The Law of Evidence Table of Contents INTRODUCTION................................................................................................................................................... 1 METHODS OF ADDUCING EVIDENCE............................................................................................................... 3 Formal Admissions............................................................................................................................................ 3 Obtaining Evidence Viva Voce..........................................................................................................................

4 Compellability.................................................................................................................................................... 5 Manner of Questioning...................................................................................................................................... 7 Refreshing Memory and Records Evidence...................................................................................................... 8 Cross Examination............................................................................................................................................ 9 Vulnerable Witness Protection......................................................................................................................... 11 Real Evidence................................................................................................................................................. 12 Judicial Notice................................................................................................................................................. 15 ADMISSIBILITY................................................................................................................................................... 16 Relevance, Materiality and Discretion............................................................................................................. 16 Character Evidence......................................................................................................................................... 18 Character generally..................................................................................................................................... 18 Character of the Accused (Criminal Cases).................................................................................................... 20 Bad Character............................................................................................................................................. 20 Good Character........................................................................................................................................... 25 Character of Third Parties (Criminal Cases)................................................................................................ 26 Character in Civil Cases.............................................................................................................................. 27 Hearsay Evidence and Exceptions to the Exclusion of Hearsay......................................................................28 The Hearsay Rule........................................................................................................................................ 28 The Exceptions............................................................................................................................................ 28 Principled Exceptions.............................................................................................................................. 28 Admissions by Opposing Party Litigants.................................................................................................32 Declarations against Interest by a non-party...........................................................................................35 Dying Declarations.................................................................................................................................. 36 Business and Duty Exceptions................................................................................................................ 36 Former Testimony................................................................................................................................... 38

Prior Convictions..................................................................................................................................... 39 Res Gestae Exceptions (aka. Spontaneous statements)........................................................................40 Prior Identification.................................................................................................................................... 41 Opinion Evidence............................................................................................................................................ 42 The Opinion Rule......................................................................................................................................... 42 The Expert Witness..................................................................................................................................... 43 The Ultimate Issue Rule (Lay and Expert)................................................................................................... 45 Hearsay and Opinion Evidence................................................................................................................... 46 The Presentation of Expert Evidence.......................................................................................................... 47 Statements by Accused Persons (Criminal Cases)......................................................................................... 48 Self-Incrimination Protection (Formal Proceedings)....................................................................................48 Rights to Silence Informal Admissions and Confessions..........................................................................52 Common Law Voluntariness, Operating Minds and Oppression..................................................................54 Voluntary Confession Test........................................................................................................................... 55 The Principled Approach............................................................................................................................. 57 Illegally and Unconstitutionally Obtained Evidence......................................................................................... 58 Obtaining Unfairly Obtained Evidence with Charter Breach........................................................................58 Excluding Unfairly Obtained Evidence with Charter Breach........................................................................61 Improperly Obtained Evidence.................................................................................................................... 61 Privilege........................................................................................................................................................... 62 Solicitor-Client Privilege............................................................................................................................... 63 Litigation Privilege....................................................................................................................................... 65 Settlement Negotiation Privilege.................................................................................................................. 67 Spousal Privilege......................................................................................................................................... 68 Case-by-Case Privilege............................................................................................................................... 69 Protection of Third Person Records (Criminal Cases).................................................................................70 Public Interest Immunity.............................................................................................................................. 71 Protection of Informants Identity................................................................................................................. 73 EVIDENCE ABOUT OTHER EVIDENCE (Credibility of other evidence).............................................................74

Demeanour...................................................................................................................................................... 74 Discrediting Witnesses.................................................................................................................................... 74 Collateral Facts Rule................................................................................................................................... 74 Generally Recognized Exceptions............................................................................................................... 75 Prior Inconsistent Statements (PIS) of Opponents Witness........................................................................76 Bolstering Your Own Witness.......................................................................................................................... 77 The Rule Against Bolstering........................................................................................................................ 77 Expert Evidence Relevant to Credibility/Rule Against Oath-Helping...........................................................77 Prior Consistent Statements, Exceptions and Narrative..............................................................................78 Rehabilitating Your Own Witness................................................................................................................ 80 Challenging Your Own Witnesses................................................................................................................... 80 THE EVALUATION OF EVIDENCE.................................................................................................................... 83

The Law of Evidence I. Introduction

The role of the law of evidence - Adversarial model for resolving factual controversies in Canada o As opposed to scientific method to evidence, Judge is passive, not to investigate. Brouillard v. R., it is of fundamental importance that justice is not only done but seen to be done. Judge can interfere but only in such a way that justice is still seen to be done. o Phillips v. Ford Motor Co., Judge called own expert witnesses, CA allowed appeal because the judge went too far. - Judge trial: Judge is trier of law and fact - Jury trial: Judge is trier of law, jury is trier of fact - The role of the law of evidence is to regulate what data triers of fact receive - Evidence: evidence of a fact is information that tends to prove it - The rule of evidence should accommodate the presentation and consideration of any information that could help the trier of fact to come to an accurate factual determination - R. v. Stinchcombe, Crown has a duty to disclose all information to the defence, however the defence has no common law duty to disclose all info to the Crown. Admissibility, exclusions and standards of proof - Evidence excluded for a number of reasons: o Unconstitutionally obtained evidence o Competing considerations of policy or principle o Practical considerations relating to the efficiency of the trial process, etc - Use of a voir dire: a hearing to decide on the admissibility of evidence - There is a trend in favour of the increased admissibility of evidence o R. v. Jarvis, the SCC elevated the societal interest in the truth to constitutional stature by referring to the opposing principle of fundamental justice suggesting that relevant evidence should be available to the trier of fact in the search for the truth. o Trend was inspired primarily by desire to improve the law relating to prosecution of sexual offences. o The Charter has also encouraged the movement towards more flexible rules of admissibility Questions of admissibility: matters falling to the judge Questions of reliability: matters falling to the jury R v. Buric, SCC accepted that judges do not have the power under the Charter to withhold evidence from juries because of concerns that the evidence is unreliable. Despite this, becoming increasingly common for judges to consider the unreliability of evidence when making admissibility determinations. Basic rule of evidence is that all relevant and material evidence is admissible the requirement that evidence be relevant to be admissible is met if the evidence merely has some tendency as a matter of human experience to advance the inquiry the general rule is that the party seeking to have a rule of evidence applied must establish its factual prerequisites on the balance of probabilities o having said this, there are rules of evidence, known as presumptions, where preliminary facts will sometimes have to be proved beyond a reasonable doubt where a finding that the presumed fact exists will be conclusive of guilt, HOWEVER the Crown must establish that basic fact beyond a reasonable doubt. o

Other functions of the law of evidence - Important limitations on the way that evidence is to be used: o Corroboration rules suggest and/or impose limits on the use that triers of fact can make of certain kinds of evidence o Burdens of proof and presumptions control the way that evidence is evaluated

Rules of admissibility can impose limits on the use that triers of fact can make of some kinds of evidence. Restricted admissibility o The fact that evidence will be admissible for one purpose but not for another o Many of these rules guard against misuse of evidence and the risk of inaccurate findings. o

Sources of evidence law - Mainly case law, although there is the Canada Evidence Act (Federal) and provincial Evidence Acts. - Specialized statutes frequently have provisions relating to the proof of facts. Evidence, courts, and tribunals - Rules of evidence differ slightly between civil and criminal cases - Even within different kinds of criminal and civil proceedings the rules of evidence differ. - Trial and sentencing hearings also have differences in rules of evidence. - Differences in trial by judge and jury trials - The KEY in deciding what rules to apply, attention must be paid to the nature of the proceeding and the kind of issue being resolved. Appealing evidentiary errors - It is an error of law to admit and act upon inadmissible evidence, or to fail to direct juries on how to use certain kinds of proof, those errors may or may not result in a decision being overturned. o UNLESS some substantial wrong or miscarriage of justice occurred. - TWO ways an appeal may fail (1) Party did not appeal in a timely fashion to the admission of the evidence or to an erroneous jury direction Two clear trends in the case law as to when the failure to object to admissible evidence or legally erroneous jury directions will undermine an appeal Estoppel, the actions of the litigant make it unreasonable to try subsequently to appeal the error Immateriality, if the error is minor and a party does not object, or if the party rests content to challenge the credibility or reliability of the evidence, assumed that he did not think the error was important. (2) the error was harmless Where there can be no reasonable possibility that the verdict would have been different ( R. v. Hunter) Trial process - Trial begins, accused placed in the charge of the trial court, pleading guilty or not guilty - Jury trials, prelim issues of admissibility and other motions dealt with before the evidence begins (VOIR DIRE) - Crown presents evidence first (aka. Examination in chief) o In jury trials and complex judge only trials, Crown will be permitted to make an opening statement before presenting evidence - Defence counsel cross-examines - Crown may re-examine, this process may go on if need be. o If the Crown does not make out a prima facie case, Judge may, after motion by defence counsel, remove the case from the jury by directing a verdict of acquittal. - Defence may call evidence o May make a statement similar to the Crown limits. Some courts allow the defence to make a statement after the Crowns opening statement if it so chooses. - Crown cross-examines - Defence may re-examine, so on so forth. - Closing submissions o Where the defence has called evidence, it must make its closing submissions first o Where the defence has NOT called evidence, makes closing submissions last - Judge directs jury as to the pertinent points of substantive and procedural law, including a summary of the major items of evidence. - Jury deliberation / judge makes decision

Unanimous decision jury general verdict

Move to substantive justice - Two reasons for this: o Proclamation of the Charter Characterized by the use of broad purposive interpretation, as opposed to narrow and technical; and the priority given to basic principles over rules o Felt need to protect the victims of offences - We will continue to move away from rules of evidence as it is an administratively attractive option and because international pressure and international examples point in this direction. II. Methods of adducing evidence Formal Admissions Matters not requiring proof formal admissions of fact Failure to admit facts can result in an award of costs S. 655 Criminal Code allows accused or counsel to admit any fact alleged against him, no proof is required Castellani v. R. o An accused of indictable offence cant admit a fact alleged against him until allegation has been made o Cant use S. 655 CC to insist on admitting to something, the Crown must accept the admission. R. v. Proctor o Crown tried to admit evidence where already admitted fact o Crown was held not entitled to refuse acceptance of the admission of identity just to gain entry of prejudicial evidence there must be high probative value if the evidence would be prejudicial S. 606 Criminal Code provides accused may plead guilty if: o Voluntarily; o Understands that the plea is an admission of the essential elements of the offence, the nature and consequences of the plea, and the court is not bound by any agreement made between the accused and the prosecutor R. v. Ford o Plea of guilty is admission of fact and waiver of strict proof of that fact o Charter arguments dont apply because guilty plea is a matter of public record and it is assumed that they are voluntary and informed o A guilty plea can be used in subsequent proceedings o BUT it is not inevitable that a guilty plea will be entered into evidence in subsequent case Withdrawing a plea o R. v. Baksh Where the admission in a pleading is withdrawn it cant be used as conclusive judicial admission Where withdrawal because of error it cant be read as evidence In civil cases where withdrawn because of error or inadvertase, it is not directly admissible but may be evidence which the party can be cross-examined on. Obtaining evidence by viva voce examination Compellability - Competence to testify o Deals with the ability of a witness to testify o Testimonial qualifications for competence deals with the ability to: Observe Accurately recall their observation Communicate their recollection to the trier of fact o Main concern is the witnesses

Intellectual ability to understand questions and answer intelligently and Moral responsibility to speak the truth. Oath/Affirmation At common law, a witness could only testify under oath, served as a check into both capacity and responsibility of witnesses S. 14 CEA and S. 17 OEA now provide that a witness may make a solemn affirmation and they will be considered under oath. The only witnesses who are incompetent to testify are those who cannot satisfy either the test of swearing an oath, or for giving unsworn evidence (affirmation). R. v. Kalevar Accused refused to take oath on bible or solemn affirmation to give evidence, he argued constitutional freedom of religion Criminal cases, 2 competency regimes: adult and child witnesses ADULT (S. 16 CEA) Persons aged over 14 presumed competent to testify unless an issue has been raised and then the court will inquire. Competency (both adult and child) based on capacity and responsibility If challenged, S.16 inquiry for competency must check for: o An understanding (RESPONSIBILITY) of the oath for capacity; and o Ability to communicate (CAPACITY) the evidence (perceive, remember and communicate) + the moral responsibility to speak the truth The challenger bears the burden of proof (S.16(5)) Inquiry usually in front of jury and experts may be called but competency is not a matter for the expert witnesses to decide, the judge must decide. o R. v. Parrott, accused committed offence against woman with Down syndrome, woman made statements to police and doctor after attack. This hearsay evidence was admitted because judge heard from expert witnesses say that the woman had poor memory and a 3 year old mind. Overturned because trial judge was meant to assess competence and ability to communicate the evidence Expert evidence an asset, but judge must not dispense with duty to hear from the witness themselves. o R. v. Hill, was at asylum and convicted of manslaughter, prima facie admissible then jury must attach weight to what they think of this testimony Competence is for the court to decide, the jury can then decide credibility. Clarification on the meaning of communicate the evidence o R. v. Marquard, at issue was the capacity of a young child to testify. Defence argued that the judge must test the childs ability to perceive and interpret the events, as well as recollection. Crown argued only communication of evidence. SCC, Madam Justice McLacklin outlines a general inquiry into capacity, not a specific inquiry into the witnesss ability to have observed and to have remembered. Clarification on the meaning of understanding the nature of an oath or solemn affirmation o R. v. Leonard, Oath or solemn affirmation, test is: Appreciation of the solemnity of the occasion; Understanding of the added responsibility to tell the truth over and above the duty to tell the truth as part of the ordinary duty of normal social conduct; Understanding of what it means to tell the truth in court; and Appreciation of what happens in both a practical and moral sense, when a lie is told in court.

IF no such understanding can be found, but they still can communicate the evidence (capacity), may testify on promising to tell the truth (unsworn evidence) if these implicit conditions exist: Understand what a promise to tell the truth is (in ordinary social conduct); and What it means to tell the truth (understanding obligation to tell the truth in giving their evidence) Key difference: Oath or solemn affirmation: added responsibility of telling the truth in court and the solemnity of the court process Unsworn evidence: the ordinary duty of speaking the truth after promising to do so.

CHILD Persons aged under 14 presumed competent to testify (S. 16.1 CEA) Like adults, an inquiry will be proceeded with if the childs capacity is challenged, burden placed on the challenger A child witness shall not take an oath or solemn affirmation ( S. 16.1(2)), but has the same effect as if they were under oath or solemn affirmation ( S. 16.1(8)) o S. 18(1) OEA, Bill C-2 c. 32 AND R. v. Persuad upheld this protection Merely need to testify upon promising to tell the truth ( S. 16.1(6)) Shall not be asked any questions regarding their understanding of the nature of the promise to tell the truth. (S. 16.1(7)) When competency of a child is in question, focus is on capacity to understand and respond to questions o R. v. W. must take a common sense approach to child evidence, accounting for strengths and weaknesses of a case. Despite inconsistencies of time and location, they should be considered in context of their age.

Compellability o Spousal competence and compellability General rule is that spouses cannot be compelled to testify for or against their spouse (R. v. Couture) Applies only where there is a valid and subsisting marriage Who is a spouse? o R. v. Hawkins, girlfriend of accused police officer was a crown witness. Married by the time the appeal was heard, married for 7 years. Crown sought to introduce new exception where spousal incompetence didnt apply if they married just to insulate themselves but court said it was for Parliament to legislate If there was evidence available to prove that marriage was fraud, then result would be different. Here, Crown couldnt call her as witness but initial inquiry testimony was entered into trial under principled approach to hearsay rule, but this DOES NOT undermine the spousal incompetency rule. Only if the evidence sought to be admitted was taken BEFORE the witness became the spouse of the accused. (R. v. Couture) NOT irreconcilably separated (policy reason marital harmony) R. v. Salituro, wife wanted to testify against husband who forged her signature on cheque payable to both of them. o SCC ruled spousal incompetency did not apply here as no marital harmony to preserve. Reasonable prospect of reconciliation? o R. v. Schell

The test is whether there exists a reasonable prospect of reconciliation. Also compellability flows from competence with regard to spouse according to Alberta CA Balance of probability for separation o R. v. Jeffrey, accused convicted of breaking and entering of estranged wifes parents home. Judge held estranged spouse to be competent witness for Crown Held that proof of irreconcilable separation to be decided under civil balance of probabilities. NOT common law spouses R. v. Martin, Charter argument does not apply as they are not a group which suffered historical disadvantage, political prejudice. Some arguments to include CL relationships in the spousal incompetency rule, but that would just exclude more evidence. Civil cases any party or their spouse is competent and compellable witness for any party to the action Criminal case exceptions S. 4(1) CEA the spouse of an accused is a competent witness for the defence the spouse is a competent and compellable witness for the prosecution when the accused is charged with: o S. 4(2) sexual offences and crimes against the marriage (ex. polygamy) o S. 4(4) crimes that involve harm or violence to children The common law exceptions apply when: Accused charged with an offence involving the spouses person, health, or liberty o R. v. McGinty, Accused charged with assault causing bodily harm, 3 weeks before trial she married alleged victim and at trial victim said would rather not testify o Judge ruled victim competent and compellable witness for the prosecution, accused convicted and appealed o Appeal dismissed for policy reasons kisses or kicks, husband and wife have choice to testify or not, consideration of causing family discord or further abuse. o Seems better that there should be a general policy to extend no choice to married persons, victims are compellable against the aggressor. Even when no charge, evidence reveals that the accused threatened the spouses person, liberty, or health o R. v. Schell, accused charged with first degree murder, Crown sought to call estranged spouse to testify about a conversation where accused admitted to the killing. Accused threatened spouses childrens lives if she told. Court extended protection beyond situations where accused is charged with the threat against spouse. Violence, cruelty, or threats made against the spouses child o R. v. McPherson, accused convicted of assaulting his 6 year old son, his wife was compelled by the Crown to testify for the welfare of child.

Manner of questioning o Examination in chief Examination of a witness by a person calling him is examination in chief or direct examination, then the adversary engages in cross-examination Able to elicit further data, question witness concerning his power of perception and memory, demand explicitness in his communication and explore his sincerity all in an attempt to challenge the accuracy of his first description. The questions arent evidence, the answers are Lawyer who called should ask open-ended questions rather than leading questions o Method of questioning during examination in chief

Open ended questions Answers to open-ended questions are often persuasive and credible because the responses will be natural and are likely to be seen to be independent and untainted. Ex. who was with you? What happened next? When did you first notice that? Where were you at 8am? Leading questions (2 kinds) Directly/indirectly suggesting the answer to the witness o Ex. I take it you checked your rear-view mirror before changing lanes? o A proper open-ended question would be what, if anything, did you do before you completed the lane change? Presupposes the existence of a fact that has not been testified to by the witness o Ex. What happened after you put your turn signal on? would be improper if the witness had not provided testimony that he had put his turn signal on. o This type of leading question is never proper, unless there is no controversy about the presupposed fact. o Judges have discretion to remove the ban on questions that suggest the answer where it is necessary to do so in the interests of justice or where witness appears unwilling or unable to give responsive answers. (age, memory refresh) General rule (Maves v. Grand Trunk Pacific Railway Co) o On material points a party must not lead his own witness, but may lead those of his adversary (leading questions are allowed in cross-examination, but not in examination in chief. R. v. Rose, new trial ordered because Crown leads its own witness. The rule is to be at judges discretion allowing leading questions on non-contentious matters of the sake of expediency and its necessity in the interest of justice. The leading questions were on highly contentious matters, the trial judge erred in failing to intervene. o Exceptions to the general leading questions rule: Introductory matters Purpose of identification To allow one witness to contradict another Where the witness is hostile and leave is obtained Necessary to refresh memory and leave it obtained Witness is defective/having difficulty answering questions Matter is complicated or technical (ex. DNA questions) Examination by the Court o The Court has no power, of its own motion and without consent of both parties, to direct further evidence to be given However, has the right to ask questions to clarify matters, and to interrupt if it feels the witness doesnt understand? o Civil cases, the court has NO power to call a witness (Fowler v. Fowler) o Criminal cases, the court HAS power to call a witness if it is necessary in the interests of justice (R. v. Bouchard). Limited by the condition that the defence has closed its case, the Crown is not entitled to split its case and therefore cant call further witnesses. Order of witness o R. v. P., accused convicted of robbery, the defence called the accused as last witness, after alibi o Judge stated that accuseds evidence would be given very little weight before because all the other evidence had been heard by accused. o An accused is entitled to have his or her evidence heard in full and assessed in conjunction with all of the other.

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While its true in alibi cases, calling the accused out of order (not as the first defence witness) may diminish the weight of their evidence, it does not necessarily do so and certainly doesnt destroy the credibility of the evidence new trial ordered.

Refreshing memory and recorded evidence o Witnesses generally free to use whatever means to refresh their memory Exception: novel science such as hypnosis, which is considered an unproven scientific technique UNLESS there is evidence about its reliability (R. v. Trochym) o When the witness has reviewed the document, the information in the record doesnt become evidence unless the witness incorporates it into her testimony or if the document is entered under some other exception of the hearsay rule. o General rule is if a witness testimony is derived from an unconstitutionally obtained record, the relevant testimony should be treated the same as the unconstitutionally obtained derivative evidence. o During trial, 3 ways for reviving memory Past recollection recorded Permits witnesses to use, in court, documents or electronic recordings, to assist them WHILE giving their testimony o Ex. business records, memoranda of events, etc. R. v. Rose, Crown presented a Crown witness with her written statement as soon as she took the stand and tried to use the record as a script for the testimony o This rule should not be used to enable a party to control the evidence his witness will supply R. v. Fliss, SCC described the prereqs needed to have memory refreshed: 1) Past recollection must have been recorded in some reliable way 2) At the time he made or reviewed the record, his memory must have been sufficiently fresh and vivid to be probably accurate 3) The witness must be able now to assert that the record accurately represented his knowledge and recollection at the time he reviewed it. Knew it to be true at the time. 4) The original record itself must be used, if it is procurable. R. v. Wilks, accused in a car accident and getting income benefits from insurer, insurance case manager talked to her several times, made some notes and then put them into summaries on the computer rather than verbatim. At trial the judge allowed the case manager to refresh her memory from the computer notes, during testimony he frequently relied on the notes rather than memory. Accused convicted and appealed. o Here the Crown did not affirm that the witness made the notes when his memory was fresh, at no time did the witness say that looking at the notes would jog his memory or that they were accurate. o The notes should not have been permitted to be entered into record under the guise of present memory revived acquittal As a general proposition, where a witness has not personally recorded info, and where that info cannot be verified with precision, it shouldnt be read into evidence, nor should the witness while testifying refer to the info that is not recalled or that was not authenticated with precision when his memory was fresh. R. v. B., refreshing of memory can happen before trial or at it, doesnt matter Present recollection revived Where a review of the record does not inspire an actual recall of the facts recorded, the rigid requirements just described, those applicable to past recollection recorded, are to be insisted upon. o Document is in substance the evidence, and must therefore meet requirements of time, verification, and accuracy of the past recollection recorded rule.

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IF a witness views a record, however, and has her present memory revived and then testifies about the event, the record is not the evidence, her testimony is. The record need not fulfill the criteria for past recollection recorded. o Should never read from the record as the record is not the evidence, merely aide memoire...however Fleming v. Toronto Ry Co., witness (railcar inspector) used and read directly the notes that he inspected a particular car to refresh memory permissible because plausible that he cant remember details of each cart he inspects R. v. Shergill, the Court refused to allow a law witness to review a police officers notes about an interview with that witness, but allowed the witness to review a transcript of this evidence taken during the preliminary inquiry. o Held that before allowing a witness in court to review a statement that does not meet the requirements of the past recollection recorded doctrine, trial judge should examine risks involved (reliability, potential to convey wrong info, time passage between event and record, how suggestive the record is. o If risk is too pronounced, should not allow revival of memory. Transcripts and depositions Not subject to the contemporaneity requirement for past recollection recorded and to have read over the transcript and verified that it accurately recorded her testimony. Prevailing view is that witness should read silently from it, and then answer questions about the event without reading the document itself.

Cross-examination o Two basic goals: (1) Eliciting favourable testimony from the witness, and (2) Discrediting the testimony of the witness o o o We follow the English rule: allows the cross-examiner to inquire into any relevant matter As opposed to the American rule, limited to subjects or topics that was covered in examination in chief and to matters relating to the witnesss credibility. Leading questions are fine until it becomes apparent that the witness is partisan to the crossexaminers side (Mooney v. James) Each witness who takes the stand puts his credibility into issue and counsel in crossexamination are free to discredit or to impeach the witnesss credibility Cross-examination designed to impeach a witness may focus on a number of areas: By showing bias, prejudice, interest, or corruption; By attacking the character of the witness through raising prior convictions, prior bad acts, or poor reputation; By contradicting the witness through previous inconsistent statements; By challenging the witnesss capacity to observe, recall, and communicate accurately By putting contrary evidence to the witness; and By showing that the witnesss evidence is contrary to common experience. Generally when a question is raised of credibility, the answer of the witness is final and becomes a collateral fact rule, you cant represent evidence to contradict a witness on a collateral matter. Cross-examination counsel are barred from resorting to harassment, misrepresentation or asking questions whose prejudice outweighs their probative value Also they cant ask questions that will discredit the witness unless they have a good faith basis for the question Good faith basis Essentially this allows the cross-examination of unproven facts The cross examiner may pursue any hypothesis that is honestly advanced on the strength of reasonable inference, experience or intuition

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The purpose of the question must be consistent with the lawyers role as an officer of the Court R. v. Lyttle, drug robbery case, one of the witnesses had a criminal history and had an image of drug gangsterism a question can be put to a witness in cross examination regarding matters that need not be proved independently, provided that counsel has a good faith basis for putting the question. You cannot cross-examine inadmissible evidence, and counsel cannot crossexamine irrelevant or inadmissible matters. o Counsel has the right to cross-examine on RELEVANT and ADMISSIBLE areas without proof, provided they have a good faith basis When a certain line of questioning appears to be tenuous or suspect and imputations are raised, the trial judge may enter into a voir dire to ensure that there is indeed a good faith basis for the questions. Also trial judge has the discretion to check the cross-examination if anything becomes insulting, irrelevant cross exam is not a carte blanche. Limits on Crown in Cross-examination of the accused Cannot ask the accused as to the veracity of Crown witnesses R. v. Ellard, accused charged and convicted with brutal swarming death of victim. Accused denied committing the act. Despite conviction, a new trial was ordered as the following questions were asked: o Why would that Crown witness lie? What reason would she have to accuse you? What motive does she have to make this up? AND it is improper for Crown Counsel to question the accused as to otherwise inadmissible bad act evidence. This practice protects the accused from the intro of bad character evidence by way of cross-examination. R. v. C (W), accused charged with sexual assault on young girl and in Crowns crossexam was suggested that he was a Satanist and child abuse was part of his religion. Ontario CA said it was improper and destroyed the appearance of fairness. R. v. Mallory, if evidence is too unreliable or if Crown doubts its veracity it shouldnt be used in the cross-exam of the accused because there would be no good faith basis. R. v. M.M., even when the accused introduces good character evidence, cross-exam is not unlimited. In this instance, the cross-exam exceeded the bounds of what was proper and the trial became unfair. o Despite the Crowns right to cross-examine and neutralize and offset his assertion of good character, opening the door to character is not a licence to destroy the accused. Duty to cross-examine rule Browne v. Dunn, established this rule. Court ruled that the plaintiff, having failed to cross-examine the witnesses on the contested point, was barred from urging the jury to disbelieve their evidence and that the jury was not obliged to accept their testimony. If counsel is going to challenge credibility of witness; witness must be given a chance to address the contradictory evidence. R. v. McNeill, accused charged with offences arising from an alleged abduction of C, one of the people involved in the abduction B testified for the Crown, defence failed to cross examine B so the Crown confronted B herself. Suggestion laid out in McNeil that if possible the witness should be recalled and if not possible it should be left to the trial judge whether a special instruction should be given to the jury. If one is then the jury should only be told they may take into account the witness was not given opportunity to speak the contradictory evidence. If the aggrieved party declines to have the witness recalled there will be no special instruction Incomplete cross-examinations One that is cut short does not necessarily result in the loss of testimony already given, trial judge has discretion

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The right to cross-examine a witness, although fundamental to our trial process, is not absolute or limitless. 3 considerations to bear in mind when judge is acting on this discretion: (1) the reasons for the incomplete cross-examination (2) the impact of the lack of cross-examination; and (3) possible ameliorative action

Vulnerable witness protection o Child witness A number of helpful procedures were introduced to protect children: The public may be excluded from the courtroom; A support person may be permitted to be close to the witness while testifying; The child may be permitted to testify outside of the courtroom or behind a screen**; The accused will not be permitted personally to cross-examine the child witness unless the trial judge so allows; A publication ban may be imposed to protect the childs identity; and A childs videotape evidence is admissible at the trial. ** Testifying outside the presence of the accused. SS. 486.2(1) CC applies to all witness, who at the time of trial is under the age of 18 OR may have difficulty communicating the evidence by reason of a mental or physical disability. SS. 486.2(7) stipulates that the accused, judge, and jury must be able to watch the testimony by means of CCTV or otherwise, and the accused must be permitted to communicate with counsel while watching the testimony. Videotaped statements S. 715.1 CC, where victim was under the age of 18 OR mentally/physically disabled, a video recording made within a reasonable time after the alleged offence may be used if the victim adopts the contents of the video recording, unless the presiding judge feels it would interfere with the proper administration of justice. To adopt the contents of the videotape o R. v. F. (C.C.), SCC Justice Cory took the view of the Alberta CA that a witness might adopt the statement, even though she does not recall the events, as long as she recalls giving the statement and her attempt to be honest and truthful at that time. Justice Cory said cross-exam is not the only way to guarantee reliability: 1) statement is made within a reasonable time; 2) trier of fact can watch the videotape to assess demeanour, personality, and intellect of the child 3) the child is required to attest that she was attempting to be truthful at the time the statement was made; and 4) the child can be cross-examined at trial as to whether or not she was actually being truthful when the statement was made. Any inconsistencies between in-court testimony and the videotape go to weight, NOT admissibility. This does not go to credibility either as having consistent testimonies do not make that statement more credible. Procedure for using videotaped evidence o Must be reviewed at a voir dire first o Court then needs to be satisfied that the videotape was made within a reasonable time. reasonable time depends on circumstances. A 2 year delay was seen as reasonable by the Ontario CA The primary goal is the creation of a record and the subsidiary aim is to prevent or reduce trauma. Real Evidence Refers to tangible items exhibited to the judge or jury. May be directly or demonstrative evidence.

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Admissible only if properly authenticated (must be relevant and admissible) and does not produce undue influence o Triers may acquire knowledge by testimonial, circumstantial or real evidence o Real evidence must be relevant, this is achieved only if the item is identifiable as genuine or authenticated. o judge must be satisfied that there is sufficient evidence introduced to permit a rational finding by the jury that the item is as claimed, the jury then weighs the evidence and determines whether its authentic or not R. v. Parsons, accused charged with conspiracy to use forged documents, prosecutions case depended on evidence obtained through private telephone conversation. For such evidence to be received, judge must be satisfied that the authorization was valid (voice matched accused), that the investigation was done properly. on appeal, it was determined that the judge need do no more than decide whether there is sufficient evidence to leave the issue to the jury. o Some evidence may be excluded because it will inflame emotional passions but sometimes it cant be helped (R. v. Muchikekwanape), gruesome photos of victim in river, but they were important so jury could see the condition of deceaseds face and the extent of bone dislocation. Various forms of real evidence: o Views Should it be impractical to bring evidence to the court, the court may go to the evidence by way of a view The value in conducting a view must be weighed against the inconvenience and disruption necessitated in essentially moving the court participants to the site. In most instances, views are accompanied by commentary. Recommended practice to have court reporter present Meyers v. Manitoba, Manitoba CA concluded that the observations of the trier of fact made during a view were evidence it is illogical to ask judges or jurors to ignore what they have observed. o photographs and videotapes admissibility depends on: (1) accuracy in truly representing the facts; o R. v. Maloney (no 2), Red Wings player fight with Maple Leaf player, assault caused bodily harm Crown sought to introduce clips of the game but it was denied because clips were out of order and in slow motion judge felt it distorted the true reality and speed of what occurred. (2) fairness and absence of any intention to mislead; (3) verification on oath by a person capable of doing so. o R. v. Schaffner, a photograph can be verified by: (a) the photographer, (b) a person present when it was taken, (c) a person qualified to state that the representation is accurate, (d) an expert witness. SCC held that the judge may rely on his own viewing of a videotape taken of a crime to establish identity. (R. v. Leaney) Photographs and recordings HAVE independent probative value and do not rest on the testimony of a witness. R. v. Nikolovski, accused of robbing a store, during testimony of witness store clerk a video was shown of the robbery but the witness couldnt identify the accused from it. Trial judge relied on his own comparison of the accused and the tape to conclude it was him, they appealed. o SCC concluded that a videotape, once authenticated, can stand on its own as a silent witness o If its a jury trial, they should be instructed to consider if the video has sufficient clarity and quality and shows the accused for a sufficient time to prove beyond a reasonable doubt. Video re-enactments (both Crown and Defence can admit video re-enactments)

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R. v. MacDonald, accused was a fugitive and the subject of a police takedown, Crown tried to admit a video recreation made by the cops about the takedown o The videos inaccuracies outweighed the probative value: time of year made, time of day, location, speed of car, type of car, etc. Tape not allowed R. v. Latimer, accused made tape recreating how he killed his daughter o Provided it was voluntary, it was not fair for the accused to admit it into evidence (distinguished from the case above because its the accuseds tape) Documents The best evidence rule requires that the original of a document be tendered when a party seeks to prove the contents of that document. Secondary evidence, by way of copies or the testimony of witnesses, is inadmissible. HOWEVER, the best evidence rule is confined to cases where a party has the original document and does not choose to produce it. IF the party may satisfy the court that the original is lost, destroyed, or is otherwise in the possession of another and cannot be obtained, secondary evidence may be submitted on discretion. (S. 29 and 30 CEA) Their authenticity may be proved by calling the writer, someone who saw them write it, or comparing hand writing S. 8 CEA, comparison of a disputed writing with any writing proved to be genuine shall be permitted to be made by witnesses. o R. v. Abdi, held that S. 8 CEA did not preclude a common law option of allowing a jury to compare writing samples without witness testimony. The Court also decided that the jury should be warned to be cautious in reaching a conclusion without expert or witness testimony. Authentication of circumstantial evidence Two rules apply: (1) If a document is over 30 years old and there is nothing indicating fraud, it will be assumed authenticated. (2) If a letter is a reply letter, it is authenticated. Computer-generated evidence Ss. 31.1-31.8 CEA and S.34.1 OEA are new provisions that deal with the authentication of electronic documents Generally 3 types of computer-generated evidence: Records o Most computer records are admissible under the business records exception o Records which require no human input, the traditional hearsay concerns do not apply. This information should be treated as original or real evidence. (i.e. trace calls obtained from telephone company records) o Definition under S. 35(1) OEA: record includes any information that is recorded or stored by means of any device copies are included in this definition o S. 30(3) CEA: distinguishes between record and copy, whereby adducing a copy in lieu of the record requires an affidavit of authenticity. o R. v. Morgan Computer generated documents like print outs S. 31.1 CEA, any person seeking to admit an electronic document as evidence has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic document is that which its purported to be S. 31.2 CEA, best evidence rule in respect to electronic evidence is satisfied a) on proof of the integrity of the electronic documents system; or b) if an evidentiary presumption established under 31.4 applies (2) despite (1), in the absence of evidence to the contrary, an electronic document in the form of a printout satisfies the best evidence rule if the printout has been manifestly acted on, relied on or uses as a record of information recorded or stored in the printout.

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R. v. Hall With computer generated documents, it is enough that the witness has knowledge as to the contents of the records, how they are kept, secured and retrieved. The reliability of the records is shown from the fact that the business relies on them to conduct its day to day business. R. v. Gratton Here, the witness didnt know the workings of the record system, could only tell what it said. Failed the criteria laid out in Hall. Evidence was inadmissible.

Models o Considered demonstrative evidence, counsel must establish a proper foundation in that: (1) the experts testimony is relevant and admissible and the model relates to that evidence; (2) the expert whose testimony the model illustrates is familiar with it; The model fairly and accurately reflects the experts evidence to which it relates; and The model will aid the trier of fact in understanding or evaluating the experts evidence. o Draper v. Jacklyn, held that demonstrative evidence is admissible where it is relevant to the issues in dispute and where it would assist the jury to better understand the conditions alleged so long as the prejudicial value doesnt outweigh its probative value. Re-creations o Similar to a video re-enactment, except that it re-creates objects moving through space by applying the laws of physics to the mass, velocity, acceleration, and friction of the objects. o Reliability of the computer program should be assessed. Counsel should examine what information was included and what was left out. o Apply the novel science admissibility test AND the criteria from Mohan

Judicial Notice Is acceptance by a Court without the requirement of proof, of any fact or matter that is so generally known and accepted in a community that it cant be reasonably questioned or any fact or matter that can readily be determined or verified by resort to sources whose accuracy cant be reasonably questioned o Has to be general knowledge within the given community o Ex. rain makes roads wet and less friction with the road and tires. 3 forms of judicial notice o Adjudicative facts admitted without the need for proof the facts to be determined in the particular case o legislative facts admitted without the need for proof those that have relevance to legal reasoning and the law-making process and involve broad considerations of policy Legislative facts assist in determining questions of law and are not intended to assist in resolving questions of fact. o social framework facts hybrid of adjudicative and legislative facts, refer to social science research that is used to construct a frame of reference or background context for deciding factual issues critical to the resolution of a particular case provide a context for the judge to consider and apply the evidence in a given case may be provided to the court by experts where necessary, or may be accepted by the trial judge as a matter of common knowledge in the community. Will only have relevance if linked to the evidence in the particular case.

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R. v. Lavalle, expert called to talk about battered wifes syndrome and the effect The relevant tests for allowing judicial notice o R. v. Find (aka. Morgan test), accused attempted to rely on judicial notice of social framework to help persuade the SCC that in sexual offence cases involving kids there is a realistic possibility that some jurors might be unable to adjudicate impartially and try solely on evidence. The threshold for judicial notice is strict: a court may properly take judicial notice of facts that are either (adjudicative facts): 1) so notorious or generally accepted as not to be subject of debate among reasonable people 2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy o R. v. Spence, black accused charged with robbery of S. Asian pizza delivery guy. Trial allowed defence to challenge jurors on potential bias against black accused but refused to allow questions addressing the interracial nature of the crime. NEW TEST (for legislative and social framework facts only) 1) the level of notoriety and indisputability of the fact sought to be noticed, and 2) the significance of centrality of the fact in disposing of the issue. The more important **the more important the fact, the more stringent the proof required. The less important the fact, the less the need for indisputable proof to be shown.** When it comes to a social framework or legislative fact a judge must still ask whether the alleged fact is accepted by a properly informed reasonable person and not the subject of reasonable dispute (still apply Morgan test, but more flexible) Establishes a weaker test for social framework or legislative facts but this doesnt mean you dont examine it The closer a fact approaches the issue, the more the court ought to insist on compliance with the strict Morgan criteria even in Find they adhered to the strict test even though the issue was not an adjudicate fact relating to guilt or innocence. Judicial notice of laws o Under the various Evidence Acts, judicial notice is to be taken of the laws of Canada and of the provinces. o Laws of a foreign jurisdiction must be proved, although in certain provinces judicial notice is to be taken of statutes from countries of the British Commonwealth o Most subordinate legislation such as municipal bylaws must be proven by official copies or certified copies. Admissibility The Basic Rule: Relevance, Materiality and Discretion

III.

Basic rule: info can be admitted to evidence ONLY where it is RELEVANT to a material issue in the case o Even if evidence meets this basic rule, may still not be admitted because of exclusionary rules/discretion Whether evidence satisfies the basic preliminary condition for admissibility of relevance and materiality is a matter to be decided by the trial judge as an issue of law Difference between materiality and relevance o Materiality (Evidence related to matter) Evidence that is not directed at a matter in issue in the case is immaterial (hence inadmissible) What is my opponent trying to prove? and then decide whether the thing sought to be proved is a matter in issue. Ex. one argues 1992 contract breached. Evidence of a 1990 contract breach not material unless factual connection to the 1992 contract Primary v. Secondary Primary materiality o To identify the primary material evidence, simply ask whether the thing sought to be proved can matter given the facts in issue, the substantive law, or the procedural rules that will govern the hearing.

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Secondary materiality o Indirectly or secondarily material in that it assists the trier of fact in resolving the primarily material issue. o Evidence that is about other evidence in the case. o Will relate to the credibility (honesty of witness) or the reliability (other factors that influence the accuracy of testimony such as ability of witness to recall, accuracy of scientific or forensic process) of other evidence. Courts do not distinguish between primary and secondary. o Relevance (Evidence related to fact) Whether evidence is directed to a material issue in the proceedings. If not, evidence is immaterial No legal test for determining relevance. It is a matter of LOGIC Standard of logical relevance: no minimum probative value required for evidence to be relevant. The evidence must simply increase or diminish the probability of the existence of a fact in issue (R. v. Arp) Relevance is contextual in that it depends on the facts in issue, the position taken by the parties in respect of those facts, and the other evidence adduced in relation to those facts Exclusionary discretion o Judges have the discretion to exclude relevant and material evidence where its probative value is outweighed by its prejudice o Appellate courts will respect the discretion used by judges o We are currently in an era of strong discretion, judges given a vital role to play in weighing evidence as a prelude to admissibility o Two kinds of exclusionary rules, often overlap: (1) Exclude evidence obtained in circumstances such that it would result in unfairness if the evidence was to be admitted at trial most likely invoked where evidence has been unfairly or illegally obtained (2) Permits the exclusion of evidence that is not important enough to hear, question of relevance. Benefits of its admission cannot justify the negative effects o Defence evidence R. v. Seaboyer, SCC recognized that there is a discretion for Courts to exclude technically admissible defence evidence, but emphasized that it is to be applied in an extremely guarded fashion It can be excluded solely where its probative value is substantially outweighed by the prejudice it could case. o Narrative doctrine When giving a narrative of events, witnesses may include info that would not meet the test of relevance and materiality. However, courts will sometimes accept this as part of a story Judges should try to avoid using this information for improper purposes R. v. W. (L.), appellant appeals his conviction of a sexual assault. Met woman on phone, she sponsors him to come to Canada. Relationship turns sour. Narrative evidence of the events in their relationship was allowed to be permitted as evidence because it was relevant to deciding a material fact. However, the narrative also was said to have illustrated the accused bad disposition, evidence which is generally excluded. No consensus was made on this case. Inclusionary discretion o There is no discretion within the law of evidence for this sort for evidence: satisfies the rules of admissibility, a judge is not empowered to receive it. o HOWEVER, the a Charter remedy might Exclusionary discretion exercised through the balance of prejudice and probative value o Prejudice Includes any adverse costs associated with the presentation of evidence. Prejudice can describe both the distorting impact that evidence can have on the finding of fact, and the fairness in allowing evidence to be presented. Can include things like:

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Undue consumption of time Unfair surprise depriving a party of the opportunity to respond Creating distracting side issues Potential to confuse the trier of fact o Probative value The weight of an individual item of evidence describes the importance that is to be attached to it. Consider credibility, reliability, and the strength of the inferences it gives rise to. Various situations where Court has excluded evidence o In criminal cases, discretion to exclude can be read into statute (Corbett v. R.) Argued that if accused was to be cross-examined on his prior conviction it would be violation of S.11(d) Charter right There was a warning to the jury not to use the prior conviction in deciding his guilt; it can only be used to determine credibility of witness. It would be improper to think that after hearing this warning the jury might use the evidence for an improper purpose. Judge held that, S. 12 CEA when read in conjunction with common law discretion to exclude prejudicial evidence, did not violate accused rights. o In criminal cases, where evidence is tendered by the accused, the evidence may only be excluded where the probative value was substantially exceeded by its prejudicial effect ( R. v. Seaboyer) Argued that rape shield provision was unconstitutional because it deprived them of ability to call into play relevant evidence. The introduction of the evidence would punish the innocent and would be prejudice TEST: does the prejudice substantially outweigh the value of the evidence? o Uttered words (R. v. Hunter) Person walking by accused in courthouse, heard him utter, I had a gun. But did not hear anything else. Accused of murder. Where overheard words are relevant, but their meaning is speculative and their prejudicial effect is substantial, the overheard words should be excluded. Overhearing a criminal is prejudice, not probative. o Evidence is relevant if it is logically probative (Anderson v. Maple Ridge) Civil case re: duty of care of municipality over intersection where accident occurred. After complaint, moved stop sign. Plaintiff wanted to argue that moving sign was evidence of guilt Evidence is relevant if it is logically probative. This is viewed by means of a common sense approach. Judge erred in excluding evidence regarding stop sign. o A trial judge had a duty to protect the fairness of the accused trial. They can exclude evidence in furtherance of that duty (R. v. Harrer) Accused arrested in US, given Miranda rights there, but not again when questioned in Canada. Alleged it was unfair to submit statements made in Canada A fair trial must not be confused with most advantageous trial from accuseds standpoint. The evidence taken in this case was not unreliable. Therefore, evidence could be submitted.

Character evidence Character Generally o Primary materiality o Character evidence is any proof that is presented in order to establish the: personality; psychological state; attitude; or general capacity of an individual; to engage in a particular behaviour o can be established circumstantially providing the particular acts of a person on other occasions, through statements of opinions, by proof of reputation, or by expert witnesses, etc

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o There is much exclusion to this evidence because it often presents serious risks of prejudice and creates distracting and time consuming side issues. o Exclusions depend on whether it is criminal or civil case, as well as primary or secondary materiality. Also depend on whether the Crown or accused is calling the evidence. o o Character and relevance Probative value of character evidence is often controversial due to the generalizations involved. These generalizations tend to be derogatory and judgmental. Proposition that persons tend to act consistently with their character. However, tendency to act that way doesnt mean they act that way on every occasion. Character and habit Important to distinguish the two Character: generalized description of a persons disposition, such as honesty, integrity, temperance, peacefulness. Habit: tendency of a person to engage repeatedly in a particular kind of conduct. It may or may not adversely reflect on ones character. If it does adversely affect the accused, the character evidence rules should determine admissibility. If it doesnt, normal rules of relevance should apply Habit is more specific. It denotes ones regular response to a repeated situation Habits have a greater probative value then character traits. Jurisdictions accept proposition that evidence of habit is admissible to show an act. R. v. B.(L) Ask is the proposed evidence discreditable to the accused? o Yes character evidence rules apply o No character evidence rules do not apply Discreditable evidence includes any conduct/information about that accused that is morally objectionable or apt to demonstrate that they have a contemptible or reprehensible character. Habit is admissible as a substitute for present recollection (Belknap v. Meakes): Appeal of a medical negligence case Court held pre-operative assessment was done by habit. If a person can say they do something regularly in their professional life, it is evidence and should be convincing evidence that it was done that way on a particular day. Habit should be admissible as a substitute for present recollection If relevant, evidence of habit or routine is admissible in both criminal and civil context. Evidence on habit is circumstantial evidence (R. v. Watson), Accused of manslaughter. Wanted a friend of the deceased to testify that the deceased always carried a gun, like as if he was carrying a credit card. Trial judge said evidence was irrelevant, because there was no viable issue of self-defence. Further, there was no evidence deceased had a gun on day of murder. Successfully appealed. Evidence of habit can be viewed as circumstantial evidence that a person acted in a certain way on the occasion at issue. Evidence of habit proceeds on the basis that repeated conduct in a given situation is a reliable predictor of conduct in that situation Here, evidence supporting the inference that the deceased was armed and may have fired would be relevant to the defences position of self-defence and if evidence not admitted, those inferences would not be available. There must be enough instances to permit the finding of habit. 3 or 4 times was not held sufficient to establish a habit (Devgan v. College of Physicians and Surgeons) Doctor charged with misconduct of terminally ill patients. Overcharged them. Questioned whether they could submit evidence of what he told other cancer patients about success rates of treatments Not mentioning the cure rate to patients 3 or 4 times does not amount to habit. Must be more substantial. o Discreditable conduct evidence called by the prosecution in a criminal case

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Evidence that the accused engaged in discreditable or criminal acts, or is otherwise of a discreditable character is PRESUMPTIVELY INADMISSIBLE Onus on prosecution to prove on a balance of probabilities that probative value outweighs prejudice In assessing probative value, can take into consideration: Strength of evidence Connectedness of the evidence in question to the issue Materiality of the evidence. In assessing prejudice, can take into consideration: Moral prejudice draw prohibited inferences Reasoning prejudice risk that trier of fact can get distracted, may become confused about what evidence pertains to the crime charged, trial may become disproportionate, whether the accused can respond to allegations.

Character of the accused (Criminal cases) Bad character o Prohibited inference (aka. primary rule of exclusion) o R. v. G. (S.G.) Character evidence called by the Crown which shows only that the accused is the type of person likely to have committed the offence in question is inadmissible. To infer from admissible evidence that the accused may be guilty because he is the kind of person who would commit the offence is impermissible. o R. v. Handy : leading Canadian case on character evidence Complainant alleged that the accused sexually assaulted her in a painful and degrading manner SCC ruled trial judge erred in allowing former wife to give evidence that the accused derived pleasure from sex that is painful to his partner. They held that the evidence was not connected sufficiently to the offence charged. Justice Binnie: Proof of general disposition is a prohibited purpose. Bad character is not an offence known to law. Discreditable disposition or character evidence at large creates NOTHING BUT MORAL PREJUDICE and the Crown is not entitled to ease its burden by stigmatizing the accused as a bad person. o Situation specific evidence of propensity may be admitted, depending on its probative value and the risk of prejudice it presents. o Similar Fact Evidence Rule (SFER) Designed to prevent reliance on this impermissible inference and to identify when discreditable conduct evidence is important enough to admit in spite of the risks. The rule is not confined in its application to cases where the Crown seeks to prove similar acts. It applies, and must be satisfied, in every case where the Crown is presenting evidence to establish the guilt of the accused that either directly or indirectly reveals the discreditable or stigmatizing character of the accused. R. v. D. (H.), Crown argued exclusionary rule did not apply because the Crown evidence would prove a number of outlandish things done by the accused that were dissimilar to the criminal allegations he was facing. Argued it was not similar fact evidence, but evidence of extrinsic misconduct by the accused. o Saskatchewan CA rejected submission. Rule is not confined to similar acts. o The SFER applies whether the discreditable conduct is criminal or not and whether the evidence recounts specific acts or related directly to who the accused is, rather then what he has done. R. V. Handy Leading case on SFER, accused of sexual assault. Claimed consensual. Complainant said yes to normal but not anal. Claimed painful and assault. Ex wife testified at trial with SFE. Ex wife given $16.5k to testify from Crown (deal from compensation board). Credibility of consent issue

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SFE is presumptively inadmissible. Onus is on the prosecution to satisfy the trial judge on the balance of probabilities that in the context of the particular case the probative value of the evidence outweighs its potential prejudice and thereby justifies its reception Case distinguishes between general propensity reasoning and specific propensity reasoning. Evidence must be evaluated in relation to a particular issue. SCC decided evidence of general criminal disposition will have no cogency, as it does not have some specific connection with or relation to the issues for decision in the subject case. Mentions reasoning vs. Moral prejudice and dangers of propensity Need to identify the main issue in question to do a probative value/prejudicial effect test Key to determining probative value is the nexus or connectedness of the SFE and the alleged offence Need to pay close attention to similarities in character, proximity in time, and frequency of occurrence Crown is required to satisfy the trial judge on a balance of probabilities that the evidence of similar facts is NOT tainted with collusion. 4 STEP ANALYSES FOR ALLOWING SIMILAR FACT EVIDENCE

Step 1: Weighing PROBATIVE VALUE Step 2: Assessing PREJUDICIAL EFFECT for the purpose of admissibility Step 3: Balancing risk of prejudicial effect and probative value Step 4: Mandatory direction from judge to jury when this evidence passes step 3

Step 1: Weighing PROBATIVE VALUE - Must examine: (i) The strength of the evidence that the similar acts actually occurred. (the more compelling the proof of similar act, the more probative value the evidence has) Credibility of witness (In Handy, credibility issues with witnesss financial/personal motives) Acquittals and stays (Acquittals not admissible R. v . Arp; criminal charges that were stayed not admissible R. v. Rulli) Collusion/collaboration air of reality test. for there to be an air of reality to the prospect of collusion there must be more than proof of opportunity. In R. v. B. (C.), the Ontario CA found an air of reality where complainants, daughter and granddaughter, of accused discussed their allegations and filed joint law suits when accused fired daughter and cut off granddaughters education expenses. (ii) The extent to which the proposed evidence supports the inference sought to be made or the connectedness between the similar fact evidence and issue in question. The probative value of proving that event will depend on the extent to which, as a matter of human experience, proof of that event supports the desired inference. List of non-exhaustive factors that would assist in assessing similarity/connectedness - Handy: Proximity in time of the similar acts The extent to which the other acts are similar in detail The number of occurrences of the similar acts 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. List of appropriate categories for admission, range of issues that can be advanced through the admission of similar fact evidence Discreditable conduct that is directly relevant o The Crown cannot prove the offence charged without also revealing that the accused has engaged in discreditable conducts other than the crime charged.

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(iii)

R. v. G. (S.G.), the Crown could not present its murder case without proving the discreditable fact that the accused possessed stolen goods and drugs. Discreditable conduct establishing mens rea o May be probative value in demonstrating the mental state of the accused, be it knowledge or intent. R. v. Francis, previous acts of alleged discreditable conduct assisted in proving knowledge. The fact that it was known that the accused had previously sold crystal, representing it to be diamond, weakened his defence of mistake of fact. Discreditable conduct establishing actus reus o SFE can be used to prove that a crime occurred. o Makin v. A.G. for New South Wales Evidence that a number of babies found buried in three properties linked to the Makins was admitted to establish that the alleged murder victim, baby Murray, had been killed. The prospect of a natural death for baby Murray was significantly reduced by the evidence of the deaths and similar MO. Discreditable conduct and credibility of complainant o Possible to use independent allegations to support the credibility of the complainant who is making the allegation o If more than one complainant making same allegations, credibility is high. However must look out for collaboration or contamination o R. v. H. (J.), trial judge used past discreditable conduct to bolster the complainants credibility in an inappropriate way. She believed the complainants account of prior sexual conduct by the accused involving the complainant when they were both children, and used this to confirm that the criminal allegation was credible. Discreditable conduct relating to the alleged victim o Courts often permit the Crown to prove the violent or abusive nature of the prior relationship between the accused and an alleged victim o R. v. MacDonald, Ontario CA held that evidence of the nature of the relationship...provided context that was essential to an accurate interpretation of the event. The conduct is not being used to prove the bad personhood of the accused but to support the specific inferences that the accused is disposed to act violently towards the victim and he had the disposition on the occasion in question. the extent to which the matter tends to prove are at issue in the proceedings [the materiality of the evidence]

Step 2: Assessing PREJUDICIAL EFFECT for the purpose of admissibility - Must be assessed in the following manner: (1) considering the potential for MORAL PREJUDICE against the accused The risk of convicting the accused because he is a bad person, rather then on the proof that he committed the offence. Determining guilt of a forbidden chain of reasoning R. v. Shearing, where SFE reveals a morally repugnant act, its potentially poisonous nature will require a correspondingly high probative value to outweigh its impact Where offense charges are more troubling than SFE, the risk of moral prejudice is diminished. R. v. Talbot: man got young boys drunk in past and sexually assaulted. Allowed SFE when he was charged with getting boys drunk in the past. (2) considering the potential for REASONING PREJUDICE against the accused Risk of distracting or confusing the jury, or of undue consumption of time, and danger that jury may have difficulty in disentangling the subject matter of charges from the similar fact evidence. Danger trier of fact might mix matters of consideration with matters of decision. Step 3: Balancing risk of prejudicial effect and probative value - Generally SFE inadmissible, however admission is an exception determined on balance of probabilities - No inverse relationship with them (ex. Prejudicial effect high, probative value low) - Admission of SFE can turn on the presence or absence of other facts.

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This is because relevance, and hence probative value, depends on the entire factual context in which the similar act occurs. Best way to avoid the confusion is to evaluate the admissibility of similar fact evidence in its own right. Should be a separate issue whether the similar fact evidence, either standing alone or along with other evidence, can ultimately establish the relevant inference. o

Step 4: Mandatory direction from judge to jury when this evidence passes step 3 - When SFE is admitted in a jury trial, the judge must give the jury a clear direction to avoid relying on the prohibited inference (bad character). R. v. B.(F.F.) - they may not use the similar fact evidence to reason from general disposition or character to guilt - There are cases where failure to give this warning will not be fatal to a conviction o Where discreditable conduct evidence relates to the victim and is used to establish mens rea. Judge not required to train the jury to avoid the prohibited inference

The special case of proving identity through SFE R. v. Arp Leading case, accused of two sexual slayings of 2 women in BC with many similar circumstances. SCC says 2 inquiries must be made before SFE which establishes identity can be admitted: (1) Judge must assess degree of similarity demonstrated by the manner in which the questioned acts were committed must be a HIGH degree of similarity. If accused identity is at issue, and it is shown that they have committed acts bearing a striking similarity to alleged crime, the jury is asked not to infer guilt from similarity, but instead to infer from the degree of distinctiveness or uniqueness that exists between crime and similar acts which makes the accused the person who committed the crime. Ex. Lipstick robber trademark, or gang using a distinctive MO in committing their offences. (2) Is there evidence linking the accused to the similar act? if SFE is admitted the similar act would be used to show the accused committed the crime charged Sweitzer v. R, accused of 15 counts of sexual assault. Severed prior to trial. Circumstances of 14 other offences admitted into evidence in first count. In 11 counts, victims could not identify the accused The 11 counts afforded no evidence to identification. Therefore, there was no evidence that connected the appellant with any of those episodes, even though they were all similar. R. v. Millar, baby shaking, baby dies due to excessive shaking. Autopsy shows broken ribs. Accused of manslaughter. Question as to admissibility of evidence surrounding broken ribs No reasonable basis that the jury could reasonably conclude that the appellant caused the injuries. There must be a link between the issues. The jury could not assume that because the appellant cause the murder that he caused the earlier and unrelated injuries. If yes to both, probative value will outweigh the prejudice in admitting the evidence SFE of group activities Should be admissible in order to identify a group or gang responsible for a particular crime. There should be a sufficient connection between the individual and the crimes of the group. R. v. Perrier Postman Gang, over a month and on 3 separate days, a gang of men invaded 3 homes in Vancouver. Method was gang distinctive. 1 member posed as postman, while other would tackle person who opened door. At trial, sole issue of identity SCC allowed appeal and ordered new trial. Crown could not prove that membership in gang never changed and all members were present at all times. When membership in group is not constant, the Crown must prove:

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(1) accused role was distinctive no other member could do it; and (2) there is independent evidence linking the accused to the crime. Judge also must look at the acts alone, as opposed to evidence or relation to individual; and must assess whether a LINK exists between crime and accused. The problem of multi-count indictments or information Where this is so it is permissible to use evidence presented about one of those counts when disposing of the other accounts Multi-count information and indictments that allege separate incidents immediately raise the risk of prejudice, given that the triers of fact will be learning during the same trial about separate allegations of misconduct. 3 scenarios (1) The accused relies on the SFER to bring a motion to sever the different event counts, as trying the charges together will prejudice the accused. o These motions often fail because courts do not like to interfere with the prosecutors discretion to join counts, and important reasons of trial economy. (2) the evidence relating to one of more different event counts is not admissible as SFE on the other counts but where the counts are not severed o Trial judge must direct the trier of fact not to consider the evidence pertaining to one event as proof that the accused committed an allegation made in a separate account. (3) The evidence on one or more of the counts is admissible as similar fact evidence on the other counts. o Trial judge must ensure in such cases that the evidence is used properly Character evidence called by an accused (against a co-accused) An accused person may establish that, by reason of his character, a co-accused is the more likely perpetrator to the crime with which they are charged. However, in doing so the accused will be taken to have put his own character in issue. It is even permissible for an accused person to rely upon the otherwise prohibited inference (bad character) that the co-accused is by reason of his character the type to commit the crime. Limitation is that an accused cannot try to establish the propensity of a coaccused by relying on acts for which the co-accused has been acquitted. Trial judge retains the discretion to exclude character evidence about a co-accused where its PV to the case for the accused does not warrant the serious PE it will cause to the co-accused. There needs to be evidentiary foundation

Good character o Accused = OK / Crown = NO o The accused may prove that she is not the kind of person who would commit the offence with which she is charged. This proof can be done through: Reputation witnesses; Witnesses who know the accused and are familiar with her reputation because they share a relevant circle of acquaintances with her are permitted to testify. Admissible expert testimony Expert witnesses may be allowed to testify that the accused has some distinctive characteristic that would make it less likely that the accused committed the offence. R. v. Mohan o SCC accepted that reliable expert evidence would be admissible if the trial judge is satisfied, as a matter of law, that either the perpetrator of the crime or the accused has distinctive behavioural characteristics such that a comparison of one with the other will be of material assistance in determining innocence or guilt. The accuseds own testimony; Ones character would not be put at issue by denying allegation, explaining a defence or repudiating part of the Crowns case.

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Accused only puts his character in issue when he raises evidence that he is NOT THE TYPE OF PERSON TO COMMIT THE OFFENCE. It has been held that whether the accused person has put his character into issue is a matter for the trial judge to determine. Similar fact evidence; and If the SFE reveals a specific disposition that suggests the accused may have acted innocently on the occasion in question the accused will be permitted to call that proof. R. v. Morrissey, accused, who was charged with murder, was allowed to support his claim that he accidentally shot his girlfriend while attempting suicide, by proving that he had also attempted suicide when two previous relationships were breaking up. o Where the defence calls similar fact evidence, the rule differs from the ordinary similar fact evidence According to some authorities, the opinion evidence of lay witnesses who are familiar with the accused.

o o o o

HOWEVER, where an accused presents this evidence, they will be taken to have placed their own character in issue. Which can be neutralized by the Crown through: Cross-examination of witnesses and accused; Dangerous because hearsay evidence is used to rebut it (such as asking about rumours about the accused) Rebuttal reputation witnesses; Proof of the previous convictions of the accused ; S. 666 CC allows previous convictions of accused to be proved when he puts his good character at issue. Crown can prove convictions and ask specifics about the underlying criminal convictions. Admissible expert testimony; Otherwise admissible similar fact evidence. Rebuttal can be through prior inconsistent statements by accused Good character evidence can be POSITIVE traits (i.e. Honesty, passivity) or NEGATIVE traits (homophobia, suicidal tendency) which would make them less likely to commit an offence. Basically any character traits that may help exculpate the accused. Defence CANNOT illicit good character evidence through a Crown witness, inadmissible Crown cannot put accuseds character at issue on cross-examination Good character evidence can be used as a trap for accused because it allows in bad character

Character of third parties (criminal cases) o Generally Third parties (including complainants), are not being judged formally and are not at risk of losing their liberty. They are not the subject of state-based allegations and therefore do not benefit from the presumption of innocence. Where their character is relevant on a primarily material issue, particularly when it can assist the accused in making full answer and defence, evidence about their character will generally be admissible. Judge retains discretion to exclude any evidence called by accused about the character of another, where potential for PE to the Crowns case outweighs PV. Violence is admissible Evidence about the reputation of the victim for violence is therefore admissible So too are specific acts of violence known to the accused such as where the accused was the victim of that violence. The accused may also call evidence of the victims reputation for violence, in order to support the inference that it was the victim who acted aggressively Where accused persons defend themselves by pointing finger at third party, they put their character into issue. Not just pointing finger but must show that the third party has a general propensity to commit the crime. o Complainants in sexual offence cases sexual reputation evidence

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sexual reputation evidence is NOT admissible on issue of CREDIBILITY (S.277 CC) & CONSENT (S. 276(2)(a)) TWO-PART HURDLE to the admission of sexual reputation evidence (1) S. 276(1): prohibits the use of sexual experience for enumerated purposes (just 2) o Evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant (a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or (b) is less worthy of belief (2) S. 276(2): even if proof of the sexual activity of the complainant is not being used for a prohibited purpose, it will still be inadmissible unless the judge determines that the evidence has significant probative value that is not outweighed by competing considerations. NEW STATUTORY SCHEME: new rape shield provisions are constitutional. Furthermore, S.276 CC is not a blanket exclusion, it only prohibits 2 inferences R. v. Darrach, attempted to introduce evidence of complainants sexual history o S. 276 prohibit past history if used to support inference that person (1) more likely to have consented, or (2) that she was less credible witness due to past history. o Test for admissibility under S. 276 requires that the evidence be relevant and that it be more probative than prejudicial o To establish admissibility need affidavit or voir dire o Where there is an ongoing relationship, evidence of consent can be brought forth or else trial could be devoid of context (R. v. Strickland)

Character in civil cases o Generally Where character is not directly in issue, some of the rules tend to be as restrictive as, and in some cases even more restrictive than, rules in criminal cases o The good character of parties: primary materiality Proof that a party is of good character is not generally admissible (irrelevance) Good character evidence in civil cases generally has little probative value. Except in restricted circumstance where character is directly at issue evidence of a litigants character is inadmissible Rawdah v. Evans, trying to claim damages for a car accident. Wanted to call friends in community to testify to his honesty (i.e. He would not lie about his injuries). o Except in restricted circumstances where character is directly in issue, the law holds that evidence of a litigants character is inadmissible. General evidence of good character invalid (unless directly at issue: defamation case/violence) The fact that a litigant acted in a proper way one time, does not serve as evidence that he acted proper on another occasion. Must be more of an established habit Robertson v. Edmonton, Edmonton detective alleged motorcycle gang infiltrated police, but not determined. Charged with disciplinary offences for deceit o The fact that a litigant may have done good deeds on a prior occasion is little evidence that they did not do a bad deed on this particular occasion. A habit of responding in a particular/mechanical way to a particular circumstance may have probative value. However, a few occurrences do not account for probative value. o The bad character of parties: primary materiality Admission of evidence demonstrating bad character of parties in civil case is governed by the SEFR The bar for admission of SFE in civil cases is lower than in criminal cases. Here, SFE regarding abuse was relevant and admissible S (R.C.M.) v. K (G.M.), application for custody. Question of whether father was abusive. Husband was abusive to ex, but never to children o Abuse is relevant to a persons ability to act as a parent and his past abuse should be included as it has higher probative value then prejudice. Hearsay evidence and exceptions to the exclusion of hearsay

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The Hearsay Rule - An out of court statement that is offered to prove the truth of its contents. - R. v. Khelawon (FUNCTIONAL APPROACH) o Defining features of hearsay are: (1) the fact that an out of court statement is adduced to prove the truth of its contents (2) The absence of a contemporaneous opportunity to cross-examine the declarant. o The rule against hearsay is intended to enhance the accuracy of the courts findings of fact, not impede its truth-seeking function. - General rule: absent an exception, hearsay evidence is not admissible (presumptively inadmissible) - Statements offered for their truth o When an out-of-court statement is offered simply as proof that the statement was made, it is not hearsay, and it is admissible as long as it has some probative value. Plaintiff fell on steps leading to defendants store and sues. A delivery driver testifies that one hour prior they gave the defendant warning that the steps were icy. o Juries should not be left to determine the proper and improper uses of evidence. Ref to the above example, the jury would need to be told that the delivery drivers statement was admissible as evidence of notice of an ice hazard, but was not admissible to prove that the ice hazard actually existed. - Prior statements of witnesses: absence of contemporaneous cross-examination o R. v. Khelawon, SCC made it clear that the traditional law of hearsay extends to out of court statements made by the witness who does testify in court when that out of court statement is tendered to prove the truth of its contents. Therefore they are generally inadmissible o HOWEVER, it is important to note that this does not mean that the out of court statements made by witnesses are always excluded. Identifying the statement as hearsay is but a starting point. The statements may well be admitted under a hearsay exception, where difficulties in assessing the reliability of the out-of-court statements are addressed. o The fact that the witness testifies in court does not matter, the prior statement is still hearsay. The Exceptions - Wigmores justification of exceptions to the hearsay rule is widely accepted. He proposed the principled approach to the creation of new exceptions. With the recognized categories of exceptions he says that with each of them are circumstances surrounding the making of the statement which guarantees its trustworthiness which dispenses with the need for an oath & cross-exam. Wigmore urged greater flexibility based on the guiding principles of necessity and reliability. The Principled Exceptions - Hearsay evidence may be admissible under an existing hearsay exception or may be admitted on a case-by-case basis according to the principles of necessity and reliability. the two guiding principles of principled exceptions Necessity o Satisfied where it is reasonably necessary to prevent hearsay evidence in order prove a fact in issue. o Necessity is founded on need to get at the truth. In substance it is a form of the best evidence rule. o Where the witness is deceased or not competent or too traumatized to testify there is necessity Where someone is dead, hearsay evidence might be admissible Dodge v. Kaneff Homes Inc., agreement between parties to increase commission for sale of homes. Oral agreement. One party dies. Can wife of dead person give testimony that contract was completed? o The death of a party should not by itself completely deprive his estate of an opportunity to vindicate a contractual right he may have had. Evidence admitted. o Reasonable necessity requires that reasonable effort be undertaken to obtain the direct evidence of the witness. o As a general proposition, where a witness is physically available, and there is no evidence that he or she would suffer trauma in testifying, the witness should be called. R. v. Parrott, down syndrome girl sexually assaulted. Girl does not testify but expert does. CA said complainant should have testified if available

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Concept of necessity must be given a flexible definition capable of encompassing diverse situations. Khan v. College of Physicians and Surgeons, child could not provide a full and candid account of the events. It then became reasonably necessary to admit out-of-court statement of her mother. It was not, however, reasonably necessary to admit the subsequent statements made to other persons.

Reliability o Refers to the threshold reliability. Distinction needs to be made between threshold and ultimate reliability. Evidence, although needed, is not admissible unless it is sufficiently reliable to overcome the dangers arising from the difficulty of testing it. o The distinction reflects the important difference between admission and reliance. Threshold reliability is for the trial judge and concerns the admissibility of the statement threshold box. Ultimate reliability is up to the trier of fact, considerations outside the threshold box are considered here. o MOTIVE is an important factor in determining reliability Where there is no proved motive or proved absence of motive, then motive is a neutral factor. Motive is only one factor in determining threshold reliability R. v. Blackman, accused charged with murder. Murder victim had told his mom about a previous attempt on his life by accused. Trial judge admitted victims statement through his mother under the principled approach. o Was the relevance of an apparent absence of motive for victim to lie to his mother relevant? o Here, circumstantial evidence that there was no motive to lie o R. v. Khelawon, SCC took a functional approach and said all relevant factors going to the reliability of a statement can now be looked to by the trial judge. There is no set list of factors that may influence reliability Court observed that the reliability requirement will generally be met on the basis of two grounds, neither of which excludes the other. (1) the statement is made in circumstances that speak to its truth and accuracy. The statement is inherently trustworthy o Factors that go towards trustworthiness Spontaneously, Naturally, Without suggestion, Reasonably contemporaneously with the events, By a person who had no motive to fabricate, By a person with a sound mental state, Against the persons interest in whole or in part, By a young person who would not likely have knowledge of the acts alleged, Whether there is corroborating evidence o Consider whether safeguards were in place surrounding the making of the statement that would go to expose any inaccuracies or fabrications, ex... Was the person under a duty to record statements, Was the statement made to public officials, Was the statement recorded Did the person know the statement would be publicized? (2) One can show that its truth and adequacy can be tested. Can the evidence be tested? The optimal way of testing evidence is to have the declarant: o state the evidence in court, o under oath, and o subject to contemporaneous cross-examination

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R. v. Couture, majority emphasized how important this factor is.

Evolution from the list of hearsay exceptions under common law and statute to a more flexible approach o R. v. Khan key case, doctor touches 4 year old girl, birdie Two general requirements for exception: necessity and reliability. Necessity: interpreted as reasonable necessity Reliability: whether the evidence is reliable Court concluded that hearsay evidence of a childs statement on crimes committed against the child should be received, provided that the guarantees of necessity and reliability are met. This DOES NOT make out of court statements of children generally admissible. This case signalled an end to the old categorical approach to the admission of hearsay evidence. Hearsay evidence is not admissible on a principled basis, the governing principles being reliability of the evidence, and its necessity o SCC accepted Wigmores approach in Khan. Needed to admit childs testimony that doctor inappropriately touched her. They applied Wigmores theory. Necessity was interpreted as being reasonably necessary, while reliability would be interpreted in the varying circumstances and would be left to the trial judge to determine. o R. v. Smith, Woman left alone at hotel in London ON, was on phone with mother and told her that accused now arrived back at hotel for her to bring her back to Windsor. the SCC made it clear that the principles identified in Khan would be generally applicable. Hearsay evidence of statements made by persons who are not available to give evidence at trial out to be admissible, where the circumstances under which the statements are made satisfy the criteria of N and R set out in Khan and discretion of trial judge. o Together, these two cases expanded the admissibility of otherwise inadmissible hearsay and adopted a principled approach. PRINCIPLED APPROACH o This approach is in addition to the existing exceptions and available on a case-by-case basis. o R. v. Starr SCC recognized several important functions served by the hearsay exceptions. Add predictability and certainty, which leads to greater efficiency Serve a valuable educative function by providing a useful guide as to the admissibility of hearsay in specific factual contexts Assist in reinforcing that necessity is really a search for the best evidence available. The traditional exceptions are to be tested against the principles of necessity and reliability, and where the exceptions are found to be wanting they will need to be modified or abolished. o Based on the Starr decision and affirmed by the SCC in R. v. Khelawon the following is a framework for considering the admissibility of hearsay evidence: (1) hearsay evidence is presumptively inadmissible unless it falls under an exception (2) a hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability. An exception can be modified to bring it into compliance (3) in rare cases evidence falling within an existing exception may be excluded because of the indicia of necessity and reliability are lacking in the particular circumstances of the case (4) if it does not fall within an exception, it may be admitted if indicia of reliability and necessity are established on a voir dire. o Two additional considerations to bare in mind Even if evidence is admissible under an exception to the hearsay rule or under the principled approach, the judge may still refuse to admit the evidence if its PE outweighs its PV. Admitting evidence under a hearsay evidence does not trump other rules of evidence Ex. Hearsay statement that contains inadmissible opinion or repeats inadmissible hearsay should not be admitted into evidence. o WHAT IF... Too traumatized to testify?

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R. v. Nicholas, Woman gave a videotaped statement after being sexually assaulted. Too traumatized to testify. Initially trial judge said inadmissible because no cross examination. CA reversed and said no prejudice to the accused because there would be little or no point to be served in cross examining the complainant. Lack of cross-examination but necessity + reliability present R. v. Smith o Where the criteria of necessity and reliability have been met, the lack of Crossexamination goes to weight, not admissibility, and a properly cautioned jury should be able to evaluate the evidence on that basis.

Previously inconsistent statements R. v. B. (K.G.) aka. KGB, two men in a fight, one was stabbed to death. Two witnesses, friends of the accused. Gave separate statements to the cops, which were videotaped. At trial, all 3 youths recanted their earlier statements. They said they lied to police to exculpate themselves from any possible involvement. Could their previously inconsistent statements Must be a voir dire before such statements are put before a jury as substantive evidence. Court came up with the following reliability test in order to admit presumptively inadmissible evidence: (a) statement is made under oath; (b) statement is videotaped; and (c) Opposing party has opportunity to Cross-examine. Criteria above are not meant to be fixed, but provide guidance. Indeed, flexibility has become the rule. Necessity is usually satisfied by the unavailability of the witness. Wigmore says though that the necessity criterion should be given a flexible definition capable of encompassing different situations. In some circumstances, the above test would not have to be met in its entirety. R. v. U. (F.J.), accused arrested for having sex with 13 yr old daughter. Both provided statements to the police to this fact. Both said last occurrence was night before. Both then recanted statements. Police wanted to testify. SCC said evidence was admissible, but not under KGB. During the voir dire the judge only has to be satisfied that the statement was not the product of coercion. Here, the statements in question were so strikingly similar that the judge was satisfied that if instruction had been given, the jury would inevitably have been satisfied as to their reliability on this basis. This illustrates flexibility of the principled approach to PIS, illustrating a circumstance where the KGB requirements can be wholly disregarded. R. v. Chappell, accused appealed from conviction of bodily harm. Wife testified husband had been beating her for several hours. At hospital she said she fell. At trial she testified she fell. Crown wanted to admit evidence that she said she was beaten. Where the trial judge was satisfied that the statement was made under emotional pressure from the assault and without apparent motive to fabricate, the statement might be admissible for substantive use, provided that Ms. Chappell was available for Cross-examination If a previously inconsistent statement had been retracted due to emotional pressure or where there was no motive to fabricate initial statement, it may be admissible if witness available for Cross-ex Once again, shows flexible and circumstance where KGB can be wholly avoided. NOT ALL PRIOR INCONSISTENT STATEMENTS CAN BE ADMITTED FOR THEIR TRUTH even if they comply with the KGB criteria

Admissions by opposing party litigants - A statement made by a party tendered by the opposing party: the plaintiff or defendant in a civil case and the accused in a criminal case. - Admissions are acts or words of a party offered as evidence against that party - Anything the other side ever said or did will be admissible so long as it has something to do with the case - Admissions are an exception to the hearsay rule (prevailing view Evans and R. v. Couture) - It is open to dispute whether admissions are hearsay at all

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An admission does not require that a party knowingly make a statement against interest. o The evidence is against interest simply because the opposing side has decided to introduce it at trial against the party GENERAL RULE o R. v. Foreman, it was found that admissions are admitted without any necessity/reliability analysis. There are two forms of admissions: formal and informal o FORMAL ADMISSIONS dispense with the need to prove a fact in issue. A party is usually prepared to concede on this point In civil cases, formal admissions may be made by way of the pleadings, in an agreed statement of fact, or by submissions of a counsel. Ex. PI action, defendant admits liability but contest the quantum of damages. Liability is no longer in dispute, and any evidence subsequently sought to be introduced on that point ought to be excluded as irrelevant. In criminal cases, most common is a guilty plea. S. 655 CC also allows an accused to admit any fact alleged by the Crown against him. o INFORMAL ADMISSIONS is not conclusive proof of an issue, nor does it bind the parties. They are always open to be contradicted or explained. Admissions do not; need not be based on personal knowledge. However, the party must in some way indicate an acceptance or belief in the truth of the hearsay statement Admissions must be implied from a partys conduct Vicarious admissions when a person authorizes another person to speak on their behalf, that party is bound by the admissions made Co-accusers: as a general proposition an admission is evidence only against its maker. Therefore, the confession of a co-accused is not admissible against the other co-accused. Common design: partners in partnership are subject to admissions of the other Co-conspirators: law is not clear relating to admissibility/admissions. The reason for admitting such evidence would be that there is an implied authority for each to act/speak for one another for the common purpose of committing the conspiracy. R. v. Carter says that admissions can be made by co-conspirators Orthodox view is to treat admissions as an exception to the hearsay rule although they do not share the normal attributes, necessity and circumstantial guarantees of trustworthiness, possessed by the others. Admissions need not be based on personal knowledge o A party may accept what others say and, if so, party is deemed to have adopted those statements. o R. v. Streu, accused charged with possession of stolen tires and rims. Crown needed to prove that the items were actually stolen and relied on certain admissions made by the accused. Crown had no other evidence aside from Streus belief that the merchandise was stolen property. Streus statements of belief needed to be accepted as statement of fact. The party must in some way indicate an acceptance or belief in the truth of the hearsay statement. Must either adopt or indicate a belief in the truth of the contents, or else the statement is not admissible. The value to be attached to the belief is a matter of weight for the trier of fact. Admissions by silence o Admissions may be implied from a partys silence o Certain preconditions must exist R. v. Tanasickhuk: (1) a statement, usually an accusation, is made in the presence of the party; (2) in circumstances such that the party would be expected to respond; (3) that the partys failure to respond could reasonably lead to the inference that, by his silence, the party adopted the statement; and (4) The probative value of the evidence outweighs its prejudicial effect. o Before admitting such evidence, a voir dire is needed so that the trial judge can thoroughly assess the circumstances under which the statement was made and the alleged adoption by silence.

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Principle of adoption by silence does NOT apply where an accused is confronted with allegations by a person in authority, in these circumstances accused has the right to remain silent. o The common law right to silence exists at all times against the state, whether or not the person asserting it is within its power or control. o Selective silence R. v. Turcotte, the accused chose to answer some police questions. In so doing he did not waive his right to silence when he chose not to answer certain other questions. Refusing to do what one has a right to refuse to do reveal nothing.

Vicarious admissions o When a party authorizes another person to speak on her behalf, the party is bound by any admissions made. o What if an authorized party makes an unauthorized statement that the opposing side now seeks to have admitted as an admission against the party? Prevailing view is that such unauthorized statements are not admissible against the party. R. v. Strand Electric Ltd, a supervisor on the location of the worksite was a person with authority as agent and employee of the appellant to make the admissions he did and that such statements were admissible as evidence against the appellant company. Statements made by agents will be valid if there is: (1) proof that an agency/employment exists; Requires that the agent testify, the testimony of someone else who knows, or other circumstantial evidence (2) the statements were made during the subsistence of the agency; and (3) to a third party. Admissions by parties in furtherance of a common design (Co-conspirators) o In general, an admission is evidence only against its maker. The confession of one co-accused is not admissible against the other co-accused. Ex. A and B charged with murder. A in a statement to the police confesses the murder and implicates B. The confession can only be used against A, not B. EXCEPTIONS: (a) If the participants are tried separately o Should A refuse to testify at Bs trial or recants on the stand his prior statement may be admitted for its truth under the principled approach (b) statements made by those involved in a common design o Applies not just to co-conspirators, but to all offences involving a common design. o Ex. Partnerships Once a partnership is proven by independent evidence to exist, the admission of one partner acting in the scope of the partnership is evidence against all the partners. o Not every statement of a co-conspirator is admissible co-conspirator exception Only those statements made during the course of the conspiracy AND in furtherance of the conspiracy fall within the exception. In Canada, the trier of fact is left to decide what to do with the co-conspirator declarations. In charges involving common design, all evidence, including the hearsay statements of coconspirators, is conditionally admissible. It is then for the trier of fact to review the evidence and to determine whether to invoke the co-conspirator exception (4 part jury instruction) R. v. Carter, aka Carter Rule (1) Jury is to consider whether on all the evidence they are satisfied beyond a reasonable doubt that the alleged conspiracy in fact existed . If they are not so satisfied; then the accused must be acquitted. all the evidence here means those made by the alleged co-conspirator in the formation of, or apparent furtherance of, a conspiracy. they are circumstantial evidence, relevance will lie in the fact they were made, not in their truth. They are

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direct evidence of the formation of an agreement to commit an offence, and their admission does not depend on the truth of their contents. There is nothing circular in treating evidence differently on different issues. GENERAL RULE: statements made by a co-conspirator in furtherance of a conspiracy can be considered during this part one inquiry of the co-conspirators exception. Still may be excluded under Starr What if statement about the conspiracy and not one about the furtherance of one? R. v. Viandante, Manitoba CA held a declaration of conspiracy by one is direct evidence of the existence of the conspiracy, and can be used on that issue. If the confession of A as to the existence of the conspiracy is attended with indicia of reliability, and necessity is satisfied (as it will be in a joint tiral), then the statement should be admissible. (2) if they find that a conspiracy as alleged did exist, they must then review all the evidence that is directly admissible against the accused and decide on a balance of probabilities whether or not he is a member of the conspiracy. Context is needed, the jury is expected to shift through the evidence, compartmentalize it, and correctly apply two different standards of proof hard. (3) if this conclusion is reached, they then become entitled to apply the hearsay exception and consider the acts and declarations made by the co-conspirators in furtherance of the conspiracy as evidence against the accused on the issue of his guilt beyond a reasonable doubt. (4) they should be told that this ultimate determination is for them alone and that the mere fact that they have found sufficient evidence directly admissible against the accused making his participation in the conspiracy probable, and to apply the hearsay exception, does not make a conviction automatic. They must be clearly satisfied beyond a reasonable doubt as to the existence of the conspiracy and the accuseds membership in it. Courts conclusion is that the Carter rule meets the requirements of the principled approach and stands. R. v. Mapara, accused of first degree murder. Shot a man several times in a parking lot. Crown alleged a conspiracy to kill 5 people, including the accused. o A jury can consider hearsay statement by a co-conspirator after it has been found: (1) a conspiracy existed beyond reasonable doubt (2) accused was probably a member of conspiracy o Therefore, evidence cannot be excluded. The co-conspirators exception remains unaffected by Starr. Declarations against interest by a non-party - Common law judges confined the exception to declarations made against pecuniary or proprietary interests, and penal interests. - A declaration against a pecuniary or proprietary interest may be admitted where: (1) The declarant is unable to testify; (2) The statement when made was against the declarants interest; and (3) The declarant had personal knowledge of the facts stated. - Clearest case is a debt owed - Theory of the above is that a person will not concede even to themselves the existence of a fact which will cause him harm, unless they believe that fact to be true. Whether they realized at the time that they were making evidence against themselves is immaterial to the question of admissibility, however pertinent it may be in determining the persuasive value of the declaration. - Necessity: o Unavailability of the declarant - Reliability: o The declarant, who is aware of adverse facts, admits them. - The declarant need not realize that the statement may be used against him o Ex. Diary entry I just borrowed $100 from john and I have no intention of paying him back.

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Exceptions where declarant or testimony unavailable (Have necessity requirement) o The common law recognized an exception for a declaration made by a person concerning a matter within his own personal knowledge when declaration was made was to the declarants own prejudice o A man is unlikely to say something falsely which would work to his own disadvantage o statement must only affect a pecuniary or proprietary interest, it cannot be for criminal liability Declarations against penal interests o Common law long excluded statements against penal interest. The primary reason was a concern about false confessions. This suspicion regarding the trustworthiness of such declarations permeates the penal interest exception. o Lucier v. R. lists 5 principles where a declaration against penal interest may be admitted: (1) the declaration is made in such circumstances that the declarant should have apprehended a vulnerability to penal consequences as a result (2) the vulnerability to penal consequences cannot be remote (3) the declaration sought to be given in evidence must be considered in its totality. If upon the whole tenor the weight is in favour of the declarant, it is not against his interest (4) in a doubtful case a Court might properly consider whether or not there are other circumstances connecting the declarant with the crime and whether or not there is any connection between the declarant and the accused. (5) the declarant is unavailable by reasons of death, insanity, or grave illness which prevents the giving of testimony even from a bed, or absence in a jurisdiction to which none of the processes of the Court extends. A declarant would not be unavailable where he or she refuses to testify. o Outline a number of principles which have to be met in order for someones statement to work against their penal interest R. v. Demeter, accused charged with murder, Crown alleged he got someone to kill his wife. He wanted to submit evidence that someone unknown to him had confessed to the murder of his wife. Outline of when statements against interests (penal interests) can be included (CB. 756) R. v. Kimberley, victim killed at 1001 Bay Parking lot. Trial judge refused to admit statements of one of the killers that he had done it. He committed suicide before accuseds trial. Argued that suicide witnesss willingness to take fault for the crime meant he knew high possibility of prison time so thus his statement before he died should be valid but they do not clear the threshold reliability hurdle. This guy wanted to go to jail and already had a life sentence pending on him; therefore taking the blame would not impose any additional penal consequences. He had reasons to falsely confess to the murder. Therefore it could not be admitted.

Dying declarations - In a criminal case, a dying declaration of a deceased person is admissible for the prosecution or the defence when o The deceased had a settled, hopeless expectation of almost immediate death; o The statement was about the circumstances of death; o The statement would have been admissible if the deceased had been able to testify; and o The offence involved is the homicide of the deceased. - Necessity o The person is dead - Reliability o A person who knows that he will die will be motivated to speak truthfully R. v. Woodcock - Death must be near and certain and the deceased must be aware of this fact, the mere probability or likelihood of death is not enough. o The test is subjective. Each case falls to be decided on the facts

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R. v. Aziga, accused charged with 2 counts of first-degree murder and 12 aggravated sexual assault for knowingly transmitting HIV. The police took statements from 2 victims who were about to die. One died 18 hours later and the other 18 days later Trial judge was satisfied that both when they made the statements had a settled, hopeless expectation of death and the statements were admitted as dying declarations under the principled approach. As the law now stands, the dying declaration of a passenger involved in an auto accident is admissible against the driver only if that driver is charged with criminal negligence causing death (form of homicide) o But that very same declaration would not be admissible in a civil suit for wrongful death o Nor would it be admissible if the driver were charged with the death to another passenger o Argument that these limitations are both unnecessary and unprincipled Admissions of declarations full under the principled approach. R. v. DeElsepp, the victim of a stabbing believed he suffered a mortal wound but survived o His statements made at time of extremis, therefore couldnt be admitted under dying declaration but were admitted under the necessity and reliability principled approach where reliability was based on the dying declaration rationale. o

Business and duty exceptions - Common law o Admissibility of declarations made in the course of duty is based on the presumed reliability with their making: Most records are of a mechanical nature. Prepared as a matter of routine , little reason or motive to fabricate Businesses rely on these records, and it is the job of the maker to be accurate Entries are prepared reasonably contemporaneously with the events or transactions recorded. o Declaration in the course of duty v. Admission Declaration under this exception may be admitted by the party responsible for the record in order to support his or her case Admission that is tendered by the opposing party against the party who made the statement. o Declarations, oral or written, are admissible for their truth where: (1) made reasonably contemporaneously (2) in the ordinary course of duty (3) by persons having personal knowledge of the matters R. v. Monkhouse, witness brought a document to court which he made by summarizing information contained on company payroll records. He had no personal knowledge about the accuracy of the information. o Court held that the common law rule that the maker of the declaration must have personal knowledge of the matter recorded was satisfied if the information originally was recorded by a person or persons acting under a duty to compile the information, no need to identify specific recorder. (4) who are under a duty to make a record or report; and (5) there is no motive to misrepresent the matters recorded (Ares v. Venner) o This duty no longer demands that the declarant be deceased o Ares v. Venner, medical malpractice case. The plaintiffs leg, which was broken, had to be amputated and plaintiff blamed the doctor. At issue was admissibility of notes made by the nurse. o The Court changed the law and cited the criteria above saying that these types of records should be received in evidence as prima facie proof of the facts stated therein. Note the nurses were available for cross-examination but this was not central. o The rule is not confined to nurses notes and can be used in both criminal and civil cases. - Business records o An exception for business records was created in the Canada Evidence Act and in most provincial Evidence Acts, following from Myers v. D.P.P. o Common law applies to both oral and written statements o Statutes are confined to writings or records. o Under the CEA, records are not admitted when made in the course of an investigation or inquiry, obtaining or giving legal advice, or in contemplation of a legal proceeding

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o o

Must be made by a business business is defined differently in each province. Ontario statute doesnt include government in its definition police officers notes could not be admitted under the section. Business record not made by the witness can be admissible if made during the ordinary course of business R. v. Martin, Crown sought to introduce evidence of average crop yields for the municipalities where a farmer was accused of overstating his yields to get a subsidy. The Crown wanted someone from the Department of Agriculture to present to the jury tables of estimated crop yield averages produced by the Statistics branch from data gathered by Stats Canada and no witnesses could testify to their accuracy. Business record can be admitted without testimony if: (1) the evidence tendered must be a record made in the usual and ordinary course of business; and (2) must contain same information where oral evidence in respect of a matter would be admissible in a legal proceeding. The trial judge ought to have admitted it under S. 30 CEA Oral evidence would be admissible but at great cost and inconvenience Evidence should be admitted as a matter of necessity and the trier of fact can decide as to its weight. In addition to requiring the record be made in the usual and ordinary course of business; half the provincial statutes impose a further requirement that it was in the usual and ordinary course of business to MAKE the writing or record Duty to MAKE the writing or record reinforces the guarantees of reliability since without it there may be less impetus on the employee to be careful and accurate in making the record. Double hearsay The record itself is a hearsay statement and, in turn, if the record relies in the hearsay statements of others, it becomes double hearsay. Most of the statutes state that lack of personal knowledge by the maker may affect weight but not admissibility. American case, Johnson v. Lutz, Court established the principle that both the giver and the taker of the information needed to act in the regular course of business. Followed by a lot of Canadian cases Where a person provides info gratuitously, the record loses its stamp of trustworthiness. Trend is towards principled approach when difficulties arise in admitting business records R. v. Larsen, murder charge, Crown wanted autopsy report in. The initial report was made in 1978 by a pathologist who was not dead. He deferred his decision on cause of death for 14 months, at time, in a supplemental report; he declared the victim had died of whatever. His conclusions accorded with at least two observations made by the pathologist on the scene. Defence argued this is inadmissible hearsay. The initial report was admissible under the Ares v. Venner criteria but the supplemental was not because it was 14 months later and failed to be made contemporaneousness. But the latter was allowed under the R. v. Starr principled approach. Reliability was found as there would be no motive to misrepresent.

Former testimony - 2 schools of thought o Testimony given at a prior proceeding, if offered for its truth, is hearsay. (PREVAILING) R. v. Hawkins supports this view, this case was treated as hearsay and in need of a hearsay exception o Wigmore disagreed, prior testimony was not hearsay and no exception need be created because the evidence had already been subject to cross-examination Khelawon supports this view - Existing hearsay exception for prior testimony is shaped by general principles of necessity and reliability. o Necessity Unavailability of the witness o Reliability

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At the prior hearing the witness was under oath, and was available for crossexamination, and there is an accurate transcript of the testimony to be tendered. The common law exception o At common law, evidence given in a prior proceeding by a witness is admissible for its truth in a later proceeding provided (1) the witness is unavailable; (2) the parties, or those claiming under them, are substantially the same ( identity of parties); In principle, requirement that all parties be the same is unnecessary. But the common law is strict on this. This is where the application of the principled approach is warranted (3) the material issues to which the evidence is relevant are substantially the same (identity of issues); and It is not necessary that all the issues in the two actions correspond or are the same. Only required that the evidence relates to any material issues that are substantially the same in both actions. (4) the person against whom the evidence is to be used had an opportunity to crossexamine the witness at the earlier proceeding An actual cross-examination is not needed; the opportunity is enough Admissibility under the Rules of Court o Ontario, the rule applies only to the admission of examinations for discovery ( r. 31.11(6)) Admissibility under the Criminal Code o S. 715 (1), this exception applies where the witness is: Dead, Has since become and is insane, Is so ill that he is unable to travel or testify, or Is absent from Canada. If the accused was not present at the previous trial because he fled then it will be treated as if he was there and had full opportunity to cross-examine o GENERALLY (1) the witness must be unavailable, which under the section includes when a person refuses to testify (refer to above list) (2) prior testimony sought to be admitted into evidence must relate to the same charge and must have been taken in the presence of the accused and after the accused has had full opportunity to cross-examine the witness. o R. v. Potvin, murder, Crown called witness who was alleged to be an accomplice in the offence. He testified at prelim inquiry but refused to testify at trial, admitted prior testimony according to S. 715 CC and the accused argued that this violates his S.7 or S.11(d) right to fair trial If the opposing party has had an opportunity of fully cross-examine he ought not to be justified in any later complaint if he did not fully exercise the right as per S. 715 CC. The fact that the defence in this case, for tactical reasons, might conduct the cross-examination at the prelim inquiry differently than at trial did not deprive accuse of a full opportunity to cross-examine the witness. The judge has discretion to not include the former testimony where it would operate unfairly against the accused. Unfairness refers to unfairness in how the evidence was obtained. The trial judge failed to exercise his discretion when applying S. 715, there were many reasons to admit the evidence but equally many not to. Where prior testimony does not fit within S. 715 CC, recourse can be had to the principled approach The principled approach has been used to admit prior testimony from different proceedings involving the accused and even in cases where the accused was not present and had no opportunity to cross-examine the witness.

Prior Convictions (Civil cases)

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A party to a civil proceeding may prove that the other party or a third party has been convicted of a criminal offence for the purpose of establishing prima facie that such person committed the offence charged. Evidence used in a criminal trial is deemed to be highly reliable because the burden is beyond a reasonable doubt The prior conviction has to be about the same incident that you are pleading in civil case, it cant be about past conviction unrelated to the disputed event A number of provinces now in their Evidence Acts expressly provide for the admissibility of prior convictions Evidence of a prior conviction may be used offensively by a plaintiff to prove the basis of a claim o Simpson v. Geswein, plaintiff sought to bring action in assault and battery against the D. In the criminal court the D was convicted of assault with a weapon concerning the same incident P was allowed to file conviction as prima facie proof of assault, subject to rebuttal Can also be used defensively by a defendant to resist a claim. o Demeter v. British Pacific Life Insurance Company , Demeter was convicted of killing his wife but brought an action against the insurance company that he was entitled to her life insurance as he was the beneficiary Insurance company was allowed to introduce conviction to show that he was the murderer and a murderer cant profit from his crime, so was unable claim the insurance money. A party will be barred from using a prior conviction: o When the first proceeding is tainted by fraud or dishonesty o When fresh, new evidence, previously unavailable, conclusively impeaches the original results o When fairness dictates that the original result should not be binding in the new context (ex. Where the stakes at the first proceeding was minor but in the subsequent they are very high)

Res Gestae Exceptions (aka. Spontaneous statements) - Necessity: o Based on expediency, there is no equally satisfactory source of evidence either from the same person or elsewhere. - Reliability: o Spontaneous making of the statement before there is time for concoction - The term embraces a number of distinct hearsay exceptions: o Statements of present physical condition Where a person claims 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 Confined to natural expressions that usually accompany and provide evidence of an existing injury or illness. Statement of past pain is NOT ADMISSIBLE. Statements must be spontaneous reactions to a physical condition Statements regarding the case of a condition are inadmissible under this exception R v. Czibulka o Statements of present mental state Where a person describes his or her present state of mind (emotion, intent, motive, plan), the persons 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. They are admissible not for their truth, but for the fact they were said. Only where the statements as to state of mind are going in for their truth is there need to resort to the hearsay exception. no one likes me; no one would miss me. (not admitted for truth, tendered as original evidence which it may be inferred that she was depressed and potentially suicidal) I intend to kill myself (admitted, explicit statement of her intention and must be admitted under this hearsay exception) If a statement is explicitly statement of mind, they are admitted as exceptions to hearsay. If those statements permit an inference as to the speakers state of mind, they are regarded as original testimonial evidence and admitted as circumstantial evidence from which a state of mind can be inferred. The result is the same whichever route is taken (R. v. P. (R.))

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Statements of intention are not admissible to show the state of mind of persons other than the declarant, nor may they be admitted to show that persons other than the declarant acted in accordance with the declarants stated intention (R. v. Starr) John intends to kill me. (not admissible as proof of Johns intent) I tried to kill myself last night, but the drugs didnt take effect. (not admissible as evidence that the deceased had tried to kill herself previously) Excited utterances A statement relating to a startling event or condition may be admitted to prove the truth of its contents if its made while the declarant is under the stress of excitement caused by the event or condition. General rule: in order to be admissible the statements had to be part of the story or part of the transaction R. v. Leland, deceased called out to his wife, Rose, she stabbed me. Statement was not admitted o Presumably a statement would be admissible had the deceased cried out while being attacked. o Highly contested requirement R. v. Clark reversed the rule in Leland, Ontario CA admitted the statement of the victim, help! Help! Ive been murdered! Ive been stabbed! excited utterances may be admissible even though they are not made at the exact time of the event HL crafted the following guidelines for trial judges when faced with applications to admit such evidence R. v. Andrews, stabbing victim told officers how he got the injuries 15mins after it happened when police arrived. (1) possibility of concoction can be disregarded, (2) if the judge is satisfied that the event was so unusual or startling as to dominate the thoughts of the victim so that the reaction was instinctive, (3) for the statement to be sufficiently spontaneous it must be closely connected with the event so that it triggers the statement R. v. Nicholas (a Canadian example), Victim of sexual assault made call to 911 ten mins after attack, she was unable to testify because of PTS disorder. The audio tape of the 911 call was admissible as spontaneous utterance. R v. Khan Others statement about what her daughter told her while leaving the doctors office was not admissible as a spontaneous utterance because it wasnt spontaneous, nor was the childs mind dominated by the event, in fact child probably didnt understand the significance of the event. Here there was a fear that the child wouldnt be called as a witness if they could rely on the mothers statement. For use of excited utterance, the event must be said to dominate the victims mind This case is unique and shouldnt be taken as changing the law on spontaneous declarations, it has not been followed in subsequent R. v. Dakin Court reaffirmed the principle that the admissibility of spontaneous declarations is to be determined by assessing the context in which the statement was made and whether the circumstances go to negate the possibility of concoction or distortion. Statements of present sense impression A statement that describes or explains an event or condition made while the person was perceiving the event, or immediately thereafter may be admitted for its truth Key principle is that a person is so dominated by the stress and excitement of an event that concoction or fabrication is unlikely The statement MUST be made contemporaneously. This time requirement is far stricter than for excited utterances. This is accepted in the US but not expressly in Canada.

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Prior Identification - General rule: a witness is not permitted to testify as to his own previous consistent statements because they add nothing to the in-court testimony. o HOWEVER, prior statements of identification are an exception - Case law reveals two situations where hearsay statements of identification may be admitted: (1) where the identifying witness identifies the accused at trial The identifying witness can testify to prior descriptions and prior identifications made. Others who heard these descriptions may also testify. Generally, evidence that a witness made prior consistent statements is excluded for being self-serving The probative value is best measured by the consideration of the whole identification process that culminates the in court identification Prior identification evidence may not be introduced where the witness fails to identify the accused at trial R. v. Tat, accused T and L charged with murder. The case for Crown rested on identification of L by Q and ID of both accused by JT. At trial Q testified that much of what he said to the police was based on things he was told not his own observation. He said he initially identified a photo of L but had quickly reconsidered his ID and told the officers that he was wrong and that L was not one of the shooters. Trial judge held the officers evidences of Qs ID of L admissible. Convicted and appealed. o Current law does not recognize any exception which admits prior statements of identification where the maker of the statement denies making the previous identification and testifies that the accused are not the persons who made the statement. (2) where the identifying witness is unable to identify the accused at trial, but can testify that he previously gave an accurate description R. v. Swanston, Accused was charged with robbery. Victim identified the accused in a line-up and at the preliminary inquiry held shortly after the robbery. At trial, a year and a half after the robbery, the victim was unable to positively identify the accused, who no longer sported a beard or a moustache. The victim recalled the earlier identifications. The Crown proposed to call police witnesses to confirm that the man identified on these two occasions was the accused. Trial judge refused to allow this evidence. BC CA ordered a new trial. Court accepted that the prior identification was admissible as independent evidence. Given that: (1) the eyewitness was present; (2) could be cross-examined; and (3) could attest to the accuracy of the earlier identification. So long as the identification witness testifies that the person she identified was the assailant, there is no hearsay problem. - Where the testifying witness makes no in-court identification and does not testify as to the accuracy of any prior identification, then the situation is the same as if he or she has not testified. The out of court identification is hearsay and is not admissible under the hearsay exception for prior identification. - Controversy whether these statements are hearsay pursuant to a hearsay exception, or non-hearsay original evidence. Opinion Evidence The general exclusionary rule o Opinion means inference from observed fact o Basic tenet is that the usual witness may not give opinion evidence, but testify only to the facts within his knowledge, observation and experience o Expert witnesses are an exception to the usual law of evidence, in that they can provide conclusions about fact. Laywitnesses o May present their relevant observations in the form of opinions where: They are in a better position than the trier of fact to form the conclusion; The conclusion is one that persons of ordinary experience are able to make;

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 o o

o o o

The witness, although not an expert, has the experimental capacity to make the conclusion; and The opinions expressed are merely a compendious mode of stating facts that are too subtle or complicated to be narrated as effectively without resort to conclusions. Such matters as the identity of an individual, apparent age of person, speed of a vehicle have been allowed to have an opinion expressed upon. Graat v. R key case, accused charged with impaired driving and judge permitted series of police and witnesses to offer opinion evidence about the ability of Graat to drive This was allowed not because the degree of impairment is what the topic was but the evidence was admissible on a more general basis that lay witnesses can present their observations as opinions where they are merely giving a compendious statement of facts Example of compendious statement of facts is describing the difference between a car going 70km as opposed to 40km Accused appealed arguing this opinion evidence is inadmissible dismissed Non-expert witness can give opinion on (i) ID of handwriting, persons and things (ii) age (iii) body type of person (iv) emotional stress of person (v) condition of things (vi) certain questions of value (vii) estimation of speed Judges and juries shouldnt let opinion of police witnesses overwhelm that of other witnesses (idea is that jury may give too much weight to officer testimony because they see impaired drivers a lot) The witnesses had an opportunity for personal observation, they were in a position to give the court real help Expert witness cant of course give opinion on legal issues like negligence The police and witness did not rely on any special qualifications for their opinion. Allowing laywitness opinion is a matter for discretion for the judge based on necessity. Where the witness can communicate the information adequately by describing with particularity what has been observed, the witness should not be permitted to express an opinion In exercising that discretion, the trial judge should therefore assess whether the trier of fact is in as good a position as the witness to form the relevant conclusion If so, the law opinion should not be admitted R. v. Walizadah Permitted a police officer to express opinion about what a surveillance and reenactment video showed even though jurors were in a good position to make that determination Decision understandable because you are giving the witness permission to give a tour of the evidence, pointing focus on matters of importance When deciding lay opinion rule, judge must consider if the witness has only ordinary experience or special knowledge which would fall under the expert rules R. v. Illina, the judge here allowed two police officers to testify about their opinion that a crime scene has been cleaned up this is controversial because the officers had professional experience to assess the crime scene so technically the evidence should have been put to the Mohan test for experts.

The Expert Witness - Admissibility of expert witness is determined according to the application of four criteria (aka. Mohan test) applies in civil and criminal cases (1) Necessity in assisting the trier of fact; Can be necessary where: where the expert deals with a subject matter that ordinary people are unlikely to form a correct judgment about without assistance

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(2) Relevance;

provides information likely to be outside the experience and knowledge of a judge or jury where the technical nature of information requires explanation jury should be given direction to avoid the expert evidence dazzling them with this concern the criteria of relevance and necessity should be strictly applied Necessity is to be judged according to whether the particular kind of evidence being offered meets the necessity requirement, not according to whether other experts have already filled the need for expert testimony or whether other witnesses can be found to offer the same brand of proof. In Criminal cases, the Court is inclined to interpret necessity more generously for the Defence than the Crown (R. v. Bell)

minimum, the expert opinion must be so related to a fact in issue that it has some tendency as a matter of human experience to help resolve that issue Requires a finding of both logical relevance and a determination that the benefits of the evidence outweigh its costs. PV over PE determining the benefits: o assess PV and reliability. o What will be required to meet the reliability threshold will depend on the nature of the evidence. o When the opinion is presented as scientific, the following factors from American case Daubert v. Merrel Dow Pharmaceutical will normally be consulted scientific method (adopted in R. v. J below = novel science test) Testing the underlying hypotheses relied on by the expert to see if they can be falsified Establishment of known rates of error Peer review and publication General acceptance in the relevant academic community o Identifying costs Potential costs include: risk of the uncritical acceptance by the trier of fact of the opinion, the potential prejudicial effect of the evidence, practical costs such as the undue consumption of time and the prospect that the trier of fact will become confused Danger here is that expert evidence will distort fact finding process if dressed up scientific language is used and jury doesnt understand, they may give more weight to the expert testimony because they are impressed by their credentials In criminal cases, the cost-benefit inquiry will be undertaken less rigorously than for prosecution evidence. (3) A properly qualified expert; and modest status achieved when the expert possess special knowledge and experience going beyond that of the trier of fact expertise is determined during a voir dire Question is whether witness has the expertise to offer an opinion in the relevant area. (4) The absence of any exclusionary rule that would be offended by the admission of the opinion Even after an initial decision has been made to admit, the trial judge has an ongoing discretion to exclude the evidence if its manner of presentation causes PE of the evidence to outweigh the PV. Expert witness is allowed where it would benefit the jury, their expertise must be established before the trier of fact When reliability is challenged, the party trying to bring in the evidence must prove it Context matters o Human rights tribunals, admitted expert evidence about racial profiling noting that the standard of necessity may be lower in a human rights hearing than a criminal case (Nassiah v. Peel Regional Police Services Board) Admissibility is to be determined on a case by case basis

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Because the needs of the case or even the quality of the evidence presented about the expertise will vary (technological/scientific advances) Although the judge will normally determine admissibility during a voir dire, there are NO RIGID RULES about how detailed or formal the inquiry must be. What is required will vary with the nature of the evidence in the case. o NOVEL SCIENCE o Expert evidence will be treated as novel science where there is no established practice among courts of admitting evidence of that kind, or where the expert is using an established scientific theory or technique for a new purpose. In order to be admissible, novel science must: (1) Be essential in the sense that the trier of fact will be unable to come to a satisfactory conclusion without the assistance of the expert; (2) Be subjected to special scrutiny with respect to its reliability; and (3) Satisfy an even stricter application of the necessity and reliability inquiries where the expert opinion approaches an ultimate issue in the case. o R. v. J. (the novel science test in Canada, with assistance from the American Daubert v. Merrel Dow Pharmaceutical) Accused charged with sex offences of boys, defence sought to call expert from psychiatrist to establish that in all probability a serious sexual deviant had inflicted anal on the boys, and that no such deviant personality traits were disclosed in the psychiatrists testing of the accused of the accused. Trial judge held it inadmissible SC adopted a reliable foundation test from the American case Whether the theory can be tested, means generating hypothesis and testing to see if they can be falsified Whether the theory or technique has been subjected to peer review and publication scrutiny of the scientific community is a component of good science Known or potential rate of error or the existence of standards Whether the theory or technique has been generally accepted o Only one condition, may not be accepted now but perhaps in future. o Convictions are restored and judge right to exclude evidence. o R. v. Abbey, Ontario CA, first degree murder case of gang member, Crown wanted to call expert to state that many gang members get tattoos of tear drops to indicate one of the following: death of fellow gang member or family member, wearer of tattoo has served time, or wearer has killed a member of rival gang. Crown wanted to show that it was a killing tear drop. Judge excluded expert witness (not reliable enough) and all testimony of others regarding the teardrop, accused was acquitted. Majority suggested Mohan test have two parts: (1) the party offering the evidence must demonstrate the existence of conditions precedent for admissibility; (2) trial judge must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to outweigh potential harms to the trial process. Trial judge excluded expert testimony because he used the R. v. L standards under a novel science but some info is not exactly a science and should not be held to the same test. Ex. Fire marshals testify about how a fire started, etc these are not exactly scientific Refer to specialized knowledge through experience and specialized training in the relevant field MUST use Daubert test flexibly

The Ultimate Issue Rule (Lay and Expert) - an opinion whether lay or expert can never be received when it touches the very issue before the Court - The ultimate issue rule was put to rest for lay witnesses in (Graat v. R) - There is no general rule excluding expert evidence on the ultimate issue, as long as it satisfies the Mohan test. (R. v. Bryan) - The only two rules left are (A) A witness cannot offer an opinion on a pure question of domestic law

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no witness, expert or otherwise, can provide an opinion on a pure question of domestic law concepts such as negligence, appreciates in S. 16 CC pertaining to the mental disorder defence (R. v. Skrzydlewski) HOWEVER a legal standard does not have its own technical definition and requires nothing more than a conclusion of fact to resolve. (ex. Impairment, same meaning for legal and lay persons) mixed meanings are ok (B) Rule against oath-helping Prohibits the admission of evidence adduced solely for the purpose of proving that a witness is truthful/telling the truth. Triers of facts central function is to decide accuracy of testimony, in addition to the truthfulness. Not just confined to opinions offered in support of the credibility or reliability of witnesses. It is also offended when witnesses offer an opinion that another witness is incredible or unreliable. (R. v. Rogers) Applies to both overt an implied opinions Rule is also breached where a witness offers an opinion on apparent problems with the testimony of another witness (R. v. Reid) Can be breached by a witness bolstering their own testimony by invoking hearsay support. (R. v. Ranger) Limits on the rule against oath-giving: (1) the rule is not violated where the testimony of a witness expressing their own observations or admissible opinions happens to lend support to the testimony of another witness. (2) if there is utility apart from simple oath helping in having a witness express an opinion on the credibility or reliability of another witness, and the probative value of that opinion outweighs the risk of prejudice it presents, an opinion on the credibility or reliability of another witness can be received. o R. v. Burns, expert based his opinion largely on what he was told by the witness. The expert would not have formed the opinion he did if he had not believed her. SCC concluded that when he expressed his belief in the complaint he did so not to bolster the complainants testimony but to explain the foundation for his own opinion. (3) Permits experts to offer opinion evidence that is relevant to the credibility or reliability of other witnesses. o Only offers the trier of fact background information that the trier of fact can then use in making its own conclusions about whether to credit the witness. Distinction between opinion evidence about credibility (which is inadmissible because of the rule against oath-helping) and Opinion evidence relevant to credibility will be admissible where the Mohan requirements are satisfied. o Gives rise to two obligations on trial judges: (1) where a witness embarks on evidence relevant to credibility, the trial judge must ensure that the evidence presented is confined to its proper purpose (2) the trial judge has an obligation to direct the jury in a jury trial on the limited use that is to be made of the evidence. Hearsay and Opinion Evidence - Often experts, who provide the opinion where they develop an opinion in advance of testifying, based on investigation like in Lavallee with battered syndrome. - Here they often rely on information that would not have been admissible if presented in Court, common example is hearsay evidence - Since it is essential for the trier to know the basis for the expert opinion so that it can be evaluated, it is permissible for the expert to relate any inadmissible information that they have relied on but this information cant act as proof of the facts (Lavallee) o Ex. A doctor may rely in diagnosing a plaintiff on the claims made by the plaintiff about the symptoms that he has been experiencing. Even though the plaintiffs out-of-court statements about his symptoms constitute hearsay evidence, the doctor would be permitted to relate those discussions to the trier of fact so that the trier of fact would understand the basis for the opinion,

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but the trier of fact would not be able to use that information to conclude that the plaintiff really experienced the symptoms. R. v. Abbey, SCC said that although the opinion based on inadmissible information may be admissible, before any weight can be given to it, the facts upon which its based must be found to exist on the basis of admissible evidence. When dealing with expert opinion based on hearsay from the accused, those facts must be proved to be given any weight (R. v. Lavallee) o The one about the woman who killed her husband, expert for battered wife syndrome but most of his information was based on inadmissible statements made by the accused and her mother. The accused didnt testify but she made a statement to the police, which was entered into evidence. o Ratio: (1) an expert opinion is admissible, even if it is based on 2nd hand evidence (2) 2nd hand evidence admissible to show information on which the expert opinion is based, not the existence of facts. (3) where the psychiatric evidence is comprised of hearsay evidence, the problem is the weight to be attributed to the opinion. (4) before any weight can be given to an experts opinion, the facts upon which the opinion is based must be found to exist. o Although it is necessary for the facts supporting the opinion to be found to exist, it is not necessary to establish each and every fact that the expert relied upon. As long as there is SOME admissible evidence o The judge must warn the jury that the more the expert relies on facts not proved in evidence, the less weight the jury may attribute to the opinion. SCC said if an expert obtains and acts on information of a kind that is within the scope of his expertise and which does not come from a party to the litigation, the trier of fact is free to weigh the opinion Where the expert opinion is based on information derived from an interested party to the litigation that hearsay foundation has to be proved by admissible evidence.

The Presentation of Expert Evidence - If the testimony of an expert is highly technical, counsel, who has called the expert witness, should ask the witness to explain himself in language the layman can understand. - Four forms it can take o (1) expert may be a witness to the facts forming the foundation for the opinion Experts who have first-hand knowledge of the foundational facts can testify to them directly o (2) Expert may simply be providing general, background information to the trier of fact that is useful in assessing evidence. Can be done without the expert commenting on the particular case o (3) expert may be asked to offer an opinion on a proper inference arising from the actual case or make an expert observation relating to evidence It is inappropriate to have the expert listen to the evidence to form a conclusion as to the facts upon which the opinion will be based. The expert should be presented with hypothetical factual scenario (R. v. J) Before any weight at all can be given to an experts opinion, the facts upon which the opinion is based must be found to exist. o (4) expert develops an opinion in advance of testifying, based upon an investigation The expert will base his opinion on observations he has made, and in some cases on information he has received. Information to articulate the foundation for the opinion, since PV of the opinion will be undercut if the trier of fact rejects the factual foundation The use of written authorities to examine and cross-examine the expert o Technically, books and articles are hearsay when they are being relied upon as providing accurate information o However, the rules of evidence do not permit reliance on books and articles in the examination or cross-examination of experts unless certain criteria are met.

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The expert MUST adopt the opinions if they refer or quote authorities where the expert acknowledges the authority of the work, if she adopts the opinions of the author they become part of their evidence where the expert acknowledges the authority of the work but rejects its conclusions, they can be asked to explain why. Their response can be of relevance to the credibility of the opinion she offers. o R. v. Marquard, child abuse expert asked in cross-examination about an authority he did not know of If an expert is unaware or rejects an authority (journal article, etc), that is the end of the matter. Counsel cant read from the work. Different from American version, where if the expert does not adopt an authority, it may still be entered into evidence if there are sufficient guarantees of trustworthiness Special statutory provisions o Limit on the number of experts who can be called without leave of the court. Varies between 3 and 5 depending on province o Exchange of expert reports OEA S. 52 applies to CIVIL, says that expert reports must be exchanged before the trial, it also tries to reduce the strain on medical practitioners by saying they dont have to testify if their report is sufficient and if one party calls them as a witness and its obvious that the report was enough then they will bear the costs of calling the witness. S. 657.3 CCC Same type of provisions as above but it doesnt apply to medical experts provides for the exchange of reports, notification of the identity of the expert witness to be called and if notice is not given there may be an adjournment.

Statements by Accused Persons in Criminal Cases Self-incrimination - Common law says it is unfair to force an accused to be a betrayer at his own case - Person not required to answer an allegation made against him, until Crown charges him - Idea of self-incrimination is offensive rests on ideas about privacy and the inherent dignity of individuals, abuse of state powers and the risk that compelled accused persons to respond can produce unreliable information. - Number of precise rules (clear that it is all testimonial compulsion, not non-testimonial conscription participation: o Privilege against self-incrimination o Right of accused persons to decide whether to testify at their own trials o Rule excluding involuntary confessions. - Self-incrimination is not violated where the accused is compelled to hand over existing documents Thomson Newspaper Ltd v. Canada (Director of Investigation & Research) - Generally, any State actions that coerce individuals to produce self-incrimination evidence violate principle against self-incrimination analysis. o R. v. B. (S.A.), involved a constitutional challenge to DNA warrants compelling persons to produce bodily samples for analysis SI principles are violated whenever bodily samples are taken from the accused. SCC held that principles against SI applies to compulsion relating to both products of the mind and body More generally, SCC said: any State action that coerces an individual to furnish evidence against themselves in a proceeding where the individual and State are adversaries violates the principles against SI Court adopted a broad purposive approach that can be used to identify whether a principle against SI is offended outside the established rules, both in cases of testimonial or nontestimonial compulsion involving evidence emanating from the body or the use of the body. The Privilege against self-incrimination (FORMAL PROCEEDINGS) - The privilege against self-incrimination was removed by statute

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Replaced by rules giving witnesses a protection (as opposed to privilege) against self-incrimination, called use immunity o Witnesses would be made to answer self-incriminating questions on the understanding that their answers could not be used to incriminate them in a subsequent proceeding SI rules modified by Charter. Now 3 procedural safeguards: o (1) use immunity (statutory) More aggressive form of use immunity as described above S. 5 CEA The use immunity protection provided by CEA relates only to those answers that amount to self-incriminating admissions at the time the previous testimony is being given. Does NOT extend to other testimony witnesses may give o Ex. A corporate director charged criminally with fraud testified as a witness at the previous criminal trial of another person. Any admissions the corporate director made at that earlier trial about participating in the fraud would be excluded, but evidence acknowledging his corporate directorship would not be, as there is nothing incriminating in admitting the corporate offices held. S. 5 CEA is activated when a witness expressly states her awareness or fear that the particular answers may tend to incriminate her. o Need not invoke it for every question, but can do so with respect to a series of related questions. o Judge will decide whether it is incriminating. S. 13 Charter Gives easier access to use immunity than S. 5 CEA. Witnesses are entitled to be protected by S. 13 as a matter of constitutional right whether they claim it or not, and whether or not they appreciate at the time they are answering that their responses are self-incriminating. o View is that S. 5 CEA is made redundant now S. 13 provides: o 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 giving contradictory evidence o Previous testimony must occur in some other proceeding relative to the trial which the protection is invoked. Other proceeding has been given a broad interpretation R. v. Dubois, this case has been decided that a bail hearing, preliminary inquiry and even a voir dire are considered other proceedings That protection is offered only at proceedings that are brought in an effort to impose penal consequences on the person whose earlier testimony is sought to be used against him. There is this limitation because its base function is to prevent the use of earlier testimony to incriminate an accused. NO PROTECTION in civil or purely administrative cases Purpose of S. 13 is to protect individuals from indirectly being compelled to incriminate themselves. Although this provision does not protect accused persons against adverse inferences being drawn from an earlier refusal to testify or answer questions, it does provide significant protection for answers that have been furnished in testimony at earlier proceedings New rules derived from R. v. Henry, Court said S. 13 was intended to extend S. 5 CEA.

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(1) if the accused DOES NOT testify at his trial, his testimony from an earlier proceeding cannot be used against him at that trial, regardless of whether he was the accused or a mere witness at the earlier proceeding R. v. Dubois, Dubois testified at his first trial and admitted that he killed the deceased, but claimed he acted in self-defence. Admittance of this testimony at his retrial was violation of S. 13 (2) Even if the accused DOES testify at his trial, his testimony from an earlier proceeding CANNOT be used against him at that trial if he was compellable as a witness at the earlier proceeding R. v. Noel, Noel testified as a compellable witness at his brothers murder trial. When he was testifying noel implicated himself in the killing. At Noels subsequent trial for his part in the murder, S. 13 was violated because the Crown was allowed to cross-examine Noel using extracts from the testimony Noel had given at his brothers trial. (3) If the accused DOES testify at his trial, his testimony from an earlier proceeding CAN BE USED to cross-examine him at that trial provided he was NOT A COMPELLABLE WITNESS at the earlier proceeding R. v. Henry, Henry testified as a witness at his first trial on charges of murder. His conviction at that trial was set aside. Henry testified again at his second trial on those same charges, giving a different account. The Crown was permitted to cross-examine Henry at his second trial, using his testimony from the first trial. S. 13 provides exceptions to its general rule that earlier testimony cannot be used to incriminate a witness o Perjury and giving of contradictory evidence o Reason being if the Crown is prosecuting perjury or contradictory evidence charges and it was prohibited to use earlier testimony of a witness, it would be impossible to prosecute for these charges. Earlier testimony IS the actus reus. (2) derivative use immunity Can cause not only the testimony of a witness to be protected, but even other evidence derived from, or found as a result of, that testimony Ex. A compellable witness may testify at the trial of an accomplice that together they robbed a store and threw the gun into the bush at a particular location. If that compellable witness is later prosecuted for robbery, his testimony cannot be used against him at his trial because of S. 13. o HOWEVER, that section would not prevent the admission of the gun if it was thereafter discovered by the police, because the gun is not testimony. S. 7 Charter can be used at the subsequent proceeding to fill the breach left by S. 13 to exclude evidence derived from the earlier testimony of a compellable witness. o Will occur where the authorities are attempting to use evidence against the accused that they would not have found but for his earlier compelled testimony. Burden on accused to prove that the evidence would not have been discovered without the testimony, but the burden can be shifted to Crown if accused shows plausible connection Crown will then need to show that on balance of probabilities that they would have discovered evidence anyways. Not a set rule, but a matter of discretion operating under S. 7 Charter (R. v. Z.(L.)) Under S. 7, SCC held that use immunity will be conferred even though the evidence is not being used to incriminate the accused at the proceedings if the Crown tries, at a deportation or extradition hearing of an individual, to use testimony or derivative evidence obtained from that individual through an investigative hearing

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Investigative hearings created as part of the governments anti-terrorism initiatives enable the state to compel witnesses to testify before a judge in order to furnish information useful in the investigation. S. 7 steps in to indirectly protect witnesses from being incriminated through the SI information secured in Canada. Cross examination about S. 13 immunity Generally the PV of cross-examining a witnesss knowledge of S. 13 is low because this kind of questioning will tend to be outweighed in most cases by the prejudice it will cause. In RARE circumstances, such as where the Crown can prove a plot to lie, or a decision to lie to obtain favours, the balance might shift and this line of crossexamination might become permissible. (3) constitutional exemption Includes the common law non-compellability of accused persons at their trials but extends further to provide a complete immunity from testifying where proceedings are undertaken or predominantly used to obtain evidence for the prosecution of the suspect witness (R. v. Bagri) R. v. Z. (L.), ZL was a suspect in a stabbing. He tried unsuccessfully to quash a subpoena that had been issued to have him testify at the preliminary inquiry of Dealwis, who had been charged separately in the same incident. The Ontario CA was not satisfied that the subpoena was issued predominantly to force ZL to furnish incriminatory information about his own role. ZL testified and it was found that he was being forced to incriminate himself. By now its too late as he already testified.

The non-compellability of accused persons at their trial o Accused persons cannot be compelled to testify against themselves at their own trial ( CEA s. 11(c)). They can choose to testify (CEA S. 4(1)). Corporations are the exception, they cannot rely on CEA S. 11(c) Senior officers of a corporation are compellable against that corporation. o 3 conditions must be met to benefit from S. 11(c) (1) the person must be compelled as a witness Note: witness in a formal proceeding, not for things like an interrogation at police station. Witness: someone who furnishes testimony at a FORMAL proceeding (2) in a proceeding against themselves can be more than one person, therefore co-accused do not have to testify against one another (3) in respect of an offence Needs some connection between the offence and the proceedings real question is whether the relevant proceedings have penal consequences o They can however, be compelled to testify at other proceedings that deal with the same subject matter they are accused with. o In non-penal proceedings governed by provincial evidence acts, the party can be forced to testify by opposing parties Therefore witness required to testify unless (summary): (1) predominant purpose in calling them is to obtain SI evidence (2) he will be prejudiced by his testimony Adverse inferences from failure to testify o Failure of accused to testify cannot be used as evidence of his guilt o However, if the case already shows the accused to be guilty beyond a reasonable doubt, the trier of fact may use the failure of the accused to testify to conclude that the accused has no explanation that could raise a reasonable doubt. (R. v. Noble) Key case Belief in guilty beyond a reasonable doubt must be grounded on the testimony and any other tangible or demonstrative evidence admitted during trial.

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o o

o o

Jurors are apt to consider failure to testify as additional proof of guilt this is an error of law. Triers of fact are prohibited from drawing inferences of guilty from failure of an accused person to testify in a criminal case S. 4(6) CEA prohibits the Crown and judge from commenting on failure to testify because this invites inappropriate inferences. 3 instances where comment on failure to testify is allowed under S. 4(6) CEA: (1) does not prevent defence counsel to comment favourably on the failure to testify o Explaining the right of the accused not to testify. However, should not explain why the accused chose not to take the stand (2) allows accused to comment on the failure of a co-accused o An accused who is trying to cast blame on a co-accused is therefore permitted to cross-examine a testifying co-accused about his or her failure to tell their exculpatory story to the police. o As long as the comment does not invite the jury to speculate or draw unwarranted inferences Pre-trial silence of the co-accused can be used solely to challenge her CREDIBILITY, but not as evidence of her guilt. o Judge must provide a complex jury direction. (3) does not apply to judge alone trials o Even the Crown can invite the judge to consider the failure of the accused to testify Neutral comments, simply alluding in passing to the fact that the accused has not testified, have often been held not to violate S. 4(6) CEA. It must suggest that the accuseds silence is a cloak of guilt (McConnell v. R.) Alibi case exceptions EXCEPTION: alibi cases adverse inferences are permitted to be drawn against the credibility of an alibi if the accused does not provide reasonable notice of the alibi to the Crown in advance of the trial, or if the accused does not testify in support of his alibi.

Rights to Silence Informal admissions and confessions - Accused is entitled to choose whether to speak to persons in authority. - Adverse inferences cannot generally be drawn against an accused if they remain silent - When they do speak, there are a series of rules for determining whether those statements can be admitted (and subsequent derivative evidence) - Individual is free to provide, all, some, or none of the information they have. Also, silence in face of questioning cannot be used as evidence of guilt. o R. v. Turcotte, T walked into police station and told the police officer to send a car to the ranch he worked at, that they should put him in jail and that he had a rifle in his truck, but refused to tell the police why they should go. here it was proper for Crown to prove Turcotte refused to answer questions because it would have been impossible to prove the admissible voluntary statements made without narrating the entire conversation, including where he refused to respond. - Both common law and S. 7 Charter provide right to remain silent at investigative stage o Common law Crown must establish beyond a reasonable doubt that the will of the accused to remain silent was not overborne by inducements, oppressive circumstances, the lack of an operating mind, or a combination of such things. Problems arise with quid pro quo promises or threats that by their nature raise a doubt about whether they cause the accused to speak against their will Voluntariness can be undermined by oppressive circumstances, such as depriving the accused of food, water, sleep, clothing, medical attention, denying accused right to counsel or engaging in intimidating or prolonged questioning Voluntariness will also be undermined where there is a reasonable doubt about whether speaker had an operating mind sufficient to enable the accused to make a meaningful choice about whether to speak.

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o o

Will fail to have an operating mind if intoxication, mental illness, injury or other cause, possess the limited degree of cognitive ability necessary to understand what he or she is saying, or to comprehend that their statement may be used in proceedings against them. If any of the above factors lead them to believe that the confession has a reasonable doubt to its voluntariness, the voluntariness rule requires that the confession be excluded Police trickery will also make a statement non-voluntary the behaviour must be so appalling that it shocks the community S. 7 Charter and undercover/detained statements Constitutional recognition of right to choose whether to speak Exclusion of statements surreptitiously (secretly) and actively elicited from detained suspects by state agents Undercover state agents will deprive detained suspects of the ability to make an effective choice whether to speak to the authorities BETTER for accused to invoke common law rules, then rely on S. 7 unless it relates to detained /undercover statements Statutorily compelled statements S. 7 also requires exclusion of self-incrimination statements the accused has been obliged to make by law Courts make CONTEXT based decisions based on: (1) existence of coercion in making the statement (2) existence of an adversarial relationship at time statement was made (3) risk that the statement may be unreliable (4) risk that statutory authority to compel statement may be an abuse of power Purpose of this is to include protection of persons against making unreliable confessions and the protection of personal autonomy and dignity. Derivative evidence Where involuntary statement is excluded, any evidence found as a result of the confession will also be excluded Remedial exclusion of statements for the breach of other Charter rights Violations of the right to counsel represent the most common basis under the Charter for excluding statements Where the accused establishes on the balance of probabilities that her statement was obtained in violation of a Charter right such as right to counsel, or as the result of arbitrary detention, the statement is apt to be excluded under S. 24(2) of the Charter, even if that statement was voluntary. Alibi cases Well-established example of when the conduct of the defence can open the door to proof of silence. If the accused does not provide reasonable notice of an alibi, sufficient to enable the police an opportunity to investigate the alibi, this failure can affect the weight of the alibi evidence. Where Crown permitted to prove accuseds pre-trial silence, trial judge must direct a jury about the proper purpose for which the evidence was admitted, the impermissible inferences that must not be drawn from the evidence of silence, the limited PV of silence, and the dangers of relying on such evidence. (R. v. Turcotte) o Common Law Voluntariness, Operating Minds and Oppression

Summary of voluntariness rule - Meant to ensure that statements made by the accused to persons in authority are admitted into evidence only where the accused has made a meaningful choice to speak. - If there is no evidence of voluntariness, but the statement is admitted anyways, it constitutes reversible error and the result will be overturned on appeal - Defence can argue that accused gave statement under state coercion made by fear or favour - Rationale behind the voluntariness rule:

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(a) Unreliability of statement threatens search for the truth There is a history of statements provided to police officers as being unreliable, threatening the search for the truth. o (b) Limitless state action threatens administration of justice Rules of evidence must maintain integrity of system If state actors have no limitations placed on them, people lose confidence in the system However, must still balance this with need to solve/control crime. R. v. Oickle key case, police suggested Oickle could get help if he confessed to arson fires. Said charges could be bundled up and that if he did not confess his girlfriend would be treated as suspect and subjected to an unpleasant investigation o the general proposition In order for most statements made to a person in authority to be admissible the Crown must establish beyond a reasonable doubt in light of all the circumstances that the will of the accused to choose whether to speak has not been overborne by inducements, oppressive circumstances, or the lack of an operating mind. In addition, there must not be police trickery that unfairly denies the accuseds right to silence. o Applies to most statements: full/less complete confessions, exculpatory/inculpatory, offered to establish the truth of their contents, or simply to cross-examine the accused. o The voluntariness rule: the onus is on the Crown to prove in a voir dire that a statement offered to a person of authority was beyond a reasonable doubt and voluntary, or else the statement will not be admitted. Standard of proof beyond a reasonable doubt The threshold here is usually not used in the law of evidence, but it is here Every single statement an accused makes must meet this standard unless the accused clearly waives this right. Voir dire Usually, Crown must request a voir dire and prove voluntariness of the statement beyond a reasonable doubt Alternatively, defence can make an explicit in-court admission of voluntariness State representative Accused voluntary statements must be made to a state representative who can influence the case o Ie. Police officer o Any confession that is the product of outright violence is involuntary o Suggestions that it would be better to confess may or may not result in involuntariness central in that determination is whether, in context such words would tend to be taken as a veiled threat VOLUNTARY CONFESSION TEST HAS THREE PARTS: o (1) Can accused prove on a balance of probability that the confession was made to a person in authority? R. v. Grandinetti, did the accused, based on their perception of recipients ability to influence investigation or prosecution, believe that making a statement would result in favourable treatment if the accused does not believe that the recipient of the statement has authority, no power imbalance will be operating and the voluntariness rule need not apply. Generally someone engaged in the arrest, detention, interrogation or prosecution of an accused While subjective, there is also an objective element that the belief held must be reasonable R. v. Rothman, statements made by Rothman to an undercover police officer posing as a fellow prisoner did not have to satisfy the voluntariness rule because Rothman did not believe that officer to be a person in authority Accused just has to believe that the person is a person of authority. o

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(2) Can the Crown prove beyond a reasonable doubt that the confession was voluntary and the will of the accused has not been overborne by inducements, oppressive circumstances, or the lack of operating mind? While focus on drawing inferences will often focus on what a reasonable person would have perceived, Court wont admit statement if defence raises reasonable possibility of involuntariness Ontario CA said that where recording facilities are available and no videotape, in most circumstance it will render the confession suspect. Most aggressive among Appeal Courts (R. v. Ahmed) Several factors that may be causative of involuntariness: (a) threat o Threatening violence or danger to the accused or someone else o Must be an actual threat and causative evidence of the accused giving confession shortly after (b) inducement o Most common and there is a difference between proper and improper inducements; a subjective standard is used for both. o (i) proper moral inducements Minor non-legal inducements to confess are acceptable, such as spiritual or moral inducements to confess appealing to ACs conscience, guilt, religion, etc. Spiritual or moral inducements will generally not produce an involuntary confession because the inducement offered is not within the control of the police. o (ii) improper legal inducements Any offer of a legal advantage that acts as a quid pro quo to an accused confessing will in most cases be enough to render the confession inadmissible Ie. Offer lighter sentence, lighter charge any talk about accuseds lawyer or the legal system is dangerous an offer of psychiatric help or other counselling in exchange for a confession is not generally as strong an inducement as an offer of leniency R. v. Spencer, arrested for multiple robberies and girlfriend arrested for one. Confesses to some charges to see girlfriend not all inducements will render a confession or admission involuntary SCC ruled that even though the police effectively promised the accused that he could visit his gf if he talked, the trial judge was entitled to find that this inducement was not strong enough to render the statement involuntary No offer of leniency was made and the withholding of a visit with her until a partial confession was made was not a strong enough inducement to render Spencers statement inadmissible. ultimate question is whether the inducements are strong enough, either alone or in combination with other factors, to raise a reasonable doubt about whether the will of the subject has been overborn (R. v. Oickle) (c) oppression o Coercion on its own is usually not enough to show voluntariness (except in extreme circumstances), but it can add to the other factors o physical coercion Exposing accused to oppressive circumstances such as sleep deprivation, stress, isolation, denial of food/medicine constitutes

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coercive circumstances that, linked to the accuseds confession, can be causative of involuntariness R. v. Singh, the never-ending interview may constitute coercive circumstances R. v. Hoilett, accused confession to sexual assault excluded because Hoilett intoxicated and left in cell for 2 hours before given clothing and was woken in middle of night to be interrogated where he fell asleep 5 times. (d) General police trickery o If police engage in activity during the interview that is seen as so offensive that it would be seen as contrary to the integrity of the justice system, the statement may be inadmissible o R. v. Rothman, shocks the conscience test, adopted by R. v. Oickle for addressing trickery by persons who are in authority conduct while neither violating the right to silence nor undermining voluntariness per se, is so appalling as to shock the community conscience threatens the administration of justice o This is a distinct inquiry to the other factors, which are holistic (e) lack of an operating mind o Conditions that impair accuseds cognitive ability to understand what they are saying and what legal consequences it may have in the proceedings against them may prove involuntariness o Ie. Statements under shock, hypnosis, intoxication, delirium, druginduced state, or severe mental disorders. o 2 distinct situations: (a) the functioning of the mind affects the influence that inducements or oppression have (b) the mind of the accused is simply not operating because of its own internal or subjective state. o HOWEVER, R. v. Whittle said that the fact of mere intoxication or mental illness or other conditions is not enough to require exclusion. The focus is on whether the person was able to make a true choice in making the statement Operating mind test: requires the accused possess a limited degree of cognitive ability to understand what he or she is saying and to comprehend that the evidence will be used against them in proceedings. did the accused possess an operating mind? It does not inquire as to whether the accused made a good/bad choice. o (3) if there was [factor], did [the factor] lead to the confession? Causal relationship doesnt need to be precise (ie. Not a but for standard), but must have had a clear influence on balance of probability. R. v. H. (L.T.), young person charged with dangerous driving causing bodily harm. Upon arrest, police read him a form advising him of his right to a lawyer, to consult a parent or adult relative in private, and to have a lawyer and adult present while his statement was taken. He said he understood. Following a voir dire, YCJ judge ruled that his videotaped statement was inadmissible. o Crown would have to prove beyond a reasonable doubt that the statement was voluntary and that the requirements of S.146 YCJA relating to statements made by a young person to authority figures was met. Judge was not convinced he fully understood his rights and options before giving his statement o Trial judge was bound to find the statements inadmissible if she was not satisfied beyond a reasonable doubt that the young persons rights were explained to him in language appropriate to his understanding or if they did not understand his right to counsel and therefore could not validly waive it.

General discretion to exclude

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Independently of the voluntariness rule judges have residual discretion to exclude confessions or admissions. Obvious that the general power where PE outweighs PV In both R. v. Harrer and R. v. Terry, statements obtained by foreign officers who were not subject to the Charter. o the Court endorsed a general power in judges to exclude technically admissible evidence in order to preserve trial fairness

Undercover/detained statements - admission depends on the nature of the exchange between accused/undercover agent - in R. v. Herbert, said right to silence is only violated if the undercover state agent cause the accused to make incriminating comments that he would otherwise not have made. Two part test: o (1) Relates to the exchange: was it akin to an interrogation or did it develop naturally through conversation, latter will be admitted o (2) Relates to relationship of trust: if a relationship of trust exists it would be unfair for state agents to exploit such relationship in order to secure admissions. Derivative Evidence - R. v. St. Lawrence, the rule here provides that where an involuntary confession leads to the discovery of real evidence, the real evidence is admissible as is so much of the confession as is confirmed to be true by the discovery of the real evidence. - S. 7 Charter also supports the exclusion of derivative evidence that, prior to the Charter, the common law would have received. Principled approach to self-incrimination: - S. 10(b) Charter provides detained persons with right to retain and instruct counsel without delay and to be informed of this right - Even where S. 10(b) is complied with, confessions can still be excluded as involuntary - S. 10(b) imposes both informational and implementational duties on the police o Informational: requires the detainee to be informed both of the right to retain and instruct counsel without delay and of the existence of the legal aid and duty counsel system in place in the jurisdiction. o Implementational: obligation on the police, when the accused has indicated a desire to consult counsel, to provide a reasonable opportunity to do so, including providing privacy for that consultation - R. v. Whittle, equated the standard for waiving the right with the operating mind test - It would be a mistake to confine self-incrimination concepts to established rules. The principle of selfincrimination can be invoked in a variety of contexts to exclude evidence, depending on whether the search for the truth outweighs self-incrimination concerns about the abuse of state power. Illegally and Unconstitutionally Obtained Evidence Obtaining unfairly obtained evidence with Charter breach - Before Grant o Common law generally refused to reject evidence because of how it was obtained o Since the Charter, most illegally obtained evidence subject to potential exclusion. o Court used a fair trial theory held that the admission of unconstitutionally obtained evidence and self-incriminatory evidence would render the trial unfair and should be more prone to exclusion than real evidence. o R. v. Stillman imposed a highly technical analytical structure which created separate tests from the exclusion of compelled conscriptive evidence and non-conscriptive real evidence. Compelled conscriptive evidence was subject to almost an automatic exclusion unless the Crown could prove it was discoverable (ie. That it would have been discovered even without the Charter breach) while a more flexible balancing test was to be used for non-conscriptive real evidence) R. v. Grant rejected this Collins/Stillman approach

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R. v. Grant new authority 2009 for Charter breaches, Three Toronto police officers were patrolling a school area known for a high crime rate, for the purposes of monitoring the area and maintaining a safe student environment. Police observed Donnohue Grant in the area, acting suspiciously. A uniformed police officer went to speak to Mr. Grant, asked him what was going on, and asked him for his name and address. Mr. Grant handed over his identification, and continued acting nervously. He went to adjust his jacket, prompting the officer to ask Mr. Grant to keep his hands in front of him. Worried about the safety of the first officer, the other two officers arrived, identified themselves, and obstructed Mr. Grant's ability to continue walking forward. A conversation took place with Mr. Grant, at which point he advised police he had marijuana and a firearm on him. Mr. Grant was arrested, and the marijuana and a loaded revolver were seized. Mr. Grant was never informed of his right to speak to a lawyer prior to being arrested. o The trial judge found that Mr. Grant was not detained before his arrest, and that section 9 and section 10 of Charter were not infringed. The gun was admitted into evidence, and Mr. Grant was convicted of a number of firearm offences, including transferring a firearm without lawful authority o On appeal, the Court of Appeal for Ontario found that a detention occurred when Mr. Grant began making incriminating statements, and since there were no reasonable grounds to detain Mr. Grant, section 9 of the Charter was infringed. Applying the Collins test, the related Stillman test, and other subsequent jurisprudence, the Court of Appeal found that admission of the firearm would not unduly undermine the trial fairness. As a result, they would not have excluded the firearm, and the convictions were not overturned. The Court of Appeal also noted that moving a firearm from one place to another met the definition of 'transfer'. Effect of Grant o treats statements and bodily samples differently for the purposes of admission o reduces the importance of discoverability o renders the seriousness of the offence almost immaterial under S.24(2) Charter exclusions under S. 24(2) Charter o S. 24(2) empowers Courts to grant remedies for Charter violations where a Court concludes that evidence was obtained in a manner that infringed or denied any rights of freedoms guaranteed by the Charter, the evidence shall be excluded if it is established, having regard to all circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute . o Court has held this section to operate to oblige enforcement authorities to respect the exigencies of the Charter but that it was not intended to punish illegal police conduct. o After Grant, the main concern behind exclusion is seen to be the need to preserve public confidence in the rule of law and its processes

- How to use S. 24(2) (1) apply to the Trial Court and establish on a balance of probabilities that their Charter right has been breached by a state agent The application S. 42(1): an application, to... o Generally dealt with in voir dire o Requirement not always applied rigidly because evidence can come up during course of trial to a court of competent jurisdiction... o Bail hearings and parole boards are NOT competent o Must be a court with competent jurisdiction over person/subject matter brought by anyone whos Charter right has been infringed or denied o (1) must be someones OWN Charter right R. v. Paolitto, accused could not rely on S. 24(2) to exclude handwriting samples that an accomplice wrote in violation of that accomplices right to counsel. o (2) right must be violated by a STATE AGENT R. v. Harrer, statement made to American authorities would not be excluded as evidence because American authorities were not Canadian agents

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R. v. M.(M.R.), school principal was not a state agent when he searched for drugs in a student officer in the presence of a police officer. This is because principal would have searched locker regardless if cop was there or not. (2) if they can, Court will go on to consider whether each of two exclusionary requirements has been met: (i) obtained in a manner Evidence must be obtained in a manner that breached the Charter A generous approach is to be taken, Courts just need to examine whether there is a sufficient connection (given temporal, contextual and/or casual factors) R. v. Wittwer Applicant needs to establish a connection between breach and evidence discovery Determined on a case-by-case basis Where evidence is discovered as part of a chain of events in which Charter breach occurred, connection found. o R. v. Strachan, police with warrant searched his apartment, but failed to tell him of his right to counsel, tries to exclude drugs found from entering evidence. (ii) admission of it in the proceedings would bring the administration of justice into disrepute A court will exclude evidence where breach is serious enough, AND the impact on the Charter right is significant enough, to outweigh societys interest in the adjunction of the case on its merits. Focus of the above should be asking whether condoning the Charter violation by admitting the evidence will be in the LONG TERM interest of maintaining the integrity and public confidence of the public justice system. Firstly, need to gauge: o (1) Seriousness of the breach (SERIOUSNESS) 3 things to take into consideration (a) blameworthiness of the conduct (b) degree of departure from Charter standards (c) presence/absence of extenuating circumstances Focus on the state of mind of the officer. (re: Charter compliance, good faith of officer?) R. v. Grant, seriousness mitigated because police didnt recognize the detained Grant (Good faith) R. v. Burlingham, police purposefully required him to decide to accept a deal before speaking to counsel (Bad faith) Also includes systematic or institutional failures. Will be more serious where there appears to be a pattern in the breach Extenuating circumstances: may affect the seriousness of the breach R. v. Golub, police entered residence without warrant to recover a Uzi machine gun, Court said okay because breach mitigated by the urgent need for public safety o (2) Significance of the impact (IMPACT) Examine the nature and degree of intrusion of the Charter breach into the Charter protected interest of the accused. Varies with the type of evidence sought to be admitted: Statements degree of intrusion HIGH o Unconstitutionally obtained evidence presumptively inadmissible R. v. Grant

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Will not apply if statements made spontaneously and independent from breach, but this must be certain R. v. Auclair Bodily samples DEPENDS on the extent to which the privacy, bodily integrity and human dignity are compromised o R. v. Grant says no presumption favouring the exclusion of bodily evidence. Relatively nonintrusive Non-bodily physical evidence DEPENDS, turns primarily on the matter of discovery and the degree to which the manner of discovery undermines the Charter protected privacy interests of the accused. o Degree of intrusion varies by search o R. v. Golden, SCC said variety of features can change intrusiveness of a strip search inkling, sex of participants, nature of physical conduct, etc. Derivative evidence degree of intrusion will be SIGNIFICANT because usually comes from statements, unless no real impact on Charter interest, or that the evidence would have been discoverable anyways, or if the statement would have been made regardless of the Charter breach. o R. v. Grant, says discoverability may reduce intrusiveness of violation. More discoverable, less impact o (3) Societys interest in adjudication on the merits (SOCIETIES INTEREST) Ask: does the truth seeking function of the criminal trial process better served by the admission of the evidence or its exclusion? Varies according to: (a) reliability of the evidence o No public interest in admission of unreliable evidence (b) importance of the evidence to the case for the Crown. o More crucial evidence is, the more significant the breach must be for evidence exclusion Secondly, need to ask: o whether a reasonable person, fully informed of all the circumstances and the values underlying the Charter, would conclude that the admission of the evidence could bring the administration of justice into disrepute? Not based on immediate reaction to case, but based on the long term interest in maintaining the integrity of and public confidence in, the judicial system Weigh the above 3 part inquiry with this question o This is a balancing act between the two. o Deference should be given to the trial judge where correct factors are weighed. Where error has occurred, appellate court can begin S. 24(2) test afresh. o

Excluding unfairly obtained evidence without Charter breach - Courts can do this - R. v. Harrer discretion referred to as non-S.24(2) unfair trial exclusion. o Where under all the circumstances admission of evidence would render a trial unfair, S. 11(d) Charter imposes a duty on trial judge to exclude it to preserve integrity of trial

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to use this section courts must consider: (1) evidence reliable? (2) whether evidence could be misleading? (3) seriousness of the misconduct? (4) whether accused has to self-incriminate themselves?

Improperly obtained evidence (civil cases) - Common law rules available. Judges also have an exclusionary discretion R. v. Harrison, stopped car in ON with AB license plate. Police said offence not to have front license plate, but okay for AB. Police nonetheless pulled car over because claimed abandoning the detention might have affected the integrity of the police in the eyes of observers. Trial judge did not believe this reasoning. Police ran plates and saw that it was rented in BC and knew that many drug runners rented BC cars. Car was not travelling over speed limit, police found this suspicious. Police searched the car to find a missing drivers license, and found 35kg cocaine. o Evidence obtained in breach of Charter right S. 9 unlawful search and seizure as police began investigation in the absence of reasonable grounds. Breaches led directly to discovery of the evidence. Police conduct showed reckless disregard for Charter rights o Evidence was highly reliable and crucial to the Crowns case, which favoured admissibility. In applying S. 24(2) trial judge erred in admitting the evidence by giving undue emphasis on this 3 rd factor while neglecting the importance of the other inquiries which strongly supported exclusion o SCC gave no deference to trial judge decision and excluded the evidence o The breach was so reprehensible and the breach was so significant that the evidence was excluded o It could not withstand the public interest in the truth seeking function of the criminal trial process o Therefore, excluded on the grounds that the repute of the administration of justice would suffer more from its exclusion than from its admission R. v. Bjelland, accused charged with importing cocaine, possession and trafficking. After a preliminary hearing, Crown provided accused with evidence from two alleged accomplices who were to be called at trial. Accused moved for a stay of proceedings or alternatively for evidence to be excluded on the grounds that his right to make full answer and defence had been prejudiced by the late disclosure. Trial judge ordered the exclusion of the late discovery evidence under S. 24(1) Charter. At trial accused was acquitted. CA set aside acquittal and ordered a new trial on the finding that the trial judge committed a reviewable error by failing to consider whether a less severe remedy than exclusion of the evidence could have cured the prejudice to the accused. o SCC held appeal should be dismissed. The exclusion of evidence under the Charter is only available as a remedy where: (a) late disclosure renders the trial process unfair and this unfairness cannot be remedied through an adjournment and disclosure order, or (b) the exclusion is necessary in order to maintain the integrity of the justice system o Trial judge committed a reviewable error by failing to consider whether the prejudice to the accuseds right to a fair trial could be remedied without excluding the evidence o No evidence that the Crown engaged in deliberate misconduct o Circumstances of this case would have allowed for an adjournment and a disclosure order would have sufficiently addressed the prejudice while preserving societys interest in a fair trial o Accuseds S. 7 Charter right to make a full answer and defence was not infringed by his inability to cross-examine the potential Crown witnesses at a preliminary hearing. Cross examination of a witness at a prelim hearing is not a component of the S. 7 right to make a full answer and defence. Privilege Arises at TRIAL and belongs to the WITNESS Witness can refuse to answer certain questions or refuse to produce certain documents Descoteaux v. Mierzwinski, definition: SCC recognized that a privilege or right to confidentiality was a substantive rule giving a person protection from disclosure of communications outside the trial setting Privilege is inimical to the search for truth in that it leads to the loss of otherwise relevant and reliable evidence

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(1) (2) (3) (4) -

Compelling reasons must exist for privilege to be recognized. Must be an overriding social concern or value that warrants the loss of probative evidence. (more a matter of policy than of proof) Wigmore gave 4 conditions for determining privilege (utilitarian approach to test) communication must originate in confidence that it will not be disclosed element of confidentiality must be essential to the maintenance of the relation between the parties community must view the relationship as one that should be fostered the injury that would occur from disclosure must be greater than the benefit gained for the correct disposal of litigation Court accepted the Wigmore test as a general framework

Class v. Case-by-case privilege - R. v. Gruenke, distinguished the two privileges Class privilege - Prima facie presumption that communication is privileged and inadmissible - Party wanting admission must show why communication should not be privileged - Two most significant: at common law (1) solicitor/client; at statute (2) spousal communications Case-by-case privilege - Prima facie assumption that communication is not privileged and admissible - Adopted Wigmores framework, this is now the test (as above)

Waiver of privilege - Right to waive belongs to its holder o Where a witness is the holder, none of the parties have the right to assert the privilege, and none of the parties are harmed if a trial judge erroneously overrides a witnesss claim for privilege o Should a trial judge erroneously uphold a privilege, evidence has been lost, this loss may give the party deprived of the evidence a ground of appeal - Waiver must be clear and in complete awareness of the result R. v. Perron - Waiver must be express or by implication o Implied waivers will require the disclosure of information - Fairness dictates that a party cannot use privilege both as a sword and a shield to waive when it inures to her advantage, and wield when it does not. Bone v. Person Inadvertant disclosure of privileged information - Disclosures which are unintentional, they do not constitute waiver of privilege - Nevertheless, common law says privilege is lost and communication is admissible o Rumping v. D.P.P., accused was convicted of murder. He wrote a letter to his wife confessing, which was intercepted and admitted to evidence. - Modern decisions are stricter, they give greater protection to privileged communication both inside and out of courtroom. o Celanese Canada Ltd. V. Murray, a number of cases where solicitors are removed as solicitors of record when they become aware of and use privileged documents sent to them by mistake. - Civil cases, inadvertent disclosure can be used where communications are important to outcome of the case and there is no reasonable alternative form of evidence that can serve the same purpose (Metcalfe v. Metcalfe) Class privilege Common law Statute - Solicitor-client privilege - Spousal privilege - Litigation privilege - Settlement negotiation privilege Class privilege Common law - Solicitor-client privilege Case-by-case privilege Common law Wigmore criteria (as adopted in Greunke, Slavutych v. Baker, M.(A.) v. Ryan)

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o o o o o

o o o o o

o o

o o

A communication between a solicitor and a client, of a confidential nature, and related to the seeking, forming or giving of legal advice, is privileged information There is no privilege for communications that are of themselves criminal or made with a view to obtaining legal advice to facilitate the commission of a crime or fraud Privilege may also be overridden where it would result in the withholding of evidence that might enable an accused to establish his innocence or where public safety is at risk. Privilege belongs to the client, not for solicitor to waive. Can only waive when authorized by client to do so. Wigmore outlined the scope of solicitor-client privilege as follows (approved by SCC in Descoteaux v. Mierzwinski) (1) Where legal advice is sought... (2) from a professional legal adviser in his capacity as such... (3) the communications relating to that purpose... (4) made in confidence... (5) by the client... (6) are at his instance permanently protected... (7) from disclosure by himself or by the legal adviser... (8) except where the protection is waived This privilege protects confidential communications that arise on contact, no need for a formal retainer. Clients contacts with the lawyers secretary or clerk are also privileged, so long as the purpose of the contact is the seeking of legal advice. casual conversation will not suffice, must be perceived as professional one (Cushing v. Hood) this privilege will protect communications where legal advice is sought, will not protect advice given by lawyers on matters outside the law. Communications must be intended to be confidential. Things like presence of an unnecessary 3rd party in a meeting would undermine this intent. Lawyers can have more than one client, so long as information is shared with common interest parties, it is acceptable. common interest exception Where a dispute arises between parties, the privilege is inapplicable and the respective parties may demand disclosure (R. v. Dunbar) No search warrant can be issued with regards to documents that are known to be protected by solicitor-client privilege (R. v. Fink) However, Court rejected the distinction between fact and communication. Court adopted a functional approach; was sufficient that the fact arose out of the solicitorclient relationship and is connected to that relationship Identity of a client may or may not be privileged depending on the circumstances (ie. Hit and run driver goes to lawyer to protect identity) Privilege cannot shield clients from disclosing otherwise non-privileged material (ie. Financial records sent to lawyer to avoid tax audit) Also, the privilege does not apply to documents that existed prior to the solicitor-client relationship Privilege does not apply to physical objects, because these are non-communications. A lawyer is not a safety deposit box. The Paul Bernardo video tapes illustrate this. Although Murrays discussions with Bernardo about tapes were privileged, videotapes existed pre client relationship and were not covered by privilege (R. v. Murray) Privilege survives the relationship, once privileged, always privileged. Exceptions are wills. Communications in furtherance of crime or fraud The privilege will not protect communications that are in themselves criminal or else are made with a view to obtaining legal advice to facilitate the commission of a crime. (Descoteaux v. Mierzwinski) Key will be clients intent and purpose. Law will not punish clients seeking legal advice in good faith regardless if transaction turns out to be illegal (R. v. Shirose) Distinction made between future and past crimes

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The privilege WILL NOT extend to communications where the clients purpose is to commit a future crime or fraud The privilege WILL protect communications involving the litigation of past crimes, and seeking of legal advice to avoid committing future wrongs. Privilege will not protect disclosure evidence about abuse of process or similar blameworthy conduct (Blank v. Canada)

Exceptions to solicitor-client privilege (A) Innocence at stake exception Privileges will yield to the accuseds right under S. 7 of the Charter to make full answer and defence, where they stand in the way of an innocent person establishing his or her innocence. The McClure test, consists of two tests: **FIRST see whether a solicitor/client privilege applies, THEN ask if accused has first hand knowledge of what material contains, cannot be speculative. (this should be asked within the tests)** this was added by R. v. Brown o Should only apply McClure at the end of Crowns case, to let judge better assess evidence o If the test needs to be applied, go to pg. 233 to see a list of safeguards the judge needs to apply in doing test. Following this, then apply the two tests o (A) The threshold test: (1) Accused must establish that the information he seeks from the solicitor-client communication is not available from any other source; and (2) he is otherwise unable to raise a reasonable doubt. If the threshold test is not met the privilege stands and the judge need go no further. If the threshold has been satisfied, the judge should proceed to the innocence at stake test.

(B) The innocence at stake test: Stage 1: the accused seeking production of the solicitor-client communication has to demonstrate an evidentiary basis to conclude that a communication exists that could raise a reasonable doubt as to his guilt (LESS STRICT) Stage 2: if such an evidentiary basis exists, the trial judge should examine the communication to determine whether, in fact, it is likely to raise a reasonable doubt as to the guilt of the accused (MORE STRICT) o It is important to distinguish that the burden in the second stage of the innocence at stake test is stricter than the first stage (B) Public safety exception Smith v. Jones, accused charged with assault on a prostitute. Counsel referred him to a psychiatrist. Doctor informed counsel that accused was dangerous individual and would more than likely commit future offences (told doctor his plan to rape and kill prostitutes). Solicitor-client privilege applied because doctor acting as lawyers agent in interviewing and assessing client o recognized this exception to solicitor client privilege when public safety is involved and death or serious bodily harm is imminent, solicitor-client privilege should be set aside. o In determining when public safety outweigh privilege, 3 factors to consider: (1) is there a clear risk to an identifiable person or group of persons? (2) is there a risk of serious bodily harm or death? (3) is the danger imminent? o

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Litigation privilege (aka. Solicitor third party, or anticipation of litigation privilege) o Communications between a lawyer and 3rd person are privileged if at the time of making the communication, litigation was commenced or anticipated and the dominant purpose for the communication was for use in, or advice on the litigation. Ex. In a PI action the lawyer for the plaintiff hires an investigator to find and interview potential witnesses to the accident. The investigator uncovers a number of witnesses and obtains signed statements from each. The material is protected by way of litigation privilege o Distinct from solicitor client privilege in several ways: Underlying rationales are different, Litigation privilege is temporary, Litigation does not require communication to be made in confidence, etc o Litigation privilege is designed to establish a zone of privacy for the preparation of litigation and no more o Less sacred then solicitor-client privilege R. v. Uppal o Litigation privilege aims to foster an adversarial process, solicitor-client aims to preserve the relationship o Blanks v. Canada key case, Man wanted documents relating to a case where the government tried to sue him for pollution. Crown said it was protected under solicitor client privilege. Court decided it was litigation privilege that ended with the litigation. However, in this case, litigation was still ongoing because it was same matter and litigation privilege continued However, Court decided that this civil litigation sprung from a different judicial source and was unrelated to original criminal prosecution and documents therefore not caught by litigation privilege per SCC. It has been found that litigation privilege arising from a civil case was not protected in a criminal prosecution arising from the same incident Waugh v. British Railway, wifes husband killed in train crash. Internal report filled out which had a heading saying information for boards solicitor. Defendant board claimed the report was protected by solicitor/client privilege. Purpose of report was twofold (1) railway operation safety, and (2) obtaining advice in anticipation of litigation New test emerged: A document may be prepared with more than one purpose in mind, but the dominant purpose must be that of litigation before privilege will attach. Status of the copies of otherwise public or non-privileged documents If the originals are not privileged, should the copies, now in the lawyers brief, be privileged? 2 major responses: (1) Hodgekinson v. Simms majority found that copies can be privileged on the principle that counsel needs to be able to prepare the articles in confidence and know that the information they collect is protected. (2) Regional Municipality of Ottawa Carleton v. Consumers Gas Ltd. should not be an all or nothing fashion. One side wanted disclosure from the other for corporate search records and copies of articles and papers which were a result of those searches conducted by counsel. Court held both were privilege, yet they were two different types of material and should be dealt with differently. As a matter of principle, copies of documents, merely collected or gathered by the lawyer for the potential use in the litigation should not be privileged. That would include the corporate search results above. If it involves a selective copying or results from research or the exercise of skill and knowledge on the part of the solicitor, then privilege should apply. The implied undertaking rule: Documents disclosed on discovery are not free to be used by the receiving party for purposes other than the present litigation

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Documents are subject to an implied undertaking that they will only be used in the present action whatever is disclosed in the discovery room, stays in the discovery room unless later disclosed in a court room or by judicial order (Juman v. Doucette) Does not end with litigation, litigants privacy interest continue? Juman v. Doucette, SCC confirmed that there is an implied undertaking by parties in a civil litigation to keep information obtained in pre-trial discoveries confidential. A party to the proceedings may not use this evidence for any other purpose than that required for the conduct of the litigation and may not share it with others outside of this purpose without a court order. o this is so even when a party believes the discovery evidence reveals criminal misconduct on the part of the other party. o The SCCs concern, particularly in the criminal context, is that discovery testimony is statutorily compelled and to allow disclosure of this evidence to police undermined the right to silence and protection against self-incrimination granted under criminal law. o The court retains the discretionary power to grant an exemption or variation of this undertaking if there is a public interest in disclosure that outweighs the interests of privacy, efficient conduct of civil litigation and protection against self-incrimination o SCC further held that the implied undertaking only applies to the parties to the action and not to other parties. The police may still obtain this evidence through usual procedures, such as subpoenas or a search warrant. o In situations where there is a serious and immediate danger, a party may be justified in going directly to the police without the need for a court order.

Settlement negotiation privilege o There exists a class privilege to protect settlement discussions. They must be made during the course of settlement negotiations, for the purpose of settlement, and are not intended to be disclosed or used against the parties should the negotiations fail. o Fundamental purpose is to encourage settlement o Subject to exceptions Where the existence of an agreement, or the terms of a settlement are at issue, or the negotiation discussions give rise to a cause of action o generally oral, or written communications made during settlement discussions are not admissible in evidence o most leading cases in this realm are civil but they should equally apply to criminal cases such as R. v. Bernardo o R. v. Gruenke, it was observed that a class privilege would only be appropriate where the protected communications are essential to the effective operation of the legal system and that such communications are inextricably linked to the legal system with the very system which desires the disclosure of the communications The privilege will be recognized when 3 conditions exist: (1) A litigious dispute must be in existence or within contemplation (2) The communication must be made with the express or implied intention that it would not be disclosed to the Court in the event of failure (3) The purpose of the communication must be to attempt a settlement o Histead v. Law Society, in letters between two lawyers about the appointment of a case management judge, one lawyer made bad remarks about a number of judges, the letters were marked by him strictly confidential and without prejudice. The other lawyer sent the letter to the law society. CA said the letter was admissible to the proceedings as they had nothing to do with the settlement in question. Words like without prejudice etc doesnt necessarily protect one.

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Overriding the privilege The onus lies on the party seeking the disclosure and they must show compelling policy reasons An applicant for disclosure will have to demonstrate that there are compelling policy reasons to invoke an exception to the general rule. Where the communication is not to be used against the maker and theres compelling public policy purpose, the rule is not triggered and the Courts are more inclined to allow it Meyers v. Dunphy list of exceptions recognized: whether without prejudice communications have resulted in a concluded compromise agreement to show that an agreement apparently concluded between the parties during negotiations should be set aside on the ground of misrep, fraud, or undue influence where a clear statement made by one party and on which the other party is intended to act and does in fact act, may be admissible as giving rise to estoppels if the exclusion of the evidence would act as a cloak for perjury, blackmail, or other unambiguous impropriety, but such an exception should only be applied in the clearest case of abuse of a privilege occasion. In order to explain delay or apparent acquiesce in responding to an application to strike out a proceeding for want of prosecution but use of the letters is limited to the fact that such letters have been written and the dates at which they were written. Whether the claimant had acted reasonably to mitigate his loss in conduct and conclusion of negotiations for the compromise proceedings brought by him Where an offer is expressly made without prejudice except as to the costs The court warned that these exceptions shouldnt be allowed mechanically, must look at the facts of each case. Don Santos v. Sun Life Assurance, plaintiff reached a mediated settlement for injuries of a car accident. SL provided long-term disability benefits to the plaintiff and had subrogated claim to monies recovered. A global settlement sum was revealed. SL wanted to know the portion attributed to long-term disability. The plaintiff claimed privilege over the settlement discussions and break down of the global sum. it was accepted that such discussions were caught by settlement privilege but an exception was found based on public interest to prevent excessive and unjust enrichment. Certain guiding factors in finding an exception If the settlement or discussions surrounding a settlement are at issue, then presumably the privilege does not apply (R. v. West Fraser Timber Co.) Relevancy and prejudice need to be considered o Where settlement discussions are being introduced as admissions courts are more protective than if the discussions have another relevancy There needs to be a compelling public interest to override the protection.

Statute law - Spousal privilege o No husband is compellable to disclose any communication made to him by his wife during their marriage, and vice versa The privilege is provided for in S. 4(3) CEA o This covers only married couples... but in AB provincial legislation covers common law couples o Competency v. Privilege Competency may prevent the person from testifying at all Privilege, person must testify but may refuse to answer certain questions under the claim of privilege. o R. v. Zylstra, prior to calling the spouse of the accused, the defence sought an advance ruling as to whether a spouse could assert privilege under S. 4(3) CEA. Ontario CA held that privilege could be asserted, but that it would have to be asserted in the presence of the jury or else the jury will wonder why the Crown hadnt asked obvious questions. Laid down suggested instruction informing jury that all married witnesses are entitled to the right; and

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the privilege is one that belongs to the witness not the accused. Protects communications made DURING the marriage, and ends with the marriage. Protects against any communication, but it is important to distinguish between ordinary statements and those that are intended to be confidential Wigmore argues that it should be confined to protect confidences only but the statute doesnt confine privilege to confidential communications and there is authority that privilege protects all communications. Gosselin v. R, SC refused to give communication a broad interpretation and held that the section did not make privileged a spouses observations R. v. Couture, can the accused claim privilege of their spouse? No, its only held by the spouse receiving the communication so they theoretically can waive it.

Case-by-case privilege - SCC denied creation of blanket privilege for religious ( Gruenke) or psychiatric (M.(A.) v. Ryan) communications - The Wigmore four o (1) communication must originate in confidence that it will not be disclosed o (2) element of confidentiality must be essential to the maintenance of the relation between the parties o (3) community must view the relationship as one that should be fostered o (4) the injury that would occur from disclosure must be greater than the benefit gained for the correct disposal of litigation (balance) - A.M. v. Ryan (provides a good example of how the Wigmore four is applied) o Appellant underwent psychiatric treatment from Dr. Ryan, who sexually assaulted her. As a result, had to see psychiatrist Dr. Parfitt. Concerned that communications between her and Dr. Parfitt remain confidential. In sexual assault case against Dr. Ryan (appellant suing for damages), Dr. Ryan asked for Dr. Parfitts notes. Dr. Parfitt claimed privilege for her notes o Applied Wigmore (1) Confidence: the mere possibility that the communications might have to be divulged does not change the fact that they were made in confidence (2) Essential to the relationship: consider both the particular relationship at stake & the generic relationship. Here, a strong case for essentiality if confidentiality broke, patients treatment can cease and distrustfulness exacerbated. (3) Relationship the community wishes to foster: The mental health of the citizenry, no less than its physical health, is a public good of great importance. Here, community is equated with Canadian public. (4) Balancing: injury caused by upholding the privilege (protection) outweighs injury caused by disclosure??? Consider the short term interests of the immediate parties and long term injury to the generic professional relationship Charter values such as the right to privacy (S. 8) and equality (S. 15) are relevant here Failure to protect confidential communication perpetuates disadvantages felt by sexual abuse victims privacy concerns are heightened. o Court ordered partial disclosure of Dr. Ps notes Where justice requires that communications be disclosed, court should consider qualifying the disclosure by imposing limits aimed at permitting the opponent to have the access justice requires while preserving the confidential nature of the documents. Here, privacy interests are STRONG, but documents are important in determining whether Dr. Ryans act really affected the appellant. o In addition, privilege is less likely to be protected in a criminal case, and that in the vast majority of criminal cases the public interest in the correct disposal of charges will prevail. - Producing documents o If the document must be produced to get at the truth and prevent an unjust verdict ,the court must permit production (M.(A.) v. Ryan) o If documents MUST be produced despite the privilege claim to get at the truth and prevent an unjust verdict, it must permit production to the extent required to avoid that result; reject all-ornothing approach (Jaffee v. Redmond) - R. v. National post

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Court held that when a journalist obtains information, even on an iron-clad promise of confidentiality, the identity of the informant is presumptively compellable and admissible. It is subject only to a common law privilege, the existence of which is to be adjudicated on a case-by-case basis. Case-by-case assessment turns on balancing two public policies in collision (A) protecting the sanctity of information gathering by the press, in order to protect democratic institutions and social justice. (B) making information available for the prosecution of crimes and civil actions The trade off is effected by requiring the journalist claiming privilege to prove the Wigmore 4.

Protection of third-person records in criminal cases - In criminal cases the Crown has a duty to turn over all relevant information to the defence - Third parties have no such duty - The accused must apply to the court for the production of third party records - Two regimes: for sex offences (statute) and for non-sex offences (common law) o For non-sex offences, R. v. OConnor two step procedure will apply o In sex offence cases there are special legislated procedure the accused must comply with before the trial judge orders a complainant or witness to produce specified record to the accused S. 278 CC - In criminal cases, the threshold of relevancy is low, if the information is of some use to the defence or help them raise a defence, then it should be disclosed, regardless of any claim of privilege (R. v. OConnor) Common law (non-sexual offences), R. v. OConnor o This was the first attempt by the SC to strike a balance between an accuseds right to full answer and defence and a third partys right to privacy. o Outlined a procedure here that would only be necessary if there is a reasonable expectation of privacy by the third party. (1) the accused must convince the trial judge that the information sought is likely to be relevant The threshold for relevant is significant but not onerous, the threshold here was set to prevent the defence from going on fishing expeditions If the trial judge is satisfied it is likely to be relevant, then the information is produced to the trial judge for review (2) the trial judge is to examine the records to determine whether, and to what extent, they should be produced to the accused. Here the trial judge balances competing interests Legislation: third-party records in sexual offences o These are essentially a product of the rape shield laws. Below is a sample of S. 278 just for understanding:

Production of record to accused S. 278.2(1) CC no record relating to a complainant or a witness shall be produced to an accused in any proceedings in respect of certain offences... Insufficient grounds (4) any one or more of the following assertions by the accused are not sufficient on their own to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify: (a) that the record exists; (b) that the record relates to medical or psychiatric treatment, therapy or counselling that the complainant or witness has received or is receiving; (c) that the record relates to the incident that is the subject matter of the proceedings; (d) that the record may disclose a prior inconsistent statement of the complainant or witness; (e) that the record may relate to the credibility of the complainant or witness; (f) that the record may relate to the reliability of the testimony of the complainant or witness merely because the complainant or witness has received or is receiving psychiatric treatment, therapy or counselling; (g) that the record may reveal allegations of sexual abuse of the complainant by a person other than the

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accused; (h) that the record relates to the sexual activity of the complainant with any person, including the accused; (i) that the record relates to the presence or absence of a recent complaint; (j) that the record relates to the complainants sexual reputation; or (k) that the record was made close in time to a complaint or to the activity that forms the subject-matter of the charge against the accused. S.278.5(2) lists eight factors to consider, five of which came from the majoritys judgment in OConnor (a) the extent to which the record is necessary for the accused to make a full answer and defence; (b) the probative value of the record; (c) the nature and extent of the reasonable expectation of privacy with respect to the record; (d) whether production of the record is based on a discriminatory belief or bias; (e) the potential prejudice to the personal dignity and right to privacy of any person to whom the record relates; (f) societys interest in encouraging the reporting of sexual offences; (g) societys interest in encouraging the obtaining of treatment by complainants of sexual offences; and (h) the effect of the determination on the integrity of the trial process The legislation is broad in scope, applies to both complainant and witnesses record is defined as any form of record that contains personal information for which there is a reasonable expectation of privacy o reasonable expectation of privacy broken down to two components Subjective: if the complainant or witness does not have an expectation of privacy in a record, it will not be protected Objective: the subjective expectation must be reasonable If the records have already been turned over to the Crown, they are not to be disclosed to the accused unless the complainant or witness waives their protection or the trial judge orders protection R. v. Mills, upholds the OConnor test (that S.278.1 S.278.91 CC rejects) o Similar two-step procedure, but different in substance (1) the accused must convince the trial judge to review the record If the trial judge is satisfied it is likely to be relevant, then the information is produced to the trial judge for review o S. 278.3(4) as above, lists 11 assertions that are not sufficient on their own to establish that the record is likely relevant Trial judge must be convinced that the production of the record to the judge for inspection is necessary in the interests of justice o Requires the trial judge, without seeing the record, balance the accuseds right to make full answer and defence against the right to privacy and equality of the complainant or witness. S. 278.5(2) as above, lists 8 factors to consider in light of this requirement **Under the original OConnor procedure, this balancing would only occur in step two, after the judge has decided to review the material (2) the trial judge is to examine the records to determine whether, and to what extent, they should be produced to the accused.

Public interest immunity - Government documents and information may be protected from disclosure when a judge determines that the public interest in preserving the confidentiality of the information prevails over the public interest in seeing that litigants have access to all relevant evidence. - Public interest immunity different from privilege in 3 ways: o Protection is not owned by Crown. Trial judge can grant it without Crown asking in the name of public interest o Crown cannot waive the protection o Primary purpose: protect info and NOT the relationship; once protection granted, no secondary sources may reveal the info (Snider)

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S. 38 CEA is a privilege because it is designed to prevent injury to international relationships (among other things) Origins found in common law, further developed by statute: o Common law Immunity available in both civil and criminal actions Civil: if protection is rejected, then state must disclose the information Criminal: if protection is rejected, Crown must either disclose or stay the charges Gave protection to a broad array of government and public body interests, security concerns, cabinet decision making and police matters. Types of objections: Class objections: protecting certain types of documents, like cabinet discussions which, through the candour argument the government seeks to protect to ensure full, frank and free discussion of public matters rarely successful Content objections: protecting specific info in documents R. v. Carey, key case civil action that revolved around the failure of a resort in NW Ontario, in which the government had become involved. Carrey alleged breach of contract and deceit against the government. He subpoenaed various Cabinet documents that dealt with the funding of the resort. Govt claimed these discussions as protected by class. the best way for a judge, where doubt exists, to balance competing interests is to look at the disputed documents and see what they actually contain provided a list of considerations in balancing competing interests o the level of decision making; o the nature of the policy discussions; o the particular contents of the documents; o the time when the document or information is to be revealed; o the importance of the case; o the need or desirability of producing the documents to ensure that the case can be adequately and fairly presented; o whether or not the allegations involve government misconduct; and o the ability to ensure that only the particular facts relating to the case are revealed. Carey represents a move away from government secrecy to more openness. The common law applies to matters within PROVINCIAL jurisdiction and to claims of privilege brought by the provincial government. Federal relies on CEA, but the common law has not been entirely displaced by the legislation. Legislation: Canada Evidence Act (CEA) S. 37: Issues of a specified public interest Deals with the protection of information relating to specified public interest Objection can be taken on any ground of public interest specified in the objection The application is heard in a superior or federal court Concerned with disclosure of information. It is REACTIVE, in the sense that it is designed to prevent disclosure of objected to information. It does not protect already disclosed information Balancing of the public interest in disclosure against the importance of the specified public interest R. v. Pilotte, Ontario CA held that a S. 37 application was a separate and distinct proceeding from the trial proper S. 38: National security issues More aggressive provision, dealing with national security questions Imposes obligations on the Crown, defence, plaintiff, defendant, or on any government official from whom disclosure is sought, to notify the AG of Canada in writing of any

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possibility that sensitive information or potentially injurious information is expected to be disclosed during a proceeding The judge MUST prevent the disclosure once they are made aware of it. o S. 38.06, judge hearing the app must decide (1) whether the info may reasonably be useful to the defence, if so (2) whether disclosure would injure one of the three protected interests; if so (3) whether public interest in disclosure outweighs public interest in nondisclosure o Party seeking disclosure bears burden of demonstrating why public interest tips in that partys favour (Khawaja) Either the AG or the Minister of National Defence is empowered to authorize the disclosure of the information. The hearings shall be heard in PRIVATE, S. 38.11(1) o The application is a confidential ex parte application, and only ex parte (Toronto Star Newspaper v. Canada) The court held that the mandatory requirement to exclude public from sessions when there existed no risk that national security info or foreign confidences could be disclosed was overbroad and violated open court principle. There are three issues that must be determined, found on page 274. S. 38.13 provides the AG of Canada with an override power, in the form of a certificate, if the judge conducting the hearing or appeal does order disclosure o The cert lasts for 15 years and can prohibit the relevant judge from disclosing the information, or provide terms for disclosure. o The Federal Court of Appeal judge can override this certificate. S. 39: Cabinet and committee information Was not amended under the Anti-Terrorism Act, unlike S. 37 and 38. It protects confidences of the Queens Privy Council for Canada, essentially cabinet and committees of cabinet. o Confidences: proposals, recommendations, discussion papers, agenda, deliberations, decisions, communications between ministers relating to government decisions or policy and draft legislation A minister or Clerk of the Privy Council files a cert with the court indicating that the info falls with the class. Babcock v. Canada, S. 39 provides greater protection than at common law. Once info is certified it shall not be disclosed. No balancing of interests between the need for confidentiality and the need for disclosure o Four principles were identified by the SC, listed on page 275.

Protection of informants identity - The common law protects the identity of an informant from disclosure in a criminal or a civil proceeding. - This is recognized as a fixed rule. Subject only to one exception: imposed by the need to demonstrate the innocence of an accused person. - Named Person v. Vancouver Sun, a person was subject of an extradition hearing. He claimed that he was a confidential police informer. The media sought to publicize details of the proceeding and to have access to the information alleged to be protected by privilege. The media argued that the informant privilege rule was discretionary o SC rejected this, the rule is MANDATORY. Policy reasons, it would encourage people to be informers if they were protected. There shouldnt really be a balancing of interests in these cases because the public policy reason is too strong. - In determining whether the accuseds innocence is at stake, the courts are utilizing the innocence at state test from the SCC in R. v. McClure (Exceptions to solicitor/client privilege) (1) the accused must show some basis to conclude that without the disclosure sought his or her innocence is at stake (2) if such basis is shown, the court may then review the information to determine whether, in fact, the information is necessary to prove the accuseds innocence

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(3) if the court concludes that disclosure is necessary, the court should only reveal as much information as is essential to allow for proof of innocence (4) before disclosing the information to the accused, the Crown should be given the option of staying the proceedings (5) if the Crown chooses to proceed, disclosure of the information essential to establish innocence may be provided to the accused. IV. Evidence about other Evidence (Proving the Credibility of Lack of Credit of Other Evidence) Demeanour It has been said that one of the great virtues of trial is for a judge to witness how a person acts and assess whether they are telling the truth. However, in recent studies it was found that judges and lawyers scored very low in studies which allow them to pick out liars. The issue is not the sincerity of the witness, but the readability of the witnesses testimony. Demeanour alone should not suffice to found a conviction where there are significant inconsistencies and conflicting evidence on the record: o R. v. Norman, charged with raping 13 year old, Trial judge found that the complainant was a credible witness and accused was convicted even though the rape occurred 20 years ago and she only remember snippets of it which she discovered through therapy. Trial judge determined credibility solely on the basis of demeanour. She was a presentably and good mannered witness. Court overturned this. They said credibility based on demeanour alone is not good enough, especially in a case where there are many inconsistencies. The issue is not merely whether the complainant sincerely believes the evidence to be true, but also whether the evidence is reliable. o the law does not clothe the trial judge with a divine insight into the hearts and minds of witnesses OHalloran J.A. Discrediting witnesses Collateral facts rule o Prevents the calling of evidence to contradict the answers of an opponents witness, whether given in chief or on cross-examination, on collateral matters o What constitutes as a collateral fact is open to debate. Two general approaches (1) Wigmore test: could the fact, as to which the error is predicated, have been shown in evidence for any purpose independent of the contradiction? (2) Phipson test: proof may only be given on matters relevant directly to the substantive issues in the case. Proof of contradiction going to credibility is prohibited unless it falls within certain exceptions Canadian approach, long tradition A Proposal: the allowing of evidence to contradict a witnesss testimony is a matter best left to the discretion of trial judge. In exercising this discretion, the trial judge is weight the benefits of receiving the evidence against any potential prejudice caused. Contradiction should be allowed where probative value and nature of contradictory evidence is such not outweighed by counterbalancing policy concerns and in the case of defence evidence, counterbalancing concerns must significantly outweigh the value in receiving the evidence o The contradiction usually arises from an answer given in cross-examination, so the rule is often stated: A witnesss answer on a collateral matter to a question asked in cross-examination is final The rule is NOT CONFINED to answers given in cross-examination, it applies to the contradiction of any answers, whether provided in chief or on cross-examination o Primarily it is a rule on trial efficiency because it limits the calling of evidence Allowing proof on collateral matters may confuse the trier of fact by engaging distracting side issues, may take undue time to develop, and may unfairly surprise a witness who will not be prepared to answer the collateral evidence. o It limits the CALLING OF EVIDENCE, not the asking of questions in cross-examination. R. v. Cassibo, the rule contemplates that counsel may cross-examine a witness with respect to collateral matters.

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R. v. W.(B.A.) and Meddoui are affirmations of the discretion that judges have to prevent questioning where PE would outweigh PV. Questioning in both cases prohibited because collateral and relevance was tenuous R. v. B. (A.R.), man accused of sexually abusing daughter for 13 years. Came down to his word v. Hers. Defences wanted to call other family members to stand who had also committed offences against her. (reinforces Phipson test) Evidence correctly excluded by trial judge. Justice Finlayson cited Phipson test with approval and interpreted Wigmores test as a fixed list of exceptions. Therefore, because the evidence was not of the right type it was excluded. You cannot impugn a witnesses credibility by contradicting matters which are collateral even in a case where the core issue is credibility Generally recognized exceptions Bias, interests, or corruption; A.G. v. Hitchcock, accepted that partiality, bias or corruption colours a witnesses entire testimony. Therefore, such evidence is always relevant and is not collateral o Had the defendant proof that the witness had actually received a bribe, the proof would have been allowed. Witnesses are no longer barred from testifying because of some interest they may have in the outcome of the litigation. If the witness admits bias, that should be the end of it. o R. v. Ghorvei, it is not proper to cross-examine a witness on the fact that his testimony in a prior case has been rejected o R. v. Ellard, whether there exists a motive to lie can be a relevant consideration in assessing the credibility of a witness. Previous convictions; any witness, including the accused, may be questioned as to prior convictions. o Court has a discretion to disallow such questions weighing the PV of the evidence against PE. o The fact that conduct has resulted in a criminal conviction will usually enhance the PV of the cross-examination Recognized under statute and allows for questioning on prior convictions. Should the witness deny or refuse to answer, the cross-examining party may then prove the convictions. S. 12 CEA provides any witness, including accused may be questioned about previous convictions. If deny fact, cross-examination can prove it. Prior convictions may bear on credibility Accused can only be questioned about fact of conviction, not circumstances. o conviction does not include discharges or findings of misconduct in a disciplinary proceeding Judges have the DISCRETION to allow cross-examination on prior convictions. It is for the accused to show that the prejudice is such that to allow the crossexamination would undermine the accuseds right to a fair trial. R. v. Corbett, advanced 4 factors to be considered in exercising judicial discretion. (1) nature of previous conviction Perjury/fraud more telling about honesty and integrity than assault (2) how similar previous conviction is to offence charged Concern for prejudice (3) remoteness or nearness of previous conviction Old convictions should generally be excluded (4) fairness, where accused attacked credibility of Crown witness, their credibility becomes issue Puts his own character at issue.

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Corbett application to be made by defence prior to calling evidence and after close of Crowns case. o This is because defence has a right to know whether or not the accuseds prior convictions will be raised in cross-examination and will usually determine whether accused will testify. o A voir dire should be held to settle this matter. Defence provides the context for the evidence they will call in order for judge to assess PV over PE raised by prior convictions. o HOWEVER, R. v. Underwood, clarifies that the purpose of the voir dire is not defence disclosure, all that is required is a context. (Defence doesnt have to reveal EVERYTHING, just bare basics) o If the judge rules that cross-examination should be allowed, the defence may then decide not to call the accused or to call the accused and raise the prior convictions in examination in chief in order to soften the blow. Corbett applications are allowed in civil cases as well, although the liberty interest of an accused may not be at stake, there still remain valid concerns about prejudice Evidence of reputation for untruthfulness; or Common law recognized the practice of allowing evidence of bad reputation to discredit a witnesss testimony. R. v. Clarke, Witness called to impeach the credit of another asked many questions o Do you know reputation of witness to tell truth in community? Yes go on o Reputation good or bad? Bad go on o From your knowledge would you believe the witness under oath? Witness was not to give evidence of specific acts. R. v. Gonzague, Ontario CA held that it was permissible to have the witness express a personal opinion as to the veracity of another witness R. v. Taylor, Ontario CA allowed these credit witnesses to testify as to the basis of their opinion, which may involve specific incidents. Expert evidence on problems that could affect the reliability of the witness evidence. experts can be called to show physical or mental problems which make witness unable to give reliable evidence (Toohey v. Metropolitan Police Commissioner) UK case

Prior inconsistent statements of opponents witness o Witnesses may be impeached using prior inconsistent statements. o The prior inconsistent statements go only to credibility or reliability and are not evidence of their truth unless they are adopted by the witness, or it is admissible under a hearsay exception o Before counsel will be allowed to contradict a witness by proving a prior inconsistent statement, fairness demands that the statement be put to the witness. o S. 10(1) and 11 CEA governing questioning of PIS generally requires cross-examination to give witness notice of statement and give them an opportunity to explain or contradiction the inconsistency either in cross-examination or re-examination. o Impeachment of witness involves 4 steps: (1) Counsel has the witness confirm the present testimony The purpose here is to make the testimony clear in order to highlight the inconsistency (2) the witness is then confronted with the making of a prior statement Written: shown the statement and provided with a copy of it Oral: circumstances of the supposed statement, sufficient to designate the particular occasion must be put to them (3) the prior inconsistent statement is then put to the witness showing the contradiction Usually the cross-examiner reads the prior inconsistent statement out loud for the record, the court, and the witness (4) finally the witness may be asked to adopt the prior inconsistent statement for its truth.

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If the witness refuses to do so, then the statement goes only to credibility, unless of course the witness is a party or an accused, which makes the statement admissible for its truth as an admission. Not every inconsistent statement may be proven This clause is meant to prevent contradiction on collateral matters. Proof of inconsistent statements confined to those relating directly to a fact in issue or to matters that are relevant to credibility. Bolstering your own witnesses

The rule prohibiting bolstering - As a general rule, a party may not ask questions or present evidence solely to bolster the credibility of his own witness o Concern that to allow this would take an undue amount of time and create distracting side issues. - As a general rule, a party cannot initiate evidence solely to establish that his witnesses are credible. Evidence must be about the primarily material issues in the case, not about other evidence in the case. - R. v. Siu, police officer testified that he believed the Crown witness. Then he testified to that his belief was based in part on the offer of the Crown witness to take a polygraph test. o The rule was breached by both of these events. Where a party leads inadmissible evidence to support the credibility of one of its witnesses, the trial judge should immediately tell the jury to disregard. - Until their credibility has been made an issue by opposing party, witnesses are assumed to be trustworthy and of good character (R. v. Giraldi) - Frequently, counsel will attempt to introduce his witnesses in a way that will enhance the witnesss credibility. This is a matter of degree when the line is crossed between permissible introduction and impermissible bolstering. (R. v. Clarke) - Good character evidence: the accused as a witness o In criminal cases, the accused can prove his good character because it is deemed relevant to the primarily material issue of whether the accuse committed the offence charged and to the secondarily material issue of the credibility of the accused as a witness (R. v. H. (C.W.)) o The accused can assert his own honesty, and other witnesses can be called to testify as to the accuseds reputation for truthfulness (R. v. Clarke) o If the accused chooses to put his character at issue, the Crown will be entitled to rebut the claim by cross-examining the accused or character witnesses, or by calling other witnesses who will testify to the accuseds bad reputation for trustworthiness or sincerity. Expert evidence relevant to credibility and the rule against oath-helping - A party may call an expert witness to testify about facts relevant to the credibility of one of his witnesses where those facts are likely to be beyond the experience of the trier of fact. o HOWEVER, the rule against oath-helping prevents the expert from going so far as to testify that the witness is likely to be telling the truth. - R. v. Kyselka, Ontario CA held it was impermissible for a doctor to explain that a mentally challenged sex assault victim lacked the imagination and intelligence to concoct the story this was similar to oath helping - The modern rule against oath-helping prevents expert witnesses from offering the opinion that a particular witness is telling the truth. - The expert can provide background information relevant to the credibility of a witness, but not information directly about the credibility of what a witness is saying - R. v. J, sought to introduce expert evidence that sexually abused children cant be expected to notice time and place the way adults do or that they are prone to retract their allegations. o Here, evidence about the behavioural characteristics of sexually abused children was accepted as it was thought to be beyond the ordinary experience and understanding of law triers of fact. Even though it may indirectly bolster the childs credibility. o Evidence adduced solely for the purpose of bolstering a witnesss credibility is inadmissible. o Evidence of qualified expert about general behavioural characteristics is generally accepted. Prior consistent statements, exceptions and narrative

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The rule against proof of previous consistent statements o Generally impermissible to prove that at some time before testifying, a witness made statements consistent with her testimony. This is because such statements are usually viewed as lacking PV and being selfserving (R. v. Evans) o Prior inconsistent statements tend to lack PV because the credibility of a statement is not enhanced simply because the same statement has been made before. (could be consistently lying, or good memory) o Where the prior statement is being offered to establish the truth of what it asserts, the hearsay rule is infringed. o If prior consistent statements are proved pursuant to an exception, there will be an error in a: judge alone trial, if the judge misuses those statements jury trial, if the judge fails to direct the jury adequately on their proper use. Needs a jury direction: (a) explain that prior consistent evidence cannot be used to enhance the credibility of the person making the statement since evidence does not become more credible because it has been repeated, (b) direct the jury not to use the evidence for its hearsay purpose, and (c) describe any legitimate purpose for which it was admitted.

Exceptions to the general rule - To rebut allegation of recent fabrication o Prior consistent statements made by a witness are not admissible to counter the simple claim that the testimony of that witness is false. o If an opposing party claims that the testimony of a witness has been recently fabricated, prior consistent statements that serve to rebut the allegation of recent fabrication WILL BE ADMISSIBLE o The relevance of the prior consistent statement does not come from consistency alone. It comes from the fact that the timing of the prior consistent statement demonstrates that the version testified to be not new or recent as was alleged. Can only rebut if the prior consistent statement was made prior to the date at which the opposing party is alleging fabrication. o R. v. Stirling, appeal on count of criminal negligence causing death and bodily harm. Primary issue was whether the Crown established that the appellant and not the other survivor was driving the car. The judge concluded that A did it based on evidence including testimony of the survivor H. During cross-examination, counsel asked H about a recent civil claim launched against A and also about some drug charges. All parties agreed that this questioning implied that H had fabricated his testimony for motives of civil trial. Judge admitted prior consistent statements and A argues that he is in error to have considered them for their truth. Prior inconsistent statement cant be considered for the truth of their contents. o Alleged fabrication need not be recent relative to the trial or hearing; it is enough if the claim is being made after the event testified about (R. v. Ellard) o An express allegation of recent fabrication is not need. It is enough if the circumstances are enough to raise the suggestion. Recent complain in sexual offences o At common law, the failure of a sexual offence complainant to tell someone about her alleged victimization at the first reasonable opportunity was considered to hurt the reliability of the complaint, including any claim of non-consent o S. 275 CC changed this view, it is an ERROR to use the failure to complain as a basis for a presumptive adverse inference relating to credibility or consent. Prior consistent admissible hearsay o Where a prior consistent statement is contained in, or consists of, an out-of-court statement that is admissible pursuant to a hearsay exception, it can be proved

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Because it falls within an exception, it is admissible as proof of the truth of its contents and can also be relied upon to support the credibility of the witness Such is the case with the prior identification or person and business records. Res gestae hearsay exceptions the facts surrounding or accompanying the transaction. the label is sometimes used to describe those exceptions that permit hearsay evidence to be admitted because the statements in question accompany a relevant act or transaction

Statements made when found in possession o Statements made by accused persons found in possession of stolen goods or illegal drugs can be admitted, to prove the truth of their contents. o Also res gestae, the res of these offences consists of the act of possession o Possession exceptions have been explained on the basis that admission is intended to forestall the inference that it would have been natural, if possession was innocent, for the possessor to explain himself when the possession was discovered. Exculpatory statements made on arrest o There is authority allowing the accused to testify about statements he made upon arrest, in which he denied his guilt. o The prevailing view is that the accused cannot testify that he made an exculpatory statement on being arrested. In obiter, SCC recognized the right of accused persons grounded in English authority, to testify that their first reaction when taxed with a criminal allegation was to assert their innocence.

Narrative - These statements form part of the story, but fail to satisfy any of the hearsay exceptions. - It is necessary to admit them in order to unfold the narrative properly - R. v. George, permissible for the Crown to show that when confronted by his cousins parents, the accused admitted that he had forced himself on his cousin. This confrontation would have made no sense to the jury unless they learned that the reason why the parents confronted the accused was because their daughter was complaining about having been sexually assaulted by him. - R. v. F. (J.E.), Ontario CA was of the view that the trier of fact must have the chronological cohesion of a full account in order to understand the case. Two important points: (1) the doctrine of narrative should be used to reveal the existence of prior statements solely where it is necessary to do so. If those statements have no impact on the unfolding of events, they should not be referred to. (2) only so much detail as is necessary to provide a comprehensible narration of evens should be provided - When statements are admitted as part of the narrative, they cannot be used as proof of the truth of their contents. They are admitted solely to put a context on the unfolding of the allegation. - R. v. Dinaro, evidence showed the mentally challenged sexual assault complainant had difficulty situating events in time, was easily confused, and lied on occasion. o SCC recognized in light of this that the spontaneous nature of the initial complaint and the complainants repetition of the essential elements of the allegation provided important context for assessing her credibility o Prior consistent statements do not corroborate the witness but they can help in assessing credibility. Limiting instructions and prior consistent statements o Where evidence of a prior consistent statement is admitted under any of the exceptions to the general rule, crucial that the trial judge provide a limiting instruction to the jury. Will not be needed where: The appropriate, limited use to which the statement should be put would be obvious to the jury The contents of the statement would not be helpful to the Crown The defence relies on proof of the prior consistent statement. Rehabilitative your own witness

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Where opposing counsel has attacked the general credibility of a witness, counsel may use approved techniques in an effort to rehabilitate that credibility. Those techniques include: Re-examination of the witness who has been attacked, Calling evidence about the positive reputation of the witness for trustworthiness, or Calling witnesses to negate or weaken expert testimony by opposing counsel relating to the hidden defects said to affect the witness. Although a party cannot generally call evidence to bolster the credibility of her own witnesses, opposing counsel can open the door allowing this to be done. If opposing counsel cross-examines your witness with specific discreditable conduct, associations, etc and the witness does not admit to them, then that is the end of it nothing to rebut If they admit to them then you can re-examine them to give them a softer impact, or you can call repudiation witnesses but NOT anyone to testify about the discreditable events that were admitted to. It is also acceptable for the party calling the witness to ask about convictions etc so that there is an appearance of full disclosure both the Crown and defence can do this (R. v. Thresh) Challenging your own witnesses

A witness is hostile when he does not wish to tell the truth because of a motive to harm the party who has called him, or to assist the opposing party A witness is adverse if the evidence he gives is unfavourable, or opposed in interest, to the party who has called him General attacks on credibility o Because counsel implicitly vouches for the witnesses she calls, it is never appropriate for her to attempt to challenge her own witness by calling reputation evidence about his lack of trustworthiness, by using his criminal record to discredit, or by cross-examining him about his previous discreditable acts or associations Calling other witnesses who contradict your witness o One way to attempt to neutralize the evidence of your witness is to call other witnesses who provide a different and more helpful account. No limit on how many you can call You can ask the trier of fact to prefer the testimony of one where there is some basis for doing so. o Does not require the court declaring witness adverse first. Leading questions and refreshing memory o Where a witness is disappointing counsel by failing to provide expected testimony and this appears to be because he has forgotten the techniques for refreshing memory, including asking leading questions with the leave of the court, may be of assistance o A judge has a discretion to require that counsel attempt these memory techniques before moving to the more invasive methods of trying to prove that the witness has made PIS or by attempting to cross-examine the witness. Cross examination of ones witness o Under common law and statute, scope of the cross-examination here is at large (R. v. T.(T.E.)), which means that it can be employed to neutralize harmful evidence by impeaching credibility/reliability of the testimony, AND to obtain helpful information from the witness (this part is unsettled) o Hostile witness (at common law) With the leave of the court, a party can cross-examine his own hostile witness Only when witness does not give his evidence fairly and with a desire to tell the truth because of a hostile animus towards the party who called him (R. v. Coffin) R. v. Malik also interpreted hostility as animus towards the Crown. High test to meet need a distortion of the testimony (this restriction is not agreed with by author) Factors to consider to determine hostile animus (Haughton)

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Demeanour: irritation or anger, giving very quick and unhelpful answers to openended questions, etc. focus on style of answer (as opposed to substance) General attitude: how cooperative has the witness been until that time? Had to subpoena the witness and drag them to court? Substance of evidence: need to exhaust options (getting the witness to testify before seeking declaration of hostility, etc). Declaration of hostility allows you to cross-examine at large (on ANY RELEVANT issue) Adverse witness (at common law and statute) It is settled that if a party obtains a declaration that a witness is adverse under S. 9(1) CEA the judge can grant leave to cross-examine that witness. You cant impeach your own client unless the court concludes they are adverse, then you may contradict him with other evidence. R. v. Cassibo, a witness is adverse when he is unfavourable in the sense of assuming by his testimony a position opposite to that of the party calling him A mere existence of a material inconsistency between the earlier statement and the testimony may therefore be enough. Adversity can even be inferred from the evidence and inconsistencies between it and other statements made by the witness, without proof of material inconsistent statements, and without there being a hostile animus. R. v. T. (T.E.), factors to consider to determine adversity Demeanour and attitude of witness Materiality of any inconsistencies Purpose for which party wishes to cross-examine Credibility of witness Circumstances in which inconsistent statements were made Certain rules in civil cases may allow a party to cross examine own witnesses without declaration of adversity R. 53.07 Ontario Rules of Civil Procedure Previous inconsistent statements Governed by S. 9(1) and S. 9(2) CEA S. 9(1) CEA o Provides for proof of previous inconsistent statements, either written or oral inconsistent statements o Equivalent to S. 20 OEA o a party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but if the witness in the opinion of the court, proves adverse, the party may contradict him by other evidence, or, by leave of the court, may prove that the witness made at other times a statement inconsistent with his present testimony...etc. o Procedure Requires trial judge to declare the witness adverse (lawyer says they will make a S.9(1) app, jury leaves, lawyers make arguments Trial just may consider PIS when deciding adversity Issues canvassed in voir dire will be broader than PIS because issue in adversity generally, not just PIS Trial judge will decide whether to allow proof of PIS (1) if you are allowed to prove PIS, then mention circumstances of statement to W. If they deny, you can then prove they did (2) cross-examine the witness on PIS (3) if approved, proceed with cross-examination, scope at large and not limited to just the PIS. o Problem with using S.9(1) for cross examination: Either, trial judge held that adversity must be interpreted differently depending upon whether the applicant wants to

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S. 9(2) CEA o where the party producing a witness alleges that the witness made at other times a statement in writing, reduced to writing, or recorded on audiotape or videotape or otherwise, inconsistent with the witnesss present testimony, the court ma, without proof that the witness is adverse, grant leave to that party to cross-examine the witness as to the statement and the court may consider the cross-examination in determining whether in the opinion of the court the witness is adverse. o Confined to statements that have been video or audio taped, or made in or reduced in writing. (no oral statements) Where PIS is oral or governed by a provincial statute, declaration of adversity is required S.9(1) CEA o Proof of hostility/adversity not required, however the scope of crossexamination limited to the PIS o Developed in R. v. Milgaard, 7 stage process (1) counsel advises the court that he is bringing a S. 9(2) application (2) if there is a jury, the jury leaves the room and a voir dire begins (3) counsel shows the judge the statement, pointing out the inconsistencies with the testimony (4) if the judge agrees that there are inconsistencies, he invites counsel to prove the statement (5) the witness is asked if he made the statements that are recorded. If he admits that he did, the statement is proved. If he denies it, other evidence can be called to prove it (6) opposing counsel has the right to cross-examine the witness as well as any others called by the party seeking leave. Opposing counsel may try to show that even if the statement was made by the witness, there are circumstances that would make it improper to allow counsel to present it to the jury during cross-examination (7) the judge, normally after inviting submissions, decides whether the statement was made and whether the ends of justice would be best attained by allowing the cross-examination. Using a PIS made by your own witness o A statement admitted under the statutory rules may only be used to impeach credibility. If you want to use it for truth purposes, you need to undertake a hearsay analysis If a prior inconsistent statement has the particularized indicia of reliability described in R. v. B.(K.G.), it can be admitted as proof of the truth of its contents. Where the statement is not admissible under a hearsay exception and not adopted by the witness as true, the trial judge must warn the jury that the previous inconsistent statement cannot be used as proof of the facts it asserts. o PIS can be considered in determining adversity in criminal cases (S.9(2) CEA), but NOT civil cases (Wawanesa Mural Insurance v. Homes) The Evaluation of Evidence

cross-examine or simply prove a PIS; where cross examination is the goal, adversity should be interpreted to mean hostility. The author does not agree, simple adversity is enough for S.9(1) to confer cross-examination rights.

V.

Corroboration (PAST) - At common law, certain kinds of evidence were considered to be unsafe. o There needed to be warnings from judge to jury about the dangers of convicting based on uncorroborated or unconfirmed evidence of certain witnesses o Triers of fact COULD convict in absence of corroboration ONLY after receiving these mandatory warnings - Some statutory corroboration rules (such as perjury and Alberta Evidence Act unsworn evidence provisions) continue to apply but the trend in criminal cases is to limit the impact of such provisions.

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Corrobative evidence had to be: o Independent o Confirm the testimony in a material particular o Implicate the accused To be corrobative, circumstantial evidence had to be consistent only with guilt as a result of its over technicality, these common law rules of practice have been abandoned and a number of the statutory corroboration requirements have been repealed.

Discretionary warnings (NOW) - when common law rules of corroboration were dispensed they were replaced with rules giving judges the discretion to provide special warnings to the jury about the dangers of relying on some Crown witnesses (R. v. Lavalle) - although there is a discretion to warn, if a trial judge fails to do so in dangerous testimonial situations it could be an error of law - typically warnings are required in cases of evidence from: o accomplices o jailhouse informants o children o witnesses of unsavoury character - current approach differs from old rules in many ways: o (a) warnings need no longer be given for every witness falling within some predesigned category, a warning will be required when a witness plays more than a minor role in the Crowns case, where based on objective assessment, the court should suspect the credibility of the witness (R. v. Brooks) o (b) warnings are no longer confined to witnesses who fall with a predefined category o (c) where a warning is required, its form is not burdened with technical requirements o (d) unlike common law rules, to be confirmatory, evidence need not implicate the accused. R. v. Kehler, independent evidence confirming the accomplices description of the robbery strengthened the jurys belief that he was a truthful witness, even though the independent evidence did not implicate Kehler. Identification cases - Judges here may need to warn the jury of the dangers of convicting where: o the identification of the accused is in issue, and o where either the opportunity of the witness to observe was under poor conditions, or improper identification procedures were employed or other suggestive material R. v. Hibbert a strong direction should be given when the key witness identified the suspect from the first time while watching TV footage of his arrest. - The type of direction given is to be decided on a case by case basis. - If a witness gives two very different descriptions of event, the PV is almost nil and juries must be told of this - Juries should also be warned that strictly in dock identifications as positive proof of identity, without other evidence (such as prior consistent statement), should be given no weight. (R. v. Tebo)

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