EVIDENCE Civil trial

● Plaintiff presents evidence, usually by

having witness testify. Known as “direct
CHAPTER 1: The Basic Concepts and
examination” or “examination-in-chief”
Fundamental Principles
● Defence can then “cross-examine” the
witnesses
Evidence Law
● Plaintiff presents all their evidence
● The law of evidence controls the
● Defence may ask for non-suit
presentation of facts before the court
● Defence presents witnesses
○ What can be admitted in court?
● Plaintiff and defence each make
○ How can admissible facts be
arguments to trier of fact (judge or jury)
placed before the court?
● Trier of fact considers evidence and
submissions and makes decision
The Litigation Process – Criminal
Negligence Example
Initiating the process
● You are visiting your friend Noah’s house
● A specific court document initiates the
on a cold, winter’s day. As you walk up the
process
porch steps, you slip and fall on some ice.
○ Laying an information in criminal
You sue for negligence, claiming Noah
litigation
didn’t clear the ice. Noah’s defence
includes a claim that you were contributory
Pre-trial evidence-sharing
negligence for wearing improper footwear.
● Crown provides “disclosure” in criminal
process
Role of the Judge/Jury
● Trier of Law
Criminal trial
○ Person in a trial who controls the
● Crown presents evidence, usually by
trial process, determines the
having witness testify.Known as “direct
admissibility of evidence, and
examination” or “examination-in-chief”
instructs the trier of fact on the
● Defence can then “cross-examine” the
applicable law
witnesses
○ In a jury trial, the judge
● Crown presents all their evidence
● Defence may ask for directed verdict
● Trier of Fact
● Defence presents witnesses
○ Person in a trial who assesses the
● Crown and defence each make arguments
evidence and renders a verdict
to trier of fact (judge or jury)
○ In a jury trial, the jury
● Trier of fact considers evidence and
○ Otherwise, the judge
submissions and makes decision
Charge to the Jury
The Litigation Process – Civil
● Judge’s instructions to the jury before the
jury begins deliberations
Initiating the process
● Statement of Claim in Small Claims Court
● Includes:
○ The applicable law
Pre-trial evidence-sharing
○ Standard of proof
● Parties are required to share evidence
○ Available defences
before the start of the trial to expedite the
legal process and promote settlement
○ “Discovery” in civil litigation

1
“One of the reasons [the jury system] has
functioned so very well is that trial judges have
been able to direct the minds of jurors to the
essential elements of the offence and to those
defences which are applicable.”
- R v. Osolin
The Litigation Process
Adversarial System
● Judicial process in which parties present
evidence before an impartial decision-
maker, who then makes a decision in the
case
○ Contrast to inquisitorial system, in
which the fact-finder investigates
○ Judges do not take an active part
in the search for truth
Case Law on Impartiality
Source: R v. Musselman (2004), 25 CR (6th) 295
(Ont. SCJ).
● An Ontario Provincial Court judge was
removed from case, as he could not be
objective
○ Court of Appeal noted that the
judge had “become an advocate
in his own cause in the forum
reserved for disputes he is to
decide impartially in a process of
calm and detached deliberation.”
Law of Evidence
● Until 1970s, the common law contained
numerous rigid rules and exceptions for
different circumstances
● Supreme Court in 1970s started moving
towards a more flexible approach
Goals of the Law of Evidence
Values
● The search for truth – reliable vs.
unreliable evidence/witnesses
● A fair trial for an accused – probative
value vs. prejudice
● Efficiency of the trial process
● Protect other relationships/outside
concerns
● Preserve the integrity of the administration
of justice
● Sometimes these goals conflict
Example: Hearsay
● Where a witness testifies as to what
someone else said
● Why a rule against hearsay?
○ Witnesses take an oath
○ Witnesses can be cross-examined
○ Witnesses can be prosecuted for
perjury
● Numerous exceptions based on necessity:
dying declarations, spontaneous
declarations, etc.
Towards a Principled Approach
Case Law:
● Ares v Venner (1970) - business records
● Slavutych v Baker (1976) - privilege
● R v Vetrovec (1982) - corroboration
● R v Khan (1990) - statements by children,
spontaneous declaration
While in many cases, a principled approach
permitted for greater admissibility, it resulted in
greater scrutiny of evidence in some areas.
● E.g. expert evidence – truly necessary and
of sufficient reliability
Charter rights and values
● The Charter protects an accused’s rights
to a fair trial
○ Accused’s right to make full
answer and defence
○ Protection against self-
incrimination
Societal Interests
● Canada Evidence Act makes it easier for
children to testify
● Criminal Code changes to protect
complainants in cases involving sexual
offences
● Protections against wrongful convictions
○ Expert evidence
○ Jailhouse informants
○ Eyewitness evidence
● Flexibility has replaced efficiency
2
 ● Dynamical model based on:
○ Competing goals of the law of
evidence
○ Competing societal interests
○ Competing Charter rights and
values
● Voir dires to determine admissibility
○ A mini-trial, or trial within a trial,
that is designed to determine the
admissibility of evidence in the
absence of the trier of fact
○ Jury excluded from hearing
information until judge determines
whether information is admissible
as evidence
○ In judge-alone trials, judges must
forget inadmissible evidence and
not consider it in their decisions
CHAPTER 2: Types of Evidence and
Conditions for the Receipt of Evidence
Types of Evidence
● Sworn statements
○ Sworn testimony of a witness in
court
○ Pre–trial sworn statements (e.g.
see: Rule 18.02 of the Rules of
the Small Claims Court)
○ Discovery statements
○ Affidavits
● Unsworn statements
○ Exceptions to hearsay (e.g.
business records)
● Real Evidence
○ Things
○ Any evidence where the court acts
as a witness
○ Must be authenticated
■ Photographs
■ Video recordings
■ Audio recordings
○ Taking a view
○ Appearance or Demeanour of a
Person
● Experiments and re-enactments
○ Outside of court - sworn statement
○ In court - sworn statement and
production of thing
● Documents
○ May be introduced to:
■ Prove its existence or that
it was in someone’s
possession (thing)
■ Prove its contents - in
some cases like an
unsworn statement
Conditions for Receipt of Evidence
Two basic requirements for evidence to be
received:
1. Admissible
● Relevant
● Not subject to exclusion
2. Not subject to judicial discretion to exclude
Admissibility
Relevance
● Fact that has “some tendency as a matter
of logic and human experience to make
the proposition of which it is advanced
more likely than the proposition would be
in the absence of that evidence” (R v
White)
● Does Fact A make the existence or non-
existence of Fact B more probable than
without Fact A? (R v Watson)
○ If so, then Fact A is relevant to
Fact B
○ But, Fact B must be a material
fact in issue
● Negligence example – what evidence
meets test?
● Strict liability example: Your neighbour’s
wild tiger escaped into your yard. There
are emails establishing that your
neighbour purchased a cheap enclosure
for the tiger
● Speeding example: Evidence of intention
3
 Rules of Exclusion
● Hearsay
● Self-serving evidence to support the
credibility of a witness
● Character evidence
● Similar fact evidence
● Opinion evidence
● Privilege
Judicial Discretion
❖ Even where evidence is admissible (relevant
and not subject to a rule of exclusion), the trial
judge may use his or her discretion to exclude
it.
● In criminal cases:
○ Unfair or unjust to the accused -
where the probative value is
outweighed by its prejudicial
effect, or where admitting
evidence would be to mislead the
jury or render the trial unfair
● In civil cases:
○ Where the prejudicial effect
outweighs its probative value
○ E.g. graphic photos of injury
Direct vs. Circumstantial Evidence
● Direct evidence: I saw it raining outside
● Circumstantial evidence: I saw someone
walk in wearing a raincoat and carrying an
umbrella, dropping wet
● In civil cases, circumstantial evidence is
treated like any other kind of evidence
● In criminal cases, Supreme Court rejected
the rule that “special instruction to jury”
necessary. Rather, judge should instruct
on reasonable doubt
Procedure for Admitting Evidence
● Evidence is usually presented to court
without objection or discussion of
admissibility
● If there is an objection, trial judge rules
right away
● Rulings on evidence can be appealed
after judgment
● In civil cases, generally no appeal on
evidence unless an objection was made
● In criminal cases, not as stringent a rule
Evidence in Small Claims Court
● Small claims court deals with civil cases
involving lower amounts of money
($35,000 or less)
○ Parties may have legal
representation, but parties often
represent themselves
● Judges are given more discretion
regarding the admissibility of certain
evidence
○ See section 27 of the Courts of
Justice and section 18.02 of the
Rules of the Small Claims Court
Evidence in Administrative Tribunals
❖ Administrative tribunals:
Decision-making bodies, similar to courts,
that rule on regulatory disputes
○ Often referred to as quasi-judicial
bodies
○ Examples: Workers’
Compensation Appeal Board,
Landlord and Tenant Board
❖ Main purpose is fair and just determination in
a timely and cost-efficient manner
○ Administrative tribunals have
relaxed rules of evidence
■ See section 15 of the
Statutory Powers
Procedure Act
Evidence in Appellate Court
❖ An appeal court could consider:
● Errors of law
○ Court applied the wrong test
○ Standard of correctness
● Errors of fact
○ E.g. credibility of witness
○ Standard of palpable and
overriding error
❖ Appeals from an administrative decision use
the same standards of review unless a
different standard has been prescribed by
statute.
❖ Judicial review of a tribunal decision presumes
a standard of review of reasonableness.
4
❖ Fresh evidence is rarely admitted in appeals,
especially if the opportunity to present such
evidence existed for the litigant at trial.
CHAPTER 3: Evidential Burden and Burden of
Proof
“Burden of Proof”
● Evidential burden vs. Persuasive burden
Evidential burden
● Threshold test
● Party must adduce sufficient evidence of
the existence of non-existence of a fact or
of an issue on the record to be considered
by the trier of fact
● Judge doesn’t decide whether he/she
believes the evidence
● Question of law
● Avoids perverse verdicts, wrongful
convictions and unwarranted acquittals
Civil Case - Plaintiff’s burden
● Plaintiff presents her case
● Defendant makes a motion for non-suit
● Judge decides whether there is any
evidence, if left uncontradicted, to satisfy a
reasonable person
● Whether a reasonable trier of fact could
find in the plaintiff’s favour if he or she
believed the evidence given in the trial up
to that point
Civil Case - Defendant’s burden
● Similar burden to that of the plaintiff -
whether a properly
CHAPTER 4: Standards of Proof
Satisfying the evidential burden
Civil Case — Plaintiff’s burden
● Plaintiff presents her case
● Defendant makes a motion for non-suit
● Could a reasonable trier of fact, if he or
she believed the evidence given in the trial
up to that point, find i. the plaintiff’s
favour?
Civil Case — Defendant’s burden
● Similar burden to that of the plaintiff —
whether a properly instructed trier of fact
could draw the desired inference from the
evidence adduced at that stage of the
proceedings
Criminal Case — Crown’s burden
● Is there any evidence upon which a
reasonable jury, properly instructed may
convict.
Criminal Case — Defendant’s burden
● Air of reality test: whether there is
evidence on the record upon which a
properly instructed jury acting reasonably
could acquit
Party has an obligation to prove or disprove a fact
or issue to the criminal or civil standard
● Criminal burden: “beyond reasonable
doubt”
● Civil burden: “on the basis of probabilities”
Begin with the presumption that the accused is
innocent.
The Crown must prove each element of the crime
beyond reasonable doubt.
What is a reasonable doubt?
● It is not imaginary or frivolous doubt
● Not based on sympathy or prejudice
● Probably guilty or likely guilty is not
sufficient
● There may be reasonable doubt even if
defendant is not credible
● instructed trier of fact could draw the
desired inference from the evidence
adduced at the stage of the proceedings
Criminal Case - Crown’s burden
● Is there any evidence upon which a
reasonable jury, properly instructed may
convict
Criminal Case - Defendant’s burden
● Air of reality test: whether there is
evidence on the record upon which a
5
 properly instructed jury acting reasonably
could acquit
Satisfying the evidential burden
1. Trier of fact can decide the issue
● Trier of fact may (not must) find
the accused guilty, plaintiff liable,
that a defence applies.
2. In some cases, as a result of statute,
discharge of evidentiary burden provides
that the tier of fact must make a
determination favourable to the party
satisfying the burden unless there is
evidence to the contrary
● E.g. Copyright Act compels the
tribunal of fact to find a person
registered as the owner of
copyright to be the owner, absent
evidence to the contrary
Failing to satisfy the evidential burden
E.g.
● Crown fails to satisfy the evidential burden
on an assault charge.
● Accused fails to satisfy the evidential
burden on an assault charge for the
defence of self-defence
● In a civil action for slip-and-fall, the
defendant pleads contributory negligence,
but fails to satisfy the evidential burden in
respect of that defence
Persuasive Burden
● Party has an obligation to prove or
disprove a fact or issue to the criminal or
civil standard
○ Criminal burden: “beyond a consider the presence or absence of
reasonable doubt”
○ Civil burden: “on the balance of
probabilities”
Misleading Concepts
● “Shifting Burdens”
○ Negligence vs. contributory
negligence
● Tactical Burdens
○ Not an evidential or a legal burden
● Burdens expressed as presumptions
Burdens
● The party asserting the affirmative of an
issue usually must prove it
● This is a guide, and there are exceptions
● E.g.
○ Crown must prove an absence of
consent
○ Highway Traffic Act, s. 193(1) puts
onus of proof on the operator of
the vehicle, not the person
suffering damage
● Burden in regards to admissibility of
evidence
● The evidential burden usually coincides
with the persuasive burden
● In some cases, however, they do not
coexist
● E.g. Criminal Code.
○ S. 265(1)(a):
■ “A person commits an assault
when… without the consent of
another person, he applies force
intentionally to that other
person…”
○ S. 265(4):
■ “Where an accused alleges that he
believed that the complainant consented
to the conduct that is the subject-matter
of the charge, a judge, if satisfied that
there is sufficient evidence and that, if
believed by the jury, the evidence would
constitute a defence, shall instruct the
jury, when reviewing all the evidence
relating to the determination of the
honesty of the accused’s belief, to
reasonable grounds for that belief.”
CHAPTER 4: Presumptions
Presumptions
● Presumption without basic facts
● Presumption with basic facts
○ Presumption of fact
○ Conclusive presumption of law
(irrebuttable presumption)
○ Rebuttable presumption of law
6
Presumptions without basic facts
● A legal conclusion must be drawn in the
absence of rebutting evidence
○ “Presumption of innocence”
Presumptions with basic facts
Presumption of fact
● A deduction that may logically and
reasonably be drawn from a fact or group
of facts found or otherwise established
● On proof of Fact A, trier of fact may infer
Fact B
● Logical inference that may be (but doesn’t
have to be) drawn
● Does not create a legal consequence
upon proof of the basic fact
● Does not change the burden or proof
● E.g.
○ R v Kowlyk - inference that
possessor of stolen property is
guilty of theft
○ S. 320.31 (1) of Criminal Code -
court may draw an inference for
failing to provide a breathalyzer
○ Shouldn’t be called
“presumption” -> “justifiable
inference”
Conclusive presumptions of law
● Rare and mostly come from statute
● Proof of Fact A means that Fact B is
conclusively deemed
● Person against whom the presumption is
made cannot rebut the presumption
● E.g.
○ Common law presumption that child
incapable of committing a criminal
offence (now codified in s. 13 of the
Criminal Code)
○ Repealed s. 198(2) of the Criminal
Code:
■ “For the purpose of
proceedings under this Part, a
place that is found to be
equipped with a slot machine
shall be conclusively presumed
to be a common gaming
house.”
○ Not really a “presumption” so much
as definition or rule of law
Rebuttable presumptions of law
● Rule of substantive law that prescribes a
particular legal consequence upon proof of
a particular fact
● Compels the trier of fact to assume the
existence (or non-existence) of the
presumed fact in the absence of evidence
to the contrary
● Legal shortcut
Rebuttable presumptions of law - Criminal
cases
● E.g. Criminal Code,
○ S. 320.14(1)
■ “Everyone commits an offence
who operated a conveyance while
the person’s ability to operate it is
impaired to any degree by alcohol
or a drug…”
○ S. 320.35
■ “...if it is proved that the accused
occupied the seat or position ordinarily
a occupied by a person who operates a
conveyance, the accused is presumed
to have been operating the
conveyance unless they establish that
they did not occupy that seat or
position for the purpose of setting the
conveyance in motion”
○ If the Crown proves the accused was in the
driver’s seat beyond a reasonable doubt,
presumption that accused was operating
the vehicle
○ Thus, the accused will have to rebut the
presumption by proving (on the balance of
probabilities) no intent to put the vehicle in
motion
● “Absent evidence to the contrary”
○ Imposes an evidentiary burden on the
accused, not a persuasive burden
○ E.g. Criminal Code, s. 348 re: breaking and
entering
■ “For the purposes of proceedings
under this section, evidence that an
accused
7
 ● (a) broke and entered a place or
attempted to break and enter a
place is, in the absence of
evidence to the contrary, proof
that he broke and entered the
place or attempted to do so, as
the case may be, with intent to
commit an indictable offence
therein…”
● Presumption may violate the presumption of
innocence under s. 11(d) of the Charter
● Presumption may be served under section 1 of the
Charter
Rebuttable presumptions of law - Civil cases
● Rebut presumption to a balance of probabilities
● In some cases., merely adduce some contrary
evidence
● In a few cases, presumption must be rebutted
beyond a reasonable doubt
● E.g. presumptions re: legitimacy, life and death,
order of death, etc….
CHAPTER 5: Standards of Proof
Satisfying the evidential burden
Civil Case – Plaintiff’s burden
● Plaintiff presents her case
● Defendant makes a motion for non-suit
● Could a reasonable trier of fact, if he or
she believed the evidence given in the trial
up to that point, find in the plaintiff’s
favour?
Civil Case – Defendant’s burden
● Similar burden to that of the plaintiff -
whether a properly instructed trier of fact
could draw the desired inference from the
evidence adduced at that stage of the
proceedings
Criminal Case – Crown’s burden
● Is there any evidence upon which a
reasonable jury, properly instructed may
convict
Criminal Case – Defendant’s burden
● Air of reality test: whether there is
evidence on the record upon which a
properly instructed jury acting reasonably
could acquit
Satisfying the persuasive burden
● Party has an obligation to prove or
disprove a fact or issue to the criminal or
civil standard
● Criminal burden: “beyond a reasonable
doubt”
● Civil burden: “on the balance of
probabilities”
● Begin with the presumption that the
accused is innocent
● The Crown must prove each element of
the crime beyond a reasonable doubt
What is a reasonable doubt?
● It is not imaginary or frivolous doubt
● Not based on sympathy or prejudice
● Probably guilty or likely guilty is not
sufficient
● There may be reasonable doubt even if
defendant is not credible
CHAPTER 6: Hearsay
HEARSAY
What is hearsay?
● Written or oral statements, or
communicative conduct made by persons
otherwise than in testimony at the
proceeding in which it is offered, where
the statements or conduct are tendered as
proof of their truth or of their implicit
assertions
1. Out-of-court statements or
conduct
2. Tendered as proof of their truth
● Hearsay is presumptively inadmissible
unless it falls within a traditional exception
or meets the criteria of necessity and
reliability under the “principled approach”
8
Is it Hearsay?
● Criminal case for theft against your client:
● Witness testifying: I heard yelling and
went to my window. I saw the defendant
run out of the store. He was wearing a red
shirt and blue shorts.
● Witness testifying: My husband heard
yelling and went to the window. He told
me he saw the defendant run out of the
store. He was wearing a red shirt and blue
shorts.
Hearsay Dangers
Safeguards on witness testimony
● Oath or affirmation (in the past required
religious belief)
● Perjury for false testimony (s. 131 of the
Criminal Code)
● Right of cross-examination
Out-of-court Statements
Criminal case for theft under $5,000 against your
client:
Crown: Did you see anyone leaving the
store?
Witness: Yes
Crown: What were they wearing?
Witness: I can’t remember. But I did tell
my husband when he got home that day. I
asked him this morning what I told him.
Witness: What did you tell him?
Criminal case for theft under $5,000 against your
client:
Police officer testifying: I attended to
the scene, and a witness to the theft told
me that she saw the defendant leave the
store and run off.
Out-of-court Conduct
Criminal case for assault:
Police officer testifying: We visited the
victim at the hospital. He couldn’t speak
because of all the tubes. We showed him
a number of photos and asked who had
assaulted him. He pointed at a photo of
the defendant.
Tendered as Proof of Statement’s Truth
Scenario 1: Your client, Him, has been charged
with assault after he punched Dwight. According to
Jim, he acted in self-defence after Dwight
threatened him and his girlfriend, Pam.
You have called Michael to the stand, who testifies
as follows:
Michael: We were leaving work when I
saw Jim and Dwight start arguing. Dwight
yelled at Jim that he was going to “knock
Jim’s head off”.
The Crown objects, arguing that Michael’s
statement is hearsay.
Scenario 2: Your client was pulled by police and
charged with careless driving.
Police witness: I pulled the defendant
over because I received information from
someone who said the defendant was
“driving erratically” and who “thought the
defendant might be intoxicated.”
Determining Statement’s Purpose
● Consider the basis of the hearsay rule –
inability to cross-examine
○ Are there relevant, meaningful
questions that you might want to
ask the person who made the out-
of-court statement?
● What is the relevance of the fact that the
person made the out-of-court statement?
○ Does the truth of the statement
made out-of-court matter?
Impliedly Assertive Statements or Conduct
Chris is arrested for drug possession. The police
seize his cellphone. The phone rings and an
officer answers. The caller asks for Chris. Officer
9
says that he is now “running the show”. Caller
requests an ounce of weed. Police officer asks
how much Chris usually charges and the caller
says $150. Police officer agrees to deliver.
- R v Baldree, 2013 SCC 35.
Exceptions to the Hearsay Rule
● Hearsay is presumptively inadmissible
● Traditionally, a number of exceptions were
developed based on a number of factors:
○ It was impossible or difficult to secure
other evidence
○ The author of the statement was not
an interest party in the sense the
statement was not in their favour
○ The statement was made before the
dispute in question arose
○ The author of the statement had a
peculiar means of knowledge not
possessed in ordinary cases
● Exceptions developed: admissions, dying
declarations, declarations against interest,
spontaneous declarations
The Principled Approach
Ares v Venner, [1970] SCR 608
● Nurse’s records permitted as evidence
● Necessity and reliability the basis for
exceptions to the hearsay rule
R v Khan, [1990] 2 SCR 531
● Young girl told her mother she was
assaulted by doctor
● Victim was not permitted to testify at trial
● Crown wanted mother to testify
● Supreme Court applied test of necessity
and reliability
Necessity
● Founded on society’s interest in getting at
the truth
● Relates to the relevance and availability of
evidence
● Declarant may be unavailable, or available
but refuses to testify
● Declarant’s testimony may add little
● Attendance at court would lengthen trial
on a point that could be readily accepted
through hearsay
● Insistence on calling evidence would result
in absurdity
● Flexible concept and does not require
absolute necessity
Reliability
● Relates to ensuring the integrity of the trial
process
● Was the statement made under
circumstances which substantially negate
the possibility that the declarant was
untruthful or mistaken?
● Factors to be considered:
○ Made under oath
○ Opportunity for cross-examination
○ Motive to lie
○ Spontaneity of the statements
○ Contemporaneity with the events set
out
○ Declarant’s demeanour and conduct
○ Relationship between the declarant
and the narrator of the statement
○ Possibility declarant was mistaken
○ Declarant’s state of mind
○ Contents of the statement
● At first, thinking was that
necessity/reliability was a residual
exception for hearsay that didn’t fit into
existing exceptions
● R v Starr, [2000] 2 SCR 144:
1. Hearsay is presumptively admissible
if it falls under an established
exception to the hearsay rule
because the exceptions have an
inherent reliability
2. A hearing may be held to determine
whether the hearsay exception
complies with the requirements of the
principled approach.
3. It may be possible for evidence that
would otherwise fit within a valid
exception to not meet the principled
approach. In such cases, the
evidence will be excluded.
10
 4. If evidence does not fall within a
hearsay exception, it might still be
admitted if it meets the requirements
of necessity and reliability.
Hearsay Exceptions
Your client, Micheal, is suing Dwight after clipping
and falling on Dwight’s patio steps.
You call Michael to the stand:
Michael: As soon as I slipped and fell, Dwight
came rushing outside and helped me stand up. He
apologized profusely and said that he hadn’t had
time to put down salt or clear the ice because he
had been so busy with work.
Admissions
● Out-of-court assertions made by a party to
the proceedings are admissible as an
exception to the hearsay rule
● Illogical for declarant to suggest that he
can’t cross-examine himself.
● The person alleged to have made the
statement can always take the stand
● Admissions are admissible in both civil
and criminal cases
● Probative value outweighs prejudicial
effect
Your client, Michael, works as a house renovator.
He is being sued by Pam for shoddy work to her
home.
Pam testifies:
Pam: I wrote Michael an email after the work was
complete outlining all the problems with his work.
Specifically, I wrote that the paint was chipping in
the living room because he used the wrong type of
paint for drywall, the faucets were leaking because
he didn’t use washers, the towel racks in the
bathroom fell off because he didn’t secure them
properly, and I discovered he wasn’t even licenced
to do electrical work, so I had to get a certified
electrician to check all his work. Fixing all his poor
work cost me $2,000. He never responded to my
email or called me back.
Implied Admissions
● Silence may be considered an admission
where a denial would be the only
reasonable course of action expected if
the person were not responsible
● Silence in front of a police officer is not an
admission
● Failure to testify or call witnesses in civil
cases may be an implied admission
Admission by conduct
● Post-offence conduct may be considered
an admission
● E.g. false alibis, hiding a body
Admissions by others
● Vicarious admissions (employee making
admissions)
● Statements by a representative or by
persons with identity of interest (statement
of a trustee of an estate)
● Statement by co-conspirators
○ Statements by someone engaged in
an unlawful conspiracy are received
as admissions as against all those
acting in concert if the declarations
were made while the conspiracy was
ongoing and were made towards the
accomplishment of that common
object
Hearsay Exceptions
Knowing he had no hope for survival after being
shot, Chandler tells his doctor at the hospital that it
was Ross that shot him. He dies soon after.
Dying Declaration
● It is not a norm of human behaviour to lie
on their deathbed
Requirements:
1. Deceased must have had a settled or
hopeless expectation of death when
he/she made the statement
2. Deceased would have been a competent
witness if available to testify at trial
11
 3. Trial must be for murder, manslaughter, or
criminal negligence cause death
4. Deceased’s death is the subject of the
charge
Hearsay Exceptions
Your client, Joey, has been charged for theft from
a grocery store. After Joey was charged, his friend
Monica called the Crown and admitted that she
was the one that committed the theft and said that
she would make a statement exonerating Joey.
Before she could do so, Monica dies in a car
accident.
Declarations Against Interest
Declaration by a person that goes against their
penal interest
Requirements:
1. The declarant is unavailable to testify
2. The declaration was made to a person in
circumstances where the declarant should
have apprehended a vulnerability to penal
consequences as a result
3. The vulnerability to penal consequences
was not remote
4. The declaration must be considered in its
totality, with the weight against the
declarant
5. In a doubtful case, the Court might
consider whether there are other
circumstances connecting the declarant to
a crime and the connection between the
declarant and the accused.
Declaration by a person that goes against their
pecuniary or proprietary interest
Requirements:
1. The declarant is unavailable
2. The declarant had personal knowledge
about the facts
3. The declaration was against the
declarant’s immediate prejudice
4. The declarant knew the statement was
against their interest
Hearsay Exceptions
Your client, Ross, has been charged with assault
against Chandler. The Crown wants to call
Chandler’s neighbour, Phoebe, to the stand.
Unfortunately, Chandler passed away before trial.
Phoebe: I was in my apartment, when I heard
Chandler yelling. I hear him scream “get out of
here, Ross!”
Spontaneous Statements
● Spontaneous exclamations, or res gestae,
are statements made contemporaneously
to a startling event
● Hearsay dangers are minimized:
○ There is little time for calculated
insincerity, as the shock of the
event prevents conscious
reflection
○ There is no problem of faulty
memory
○ Perception may be heightened
● Statements to police and 911 calls may be
admitted under this exception
● See R v Mullin, 2019 ONCA 890 and R v
Hall, 2018 MBCA 122
Hearsay Exceptions
Your client is suing after slipping and falling at a
restaurant. You want to enter into evidence the
restaurant’s maintenance records forms that are
kept by staff to show the times that they mopped
the floor as well as any incidents such as spills.
Business Records
At common law:
● Statements made by a person under a
duty to another person to do an act and
record it
● The statements/records were made in the
ordinary practice business
● The statements were within made by
someone having a personal knowledge of
the matters being recorded
● The statements were made
contemporaneously
12
 ● The statements were made without motive
or interest to misrepresent
See Ares v Venner, [1970] SCR 608
Evidence Act (Ontario):
● 35(1): record includes information that is
recorded or stored
● 35(2): “Any writing or record made of any
act, transaction, occurrence or event is
admissible as evidence of such act,
transaction, occurrence or event if made in
the usual and ordinary course of such
business to make such writing or record at
the time of such act, transaction,
occurrence or event or within a reasonable
time thereafter.”
● 35(3): Notice required
● 34(4): “The circumstances of the making
of such a writing or record, including lack
of personal knowledge by the maker, may
be shown to affect its weight, but such
circumstances do not affect its
admissibility.”
Business Records
● Section 30(1) of the Canada Evidence Act:
○ “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.”
● Common law may still be relevant in
Ontario despite legislation
○ Case law suggests that subjective
opinions are inadmissible under
legislation, but opinions are
admissible under the common law
○ Common law exception applies to oral
statements as well as written
○ Common law exception does not
require notice
Hearsay Exceptions
You are suing a retirement home for negligence
after your client was injured. You would like to
submit as evidence an inspection report prepared
by the Public Health department that outlined
failings at the retirement home.
The defendant claims it’s hearsay.
Statements in Public Documents
● It’s assumed that public officers will
perform their tasks properly carefully and
honestly in the exercise of their duty
Requirements:
1. The subject matter of the statement must
be of public nature
2. The statement must have been prepared
with a view to being retained and kept as a
public record
3. It must have been made for a public
purpose and available to the public for
inspection at all times
4. It must have been prepared by a public
officer in pursuance of his or her duty
Examples: Government reports, official
certificates, parliamentary journals, Statistics
Canada data.
Documents marked “confidential” or “secret” would
not fall under the exception.
Indigenous Oral Histories
● Supreme Court has recognized that the
laws of evidence must be adopted to
accommodate oral histories of Indigenous
peoples
● Oral history may be the only record of their
past
Non-Applicability of Hearsay Rule
● Small Claim Court judges are given more
discretion regarding the admissibility of
evidence
● Administrative tribunals have relaxed rules
of evidence
13
 ● Olarte v Commodore Business Machines,
Ltd. (1984), 49 OR (2d) 17 at para 8:
○ “By virtue of s. 15(1) of the
Statutory Powers Procedure Act,
the Board was entitled to admit
and to act on such similar fact
evidence and hearsay evidence
and did not err in doing either.”
CHAPTER 10: CHARACTER EVIDENCE
Character Evidence
What is character?
● Character is a generalized description of a
person’s disposition, or of the disposition
in respect to a general trait, such as
honesty, temperance or peacefulness
Character evidence is excluded as a general rule
on policy grounds.
● Evidence of bad character can produce a
dislike for a person
● Adverse finding to vindicate the trier’s
feelings
● Trier of fact to convict the accused for their
bad character
Civil - Good Character
Your client has been sued for breach of contract.
You are examining your client on the stand:
You: What do you do in your free time?
Witness: I do a lot. I volunteer every week at my
church. I also visit the children’s hospital and read
to sick kids. At Christmas time, I dress up as
Santa and give out gifts to all the neighbourhood
kids.
Plaintiff’s paralegal: Objection!
Civil Cases
● Generally inadmissible in civil cases
● Just because you’re a good person
doesn’t mean you didn’t breach a contract
or commit a tort
● In civil cases, evidence of character of a
party or witness is admissible if character
is in issue
● Defamation cases:
○ Plaintiff may lead evidence
through witnesses as o his or her
reputation (good character)
○ Defendant claiming justification
can lead evidence tending to
show the bad character of the
plaintiff
Criminal – Good Character
Criminal case for assault against your client, who
is accused of punching someone at a bar. You’re
examining your client:
You: What do you do in your free time?
Witness: I do a lot. I volunteer every week at my
church. I also visit the children’s hospital and read
to sick kids. At Christmas time, I dress up as Santa
and give out gifts to all the neighbourhood kids.
Crown: Objection!
Criminal Cases
● Good character evidence - is admissible
on the issue of innocence or guilt, so long
as the character trait related to a relevant
issue
● Character evidence is relevant where it
has some tendency as a matter of logic
and human experience to make the
proposition for which it is advanced more
likely than the proposition would appear to
be in the absence of that evidence
Criminal – Good Character
Criminal case for assault against your client, who
is accused of punching someone at a bar. You’re
examining your client’s boss:
14
You: You’ve worked with the accused a long time.
Do you know if he volunteered or donated to
charity?
Witness: Oh yes. I know he volunteers every
week at his Church. He also helps out at a soup
kitchen in our community. And he donates to the
Red Cross out of every paycheque.
Crown: Objection!
Criminal Cases
Good character evidence can be introduced:
● Adducing evidence as to his or her good
reputation, either by cross-examining a
witness called by the Crown or through
examination-in-chief of a defence witness
● Witnesses cannot testify as to specific
acts of good conduct
Criminal – Good Character
Criminal case for assault against your client, who
is accused of punching someone at a bar. You’re
examining your client’s boss:
You: You’ve worked with the accused a long time.
How would you describe his reputation at work?
Witness: He is really well-liked. He’s always kind
and helpful and everyone enjoys working with him
Crown: Objection!
Criminal – Good Character
Criminal case for assault against your client, who
is accused of punching someone at a bar. You’re
examining your client:
You: You’ve worked at Colangelo LLP a long time.
How would you describe your reputation at work?
Are you well-liked?
Witness: Everyone loves me! Great reputation
around the firm.
Crown: Objection!
Criminal Cases
Good character evidence can be introduced:
● An accused can personally testifying as to
specific acts of good conduct
● Accused cannot testify regarding
reputation
Criminal – Good character
Criminal case for assault against your client, who
is accused of punching someone at a bar. You’re
examining a psychologist:
You: Does the accused exhibit any of the traits of
a violent person?
Witness: No. he does not.
Crown: Objection!
Criminal Cases
Good character evidence can be introduced:
● By calling expert opinion evidence as to
disposition (but only in respect of
distinctive traits)
Good character evidence can be used:
● To support the inference that the accused
is unlikely to have committed the offence
● To support the accused’s credibility as a
witness
● To negate a mental state required for the
crime
Criminal - Bad Character
Criminal case for assault against your client, who
is accused of punching someone at a bar. The
Crown is examining your client’s boss:
Crown: What kind of reputation does the accused
have?
Witness: He’s a jerk. Nobody likes him. He has
anger issues and is constantly belittling and
threatening coworkers.
You: Objection!
Criminal Cases
● The Crown is generally not permitted to
adduce evidence of the accused’s bad
character either by evidence of reputation
or specific acts
● The prohibition is based on the fact that it
would create undue prejudice to the
accused
15
 ○ Jury may assume the accused is
a bad person and thus likely guilty
○ Jury may punish the accused for
the extrinsic misconduct
○ Jury’s attention is deflected from
the main purpose of the trial and
the offences charged
● Where the accused puts his or her
character in issue by leading evidence of
good character, the Crown is entitled to
refute the good character evidence with
evidence of bad character
● Crown may:
1. Cross-examine the accused
● Past bad acts, criminal
record, etc.
2. Cross-examine any witness called
by the defence giving evidence of
the accused’s good character; and
3. Adduce certain types of extrinsic
rebuttal evidence
● Call independent evidence,
evidence of prior convictions,
etc.
● Where the accused puts his or her
character in issue by leading evidence of
good character, the Criminal Code also
allows the Crown to adduce evidence of
previous convictions
Character Not an Issue
● Where discreditable conduct is relevant to
an issue at trial, it may be admissible by
the Crown if its probative value outweighs
its probative value
● Evidence is not offered to support an
inference that the accused is the type of
person likely to have committed the
offence in question
○ Part of the narrative of relevant
events
○ To provide context for other
evidence
○ To facilitate understanding of the
nature of the relationship between
principals
○ To demonstrate motive or animus
on the part of the accused for
committing the offences
○ To explain the failure of the
complainant to leave the
relationship or to report the abuse
earlier
○ To rebut a claim of fabrication
Character Not an Issue
● Crown may need to lead evidence of gang
association to explain narrative events and
motive (R v Phan, 2020 ONCA 298)
● Evidence accused having an affair to
explain motive for murder (R v. Holtam
2002 BCCA 339)
● An accused who takes the stand can be
cross-examined as to credibility in a way
that brings bad character to light
● Accused who testifies may be cross-
examined on previous convictions
pursuant to s. 12 of the Canada Evidence
Act
○ Relevant to accused’s credibility
as a witness, not propensity to
commit the offence
Character of Others
● Accused can lead evidence of bad
character of a co-accused
● Accused may be permitted to lead
evidence of a deceased’s propensity for
violence
○ Usually in cases of self-defence
● Bad character of a third party may be
introduced
○ Accused charged with aggravated
assault and argued it was a third-
party witness, present at the scene,
that had committed the offence
○ Accused presented evidence the third
party stabbed another person and
also had been convicted of armed
robbery
○ No danger of wrongful conviction (see
R v Arcangioli, [1994] 1 SCR 129)
Character of Complainants
16
 ● At common law, a complainant in a sexual
assault case could be asked about “her
general character of chastity”
● Under s. 277 of the Criminal Code,
evidence of “sexual reputation” is not
admissible for the purpose of challenging
or supporting the credibility of the
complainant
● Under s. 276, evidence of sexual activity is
not admissible to support an inference that
the complainant is more likely to have
consented or is less worthy of belief,
except in certain circumstances.
Character of Witnesses
● Evidence of bad character may be
introduced in respect of ordinary
witnesses
○ Goes to issue of credibility
● Evidence of good character of witnesses
is generally not permitted (“oath-helping”)
WEEK 6
CHAPTER 11: SIMILAR FACT EVIDENCE
SCENARIO #1
Criminal case for assault against your client, who
is accused of assault.
The Crown wants to lead evidence that your client
was convicted of assault last year.
Admissible?
Review: Bad Character Evidence
● The Crown is generally prohibited from
introducing evidence of the accused’s bad
character
SCENARIO #2
Criminal case for theft against your client, who is
accused of driving the get-away car after the
robbery of a grocery store.
Your client claims they had no idea their friends
were robbing the store.
The Crown wants to lead evidence that your client
was convicted for theft as the driver in two
previous robberies in the last few years.
Admissible?
Similar Fact Evidence
● Evidence of similar acts introduced by the
prosecution to show the accused’s
discreditable conduct on other occasions
● Circumstantial evidence to infer his or her
propensity to think or act in a certain way
concerning an issue in dispute
● Exception to the prohibition on
character evidence
Double Inference
Proof of acts or omissions on other occasions (Fact A)
Inference that accused has a propensity to act or think
in a particular way (Fact B)
Inference that the accused acted in conformity with
their propensity on the specific occasion in
question (Fact C)
Admissibility
● Similar fact evidence is presumptively
inadmissible
● Onus is on the prosecution to satisfy on a
balance of probabilities that the probative
value of the evidence in relation to a
particular issue outweighs its potential
prejudice.
○ R v Sweitzer, [1982] 1 SCR 949
17
 ● “Principal driver of probative value… is the
connectedness (or nexus) that is
established between the similar fact
evidence and the offences alleged,
particularly where the connections reveal
a ‘degree of distinctiveness or
uniqueness’”
○ R v Handy, 2002 SCC 56 at para 76
Similar Fact Evidence
● “Probative value exceeds prejudice,
because the force of similar circumstances
defies coincidence or other innocent
explanation.”
○ R v Handy, 2002 SCC 56 at para 47
● The trial judge must determine whether
the evidence of disposition or propensity is
strong enough “to be capable of properly
raising in the minds of the jury the double
inference”
● If the similar fact evidence does no more
than tarnish or stigmatize the character of
the accused, it is inadmissible
Relevance
● Similar fact evidence must still be relevant
to a material issue
● Similar fact evidence of previous
dishonesty is not relevant to charge of
impaired driving, but may be relevant to
fraud case
Accused Linked to Similar Act
● Before similar facts can be considered as
evidence, there must be a connection
between the similar acts and the accused
● “There must be some evidence upon
which the trier of fact relied upon were in
fact the acts of the accused”
○ R v Sweitzer, [1982] 1 SCR 949.
● Accused charged with manslaughter of
non-week-old son caused by shaking.
Crown theory that the accused acted out
of anger, Defence claimed the accused
shook the infant because he’d stopped
breathing.
● Crown wants to introduce evidence that
the child had a number of injuries that
occurred some weeks before.
○ See R v Millar, 1989 CanLII 7151
(ONCA)
Similar Fact Evidence
Thus, assuming you have prior discreditable
conduct:
1. Relevant to a material issue
2. Evidentiary link between similar acts and
accused
3. Probative value > Prejudice
Probative Value
● The degree of similarity between the
similar fact evidence and the alleged
offences will vary considerably
● The more similarities there are between
the similar acts and the offence charged,
the more distinctive those similarities and
the greater the number of similar acts, the
stronger the inference and the greater the
probative value
Probative Value
Analysis of probative value:
1. Evidence must relate to a specific issue,
and not merely to show that the defendant
is of bad character
2. The court must determine whether the
similar fact evidence is tainted by
collusion, which undermines the
improbability of coincidence
3. Determine the similarities or differences
(“connectedness”) of the similar fact
evidence to the issue it is offered to prove
4. Court must consider the strength of the
evidence that the similar acts occurred
Connecting Factors
● 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
18
 ● Circumstances surrounding or relating to
the similar acts
● Any distinctive features unifying the
incidents
● Intervening events
● Any other factor which would tend to
support or rebut the underlying unity of the
similar acts
○ R v Handy, 2002 SCC 56 at para 82
Probative Value re: Identity
● Where the issue is the identity of the
offender, the admissibility of similar act
evidence on the issue of identity requires
a high degree of similarity between the
acts
● Unique trademark or signature
● A number of significant similarities, taken
together, such that by their cumulative
effect, they warrant admission of the
evidence
Prejudice
● Trial judge has to identify the prejudices
that may result from the admission of the
similar fact evidence
● The more reprehensible the prior or
subsequent conduct, the greater is the
potential for prejudice
● Moral prejudice: evidence of bad
character shows the accused in a bad light
as a morally bad person
● Reasoning prejudice: evidence that, if
admitted, may confuse the trier of fact or
distract it from the issue
Probative > Prejudice
● Accused (Johnson) charged with murder
● Victim (Kiyoshk) last see entering car with
accused and another man (Shipman) who
were cruising around Walpole island and
drinking heavily
● Crown wanted to lead similar fact
evidence:
○ Black Shake Road incident:
Witness (Soney) to testify that he
and Johnson drove around
Walpole Island the same summer
with another woman (Aquash).
Johnson said he wanted to beat
up Aquash.
○ White Truck Incident: Witness
(Clarissa Shipman) drove around
with others and accused. Victim
and Aquash began to fight.
Accused demanded they stop and
when they didn’t, accused
stopped the car, grabbed the
victim and threw her on the
ground.
● R v Johnson, 2010 ONCA 646
Probative > Prejudice
● Accused charged with administering
Ativan to the accused and sexually
assaulting her at a hotel
● Crown wanted accused’s ex-wife to testify
that accused had sexually assaulted her
after she took Ativan
● R v Johnson, 2020 BCCA 82
Civil Cases
● The general principles that govern
admissibility of similar fact evidence in
criminal cases apply to civil cases
CHAPTER 7: SELF-SERVING EVIDENCE
Self-Serving Evidence
Criminal case for assault against your client, who
is accused of punching his friend, Lyle. You’re
examining your client:
Defendant: It was self-defence. Lyle threatened
me and ran at me, so I had to punch him to defend
myself.
You: Did you tell anyone what happened?
Defendant: Yes, I called my girlfriend immediately
afterwards and told her what happened. I told her
that I had acted in self-defence.
Crown: Objection!
Self-Serving Evidence
19
 ● General rule prohibiting self-serving
evidence to support the credibility of a
witness unless his or her credibility has
been made an issue
○ Repetition could make it appear
that someone is more credible
○ Repetition is self-serving
● Assumption that the witness is truthful until
there is some reason for questioning their
credibility
Self-Serving Evidence
Criminal case against your client:
Defendant: It was self-defence. Lyle threatened
me and ran at me, so I had to punch him to defend
myself.
You: Did you take a polygraph test?
Defendant: I offered to take a polygraph test, but
the police refused to give me one.
Crown: Objection!
EXCEPTIONS
● Rebut allegations of recent fabrication
● Establish eyewitness prior identification of
the accused
● Establish a recent complaint by a sexual
assault victim
● Establish the statements was made as
part of res gestae or to prove physical,
mental or emotional state of accused
● Adduce facts that are part of the narrative
● Prove statement was made on arrest
● Prove statement was made on the
recovery of incriminating articles
● Address the argument that the witness’
testimony is replete with inconsistency
● Prove videotaped complaints under s.
715.1 of the Criminal Code
Recent Fabrication
Your client, Dwight, has been charged for assault
for punching Jim. Dwight claims self-defence.
Pam, who was dating Dwight at the time of the
assault, is now dating Jim, and is testifying:
Pam: I saw it happen. Jim wasn’t threatening
Dwight. Dwight just punched Jim for no reason.
You: You just recently started dating Jim,
correct?
Pam: Yes.
You: So, maybe you want to protect Jim and are
remembering things in a way that helps him?
Recent Fabrication
Prior consistent statements can be admitted
where it has been suggested that a witness
recently (at some point after the event)
fabricated portions of their evidence
Only consistent statements made prior to the
time when it is alleged that the fabrication began
are admissible.
Only proof that the witness’ story did not change
as a result of a new motive to fabricate
Cannot be used as evidence that witness is
more likely to be telling the truth
Simply attacking a witness’ credibility does not
trigger the exception.
Prior Eyewitness Identification
Your client, Michael, has been charged with
robbing a store. At court, he has cut his hair
and shaved his beard.
Witness: I saw someone running out of the
store with merchandise and the store clerk
running after him.
Crown: Is that person in the courtroom.
Witness: The accused looks like the person I
saw running out of the store, but I can’t be
sure.
Crown: Did you previously identify the person
you saw?
Witness: Yes, I spoke to police after the
robbery and they showed me a number of
pictures, and I identified the accused, Michael,
at the time as the person I saw running out of
the store
Prior Eyewitness Identification
Witnesses may testify about prior descriptions
given and previous acts of identification to
support his or her testimony
20
Others who heard the description and saw the
identification may also testify to those earlier
acts of identification made by the identifying
witness
Evidence is admissible not only to corroborate
an identification made at trial, but as
independent evidence going to identity
Recent Complaint
At common law, there existed an exception
that allowed evidence of recent complaint by a
sexual assault victim where the complaint was
made at the first reasonable opportunity after
the offence
Criminal Code purportedly abolished
exception
In some circumstances, recent complaint
evidence in regards to a sexual assault may
be admissible
Res Gestae
An earlier statement made by a witness while
the event in question is taking place may be
admissible under tis exception
See R v Khan, 2017 ONCA 114
Establish a Narrative
The accused was charged with sexually
assaulting the complainant starting when she
was nine years old. She testified against the
accused when she was 16.
During examination-in-chief, the Crown asked
her if she told anyone about the assaults at the
time.
Defence objected.
Establish a Narrative
R v F(J.E.), (1993), 26 CR (4th) 220 (ON CA):
“It must be a part of the narrative in the sense
that it advances the story from offence to
prosecution or explains why so little was done to
terminate the abuse or bring the perpetrator to
justice.
Specifically, it appears to me to be part of the
narrative of a complainant's testimony when she
recounts the assaults, how they came to be
terminated, and how the matter came to the
attention of the police.”
The prior consistent statements are not
admissible to prove the truth of the statement,
but merely to aid in understanding the case as a
whole
Narrative as Circumstantial Evidence
Prior consistent statements can be used to
provide the surrounding circumstances and
context to aid in the evaluation of the credibility
and reliability of the witness’ in-court testimony
Statements Made on Arrest
Your client was arrested for assault. As the
police arrest your client, he states “You’ve got
the wrong guy. I never assaulted anyone!”
Is the statement admissible?
Statements Made on Arrest
A previously exculpatory statement may be
admissible where:
1. The accused testifies
2. The statement was made when the
accused was arrested or when first
accused of committing a crime; and
3. The statement was spontaneous
See R v Edgar, 2010 ONCA 529.
Statements re: Stolen Goods or Illegal Drugs
An accused is found with a briefcase full of
illegal drugs. He immediately states that the
drugs aren’t his and that he’s never seen them
before in his life.
Evidence by an accused who is charged with
possession of stolen goods or illegal drugs
may tender evidence of his or her innocent
explanation made at the time when he or she
had been found in possession.
Rebut Claim of Inconsistency
Where the accused introduces statements by
a witness to show inconsistencies,
consistencies between the statements and the
evidence may be used by the trial judge to
reduce or eliminate the impact of any noted
inconsistencies
Video-Recorded Complaints
Section 715.1 of the Criminal Code permits
the admissibility of video-recorded evidence in
21
certain proceedings, made by complainants
under the age of 18.

The video-recording is admitted as proof of

the truth of the contents, and not simply to
establish consistency.

The video-recorded statement becomes part

of the child’s in-court testimony.

22