TABLE OF CONTENTS

THE KEY RULES

ADMISSABILITY
MATERIAL ISSUE

3
3

SOURCES AND GOALS OF THE LAW OF EVIDENCE

4 SOURCES OF EVIDENCE:
DOCUMENTS

4
4

PROOF WITHOUT EVIDENCE

FORMAL ADMISSIONS
CRIMINAL PROCEEDING
CIVIL PROCEEDING
JUDICIAL NOTICE
JUDICIAL NOTICE OF ADJUDICATIVE FACTS
JUDICIAL NOTICE OF LAW

5
5
7
7
8
10

WITNESSES

10

GENERAL INSTRUCTIONS ABOUT USING WITNESSES

MEMORY
AFFIDAVITS
COMPETENCE & COMPELLABILITY
SPOUSES
OATHS AND AFFIRMATIONS
CHILDREN AND ADULTS WITH DIMINISHED MENTAL CAPACITY
ACCUSED PERSONS
CREDIBILITY

10
11
12
13
13
14
15
16
16

RELEVANCY, PROBATIVE VALUE, PREJUDICIAL EFFECT

17

RELEVANCE
RESIDUAL DISCRETION
STRIKING THE BALANCE WITH RESIDUAL DISCRETION

17
17
18

BURDEN AND QUANTUM OF PROOF

20

CIVIL TRIALS
CRIMINAL TRIALS
REGULATORY OFFENCES
CONSITUTION / CHARTER
REVERSE ONUS PROVISIONS
APPEALS

20
20
22
22
22
22

HEARSAY

24

CLASS EXERCISE ON HEARSAY

24
25
25
25
26
27
28
28
28
29
29
30
31

OPINION EVIDENCE

33

ADMISSIBLE LAY OPINION EVIDENCE

EXPERT OPINION EVIDENCE - LIMITS
EXPERT QUALIFICATION: ANGELA CAMPBELL AFFIDAVIT

33
33
36

CREDIBILITY

37

LIMITATIONS: AGAINST OATH-HELPING

PERMISSABLE ATTACKS TO CREDIBILITY
COLLATERAL FACTS BAR
CORROBORATION
HOW ACCUSED PUTS CHARACTER IN ISSUE
HOW TO PROVE CHARACTER
ACCUSED
CHARACTER OF THIRD PARTY SUSPECTS
CHARACTER OF VICTIMS
CRITICAL REFLECTIONS ON LAW OF CHARACTER

38
39
40
40
41
41
41
41
43
43
43

IMPROPERLY OBTAINED EV. & PRIV. AGAINST SELF-INCRIM.

45

SIMILAR FACT EVIDENCE

THE CATEGORICAL APPROACH (HISTORY)
HANDY FRAMEWORK

45
45
46
46

CONFESSIONS

48

CL CONFESSIONS RULE
MR. BIG STING OPERATIONS

48
51

SELF-INCRIMINATION

52

FIRST PRINCIPLES: CHARTER AND CEVA

53

PRIVILEGE AND RELATED ISSUES

55

OVERVIEW OF HEARSAY APPROACH

NOTES FOR EXAM

HEARSAY EXCEPTIONS
RES GESTE
STATEMENTS AGAINST INTEREST
EARLIER TESTIMONY
STATEMENTS CONCERNING BODILY / MENTAL CONDITION
STATEMENTS OF INTENTION
STATEMENTS BY PARTIES
BUSINESS RECORDS

PRINCIPLED APPROACH
PRIOR INCONSISTENT STATEMENTS

CHARACTER AND RELATED ISSUES

PRINCIPLED APPROACH TO SIMILAR FACT EVIDENCE

CASE PRIVILEGE
SOLICITOR-CLIENT PRIVILEGE
EXCEPTIONS TO SOLICTOR-CLIENT PRIVILEGE
EXTENSIONS TO SOLICITOR-CLIENT PRIVILEGE
SPOUSAL PRIVILEGE
PUBLIC IMMUNITY PRIVILEGE (NOT ON EXAM)
CLASS EXERCISE ON PRIVILEGE
CASE-BY-CASE PRIVILEGE
DOCUMENTS IN THE POSSESSION OF 3RD PARTIES
OCONNOR REGIME
STATUTORY REGIME

55
55
57
58
60
60
61
61
62
63
64
64

RETENTION, PRESERVATION & SPOLIATION

65

SPOLIATION IN CRIMINAL LITIGATION

CIVIL CONTEXT

65
65

INFORMER PRIVILEGE

THE KEY RULES

ADMISSABILITY
Evidence is admissible if it is relevant to a material issue and not subject
to an exclusionary rule (specific rules or residual discretion). Once
admitted, there is Q of weight.
Basic principles that underlie the rules of evidence:
o Procedural Fairness: if you have a fair process you are more likely to
have a fair result
o Ask: what is fair here?
Access to Justice: evidence is important but expensive: lawyers to
determine what is relevant, private investigators

MATERIAL ISSUE
Criminal Cases
Step One: Look at the indictment; it sets out the charge against the
A & tells you the facts the crown will have to prove that tells you
what the material issues are
o Assault: unwanted touching . Look to the elements and then to
the facts
Hitting of x with a shovel to the head
Who is the victim
Who is the defendant

What did they do

Where did they do it
How did they do it
Step Two: crown must prove those facts beyond a reasonable doubt
o By tendering evidence
Step Three: if crown falls short then the defense may seek a directed
verdict of acquittal
o Defense may accept the evidence that the crown puts in and
then argue that all of it even if believed is insufficient
o Defense may bring its own evidence
Step four: Closing arguments
o How much should each peace of evidence weigh? Does it ground
a finding of fact? This is a question of fact and is decided by the
finder of fact.

Civil Cases
Step one: allegations are set down in pleadings in BC notice of civil
claim
o Must lay out every element of the cause of claim
o Allege the facts that speak to every element of the cause of
action
o If you fail to do this the defense council can challenge this on
cause of action

SOURCES AND GOALS OF THE LAW OF EVIDENCE

What do you need to prove (or not prove) in order to establish material facts?
Admission Evidence: required only where the facts are disputed
Judicial Notice: evidence is not required for a fact that is prima facie
accepted

4 SOURCES OF EVIDENCE:
1.
2.
3.
4.

Formal Admissions
Judicial Notice
Documents
Witnesses

DOCUMENTS
Parties are generally required to tender evidence through oral testimony of
witnesses. Applies to facts directly observed by the witness.
Tendering physical or documentary ev: must be authenticated by a witness
Documents dont stand alone (unless formal admission or judicial
notice)

Authentication: verification by the witness that the thing is what it is

alleged to be
o Process for authentication at trial: may have to use a series
of witnesses. Preserving evidence for client / instructing them to
do so. Chain of evidence, continuity of evidence.

Self-Authenticating Documents: exception to rule that documents need to

be authenticated
Inherent reliability of doc is such that dont need someone to verify it
Categories set out in CEVA and BCEVA
Statement of fact recorded in a business record is selfauthenticating and non-hearsay if the document is made in the usual
course of business and was usual and ordinary course of business to
make that record (e.g. a ledger) see more in hearsay section

PROOF WITHOUT EVIDENCE

There are two situations where evidence is not required because you do not
need to prove anything :
1. Formal admissions
2. Judicial Notice

FORMAL ADMISSIONS
o
o

In any proceeding a party may admit facts and this means the other
party does not need to prove them
Policy: efficiency, access to justice. But consider the fairness of the
admission.

CRIMINAL PROCEEDING
1. Admission: the guilty plea
By pleading guilty is admitting all of the facts necessary to establish the
elements of the offence in the information or indictment (but nothing
more).
E.g. Assault: if A pleads guilty they are admitting that they intentionally
applied force to the complainant knowing or being reckless as to the
complainants non-consent. But the accused is not admitting that any
particular degree of force was used.
If anything more is needed for other purposes this must be
proved
CCC 724(3): (R v Gardiner) sentencing

Nothing is admitted in the plea that goes to sentencing

crown must prove beyond reasonable doubt
Plea is no guarantee on outcome on sentence
o Client must understand this
o

Consequences of pleading
Benefits:
o Criminal justice system utilitarian cost benefit
o Acceptance of responsibility rehabilitation
o Certainty of outcome for the accused
o Relief for witnesses
Costs: to the accused waver of rights
Pleas must be legitimate and fair
There is an ethical obligation to back down from a charge if the
evidence is not there, the crown may be obligated to accept a plea
that is less than their desired charge
RvT
1.
2.
3.
4.

(R) 1992: a plea is valid according to the following factors:

Was the plea voluntarily?
Was the plea unequivocal?
Was the plea properly informed
Was justice done overall?

The procedure for entering pleas 606 cc

Court must be satisfied that:
1. Plea is made voluntarily
2. A understands this is an admission of the elements of the
offence
3. Court is not bound by any agreement between defense and
prosecutor
Withdrawal of a guilty plea
Fairness, what is in the interest of justice
Ethical Question
o Can the crown accept a plea where they know the evidence
would not support a conviction on that charge?
o If the defense council believes that the client has a good
defense can the defense allow their client to submit a guilty
verdict?
Adgey: test for withdrawal of a guilty plea (750): A may
change plea if can persuade a court that there are valid reasons to
do so
Mahoney: A may not change his plea simply because a sentence
was unexpected

Plea made voluntarily with full understanding of the charge and

consequences
Where it is understood that the consequences may be a
sentence imposed by the court

Lyons: just because you are dissatisfied with how things turned out
later does not mean you can withdraw your plea!
2. Admission (narrower): admission of certain facts but not all
CCC s.655: allows A to admit facts short of pleading guilty to offence.
where A is on trial for an indictable offence A or counsel may admit any
fact alleged against A for the purpose of dispensing with proof thereof
Should be treated with caution
Can be made in writing or by oral statement
Good council work to admit what is not at issue:
o Admit that the sexual assault happened, make the question
about if that sexual assault was done to her by the accused
o Admit that you killed the man, but that it was done in self
defense
R v Fong: A admitted facts, based on these admissions the judge
determined he did not have to determine the competency of witnesses
who would testify to these facts.
o Judge did not make an inquest into competency of young witnesses
o This decision was upheld on appeal.
3. Is the crown authorized to admit facts?
There is no provision in the CC authorizing the crown to admit facts
Pintar (other facts): It is assumed the crown can do so. Given the
burden of proof is on the crown what does it mean for the crown to
admit a fact?
4. There is no provision in the code authorizing the parties to file an
agreed statement of facts and ask the court for a determination of
the legal effect of those facts
Herbert (other facts): The facts relevant to A argument that his right to
silence under s.7 had been violated were established in an agreed
statement of fact

CIVIL PROCEEDING
Admissions of facts by parties are conclusive
The process of admitting facts depends on the jurisdiction you are in
Can be done by statement or by the failure to state something

Written, oral, through letters prior to trial, through mechanisms under

the rule of court for replies or failures to reply to authorize requests for
admissions

Turner v Novak Generally an admission can be made by a statement in the

pleading
Facts: In this case a party that had admitted a fact, argued that it
could not be treated as a finding of fact at trial
Held: finding of fact
Reasons: we give formal admissions because we want to dispense with
those elements of an offence that are conclusive no matter what
evidence is admitted
Formal admission may be made in a civil proceeding
A. By statement in the pleadings or by a failure to deliver pleadings
B. By an agreed statement of fact filed at the trial
C. By an oral statement made by counsel at trial or even counsels silence
in the face of statements made to the trial judge by the opposing
counsel with the intention that statements be relied on by the judge
D. By a letter written by a partys solicitor prior to trial
E. By a reply or failure to reply to a request to admit facts
Likely: formal admissions in civil proceeding are no longer binding in a
subsequent trial but could be introduced as an informal admission without
having the admitting party having the usual right to contradict it.

JUDICIAL NOTICE
At its core the doctrine of judicial notice makes us pay
attention to the concept of trial fairness and triggers a debate
about the legitimacy of the judicial system 754
Presumption: judges know nothing until proved the court. Judicial notice is
an exception.
R v Spense
What is the proper roll of efficiency in the legal system?
Is there a distinction between rational decisions and legitimate ones in
law?
Is there any difference between a trial judge and an appeal judge with
regard to the test for judicial notice?
If a judge is convinced that judicial notice should be taken of a fact is that
the end of the dispute?
Is the recently introduced distinction between facts and inferences in
cases a stable one?
What is the correct interplay between judicial notice and the social
framework of facts and expert evidence rules?

JUDICIAL NOTICE OF ADJUDICATIVE FACTS

Allows a fact to be allowed into evidence without proof if the truth if the fact
is super well known and just understood to be true
-

Avoid the situation where the court on the evidence reaches a factual
conclusion which contradicts a source that is indisputably correct
The fact must be clearly uncontroversial and beyond reasonable
dispute because the other side had no ability to challenge the facts
once accepted under judicial notice

Morgan Test Newfoundland (Treasury Board) v NAPE upholding R v

Find

If facts are important and critical (dispositive) to the determination of the case
the courts will apply the Morgan test more strictly. Courts do not want to
accept facts that will bring an end to the dispute.
If the facts are not strictly dispositive then the capacity for the court to accept
the facts depends on the circumstances.

The threshold for judicial notice is strict. Facts must be:

1. So notoriously or generally accepted as not to be the subject of
debate among reasonable persons
2. Capable of immediate and accurate demonstration by resort to
readily accessible sources of indisputable accuracy
R v Find The purpose of judicial notice
1. Dispense with unnecessary proof
2. Avoid situations where a court on the evidence reaches a factual
conclusion which contradicts readily accessible sources of indisputable
accuracy (this would make people question the court)
Should the court take judicial notice towards widespread bias towards
sexual offenders within a community?
Nope! Absent proof we cannot assume strong believes and emotions
translate into lack of impartiality
R v Spence the court will not take judicial notice in racial bias of
jurors
Adjudicative v Non Adjudicative Facts
A. Adjudicative: who what where why, the facts in dispute. Dispositive
facts: the facts critical to the case
Spense: must be proved by admissible evidence

Dawson: Ontario lawyer tried to challenge that a law (which could

require lawyers to pay costs) was unconstitutional because of the
effects of this legislation
Krymowski

B. Non-Adjuicative: Legislative facts that establish the purpose and

background of legislation, social, economic, cultural context.
Legislative facts: Legislation, judicial policy (e.g.in charter case: the
purpose, history and perceptions among the profession of the rule
at issue)
o Dawson: purpose & history of the contested legislation
Social facts around the legislation
Facts about Context
o E.g.: in a charter case: actual instances of the use or
threatened used of the rule at issue
o Dawson: perceptions among the profession of the contested
legislation
o Dawson: Adjudicative facts likely attract a less stringent test
o Malmo-Livine: Adjudicative facts are likely to attract a less
stringent test, BUT court should proceed cautiously to take
judicial notice, as legislative facts of matters that are
reasonably open to dispute where they relate to a dispositive
issue
C. What does the distinction between Adjudicative and nonadjudicative facts mean in terms of the capacity for a judge to
take judicial notice of these facts?
Spense: necessary in constitutional litigation to set out two
categories of facts.
Non-adjudicative facts establish the purpose and background of
contested legislation including its social, cultural and economic
context facts are of a more general nature and are subject to less
stringent admissibility requirements
RJR McDonald: The distinction between adjudicative and nonadjudicative facts may be harder to maintain then we previously
believed
Judicial Notice and the Charter
Mackay v Manitoba
Charter decisions should not and must not be made in a factual
vacuum
Where an individual claims that it is the effect and not the
purpose of the legislation that affects their charter rights they
must establish these deleterious effects.
Extraneous evidence is required here: In general charter
challenges based on allegations of unconstitutional
10

effects of legislation must be accompanied by admissible

evidence of the alleged effect of the legislation
There may be other cases unlike this one (e.g. question of law)
where the question of the existence of a charter violation which
do not need to be proved
o E.g.: Parliament passes a law imposing a state religion, no
one would have to prove anything, Judges could simply
find that this clearly violates s.2(a) and is not saved by
s.1 .
o Cases where no additional evidence is required to flesh out
a charter offence

Andrews v Law Society of British Columbia

Suggests that the court does not insist on the rule that evidence
be led to support charter claims
Judicial notice used to find that non citizenship is analogous to t
the grounds listed in s.15(1)
Vriend v Labera: judicial notice of fact that gay individuals suffer
discrimination
Newfoundland Treasury Board v NAPE: Judicial notice that
Newfoundland is suffering an economic crisis, for purpose of s.1
justification argument

JUDICIAL NOTICE OF LAW

Judges must take notice of common-law and statutes and domestic law CEVA
ss.17-18 BCEVA s.24.1
Doctrine of judicial notice does not apply to foreign law, if you cant get the
other council to admit what the foreign law is you have to prove it (get expert
in from foreign country to be expert in home countrys laws) failure to prove
foreign law: BC law applied by way of default
St Lawrence: No evidence is required to prove that legislation is law or that
a regulation was published, unless there is proof the regulation was not
published

WITNESSES
2 Exceptions to rule that evidence must be put forward by live
witness:
1. Accommodation for persons with disabilities s.6 CEVA, s.17 BCEVA.
2. Admission through affidavits (especially in civil context) s.55 BCEVA.
Prescribed forms.
11

GENERAL INSTRUCTIONS ABOUT USING WITNESSES

If the crown is calling the witness to prove its case then crown council
will conduct the direct examination
Leading or closed questions are not permitted in a direct examination
Exceptions are made for non-controversial matters
There are some matters that lawyers may lead the witness, for
example you can say is it correct you were with X on this night and
then you must stop leading what happened on that night
Hostile witness applications
o If you can persuade the court that your witness is hostile the
court authorizes you to switch from direct open ended questions
to leading questions
Prompting questions can create objectionable evidence and if admitted
may receive lesser weight
Cross examination may in some cases be done by the accused
o Imagine how this would feel where the witness is claiming sexual
assault
Reliability and credibility: important and distinct concepts
Reliability
o Is the testimony impaired by circumstance
o What was the ability of the witness to perceive the things now
reported to the court
o Were there distractions in the environment
o If that ability was impaired the court may feel that this evidence
was not reliable
o Quality of memory *memory can be affected adversely by things
like trauma
Substance abuse
Illness
Age
Subsequent contamination, by receiving information that
overrides the true memory
Credibility
o How do you know if someone is being less than truthful?
o Discrepancies in evidence can be explained by the limitations in
human perception
o The trier of fact should not make assumptions based on
stereotypes
o Our system allows
Assessment based on expressions

12

MEMORY
1. Present memory refreshed:
Does W hold a present (18 mn-ish) memory of the issue in dispute?
Witnesses are allowed to refresh their memory: Fliss (pg 78)
Permission to use any form of stimulus to refresh the memory of W if
the memory is a present memory
PURPOSE of refreshing is to refresh, not to create a new memory
If you think that the thing used to refresh the memory is actually
being used to create a new memory you can ask that the refresher
be put into evidence so that you can challenge it and the weight that
this evidence be given
2. Past recollection recorded
Davie (78, 79)
Reliability: memory must have been recorded in a reliable way
Authentication: memory must have been sufficiently fresh and
vivid to be accurate. W must submit that the memory reflects the
knowledge at the time and they know it to be true.
Original: original record must be put into evidence
Rule in Brown, and Dun
You must put to W the facts on which you intend to rely in order to
impeach their evidence
If you are using a consent defense to sexual assault you must tell
the W from the outset of their testimony and you must show your
cards what evidence you have for this defense
Little (Rondelle) There is a requirement that the council raise every
relevant question, but you must not go on a fishing expedition

AFFIDAVITS
Questions to ask and steps to take:
Does the affidavit accord with the statutory formal requirements?
Is the affiant present in front of me?
Have I seen their identification?
Are they in a position to acknowledge their identity?
Does the affiant understand or appear to understand the contents of
the affidavit?
Does the affiant understand the significance of the oath or the
affirmation?
o Do I need to explain the consequences of lying?

13

Do I need to explain that I will have to explain any errors to

apposing council or the court?
Ask them have you read this, do you swear it to be true?
Have them sign it.
You sign and seal it
o

Potential Issues:
1. If the affiant cannot read the affidavit
You read it to them
Note that they did not read it themselves in your own notes
2. If the affiant cant read English
Get a translator
Have the translator complete the certificate of translation
3. Your affiant refuses to swear any kind of religious oath
Solemn affirmation
Affirm, over swearing to tell the truth
4. They will not swear the truth or any kind of secular affirmation they
are an odd faith and they want to be sworn by that faith
Have them make a solemn affirmation according to their faith
5. The individual cant swear the affirmation in the form presented, their
memories have changed
Rewrite it! Make sure the evidence reflects what their evidence
would be when they are in court

COMPETENCE & COMPELLABILITY

Eligibility to testify: witness must be competent at law.
Compellability: if competent, can the witness be compelled to testify?
1. Competence
Legal threshold question. Is W permitted to give evidence?
(a): General Rule: everyone is competent
(b): BUT then ask whether W should be excluded because of some
personal incapacity or immunity
(c): Exclude for policy reasons? E.g. societal value in marital harmony.
2. Compellability
Can W be made to testify?
(a): General Rule: yes. Generally by subpoena, gives rise to obligation
to attend court for purposes of testifying and answer the question put.
May be arrested if dont appear.

14

(b): Main exception: accused persons (charter protection)

3. Privilege
Are there any aspects of the evidence that should be excluded by way of
the doctrines of privilege?

SPOUSES
Civil Actions: s.7: competent and compellable
Criminal: currently complex and governed by statute. Poised to change,
become simpler.
In analysis: start with statutory provisions, then turn to CL.
Historically, crown had no right to compel spouse. Now have some, but
limited.
CEVA s.4: general provisions
S.4(2): can be compelled by crown for sex crimes offences
S.4(3): spousal privilege RE communications made during the marriage
S.4(4): same as (2) but offences against children (violence)
S.4(5): preserves the CL rules
At Common Law, spouse of A is incompetent unless the charge concerns
the health, liberty, person of the W spouse. Here, the incompetence extends
to events that occurred before and during the marriage, whatever the motive
for marrying.
Law reform should be left to Parliament: Hawkins (31)
Charge: conspiracy to obstruct
GF provided info to PO, testified. Subsequently married, perhaps to
remove risk that might be called to testify.
Court: marriage genuine
Issue: should the CL Rule be modified? Held: law reform needed, but
should not be courts doing it. Call to Parliament for reform.
Rule doesnt extend if irreconcilably separated: Salitero (22)
Rationale for the rule: marital harmony. Policy choice by courts
This rationale doesnt extent to spouses who are irreconcilably
separated, because then there is not marriage bond to protect
Changes to CEVA (2014):
Part of the victims bill of rights. Currently in process.
S.81 calls for amendment of CEVA s.4(2): no person incompetent just
b/c of spouse. Repeal of ss. 4(4) and 4(5).
Ss. 4(1) and 4(3) remain
Would create general rule of competence and compellability, apply
equally to defence and prosecution. Only spousal privilege will remain.

15

OATHS AND AFFIRMATIONS

With limited exception, W obliged to swear oath to tell the truth or provide a
solemn affirmation to that effect. CEVA s.14, BCEVA ss. 20, 22, 22. Very little
is required. Mere assertion to tell the truth will be sufficient.
CL Requirement: court needs to be satisfied that W understands the
seriousness of giving evidence and that there is an obligation to tell the truth.
Bannerman established very low threshold
All that is required is that the child appreciate by getting ahold of the
conscience of the witness (47)
Walsh - sociopath
Not without ability to distinguish truth from falsehood, capable of
understanding questions and remembering events.
Witness does not feel duty bound to court to tell the truth, agrees may be
circumstances in which willing to lie, but says will tell the truth with
relation to this proceeding: good enough for ONCA
Remember: credibility can still be assessed after.

CHILDREN AND ADULTS WITH DIMINISHED MENTAL

CAPACITY
Q: ability to recollect, give testimony, understand obligation.
Previously, under s.16 CEvA, children were presumed incompetent, but this
was too high a bar and prevented testimony, so added s.16(1) for under
14:
Presumed to have capacity
Shall not make oath
Evidence should be received if are able to understand and respond to
questions
Adoption of dissent in Monkmar
(6), (7): limits on questions that can be put to W for purpose of
determining competence (at front end), but these questions can still be
put to the witness on cross
S.16 now just applies to adult with diminished capacity
(1) Court must conduct inquiry RE oath, whether able to communicate the
evidence
(2) Shall testify under oath (proceed in normal course)
(3) Does not understand oath but is able to give evidence, can testify on
promise to tell the truth (unsworn evidence)
(4) Doesnt understand and not able to communicate the evidence: shall
not testify

16

McL (Case Name?): 16(3) imposes two requirements:

1. That witness has ability to communicate the evidence and give a
promise
2. Promise to tell the truth does not require witness to demonstrate
further understanding. Requires a promise, nothing more.
Why so low a threshold?
Rules RE competency and weight are to make sure decision based on
facts & truth
The requirement of competency is only the first step, an initial
threshold. Seeks basic ability. Finding of competency is not a guarantee
that Ws evidence will be accepted.
Gives osme guidance about how to
Discussion in case about vulnerability of these groups and that the law
of evidence can operate to immunize predators of these populations
Challenge: protect As right to a fair trial while also getting at the truth

ACCUSED PERSONS
s.4(1) CEVA: competent in own trial
s.11(c) Charter: cant be compelled. See Noble for rationale.
s.4(6): Failure of A to testify shall not be the subject of comment by the judge
or the crown
Parameters of s.4(6) Failure to testify: McConnel & Beer
Does not prevent trial judge from protecting the rights of A by pointing
out that A has right to not take the stand
Reads in adverse comments into s.4(6). Can make positive
comments.
Key quote at 65: It would be most nave to ignore fact that when A
failrs to testify that some jurors will think if he didnt do it why didnt
say so?.... Onus on judge to explain
Dissent: strict interpretation. No comment = no comment.
Sopinka: prohibits comment, but this held to be obiter by ONCA
Alibis and s.4(6): Prokofiew (ONCA)
Trial judge should explain to jury right of A, silence should not be used
as evidence (goes back to McConnel and Beer, tells us Sopinkas
comment is obiter)
Only exception is alibi. If A is advancing alibi, can infer from crown
entitled to opportunity to investigate and test
Because of ease with which alibi can be fabricated.
Practice note: disclose alibis as promptly as can and if dont, be ready
to explain why

17

CREDIBILITY
N.S.
Right of A to full answer and defence (Charter ss.7, 11.(d)) v
complainants right of religious freedom (s.2 Charter)
Does complainant need to remove niqab to testify?
Framework: 4 Questions (pg 35 online supplement)
1. Would requiring removal interfere with religious freedom?
2. Would permitting W to wear niqab during testimony create a serious
risk of trail unfairness (This is the Big Q)
3. Is there a way to accommodate both?
4. Proportionality analysis
Held: complainant must remove niqab in this case.
Goes back to legal traditions: strong connection in our system
between being able to see the face of W and fairness of trial. Its not
the only factor in assessing credibility, but is important one. To set it
aside would require compelling evidence that isnt necessary / helpful
(e.g. sociological studies). Next case needs to marshal that evidence.
[3] when a witness will be required to remove niqab
[44] proportionality: possibility of wrongful conviction weighs
heavily
Dissent (Abella): incredible impact on religious minority

RELEVANCY, PROBATIVE VALUE, PREJUDICIAL

EFFECT

RELEVANCE
Test in Morris (90)
Relevance captures any matter that has any tenancy as a matter of
logic and human experience to prove a fact or issue
Inference drawing: line stops at speculation. Inferences must be
reasonable and supportable.
Fact A: umbrella and raincoat
Fact B: was raining
Fact A makes Fact B more likely. Still have room to argue does not necessarily
go to B, but thats another issue, not whats at question in relevance.
Evidence of Habit: Watson
Chain of inferences (defence counsel advocating for)
Court sets out the chain, illustration of how that works (90)

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Habit: distinct from evidence of disposition

Put limits on / take issue with use that may be made of disposition
evidence. Character evidence potentially impermissibile.
Note: direct v circumstantial evidence
Circumstantial evidence tends to be used for:
1. Motive (to extent that is relevant)
2. Means (by which something was done, absent an observer)
3. Opportuntiy (also is itself circumstantial evidence)
4. Post-offence conduct (what A did after the fact)

RESIDUAL DISCRETION
If the evidence is relevant and not subject to a specific exclusionary rule,
court has the power to still exclude the evidence: does the probative
value of the evidence exceed its prejudicial effect? Common law and
seen as part of Charters protection.
Prejudicial effect: how likely is the jury to use that evidence for an improper
purpose, or how likely is the evidence to have a prejudicial effect on the trial
and create an unfair disadvantage to the A?
5 Forms of Prejudice to be Worried About: Seaboyer (124)
1. Evidence will arouse emotions or hostility
Often re crime scene photos
2. Create side issue that will unduly distract jury
Also concern that trial will become protracted
3. Evidence will require undue amount of time
Including required response
4. Danger of unfair surprise
Test different for A v Crown
5. Evidence by its nature will usurp role of jury (takes the issue itself)
Some kinds of expert evidence
In Criminal Context, Asymmetrical Test:
Crown adducing: PE outweighs PV
A adducing: PE substantially outweighs PV
In civil context, test is equal for both parties. Just plain old outweighs.

STRIKING THE BALANCE WITH RESIDUAL DISCRETION

Mechanism built into the law of evidence, through which the trial judge can
apply her judgment.

19

Different views on the utility of broad discretionary power:

A. Trust in ability and judgment of the judges.
B. Discretion potentially allows influence of bias, prejudice, etc.
a. Lord Mansfield: discretion of judge is in favour of tyrants. Always
unknown.
Stereotypes / biases / assumptions in the law: Seaboyer
Issue: constitutionality of rape shield laws (CCC 276 & 277: purpose to
abolish CL rules which permitted discretion which courts applied to
allow in evidence of limited probative value with highly prejudicial
effects for complainant)
McL for Majority: exclusion of potentially relevant evidence without
grounds runs afoul of principles of fundamental justice. 277 (exclusion
of sexual reputation) stands, clearly irrelevant, but 276 too broad.
o Integrity of trial better served by receiving the evidence.
(107)
o Wants the law to strike a balance, sets out applicable principles
to guide Parliament in drafting this new law.
LH Dissent: Parliament did not go too far. Not an infringement on
rights of A, or if is, saved by s.1 (115 116)
Post-Seaboyer: replace 276 with new provisions. Attempts to put limits
on discretion, specific process for judge to follow.

BURDEN AND QUANTUM OF PROOF

Onus: refers to a party. Who has to prove?
Standard / Quantum: what level of proof is required?
Burden: collapsing onus and quantum into one. Crown has burden of proof
beyond a reasonable doubt
2 Main Burdens of Proof
1. Persuasive Burden
Rests on the party who has to prove the facts / the case. Civil:
plaintiff (generally). Criminal: crown.
Beyond a Reasonable Doubt (BRD)
Balance of Probabilities (BOP)
2. Evidentiary Burden
On party who has the duty to raise the issue (issue-specific)
Air of Reality Test or Sum of Evidence Test
In Crim, generally the A (raise defence). Must advance some
evidence for its defense before the judge will put to the jury. Must
have an air of reality. Persuasive burden still lies with crown.

20

CIVIL TRIALS
Civil Trials
Persuasive burden on plaintiff, balance of probabilities
Could say evidentiary burden is embedded in this BOP burden (sum of
evidence)
If plaintiff cant get over this first hurdle (some evidence), risks nonsuit (defense brings)
Plaintiff can bring application for summary judgment (Rule 18), argue
that defence has no real evidence
Summary trial / Paper Trial: cost effective, speedy. Proceeds by way
of affidavits. Not appropriate if issue of credibility, where can only
assess by way of cross-examination.
Balance of Probabilities
More likely than not Denning
Courts tells us is singular standard, but see movement of the standard
depending on whats at issue in the case. May be harder to meet
standard on offence which can stain reputations and ruin lives as
compared to, say, negligence (courts say this approach isnt proper,
but is practice)

CRIMINAL TRIALS
Criminal Trials: Application for directed verdit
Directed verdict of acquittal: A can bring application for if crown
fails to meet some evidentiary test
If there is any admissible evidence (direct or circumstantial) which if
believed by a properly charged jury acting responsibly could
be relied on for conviction: then it is not appropriate to direct
verdict of acquittal
Court cant weigh the evidence at this stage
Option for defence: let the evidence go in, then call no evidence. Say
not enough for BOP, request directed verdict.
Air of Reality (on A): Papajohn
Not to be assessment of the defence on the merits. Only Q is if there is
any air of reality.
Defence has to raise some evidence and must have Air of Reality
before crown has to respond (806)
Burden on applicant raising issue: Stone
Burden on applicant. (Remember, crown can advance automatism)

21

Evidentiary burden is at play in automatism, whether is non-insance

automatism or insane automatism.
Presumption for disassociation defence is s.16 mental disorder
Tells us what kind of evidence would like to see to meet this burden

SCC Guidance Air of Reality: Sinous

Air of reality on totality of evidence, assuming the evidence is true.
Trial judge not to consider credibility, weigh evidence, or assess how
likely defence is to be successful
Q for trial judge is whether the evidence discloses a real issue for the
jury to decide, not how the jury should decide the issue.
Applies to all defences. Some specific defences require higher burdens
as well.
Beyond a Reasonable Dout, Jury Instructions: Liftus
Issue: how to explain beyond a reasonable doubt to juries
Should not be explained in ordinary context. Is more than reasonable
in everyday life. NOT moral certainty (that is too high a standard and
invites deciding based on subjective feelings). Dont use other
descriptors / synonyms. (812)
(812): Fancy quote / comment on importance of BRD. Lawrence likes
this quote.
Suffices to instruct jury is a doubt based on reason and common sense,
based on logic and fact.
Must instruct jury not to be based on sympathy, etc.
Remind jury that crown doesnt need to prove to absolute certainty.
If Accused takes the stand and gives evidence: WD, qualifications
added by JHS
If believe A, must acquit
If dont believe A but left with reasonable doubt, must acquit
If cant decide what to believe, must acquit
If cant decide on some evidence, must decide on basis of the evidence
that you do accept
Criticisms?

REGULATORY OFFENCES
Strict liability offences: difference set up for Persuasive and Evidentiary
Burdens (Sault St Marie)
Crown discharges persuasive burden by proof of actus reas alone, then
burden is on defence
3 categories of regulatory offences from Sault St Marie

22

CONSITUTION / CHARTER
Claimant must prove Charter breach on balance of probabilities. If proved,
Crown must prove justifiable on cogent and persuasive burden more
rigorous application of BOP standard, given whats at stake (constitutional
rights).

REVERSE ONUS PROVISIONS

Exceptional circumstances.
Legal device: allows court to reach determination of fact where there is no
evidence or can be inferred. E.g. s.16 presumption of sound mind.
Critical Q / Constitutional Q: is there a violation of the presumption of
innocence? Is that violation justified (Oakes)?
Note for exam: only need to be able to spot this issue.

APPEALS
Exam: if an appeal, dont miss the initial question of if you can
appeal.
Can you appeal?
1. Civil: no appeal from finding of fact unless that finding is plainly wrong
(Stein, Kathy K)
2. Criminal: differences between Crowns Right of Appeal and As Right of
Appeal
Crown limited to questions of law
S.675: right of A to appeal Q of L or mixed Q of fact and law. A must
have leave of court.
Test from Bannis:
o Whether verdict is one that a properly instructed jury acting
reasonable could have rendered
o Difficulty assessing, but do have direction that jury decision
cant contradict bulk of judicial experience
o Reluctance to second-guess assessments of credibility (back
to importance of seeing W)
o Policy concern: that CA not unsurp role of jury / act as a 13 th
juror
o Trying to strike a balance of the above concerns!
Admissibility of witness is question of law

23

HEARSAY
Out of court statement is okay unless tendered for its truth then
inadmissible unless falls into exceptions (categorical or principled
approach)

OVERVIEW OF HEARSAY APPROACH

1. Is it an out of court statement? If not express, is it somehow implied
(Baldry), or if conduct is it assertive?
2. Tendered for its truth?
3. If hearsay, presumptively inadmissible
4. Exceptions (list):
5. Is the exception itself open to challenge (based on R+N)?
a. Can that category be modified to bring into compliance
6. Even if fits into exception, are we satisfied it has R+N on the facts?
7. Outside categories, should it still be admitted under Principle Approach
because were satisfied about R+N? (List ways around, see cases
examined)
8. Should the evidence still be excluded on residual discretion (probative
value vs prejudicial effect)? (Smith)
*Similar concerns at play in step 7 and 8.
**Make list of considerations for both R & N from cases.

24

Out of Court Statement

Tendered for its truth

hin category of exception (as modified if necessary

under Principe
Approach)
Admissible
by Principled
Approach if meets Reliability and Necess

Admission still subject to residual discretion (by trial of Law)

es if lacking Reliability or Necessity on facts

Assessment of Appropriate Weight (by trier of fact)

NOTES FOR EXAM

Speech from Myers dissent:
Uncertainty
Sounds nice on paper, but is it the best approach on the ground?
Exam: is there an alternate to the categorical or principled
approach? What is the better way?
Fact Pattern Q:
1. Analysis to se if it is hearsay

25

2. Mapara approach
o Presumption, category of exception
3. Principled Approach
o Need to argue Reliability and Necessity I
o Issue with arguing reliability if want to attack on stand later)

HEARSAY EXCEPTIONS
Exam Q: if could abolish one exception
Note: there are more exceptions under the categorical approach. The ones
below are just what we covered in class.
Ask: is this a good exception? Should it be refined or abolished? What about
via Principle Approach?

RES GESTE
Mapara
Heresay presumptively inadmissible unless falls under an exception
Traditional exceptions apply
Res geste: excited utterance. Statement made by a person in response
to an event or under stress. Statement becomes parts of the event
o Justified by idea that statements made in this context are reliable,
danger of insincerity minimal / unable to lie
o Is this valid? Are such statements accurate?
Original Test in Bettingfield 1879 (164)
Woman runs out of house with throat slit, points to house. Is what she
says part of res geste?
Held: no, not sufficiently contemporaneous with through slitting
Hard to meet this standard! Especially with domestic violence.
New Test in Rattan
Crown sought to limit statement from wife to operating asking for police
help
Held: Bettingfield too narrow. Q is not whether statement was part of the
event
Test: whether statement so clearly made in spontaneity or with event so
that theres no possibility of concoction (159)
Clarke 1985
A argues self-defence. Neighbour saw woman in driveway saying Help,
Ive been murdered!
Held: rejects narrow contemporaneity test. Focus on circumstances:
concerned about concoction and reliability.

26

o
o
o

Why not concerned about perception? Deceased can have

perception that was intentional murder but still have self-defence.
Prejudicial, use judicial discretion, potential to inflame if it goes in,
so need to properly instruct (e.g. on effects of trauma)
Room here for reform or abolishment

STATEMENTS AGAINST INTEREST

Catches statements made that are prejudicial, idea is that a person wouldnt
say something prejudicial if it wasnt true (this disregards self-harm, mental
issues), statements are therefore more reliable & less danger to admit
(assumptions about human nature which may or may not be sound).
Old cases: does statement need to be prejudicial to penal interests, or can it
include pecuniary interests?
Applies to both pecuniary and penal interests OBrien
3 Guiding Principles for Penal Interests: (166)
1. Fact stated must be in peculiar knowledge of declarant
2. Fact must be one to imminent prejudice of declarant. If
ambiguous or contingent, doesnt apply.
3. Declarant should subjectively know that is against his interests
& appreciate the prejudicial nature.
Here, not sufficiently prejudicial. If let it, would be very easy to create
doubt for a friend.
5 Conditions in Peltier
Crown sought to limit statement from wife to operating asking for
police help
Held: refused to admit statement. Is it admissible to raise doubt re A?
5 Conditions from Denote (171):
1. Subjective apprehension of vulnerability to penal sanctions
2. Must not be too remote
3. Judge can consider declaration in its entirety
4. Judge will also look at whether other circumstances connecting
declarant to crime search for corroboration (reliability)
5. Judge must be satisfied that declarant is practically unavailable
to testify (necessity) adopts McCormick approach to this, any
reason should suffice
Admissible to Exulpate, not to Inculpate Lucier
Alleged K arson, told police was hired to light house on fire
Held: Statements against penal interest should only be admissible to
exculpate A, not to inculpate
Fairness issue: A robbed of opportunity to cross
Q: would there be a different outcome with the principled
approach in these facts?
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EARLIER TESTIMONY
Evidence in earlier proceedings is hearsay. But at CL, was an
exception if W truly unavailable and both the issues and the parties were
substantially similar (ensuring evidence was properly probed at initial
proceeding) and could be shown W was crossed.
REPLACED with CCC s.715, Rule 12-5(54) in civil contexts
Criminal: refuses to be sworn or is now unavailable. Testimony given
in the presence of A and there was a cross-examination. Can be
admitted without further proof.
Sometimes still unfair: trial judge retains residual discretion
Just need opportunity to X, discretion makes s.715 constitutional
Potlan
Is s.715 in violation of Charter? So long as retain the residual
discretion, it is okay.
Opportunity to cross: so long as A had the opportunity to cross on
the earlier occasion, it doesnt matter if A actually did. The opportunity
makes it fair. If chose not to cross, thats just too bad.
Civil Rule 12-5(54)
Applies whether or not prior proceeding involved same parties,
so long as there is reasonable notice
Rule relaxed because liberty is not at stake
Verdict from criminal conviction is highly reliable hearsay and
efficiency requires admission (shows up with civil claim for
compensation after a criminal trial)
BCEVA & using the Civil Rule 12-5(54)
File the conviction as proof that A committed the offense
Decisions of crown to drop certain charges makes problems for civil
case
Can make admissibility into civil case part of the plea deal
Jesse
Crown trying to link occasions to show similar MO, relies on this to
prove 1st conviction
UK Doing Their Own Thing Hollington
Criminal conviction not admissible
Not followed in Canada

STATEMENTS CONCERNING BODILY / MENTAL CONDITION

28

Contemporaneous with the condition described. Reliability is drawn from

spontaneity. (And no other way to get at this info without words)
Limits: statements cannot speak to past pain or to the causes of the pain.
I think Ive hurt myself Yuledon
Statement is admissible b/c contemporaneous
Had he said I hurt myself because I lifted this beam would have been
inadmissible

STATEMENTS OF INTENTION
Intention rests exclusively in mind of declarant (similar to bodily / mental
condition).
Q: whether its relevant. Generally only relevant if acted on.
Canada Case PR cite this one (and work through the analysis it sets
out)
Relevance, residual discretion
Relevance (178): relevant circumstantial evidence as to how she
acted, but also relevant to A and whether he had motive to kill
Articulation of exception at 188
Provides substantive review of each statement, different results for
each
US Hillman (181)
Declaration of intention to travel relevant to Q of whether declarant
actually travelled (Fact A makes Fact B more probable)
UK Whainright, ______
Statements were not admitted
Held: statements of intention insufficient to support inference that
acted on them, insufficient nexus of probability
Possibly because of attitude of the day RE contents of the statements,
characteristics of declarants

STATEMENTS BY PARTIES
Different than formal admissions. Not statements against interest (that does
not include parties).
Civil: any party to the civil proceeding, anything other side ever said
or did fits within this exception so long as is relevant
The defendant told me, the plaintiff told me its in!
Our car example from hearsay excercise

29

Statements by A: special rules on confessions. See that section.

BUSINESS RECORDS
Self-authenticating documents get some documents in; others go in through
exception to hearsay.
If not self-authenticating, the contents of a
document tendered for their truth are hearsay so
ask if are business records.
CEVA ss. 29, 30 (similar provisions in BCEVA)
Usual and ordinary source of business
If doesnt fit in statutory definition, go to the CL
Monkhouse
Note: in Alberta, there are no statutory provisions so only have CL

PRINCIPLED APPROACH
Movement from categorical approach 1960s and 1970s.
Dissent sets out Principled Approach Myers (House of Lords)
Case hinges on business records, but hearsay (though highly reliable)
because didnt fit within an exception
Dissent (Pierce): (197 198) endorses a four-part test (198).
Embedded in test: reliability and necessity. Lawrence likes this
speech: put in exam if possible. Rejects majoritys resistance to law
reform.
Majority: the current approach is highly technical, but changing will
produce too much uncertainty, too many appeals. Should be left to
Parliament.
Principled Approach in Canada: Myers Dissent adopted in Ares (SCC)
Modern Rule: works through using analysis of necessity and reliability
LIMITS the approach to the facts of the case: context of hospital
records. (So still basically a category, but marks a turning point)
See real change in 1990s: Con, Smith, BKBG
Relaxes Rules for Hearsay Evidence of Children Con 1990 SCC
McL critical of strict application of categorical approach.
Should the rule be relaxed? Focus on cases involving children.
Held: hearsay evidence of children should be received, provided
sufficient safeguards of reliability and necessity are met (204):
1. Necessity: must be reasonably necessary. Compassionate.
2. Reliability: many considerations. Flexible approach, leave to
judge.

30

Concerned about justice, current approach inflexible, requires kids to

retell traumatic experience. (202)
Safegaurds RE rights of A? Cross-examination? Interests of A are
addressed by according the evidence less weight.
Q: does this just apply to children? Does it go further?

Principled Approach becomes Rule of General Application Smith 1992

Extends the principled approach to the facts of the case and elevates it
to a rule of general application.
Reliability & necessary at 209
o N here because declarant deceased
o R: judge goes statement by statement. Look at courts
examination of the statements and definitions of R&N.
o Circumstantial guarantees of trustworthiness
Adds caveat about weight: upon to trial judge to assign the
evidence diminished weight
Relationship btw Categorial Approach and Principled Approach
Mapara
a) Presumptively inadmissible unless fits into exception. CL exceptions
remain in place.
b) An exception can be challenged to determine if supported by indicia of
Reliability and Necessity required by the Principled Approach.
Exception can be modified if necessary to bring into compliance.
c) In rare cases can still be excluded even if it falls within an exception
if necessity and reliability are lacking.
d) Even if doesnt fall within an exception, may still be admitted if R+N
are established on voir dire.
Analytical Model to Follow on Exam: Khelowan
Articulation of Principled Approach at 249
o Functional approach
Focus on potential hearsay dangers (251)
o Central underlying concern is inability to test
o Need to show no real concern because of the
circumstances (make it inherently reliable) or if can be
subject to testing
Possibly important fact: failure of police or crown to take this evidence
on commission (ss. 711 and 715 of CCC allow formal taking of evidence
in circumstances like these out of country, ill)

PRIOR INCONSISTENT STATEMENTS

31

Generally not admissible for their truth; are admissible to challenge

veracity of current statement (see discussion in Credibility). But, if want to
get the statement in for its truth: use exception set out in KGB.
KGB
Prior inconsistent statements can go in if satisfy the requirements of
the Principled Approach
New admissibility Rule: concerns about hearsay are heightened in
cases like this, where are getting two versions of the truth from the
same witness.
Threshold: only admissible as PSI if otherwise would be (if given at
trial)
Reliability:
o Satisfied if given under some kind of oath, video recording,
and opportunity to cross-examine at trial (will suffice even
though concurrent cross is best)
Necessity:
o Flexible. Necessary here because W is now recounting
Process articulated at 221
Results in KGB Statements being taken by police. Possibly extend
this / use this in domestic violence situations?
Hawkins
Saw this case before (non-compellability of spouse). Allows the
evidence in through the Principle Approach (statements made at
preliminary inquiry, now recanting b/c spouse)
BUT if any statements were improperly admitted at preliminary inquiry,
its open to counsel to object at trial
Admission subject to residual discretion and still have question of
weight.

CLASS EXERCISE ON HEARSAY

*Lawrence thinks line-up Q (#8) would be good exam Q.
Problems in text, pg 151
1. Martin reporting that Will says I do = hearsay. Joan: if tendered for proof
that he believe she moved to Ottawa. Different issue depending on the mens
rea
2. (a) Hearsay: express, tendered for its truth. (b) Not hearsay: tendered not
for proof of its content, but to Xs state of mind
3. (a) Hearsay, directly. (b) Not hearsay since its Joe saying what Joe said
(and Joe is on stand so can be crossed) (c) Hearsay? Just proves the offer, but

32

cculd be part of chain of facts. (d) Implied hearsay? But could just be what Joe
thought. Depends on what its being tendered for.
4. (a) Hearsay if tendered to support is cocaine dealer. (b) If tendered for
Reasonable & Probably Grounds, what was in officers mind, then not hearsay.
5. Implied hearsay, used [43] in Baldry: implied treated the same as direct
hearsay
6. Not hearsay because issue is whether or not its recorded evidence just
goes to what X thought. Ambiguity: whats the material issue? If faced
with in exam, say If the material issue is X, [analysis.], if material
issue is Y
7. (a) (c) not hearsay. (d) (e) hearsay
8: what he says she said = out of court. If statement tendered to establish
that she in fact consented, then its problematic. If tendered to establish the
mens rea, what her thought about consent, then its not problematic.
9: shaking is not assertive conduct, so is admissible. His words: depends on
the reason, other evidence, purpose for it being tendered.
10: heresay: assertive conduct, implied. McKinnon
11: probative value of statement just made it more likely, goes to identity.
Dissent: should be inadmissible. Lawrence agrees with dissent, this is how
you frame someone (Q is if exception)

OPINION EVIDENCE
General Rule: not admissible. Ws testify as to facts along. Up to trier of
facts to determine what inferences may be drawn.
2 Exceptions:
1. Lay Opinion: matters within common knowledge, summary
2. Expert Opinion

ADMISSIBLE LAY OPINION EVIDENCE

If relates to matters within common knowledge and is just a summary way of
expressing multiple perceptions (e.g. had a bit of grey hair, wrinkles)
It was my opinion that she was about 35 years old
She seemed to be going about 35 km/hr
Intoxication? Possibly, but more controversial.
Grant 261

33

PO may testify opinion on whether A was intoxicated. Lay

opinion evidence, not entitled to special weight because it came from
PO
Limitation: not permitted if goes to ultimate issue, legal issue, liability
of A, mixed question of fact and law

The closer you get to the ultimate question (something that dispositive), the
more the courts will reign in
Less weight because its lay opinion evidence. Need to buttress with
independent fact.

EXPERT OPINION EVIDENCE - LIMITS

Purpose: assist the trier of fact.
Key danger: expert can usurp trier of fact. Strictly regulate what goes in.
Dangerous evidence:
o Expert evidence is based on research that is not before the courts, so
there is no opportunity to test it
o Expensive: access to justice issues
o Expert can also be immune to cross because the lawyer does not have
the same expertise
o A jury may abandon its role and defer to the opinion of an expert

Test articulated in Mohan (1994 SCC) (267)

Evidence must be relevant & necessary, not subject to exclusionary
rule.
Expert must be properly qualified

Test reformulated and set out in Abby (still based off Mohan) 271

Step 1: 4 Preconditions
Step 2: Cost-benefit analysis by judge
Step 1: 4 Preconditions: Party seeking to adduce evidence has the
burden
(1) Proposed evidence relates to subject that is properly matter for
expert evidence. Outside lay knowledge, requires specialized
knowledge.
(2) Witness must be qualified. Has that specialized knowledge.
(3) Must not run afoul of exclusionary rule (hearsay)
(4) Must be logically relevant: does existence of Fact A make Fact B
more or less likely? (normal relevance test)
Step 2: Gatekeeper Stage: similar assessment to residual discretion

34

Do the benefits to admission outweigh cost? (similar to probative vs

prejudicial)
Legal utility (court calls this legal relevance)
Probative value, significance of issue it goes to, risks, costs

Precondition 1: Outside knowledge of judge / jury

What is outside the knowledge of judge & jury? Changes with

time.
See excerpt in Abby and Mohan.

Turner (268): likely to be outside the knowledge of the jury or the

judge, where jury cant form a conclusion without help
Lavallee (274): court admitted expert evidence on altered
perceptions in batter women, lack of alternative options. Outside
knowledge of court, prevailing myths. 288: principles for
admitting expert evidence. Changed the law on self-defence.
Advocacy: when the evidence changed, the facts changed, and the
law changed. If law based on expert evidence, in order to
h=change the law you have to change the evidence. (Daviault
Dowe: brings evidence to show this evidence is fiction)
Daviault: no m/r in extreme intoxication
Dow: psychological state does not exist the law from
Daviault was based on a fiction. Expert evidence on
automatism lead to the creation of the presumption in
Stone
Mabior: new law based on expert evidence. To change the law,
introduce different evidence.
Novel areas of expertise & science.
Mohan: novel science requires scrutiny, basic threshold of
reliability
Frye: Test is General Acceptance (in the area, not public
acceptance). Law has evolved, general acceptance is now just one
factor.
Dabeaurt: Reliable Foundation Test. General acceptance is one
factor. Also consider testing, peer review, potential for error.
J-L.J: accepts Dabeaurt in Canada (297)
Belon: admissibility of polygraph evidence. Use this to analogize
MRI

Precondition 2: Qualifications of Expert

Witness is actually qualified to give that opinion (opinion is
within their sphere of expertise)
Ask witness to tender a CV

35

If expertise contested preliminary inquiry occurs before anyone

hears the opinion
Parties can jointly fund an expert, or one party can admit the
expertise
Closer to dispositive issues test more strictly applied (same as
lay opinion) not permitted if it goes to the ultimate issue or legal
issue, liability of the accused/defendant, or goes to questions of
mixed fact and law

Determination of ultimate issue rests with trier of fact

Challenge: proving facts that expert opinion is based on

(304 314).
309 in Lavallee, Abbey: how to prove the facts on which
the expert opinion is based must be based on a factual
matrix (if facts are told to expert, hearsay)
2 options for doing this:
1. Have expert sit in court and listen to facts, render
opinion based on what heard in court (costly!)
2. Proceed based on assumed set of facts. Then incumbent
on you to prove all the facts (do this with other Ws),
otherwise opinion fails.
Conversations between the party/counsel and an expert
need to be disclosed so there is no coaching of the witness.
If lots of funds: more experts on each side advising on how to ask
questions/rebut other expert/ script convos with the court expert, but
have other experts to get educated on the issues
Rules about Expert Reports: Timelines, disclosure, verifying
expert understands duty to court
Civil:
Rule 11(3): court may appoint own expert
11(6): notice of expert testimony, exchange of expert report
Experts must explicitly certify they understand role (duty owed
to court, not to be an advocate)
Qs RE institutional of personal independence
Criminal:
Code: disclosure (crown must disclose in advance
Stingecombe duties on crown A must disclose at least before
crown ends case)
CEvA: limits number of experts to 5, unless special permission

36

Sample Q on course spaces: 2 issues. (1) is this expert qualified to speak on

these subjects. (2) novel science: particular care needs to be taken with this
type of evidence.

EXPERT QUALIFICATION: ANGELA CAMPBELL AFFIDAVIT

Polygamy Reference
Rare case where the expert evidence was challenged on admission (does she
have the knowledge?)
Rigour in the cost benefit analysis: the reliability of her analysis
(methodological issues)

Court let affidavit in.

Will apply Mohan as articulated in Abby
Preconditions met:
1. Something court can use help with
2. Qualified as legal scholar: objection here argued lacks required
specificity. Court: though broad, reflects interdisciplinary
research, not helpful to try to make tight category. Threshold
qualification for expert (Markhard): formal academic credentials
not required; bar is not that high. She has a lot of on the ground
experience.
3. Have not pointed to exclusionary rule
4. Logically connected
Cost benefit analysis (gatekeeper) of evidence:
o Influenced by fact that is reference going to be generous on
side of admissibility (not adjudicative, not a disposition of rights)
o Cautions against answering constitutional qs in a factual
vacuum
o Reliability concerns: bulk of objections were around her not
being impartial (advocacy). Prior advocacy can be overcome by
statement of duty to court. Methodology (contrasted with expert
in Abby but that required a high degree of reliability, had an
impact on the ultimate issue, Campbells evidence does not
have such an impact)
o No significant cost to admitting the evidence

Opinion evidence is all about the application!

CREDIBILITY
Truthfulness and veracity. Distinguish from reliability: about accuracy,
perception, recollection.
e.g. intoxication of witness could go to reliability, but is not grounds on which
to challenge credibility. Both reliability and credibility need to be

37

considered, but considered separately. Reliability is fertile ground for

cross-examination.
Starting point: credibility always an issue, always a relevant Q.
Heavy reliance in our system on observations of witness in witness box
quality of answer and manner in which it is given.
Rook: Factors that may go into assessment of credibility
List serves as a skeleton for cross and closing statement
Demeanor and manner
Character of testimony
Extent of reported capacity of witness to perceive / recollect /
communicate
Ws character for honesty, veracity
Existence of bias, interest, or other motive
Consistency (prior statement)
Verification of existence of any fact testified to by W
Attitude of W (toward action, toward giving testimony)
Any admission of untruthfulness made by W (cuts both ways)
How to test credibility?
Can be problematic to rely on mannerisms. Demeanor alone rarely
sufficient to make assessment of a lack of credibility.
Instead, use Farina (321): real test of truth of the story of an
interested W must be its harmony with the preponderance of
possibilities USE THIS LINE ON EXAM. Must make sense, must
be probable.
Child Witnesses: WR
Common sense approach
No hard and fast rule, credibility assessed (like with other witnesses)
with reference to the criteria of . mental development,
understanding, ability to communication. 321
Court provides recommendations on what to tell jury
Leaves discretion
Likewise with adults testifying about events as a child
Proceed on case-by-case basis
More leeway for things that would be problematic for non-child W (e.g.
specific times, inconsistencies)

LIMITATIONS: AGAINST OATH-HELPING

38

Oath helping: bolstering witnesses credibility. Start with assumption that

witness is truthful. General Rule: cannot advance evidence to show that
witness is credibly (or more worthy of belief than other witnesses)

Exceptions to General Rule:

1. Expert Evidence
2. Reputational Evidence
3. Prior Consistent Statements (3 types)
1: Expert Evidence
If A testifies to specific good acts in his past, crown can attest to specific
prior bad acts
Kyselka
..
Where expert evidence explains inconsistencies: Marquart 325
Rule against oath helping applies equally against expert evidence
Experts opinion may be readily accepted
BUT may be circumstances where expert evidence useful to explain
what otherwise looks inconsistent (e.g. may be in case relating to
children, rape)
___ Conditions (327):
1. Qualified expert in area of human conduct in question
2. Must be type of evidence jury needs
3. Jury must be properly instructed
**See LH dissent**
2: Evidence of As Good Reputation
General Rule: defence may lead evidence as to good character for purpose
of raising reasonable doubt. NOT admissible for other witnesses, unless
and until their credibility comes under attack (think of as rebuttal
evidence, not so much oath-helping).
Clarke
...

3: Prior Consistent Statements (3 types)

Thats what I told my doctor / friend / police Not probative of the truth
of the statement (W may be equally mistaken / untruthful on each
occasion). Self-corroboration. If tendered for truth, is hearsay.
When should it go in?
(1) Plain Description of Narrative

39

Chronology, or to explain conduct

o E.g. if its important to the narrative (e.g. I told the police X
so then they went and did Y / made me come down to the
station)
Jury must be instructed as to limited use that can be made of the
statement (not for its truth) if evidence goes too far
(2) Prior Identification
(3) Rebuttal of Recent Fabrication
Engaged where suggested that W concocted story on the stand
General Rule in Ellard (334):
o Contamination argument
o Crown adduced evidence of prior consistent statement
o Judgment set aside because trial judge didnt make instruction
as to limited use of the evidence
o SCC: where alleged fabrication, may rebut (can be notexpress allegation). Crown allowed to do this, but here the
prior consistent statement still after the alleged
contamination. Timing is important.
o Note: this is why its useful to get order to exclude witnesses
(keep them from staying in the court room after testifying)
DD: no adverse inference can be drawn against a complainant in
sex assault case RE failure to make a prior complaint
Edgar Approach (ONCA) 338 [72]
o Includes exculpatory statements made by A upon arrest [if
crown is saying fabricated defence (e.g. of self-defence)]

PERMISSABLE ATTACKS TO CREDIBILITY

Focus here on 4 of 5 categories of impeachment
1. Lead expert evidence as to abnormality of W that would bring
their veracity into doubt
Medical evidence: some kind of disability, symptoms of which should
consider when assessing credibility
Problamatic: we dont know enough about this connection
344: hysteria. Expert in this arena may be permitted. Ugh.
2. Lead evidence of bad character or reputation (against W, not A)
Clarke: still falls to trial judge to determine if probative value
outweighs prejudice, but its rare cases where the evidence will be
excluded
BUT crosses line where character witness comments on whether W
should be believed in court under oath. Reputation in community is
fundamentally different than veracity under oath.

40

3. Tender Prior Inconsistent Statements

W must have statement presented to them so can examine & explain
Can also use this with own witness who becomes hostile (s.9)
extraordinary circumstances. Proceed with permission of court.
4. Prior Convictions (Criminal)
Use of evidence here to show W not worthy of belief (as opposed to
using to show propensity for a particular crime, which is character)
CEvA s.12, BCEvA s.15
Only when A chooses to testify
Problematic: does the fact of prior conviction make the witness
less worthy of belief in this case? Demographics. Lawrence:
more useful with integrity offences (e.g. fraud).
Examination of prior convictions by crown must be limited to questions
as to nature of crime (what it was), subject and effect of indictment,
place, penalty. No details of the offense itself.
Includes juvenile records, provincial offences.
Do not include if got absolute discharge.
s.
o
o
o

12 Challenged in Corbit under Charter

S.12 survives but must have residual discretion.
A can apply to have pieces of the record edited out
Corbit Application: must be made before close of crowns case.
Applications of case, decisions made on these appeals difficult to
reconcile. Know relevant factors.

COLLATERAL FACTS BAR

Cant use extrinsic evidence to impeach a witness on issues that are
irrelevant or immaterial.
Definition not clear (376)
Incumbent on counsel to raise objection, then onus on party seeking to
adduce.
Cases here turn on the facts (381)

CORROBORATION
Vitrovec brings requirement for corroboration to end for
accomplices.
No special requirement (at least at CL) for corroboration of
accomplices evidence
Instead, what might be required in appropriate cases is clear and sharp
warnings to jury RE the risk of adopting evidence from this type of
witness without more
Vitrovec Warnings: unsafe to convict without more. Counsel can
request.

41

Historical practicality of instruction not to convict for some offences (or with
some types of evidence) in the absence of corroborating evidence

CHARACTER AND RELATED ISSUES

Character: propensity / disposition to behave in a certain way
NOT credibility or habit
General Rule:
Crown cannot leave evidence of character as part of its case in chief.
BUT accused may lead character evidence as circumstantial evidence
of innocence (evidence of good character).
Once A puts character at issue its open to the Crown to rebut it
Limits on what Crown can do to rebut: can neutralize, but cant go to
town
Prohibited Character Inference:
Evidence of bad character may be relevant, but inadmissible because
of its prejudicial effect.
Prohibited inference is that A did the thing b/c of a propensity, and this
is too tempting an inference for juries.
Express Permission by Statute:
Statute can expressly permit character evidence
E.g. dangerous offender hearing
Note: discussion in text about defamation is more about reputation, not
character. Michelle disagrees with text here.

HOW ACCUSED PUTS CHARACTER IN ISSUE

Three
1.
2.
3.

ways to put character in issue (Routin, MacNevara):

Adducing evidence of reputation for good character
Testifying as to good character (I would never do that!)
Calling expert evidence as to propensity / disposition

*Judge will watch Crown closely. Not allowed to trick A into putting character
in issue.

HOW TO PROVE CHARACTER

ACCUSED
1: Reputation, generally
Evidence of As reputation can be adduced to show bad character
Reputation must be known generally

42

W giving this evidence cant go further and tender an opinion on

ultimate issue

Community: Routin OR Clarke

Can adduce evidence from community beyond that in which they
live (e.g. work communities)
Can we extend this to virtual communities? Maybe!
Weight: Prophet
Character evidence may be given lesser weight / little weight in
case involving sexual assault of children
Analogize from this case!
Minority view prevails at SCC
2: Specific Acts
If A testifies to specific good acts in his past, crown can attest to specific
prior bad acts
MacNamara
A puts character at issue, Crown wants to Q as to a specific issue
Allowed, subject to Q of residual discretion
Read with s. 666 CC
s.12 CEvA
Applies to any W or A on stand
Allows Crownt o adduce Ev of prior convictions, subject to
discretion to redact problematic parts (Corbit)
s.666 CCC
If A puts character at issue, Crown can put previous convictions
Crown can go further than under s.12, can go into details
Q: do Corbit Principles apply under s.666? We dont know yet!
3: Psychiatric Evidence of Disposition
Must be more than a pedestrian trait otherwise not helpful & Judge will not
allow
Exculpatory: Roberston (ONCA), Mohan (SCC)
A attempt to tender expert ev that not of same character as
person who committed the offense Exculpatory evidence.
Robertson: lacked aggressive tendencies
Mohan: lacked sexual proclivities
Held: may be relevant, but to be admitted, must 1 st find that
either the A or the person who committed the crime had some
particular distinction so as to make it useful to compare.

43

Cant be pedestrian or common. Then must also satisfy test

for expert evidence.
Inculpatory Ev: Mohan
Only admissible if shown to be relevant to some fact or issue
other than propensity.

CHARACTER OF THIRD PARTY SUSPECTS

A can advance character evidence of a 3PS to create doubt / point finger at
someone else. Admissible where relevant to an issue at trial, subject (as
always) to application of residual d.
Residual discretion: will be admitted if probative value not
significantly outweighed by prejudicial effect (defense
evidence, so relaxed standard)
Concerns about relying too much on character evidence is not a
concern with 3PS
Known 3P: McMillan
TEST (428): admissible if (1) relevant, (2) falls within proper
sphere of expert evidence, (3) not excluded by policy
reasons.
CAUTION: If A puts character of 3P at issue, may be tacitly
putting own character at issue by suggesting I am a better
person!
Unknown 3P: Grant (NEW)
Existing rules are fine for unknown 3PS. No need for a special test, no
higher threshold.
Affirms existing law.

CHARACTER OF VICTIMS
Admissible, even if character/reputation unknown to A. Strict limits for sexual
assault.
Known or Unknown to A: Scopalitty
Teenage hoodlums. Series of violent and agrressive attacks. 2
teenagers come into As store, he shoots and kills, claims self-defence.
Are prior acts of the deceased admissible?
o If Known, YES. Already established in law.
o Unknown, YES, BUT requires some other evidence of
violence on day in Q, otherwise may be used for improper
purpose. See text!
Sexual Assault: ss. 276, 277
44

Reputation evidence is inadmissible RE consent and credibility

Strict limits placed on evidence that is admissible
May still be excluded, modified by residual discretion

CRITICAL REFLECTIONS ON LAW OF CHARACTER

1. Does our law really reject determinism? It allows for character
evidence in certain circumstances.
2. Where is the space for the logic of rehabilitation / for redemption?
3. Does the imposition of threshold (re expert evidence of unique
characteristic) revel to us that the courts are troubled by the seepage
of determinism into the law?
4. Why do we overlook the impact on disposition on substance use?
5. Until we see reforms in this area and revolutions in the core concepts
underlying our system we remain in a system where juries must be
incredibly disciplined in the use they make of evidence.

6. Do you trust the expert, the trier of fact or the jury

7. Access to justice concerns: experts are not funded by legal aid

IMPROPERLY OBTAINED EV. & PRIV. AGAINST

SELF-INCRIM.
History: categorical approach, Q is relevance.

SIMILAR FACT EVIDENCE

Evidence of prior misconduct that is linked to A, is linked to past acts other
than which the A is charged with: crown can draw on evidence of past
convictions, allegation of wrong doing and examples of moral behavior
exhibited by the accused
Particularly useful for crown where evidence directly related to the
commission of the crime for which A is charged weak or not available
Pull in evidence of previous conduct in order to link A to that previous
conduct
E.g.: sexual abuse case, crown may draw on sex acts of A in order to
link A to the presecution in which the same acts are at issue
Makin v Attorney General for New South Wales JCPC 1894
438 on the other hand the mere fact that the evidence adduced tends .. it may be so relevant if
the acts rebut a defence that would otherwise be open to the A
Evolution of this principle has hinged on this second branch
Categorical approach

THE CATEGORICAL APPROACH (HISTORY)

45

1. All similar fact evidence introduced to show disposition or propensity is

inadmissible
2. Admissible to prove intent or identity, or to rebut the defence of
innocent association, or some other similar and related purpose
3. Court would examine the level of similarity between the facts to be
admitted to the facts in the indictment
Makin / Smith (439): similarity of the facts must be so overwhelmingly
obvious that they overwhelm the possibility of coincidence
Smith
Both 1st and 2nd wife killed by drowning for insurance
3rd wife also killed by drowning.
R v Straffen UKCA 1952
victims were both young girls, both killed by manual strangulation, no
evidence of sex assault or struggle, no attempt to conceal the body
What is interesting here (problem that still continues today)
there is a complete absence of social science evidence if some of
these variables in the script of the offence are truly unique or
abnormal

PRINCIPLED APPROACH TO SIMILAR FACT EVIDENCE

Allow in similar fact evidence provided it does not invite the trier of fact to
infer a general propensity and find guilt on that alone. CAN infer from
specific similar fact evidence (peculiar characteristic): necessary in, for
example, serial sexual assault cases where identity is at issue.
Broadman: first case to abandon categorical approach
Forcing similar fact evidence into neat categories lead to too
much rejection
Principled Approach: removes requirement that similar fact
evidence falls within a category of relevance. Focus of probative
value vs prejudicial effect.

TEST? Uncertainty in application, contradictory rulings.

Broadman: Shockingly similar

Guay: threshold set high. Admissability of similar fact evidence,
echoes principled approach.
Robertson, M, DLE
BCR: final blow to categorical approach in Canada, adopts
Principled Approach. Cite this one. Rejects strickingly similar
in favour of ______
46

Final word on similar fact evidence in Canada : Handy,

Shearing
Onus is on prosecution on Balance of Probabilities (similar fact
evidence is presumptively inadmissible) to show probative value on a
particular issue outweighs the prejudice and its admission is justified.
3 Step Framework:
1. What is the probative value?
2. What is the prejudicial effect?
3. Which outweighs the other?

HANDY FRAMEWORK
1: Probative Value has 2 Categories & 7 Connecting Factors
I.
General: Inadmissible
a. Showing A is a bad person should not support finding of
guilt.
b. Has little probative value.
II.
Specific: high probative value if used to support the issue in Q
a. Need to identify issue at Question (e.g. identity, credibility)
7 Connecting Factors: may weigh in favour of admission
I.
Proximity and time of similar acts
II.
Extent to which other acts are similar in detail
III.
Number of them
IV.
Circumstances surrounding or relating
V.
Distinctive features unifying the acts (something unique)
VI.
Intervening acts
VII.
Any other factor that would tend to support or rebut
Dont forget risk of collusion
If credibility is at issue, court receptive to something distinct, elevated to
point of hallmark / signature (distinct from M.O.). So unique / unusual that
can corroborate or prove identity.
Shearing:
Jesse: expert evidence tendered to support application of doctrine (thin).
Evidence of community support worker becomes determinative.
**Potential here for increased use of expert evidence: should not be up to
judges to determine what is normal versus unique in sexual assault
cases.
2: Prejudicial Effect 2 types of prejudice the court seeks to avoid

47

I.
II.

Moral: concern in Jesse (inference that was violent person and

therefore deserved punishment)
Reasoning: distracting jury.

Can warn jury, but Qs about how helpful this is. SFE poses logistical
problems.
3: Balancing
Prejudice goes to fairness of trial. Probative value goes to proof. Dont
exist on same spectrum

CONFESSIONS
Confessions are given great weight, but relying on them is problematic b/c of
risk of false confessions. Issues with interrogation.

CL CONFESSIONS RULE
Start with Fundamental Rule of Evidence (relavant to material issue, not
subject to exclusionary rules). Applies even if obtained illegallymethod of
obtaining is part of the exclusion analysis.
To be admissible, confession must be made voluntarily. Crown: beyond a
reasonable doubt.
Can layer on arguments for exclusion of evidence under Charter (statement
made to police, physical evidence obtained as a result of these statements).
Does s.24.2 require the evidence to be excluded?
Ibraheim (UK): not obtained by fear of prejudice or hope of advantage
held out by a person in authority
Boudreau: rule directed at danger of improperly instigated, induced,
or coerced statements. Doubt cast on the truth
Does not articulate concern for fair process
Police warning not necessary to establish voluntariness, but is
useful
4 Part Framework:
1. Was statement given to person in authority?
2. Rules governing the voire dire (process, etc.)
3. On what grounds can a statement be found to be involuntary?
4. How do this work in relation to the Charter?
1: Person in Authority

48

Seen to have coercive power by virtue of the office, so law presumes the
suspects free will / self-control more likely to crumble, may give false
statement when coupled with a fear of prejudice or hope of advantage.
Definitely includes uniformed & identified officers, prosecutors.
Test: Rothman
Subjective: whether the person giving the statement believed
was giving statement to a person in authority
Here, A thought was talking to a fellow A, so under the subjective
test is not a person in authority and the CL rule is not triggered.
Dissent: POs actions bring the administration of justice into
disrepute, concern for fair process, police trickery. Test: must
appreciate the circumstances, who A believes is giving statement
to, otherwise too much space for abuse.
Lamer: sometimes necessary to resort to tricks. Test: conduct
that shocks the community. Preventing PO from using such a
trick would shock the community.
Incriminating statements made to family of complainant: Hobson,
Wells
Adds to Rothman Test: subjective belief must be tested on
an objective standard. Belief that receiver is a Person in
Authority must be reasonable (doesnt count if A is delusional)
See 504 for summary of key principles
Hobson: parents confront A. Held: while family is capable of
being Person in Authority, werent in this case.
Wells: parents consult PO before attempt to confront (then
threaten with knife). Turns on process.
Mr Big Sting Operations:
Are statements made to PO masquerading as gang bosses
statements made to Persons in Authority?
2: Voire Dire: 5 key points
1. Rests on A to raise issue of voluntariness, put in play
2. Assessment of voluntariness, once raised, must be made in voire dire
3. Crown has persuasive burden in voire dire, proof beyond a reasonable
doubt
4. Judge can initiate a voire dire on own motion. Must initiate in rare
cases where A hasnt.
5. Even if determined to not have been given to a Person in Authority but
the circumstances are suspicious, judge should give appropriate
instructions to the jury.
3: When is it involuntary?
Court generally strict: often involuntary even with relatively minor threats or
promises.

49

Oblique promises about As family: Regat

Oblique promises / threats to As family found not to constitute
threat
Oppressive Conduct
Could be involuntary if obtained as result of oppressive
conduct (depends on a number of factors, including period and
pace of interrogation, whether A given refreshments & clothing,
characteristics of A what counts as oppressive to child different
than RE adult)
Subjective fear of PO?: Hobbins
Timidity or subjective fear of PO should not alone give rise to
oppressive conduct.
Not purely a subjective test
A Must Have Operating Mind
Word: exclude evidence from when A not fully conscious
Test requires consideration of physical and mental condition of A:
whether the words could really be found to be utterances of
operating mind (512)
Whittle: must have sufficient cognitive capacity to understand caution,
etc.
Does not require ability to make good choices.
Hearing voices not enough to make involuntary. Says A still has
volitional capacity.
Aside: volitional capacity not fully addressed
Restatement / Modern Statement of CL Confessions Rule: Oikle
Voluntary: was not overbourne by threats, inducements,
oppressive circumstances, or lack of operating mind.
Test: if shock conscience, even if not a Charter violation
CL Confession Rule should have two goals;
1. Recognition and protection of rights of A from improper
interrogation
2. Not unduly limiting ability of law enforcement to investigate
and solve crime
Concern that court here actually changed the rule in favour of
admissibility.
Spencer: change from Oikle is overbourne, is significant change.
Must go beyond asking if caused A to speak. Ask if went so far as
to overwhelm.
Inducement: looking for quid pro quo. Still must weigh strength of
inducement (withholding visit from girlfriend not enough).
Must be fairly high level to count:
50

o Deprivation of food, clothing, water, sleep, medical attention

o Lengthy or aggressive questioning
o Fabricated evidence
Operating mind: court adopts Whittle (low threshold)

Confession Confirmed by Subsequent Fact:

Admissibility of derivative evidence (obtain further evidence b/c of
details in statement, that evidence proves guilt or links to A)
Concern in Ibraheim about truth, reliability of confession: where
admissible and parts of statement are proved by the derivative
evidence, then count as proof
Ray: murder weapon. Confession was involuntary, but derivative
evidence admitted. (534, 535)
4: Connection to Charter
If violates the CL confessions Rule, is inadmissible and dont need to look to
the Charter. Otherwise, narrow ground for exception: Shock the conscience
of the community
If manner in which confession obtained shocks then arguable that
use of the evidence would bring the administration of justice into
disrepute
Charter should be engaged to exclude: s.7, or s.10(6) if confession
follows arrest or detention

MR. BIG STING OPERATIONS

Hart court articulates new CL rule for Mr. Big Confessions
TEST: It will be inadmissible unless the probative value of the
confession out weights the prejudicial effect and the confession
is not the result of an abuse of process. It is for the crown to
prove on a balance of probabilities that probative value entails
prejudicial effect
Unreliable
Prejudicial effect of admitting evidence that shows participation in gang
activities: character
Concern about police misconduct: abuse of process and power
BUT recognition that these kinds of techniques are also very useful
Para 83: Mr. Big operations can produce confessions that are
unreliable and prejudicial on the other hand they are not
necessarily abusive and are capable of furthering valuable
information that furthers the administration of justice
Factors for trial judge to consider:
1. Length of the operation
51

2.
3.
4.
5.

Number of interactions between undercover officer and A

Nature of relationship that was cultivated
Nature and extent of inducements (what was offered?)
Presence of any threat, conduct of the interrogation itself, how
were the Qs put?
6. Personality of A, age, sophistication, and mental health
7. If confession has markers of reliability, does it lead to other
aspects which confirm other aspects of the confession? Does it
include accurate description of details?
Prejudicial Effect
1. Jury will draw adverse inference as to character bc you engaged in
crimes
2. Reasoning prejudice: jury will loose focus, too much time will be
lost detailing the operation BUT court says this can be mitigated
(case management by crown)
Defence must prove Abuse of Process on a B o P
o Coercion
o Physical violence
o Threats of violence
o From simply preying on a vulnerability (youth, addiction, mental
health issues)
Application in this case:
o Lengthily operation
o Fictitious girlfriends befriending the wife of A
o A was vulnerable, intersection of poverty, mental health issue
o A saw these men as brothers
o Money was significant (any thing would be really for someone
this poor)
o Friendship
o A sense of self worth
o The threat for him was the threat of loosing this family if he did
not confess to a crime
o Court looked to the nature of the interrogation itself (was
considered interrogation) and participation in the re-enactment
There was no markers of reliably in the confession: the
reenactment had inconsistencies and did not make sense
o Prejudicial effect:
A had repeatedly engaged in other forms of criminal act
A was said to have bragged about killing his daughters to
obtain the support of this gang
o Held: this operation was extremely insensitive. A had a seizure in
front of the police officers and yet they continued to pay him to
drive long distances. Preyed on his vulnerability and poverty

Hart could revolutionize the criminal law of confessions: infuse more

with the experience of the suspect. Could mark the beginning of
tremendous change or it could be read narrowly into certain fact
patterns.
52

Mack
Charged with murder of room mate
Did probative value out weigh prejudicial effect?
o Inducements were modest (5,000 over 4 months and accused
had other job)
o A was not threatened by other officers
o Told he would still stay in the gang just not as high up if he did
not confess
o There was compelling evidence in the confession, A was able to
take the officers to the deceaseds remains
o Prejudicial effect: limited, his work with the gang was not
presented and his involvement was quite modest
Abuse
o No coercion, no threats of violence
o A was told he was under no obligation to speak
Words of guidance for trial judges
o Hart: limiting instructions could be given to the jury
o Here: to adequately instruct the jury the trial judge must alter
them to the issue of reliably, review the factors relevant to the
confession and inform jury about the fact that bad character
evidence cannot be relied on for an inference of guilt
o Should tell jury that crimes were fabricated and encouraged by
the state

SELF-INCRIMINATION
A MESS! State of the law is problematic. Way to go, guys.
For fact pattern: make sure to go back to Henry, discuss those concerns,
and also discuss Nedel Ku what could happen depending what case /
interpretation you follow. And then also provide a critique what is the better
option?

FIRST PRINCIPLES: CHARTER AND CEVA

s.13 Charter: articulates safeguard, guaranteed in all criminal proceedings
(automatically)
Focus on words: LLP
W who testifies in any proceedings has the right not to have any
incriminating evidence used to incriminate in any other
proceeding
Except for perjury, giving of contradictory evidence

53

s.5 CEvA: must be invoked by W

No W shall be excusedto answer any Q on the ground that the
answer may tend to incrimate him (or ___in civil proceedings)
W must still answer the questions after invoking s.5
Q: Can the evidence given after invocation be used in a subsequent
proceeding?
Rationale: Noel
Quid pro quo: state gives protection to Ws who exposed selves to
self-incrimination in exchange for full and frank disclosure
In the evidence less that full and frank, may be subject to
prosecution
s.11(c): right of A to not take stand
s.11(d): presumption of innocence
Retrial is another proceeding: Dubois
Crown sought to use evidence from 1st trail in the 2nd (retrial)
Held: the evidence could not be used, for s.13 this is another
proceeding. A has fresh rights under 11(c) and 11(d) & allowing the
evidence to go in would violate his rights.
To protect individuals from being indirectly compelled, to ensure crown
cannot do indirectly what s.13.
s.13 rights triggered when the testimony is subsequently sought to be
used (not at time of testimony).
Retrial of same inditement is another proceeding for purpose of s.13
Pre-Henry: use to which the evidence can be put
Manien
Use of testimony from first trial for purpose of incriminating in
cross was not allowed by Charter
Colbet
A gives different evidence 2nd time around, crown wants to use
evidence from 1st to impeach (prior inconsistent statement)
Court allows: use of prior testimony during cross to impugn
credibility is not the same as to incriminate controversial!
Difficulty: in practice, is hard to distinguish between these purposes.
Some overlap: some evidence can be used for both. Argue: findings
can be arbitrary. Danger of juries not recognizing the distinction
between impeachment and incrimination.
Lamers response to above criticism / concern: juries can sort it out,
give them instructions
Noel
Introduction of new variable: A called in co-As trial, invoked s.5 and
makes incriminatory statements. Gave alternate version of testimony
at own trial.
54

Crown wants to use to impeach credibility

Not allowed. Held: real danger that jury would use the evidence to
incriminate in this case. Higher threshold test was necessary with
Real Risk.
o See Arbors discussion at [33]
o No jury instruction, however skillful, would eliminate the
danger
Focus on danger, incrimination

Henry: reverses Manien, follows Dubois

At 1st trial, both testify voluntarily & attempt to rely on defence of
intoxication
2nd trial: testimony inconsistent with 1st trial. Crown crossed on
contradictions in evidence. Both convicted.
Issue: did the cross violate s.13?
Court focuses on voluntary nature of testimony given. No protection
under s.13 for A who voluntarily testifies. Prior testimony voluntarily
given can be used for any purpose: eliminates need to distinguish
between incriminating and impeaching.
BUT if A compelled to testify, that testimony cannot be used for
any purpose.
Nedel Ku (2012)
Purported to be extension of Henry, but revives issues that Henry sought
to resolve
Parallel proceedings: civil case + criminal case. In course of civil
process, A gave detailed description of accident in discovery. Crown
wants to use in the criminal proceedings.
Issue: can crown use the evidence without running afoul of s.13?
Allowed. Although A was compelled, on facts of this case, not
triggered b/c the non-incriminating evidence was sought to be
used for impeachment only. S.13 says incriminating evidence.
Brings us back to the mess!
Incriminating evidence: evidence given by W at a prior trial that
could be used to prove guilt [9], [36]
Note: impact of this decision not clear yet. Doesnt speak to voluntary vs
compelled. Possible incriminating is threshold question.
In the meantime: Three Practical Points
1. Papering compulsion: Think very carefully before volunteer client
to cooperate in any nature (participate in civil trial, etc.) or initiating
civil process if will be required to testify. Require subpoena.
2. Always invoke s.5
3. Scheduling parallel proceedings: try to schedule so criminal
process moves first. Highest evidentiary standard & outcomes will
benefit civil claimant so usually will agree.

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PRIVILEGE AND RELATED ISSUES

Privilege: the communication (substance and even the fact that it was
made) is protected from disclosure. More than confidentiality (which court
can compel by order). Privilege not subject to disclosure by court order.
Extraordinary exception: so special we prioritize over almost everything
else, including rights of full answer and defence.
Exception: waiver. Once privilege waived, fact and content are
compellable. Holder of privilege can waive.
2-Step Process:
1. Class Privilege: nature of relation or nature of communication. Does
it fit within a recognized category of privilege?*
2. Case by Case Privilege: are the particular circumstances of the
particular communication nonetheless deserving of privilege?
*If yes to (1), prima facie presumption of privilege unless party can show
evidence should be admitted (not excluded because is irrelevant, excluded
because of policy reasons).

CASE PRIVILEGE
Focus: nature of relation or nature of communication. Does it fit within a
recognized category?

SOLICITOR-CLIENT PRIVILEGE
Highest privilege known to law Smith
Rationale: Foster-Wheeler (616)
1. Preserving relationship of trust btw solicitor and client
2. Preserving open communication btw lawyer and client (full and frank)
3. Preserving existence and operation of Canadas legal system
Court: we need privilege to make the system work. Judges consider
themselves duty-bound to interfere if notice imminent breach of privilege.
Result: almost absolute protection being given to privilege.
McClure: as close to absolute as possible
Lavelle: struck down provision in CCC that allowed for search warrants of
lawyers files (s.8)
National Post: perceived significance attached to the role of the lawyer in the
justice system. See quote at 617. Lawrence: need to revisit b/c of access to
justicenot just lawyers doing this work anymore.

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Searches of lawyers offices: detailed procedures emerged. All involve

sealing the evidence.
Substantive role of privilege: Descoteaux (616)
1. Confidentiality of communication between solicitor and client may be
raised in any circumstance where likely to be disclosure without clients
consent
2. Unless law provides otherwise, resulting conflict should be resolved in
favour of confidentiality
3. Where law gives authority to do something that interferes with
confidentiality, should only do so to limited to disclosure
4. Acts permitted should be strictly interpreted
Requirements for privilege: Sosky
1. Communication must be between lawyer and a client. Includes
lawyers agents, legal assistants, articling students. Doesnt require
formal retainer.
2. Communication must entail seeking of legal advice. In-house
counsel: not always clear (see Pritchart)
3. Communication must be intended to be confidential. If client leaves
the room and tells ANYONE, theres no more privilege (client has
waived). Ask whos in the room? Will have to ask people to leave
presence of 3P non-client is evidence that not confidential.
Privilege lasts forever
Or until put on record in court
Exception for wills: privilege ends when client dies
Special rules when disclosing info for non-payment of legal fees
Privilege belongs to the client
Client can authorize disclosure. May (in certain circumstances) have
implied consent / waiver.
E.g. running defence of entrapment (implied waiver), if arguing lawyer
who prepared agreement made mistake, claim to review a bill
Charging decision made by crown
Are said to be made by counsel as independent officers.. NOT
treated same as usual solicitor rules.
623-624 QB
Bernardo: Privilege not to be used as shield for non-confidential
material

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Discussions with lawyer about the tapes privileged, but doesnt extend
to the evidence (the tapes) itself

EXCEPTIONS TO SOLICTOR-CLIENT PRIVILEGE

3 exceptions:
1. Criminal purpose / future crimes
2. Public safety
3. Innocence at stake
1: Criminal Purpose
Privilege doesnt attach to communications that have a criminal purpose.
Rationale: privilege should only attach to lawful things
Descoteaux: committed fraud with getting legal aid (lied about financial
status). Communications are the actus reas of the offence, so not
privileged.
Cox: illegal purpose
Campbell Cobitel: would have required some evidence that the evidence
facilitated the crime
2: Public Safety
Allows the lawyer to disclose to warn an identified person (or group of
persons) about a specific threat from a client.
Test: Smith Jones
Danger to public safety can in appropriate circumstances be a
rationale
Psychiatrist reports back that A is dangerous, will commit a
future crime. Psychiatrist felt duty bound to share threat, initiates
court application.
Held: could be disclosed. Even fundamental rights cannot be
absolute. Where public safety engaged, need to achieve balance.
(630)
Only a compelling public interest will be enough
3 factors:
1. Clarity: clear risk to identifiable group / person. Evidence of
planning.
2. Seriousness of the risk: appears to require death, serious bodily
harm, or grevious psychological harm
3. Imminence: sense of urgency, but must be applied flexibly
If the 3 factors support disclosure, still remains Q as to extent of
disclosure (what should be disclosed). Court should strictly limit
disclosure.
3: Innocence at Stake
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Exceptionally difficult to establish (procedurally and substantively

demanding).
McClure: privilege yields to As rights to make full answer and defence
where there is danger of wrongful conviction and privilege stands in the
way of proving innocence. Subjective: whether the person giving the
statement believed was giving statement to a person in authority
2-Stage Test: Brown
1. Threshold Test
A must establish on ev basis that content of the privileged
communication is not otherwise available AND A is not able to
raise reasonable doubt AND that evidence can raise reasonable
doubt
Can be argued at any time and raised multiple times, but proper
to wait until Crowns case is done b/c then can assess on all the
crowns evidence, and wont be necessary if crown hasnt made
their case difficult if also want to argue crown didnt make
case!
2. Is the evidence likely to raise reasonable doubt as to guilt?
Evidence must go directly to one of the elements of the offence.
Cannot be used to bolster credibility, used as corroborating
evidence, etc.
Restrictive! Some argue unduly so.
3. Even if meet test, still ask what to disclose (extent). Only the info
that is absolutely necessary should be disclosed.
Facts of Brown: GF tells detectives that BF (Benson) is killer, that he
confessed to lawyers. Evidence could have come in through GF (hearsay, but
is admission so allowed), but wanted the evidence through the lawyers. May
have been better for Brown to argue that Benson waived privilege by telling
GF.

EXTENSIONS TO SOLICITOR-CLIENT PRIVILEGE

1: Litigation Privilege
Also work product privilege, lawyers brief privilege. Protects work done
by counsel.
Rule: Blank
Litigation privilege attaches to any document created for the
dominant purpose of litigation (NOT the sole purpose!)
Protects a process, where solicitor-client privilege protects a
relationship
Ends when litigation ends (and any work you do after not subject
to privilege)

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Interpreted broadly: can include separated proceedings

Experts: where report to be put on record, entirety of the work
files are not covered by litigation privilege, should be disclosed.
Changing in Ontario.

2: Settlement Privilege
Designed to facilitate conversation about settlement. Includes settlement
offers, plea bargaining. Without this privilege, statements made in settlement
could be construed as admission of liability.
Words without prejudice can be a signal, but not determinative. Frequently
used improperly. Absence of words also not determinative.
Multi-party settlement privilege: Sable Offshore Energy
Non-settling party is entitled to a copy of your settlement
agreement, but not the settlement number. Can this be extended
to catch other material terms of agreement? E.g. promise to do /
stop X.
Settlement agreement with some of the parties, remaining
defendants wanted disclosure of the settlement agreement.
Disclosure was made but plaintiff redacted the settlement
number.
Held: not clear why knowledge of settlement number would be
required for defendant to make its case. Not sufficient reasons to
displace public interest in promoting settlements.
3: Implied Undertaking of Confidentiality
Implicit duty attaches to participations of litigation: puts a bubble on the
litigation.
Largely comes into play with document discovery
Includes the info that you think discloses criminal conduct.
Cant use for any purpose other than the litigation itself unless and until
the court relives you of your obligation (also expetion for public safety)
Implied undertaking lasts until disclosure in open court,
otherwise lasts forever. (If settle out of court, was not put on record in
open court, so remains confidential).
Application for release can be brought by anyone, including third
party (e.g. police).
Civil: _____ v Ducette
Criminal: Basi
Privacy rights, encouraging full and frank disclosure. We override
privacy for disclosure, but will give some protection.
SCC refuses to give BC prosecutors permission to disclose the
evidence

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o
o
o
o

o
o

Implied undertaking of confidentiality not absolute; court has the

power to relieve where necessary and in the interests of
justice. Absent that, however, and without consent, the
evidence cannot be disclosed.
Should be done by application to court, and should be rare.
Guidelines:
Test requires balancing of interests. If satisfied that the interests
of justice outweigh the prejudice to the party.
Onus on applicant to demonstrate superior public interest.
All subject to legislative override.
Rule gives way where public safety concerns (e.g. public health
risk). Refers to Smith v Jones: if similar situation meets the Smith v
Jones criteria (and immediate and serious danger), applicant
is justified in going straight to police. Ideally, its preferable to go to
the court where its not immediate danger.
Reaffirms that can use to impeach inconsistent testimony
Suggested Crimes Exception: similar to future crimes exception.
Disagrees with BCCAs approach.

SPOUSAL PRIVILEGE
Recipient of communications holds the privilege and can waive.
Testimonial privilege gives rise to the right to refuse to answer Qs.
Applies to communications during marriage, not statements made before
or after.
Wire tap: Lloyd and Lloyd
With wire taps, PO required to stop listening when talking to lawyer
Here, court holds the same principle applies if theyre talking to
spouse
Judge has discretion to protect privilege when inadvertently
waived
CEvA s.4.3: language only includes husbands and wives but read in same
sex couples.
This privilege will take on more meaning in coming years spouses now
compellable.

INFORMER PRIVILEGE
Protects the identity of police informers: bar to disclosure of any information
regarding identity that could lead to retribution. Without this privilege, A
would get these documents via Stinchcombe.
Rationale: encouraging reporting of crime.

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Named Person B
Majority: fact that one PO force has given informer privilege is not on its
own sufficient to bind another force.
Here: there is a close enough nexus to give rise to view that is
continuity in the relationship. B has reasonable grounds to believe.
Test is objective one: reasonable person expectations
To what does the privilege extend? Lyfor
Any information that may implicitly reveal identity
Challenge: dont know what may reveal identity. With anonymous tip,
court not in position to edit out.
A not entitled to the Crimestoppers document (A wanted document
because PO relied on for search warrant). Privilege cannot be waived by
crown without consent of the informant. Court to err on side of
protection, because they dont know what will lead to identification.
Scope of informer privilege at 662
Will yield to innoncence at stake exception
Crown will first argue not relevant before invoking privilege
To get around informer privilege (if invoked), A must show innocence at
stake
If basis for innocence at stake, judge reviews evidence to see what is
actually relevant and needs to be disclosed. Incumbent on judge to only
disclose what is necessary.
In practice, if A successful, court often will just stay the charges to
protect the informer
Situations where identity of informer is relevant to innocence at
stake:
1. Informant turns out to be a material witness.
2. Informer thought to have acted as agent provocateur. i.e. entrapment
3. May be relevant to successful s.8 challenge (reasonableness of search)

PUBLIC IMMUNITY PRIVILEGE (NOT ON EXAM)

Applies / invoked when public official says is privileged. Protects a category of
information that state says is worthy of protection. Common law and statute.
At Common Law, starts as virtually absolute, then courts move to a balancing
process. In BC, CL governs because there arent specific provisions in the
Crown Proceedings Act. Federal: common law largely replaced by ss. 37, 38,
39 CEvA.

CLASS EXERCISE ON PRIVILEGE

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Sc.1: waiver of privilege. Reminder not to talk to mother after. Mother could
also be a witness (issue with contamination)
Sc. 2: privilege breached by that error. B/c client holds privilege, lawyer cant
waive. And still need to do analysis RE relevance. Absent evidence of
coaching, there is a strong argument that the other drafts are not relevant:
but can be made relevant by how client responds in cross. Would try to assert
work product, but revealing that had work-product privilege. Need to wipe
documents before handing over (including meta-data).
Sc. 3: If not tendering the report, captured by privilege. If tendered, then that
privilege is waived. Q now about what all needs to go in (historically, all, but
broader protection coming out of ON)
Sc. 4: Public safety. Have to engage in analysis / test to determine if privilege
attached OR future crimes (specificity, etc.). Ask for psych assessment,
maybe.
Sc. 5: Client is asking for advice on obstruction of justice, DONT ANSWER
THAT Q. If did answer Q, would be issue of if would be privileged / you could
be called as a witness in obstruction.
Sc. 6: Words no determinative. Look at substance. Tell it to the judge.
Sc. 7: No solicitor-client / class privilege with academic work. Can maybe seal
it and work out what needs to be disclosed.
Sc. 8: Dont disclose. But can probably discuss style of counsel.
Sc. 9: Is says this, waived solicitor-client privilege = very poor decision. Dont
say this! Duty bound as CEO (or as part of his employment) to not waive
privilege absent some instruction.

CASE-BY-CASE PRIVILEGE
Remember, class privilege is only the 1st step of a 2-step process. Even if fits
within (1) (class privilege), can overcome the prima facie exclusion. OR can
get privilege by step (2): particular circumstances & the particular
communication nonetheless deserving of privilege on case-by-case basis.
Rationale: there arent many categories of privilege, but there are situations
where we expect a high level of confidentiality and society wants to protect
that in particular circumstances.
Wigmore Test: 4 Parts
1. Communication must originate in confidence
2. Confidentially must be essential to full and satisfactory
maintenance of the relationship between the parties
3. Relationship must be one that, in the opinion of the community,
must be fostered
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4. Injury that would inure to the relationship by the disclosure must be

greater than the benefit (cost-benefit analysis)
PROBLEM: people dont know ahead of time if privilege will attach.
Consequently, we cant really say this analysis encourages disclosure. E.g. of
alternative in US: researcher can get certificate of privilege from court before
going out to do research.
Slavucic v. Baker (1976 SCC) (693)
o Associate prof, president of university recommended he be dismissed,
complaint about a tenure form sheet sheet marked confidential
o Held: confidential under Wigmore Test
o Communication originated in confidence, which was stressed on the
form, the procedure itself
o In interests of university community, as well as the larger interests of
society
Gruenke: communication between A and pastor/church counsellor
o Information involved discussions about her involvement in a murder
o Held: Nope! The conversations should not be afforded case by case
privilege
o Policy reasons that underlie SCP are not present in religious
communications SCP based on the idea of the functionality of the
justice system. Religious communications are not inextricably linked to
the justice system.
o (Other jurisdiction have taken a different approach)
o WT: Failed at (1): communication did not originate with the
expectation of confidentiality parties were unclear as to whether there
was an expectation of confidentiality here
A did not herself approach the communication on the expectation
of confidentiality, evens said to pastor that she was going to turn
herself in anyway
o LH-D concurred in result, but would have found that there was a
class privilege for religious communications (but that this
communication wouldnt have fit into that class)
o Take away: When venturing into non-class communications, should set
the groundwork around confidentiality (expectations)
Ryan: disclosure requirement depends on balancing in WT
o WT: 1, 2, 3 passed but has to be balanced against interest of
pursuing the truth
o Recognition of a partial privilege
o Courts are very reluctant to recognize c-b-c privilege
o Applicant brought a civil suit for damages against Ryan for injuries
sustained as a result of sexual assault. Admitted conduct but denied
causation (essential element of the tort)

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o
o
o

Applicant had recd psychiatric counselling from a doctor, and expressed

concerns @ outset re: confidentiality of discussions, psychiatrist assured
her they would remain confidential.
Defendant wanted those notes to challenge causation
BCCA ordered limited disclosure
In contrast to Americans give blanket class privilege to clientpsychiatrist communications

Magnotta question from last years exam:

o Decision came down in January 2014 Parent (2014 QCCS 132)
o Applied WT
o Balancing: J looks at content of disclosures, and basically finds there is
nothing in there that is probative, helpful to the Crown
o Poor quality of that evidence (low probative value and limited relevance)
which inclines the court in favour of the granting of privilege!
o Nothing indicated that the murder occurred in the context of Magnottas
work as an escort
This moves beyond talking about the nature of the
communication to a consideration of the utility
Will this corrupt the test? (Degree to which material
inculpates or exculpates the accused?)

DOCUMENTS IN THE POSSESSION OF 3 RD PARTIES

Stinchcombe Crown obliged to disclose to accused all things in its
possession
Third parties are a stranger to the prosecution: under no duty to
assist the defence.
When a 3P can be compelled to disclose: weighing of competing rights
Very common in sexual assault cases like Ryan highly personal
records to a complainant/survivor.
Brings into focus fundamental concerns about relevance, fairness,
equality of the law
2 regimes are followed for the production of documents in criminal
context:
1. Statutory regime: ss.278.1-278.91 applies to sexual offence
cases
2. OConnor regime (applies to all other cases/offences)

OCONNOR REGIME
OConnor:
2 step process

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1. Threshold: applicant must convince TJ that information is likely

to be relevant.
2. J looks at records and determines whether and to what extent
they should be produced. Balancing of interests stage. (TRUE
RELEVANCE TEST)
Docs/records provided by complainants to the Crown lose any
confidentiality that they might have had (Stinchcombe triggered)
OConnor ONLY APPLIES WHERE 3RD PARTY HAS NOT CONSENTED TO
GIVE THIS INFORMATION

Neil (722): Explanation of True Relevance Test

A obtains subpoena, 3rd party ordered to attend ct w/ documents
True relevance test: if the 3rd party record in Q had found its way into
the Crowns file, would there be any basis under Stinchcombe for not
disclosing it? If no, there is no basis for arriving at a different
conclusion.

STATUTORY REGIME
Mills upholds constitutionality of the legislative regime wrt sexual
offences
Read in a way to allow it to pass (creative)
Legislative provision is very broad applies to witnesses and
complainants
Record defined very broadly: non-exhaustive list
If listed, there is a rebuttable presumption of an expectation of privacy
Applies even when the 3rd party has already given the record to the
Crown has to notify the A that the record exists, but doesnt have to
produce it unless legislative test is met.
Two steps, both stricter than OConnor
1. (a) Relevancy inquiry: is record likely to be relevant? (not BOP).
Interpreted to require reasonable probability that info is logically
probative to case or Qs of credibility or reliability.
(b) A must also convince trial judge that production of record is
necessary in the interests of justice (8 factors that must be
considered listed in s.278.5(2)).
2. Trial judge will review the record and decide whether any part of it
should be disclosed to the A. Factors that must be taken into
account but dont have to be conclusive (discretion)
Unlike case-by-case, onus is on A, not the holder of privilege

RETENTION, PRESERVATION & SPOLIATION

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SPOLIATION IN CRIMINAL LITIGATION

Is there a duty to preserve Crown evidence? Yes, flows from Stinchcombe
duty on part of Crown to disclose all relevant evidence to defence whether
inculpatory or exculpatory.
Embedded in this is duty to preserve
Failure to disclose is a s.7 breach: compromises ability to make full
answer & defence
Failure of duty to disclose significant with respect to wrongful
convictions
La: Crown failed to disclose taped conversation between complainant
and the police (sexual assault conversation) because they had
misplaced the tape. Court: Crown has to provide an explanation for the
loss/destruction. This may be a breach of s.7 if it involves something
more than loss of destruction due to unacceptable negligence
THRESHOLD: has there been something more than negligence? [20][21]
In some circumstances, even if no negligence, if the loss is so
significant then it may constitute a breach of s.7, stay of
proceedings would be an appropriate remedy
Levin (2013 AB case): example of this
When does the duty to preserve arise? How long does it last?
o At least from pre-trial through appeal stage
o Pre-trial duty flows from Stinchcombe
o Extends through appeal: Trotta: protection of innocent on appeal as
important on appeal as prior to conviction (i.e. same standard, same
force)
o Post appeal? Trotta: applies if evidence tends to exonerate a convicted
person
o Chambery: applicant argued that duty to preserve should extend for
lifetime of the offender did not prevail
Should the duty to preserve be triggered by a defence plea of
innocence rather than what the Crown thinks would tend to
exonerate?
- Defence counsel has a duty to be diligent in pursuing disclosure.
Ethics consult Rule 3.5 of Code of Professional Conduct

CIVIL CONTEXT

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Spoliation in civil law is a rule of evidence: starting with a negative

inference that missing information would have harmed the spoliator
o

Rebuttable but starting with presumption of guilty conscience

In practice, not always actually treated this way
In US, there is a tort of spoliation needs to be an intentional, grossly
negligent act fairly high standard
- Leading Canadian case: McDougall v. Black and Decker: [29]:
spoliation is the intentional destruction when litigation is pending or
reasonably foreseeable
- Goal: make sure trial process is not negatively impacted
-

McDougall: two options for fire one a B&D drill

o Plaintiffs insurance company did hire an investigator, then plaintiff
began reconstruction (2 years later) of their home
o Two issues: strike claim before trial because there was no evidence
court says no, this is an appropriate issue for the trial judge
o Remedies: expanded to ability to award fines, costs (rather than just the
presumption)
Spasic (ON 2000), Endean made contradictory statements
regarding tort of spoliation
o Havent yet found that there was an intentional tort, nor was there a
duty to preserve under the law of negligence, but these remain open
Law may evolve in these areas
BC Law Institute Report: recommended that there should be a tort:
elements: existence of pending/probable litigation, knowledge of this on the
part of the spoliator, etc.

Variety of remedies available currently: from striking the claims, impugning

the party, witnesses or experts may be removed, jury directions, orders for
searches, injunctions with respect to that evidence, Anton Pillar orders,
contempt of court or obstruction of justice

Patzer: BCSC case: plaintiff claimed he had won money at the horse track and
that the betting slip he said contained evidence of his win had been
destroyed along with all other betting slips from that week
o

Claim dismissed by the court [104] no spoliation destruction of

evidence was not intentional, done in ordinary course of business
(documented/routinely followed)
Size of claim ($6.5 million) not the issue its intention that matters!

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o
-

People entitled to make some decisions based on actions he didnt

make a fuss at the time, it wasnt until later
Litigation hold: have to stop document destruction (even if regular
course of business) once the claim is reasonably foreseeable
Theoretically: same rules of spoliation and preservation apply to paper
and electronic sources
Complications: volume of e-documents so high compared to paper
records, form can be easily altered/edited/overwritten. Process of
preservation can be cumbersome/prohibitive even.
Clients still subject to these duties with respect to documents and data
Not a long of guidance about how to actually discharge these duties
Nova Scotia has an express rule in Civil Procedure Rules: s.16.02(1)-(8)
(duty and guidelines) only province with regulations /nothing
federally
For the most part, guidelines/principles stage

Sodona Group look @ headings for a general idea. There will be a second
draft out soon that seeks to address some of this documents criticisms
o
o
o
o
o
o
o
o
o
o
o
o

Principle: e-documents are discoverable (no controversy about this)

Idea of proportionality: discovery of e-documents must be proportionate
Important because of the vast # of documents potentially at issue
Proportionality intended to capture only those documents that are
relevant: importance to outcome, cost/delay associated, etc.
As soon as litigation reasonably anticipated, parties must consider
obligation to take reasonable and good-faith steps to preserve e-docs
Counsel should regularly meet to discuss this (added cost!)
collaborative relationship between parties ex. format of the e-docs
Should be no need to search for deleted information (unless relevant)
Discovery obligations can be met using search tools (ex. counsel agree
on search terms)
Implied undertaking of confidentiality is applicable here (will come back
to this)
Sanctions for reckless failure to meet obligations (dont explicitly endorse
the creation of the tort)
Discovering party bears the cost of discovery
NOTE: this principles have not yet been endorsed or applied, but theyve
been mentioned by the courts (ex. BCCA 2010 case)
- Can claim privilege to things like hard drives seized during the course
of investigations there may be privileged documents on it

E-documents are very cumbersome and very costly to preserve!

Companies should have a document management policy
- Document retention policy should be in place for every company
o Need a written policy and it must address different classes of documents
-

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o
o
o
o
o

o
o
o

o
-

It need to be implemented consistently and should be verified (internal

audits)
Use IT department
There are different required retention periods for certain kinds of records
(ex. privacy laws, tax laws)
Goal of policy cannot be to suppress records there should be a
reasonableness
Some of the documents within your company will be subject to privilege
should be marked and stored as such
Technology can be very helpful with this
Legal hold notice: should be distributed to all employees as soon as
reasonable foreseeable there will be a claim
Make sure to explain/give guidance as to what the scope is, how to do
this, etc.
Remember: people may have information on home computers, personal
phones, etc. as well
Enron: famous case of company shredding documents
Company charged with obstructions of documents even after sending an
email because it was short, didnt give sufficient information or guidance
(and possibly continued shredding documents afterward)
Public sector also has the additional issue of Freedom of Information
requests
Also need to be able to fulfill these duties
Companies outsource many of their functions this will likely be in a
contract clause (along with the remedies you may seek often loss of
opportunity is precluded)!

70