrication (to rebut):....................................................................................................................29
 Prior identification:...................................................................................................................................29
 Recent complaint:......................................................................................................................................29
 Narrative (vague)......................................................................................................................................30
Demeanour and Credibility................................................................................................................................30
Corroboration.....................................................................................................................................................30
REAL EVIDENCE......................................................................................................................................................30
AUTHENTICATION.....................................................................................................................................................31
DOCUMENTS.............................................................................................................................................................31
Best Evidence Rule..............................................................................................................................................31
Aboriginal Oral Histories...................................................................................................................................32
Photographs........................................................................................................................................................32
Views...................................................................................................................................................................32

Law of Evidence in a Nutshell

All relevant evidence is admissible, unless subject to some exclusionary rule or its
probative value is outweighed by its potential for prejudice – Morris
Exclusionary rule (reliability) – evidence must be reliable
Hearsay
Opinion evidence
Character evidence
Exclusionary rule (other value) – some values are more important than reliability
(i.e. exclude information even if it is reliable on some other grounds)
Privilege
Overarching discretion: evidence may be excluded if its potential for prejudice
outweighs its probative value – Corbett, Potvin, (Civil – Anderson)

Four scenarios where there may be judicial discretion to exclude evidence:

Discretion may be read into a statute - Corbett
 Recent shift
Discretion at common law to weigh the prejudicial effect against the probative
value - Corbett, Seaboyer
Where it was the accused that was trying to get the benefit of the exclusionary
discretion, it isn’t just simple balancing: prejudicial effect had to be
substantially higher than the probative value - Seaboyer
To ensure a fair trial – new and uncertain - Harrer
Has arisen in two kind of cases: extradition (out of Canada) and cases of
extradited Canadians (back to Canada)

Criminal cases: If the accused is the proponent of the evidence, then it should be
excluded only if its potential for prejudice substantially outweighs its probative
value – Seaboyer
Rare: Evidence may be excluded if it would render the trial unfair – Harrer

Framework
Are there any ethical problems?
Separation of trier of law (judge) and trier of fact (jury or judge alone):
Admissibility and relevance: a question of law for the judge
Weight or probative value: a question of fact for the jury
BUT trial judges are entitled to express views/opinions on the evidence “as
strongly as the circumstances permit” provided they do not have the effect
of usurping the role of the jury - Lawes
Requirement of disclosure:
Criminal: Crown has a duty to the accused to disclose all relevant
information, but this duty is not reciprocal – Stinchcombe

What is my opponent trying to prove?

Is the evidence relevant?
Is the evidence material?
Relevant evidence is only material is it relates to an issue in the case -
Lavallee
Is the evidence admissible?

Motions
Crown or Plaintiff’s Case in Chief
Opening Statement
Crown or Plaintiff’s Case in Chief
Direct examination
•Cross-examination
•Re-direct
•Rinse…repeat.
c.Crown of Plaintiff Closes Case
1.Case
3.Motions for a Directed Verdict
4.Defence’sCase in Chief
a.DefenceOpens
b.Defence’sCase in Chief•
Same as Plaintiff/Crownc.
DefenceCloses Case
5.Crown/Plaintiff can reopen (?)
6.Closing Statements

Relevance
Evidence that tends to make the desired inference more probable than it
would be without that evidence is relevant
Low threshold: Even if the evidence if weak (or even slightly prejudicial) it should
be admitted – Morris (newspaper clipping)
Should not be confused with probative value

Multiple Relevance
A single piece of evidence may be relevant to different matters. However, though
evidence may be admissible when tendered for one purpose, in may
nonetheless be inadmissible when tendered for another purpose.
May arise with character evidence of the accused in certain circumstances:
Tendered for credibility  admissible
Tendered to prove person acted in conformity with that character on
occasion  inadmissible

Materiality
Materiality = what is it that the opponent has to prove; the fact sought to be
established must concern a matter in issue between the parties

Probative Value
Probative value = the significance that a trier of fact assigns to an item of
evidence, the strength of the inference it supports
Only applies once evidence has been admitted
Probative value determined according to:
Reliability / strength of the evidence.
Strength / extent of the inferences it leads to.
Importance of fact in issue those inferences relate to.

Prejudicial Effect

Potential for prejudice means potential to make trial unfair, and includes:
Fairness to parties and to witnesses
Misuse
Undue consumption of time
Confusion of the jury
Potentially distorting effect it could have on the outcome of the case
 E.g. could it invite improper inferences
E.g. extent to which it could excite / inflame the jury
E.g. character evidence can lead jurors to think accused is bad type of
person and such people do things such as what accused is charged with
E.g. extent to which it may confuse the issues

Proof
Burden of Proof
Although evidential and persuasive burden are distinct, when you are dealing with the
evidential burden, the persuasive burden is usually simultaneously being considered.

First hurdle = evidential burden: in order to get an issue or defence put into play,
must be some evidence to support it (inherently tied to the persuasive burden –
Fontaine) – question of law for the judge
Criminal – evidential burden on the Crown
Test: is there any evidence upon which a reasonable jury properly
instructed could return a verdict of guilty? – Sheppard, Arcuri
Issue: extent to which the judge may weigh the evidence
Direct evidence: if the evidence is true and reliable, could lead to
conviction (no weighing) - Arcuri
Circumstantial evidence: limited weighing of whether the evidence, if
believed, is reasonably capable of supporting the inference (must not weigh
the reliability of the evidence) – Arcuri
May be relevant after the preliminary inquiry – must justify moving to trial.
Most important at the close of the case for the Crown: Accused may move for
a directed verdict of acquittal without calling evidence if no evidence or
evidence too weak for jury to convict:
If successful, judge withdraws case from jury and enters a directed verdict
of acquittal - Rowbotham
If unsuccessful, continue with trial (no such thing as directed verdict of
guilt) – defence may still call evidence
“Air of reality” test for affirmative defence – burden on the defence
In order to get certain defences before the jury, the evidential burden is on the
defence to show that there is some evidence to support the defence – Cinous
Applies to reverse onus defence as well – Cinous, Fontaine
Must be cautious in removing a defence from the jury
Civil cases – evidential burden on plaintiff
Test: whether a reasonable trier of fact could (not would) find for the
plaintiff if they believed the evidence up to that point. – Calvin Forest
Defendant may move for summary judgment (BC Rule 18) or non-suit, but they
give their right to call any evidence
Extradition – judge at an extradition hearing must decide whether the person
requesting the extradition has at least satisfied the evidential burden - Sheppard
Second hurdle = persuasive burden: case must be proved according to a standard
of proof – question of fact for the jury
Criminal: beyond a reasonable doubt
Burden is on the Crown (affirmed by Charter s. 11(d) presumption of
innocence
Exception: reverse onus presumption (must be constitutionally valid under
s. 1) – Chaulk
Rigid standard:
Judge must be meticulous in charging the jury on this point – Lifchus,
Starr, R. v. W. (D.)
Sample charge: a trial judge is required to explain that something less
than absolute certainty is required, and that something more than
probable guilt is required, in order for jury to convict - Lifchus, Starr
A reasonable doubt is not an imaginary or frivolous doubt, must not be
based on sympathy or prejudice, but rather based on reason and
common sense: - Lifchus, R. v. W. (D.)
 (1) If you believe the evidence of the accused, obviously you must
acquit.
 (2) If you do not believe the testimony of the accused, but you are left
in reasonable doubt by it, you must acquit.
 (3) Even if you are not left in doubt by the evidence of the accused,
you must ask whether you are convinced beyond a reasonable doubt
by the evidence of the guilt of the accused.
Standard must be applied to evidence as a whole, not individual items –
Morin
Where there are two competing versions, the jury can’t be told which to
believe – R v. W. (D.)
Civil: on a balance of probabilities
Burden is generally on the plaintiff
In very evenly balanced civil bases, who bears the burden may be
determinative - Fontaine
A more flexible standard than BRD

However, in practice the standard can vary:

e.g. higher in a civil case with serious stigma such as fraud or sexual abuse
e.g. lower in minor criminal cases such as minor traffic offence

Types of Evidence
Type of Evidence (circumstantial evidence not necessarily weaker than direct
evidence):
Direct = evidence is clearly relevant since relates directly to the fact or issue (e.g.
“I saw A kill B”)
One step: need only assess the testimonial capacity of the witness (perception,
memory, communication, sincerity)
 Remember: inherent unreliability of eye witness testimony - Quercia
Circumstantial = relevance must be established by inference (e.g. “I saw A
running from the scene of the crime”)
More tenuous than direct evidence. However, it is still very important and a
great number of criminal cases are decided based on circumstantial evidence.
Two steps: must assess the testimonial capacity of the witness AND draw
inference that the testimony is probative of a material issue
Inductive: inference must be reasonably drawn on the established facts -
Munoz

Presumptions
True presumption = devices which leave open to inquiry the matters presumed
but which demand a finding if the opponent does nothing - Proudlock

Beware of false presumptions: a process which permits, but does not demand, a
finding does not deserve the label presumption (more like an inference that may be
drawn) – Nicholl
E.g Doctrine of recent possession – if you are found of the possession of recently
stolen goods, the jury may (not must) infer that they knew the goods were stolen –
Nicholl

Mandatory presumption: opposing party must adduce some evidence on the

contrary
Opponent bears only an evidential burden – BUT if no evidence raised, then they
face certain conviction – Proudlock
Defence pointing to some evidence on the contrary raises a reasonable doubt
 burden then switches back to the Crown to prove the case BRD
E.g. blowing over 0.08  driving well impaired
E.g. live with a prostitute  living off the avails of prostitution – Downey
May also violate the presumption of innocence, but less likely – Boyle, Downey

Reverse onus presumption: opposing party must prove the contrary on a balance
of probabilities
Opponent bears the legal burden of proof on a BOP
Problem: all reverse onus provisions that apply against the accused are prima
facie in violation of the Charter s.11(d) presumption of innocence because
there may be enough evidence to raise a reasonable doubt about existence of a
presumed fact, but not enough to disprove it on the balance of probabilities
(although often saved by s.1) – Whyte, Chaulk
Presumption of sanity - Chaulk

Oakes Test
The Court presents a two step test to justify a limitation under s. 1:
It must be "objectively relate to concerns which are pressing and substantial in
a free and democratic society"
 Must be shown "that the means chosen are reasonable and demonstrably
justified" – proportionality test (see below)

Proportionality test:
Was provision carefully designed to achieve the objective i.e. is provision
rationally connected to the objective?
The provision should impair the right or freedom in question as little as possible
The effects of the provision should be proportional to the objective.

Judicial Notice
Contrast with formal admissions: party admits a fact and thereby takes it out of
issue

Taking judicial notice = a matter of judicial notice means the judge will simply
accept some fact without requiring evidence to establish it.
Judge can take judicial notice on their own initiative or counsel can invite the
court to take judicial notice of such facts.
In either case the court should give counsel opportunity to make submissions
on appropriateness of taking judicial notice (unless the fact is totally
indisputable). Once judicial notice is taken it is final.

Guiding principles:
Should ask: would this fact be accepted by a properly informed reasonable
person as not subject to reasonable dispute?
Closer the fact is to the central issue of the case, the less likely that notice will
be taken
Judges may not invoke personal knowledge to decide cases
But difficult to distinguish between personal and general knowledge
Foreign law is a matter of fact, not law – generally must be proved by expert
evidence – Walkerville Brewing Co.

Adjudicative facts = facts relevant to resolving the dispute between the parties – if
not admitted, must be proved (what, where, how).

Morgan Criteria: To warrant judicial notice the probability must be so great as to

make the truth of the proposition notoriously indisputable among reasonable men
Two exceptions where fact need not be proved:
Facts that are notorious / common knowledge of every person of ordinary
understanding and intelligence i.e. so generally known and accepted that
cannot be reasonably questioned (e.g. bees sting, alcohol can intoxicate)
Facts that can be readily / clearly determined / verified by resort to
authoritative sources whose accuracy cannot reasonably be questioned (e.g.
texts, atlases, dictionaries)

Legislative facts = facts relevant to legal reasoning and law making process
 Post-charter, the courts now had an important new power to determining
constitutionality of legislation based on phrases such as “life, liberty and
security of the person”, “democracy”, “fundamental justice”, but needed help
in interpreting such words.

These are broad facts about social, theoretical, economic context that are used by
judges to decide questions of law – i.e. referring to history, social value (e.g.
values under Charter), etc.
Unlike adjudicative facts, need not, and sometimes cannot, be supported by
evidence (e.g. Bartleman)

Social framework facts = refer to social science research that is used to construct a
frame of reference or background context for deciding factual issues crucial to the
resolution of a particular case
General facts – not specific to a particular case (e.g. Lavallee: battered women’s
syndrome)
Trial judge can take judicial notice of social conditions and can charge jury on
it to help with findings of fact – S. (R.D.)
BUT social framework facts, when judicially noticed, must be linked to the
facts at hand - Spence
Cannot raise these issues unless there is an evidentiary hook
SCC moving away from openness exhibited towards social framework facts in
earlier cases such as Lavallee and tend to prefer expert evidence - Spence

Character Evidence
Character evidence rule only engaged by circumstantial evidence of how the
person probably acted on a certain occasion.
Whenever character evidence is admitted, jury MUST be instructed on its
proper use
Although character evidence usually relevant, concern that its prejudicial
Civil cases: presumption of innocence does not apply and the similar facts rule is
applied more flexibly

Character vs. Habit

Important distinction as we strive to punish/penalize people for specific instances
rather than on who they are / what they are like
Character evidence is any evidence that invites an inference that a person is a
certain type of person and further, invites inference that they acted
consistently with that character type
The more general the evidence is, the more likely it is to be considered
character evidence.
E.g. to say someone cheats at cards, is violent, has previous convictions, is
honest / truthful, is likely to have lied, etc.
 Distinguish from evidence of habit (i.e. did something in a regular way e.g. “Sue
always arrived at work at 8:50am” or “Fred always wore a suit to church”) which
can be admissible so long as doesn’t lead to prejudicial inferences.
The more the evidence conforms to evidence of specific reactions on a
regular basis to a specific situation = more likely to be evidence of habit
Generally tends to be circumstantial evidence

Civil cases: character evidence is generally excluded

Criminal cases:
Crown:
As a basic rule, character evidence is relevant, but Crown may NOT lead
evidence of the accused’s bad character in its case-in-chief
Exceptions:
 Similar fact evidence
 Relevant to material issues (e.g. child custody cases, defamation,
sentencing) - Krugel
 Accused leads evidence that a 3rd party committed the offence
BUT if accused puts character in issue at trial, THEN may respond with own
character evidence
Even where Crown is able to lead character evidence, it is only to
neutralize the accused’s good character evidence, not to prove their
case - McNamara
May cross-examine accused:
 CEA s. 12 allows the accused to be cross-examined on their previous
criminal record, BUT only comes into play once the accused is on the
witness stand!
 Prior inconsistent statements
May bring evidence of previous convictions of the accused:
 CC s. 666: where an accused puts their character at issue, the Crown
may respond by bringing evidence of their previous criminal record -
applies regardless of whether the accused has taken the stand or no
May cross-examine character witnesses of defence
May call own reputation witnesses in rebuttal
May call expert witnesses
Defence:
MAY lead evidence of good character BUT this will put the character of the
accused in issue
Accused character may be put in issue by:
Cross-examining Crown witnesses
Calling defence witnesses
Accused taking the stand and testifies as to their character
Accused character NOT put in issue by:
Simply repudiating the Crown’s case / denying guilt – P. (N.A.), Shortreed
Crown cross-examination of a defence witness – A. (W.A.)
Character witnesses should confine themselves to evidence of the accused’s
general reputation in the community – Rowton, Levasseur
Should not testify about:
Specific incidents demonstrating character
Personal opinion
HOWEVER, accused himself is not so limited in testifying about his own
character – McNamara
If the accused brings up specific facts, Crown may respond with specific fact
evidence – Brown

Sexual Offences Against Children

Because sexual offences against children are generally committed out of the blue,
it is less relevant for the defence to introduce evidence of good character - Profit

Exception to Character Evidence Rule: Similar Facts

Starting point: evidence of the accused’s propensity for committing the offence
is presumptively inadmissible. Crown must show on balance of probabilities that
probative value outweighs potential for prejudice – Handy
Where acts are so strikingly similar that the evidence is no longer just
regarding character, it has significant PV regarding another element of the
offence; objective likelihood of a coincidence is slight – where PV high then
more likely admission – Arp

1) Identify non-character issue: (relevance)

E.g. mens rea, actus reus, identity

2) Evaluate probative value of evidence for the specific issue - Handy

Turns on the degree of connection between the prior act and the current charge:
Proximity in time of the similar acts
Extent to which the other acts are similar in detail to the charged conduct
Number of occurrences of the similar acts
Any distinctive feature(s) unifying the incidents
Intervening events - generally points to something that severs the connection
Any other factor which would tend to support or rebut the underlying unity
of the similar acts
Allegation vs. conviction
 Cannot use acquittals as evidence
Evidence of collusion or fabrication
 Collusion b/n witnesses may deprive similar fact evidence of most of
its probative value – Handy
 Collusion may be intentional or accidental

3) Determine “prejudicial effect”:

The strength of the SFE must outweigh both moral and reasoning prejudice
(Handy)
 Moral prejudice: jury may find the accused is a “bad person” who is likely to
have committed the offence
Risks an “unfocussed trial and wrongful convictions”
Consider: how inflammatory are prior similar acts, force of the character
inference
Reasoning prejudice: (quality of E) concern that jury will be distracted
If the facts are complex, jury might be distracted by the past acts
Jury may be revolted by prior acts - jury may be distracted from actual
charge
Cannot punish accused for past misconduct

4) Balance the probative value versus the potential for prejudice.

Onus of Crown to show on a balance of probabilities that in the context of the
case the PV outweighs the PP
So is the probative value SO HIGH that the chance of mere coincidence is
extremely slight: more general evidence = more prejudicial
Where the SFE is only relevant to support the prohibited inference that the
accused is merely the type of person predisposed to commit the crime, it will
not outweigh the potential for prejudice - Perrier

5) Charge to jury:
Judges are to instruct the jury that they may use this evidence to prove a
particular point (identity, mens rea, etc.) but not to engage in reasoning that says
the accused is the type of person that would commit this offence – Arp

Character of Third Parties or Co-Accused

General rule: if evidence of the bad character of the third party is relevant to
some issue at trial it is admissible.
Therefore, since there is no presumption of exclusion our primary concern is
relevance.
Must be a link between the third party and the offence – Grandinetti
Must be some evidentiary foundation to support the assertion that the evidence
is necessary to make A’s full answer and defence – Pollock
Evidence cannot be used as part of the Crown’s case against the co-accused
HOWEVER, accused must be careful because attacking the character of a third
party may put the accused’s character at issue
Less likely to put the character of the accused in issue of claiming self-defence
against a violent victim

Character of the Victim

Self-defence: accused may lead evidence of the deceased’s character, reputation for
violence or past violent acts:
If accused aware of these at the time of the offence, evidence is relevant to
state of mind – belief that the use of significant force was reasonable – Scopelliti
Direct evidence because no need to draw an inference from victims character
that they acted in conformity on a given occasion.
 Crown may rebut with evidence that the victim was not of a violent nature
If unaware of these at the time of the offence, relevant that the deceased
acted in conformity with their character/reputation – Scopelliti
Circumstantial evidence

Sexual assault: evidence of sexual reputation is inadmissible with respect to:

credibility - CC s. 277
consent – CC s. 276(2)

CC s. 276(1): Evidence of complainant’s previous sexual activity (even with the

accused) is inadmissible to support the inference that:
makes consent more likely
makes the complainant less worthy of belief (twin myths)
If used for other purposes may still be excluded unless has significant probative
value that is not substantially outweighed by its potential for prejudice.

If evidence of sexual activity is offered for its non-sexual features it may be

permitted – Darrach
Cross-examination on a prior inconsistent statement that referred to prior sexual
activity with the accused was allowed in Crosby.

Hearsay
Definition: An out of court statement offered to prove what is asserted in the
statement, the probative value of which depends on the credibility of someone who
cannot be cross-examined – Khelawon
Out of court statement + offered for the truth of its contents = hearsay

Test - Subramanian
Is the statement other than a statement made by this witness on this witness
stand?
If so = out of court statement
What is the proponent of the evidence trying to prove?
If relevant only if the statement is true = hearsay
If relevance of statement lies in the fact that is was made = NOT hearsay

The Principled Exception

Even if an item of hearsay cannot be categorized within a discrete, recognized
exception, may still be admitted if the court is satisfied that doing so:
Is reasonably necessary - Parrot
Is sufficiently reliable – Khan, Smith, KGB, Starr, Khelawon

There is still a distinction between threshold and ultimate reliability. There has
to be, because there is a distinction between admissibility and probative value.
The judge decides if the hearsay is admissible, including the question of
threshold reliability (essentially evidential burden)
 The jury decides its probative value in the context of all the evidence in the
case and whether this evidence meets the burden of proof on the crown
(essentially persuasive burden)
However, Khelawon departs from Starr by making it clear that factors relevant
to deciding admissibility (meaning whether the hearsay is reasonably necessary
and sufficiently reliable to "pass the judge" and go to the jury) should not be
categorized in advance but will depend on the facts of each case.
The trick for the trial judge is deciding threshold reliability without invading
the province of the jury.

Functional Approach – Khelawon

Step One: Is the out of court statement hearsay? Requires that:
Statement is being tendered for the truth of its contents
There is no opportunity to contemporaneous cross-examine the declarant
Step Two: Hearsay evidence is presumptively inadmissible – general
exclusionary rule
Step Three: Is there a traditional exception to the hearsay rule?
If the evidence falls within one of the traditional common law exceptions, then
it is admissible - Starr
However, in rare cases the exception itself may be challenged on its necessity
and reliability.
Step Four: Exceptions – principled approach – must establish the necessity and
reliability of the hearsay evidence in voir dire.
Necessity must be given a flexible definition capable of encompassing diverse
situations, but is established on the facts of each particular case - Parrott
Reliability: Two primary ways to satisfy the reliability requirement:
Show that there is no real concern over the truth of the statement –
show that the statement was made in circumstances where there is a high
probability of its trustworthiness
Show that there is no real concern from the fact that the statement
arises in hearsay form because its truth and accuracy can nonetheless be
adequately tested.

Traditional (Categorical) Exceptions

According to Wigmore, these are also based on reasonable necessity and sufficient
reliability

Admissions – most important exception

Remember: if an admission made to a person in authority = confession  go to
common law confessions rule / right to silence

Admission is only admissible against the party who made it!

If an adversary chooses to introduce a statement by the party opponent, he must
introduce all of the statement, not just the portion that favours him (of a single
statement)
 Exception: agency/authorization (primarily civil)
If the statement is made within the scope of agency, may also be admissible
against the agent. (E.g. statement by truck driver could be used against the
trucking company, statement of a partner in a partnership)
Proponent of the evidence must prove:
Agency relationship between the declarant and the party
Statement was made during the existence of the agency
Statement related to a matter within the scope of the agent’s duties or
employment

Admission may be based on hearsay if the party indicates in the admission a belief
in or acceptance of the hearsay – Streu
Adoption by conduct: where a party fails to deny an accusation in circumstances
where it would be reasonable to do so (consider personal characteristics,
emotional condition, etc).
Requirements:
Must be some evidence that the party heard and understood the accusation
Must be some evidence to support an inference of adoption

Exceptions where the declarant or the testimony is unavailable:

Declarant/testimony may be unavailable because:
Refuse to give testimony (and cannot be compelled)
Dead
Are insane
So ill (age, infirmity, etc.) that he is unable to travel or testify, or
Absent from Canada

Statements against interest: by an unavailable declarant against their pecuniary or

propriety interest.
Necessity: declarant is unavailable
Reliability: person unlikely to intentionally misstate a situation against their own
interest
But still dangers of misperception, memory, communication, etc.

Recently extended (reluctantly) to penal interest – Demeter, O’Brien

Very strict test – criteria outlined in Demeter
Not available for inculpatory (suggesting guilt) statements - exception not
available to the Crown – Lucier
Applies only where statement against penal interest used for exculpatory
purposes since inculpatory statement evidence robs accused of right to cross-
examination

R v. Lucier (1982)
Facts: Accused charged with arson – another guy says that he set fire at request of
Lucier – then other guy dies and Crown tries to use statement against Lucier – SCC
says no
 Held: No clear expression of why but likely a result of accused’s right to full
answer and defence and notion that in case where Crown offers, it may be a case
of declarant wanting to bring others down with him.
Following Lucier SCC says this categorical exception applies only where statement
against penal interest used for exculpatory purposes (asymmetrical operation –
Crown cannot use) since inculpatory statement evidence robs accused of right to
cross-examination

Dying declarations: confined to declarations as to the cause of death in homicide

prosecutions for the declarant’s death – Wysochan, Beddingfield
Proponent of the evidence must show:
Declarant has a settled, hopeless expectation of almost immediate death

Business records / declarations in the course of duty:

Ares v. Venner – business records admissible if:
made reasonably contemporaneously,
in the ordinary course of duty,
by persons having knowledge of the matters,
who are under a duty to make the record or report,
and there is no motive to misrepresent the matter

Rationale: if people are in the habit of keeping such a record in such a way, it is
presumptively reliable.

CEA s. 30 (Ares v. Venner mostly superseded by statutory exception, but remains

available where s. 30 cannot be used)
30. (1) Where oral evidence in respect of a matter would be admissible in a legal
proceeding, a record made in the usual and ordinary course of business that
contains information in respect of that matter is admissible in evidence under
this section in the legal proceeding on production of the record.
Includes notice provision in order to rely on

Former testimony:

Criminal proceedings:
CC s. 715: Evidence given under oath at previous proceeding is admissible
where witness unavailable at trial provided the accused had an opportunity to
cross-examine the witness when evidence originally given and safeguards
affirm that it is the best evidence in the circumstances
Potvin: S. 715 and s. 7 only about the opportunity to cross-examine and so
strategic choice not to cross-examine does not count
SCC read in discretion to exclude evidence

Civil proceedings:
BC Rules of Court rule 40(4): Where a witness is dead, or is unable to attend and
testify, the court may permit a transcript of any evidence of that witness taken
 in any proceeding, hearing or inquiry at which the evidence was taken under
oath, whether or not involving the same parties to be put in as evidence, but
reasonable notice shall be given of the intention to give that evidence.

BCEA s. 71: provides that a guilty plea or conviction that is relevant to any issue in
the civil action is admissible.
Must be a same facts situations – e.g. criminal conviction of careless driving could
be used in a civil suit for negligence against the same driver.
Not a matter of attacking credibility, rather going in under the plaintiff’s case in
chief as part of their evidence

Exceptions that do not depend on the availability of the declarant:

Assumption of fair necessity – there is no other equally satisfactory source of
evidence, whether from the same person or elsewhere.

Declarations as to physical sensation: Where person appears to be experiencing a

particular physical condition, the statement containing that claim is admissible but
only to prove that the person was experiencing the condition at the time and to
establish its duration
Not admissible as to the cause of the sensation

Declarations as to mental or emotional state: When a person explicitly describes his

or her present state of mind (emotion, intent, motive, plan), the person’s statement
to that effect is admissible where the state of mind is relevant and the statement is
made in a natural manner and not under circumstances of suspicion.
Applies where a person’s mental/emotional state is a material issue in the trial,
then their statements evidencing the same may be received.
Tricky distinction to work with – Hillmon

Spontaneous statements or excited utterances: Exceptions for statements where

such spontaneity that the possibility for concoction or fabrication could be discounted
(no time for reflection/deliberation). Statement admissible if:
Related to a startling event or condition
And made while the declarant is under the stress of excitement caused by the
event or condition - Clark
No longer needs to be contemporaneous with the startling event, but rather
when it is perceived – Bedingfield

However, danger of misperception remains: the fact that the event was startling
may impair perceptual abilities

Exceptions where the Declarant is available – KGB exception:

KGB provided criteria to even allow prior inconsistent statement of ordinary
witnesses to go in.
Unadopted prior inconsistent statement of a witness could be admitted as a
hearsay exception if:
 If you have statement under oath, solemn affirmation, after a warning about
consequences of not telling truth,
and if it is video-taped in its entirety this is sufficiently reliable (although have
only seen this applied to videos, could apply elsewhere)
And if the opposing party, has a full opportunity to cross-examine the witness
now on the stand respecting this prior statement
However, court indicated that in appropriate circumstances, substitutes for these
strict requirements might suffice.

Note: prior inconsistent statement by a party would go in under admissions

The Opinion Rule

Really a rule against speculation since the line between fact and opinion is blurred –
Graat
General Rule: A witness may not testify as to matter about which they have no
personal knowledge
Exception: unless their evidence qualifies as an expert opinion

Expert Opinion
Expert opinion evidence is admissible where the expert possesses knowledge
beyond common knowledge or experience that is relevant to a material issue and
would be helpful to the trier of fact.

Admission depends on four criteria – Mohan

Relevance: essentially a cost-benefit analysis
PP vs. PV, time consumption, misleading to jury
Necessity in assisting the trier of fact
Info likely to be outside the experience and knowledge of the trier of fact – has
to be more than just helpful - Jordan
Absence of any exclusionary rule
Properly qualified expert: through study, experience or both

Novel Science
Criteria for the admissibility of novel science – Trochym
Whether the technique can be and has been tested
Whether it has been subject to peer review and publication
What its potential rate of error is
E.g. confabulation (false memories), reduced critical faculty, memory
hardening – issues with hypnosis in Trochym
Whether is has been generally accepted (essentially the Frye test)
Court noted that testimony on novel science will rarely be admissible – Trochym

Ultimate Issue Rule – Marquard Distinction

No longer a rule, but survives in the ban on experts giving evidence about, as opposed
to relevant to, credibility
There are two forms of possible expert evidence – Marquard distinction
Experts cannot give evidence about credibility – nothing that amounts to “I
believe this person is telling the truth”
But can give evidence relevant to credibility – may testify to general
propositions relevant to the ability of the accused to give testimony
Evidence that is on human conduct and particular psychological and physical
factors that are helpful and necessary in the jury’s assessment of credibility is
admissible
So when faced with problem ask: is this about human behaviour OR about this
witness?

Use of Textbooks (form of hearsay)

Direct / examination in chief of your own expert witness:
Can elevate / beef up your expert witness’ opinion by getting their opinions
on books written by other (better / more prestigious) experts in the field.
Must first ask your expert witness if they find the book authoritative, and if so,
you can read passages and ask your expert witness if they adopt that
statement.
Courts allow this, partly as recognition that funds are limited (and so can’t call
the textbook writer) and your expert can then be cross-examined on it.
Cross examination of other side’s expert witness:
Can use books to confront expert’s opinion
First ask expert witness if they find the book authoritative and relevant:
If not, that’s the end of the inquiry (judge won’t let you badger the
witness) – Marquard
 Can’t get out of court statements made by an author in unless the
expert witness adopt them – is hearsay
If they do, can try to get them to adopt the argument you would like
before the court
Party then be required to bring their own expert to get this other theory or
opinion before the court.

Effect of hearsay on the probative value of the expert opinion:

For an expert’s opinion to have probative value, the more facts that they rely
upon that are proved in evidence, the better – Lavallee
If few or none of the relied upon facts are established in evidence, the value of
the opinion diminishes to zero - Abbey
Requires instruction to the jury that the less the factual basis is established, the
less weight should be given to the opinion evidence

Source of hearsay:
In Lavallee, Sopinka makes a distinction between:
Opinion based upon information supplied by a party, especially where this
party does not testify = lower probative value
 E.g. accused and his mother were telling stories to doctor, but in accused’s
interest to sound insane to doctor, so perhaps factual basis inherently
unreliable – Abbey
Wife’s claims of spousal abuse were corroborated by other sources, so
higher probative value – Lavallee
Hearsay forms part of the accepted means or reaching decisions in the
particular area of expertise = higher probative value

Hypothetical questions to establish assumptions of the expert:

When counsel presents an expert witness, they will usually ask them a
hypothetical question that sets out all the premises upon which their opinion is
based
Have to know the assumptions that the expert is making:
Was the opinion is based on that assumption?
How many of those assumptions were established in evidence?
The probative value of the opinion will vary depending on to the extent with
which the assumptions on which the opinion is based have been proven in the
evidence.
Trial judge has discretion to require counsel to elicit expert’s opinion from
hypothetical question or to dispense with the requirement - Bleta

Privilege
Although privilege was previously limited to a finite number of class privileges,
now there is the possibility of recognizing new privileges on a case by case basis –
Gruenke

Class Privileges
Solicitor-Client Privilege
Important to distinguish between solicitor-client privilege and litigation privilege:
Solicitor-client privilege protects confidential communications between solicitor
and client for the purpose of giving or receiving legal advice
Duration: commences as soon as there is contact between the lawyer and
client and even survives the death of the claim.
Waiver: Only way the privilege can be lost if the client waives the privilege –
must be done sedulously (with great care).
Extent: includes communications conducted through agents of either the
client or solicitor. Doesn’t depend on whether there is any litigation going on.
Communications with third parties are generally NOT covered by this
privilege.
Documents intended for the soliciter client relationship (e.g. medical
reports, private investigator) are privileged
Third party who overhears/intercepts a communication NOT privileged
No duty to ensure confidentiality – accidental disclosure will not result in the
loss of privilege
 Litigation privilege is based on the need for opponents in an adversary system to
protect the litigation game plan
Duration: Only applies once litigation has been launched or is being
contemplated. Ends once the litigation is over, but includes separate
proceedings that involve the same or related parties around same or related
cause of action - Blank
Covers third party reports, so long as the dominant purpose of these reports
was for litigation.

Exceptions (and note since these override what is considered the most important
type of privilege, it will also override other types of privilege) There is no privilege
for:
Criminal intent exception: Communications that are themselves criminal or
that are made with a view to obtaining legal advice to facilitate the commission
of a crime.
Public safety exception: where public safety is at risk
Test: privilege will be set aside if there is an imminent risk of serious bodily
harm or death to an identifiable person or group - Smith v. Jones
Imminent can include “when I get out of jail”
Innocence at stake exception (very narrow): Would result in the withholding of
evidence that “would likely” enable an accused to establish his/her innocence
- McClure, Brown
Accused must establish that:
The information he seeks in the solicitor-client file is not available from any
other source, AND
They are otherwise unable to raise a reasonable doubt as to their guilt
If successful, accused then faces a two-stage inquiry:
First, must provide some evidentiary basis for the inference that a
communication exists that could raise a reasonable doubt
If yes, then the judge will look at the file where the alleged communication
is and must determine if there is in fact a communication that would likely
raise a reasonable doubt.
If successful, judge will order production only of the necessary portion of the
file
The person whose privilege has been set aside is granted both use and
derivative use immunity for the communications in any subsequent prosecution
- Brown
Very difficult for an accused to meet this test – courts very reluctant to
recognize this type of exception, particularly because the accused doesn’t
have first hand details on the info under privilege

Note: may also be an exception where it can be demonstrated that the party who
asserts the privilege has an interest to protect (e.g. not the one who it will be used
against)
Marital or Spousal Privilege
Codified in CEA s.4(3): No husband / wife is compellable to disclose any
communication made to him / her by his / her wife / husband during their
marriage
Privilege belongs to the recipient of the information and only they can waive it
Arises only when the recipient spouse is on the witness stand: may be asked
about the communication, but has the right to refuse to answer
Covers all communications, not merely confidential ones
Applies only for the duration of the marriage and does not survive its
termination

Effect of interception:
Intercepted spousal communications are admissible (e.g. intercepted letter,
testimony of witness who overhead a conversation, etc.) - Rumping
Inadvertently or carelessly disclosed communications also admissible, although
judge has discretion to uphold the privilege in this sort of case
BUT electronic interception (e.g. wiretap) inadmisible: CC s. 178.15(5) preserves
the spousal privilege - Lloyd

“Without Prejudice” Communication

Designed to encourage and facilitate settlement negotiations
Prevents settlement offers and discussions from being used as admissions
against a party should the negotiations fail
Criminal: also protects plea bargains (resolution discussions)

Identity of Informers
At common law, the identity of a police informer is protected from disclosure in
both criminal and civil proceedings
Consent of both the informer and the Crown is required to waive the privilege
Court has no discretion to weigh competing public interests
One exception only: innocence at stake (similar to McClure application) –
criminal context only
Only arises in situations in which this tipster has a pivotal role in showing the
innocence of the accused. Three situations only:
Where the informant is a material witness
Where the informant is an agent-provocateur (planted by the stake to
encourage illegal activity)
Where there is a Charter s. 8 challenge to a search warrant or wiretap
authorization
Procedure (very strict) - Leipert
Accused must show a basis for disclosure (must be innocence at stake)
If a basis is shown, the judge reviews the information to see whether the
information is necessary to prove the accused’s innocence
If it is, the judge reveals only as much info as is necessary
 Scope: covers any information that could implicitly reveal the identity of the
informant, not just the identity of the informant.
The anonymous person is the most at risk - should just exclude everything
because you don’t know what information could show their identity.

Case-by-Case Privilege
Where no class privilege exists, may try to fit a communication under Wigmore’s four
criteria for privilege BUT very difficult to succeed on a case-by-case basis
Judges have discretion on a case-by-case basis to rule a particular piece of
evidence privileged based on the “Wigmore four” criteria:
Communication must have originated in a confidence that it would not be
disclosed.
This confidence must be essential to the full and satisfactory maintenance of
the relation between the parties.
This relation must be one which the community thinks ought to be diligently
fostered.
The injury to the relation that would result by disclosure must outweigh the
benefit gained in the litigation by disclosure.
However, unlikely that the courts will recognize a new class privilege – Ryan
Did not create privilege for psychiatrist-patient relationship

Disclosure and Production of Third Party Records

Important distinctions between:
Disclosure: obligation of the Crown in criminal cases to make full disclosure
- Stinchcombe
Crown must make full disclosure of all the evidence in its defence, unless it
is irrelevant or privileged. But if it asserts that it will not disclose evidence,
then the court will interpret any issues around disclosure with more favour
to the accused
Production: discretion of the court to order production of records retained by
a third party
Issue: under what circumstances can a litigant get production of evidence
from third parties?
Special principles have been developed to attempt to balance the privacy
interests of third parties holding records and the right of the accused to
make full answer and defence.
 O’Conner – governs everything but sexual offences
 CC s. 278.1-.9 – governs sexual offences
Even when production is ordered, the records themselves may
nonetheless be inadmissible

Admissibility of third party records already in the hands of the accused – Shearing
Special production procedure do NOT apply
Only issue is admissibility: records may be excluded if its probative value is
substantially outweighed by its prejudicial effect - Seaboyer
Witnesses
Competence and Compellability
Competence: whether or not the witness is legally allowed to be a witness (enter
the stand and give testimony) – concerned primarily with young children and
mental capacity.
Refers to the ability to 1) observe, 2) remember and 3) communicate
(intellectual ability to understand questions and give intelligent answers and
moral responsibility to speak the truth)
Compellability: assumes that we have a competent witness, but notwithstanding
competence, can the witness be compelled to enter the witness stand and testify
(or to provide document)
Privilege: arises once you have a competent and compellable witness in the box.
Two type:
Some privileges prevent the witness from answering questions (e.g. cannot
breach client-lawyer confidentiality)
Some allow the witness to refuse to answer certain questions (e.g. spousal or
marital privilege)

Sworn testimony:
Witnesses are required to give sworn testimony by taking an oath (need not be on
the Bible) or solemn affirmation.
CEA s. 14 allows individuals to take a non-religious form of an oath called a
solemn affirmation stating that they “solemnly affirm that the evidence to be
given by me shall be the truth, the whole truth and nothing but the truth.”

Children Under 14
CEA s. 16.1: children under 14 are presumed to be competent to testify
Requirements:
Child witnesses always give “unsworn evidence” – that is, evidence given
under a promise to tell the truth. Has the same effect of evidence given under
oath
Standard of competence: child must be able to answer and respond to
questions
Shall not be asked questions regarding their understanding of the promise to
tell the truth

Mental Capacity (Over 14)

CEA s. 16(1): If a proposed witness is 14 or older and their mental capacity is
challenged, then the court shall conduct an inquiry to determine:
(a) whether the person understands the nature of an oath or a solemn affirmation
and
(b) whether the person is able to communicate the evidence.
Spousal Competency and Compellability
Test for Spousal Incompetency:
Is the witness the spouse of the accused?
Must be legally married (includes same-sex marriage)
If common law then not included, but open to Charter challenge
If spouses are separated without any reasonable possibility of reconciliation,
spousal competency rules do not apply - Salituro
Spouse of accused is competent and therefore compellable for the accused –
CEA s. 4(1)
Spouse of accused is neither competent nor compellable for the prosecution
CEA s.4(5) - preserves common law exceptions, so apply common law:
CEA s. 4(1) CEA does not speak about the prosecution, so by common law
spouse is not competent for the prosecution - Salituro
Unless one of the following exceptions applies:
The crime is of a sexual nature – CEA s. 4(2)
Against children under age of 14 – CEA s. 4(2)
The accused has threatened the “life, liberty or health” of the spouse or
children – CEA s. 4(5)
The spouses are irreparably separated (Salituro preserved by 4(5) CEA)

Spousal privilege:
Zylstra – if a spouse can be compelled to take the stand and can be asked about
confidential communications with her spouse, she still has the right to refuse to
answer because of spousal privilege.

Compellability of the Accused

CEA s. 4(1): Accused is competent to testify for the defence, but remains
incompetent for the Crown (i.e. the Crown may not call the accused as witness)

Principle Against Self-Incrimination

At common law, when testifying a witness may refuse to answer a question on the
principle that is may self-incriminate them.
CEA s.5(1): takes away the common law privilege of refusing to answer,
compels the witness to answer, and then enacts a statutory protection:
CEA s. 5(2): use immunity - those answers may not be used against you in any
subsequent prosecution.
Cannot be used for any reason, including impeachment of credibility -
Henry
Witness invokes s. 5 when apprehend a risk of self-incrimination – not
automatic

Protections of CEA s. 5 are supplemented by automatic Charter protections:

Charter s. 13: A witness who testifies in any proceedings has the right not to
have any incriminating evidence so given used to incriminate that witness in
 any other proceedings, except in a prosecution for perjury or for the giving of
contradictory evidence
Charter s. 11(c): right not to be compelled to take the stand in your own trial

Scenario: Accused who testified at his first trial and is retried

General rule: cannot use accused’s testimony from a previous trial at a second
trial.
Rationale: when a new trial is ordered, the accused is entitled not to testify at
all under s. 11(c)
Allowing the Crown to file the testimony given by the accused at a previous
trial would be indirectly compelling the accused to testify – Dubois
EXCEPTION – contradictory evidence: s. 13 protection NOT available to an
accused who testifies at his first trial and then volunteers
inconsistent/contradictory testimony at the retrial on the same charge. – Noel,
Henry
Rationale: don’t want the accused to be able to simply change his story in his
second trial and give the Crown no means to question him on it

Scenario: Witness in an earlier proceeding is himself put on trial

Section 13 only protects against the use of prior compelled testimony, and not
against the use of testimony previously volunteered – Henry
Where an accused was earlier compelled to testify when they were not an
accused (triggering s. 5 protection), such earlier testimony cannot be used to
incriminate or to attack credibility – Henry

Derivative use immunity:

CEA 5 and Charter s. 13 do not provide derivative use immunity
However the courts have said that section 7 (with a bit of 11(d)) provides a
derivative use immunity – evidentiary burden on the accused to show a plausible
connection between the compelled testimony and the discovered evidence
So if state trying to use evidence against the accused that it would not have
found but for earlier testimony at a judicial proceeding, s 7 provides this
immunity
Discoverability: the Crown would then have to show on balance of
probabilities that the evidence would have been discovered anyways
Apply Collins test

S. 7 principle against self-incrimination?

Since Hebert, a number of SCC decisions have indicated that there is a s. 7
principle against self-incrimination that is wider than the pre-trial right to silence
and the protections if ss. 11(c) and 13
However, very unsettled!

Common Law Right to Silence

General rule: a suspect is not required to do anything that is not specifically
required by law, such as talk to the police.
 Unlike s. 7 right to silence, applies prior to arrest or detention
Silence not generally admissible as evidence - Turcotte
Exercising this right generally cannot justify the drawing of an adverse inference –
Turcotte
Exception – alibi:
Where alibi defence not disclosed at a sufficiently early time to permit Crown
to investigate, the trier of fact may draw an adverse inference from the
accused’s pre-trial silence
If silence is admitted into evidence, the trial judge is obliged to tell the jury in
clear terms that it cannot be used to support an inference of guilt – Turcotte
Rationale: guilt cannot logically or morally emerge the exercise of a protected
right. Jury must be instructed on:
Dangers of relying on such evidence
Proper and improper inferences
Limited probative value

Charter s. 7 - Pre-trial Right to Silence

The essence of the right to silence is the right to choose whether to speak to the
authorities or not – Hebert
Right to silence only applies after the accused is in police detention – Hebert
Undermining that right would diminish the protections against self-incrimination
under ss. 11(c) and 13 and violate s. 7

Criteria
In order to violate the s. 7 right to silence, police persuasion must: - Hebert
Deny the suspect the right to choose not to speak, or
Deprive the suspect of an operating mind
However, everything else is fair game!
Right to silence not violated if an undercover police agent simply observes and
listens to any conversations which the accused may have, as long as the agent
does not “actively elicit information” – Hebert

Where an interrogation satisfies the common law confessions rule, it will not
violate the s. 7 right to silence – Singh
Where a detained suspect is quested by an obvious person in authority, the two
tests are functional equivalents

Common Law Confessions Rule

Note: major exception to the hearsay rule!

Confession = out-of-court statement, oral or in writing, either exculpatory or

inculpatory, made to a person in authority
Person in authority = a person formally engaged in the arrest, detention,
examination and prosecution of the accused – Ibrahim
Applies any time a person makes a statement to a person of authority – applies
prior to arrest or detention
For a confession to be admissible must be satisfied after the voir dire beyond a
reasonable doubt that the will or the accused was not “overborne” by: - Oickle, Singh
Inducements (quid pro quo) - Spencer
Oppressive circumstances
Lack of an operating mind
Police trickery so extreme as to “shock the conscience of the community”
Cannot use police trickery to undermine your choice not to speak. Undercover
agent cannot actively elicit information, but may passively observe - Hebert

Common law confessions rule is important and has certainly not been
overshadowed by s. 7 right to silence – Oickle, Singh

Common Law Confessions Rule S. 7 Right to Silence

Who is A “person in authority” An “agent of the state”
bound? determined on a subjective test determined on an objective test
When is it Any time a person makes a Only once a suspect is arrested or
triggered? statement to a person in authority detained
Burden + Crown has to prove that confession Accused has to prove that there
Standard was obtained voluntarily beyond a was a breach of rights on a
of Proof reasonable doubt balance of probabilities
Effect of Evidence is excluded no matter If breach of rights – must go
breach what through 24(2) exclusion of
evidence analysis
Goal Not as concerned with reliability, Protection of rights
but interest and prejudice of the
accused - Sweeney

Failure of Accused to Testify

The failure of the accused to testify does not generally permit the drawing of
an adverse inference about the accused – Noble
Rationale: presumption of innocence requires that the Crown prove guilt of the
accused beyond a reasonable doubt – the accused does not bear the burden of
proving their innocence
BUT the accused may comment on the failure of a co-accused to testify -
Crawford
Exception: alibi
May draw an adverse inference from the failure of the accused to offer an
alibi through testimony
The Crown can cross-examine the accused on his or her alibi
CEA s. 4(6): Neither the judge nor the prosecutor may comment on the failure
of the accused or his spouse to testify.
Strangely enough, prevents the judge from instructing the jury that they may
not draw an adverse inference from the failure of the accused to testify
Note on Corporate Officers
Corporations may not rely on s. 11(c) of the Charter, and therefore senior officers
are compellable to testify against the corporation – Amway Corp.
However, still protected by Charter s. 13 and CEA s. 5

Manner of Questioning in Direct and Cross-Examination

Leading Question
Leading questions are appropriate:
During cross-examination – they are the essence of cross-examination
Not permitted in direct examination (examination-in-chief), but there are
exceptions:
Generally allowed when nothing important is at stake (e.g. asking their
address, name, background history) – practical for introductory purposes
A party must not lead their witness on material points - anything relating to
the material facts of the case or the credibility of the witness - Maves
May be obligation on the defence to object to leading questions - Rose

Past Recollection Recorded vs. Present Recollection Revived

Present recollection revived = witness on stand under stress forgets crucial point,
need something to jog their memory, counsel can backtrack and ask a few more
questions to revive witness’s memory - Rappy
But if that doesn’t help, can move to show witness previous statements /
documents / transcripts / photographs / etc
The refresher statement/document is not substantive so usually not considered
evidence
Witness must be able to set aside the document and testify independently
Witnesses are permitted to refresh their memories before or during the trial –
KGB
Even hearsay or inadmissible can be used to job memory – Fliss

The distinction between present recollection revived and past recollection

recorded in quite blurred – vigilance is required when seeking admission of testimony
at present recollection recorded – Wilks
E.g. unexplained, identical police notes would seem to indicate that memory has
not been refreshed - Matis

Past recollection recorded: the record or document itself is the evidence because
the witness has no independent recollection of the event.
Courts impose stringent criteria to allow this kind of evidence to be introduced –
essentially an exception to the hearsay rule.

Criteria for admitting past recollection recorded from Wigmore on Evidence,

summarized in Wilks:
 The past recollection must have been recorded in some reliable way
At the time of recording, it must be have been sufficient fresh and vivid to be
probably accurate.
The witness must be able now to assert that the record accurately represented his
knowledge and recollection at the time. The usual phrase requires the witness to
affirm that he “knew it to be true at the time.”
The original record itself, must be used, if it is procurable.

Videotaped Statements by Children (or Disabled)

Represents a modification of the past recollection recorded standard:
Criminal Code s.715.1 and s.715.2: in sexual offence cases, if complainant or
witness under 18 (at time of alleged offence) or with mental or physical
disability that affects their ability to testify, a videotape made shortly after
alleged offence of witness/complainant describing the acts in question, is
admissible if adopted by the complainant/witness. - R. v. L (D.O.)
Possible to adopt only a portion of the tape if cannot adopt the whole thing – R. v.
F(C)
However, a warning to the jury may be required – R. v. F(C)

Cross-Examination
Cross-examination is wide open: not confined to matters relevant to material issues
or matters raised on direct examination
May extend to matters relevant solely to the credibility of the witness

Limitations: However, there are ethical limits on cross-examination

Trial judge has discretion to control questioning that is irrelevant, abusive,
unduly repetitive, etc. – Lyttle
Discretion must be exercised with care
Can’t go on fishing expedition in cross-examination, but where have good faith
basis for asking the questions (even about unproven facts without an
evidentiary foundation) then permissible – Lyttle
BCCA has applied a reasonable belief standard to allow this type of questioning
- Wilson

Duty to cross-examine?
Although it is not required that every witness be cross-examined, in certain
instances fairness demands that it occur:
Rule from Brown v. Dunn: if a party is going to impeach an opponent’s
witness, that party should challenge the witness on cross-examination and give
them an opportunity to confess or deny - Brown v. Dunn

Collateral Facts Rule

Not a rule about cross-examination!
 The collateral facts rule: the answer of a witness to a question concerning a
collateral (i.e. side as opposed to core) matter cannot be contradicted by
extrinsic evidence (i.e. evidence of any form other than out of the mouth of the
witness you want to contradict) – Hitchcock, Krause
Collateral facts rule is a rule of practical necessity (trials have to end at some
point, can’t have collateral spin-offs going on forever). So, ask how important
is the matter and how long will it take, and is it worth the time to admit the
impeaching evidence.
Depends on the nature of the impeaching evidence:
Evidence that relates to a substantive issue and a credibility issue.
 Not collateral
Evidence that does not relate to a substantive issue in the case, but has
relevance to credibility and is more than a mere contradiction.
 Not collateral
Evidence that is relevant to credibility, but is a mere contradiction.
 Caught by the collateral facts rule!

If your going to ask a question about a collateral matter, then you are stuck with
the answer – cannot lead other evidence to contradict!

Impeachment
Impeachment: seeking to undermine the credibility and reliability of a witness –
challenging that witness’ testimonial capacity

Broadly speaking, there are five ways to attack the credibility of a witness:
Attack the witness of prior inconsistent statement – probably the most effective
and most frequently used
Show that the witness is biased – emotional ties of kinship, hostility to a party,
pecuniary interest, etc.
Attack the character of the witness
Show defect in the capacity of the witness to testify
Bring another witness to contradict the testimony of the witness

Impeaching Opponent’s Witness on Prior Inconsistent Statement

Starting point: consider whether prior inconsistent statement is:
Merely collateral  apply collateral facts rule
On a material point  see below

Use of extrinsic evidence to show contradiction (either oral or written)

CEA s. 11 deals with permission to prove extrinsic evidence and put it before a
witness:
Minimum requirement: the circumstances under which the statement was
made must be mentioned to the witness before they can be asked whether or
not they made the statement
Oral Statement
Common law governs cross-examination on an oral statement: impeachment by
proof of a prior contradictory statement could only be done if preceded by cross-
examination of the witness on that particular matter.

Written Statements
CEA s. 10 governs cross-examinations on a written statement: witness may be
cross-examined as to previous statements that they made in writing (or reduced to
writing from an audio or video record) without showing the witness the
statement prior to cross-examination

Generally four steps in cross-examining on a prior inconsistent statement:

Confirm with some precision the witness’ evidence-in-chief
Confront them with the fact that they made an earlier statement
Highlight the contradiction
Decide on a strategy:
Explore the contradiction to show the witness cannot be believed
Leave the argument to counsel’s final address
Get the earlier statement admitted as the truth

Where the witness claims to have no knowledge of a fact about which he made a
previous statement:
An affirmative answer that was contradictory to a previous statement could be
impeached
However, a negative answer is not damaging, but merely disappointing, and
may not be impeached
“I don’t remember” can sometime be considered inconsistent – at trial judge’s
discretion

Impeaching Your Own Witness – Trickier!

Civil Cases
Note that the rules for examining witnesses and impeaching testimony are much,
much looser in civil proceedings in BC: BCSC Rules
40(21): A party may examine or cross-examine a witness, including by use of
leading questions and on prior statements whether or not they were made under
oath
40(22): A party may contradict or impeach the testimony of any witness

Criminal Cases – Much stricter!

CEA s. 9(1): You are not allowed to impeach your own witness by showing general
evidence of bad character
HOWEVER, if in the opinion of the court, the witness proves “averse”, you may
contradict them or show that the witness gave prior inconsistent statement –
may cross-examine at large (at least in BC)
Definition of averse:
Common law (narrow): add in
 Broadened: Averse was taken to mean “opposed in interest” which would
include “hostile” but of course could be much broader – Wawanesa
Absence of a prior inconsistent statement to support a finding of averseness,
impeachment may not be possible - Malik

CEA s. 9(2): If your witness made a prior written or recorded statement that is
inconsistent with their present testimony, the court may, without proof that the
witness is averse, allow you to cross-examine your witness on that statement (not
at large).

Procedure – Milgaard, McInroy

Have witness going sideways: do you have written statement?
If not, go to CEA s. 9(1) voir dire to have declared adverse
If yes, ask “would anything help refresh your memory?” – consider present
recollection revived vs. past recollection recorded
If witness still says no, can admit via CEA s. 9(2) and cross-examine on
that particular statement
May then use 9(2) evidence to go back to 9(1) impeach more generally
Jury allowed to use the prior statement for credibility only:
However, in this situation the cross-examiner is not really trying to impeach
their witness’ credibility, but to get them to adopt the prior statement as true
If a witness will not adopt the statement as true, whether you can use if for
truth depends on hearsay
Generally try and fit the statement into the KGB criteria – see page #

Bias
There are not set criteria for establishing bias, but they may include examples such as
family or employment relationship or bribery to testify falsely.
Once bias is established, since such feeling betray emotional partiality that may
impair the witness’s ability to testify, evidence of bias is not collateral, but rather
may be elicited in cross-examination or by extrinsic proof.
Unless the witness admits to bias, in which case it becomes immaterial -
McElroy
If it is intended to impeach the witness by evidence of his prior conduct
illustrating bias, it should be preceded by a cross-examination of the witness on
this issue.

Error of law for a prosecutor to ask an accused to speculate as to why Crown

witnesses would lie – Ellard
Shifts burden of proof from the Crown to accused, undermines presumption of
innocence and doctrine of reasonable doubt; accused can attempt to raise a
reasonable doubt as to motive in the examination in chief.

Character of a Witness
Must distinguish from the character evidence rule respecting parties:
 Here extrinsic evidence is introduced solely with respect to the credibility of the
witness

Rowton Rule: the only evidence of bad character that is admissible from character
witnesses is evidence of general reputation – not simply evidence of personal
opinion – applies to character evidence about other witnesses as well as the accused
Judges have discretion not to permit personal opinion on credibility to prevent
“legal clutter” in the courtroom
Character witnesses can be cross-examined as to specific instances of misconduct,
although they cannot testify to them in chief.

Clarke series of questions:

Do you know the reputation of the witness as to the truth and veracity in the
community in which the witness resides? If yes 
Is that reputation good or bad?
From that reputation, would you believe the witness on oath?
Judge has the discretion to allow questions 1 + 2, but shouldn’t generally allow
question 3 – becomes a matter of personal opinion

Accused as a Witness
The accused has special protections as a witness:
Davison – have to bear in mind the dual nature of the accused as a witness – both
the witness and the accused.
As the accused, they are protected by an underlying policy rule against the
introduction of evidence that shows them to be a person of bad character
(prohibited inference under the character evidence rule)
As a witness, their credibility is subject to attack under cross-examination
Limitations are imposed with respect to the cross-examination of an accused
which do not apply to an ordinary witness
Policy rule which protects an accused against attack on their character lest the
jury be diverted from the issue at hand, is not wholly subordinated by the rule
which permits an accused to take the stand and be cross-examined on
credibility.

Different rules for regular witness and the accused as witness:

Ordinary witness: open to cross-examination at large as to credibility
Accused as witness: aside from questions regarding previous convictions, should
not be cross-examined with regard to previous misconduct or unsavoury
associations unrelated to the charge
Exceptions:
Accused puts their character in issue
Cross-examination relevant to prove the falsity of the accused’s
evidence doesn’t fall within this ban.

Cannot ask the accused about crimes for which they were not charged or crimes
for which they are currently awaiting trial - Titus
 CEA s. 12: only allows cross-examination on prior convictions.
BCEA 15(1): a witness may be questioned as to whether the witness has been
convicted of an offence and if the witness denies the fact or refuses to answer,
the opposite party may prove the conviction.
BUT see Corbett application
HOWEVER, BC has unique rule for civil proceedings:
BUT BCEA 15(4): in a civil proceeding conducted before a jury, if the judge
thinks that the questioning of that witness would unduly influence the jury (PP
vs. PV), they may NOT be cross-examined on prior convictions.

However, it is open to ask witnesses that are NOT the accused about any
criminal activity for which they may be awaiting trial.

Prior convictions are only relevant for purpose of assessing credibility - Corbett
However, concern about ability of jury to restrict their use of such evidence to
credibility only - requires strong jury charge

Judge maintains a residual discretion to exclude such evidence of prior

convictions if its PV is outweighed by PP - Corbett
Corbett Application - catalogue of factors to take into account:
Nature of previous convictions—if crime of dishonesty it will be considered
more probative (just violence then is mostly prejudicial); if is similar to offence
charged with in case then more prejudicial - McFayden
Remoteness or nearness: further in past = less probative
Has the accused attacked a crown witness on the basis of credibility in a
comparative way — the probative value goes up
Number: more prior convictions are more prejudicial (argument that admitting
all convictions will be increasingly prejudice)
Similarity: the more similar then more prejudicial
Corbett application should be completed after the Crown closes its case / before
the defence brings their case – may impact the decision of the accused to take the
stand if they could be cross-examined on previous convictions – Underwood
May be useful to hold a voir dire where the defence will disclose the evidence
they will bring in their case so that the trial judge can make a more informed
Corbett application.

Defects in the Capacity of a Witness

The cross-examiner is always entitled, subject to the trial judge’s discretion, to
attempt impeachment by questioning the witness’s general capacity to observe,
recollect and communicate – physical or mental disease or abnormality.
Can lead expert evidence to show that a witness lacks a particular testimonial
capacity, or at least had an impaired testimonial capacity – Toohey
Supporting Credibility of Your Own Witness
General rule (rule against oath-helping): you may not attempt to support the
credibility of your own witnesses until they have been impeached by the other
side – Kyselka
May not lead evidence of a witnesses prior consistent statements – time
consuming, redundant, unnecessary

Exceptions where the rule against prior consistent statement is relaxed for
reasons of fairness:
Recent fabrication (to rebut): where the opponent alleges that testimony is the
result of recent fabrication (i.e. has changed their story), a prior consistent
statement that would otherwise violate the rule is admissible to rebut the
allegation - Pangilinan
Must be recent – i.e. if opponent suggests that witness fabricating from outset
then prior statement inadmissible – O’Connor
Will be admitted only if there is testimony for the prior statement to be
consistent with – cannot be raised until the witness has testified
Not oath-helping rather is offered to rebut the allegation of recent fabrication.
Express Assertion: e.g. why wasn’t this in your police report
Implicit Assertion: any time the other side suggests that your witness made
their testimony up  respond with a prior statement to show it pre-existed
the time they suggest where witness fabricated evidence

Prior identification: Because in court identifications have so little probative

value, prior identifications of the witness are admitted to show consistency
(possibility of error in identification is high, so should give full advantage) –
Hibbert
If a witness cannot identify a perpetrator in-court, evidence of the prior
identification is admissible if the witness can link it to his present testimony
- Swanston
If a witness does not make an in-court identification and recants the earlier
one, prior identification is hearsay and will only be admitted for its truth if the
KGB criteria are satisfied – Tat

Recent complaint:
CC s. 275 abolishes the rules relating to evidence of recent complaint for
sexual assault cases.
Crown no longer permitted to introduce evidence of recent complaint in its
case in chief, but may be admissible in cross-examination
Complainant may be cross-examined on the delayed complaint - not
uncommon for an accused to point to a delay to suggest that the
complainant concocted the story.
Crown may adduce evidence of prior consistent statement to rebut the
allegation and any potential adverse inferences that would follow
 Narrative (vague)
Prior consistent statements of a witness are admissible as part of a narrative
only where it is necessary to do so in order to explain the “unfolding of
events” and only in the minimum amount of detail necessary.
Limiting instruction to the jury is also required to ensure that the statement is
admitted solely with respect to credibility (unless it falls under the hearsay
exception) – Albert, R. v. F. (J.E.)
Jury not to look to the contents of the statement as proof that the crime
has been committed

Demeanour and Credibility

Even if we set aside the significant problem of cultural differences, demeanour can
mislead, and the fact that a witness appears or even is sincere does not mean that his
testimony is not tainted by faulty perception, memory or communication skills.
The credibility of witnesses, particularly in cases of conflict of evidence,
cannot be gauged solely by the test of whether the personal demeanour of the
particular witness carried conviction of the truth - Norman
Intelligence, upbringing, education, race, culture, social status, etc. may impact a
witnesses’ demeanour but have little bearing on their truthfulness – R. v. P. (S.H.)

Corroboration
Requirement that there must be more than one witness, or that that the witness’
testimony must be supported by other independent evidence, before liability may be
found or a conviction made – Baskerville

Most requirements for corroboration no longer exist:

Warnings no longer need to be given for predetermined witnesses or offences –
Vetrovec
INSTEAD, the law is that “clear and sharp” warnings should be given whenever
a witness gives significant evidence whenthere is reason to suspect their
credibility – Brooks, R. v. S. (F.)
Generally includes evidence of accomplices, jailhouse informants, children
and witnesses of unsavoury character
Warning should be given where “such caution is merited” and not categorically
– may be error of law if no warning is given – Brooks
The greater the concern over the credibility of the witness and the more
important the evidence, the more likely the jury warning will be mandatory
- Brooks

Real Evidence
Distinction between real evidence and demonstrative evidence:
Real evidence consists of physical objects that form the evidence itself (e.g.
bloody shirt, narcotics, gun)
Threshold: must be authenticated
 Demonstrative evidence consists of demonstrations, charts, models and other
tools that assist the trier in understanding the evidence
Threshold: judge must be satisfied that it is an accurate demonstration of
what it purports to explain – Howard and Trudel
Generally admitted if relevant, subject to trial judges discretion to exclude
if its prejudice outweighs its value - Collins
Relevance of the experimental evidence will depend on the degree of
similarity between the replication and the original event - Collins

Authentication
Relevance: fairly easy to get past the judge to be received as evidence – Parsons
Must be identified as genuine: judge must be satisfied that there is sufficient
evidence introduced to permit a rational finding by the jury that the item is as
claimed
Weight to be given to the evidence is up to the jury
As well, continuity must be established: must have kept track of the thing and
kept it secure (e.g. from being tampered with) at all times, from when it was first
collected, through testing/storage, to presentation at trial.
A significant gap in continuity may raise a reasonable doubt about
authenticity, but is not necessarily fatal – MacPherson

Documents
Documents are the most common form of real evidence:
Documents must be authenticated. Three ways to authenticate:
By admission (production) i.e. parties admit / agree that the documents are
authentic (typical); ancient documents which have been kept in appropriately
secure storage
Through direct evidence i.e. a witness on the stand says “yes, that’s the
contract”, or “yes, that’s the letter I wrote”.
Through circumstantial evidence i.e. any evidence that implies a reasonable
inference that the document is minimally reliable i.e. that suggests it is what it
purports to be

Authentication mostly governed by statute. Common requirements:

Required notice must be given to the other side
Document must be relevant in and of itself or for the truth of its contents – raises
hearsay issues

Best Evidence Rule

Although the best evidence rule (essentially that the best evidence should always be
provided) used to be one of the most fundamental laws of evidence, it now only
applies to documents
Nowadays, we do not confine ourselves to the best evidence. We admit all
relevant evidence. The goodness or badness of it goes only to weight, and not
to admissibility - Controni
Best Evidence Rule = requires that when the terms of a document are material,
proof of the terms of the document must be by production of the original.
However, secondary evidence may be introduced if the proponent can satisfy the
court that original is lost or destroyed or in the possession of another and cannot
be obtained - Wayte
CEA ss. 29 + 30: authorize use of copies

Other Forms of Evidence

Aboriginal Oral Histories
Although the majority in Delgamuukw ruled that the rules of evidence must be
adapted to accommodate oral histories, they did not mandate blanket
admissibility of such evidence or the weight it should be accorded – must be
determined on a case by case basis - Mitchell
Aboriginal oral histories must meet the test of usefulness on two grounds: -
Mitchell
Must offer evidence of ancestral practices and their significance that cannot be
obtained through any other grounds.
Evidence must be reliable – but must avoid “facile assumption based on
Eurocentric traditions”

Photographs
A photograph is admissible in evidence if authenticated. Requires: – Schaffner
it accurately represents the facts,
is not tendered with the intention to mislead and
is verified on oath by a person capable to do so
HOWEVER, with a videotape, once the functioning of the camera has been
authenticated, can be an independent “silent witness” - Nikolovski

Views
If it is physically impossible to bring the real evidence into the courtroom, the
courtroom may have to go to the evidence and take a view - rare, but they do
occur (e.g. scene of the accident)
Decision as to whether a view will be taken is properly within the discretion of
the judge, who will assess the importance of the evidence against the
disruption of the trial necessitated by the adjournment.