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Evidence, Caswell Summer 1999

Sources of the Law of Evidence.................................................................................................................................................1
Constitution.......................................................................................................................................................1
Marshall v. Q, (1960) SCC - Fed EV law is paramount......................................................................................................1
Regina v. John & Murray Motors, (1979) BCCA - S.24 of BC EV Act ok........................................................................1
Legislation.........................................................................................................................................................1
Sec. 40 Can. EV Act - Provincial Law Incorporated by Reference....................................................................................1
Common Law....................................................................................................................................................2
Fundamental Admissibility (Thayer's) Rules............................................................................................................................2
Curative Charges..............................................................................................................................................2
The Admissibility Flowchart......................................................................................................................................................3
Child Testimony..........................................................................................................................................................................4
R v Khan, 1990SCC Admis of Unsworn EV of Child........................................................................................................4
CE Act - Sec. 16(1) - Usworn Testimony of Child.............................................................................................................4
CE Act - Sec. 16(2)Corroboration.......................................................................................................................................4
Policy Considerations.................................................................................................................................................................4
Jury Deliberations.............................................................................................................................................4
Sec. 649 CCC - Jury Deliberations are Secret....................................................................................................................4
Standards of Proof............................................................................................................................................5
Standard of Proof IS Minimum Reliability.....................................................................................................5
Relevance and Materiality.........................................................................................................................................................5
Relevance...........................................................................................................................................................5
R.v Cloutier - logical relevance..........................................................................................................................................5
Relevance of Circumstantial & Direct Evidence......................................................................................................................6
Monteleone v. R. (1987) SCC - Circumstantial Evidence can be relevant.........................................................................6
R v. Ferris (1994) SCC - Circumstantial Ev may be irrelevant..........................................................................................6
R. v. Arcangioli (1994) SCC - Circumstantial Evidence may be too uncertain..................................................................6
Exclusionary Discretion.............................................................................................................................................................6
Smith v R - Principled Approach........................................................................................................................................6
CE Act - Sec. 12 - Conviction of Witnesses & Credibility.................................................................................................7
R. v. Mohan (1994) SCC- Probative Value v. Prejudicial Effect........................................................................................7
R. v. Potvin (1989) SCC - Prejudicial to admit ev where witnesses shld be available.......................................................7
R. v. Osolin (1991) SCC - Unduly Prejudicial....................................................................................................................7
Exclusionary Discretion & WEIGHT.......................................................................................................................................7
Reliability..........................................................................................................................................................7
R. v. Mohan (1994) SCC - Prejudice and Reliability..........................................................................................................8
R. v. McIntyre (1993) ONCA - Probative Value & Credibility...........................................................................................8
Real Evidence and Demonstrative Evidence...................................................................................................8
Chambers v. Murphy (1953) ONCA - Views are NOT evidence........................................................................................8
Meyers v. Manitoba (1960) MBCA - Views can be evidence.............................................................................................8
Photographs and Videotapes............................................................................................................................9
R. v. Maloney (No. 2) (1976), ON Tr Crt. - Vid EV must be accurate reflection of event................................................9
R. v. Leaney (1989) SCC - Video can be used to make ID.................................................................................................9
R. v. Nikolovski (1994) ONCA - Videos can't be used to make ID...................................................................................9
Documents - Best Evidence Rule......................................................................................................................9

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Burdens of Proof and Presumptions.......................................................................................................................................10

Standard of Proof - level of proof req to prove act.......................................................................................10
Presumptions...................................................................................................................................................10
R. v. Boyle (1983) ONCA - S. 11(d) Presumption of Innocence......................................................................................10
R. v. Downey (1992) SCC - S. 11(d) Presumption of Innocence.....................................................................................10
Examination In Chief: Leading v. Non Leading Q's..............................................................................................................10
Maves v. Grand Trunk Pacific Ry. Co. (1913) ABCA......................................................................................................11
Refreshing Memory..................................................................................................................................................................11
Refreshing Recollection..................................................................................................................................11
US v. Rappey Case - anything can be used to refresh memory b/f trial............................................................................11
Past Recollection Recorded............................................................................................................................11
Fleming v. Toronto Railway Co. (1911) ONCA - past recollection recorded..................................................................11
Cross Examination...................................................................................................................................................................12
Cross Examination re Credibility..................................................................................................................12
Limitations on Cross Examinations...............................................................................................................12
R. v. Davison (1974) ONCA - Counsel can't enter Ev .....................................................................................................12
Failure to Cross Examine...............................................................................................................................13
Brown v. Dunn Case (1893) HofL - b/f impeaching must first confront..........................................................................13
CE Act ss 10&11/BC EV Act ss 24&25 - b/f impeaching must first confront.................................................................13
child witnesses & videotaped evidence....................................................................................................................................13
Section 486(2.1) of CCC - Child can testify on Video......................................................................................................13
R. v. Levogiannis (1993) SCC - Upheld Section 486(2.1) - video ev of child is valid.....................................................13
Section 715.1 of CCC - Videotaped Evidence & Sex'l assault of Minors........................................................................14
R. v. L(DO) (1993) SCC - Upheld Sec. 715.1 Video ev is valid once adopted................................................................14
R. v. Toten (1993) ONCA - Child MUST Adopt the Video EV........................................................................................14
Section 715.2 of CCC - Videos, Disabilities & Sex'l Assault...........................................................................................14
The Appeal Process..................................................................................................................................................................14
What are Appeal Courts?...............................................................................................................................15
R v. McDonald (1951)BCCA - If CA has Doubt, MUST grant A's appeal.......................................................................15
Sec. 683 of CCC - CA can do anything Tr. J can do.........................................................................................................15
CCC S. 686(1)(b)(iii) - CA can dismiss an appeal if no substantial wrong done.............................................................15
Colpitts v. Queen, (1966) SCC - Grounds for Appeal.......................................................................................................15
McCannell v. McLean, (1937) SCC - Appeal from Jury ONLY if unreasonable decision...............................................15
The Admissibility of Evidence..................................................................................................................................................16
Matters for Judicial Notice.............................................................................................................................16
Two Branch Test re Judicial Notice...............................................................................................................16
Re Holmes Case - J can take notice of matters of common knowledge in community....................................................16
R. v. Zundel (1987) SCC - Notice may be taken of matters of general or notorious facts...............................................16
R. v. Desaulniers (1994) PQCA - Judge may take judicial notice of facts.......................................................................16
R. v. Potts (1982) ONCA - CA may take judicial notice of whatever J can.....................................................................17
CE Act S.17 / BC Ev Act ss24 & 25 - J must take notice of Laws of Canada and province............................................17
Competence and Compelability...............................................................................................................................................17
CE Act - Section 4(1) Spouse and Defence......................................................................................................................17
R. v. McGinty (1986) Yukon CA - Spouse is Compellable by Accused...........................................................................17
CE Act - Section 4(2) - Spouse is Compellable against Accused re Morals Offences.....................................................18
CE Act S. 4(3) Spouse is NOT compellable by Crown....................................................................................................18
CE Act - Sec. 4(4) - Spouse IS compellable if Victim is >19.........................................................................................18
CE Act - Sec. 4(5) - Spouse is not compellabel generally against his Spouse.................................................................18

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Compellability of a Minor........................................................................................................................................................19
CE Act - Section 16(1) - Competency of a Minor to testify.............................................................................................19
R. v. Marquard, SCC - Must explore Child's ability to communicate EV........................................................................19
R v Leonard, ONCA - Child must know importance of testimony...................................................................................20
R. v. W.(R), (1992) SCC - Child's ability to testify req's Common Sense assessment.....................................................20
Demonstration Evidence..........................................................................................................................................................20
R v. Quinn, [1961] (BCCA) - Demonstrative Evidence is admissible.............................................................................20
Hearsay Evidence.....................................................................................................................................................................21
Subramaniam v. Public Prosecutor (1956) HofL - hearsay ONLY if to prove truth.........................................................21
R. v. Collins (1987) SCC Adopted Subramaniam Hearsay Rule......................................................................................21
Setting up the Big Picture re Hearsay.....................................................................................................................................22
R. v. Smith is the starting point for hearsay admissibility...........................................................................22
Smith (1992), 75 CCC (3d) 257 (SCC) - Principled Approach........................................................................................22
R .v Khan (1990) SCC - reliable, necessary & Probative value v prejudice....................................................................23
Recognizing Hearsay......................................................................................................................................23
Avoidance of Hearsay Dangers................................................................................................................................................23
4 Ways Hearsay may Arise.............................................................................................................................25
Hearsay: Reliability..................................................................................................................................................................25
Ratten v. Queen, JCPC - Hearsay & reliability.................................................................................................................25
R. v. Slugowski (1985) bcca - hearsay & Reliability b/c of incompetence....................................................................25
Hearsay: Implied Statements...................................................................................................................................................25
Wright v. Tatham (1837) - an implied statement is still hearsay.......................................................................................26
R. v. Fialkow (1963) ONCA - not Hearsay if other purpose (i.e. character of house)......................................................26
R. v. Kearley (1992) HofL - Hearsay & Implied Statements............................................................................................26
Hearsay: Prior Inconsistent Statements.................................................................................................................................26
R. v. KGB (SCC) - Prior Inconsistent Statements are admissible if so overwhelming ...................................................26
R. v. U(FJ) (1995) SCC - Prior Inconsist Statement admissible if "smacks of reliabiltiy"..............................................27
CE Act Section 9 - Voir Dire req'd re Prior Inconsistent Statement..................................................................................27
Prior Identifications.................................................................................................................................................................28
R. v. Armstrong 1969 BCCA, Prior ID ok if in DOCK id made......................................................................................28
Swanston (1982) BCCA - prior ID admissible if explain inability to id in dock..............................................................28
R. v. Langille (1990) ONCA - PO can relate Prior Identifications of witness..................................................................28
HEarsay: Prior Testimony.......................................................................................................................................................29
Town of Walkerton v. Erdman (1894) HofL - test re Prior Testimony..............................................................................29
SC Rule 31.11(6) Admissibility of Prior Testimony.........................................................................................................29
CCC 715(1) Admissibility of Prior Testimony.................................................................................................................30
R v. Potvan (SCC) - CCC S. 715(1) is constitutional.......................................................................................................30
R. v. Daviault (1994) scc - admissibility of prior testimony.............................................................................................30
Re Present STATE of Mind......................................................................................................................................................30
R. v. Wysochan - Hearsay & State of Mind......................................................................................................................31
Hearsay: Prior Convictions.....................................................................................................................................................31
BC Evidence Act, Sec. 71 - Prior Convictions Admissible...............................................................................................31
Demeter v. Br. pacific Life Insurance (1983) ON Hi Crt - overruled Hollington - Priors are Admissible in Civil Tr......31
R. v. Quinto Management Ltd. (1984) ON Hi Crt - priors ok...........................................................................................32
Hearsay: Admissions................................................................................................................................................................32
R. v. Evans (1993) SCC - Admissions of a party are admissible as evidence .................................................................32
Hearsay: Admission by Conduct..............................................................................................................................................33
Walmsley v. Humenick - admissions may be made by conduct.......................................................................................33
HEarsay: Adoptive Admissions................................................................................................................................................33

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CCC Section 655 - Crown Facts Admissible by Accused.................................................................................................33

Streau case (1989) SCC - can adopt admissions of a 3rd party..........................................................................................33
Hearsay: Silence.......................................................................................................................................................................34
R. v. Pammer (1979) mbca - admissions by silence where a rebutal wld be expected.....................................................34
R. v. Eden (1970) CA - Exercising the Right to Silence isn't an admission......................................................................34
Hearsay: Vicarious Admissions (aka Statements by Agents)...................................................................................................34
r. v. strand electric ltd (1969) onca - unauthorized vicarious admissions not admissible................................................34
morrison knudsen co v. bc hydro (1973) bcsc vicarious admissions................................................................................35
Hearsay: Co-Conspirators.......................................................................................................................................................35
R v Carter - where a conspiracy is est'd ev applies against all..........................................................................................35
Hearsay: Declarations against interest by non-parties...........................................................................................................35
Hearsay: declarations against proprietary interests....................................................................................36
Higham v. Ridgeway (1808) KB - Res Gestae & Narrative.............................................................................................36
Hearsay: Declarations against Penal Interests.......................................................................................................................36
R. v. Obrien (1977) SCC - declaration againts one's penal interests.................................................................................37
Lucier v. R. (1982) scc - Statements Against Penal Interests MUST benefit of accused................................................37
Hearsay: Dying Declarations Exception.................................................................................................................................37
Rex v. MacIntosh, 1937, BCCA, - dying declarations......................................................................................................37
Hearsay: Declaration in Course of Duty (records).................................................................................................................38
Myers v. DPP (1965) HofL - declarations in course of duty.............................................................................................38
Ares v. Venner (1973) scc - records admissible as declarations made in course of duty..................................................38
R v. Monkhouse (1987) ABCA personal knowledge not req'd........................................................................................38
CE Act s. 30 & BC EV Act s. 42 - Business Records admissible as evidence.................................................................38
R. v. Laverty (1979) ONCA - Ordinary Course of Business............................................................................................39
Hearsay: loose Ends.................................................................................................................................................................39
R. v. Chow (1968) - must be a statement by a person to be hearsay.................................................................................39
US v Check, 1978 CA - Relating 1/2 a conversation is still hearsay................................................................................39
Res Gestae.................................................................................................................................................................................39
Ratten v. Queen, JCPC - res gestae...................................................................................................................................39
Res Gestae: Statements of Present Physical Condition..........................................................................................................41
Res Gestae : Statements of Present Mental State....................................................................................................................41
R. v. P.(R) (1990) ON HCJ- Mental State & res gestae....................................................................................................41
Res Gestae: Excited Utterances...............................................................................................................................................41
R. v. Bedingfield (1879) - excited utterances & res gestae...............................................................................................41
Ratten v. R. (1971) h.l. - Excited Utterances & the Res Gestae........................................................................................42
R. v. Andrews (1987) H.L. - excited utterances & res gestae...........................................................................................42
Res Gestae: Exculpatory Statements of Accused....................................................................................................................42
R v graham (1974) scc - exculpatory statements of A in a continuing act are admissible...............................................42
r. v. Risby (1976) scc - exculpatory statements of A in a continuing act are admissible..................................................42
R. v. Keeler (1977) abca - exculpatory statements at time of arrest are admissible.........................................................43
Res Gestae: Narrative...............................................................................................................................................................43
R. v. George (1985) BCCA - narrative & res gestae.........................................................................................................43
R. v. F.J.E. (1993) ONCA - narrative & res gestae...........................................................................................................43
Which comes first, Smith or pre-Smith pigeon?.....................................................................................................................43
R. v. Challey, 1992 BCCA, Exceptions then Smith..........................................................................................................44
R. v. Heuliar 1992, ONCA, Smith then Exceptions..........................................................................................................44
Confessions...............................................................................................................................................................................44
What is a confession (Five Criteria REQUIRED):.......................................................................................45

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What is the Law re Confessions.....................................................................................................................45

Was the Statement made to a Person in Authority.......................................................................................45
Regina v. Wells (1998) SCC - Person in Authority...........................................................................................................45
R. v. Hodgson (1998) SCC - to Person in Authority.........................................................................................................45
R. v. Rothman (1981) SCC - Person in Authority............................................................................................................46
Charter Analysis and Voluntariness........................................................................................................................................46
Involuntary Statements..................................................................................................................................46
R. v. Ibraham (166 N: 37) - Involuntary Statements b/c of fear of prejudice...................................................................46
Voluntariness and Atmosphere of Oppression........................................................................................................................47
R. v. Horvath (SCC) - Atmosphere of Oppression = involuntary statement & inadmissible...........................................47
R v Hobbins (112 Cas) Atmosphere of Oppression = involuntary statement & inadmissible..........................................47
Voluntariness and Dirty Tricks................................................................................................................................................47
There are four limitations on the confessions rule:...........................................................................................................47
Summary of Hebert/Broyles.............................................................................................................................................48
R. v. Hebert (1990) SCC - Voluntariness & State Trickery...............................................................................................48
R. v. Broyles (1991) SCC - Voluntariness & State Trickery.............................................................................................48
Necessity of a Voir Dire in Confession Evidence....................................................................................................................49
Thiffault v The King (1933) SCC - Voir Dire required to est statemetn is admissible.....................................................49
Piche v Queen; Ervin v Queen - Voir Dire req'd whether inculpatory or exculpatory.....................................................49
Park v. Queen (1981) - Voir Dire Req't may be waived....................................................................................................49
Mental Capacity and Voluntariness.........................................................................................................................................50
R v. Whittle (1994) SCC - Operating Mind ONLY Req's ltd capacity.............................................................................50
R. v. Clarkson (1986) SCC - Operating Mind...................................................................................................................50
Opinion Evidence.....................................................................................................................................................................50
Lay Opinion Evidence....................................................................................................................................51
R v. Graat ( 19__) SCC - Lay Opinion Evidence..............................................................................................................51
Expert Opinion Evidence...............................................................................................................................52
R v. Mohan (19__ ) SCC - Expert Opinion Evidence.......................................................................................................52
R. v. Burns (1994) SCC - Expert Opinion - SCC Adopted Graat.....................................................................................53
R v Fisher (19__) SCC - Expert Opinion is used to explain the facts..............................................................................53
Bleta v. Queen (19__) SCC - basis of ev must be clear b/f it will be given weight..........................................................53
R v. Abbey (1985ish) SCC - Expert Opion admittedly conditionally 'til supported by EV..............................................53
City of St. John v. Irving Oil Co. (19__) Expert hypothetical ev admiss w/out facts…...................................................53
R v. Lavallee (19__) SCC - Expert Opinion Hypothetical admiss w/ any facts...............................................................53
Statutory Provisions re Expert Evidence......................................................................................................54
Sec. 7 CE Act - upto 5 Expert evidence per Issue.............................................................................................................54
How does Evidence deal with scientific innovations?............................................................................................................54
Scientific Innovation Generally......................................................................................................................54
p. 117 R.v. Belonde - Scientific Innovation (Polygraph)..................................................................................................54
R v. Mohan (19__) SCC - Scientific Innovation...............................................................................................................54
Use of Textbooks..............................................................................................................................................55
Consideration of the Ultimate Issue Rule......................................................................................................55
R. v. Graat (19__) SCC - Ultimate Issues Rule.................................................................................................................55
Opinions on Pure Q of Law.....................................................................................................................................................55
Rule against Oath Helping......................................................................................................................................................55
Expert Opinion Evidence & Oath Helping...................................................................................................55
Lay Witnesses & Oath Helping......................................................................................................................56

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R. v. Gozangue - Reputation for Truthfulness...................................................................................................................56

Collateral Facts Rule...............................................................................................................................................................56
AG v. Hitchcock (1847) if it cld be proved in EV, you can contradict.............................................................................56
Good Character of Accused.....................................................................................................................................................56
Similar Fact Evidence..............................................................................................................................................................56
Smith Case (Brides in Bath) - sim fact ev admissible if sufficiently sim & # of incidences ... Sim Fact Ev admissible re
propensity to do act...........................................................................................................................................................56
Character Evidence..................................................................................................................................................................57
R v. Davidson - Character of A not in issue unless he puts it in issue or to some other matter........................................57
Good Character of Accused.....................................................................................................................................................57
R. v. Logiacco (1984) ONCA...........................................................................................................................................57
Crown Rebuttal of Evidence of Accused’s Good Character........................................................................57
CRB (1990) SCC - "bad " character of A inadmissible unless value outweighs prejudice or A puts it in issue...............58
R. v. McFadden - Character of the A in Issue if A says he isn't the "Type" to ................................................................58
Macnamara #1 (1981) - A will put his Character in Issue if he suggest he isn't the type.................................................58
CCC 350 and 379 - Credibility of A re theft if have priors...............................................................................................58
Character and Credibility of Third Parties.............................................................................................................................59
R v. Dubois - Ev of bad character of victim admissible if relevant..................................................................................59
R. v. Scopelliti - Boomerang... if admit ev of character of victim/witness A's character at issue.....................................59
Sexual Offences and Third Party Credibility..........................................................................................................................59
CCC S. 277 - Sexual Rep Inadmissible re Credibility......................................................................................................59
CCC S.276 Sex’l Activity Inadmissible re Sex'l Activity except in specific situ.............................................................59
Character & Prior Convictions of Witness..............................................................................................................................60
CE Act S. 12 - Prior Convictions of Witness admissible ... and can impeach w/ it..........................................................60
R v. Corbett - Cross Exam re Priors probative value must outweigh prejudicial effect...................................................60
Prior Inconsistent Statements..................................................................................................................................................61
CE Act S 10 - W can be cross E re prior written statements............................................................................................61
CE Act S. 11 - W can be cross E re prior Oral statements................................................................................................61
Four Step Process re Impeachment of Witness.............................................................................................62
Credibility of Own Witness.......................................................................................................................................................62
CE Act S. 9 - Adverse witnesses can be declared Hostile.................................................................................................62
Law of Privilege........................................................................................................................................................................62
Wigmore Privilige Analysis - Four Conditios for est't of case by case privilege..............................................................64
Descôteaux v.Mierzwinski, - Class privilege applies to Solicitor Client r/s.....................................................................64
Ed Ziemba - No Privilege b/n Constituent and Politician.................................................................................................64
R. v. Gruenke (SCC) - no privilege 4 Religion, but Confidence/protectin of privacy may be sufficient basis for
privilege.............................................................................................................................................................................64
SPOUSAL PRIVILEGE...........................................................................................................................................................65
CE Act S.4(3) Spousal Privilege applies to ANY communication w/in the marriage......................................................65
MacDonald v. Bublitz - spousal priv protects ALL communications b/n spouses...........................................................65
Self Incrimination....................................................................................................................................................................66
Section 11(c) of the Charter - right NOT to testigy against oneself.................................................................................66
S. 13 of the Charter - right NOT to give incriminating EV against oneself......................................................................66
R. v. Primeau - 11(c) & 13 mean can't use testimony from one trial against A in another...............................................66
R. v. S.(R.J.) - ev may incriminate in one situ but not in another.....................................................................................67

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SOURCES OF THE LAW OF EVIDENCE

CONSTITUTION
The Constitution DOES NOT have a major impact on the law of evidence (except for section 24(2) of the
Charter), however there is some impact because of issues of:

1. Legislative jurisdiction - who can legislate - sections 91 and 92

2. Impact of Charter: section 24(2), section 7, & section 10

In matters involving Evidentiary Procedure, Federal law is PARAMOUNT over provincial law because
EVIDENCE LAW is an area of DOUBLE ASPECT. (See Marshall v. Q & R v. John & Murray Motors)

MARSHALL V. Q, (1960) SCC - FED EV LAW IS PARAMOUNT

A provincial statute CANNOT override important Federal EV rules - Federal Paramountcy as this
is an area of the doctrine of double aspect.

REGINA V. JOHN & MURRAY MOTORS, (1979) BCCA - S.24 OF BC EV ACT OK

Sec. 24 of the BC Evidence Act was inter vires the province as it was merely a "nuts and bolts
adjustments" to the Canada Evidence Act, rather than substantive change - it was ancillary to.

LEGISLATION
Relevant legislation includes: Canada Evidence Act (Fed), Criminal Code of Canada (Fed), and the BC
Evidence Act (Prov)

SEC. 40 CAN. EV ACT - PROVINCIAL LAW INCORPORATED BY REFERENCE

In proceedings to which CE Act applies, rules of evidence in force in province may also be used,
including laws related to service of warrants, etc., subject to this Act and other acts of
Parliament,

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COMMON LAW
The bulk of evidence law, both in interpretation and in setting out the principles of law of evidence arises
from the common law!

FUNDAMENTAL ADMISSIBILITY (THAYER'S) RULES

Rule 1. relevant evidence is admissible.

Evidence which is relevant to a SUBSTANTIVE issue or CREDIBILITY issue properly before the
trier of fact is admissible UNLESS excluded.

Rule 2. Irrelevant Evidence is Inadmissible.

Evidence NOT RELEVANT to either a substantive or credibility issue properly before the trier of fact
is not admissible.

Rule 3. Evidence which is admissible under Rule 1, but which is relevant to an issue that the trier of fact
CANNOT properly consider MAY BE ADMISSIBLE.

Evidence admissible for one purpose is not rejected just because it is inadmissible with respect to
another purpose. However, the trier of fact should be instructed as to the LIMITED purpose
(curatively charged) for which the evidence can be used. (I.e. Similar fact evidence)

CURATIVE CHARGES
a CURATIVE CHARGE is a limiting instructions from the judge to the jury on how the evidence can be
used.

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OFFERED EVIDENCE
THE ADMISSIBILITY FLOWCHART
Minimal Reliability
- testimony: competence and compellability
- documents: authentication
- real evidence: identification
- demonstrative evidence: demonstrations and
experiments - are they helpful?

Relevance?

Relevant to a substantive issue? Relevant to a credibility issue?

Confessionary EV: Is Evidence a Other evidence? 1. Which Witness: Accused? Victim?

statement made out of court by an Complainant in sexual assault? Party in
accused to a person in authority civil proceeding?
offered by the Crown? 2. Consider law re: collateral facts, prior
statements, prior convictions,
corroboration, testing credibility by
Consider Law re scientific means, etc.
Consider Law re confessions
1. Hearsay, original EV.,
and res gestae
2. Character & Similar
Fact
3. Opinion

Consider law re:

1. Privilege, and
2. Evidence obtained illegally or unfairly
3. Evidence statutorily prohibited

Formal Admissions of Fact Admissible Evidence Matters for Judicial Notice

+ +

ADMISSIBLE EVIDENCE: evidence to be considered by the trier of fact (with respect to permissible purposes, relevancies:
consider law re multiple relevancy, charge re purposes for which it is admissible

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CHILD TESTIMONY
R V KHAN, 1990SCC ADMIS OF UNSWORN EV OF CHILD

1. Section 16 CE Act, Admissibility of Child's Testimony - The ONLY two requirements for
admission of a child of tender years testimony under section 16 of the CE Act are:

(a) Sufficient Intelligence, and

(b) Understanding the Duty to tell the Truth.

Any frailties in child's testimony go to WEIGHT rather than to ADMISSIBILITY of the testimony.

CE ACT - SEC. 16(1) - USWORN TESTIMONY OF CHILD

In any legal proceeding where a child of tender years is offered as a witness, and such child does
not, in the opinion of the judge, understand the nature of an oath, the evidence MAY be received,
though not given on oath, IF:

1. the child is possessed of sufficient intelligence to justify the reception of the evidence, and

2. the child understands the duty of speaking the truth.

CE ACT - SEC. 16(2)CORROBORATION

No case shall be decided upon such evidence alone, and it must be corroborated by some other
material evidence.

POLICY CONSIDERATIONS
Social Concerns, other than those dealing w/ fairness to accused or reliability of EV.

JURY DELIBERATIONS
SEC. 649 CCC - JURY DELIBERATIONS ARE SECRET

Juror commits a criminal offence if discloses anything re the deliberations of the trial.

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STANDARDS OF PROOF
Criminal Matters: the standard is Guilt BEYOND a REASONABLE DOUBT

While the Crown must prove guilt beyond a reasonable doubt in a criminal trial, it does not have to
prove each piece of evidence beyond a reasonable doubt in order to have it admitted.

Civil Actions: the standard is Guilt on the BALANCE of PROBABILITIES.

STANDARD OF PROOF IS MINIMUM RELIABILITY

The requirement that evidence be relevant is met if the evidence merely has some tendency, as a matter of
HUMAN experience, to advance the inquiry!

RELEVANCE AND MATERIALITY

RELEVANCE
To be relevant, the evidence MUST assist in proving the Material Facts in issue!

To determine RELEVANCE ask, "Does the evidence assist in proving the facts I or my counter part are
trying to prove?"

R.V CLOUTIER - LOGICAL RELEVANCE

Logical Relevance establishes the relationship between evidence and the material fact which it is
offered to prove.

RELEVANCE OF CIRCUMSTANTIAL & DIRECT EVIDENCE

Direct Evidence is evidence, that if believed, establishes a material fact in issue without any inferences
being drawn.

Circumstantial Evidence is evidence, that if believed, REQUIRES inferences to be drawn before it is of

use in resolving material issues. When combined with other evidence, circumstantial evidence may be
enough to prove guilt beyond a reasonable doubt/balance of probabilities!

MONTELEONE V. R. (1987) SCC - CIRCUMSTANTIAL EVIDENCE CAN BE RELEVANT

Evidence MAY show a consciousness of guilt in that its relevance may ONLY become apparent once
other evidence is adduced; and, even then it may be dependent on a chain of inferences.

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R V. FERRIS (1994) SCC - CIRCUMSTANTIAL EV MAY BE IRRELEVANT

Apparently relevant evidence, once CONTEXTUALIZED, MAY prove to be irrelevant.

R. V. ARCANGIOLI (1994) SCC - CIRCUMSTANTIAL EVIDENCE MAY BE TOO UNCERTAIN

Inference sought by party calling evidence may be too uncertain for the evidence to be of any value.

EXCLUSIONARY DISCRETION
Apart altogether from fixed rules of exclusion, judges have the discretion to exclude relevant and material
evidence where its PROBATIVE VALUE is OUTWEIGHED by its PREJUDICE. A judge, in considering
his/her discretion, must determine the value of the evidence, based on:

The RELIABILITY and STRENGTH of the inferences that it leads to V. The costs represented by
admission of the evidence… but b/c of need for full answer and defence, DEFENCE EVIDENCE
SHOULD BE EXCLUDED SOLELY WHERE RISKS OF PREJUDICE SUBSTANTIALLY OUTWEIGH
THE PROBATIVE VALUE.

SMITH V R - PRINCIPLED APPROACH

PRIMARY IMPORTANCE IS PLACED ON THE BALANCING OF THE PROBATIVE VALUE OF THE

EVIDENCE AGAINST ITS POTENTIAL FOR PREJUDICE. SCC has said that the trial judge has an
overriding discretion where the analysis of admissibility does not fit the established pigeonholes, the
judge has discretion to hear arguments re probative v. prejudice (See Smith v. R).
CE ACT - SEC. 12 - CONVICTION OF WITNESSES & CREDIBILITY

12. Witness can be cross-examined regarding past convictions as an exercise in balancing the
probative v. prejudicial value of their testimony.

R. V. MOHAN (1994) SCC- PROBATIVE VALUE V. PREJUDICIAL EFFECT

A cost benefit analysis of the probative value of admitting evidence MUST be undertaken in relation
to what it costs (prejudice) in the trial process.

R. V. POTVIN (1989) SCC - PREJUDICIAL TO ADMIT EV WHERE WITNESSES SHLD BE AVAILABLE

It would be prejudicial for Crown to rely on a rule that allows for admission of a transcript of an
unavailable Crown witness, where Crown itself has contributed to the unavailability of the witness.

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R. V. OSOLIN (1991) SCC - UNDULY PREJUDICIAL

Lines of questioning undertaken in the cross-examination of sexual assault complainants can be

denied, even if relevant, if the questioning is unduly prejudicial.

EXCLUSIONARY DISCRETION & WEIGHT

In general, the "weight" of an individual item of evidence describes the importance that is to be attached
to it. When the trier of fact weighs evidence, they MUST consider both its RELIABILITY and the
STRENGTH of the INFERENCES it gives rise to.

Probative Value MEANS tending to prove an issue and questionable evidence will have less of that
tendency.

RELIABILITY
Reliability involves an assessment of the SINCERITY of the witnesses and the INSIGHTFULNESS
(cogency) of their evidence.

Sincerity - the resolve of the witness to testify honestly.

Insightfulness/Cogency - the degree of confidence that can be placed in the accuracy of what an
honest witness is saying because of factors like the opportunity of the witness to observe and to recall,
as well as the ability of the witness to understand and relate what was observed.

R. V. MOHAN (1994) SCC - PREJUDICE AND RELIABILITY

Evidence that is otherwise logically relevant may be excluded if it is misleading in the sense that its
effect on the trier of fact is disproportionate (prejudicial) to its reliability.

R. V. MCINTYRE (1993) ONCA - PROBATIVE VALUE & CREDIBILITY

An assessment of the probative value of evidence must include an appraisal of its credibility in order
to determine a sensible balance between its value and its prejudicial effect.

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REAL EVIDENCE AND DEMONSTRATIVE EVIDENCE

Real evidence refers to tangible items exhibited to the judge or jury -it is evidence that is admitted. Real
evidence MAY be directly linked to the occurrence or MAY be demonstrative. Real evidence is admissible
provided it is properly AUTHENTICATED.

Authentication: The trial judge must be satisfied that there is a sufficient basis to support the
identification of the exhibit, its continuity, and its integrity.

Demonstrative evidence refers to aids used to help witnesses better illustrate or explain their evidence,
including testimonial aids, real evidence, documentary evidence, etc….

View - means to go out and look at the actual scene of the act at issue.
There are disputes re whether it is evidence that can stand alone or is secondary evidence

CHAMBERS V. MURPHY (1953) ONCA - VIEWS ARE NOT EVIDENCE

The purpose of a view of any place is to better understand the evidence, that is to say, to
contextualize it, a trier of fact may not use it to gather evidence.

MEYERS V. MANITOBA (1960) MBCA - VIEWS CAN BE EVIDENCE

The observations of the trier of fact made during a view are evidence. A judge/jury who views a
scale model or similar such object is no different than a judge/jury at a view, as the former is
accepted as real (demonstrative) evidence, so must the latter be.

PHOTOGRAPHS AND VIDEOTAPES

The admissibility of photographs or videotapes depends upon:

1. ACCURACY in representing the facts

2. FAIRNESS and absence of any intention to mislead

3. AUTHENTICATION on oath by a person capable of doing so.

R. V. MALONEY (NO. 2) (1976), ON TR CRT. - VID EV MUST BE ACCURATE REFLECTION OF EVENT

Videotapes that distort the true reality or speed of what occurred are NOT admissible. You must
ask whether the tape provides a fair and accurate representation of events?

R. V. LEANEY (1989) SCC - VIDEO CAN BE USED TO MAKE ID

A Judge may rely on his own viewing of the videotape of a crime to establish identification.

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R. V. NIKOLOVSKI (1994) ONCA - VIDEOS CAN'T BE USED TO MAKE ID

Trial judge, despite the SCC's finding in Leaney above, should not have relied on her own comparison
between the appearance of the person on the videotape and the appearance of the accused in court
to reach a conclusion that was not supported by the available evidence.

DOCUMENTS - BEST EVIDENCE RULE

Original should be tendered when party seeks to prove contents of document. Secondary evidence by way
of copies or the testimony of witnesses are inadmissible.

The best evidence rule is confined to cases where a party has the original document and could produce it,
but does not. The party may satisfy the court that it has been lost, destroyed or in the possession of
someone else.

Documents may be authenticated in a variety of ways: calling the writer, calling a witness who witnessed
the document being signed, calling a witness who is familiar with the author's handwriting, comparison of
the writing in dispute with a document that has been authenticated, by calling experts, or through the
admissions of opposing counsel. Circumstantial evidence may also be used to prove authenticity. In
addition, under statute, a wide variety of public and judicial records are admissible without proof of
authenticity.

BURDENS OF PROOF AND PRESUMPTIONS

Whoever alleges the facts also has the BURDEN of leading evidence TO PROVE the them. Moreover, the
party MUST prove ALL the elements of the action or defence

STANDARD OF PROOF - LEVEL OF PROOF REQ TO PROVE ACT

Civil - proof on balance of probabilities (one side just slightly more likely than other)

Criminal - proof beyond reasonable doubt (Crown MUST prove).

PRESUMPTIONS
Presumptions are common sense rules that gives a party with a burden to prove a fact a "push over the
finish line" in proving their case. A true presumption arises where, upon proof of fact A, the existence of
fact B is rebuttably presumed as a matter of law.

The SCC has held that ANY BURDEN on an accused that has the effect of REQUIRING CONVICTION
in the presence of REASONABLE DOUBT CONTRAVENES the CHARTER. Accordingly, all reverse
onus provisions in a criminal case are in prima facie violation of the Charter, but may be saved under
section 1.

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R. V. BOYLE (1983) ONCA - S. 11(D) PRESUMPTION OF INNOCENCE

A mandatory presumption that has the effect of causing the conviction of the accused despite the
presence of a reasonable doubt violates section 11(d)'s presumption of innocence.

R. V. DOWNEY (1992) SCC - S. 11(D) PRESUMPTION OF INNOCENCE

Section 11(d) of the Charter was violated by the mandatory presumption in section 212(3) of the
CCC, which raised the prospect of conviction of an accused in the face of reasonable doubt.

EXAMINATION IN CHIEF: LEADING V. NON LEADING Q'S

Leading Questions SUGGEST the answers sought OR Assumes a fact NOT in evidence. You CANNOT
lead your own witnesses (Maves v. Grand Trunk Rail), but you CAN & SHOULD lead your opponents
witnesses during CROSS EXAM.

MAVES V. GRAND TRUNK PACIFIC RY. CO. (1913) ABCA

It is generally impermissible for party who has called a witness to ask that witness leading
questions.

REFRESHING MEMORY
Written statements that record facts accurately MAY BE relied upon to refresh a witness's memory.

REFRESHING RECOLLECTION
In refreshing recollection you allow referral to notes to refresh recall. The witness has the document put
in front of them for review, then once queued, recalls the specifics from memory.

US V. RAPPEY CASE - ANYTHING CAN BE USED TO REFRESH MEMORY B/F TRIAL

Anything can be used to refresh memory: "a scent, an object, a song, a photograph, even prior false
evidence."

PAST RECOLLECTION RECORDED

In Past Recollection Recorded you are not expected to recall, rather you are affirming the data recorded
in a daily log, ship log books, hospital medical charts, etc., and the document is submitted as evidence.
This invites inferences of reliability of the document based on the credibility of the witness.

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FLEMING V. TORONTO RAILWAY CO. (1911) ONCA - PAST RECOLLECTION RECORDED

Where a witness could not reasonably be expected to recall evidence because it was part of routine,
day to day activities, his oral testimony that the record was accurate and that it showed he had
completed the action in question is evidence that it occurred.

CROSS EXAMINATION
Cross-examination has two basic functions:

(1) to elicit favourable testimony from the witness, and

(2) to discredit the testimony of the opposing counsel's witnesses. In cross-examination, counsel may
inquire into any relevant matter.

CROSS EXAMINATION RE CREDIBILITY

Each witness who takes the stand puts his or her credibility into issue, and counsel in cross-examination
MAY discredit or impeach the witness's credibility. A witness's credibility is impeached by either
discrediting the character of the witness or by discrediting his credibility, or both.

Cross-examination intended to impeach a witness focuses on: bias, prejudice, interests or corruption, the
character of the witness, contradicting the witness's testimony based on prior inconsistent statements,
challenging the witness's capacity to observe, recall and communicate accurately, putting contrary
evidence to the witnes, and, by showing that the witness's evidence is contrary to common experience.

Collateral Fact Rule: when a cross-examiner questions a witness with regard to his credibility, the
witness's answer is final; one cannot present evidence to contradict (sandbag) a witness on a collateral
matter.

LIMITATIONS ON CROSS EXAMINATIONS

The trial judge has a discretion to restrict the cross-examination if it becomes irrelevant, prolix, or
insulting. Counsel are not to ask questions that cast aspersions on a witness or suggest contrary facts
unless the cross-examiner has reasonable grounds to support the questions. An Accused, however,
generally cannot be questioned as to prior discreditable conduct and associations unrelated to the matter
at trial UNLESS he or she raises issues about his or her credibility. (see McFadden)

R. V. DAVISON (1974) ONCA - COUNSEL CAN'T ENTER EV ...

It is not open to the cross-examiner to put as a fact, hypothetical or otherwise, that which is not
and will not become part of the case as admissible evidence.

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FAILURE TO CROSS EXAMINE

A party who intends to contradict an opponent's witness must direct the witness's attention to that fact by
appropriate questions during cross-examination. (Brown v. Dunn) If the cross-examiner fails to do so, the
weight of the contradictory evidence or submission may be lessened, or such evidence may be rejected in
favour of the testimony of the opponent's witness.

Where counsel intends to impeach the witness by presenting contradictory evidence, the evidence MUST
be put to the witness. (R. v. K(GB))

BROWN V. DUNN CASE (1893) HOFL - B/F IMPEACHING MUST FIRST CONFRONT

If you are going to attack credibility of witness by impeaching him, you MUST confront him with the
inconsistency during cross-examination so he can have an opportunity to explain any contradictions.

CE ACT SS 10&11/BC EV ACT SS 24&25 - B/F IMPEACHING MUST FIRST CONFRONT

If you are going to contradict witness re prior inconsistent statement, you have to cross-examine
witness and give them a chance to explain contradiction. You can't ambush.

CHILD WITNESSES & VIDEOTAPED EVIDENCE

Recent reforms to the criminal code allow children to testify via the introduction of videotaped evidence or
to testify in the absence of the accused, so that children do not have to face the accused.

SECTION 486(2.1) OF CCC - CHILD CAN TESTIFY ON VIDEO

S486(2.1) a (child) witness, under specified circumstances, can give evidence on videotape.

R. V. LEVOGIANNIS (1993) SCC - UPHELD SECTION 486(2.1) - VIDEO EV OF CHILD IS VALID

The procedure outlined in section 486(2.1) was a better way to get at the truth by allowing a child
complainant to testify free from the intimidating presence of the accused. BUT, before testimony
will be admissible, Crown, in VOIR DIRE, MUST satisfy Court that the procedure is NECESSARY to
"obtain a full and candid account of the facts complained of from the complainant."

When evidence is to be admitted under provisions of section 486(2.1) of the Code, the Judge MUST
instruct jury that the screen/video is simply a procedure that is allowed in cases involving minors
because of the age and fragility of the witnesses, and that adverse inferences must not be drawn.

SECTION 715.1 OF CCC - VIDEOTAPED EVIDENCE & SEX'L ASSAULT OF MINORS

715.1 In any proceeding relating to an offence the listed sexual offences in the criminal code, in
which the complainant was under the age of 18 at the time of the offence, a videotape made within

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a REASONABLE time after alleged offence, in which complainant describes the act complained of, is
admissible in evidence if the complainant, while testifying, ADOPTS the contents of the video.

NOTE: Section 715.1 has two main purposes: (1) it aids in the preservation of evidence and the
discovery of truth; and, (2) Using a video at trial makes it less stressful and traumatic for the child
complainants giving their evidence.

R. V. L(DO) (1993) SCC - UPHELD SEC. 715.1 VIDEO EV IS VALID ONCE ADOPTED

Once a child adopts their videotaped evidence at trial, that evidence becomes part of the child's in
court testimony and is no longer strictly hearsay.

R. V. TOTEN (1993) ONCA - CHILD MUST ADOPT THE VIDEO EV

Witness MUST attest to the accuracy of the video based on present memory. This preserves
accused's ability to cross-examine the witness. But, prior to using the videotaped evidence, there
is a need for a voir dire regarding its admissibility.

During the voir dire, it must be ascertained that: (1) the statements conform to the rules of
evidence; and, (2) that the video was made within a REASONABLE TIME.

Trial Judge may exercise his discretion and refuse to admit the video where its prejudicial effect
would outweigh its probative value. (see S. 12 of CE Act)

SECTION 715.2 OF CCC - VIDEOS, DISABILITIES & SEX'L ASSAULT

Section 715.2 of the Code deals with persons with mental or physical disabilities at the time of the
sexual assault, but the witness still has to adopt it at trial.

THE APPEAL PROCESS

WHAT ARE APPEAL COURTS?

Courts of Appeal are statutory courts. They do NOT have INHERENT JURISDICTION! Once in a CA
you have to be within the statutes of the court and within the rules of court as they apply to that particular
court.

R V. MCDONALD (1951)BCCA - IF CA HAS DOUBT, MUST GRANT A'S APPEAL

IF there is any reasonable doubt about the findings of the court below the Court of Appeal will
interfere to the betterment of the accused

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SEC. 683 OF CCC - CA CAN DO ANYTHING TR. J CAN DO

Section 683 of the Code allows the CA to do anything that the trial judge could have done, including
reviewing any documents, etc., that the trial court could have reviewed. In effect, they can re-
conduct the trial.

CCC S. 686(1)(B)(III) - CA CAN DISMISS AN APPEAL IF NO SUBSTANTIAL WRONG DONE...

S.686(1)(b)(iii) of the Code allows the CA to dismiss an appeal even though they have found an error
at trial if they are of the opinion that there was "no substantial wrong or miscarriage of justice."

COLPITTS V. QUEEN, (1966) SCC - GROUNDS FOR APPEAL

Crown Appeal: Crown has the onus of convincing CA that there was an error at trial. If the court
finds an error, Crown must convince Court that the result would NOT necessarily have been same.

Defence Appeal: accused must convince court of an error, if successful, Crown must convince court
the result would NECESSARILY have been same even if error not occurred. (CCC S.686(1)(b)(iii)).

Supporting Cases:
Wildman v. Queen, 1984, vol. 12, DLR, 4, page 641
R. v. B. (F.F.), [1993] 1 SCR 697
R. v. E. (A.W.) [1993] 3 SCR 155

MCCANNELL V. MCLEAN, (1937) SCC - APPEAL FROM JURY ONLY IF UNREASONABLE DECISION

IN making an appeal on grounds re a jury decision, Must prove that jury acted perversely in making
their decision. That is to say, that the decision was UNREASONABLE given the facts in issue.

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THE ADMISSIBILITY OF EVIDENCE

MATTERS FOR JUDICIAL NOTICE
Essentially the court may take notice of matters (legislative or adjudicative) of common knowledge or
what is "notorious" in the local community or what is easily established by reference to a dictionary, etc.
(See Homes case)

Judicial Notice is based on the need to protect the credibility of the judicial system. Thus, judicial notice
may only be taken of those facts that are commonly known or that are so notorious as to be indisputable,
and which, if not accepted by the court would bring the repute of the judicial system into disrepute. Once
judicial notice is taken it is final, and it will declare that the fact exists and direct the jury accordingly!

TWO BRANCH TEST RE JUDICIAL NOTICE

Judicial notice is the acceptance by a court, without the requirement of proof, of any fact or matter which:

1. Is so generally known and accepted in the community that it cannot be reasonably questioned,
or

2. Can readily be determined or verified by resort to sources whose accuracy cannot be

reasonably be questioned.

RE HOLMES CASE - J CAN TAKE NOTICE OF MATTERS OF COMMON KNOWLEDGE IN COMMUNITY

Courts MAY take judicial notice of facts that form part of the COMMON KNOWLEDGE of EVERY
PERSON of ORDINARY UNDERSTANDING and INTELLIGENCE.

R. V. ZUNDEL (1987) SCC - NOTICE MAY BE TAKEN OF MATTERS OF GENERAL OR NOTORIOUS FACTS

Counsel can request the judge to take judicial notice of a matter that is of such general or notorious
knowledge within the community

R. V. DESAULNIERS (1994) PQCA - JUDGE MAY TAKE JUDICIAL NOTICE OF FACTS

Judge, himself, may take judicial notice of an adjudicative fact, but he SHOULD first give counsel
notice of his intent to do so.

R. V. POTTS (1982) ONCA - CA MAY TAKE JUDICIAL NOTICE OF WHATEVER J CAN

An appellate court can properly take notice of any matter of which the trial court judge may
properly take notice. CA, however, must first look to what is or is not notorious w/in community

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CE ACT S.17 / BC EV ACT SS24 & 25 - J MUST TAKE NOTICE OF LAWS OF CANADA AND PROVINCE

Under the Canada EV Act S. 17 and BC Evidence Act ss 24 and 25, a judge MUST take Judicial Notice of
the laws of Canada and of the Province of British Columbia.

Laws of a foreign jurisdiction, on the other hand, MUST be proven by counsel, but BC Evidence Act does
provide for judicial notice of statutes from British Commonwealth.

Most subordinate legislation from municipalities, etc., MUST be PROVED

COMPETENCE AND COMPELABILITY

Generally, ALL witnesses are PRESUMED COMPETENT; and, COMPETENT witnesses are
COMPELLABLE! But,

Accused: At common law the accused is considered to be incompetent to testify; but, an accused, pursuant
to Sec. 4(1) of Canada Evidence Act, can be competent as a witness for the defence. However, at C/L and
under SS. 11(c) and 13 of the Charter, an accused CANNOT be forced to testify against himself.

His/ Her Majesty - is competent, but is not compellable

Diplomatic Immunity - may be competent and may be compellable depending on the facts and the
legislation.

Spouses: persuant to section S.4(3) of the CE Act, a spouse is not competent to testify against another
spouse re ALL communcations during the marriage, but can waive.

Solicitor-Client Privilege: the client's communication with the solicitor are privileged (client has the
privilege), and are therefore the solicitor is not competent to testify.

CE ACT - SECTION 4(1) SPOUSE AND DEFENCE

S4(1) of Canada Evidence Act makes the spouse competent for the defence.

R. V. MCGINTY (1986) YUKON CA - SPOUSE IS COMPELLABLE BY ACCUSED

A spouse of the Accused is both competent and compellable as a witness for him or her.

CE ACT - SECTION 4(2) - SPOUSE IS COMPELLABLE AGAINST ACCUSED RE MORALS OFFENCES

S4(2) of CE Act makes spouse of an accused COMPETENT & COMPELLABLE for prosecution without
consent of the accused IF the accused is charged with offences listed in 4(2) - i.e. morals offences

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CE ACT S. 4(3) SPOUSE IS NOT COMPELLABLE BY CROWN

S4(3) of CE Act provides that the spouse of an accused is not compellable, as a class, re ALL
communications during marriage. But spouse can waive this privilege.

CE ACT - SEC. 4(4) - SPOUSE IS COMPELLABLE IF VICTIM IS >19

Section 4(4) of the CE Act provides that the spouse of an accused is competent and compellable IF
the plaintiff or victim is a person listed and the person is a YOUNG PERSON (under 14)

CE ACT - SEC. 4(5) - SPOUSE IS NOT COMPELLABEL GENERALLY AGAINST HIS SPOUSE

Preserves the C/L presumptions that the SPOUSE IS NOT Compellable, exception is TREASON

COMPELLABILITY OF A MINOR
Where a witness is of "tender years" the court must deterimine whether the child understands the
importance of the solemn oath of a trial, don't have to understand the oath itself, and to ensure the child is
able to communicate the evidence (see CE Act S.16 and Khan). Generally, it is necessary to explore
whether the witness is capable of perceiving events, remembering events and communicating events to the
court. It is not necessary to determine in advance that the child perceived and recollects the very elements
at issue in the trial as a condition of ruling that her evidence be received. (See R. v. Marquard)

There is no need for the child to have a religious understanding of the oath to tell the truth (See R. v.
Leonard). What is required is that the oath in some way gets hold on the child's conscience; that there is
an appreciation of the significance of testifying in court under oath. The child's understanding of the
moral obligation must include:

1. An appreciation of the solemnity of the occasion

2. An understanding of the added responsibility to tell the truth over and above duty to tell the truth as
part of ordinary social conduct

3. An understanding of what it means to tell the truth in court

4. An appreciation of what happens, in a practical and moral sense, when a lie is told in court

A promise to tell the truth is simple: it involves an understanding of the importance and duty to speak the
truth.

CE ACT - SECTION 16(1) - COMPETENCY OF A MINOR TO TESTIFY...

Where a proposed witness is a person less than 14 or whose mental capacity is challenged, the court
SHALL, b/f permitting the person to give evidence, conduct an inquiry to determine whether the

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person: (1) Understands the nature of an oath or a solemn affirmation; and, (2) Is able to
communicate the evidence.

NOTE: The inquiry mandated by section 16 is conducted in front of the jury because matters of
competency will also assist the jurors in weighing the witness's evidence.

R. V. MARQUARD, SCC - MUST EXPLORE CHILD'S ABILITY TO COMMUNICATE EV

It is necessary to explore in a general way whether the witness is capable of perceiving events,
remembering events and communicating events to the court. It is not necessary to determine in
advance that the child perceived and recollects the very elements at issue
R V LEONARD, ONCA - CHILD MUST KNOW IMPORTANCE OF TESTIMONY

There is no need for the child to have a religious understanding of the oath to tell the truth.
What is required is that there is an appreciation of the significance of testifying in court under
oath. The child's understanding of the moral obligation must include:

1. An appreciation of the SOLEMNITY of the occasion

2. An understanding of added responsibility to tell truth

3. An understanding of what it means to tell the truth in court

4. An appreciation of what happens, in a practical and moral sense, when a lie is told in court

R. V. W.(R), (1992) SCC - CHILD'S ABILITY TO TESTIFY REQ'S COMMON SENSE ASSESSMENT

The evidence of children should be approached on a common sense basis, taking into account the
strengths and weaknesses that characterize the evidence offered in the particular case.

DEMONSTRATION EVIDENCE
Demonstration Evidence is evidence that is presented in the form of a model or experiment, etc., to assist a
jury in understanding the evidence being presented. While demonstrative evidence is admissble,
recreation evidence is NOT (see R. v. Quinn).

R V. QUINN, [1961] (BCCA) - DEMONSTRATIVE EVIDENCE IS ADMISSIBLE

While demonstrations are allowed at trial to show what was done or occurred at the material time, a
recreation of events after the fact is NOT

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HEARSAY EVIDENCE
Hearsay refers to

(1) any out of court statement by a 3rd party

(2) offered as evidence by a witness at trial

(3) to prove the TRUTH of its contents.

Only statements offered for their truth offend the rule against hearsay (See Subramaniam). When an out
of court statement is offered for some other relevant purpose, such as that the statement was made, it is
admissible if it has probative value.

An out of court statement includes any assertion revealed through actions and not words, as well as any
prior statements (other than testimony) of a witness that is to be called at trial. Where the actions are
intended to communicate a message, they are treated the same as verbal or written statements.

SUBRAMANIAM V. PUBLIC PROSECUTOR (1956) HOFL - HEARSAY ONLY IF TO PROVE TRUTH...

Testimony as to what was said out of court went to establish the statements were made, rather
than to establish truth of statements themselves and were thus, within the exception to hearsay.

R. V. COLLINS (1987) SCC ADOPTED SUBRAMANIAM HEARSAY RULE

The statement was only important in terms of establishing that it had been made, it did not go to
the truth of the statement, and is therefore admissible.

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SETTING UP THE BIG PICTURE RE HEARSAY

In the Admissibility Flowchart, Hearsay is w/in the rubric of "credibility of evidence".
Khan case; Smith case as explained in KGB redefined the law of evidence.

R. V. SMITH IS THE STARTING POINT FOR HEARSAY ADMISSIBILITY

Post Smith, using the same definition of hearsay from Subramaniam,

"Hearsay is any out of court statement offered for its truth, by someone other than the witness"

Hearsay is admissible WHERE the evidence is necessary, reasonably reliable, and its probative value
outweighs its prejudicial effect. Combining w/ this new rule, however, are the exceptions that existed
under the old rules.

Thus, the first question should be whether the reception of the hearsay statement is NECESSARY.
Necessity for these purposes must be interpreted as reasonably necessary. The next question should then
be one of RELIABILITY. Finally, one must ask if the probative value outweighs the prejudicial effect of
the evidence. (See Khan)

NECESSITY: necessity refers to need for hearsay to prove a fact in issue. Moreover, necessity MUST
be given a flexible meaning. To be necessary, the assertion may be such that we cannot expect, again
or at this time, to get evidence of the same value from the same or other sources. Where the necessity
is not so great; perhaps where the evidence is hardly a necessity, but only an expediency or
convenience, it can be maintained, but the principled approach is the same.

RELIABILITY: reliability is determined by looking at the circumstances under which the statement
was made. What is needed is proof that the circumstances substantially negate the possibility that the
maker of the statement was untruthful or mistaken. Once again, this is a factual determination to be
made on a case by case basis.

SMITH (1992), 75 CCC (3D) 257 (SCC) - PRINCIPLED APPROACH

Hearsay MAY BE ADMISSIBLE, using a PRINCIPLED APPROACH, IF:

1. The evidence Is NECESSARY (i.e. witness is dead)

2. The Evidence Is REASONABLY RELIABLE (i.e. if it has reasonable degree of reliability)

3. The PROBATIVE VALUE outweighs its PREJUDICIAL EFFECT

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R .V KHAN (1990) SCC - RELIABLE, NECESSARY & PROBATIVE VALUE V PREJUDICE

Admissibility of Conversation b/n Mom and Child - First question should be whether the reception of
the hearsay statement is NECESSARY. Necessity for these purposes must be interpreted as
reasonably necessary.

The next question should then be one of RELIABILITY.

Finally, one must ask if the probative value outweighs the prejudicial effect of the evidence.

Considerations such as timing, demeanor, personality of child, intelligence and understanding, and
absence/presence of any reasons to expect fabrication should be considered under "weight"

RECOGNIZING HEARSAY
Hearsay is an out of court statement that is made to prove the truth of its contents. Hearsay is ONLY
concerned with out of court statements made someone other than the witness testifying in court. (See R. v
Subramaniam)

The fact that the witness testifies in court about his or her prior out of court statement is irrelevant. The
prior statement is still hearsay, and to be admissible for its truth, an exception to hearsay rule must be
found.

AVOIDANCE OF HEARSAY DANGERS

Exceptions to the Hearsay Rule should receive a Narrow Focus b/c of the possibility of concoction or fabrication. (See R. v.
Ratten) It is important to recognize that the offered evidence MUST be that of an out of court statement made by a
PERSON or it CANNOT be hearsay! (R. v. Chow)

An admission need not be based on personal knowledge, but the party MUST in some way indicate an acceptance or belief
in the truth of the hearsay statement. A party may accept what others say and, if so, the party is deemed to have adopted
those statements. (See R. v. Streau)

Wherever a declaration, in and of itself is inadmissible, is admitted as part of an act b/c it explains, qualifies or completes it
(i.e. part of the NARRATIVE), the act itself must be admissible evidence without the declaration. (See Wright v. Tathum)
Where the mental state of the witness makes the statement so untrustworthy or unreliable that it could not be reasonably
regarded as her statement, that finding throws great doubt on the admissibility of the utterance. (R. v. Slugowski)
If there is an explanation that is reasonable as to why a witness cannot identify the accused, his/her out of court statements,
as long as it was necessary, reliable, and the probative value outweighs the prejudicial effect, may be testified to by a police
officer or other witness and be admissible even though it is potentially hearsay. (See Swanston)

In R. v. K(GB) the SCC applied the principles of necessity and reliability delineated in Khan and Smith and fashioned a new
exception to the hearsay rule re Prior Inconsistent Statements. A witness' previous statement may be admissible re
credibility & substantive issues because the weight of the evidence is so overwhelming that it must be admissible.
Accordingly, NECESSITY arises not from unavailability, but from the fact that the statements are important evidence
proving what actually occurred that would otherwise be lost. Reliability can be established based on "comparative
reliability." "COMPARATIVE RELIABILITY" means that the out of court statements would be admitted for their truth
where adequate substitutes for each trial safeguard exist, such that: The statement is made under oath or solemn affirmation
following a WARNING re the existence of sanctions and significance of the oath. The statement is VIDEOTAPED in its
entirety; and the opposing party has a full opportunity to CROSS EXAMINE. This was affirmed in R. v. U(FJ) where the

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court held that a witness's prior inconsistent out of court statements are admissible for their truth under the Smith approach,
where in the circumstances it "smacks of reliability!"

Moreover, under s. 9 of the CE Act, a party may request a VOIR DIRE to prove that a called witness has made a PRIOR
INCONSISTENT STATEMENT, & w/ leave, MAY cross-examine the witness on the statement. Procedure for a S. 9 VOIR
DIRE requires the calling party to establish: INTENTION in tendering the statement to have it admitted for its TRUTH; On
a BALANCE OF PROBABILITIES the admissibility of the prior inconsistent statement for its truth (must be Necessary);
That SUFFICIENT INDICIA OF RELIABILITY - warning, oath, solemn affirmation/declaration, etc. are present and
genuine; and, That statement, if made to someone in authority was VOLUNTARY, and that its admission would NOT bring
the administration of justice into disrepute if admitted for its truth.

The C/L has long recognized the need to have a witness identify an accused at the earliest possible moment and under the
fairest of circumstances in order to ensure the reliability of the identification. Thus, as a matter of practice courts readily
admit prior identifications that support the in court/dock identification. (See R. v. Armstrong) Accordingly, PRIOR
IDENTIFICATION was admissible as independent evidence b/c the eyewitness was present, could be cross-examined, and
could attest to the accuracy of the earlier identification. Moreover, as long as there is a REASONABLE explanation as to
why a witness cannot identify the accused, his out of court statements, as long as it is necessary, reliable, and the probative
value outweighed the prejudicial effect, MAY be admissible even though it is potentially hearsay. (see Swanston)
So, where the evidence, (1) is necessary to admit to make establish the prior identification; and (2) the evidence is reliable;
and, (3) the probative value outweighs the prejudicial effect, it is admissible to prove the truth of the statement as an
exception to the hearsay rule.

The test re the admissibility of Prior Testimony is whether the "evidence relates to any Material issues that are
SUBSTANTIALLY THE SAME IN BOTH ACTIONS?" The KEY is that the party IS now being denied the opportunity to
cross-examine the witness, and this is the party who MUST have been present or at least represented at the prior proceeding
for the testimony to be admissible. (See Town of Walkerton v. Erdman) It is only necessary that the party had an
opportunity to testify, if he didn't it is his own fault.

CCC S. 715(1) provides that where, at the trial of an accused, a person whose evidence was given at a previous trial on the
SAME CHARGE, or whose evidence was taken in the investigation of the charge against the accused or on the preliminary
inquiry in to the charge, REFUSES to be sworn or to give evidence, or if facts are proved on oath from which it can be
inferred reasonably that the person: is dead, has since become insane, is so ill that he is unable to travel or testify, or is
absent from Canada,

And where it is proved that his evidence was taken in the presence of the accused it may be read as evidence in the
proceedings w/out further proof, if the evidence purports to be signed by the judge or justice before whom it purports to
have been taken, UNLESS the accused proves that it was not in fact signed by that judge or justice or that he did not have
full opportunity to cross examine the witness.

It is the opportunity to cross examine and not the fact of cross-examination that is crucial. At C/L, once a full opportunity to
cross-examine is found, the prior testimony is admissible. BUT, under Section 715(1) the Trial judge has a DISCRETION to
NOT allow prior testimony if it would be PREJUDICIAL to the accused. BUT, IF the accused wanted to read in evidence
715 would be admissible. (See Potvan) The SCC left it open to a trial judge to exclude testimony where, as in Potvin, the
credibility of the witness is critical. (See R. v. Daviault)

Hearsay is GENERALLY INADMISSIBLE when:

It is an out of court statement that is offered for its truth, unless it fits in one of the exceptions. (See Subramanium)
When proof a particular fact that is NOT of itself in issue, and thath is RELEVANT only as implying a statement or opinion
of a 3rd person on the matter in issue, is inadmissible in all cases where such a statement or opinion not on oath would be of
itself inadmissible. (See Wright v. Tathum)

A party testifies as to an out of court conversation, but only recants his/her statements leaving blanks for the other party's
statement, the evidence will not be admissible under the hearsay rule because the blanks are suggestive of what the out of
court declarations of a non-present party may have said. (See US v. Check)

NOTE:
IF hearsay evidence is WRONGLY admitted at trial MAY remain admissible on appeal IF the defendant had a chance to
cross-examine regarding whether its prejudicial effect outweighed its probative value. (see R. v. Schwartz)

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4 WAYS HEARSAY MAY ARISE

1. In an Oral (Verbal) Declaration: Declarant is testifying to something s/he heard.

2. In a Written Declaration: Anytime you have a person's statement contained w/in a document. Think
of the document as saying, "the person who wrote me said"

3. Assertive Conduct: physical conduct intended as an assertion in lieu of a statement.

4. In Implied Statements: Conduct in the form of words. (See Wright v. Tathem).

HEARSAY: RELIABILITY
RATTEN V. QUEEN, JCPC - HEARSAY & RELIABILITY

The INHERENT UNTRUSTWORHTINESS re out of court statements made by declarants that

cannot be cross-examined is the basis for the hearsay rule.

R. V. SLUGOWSKI (1985) BCCA - HEARSAY & RELIABILITY B/C OF INCOMPETENCE

Where the mental state of the witness makes the statement so untrustworthy or unreliable that it
could not be reasonably regarded as her statement, that finding throws great doubt on the
admissibility of the utterance.

HEARSAY: IMPLIED STATEMENTS

An expressed statement in an out of court statement offered for its truth IS hearsay, thus an IMPLIED
statement flowing from an out of court statement offered for its truth is also hearsay. (see Wright v.
Tatham). Whereas, evidence of statements made by out of court are admissible to show "CHARACTER"
or for some other purpose b/c it is evidence of CONDUCT or FACTS in the form of words, it would
however, not have been admissible for its truth (See Fialkow).

WRIGHT V. TATHAM (1837) - AN IMPLIED STATEMENT IS STILL HEARSAY

Since an express statement of competency (truth of matter) in an out of court statement would be
hearsay, an implied statement flowing from out of court conduct IS also hearsay.

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R. V. FIALKOW (1963) ONCA - NOT HEARSAY IF OTHER PURPOSE (I.E. CHARACTER OF HOUSE)

Evidence of statements made by the callers were admissible to show the "CHARACTER" of the house
b/c it is evidence of CONDUCT or acts in the form of words, it would however, not have been
admissible as truth re betting itself.

R. V. KEARLEY (1992) HOFL - HEARSAY & IMPLIED STATEMENTS

Whether you have an expressed declaration or a massaged, implied statement, they are inadmissible
as hearsay evidence UNLESS within one of the exceptions.

No distinction is to be drawn between expressed and implied assertions. There is no difference, if

the evidence is non-hearsay, a judge retains a discretion to exclude if it is prejudicial. And, if it is
hearsay, it may still be admissible under one of the hearsay exceptions.

HEARSAY: PRIOR INCONSISTENT STATEMENTS

Prior inconsistent statements of non party witnesses may be admitted for their truth where:

1. Statement made under OATH OR SOLEMN AFFIRMATION;

2. The statement is VIDEOTAPED in it s entirety;

3. The opposing party has a FULL OPPORTUNITY TO CROSS EXAMINE the witness
respecting the situation; or alternatively, there exist substitutes for the above requirement;
and,

4. The STATEMENT IS MADE VOLUNTARILY, if to a person in authority, and there are no

other factors that would tend to bring the administration of justice into disrepute if the
statement is admitted for its truth.

R. V. KGB (SCC) - PRIOR INCONSISTENT STATEMENTS ARE ADMISSIBLE IF SO OVERWHELMING ...

In R. v. K(GB) the SCC applied the principles of necessity and reliability delineated in Khan and
Smith and fashioned a new exception to the hearsay rule re Prior Inconsistent Statements. A
witness' previous statement may be admissible re credibility & substantive issues because the weight
of the evidence is so overwhelming that it must be admissible.

1. Necessity arises not from unavailability, but from the fact that the statements are important
evidence proving what actually occurred that would otherwise be lost.

2. Reliability can be established based on "comparative reliability." "COMPARATIVE RELIABILITY"

means that the out of court statements would be admitted for their truth where adequate
substitutes for each trial safeguard exist, such that:

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(a) The statement is made under oath or solemn affirmation following a WARNING re the
existence of sanctions and significance of the oath.

(b) The statement is VIDEOTAPED in its entirety; and

(c) The opposing party has a full opportunity to CROSS EXAMINE

(d) The statement was made voluntarily, and doesn't violate charter

R. V. U(FJ) (1995) SCC - PRIOR INCONSIST STATEMENT ADMISSIBLE IF "SMACKS OF RELIABILTIY"

A witness's prior inconsistent out of court statements are admissible for their truth under the
Smith approach, where in the circumstances it "smacks of reliability!"

CE ACT SECTION 9 - VOIR DIRE REQ'D RE PRIOR INCONSISTENT STATEMENT

A party may request a VOIR DIRE to prove that a called witness has made a PRIOR
INCONSISTENT STATEMENT, & w/ leave, MAY cross-examine the witness on the statement.
Procedure for a S. 9 VOIR DIRE requires the calling party to establish:

1. INTENTION in tendering the statement to have it admitted for its TRUTH;

2. On a BALANCE OF PROBABILITIES the admissibility of the prior inconsistent statement for its
truth (must be Necessary);

3. That SUFFICIENT INDICIA OF RELIABILITY - warning, oath, solemn affirmation/declaration,

etc. are present and genuine; and,

4. That statement, if made to someone in authority was VOLUNTARY, and that its admission would
NOT bring the administration of justice into disrepute if admitted for its truth.

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PRIOR IDENTIFICATIONS
Out of court identifications made by a witness may be admitted for their truth and for credibility
purposes where the witness makes an in dock identification. Out of court identifications are admissible
but can only be cross-examined re the situation in which the identification was made.

Out of court identifications may also be admitted for their truth where the witness makes no in court
identification, but is available to be cross examined on the making of the prior identification.

The PRIOR IDENTIFICATION exception is premised on two factors:

(1) The eye witness is available for cross examination regarding the identification and the identification
procedures;

(2) It is assumed that the earlier identification is the more reliable evidence. In dock identifications are
suspect because the accused is readily identifiable.

R. V. ARMSTRONG 1969 BCCA, PRIOR ID OK IF IN DOCK ID MADE...

C/L has long recognized the need to have a witness identify an accused at the earliest possible
moment and under the fairest of circumstances in order to ensure the reliability of the
identification. Thus, as a matter of practice courts readily admit prior identifications that support
the in court/dock identification.

SWANSTON (1982) BCCA - PRIOR ID ADMISSIBLE IF EXPLAIN INABILITY TO ID IN DOCK

PRIOR IDENTIFICATION was admissible as independent evidence b/c the eyewitness was present,
could be cross-examined, and could attest to the accuracy of the earlier identification.

Moreover, as long as there is a REASONABLE explanation as to why a witness cannot identify the
accused, his out of court statements, as long as it is necessary, reliable, and the probative value
outweighed the prejudicial effect, MAY be admissible even though it is potentially hearsay.
R. V. LANGILLE (1990) ONCA - PO CAN RELATE PRIOR IDENTIFICATIONS OF WITNESS

A police officer or other witness could relate prior descriptions of an accused given by an eyewitness
even though it is made out of court and goes to the truth of the identity of the accused.

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HEARSAY: PRIOR TESTIMONY

At C/L, evidence given in a prior proceeding by a witness is admissible for its truth in a later proceeding
provided:

(1) the witness is UNAVAILABLE;

(2) the parties, or those claiming under them, are substantially the same;

(3) the material issues to which the evidence is relevant are substantially the same; and,

(4) the person against whom the evidence is offered had an opportunity to cross-examine the
witness during the earlier proceeding.

Requirement of IDENTITY of issues and parties ensures that the party against whom the evidence is
offered had an adequate opportunity to cross-examine the witness during the earlier proceedings. An
ACTUAL cross-examination is NOT required, merely the OPPORTUNITY is enough.

UNLESS the issues are the same, the cross examination would not have been directed to the same material
facts under investigation, and therefore would not have been adequately tested for exposing inaccuracies
and falsehoods. Unless the parties are the same in motive and interest, there is a similar inadequacy of
opportunity. What is required is that the evidence relates to any material issues that are substantially the
same in both actions.

TOWN OF WALKERTON V. ERDMAN (1894) HOFL - TEST RE PRIOR TESTIMONY

The test re the admissibility of Prior Testimony is whether the "evidence relates to any Material
issues that are SUBSTANTIALLY THE SAME IN BOTH ACTIONS?"

The KEY is that the party IS now being denied the opportunity to cross-examine the witness, and
this is the party who MUST have been present or at least represented at the prior proceeding for
the testimony to be admissible.

It is only necessary that the party had an opportunity to testify, if he didn't it is his own fault.

SC RULE 31.11(6) ADMISSIBILITY OF PRIOR TESTIMONY

31.11(6) The BC Rules of Court allow for admission of evidence of any proceeding regarding the
issue in question, provided that the person's giving the testimony is DEAD. Court will ask, "Is it
fair to have this matter put in?" Did the parties have an opportunity to cross-examine? Is it
unfair or prejudicial. In effect, we have ergman like analysis.

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CCC 715(1) ADMISSIBILITY OF PRIOR TESTIMONY

CCC S. 715(1) provides that where, at the trial of an accused, a person whose evidence was given
at previous trial on the SAME CHARGE, or whose evidence was taken in the investigation of charge
against accused or on the preliminary inquiry in to the charge, REFUSES to be sworn or to give
evidence, or if facts are proved on oath from which it can be inferred reasonably that the person:

(a) is dead, (b) Has since become insane, (c) is so ill that he is unable to travel or testify, or
(d) is absent from Canada,

And where it is proved that his evidence was taken in the presence of the accused it may be read
as evidence in the proceedings w/out further proof, if the evidence purports to be signed by the
judge or justice before whom it purports to have been taken, UNLESS the accused proves that it
was not in fact signed by that judge or justice or that he did not have full opportunity to cross
examine the witness.

R V. POTVAN (SCC) - CCC S. 715(1) IS CONSTITUTIONAL

It is the opportunity to cross examine and not the fact of cross-examination that is crucial. At
C/L, once a full opportunity to cross-examine is found, the prior testimony is admissible.

R. V. DAVIAULT (1994) SCC - ADMISSIBILITY OF PRIOR TESTIMONY

IT is open to trial judge to exclude testimony where the credibility of the witness is critical.

RE PRESENT STATE OF MIND

Offered evidence represents present state of mind of [PERSON] re [emotion, fear, intent, etc.] (See R. v.
Wysochan; Slugowski)

If the statements are explicit statements of a state of mind, they are admissible if relevant and reliable.
(See Wysochan) If those statements permit an inference as to the speaker's state of mind, they are
regarded as original testimonial evidence and admitted as circumstantial evidence from which a state of
mind can be inferred.

The evidence is NOT admissible to show the state of mind of someone other than the speaker, nor is the
evidence admissible to establish that past acts or events referred to in the utterances occurred (i.e. truth)
(See Wright v. Tathum).

R. V. WYSOCHAN - HEARSAY & STATE OF MIND

Out of court statements were NOT hearsay, rather they were mere expressions of her belief and
feeling towards her husband (her state of mind as it were). BUT, the IMPLIED ASSERTION as to
the truth of the statement is obvious and it would definitely be hearsay.

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HEARSAY: PRIOR CONVICTIONS

Historically, the C/L made prior convictions inadmissible as it was hearsay. However, this has since been
overruled by both case law and statute law. (See R. v. Holingsworth) A Court MAY admit proof of a prior
conviction as PRIMA FACIE proof of that issue, subject to rebuttal by the opposing party. It would be an
abuse of process to allow a defendant to re-litigate a prior conviction UNLESS the party bringing the
motion forward has NEW EVIDENCE that would prejudice the prior conviction. (See Demeter v. Br.
Pacific Life Insurance) Sec. 71 of the BC EV Act states that a party to a CIVIL proceeding may prove
that the other party or a 3rd party has been CONVICTED of a CRIMINAL OFFENCE for the purpose of
establishing prima facie that such person committed the offence charged.

Thus, a party MAY introduce evidence of a prior conviction against the accused and against a 3 rd party as
prima facie proof of the fact in issue. However, the value to be attached to the evidence of the prior
conviction is for the trier of fact to determine (gee do u think he did it or what?). But, the trial judge MAY
exercise his/her discretion to exclude evidence of a prior conviction where the prejudicial effect would
outweigh its probative value. (See R. v. Quinto Mngt)

BC EVIDENCE ACT, SEC. 71 - PRIOR CONVICTIONS ADMISSIBLE

If a person has been convicted of an offence anywhere in Canada AND the commission of that
offence is RELEVANT to any issue in a CIVIL action, then proof of the conviction or the finding of
guilt is admissible.

DEMETER V. BR. PACIFIC LIFE INSURANCE (1983) ON HI CRT - OVERRULED HOLLINGTON - PRIORS ARE ADMISSIBLE
IN CIVIL TR.

Court MAY admit proof of a prior conviction as PRIMA FACIE proof of that issue, subject to
rebuttal by the opposing party.

It would be an abuse of process to allow a defendant to re-litigate a prior conviction UNLESS the
party bringing the motion forward has NEW EVIDENCE that would prejudice the prior conviction.

R. V. QUINTO MANAGEMENT LTD. (1984) ON HI CRT - PRIORS OK

A party MAY introduce evidence of a prior conviction against the accused and against a 3 rd party as
prima facie proof of the fact in issue.

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HEARSAY: ADMISSIONS
General RULE: Anything the other side EVER SAID or DID will be admissible so long as it is relevant to
the Material Facts. (See R. v. Evans). An admission is anything SAID or DONE by someone included in
the STYLE OF CAUSE. Thus, anything the plaintiff has said that is relevant can be put in as evidence
and is NOT hearsay. And, Anything the Defendant has said can be put in as evidence that is relevant and
is NOT hearsay. These are admissions!

A party may introduce into evidence against an opposing party any relevant:

1. Statement made by the opposing party;

2. Act of the opposing party;

3. Statement made by a 3rd party that is expressly adopted by the opposing party or where it may
be reasonably inferred that the opposing party has adopted it;

4. Statement by a person the opposing party authorized to make the statement, or where the
statement was made by th opposing party's agent or employee concerning a matter within the
scope of the agency or employment, during the existence of the relationship; and,

5. Statement made by a Co-Conspirator in furtherance of a conspiracy.

Such admissions are acts or words of party entered as evidence against that party. An admission does not
have to be made KNOWINGLY against one's interests. Rather the evidence is against interest simply
because the opposing side has decided to introduce it at trial against the party.

R. V. EVANS (1993) SCC - ADMISSIONS OF A PARTY ARE ADMISSIBLE AS EVIDENCE ...

What ever a party has stated previously can be admitted against the party in whose mouth it does
not lie to complain of the unreliability of his or her own statements. But, an admission by the
accused will not be admitted as an exception to the hearsay rule UNLESS the Crown can first
establishes that the statement was likely made by the accused (Authenticity)

HEARSAY: ADMISSION BY CONDUCT

1. Admissions may be implied from a party's conduct. Anything that the other side ever said or did is
admissible if relevant.

2. Normally acts are factual and DON’T raise hearsay problems.

3. The issue is really one of RELEVANCY in that the Court must be satisfied that the validity of the
inference from the conduct to the alleged admission.

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WALMSLEY V. HUMENICK - ADMISSIONS MAY BE MADE BY CONDUCT...

The parties had an established relationship (CONTEXT), and it could be implied from this that the
defendant's actions were just as easily a "gesture of compassion", which in the CIRCUMSTANCES
(Context) should NOT be construed as an admission of liability.

HEARSAY: ADOPTIVE ADMISSIONS

1. You MAY enter a 3rd party statement into evidence which has been adopted by the opposing party;
OR,

2. You MAY enter a 3rd party statement into evidence where it is likely to have been adopted by the
opposing party.

CCC SECTION 655 - CROWN FACTS ADMISSIBLE BY ACCUSED

An accused MAY admit any fact alleged by the CROWN against him. An informal admission is NOT
conclusive proof of an issue, nor does it in any way bind the parties, it is always open to be
contradicted or explained.

STREAU CASE (1989)

(1989) SCC - CAN ADOPT ADMISSIONS OF A 3RD PARTY

Admissions need not be based on personal knowledge. A party may accept what others say and, if
so, the party is demed to have adopted those statements. Has to be some surrounding detail to
make it reasonable to burden opposing party with the 3rd party admissions. The party must in some
way indicate an acceptance or belief in the truth of the hearsay statement.

HEARSAY: SILENCE
In R. v. Pammer the CA held that admissions may be IMPLIED from party's silence IF:

(1) Statement (usually an ACCUSATION) is made in the presence of the party;

(2) Party HEARD & UNDERSTOOD the statement or accusation; and,

(3) In the CIRCUMSTANCES, it would be REASONABLE to EXPECT the party to DENY the
ACCUSATION.

R. V. PAMMER (1979) MBCA - ADMISSIONS BY SILENCE WHERE A REBUTAL WLD BE EXPECTED

Statements by one may CRY OUT for a response, and if accused fails to respond, this MAY be
admissible as a FAIR or REASONABLE INFERENCE of an admission to the Fact in Issue where he
failed to deny an allegation he understood the allegation, in a situation where it would be
REASONABLE to expect a denial.

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TEST: Statement should NOT be received UNLESS trial judge is satisfied there is SUFFICIENT
EVIDENCE from which a jury MAY REASONABLY FIND that party ACKNOWLEDGED the statement.

R. V. EDEN (1970) CA - EXERCISING THE RIGHT TO SILENCE ISN'T AN ADMISSION

An accused, upon arrest, has a right to remain silent, and invocation of this right CANNOT be used
against him.

HEARSAY: VICARIOUS ADMISSIONS (AKA STATEMENTS BY AGENTS)

1. When a party authorizes another to speak on his behalf, he is bound by any admissions made by the
agent in the scope of his or her agency r/s, and such admissions MAY be entered as admissions by the
opposing party; but,

2. Unauthorized statements MAY NOT be admissible against the party.

R. V. STRAND ELECTRIC LTD (1969) ONCA - UNAUTHORIZED VICARIOUS ADMISSIONS NOT ADMISSIBLE

Unauthorized statements by an agent are NOT admissible against the principle.

MORRISON KNUDSEN CO V. BC HYDRO (1973) BCSC VICARIOUS ADMISSIONS

Statements made by agents to their principals were admissible as admissions against the principals
b/c an admission is "anything that the other side EVER said or did." Statements of employees thus,
may be admitted where:

1) There is proof of the agency/employment r/s;

(a) A party cannot rely on out of court statements by the agent to prove the agency r/s

(b) Authentication of the agency r/s requires the Agent's testimony, the testimony of
someone else who knows, or other circumstantial evidence.

2) The admissions of the agent/employee tendered against the principal MUST have been made to a
third party w/in SCOPE of his authority during the subsistence of the agency/employment r/s.

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HEARSAY: CO-CONSPIRATORS
1. As a general proposition, an admission is evidence only against its maker. Therefore, the confession of
one co-accused is NOT admissible against the other accused. BUT,

2. Where parties act with a common design, and the collusion is proven, the admissions of one
conspirator are CONDITIONALLY admissible as admissions against all conspirators. However, the
trier of fact MUST decide whether or not, based on the evidence, to invoke the co-conspirator
exception, thereby applying the admission against all involved.

R V CARTER - WHERE A CONSPIRACY IS EST'D EV APPLIES AGAINST ALL...

Where a conspiracy is established, each of the co-conspirators is subject to the evidence that is
gathered on the others b/c each is an agent of the other.

HEARSAY: DECLARATIONS AGAINST INTEREST BY NON-PARTIES

The C/L recognizes a hearsay exception for statements made against the declarant's interest. Essentially
the exception applies to non-parties. The assumption underlying the exception for declarations against
interest by non-parties is that people do NOT readily make statements that admit facts contrary to their
interests UNLESS those statements are true.

HEARSAY: DECLARATIONS AGAINST PROPRIETARY INTERESTS

Declaration against pecuniary interests or proprietary interests may be admitted if:

1. Declarant is unavailable to testify (NECESSARY)

2. Statement when made, was against the declarant's interests, (RELIABILITY), and

3. The declarant had personal knowledge of the facts stated

Necessity flows from the unavailability of the declarant. Reliability is founded on the fact that the
declarant, who is aware of adverse facts, admits them, even if unwittingly.

HIGHAM V. RIDGEWAY (1808) KB - RES GESTAE & NARRATIVE

The Courts have established that where parts of a document should be admitted, the surrounding
document can be admitted as necessary context. That is to say, where a declaration against
interest may be completely irrelevant to the proceeding, but IS the ONLY MEANS through which a
relevant collateral fact can be admitted into evidence, the court SHOULD allow its admission.

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HEARSAY: DECLARATIONS AGAINST PENAL INTERESTS

A declaration against one's penal interests may be admitted where the following conditions are met:

1. The declaration made in circumstance declarant did not apprehend a vulnerability to penal
consequences

2. But, vulnerability to penal consequences cannot be remote

3. The declarant would have to be UNAVAILABLE by reason of death, insanity, grave illness, absence in
jurisdiction. A declarant is NOT unavailable simply b/c he or she refuses to testify.

Declaration sought to be given in evidence must be considered in its totality. If upon the whole tenor,
weight is in favor of declarant, it is not against his interests.

In a doubtful case, a Court MAY properly consider whether or not there are other circumstances
connecting the declarant with the crime and whether or not there is any connection between the declarant
and the accused.

R. V. OBRIEN (1977) SCC - DECLARATION AGAINTS ONE'S PENAL INTERESTS

A declaration against one's penal interests may be admitted where the following conditions are met:
(1) the declaration would have to be made in such circumstance that the declarant should not have
apprehended a vulnerability to penal consequences as a result; (2) The vulnerability to penal
consequences cannot be remote; and, (3) The declarant would have to be UNAVAILABLE by reason
of death, insanity, grave illness, absence in jurisdiction. A declarant is NOT unavailable simply b/c
he or she refuses to testify.

The declaration sought to be given in evidence must be considered in its totality. If upon the whole
tenor the weight is in favor of the declarant, it is not against his interests.

In a doubtful case, a Court MAY properly consider whether or not there are other circumstances
connecting the declarant with the crime and whether or not there is any connection between the
declarant and the accused.

LUCIER V. R. (1982) SCC - STATEMENTS AGAINST PENAL INTERESTS MUST BENEFIT OF ACCUSED.

Admissibility of statements against one's penal interest, as an exception to the rule against
hearsay, MAY ONLY be used to EXCULPATE and NOT TO INCULPATE an accused

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HEARSAY: DYING DECLARATIONS EXCEPTION

In a criminal case, a dying declaration of a deceased person IS ADMISSIBLE for the prosecution or
defence WHEN:

1. The deceased had a settled, hopeless expectation of almost immediate death (factual issue);

2. The statement was about the circumstances of the death;

3. The offence involved is the HOMICIDE of the DECEASED.

NOTE: Smith says should be able to consider admission of statement similar to a dying declaration.

REX V. MACINTOSH, 1937, BCCA, - DYING DECLARATIONS

Statement must be made in a situation where the deceased had a settled and hopeless expectation
of imminent and impending death!

HEARSAY: DECLARATION IN COURSE OF DUTY (RECORDS)

The admissibility of declarations made in the course of duty is based on the presumed reliability with their
making b/c:

1. Records are of a mechanical nature, and little reason to fabricate or falsify them

2. Businesses rely on their records, and it is the job of the maker to be accurate.

3. Entries are prepared reasonably contemporaneously with events or transactions.

MYERS V. DPP (1965) HOFL - DECLARATIONS IN COURSE OF DUTY

Declarations, oral or written, are admissible for their truth where: (1) They are made reasonably
contemporaneously (2) In the ordinary course of duty (3) Who are under a duty to make the record
or report; and (4) There is NO MOTIVE to misrepresent the recorded matters.

ARES V. VENNER (1973) SCC - RECORDS ADMISSIBLE AS DECLARATIONS MADE IN COURSE OF DUTY

Records, including notes, made contemporaneously by someone having personal knowledge of the
matter then being recorded and under a duty to make the entry or record should be received in
evidence as PRIMA FACIE PROOF of the facts stated therein.

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R V. MONKHOUSE (1987) ABCA PERSONAL KNOWLEDGE NOT REQ'D

The C/L requirement that the maker of the recorded declaration must have personal knowledge of
the matter recorded no longer applies.

CE ACT S. 30 & BC EV ACT S. 42 - BUSINESS RECORDS ADMISSIBLE AS EVIDENCE...

Records dealt w/ in the ORDINARY COURSE OF BUSINESS are admissible as evidence as an

exception to the hearsay rule. Essentially these sections provide:

(1) For copies of records to be entered as authentic evidence

(2) That if PRIMA FACIE proof of a fact can be established, a record can be entered as proof

(3) Records are NOT admitted when made in the course of an investigation or inquiry, obtaining or
giving legal advice, or in contemplation of a legal proceeding b/c there is a motive for the
fabrication or falsification of records.

KEY: Get someone responsible to swear an AFFIDAVIT to AUTHENTICATE the evidence.

R. V. LAVERTY (1979) ONCA - ORDINARY COURSE OF BUSINESS

Records MUST be made in the usual and ordinary course of business to make the writing or record
at the time of the act, transaction, occurrence or event, or within reasonable time thereafter.

HEARSAY: LOOSE ENDS

R. V. CHOW (1968) - MUST BE A STATEMENT BY A PERSON TO BE HEARSAY

Evidence of a camera indicating the speed of the accused in the picture IS NOT evidence of a
statement made by a person so it is NOT hearsay!

US V CHECK, 1978 CA - RELATING 1/2 A CONVERSATION IS STILL HEARSAY

When a party testifies as to an out of court conversation, but only recants his/her statements
leaving blanks for the other party's statement, the evidence will not be admissible because the
blanks are suggestive of what the out of court declarations of a non-present party may have said.

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RES GESTAE
The Res Gestae embraces a number of distinct hearsay exceptions including: statements of present
physical condition, statements of present state of mind, excited utterances, and statements of present sense
impressions. The common underlying principles are that:

1. RELIABILITY is founded on the SPONTANEITY of the making of the statement before there is time
for concoction; and,

2. NECESSITY is based on EXPEDIENCY, in the sense that there is no other equally satisfactory source
of evidence either from the same person or elsewhere.

RATTEN V. QUEEN, JCPC - RES GESTAE

It is implicit in the reasoning that once statements are admitted as part of the RES GESTAE (thing
that happened), they are evidence of the truth of the facts asserted in them.

TEST: Was the statement made in circumstances of spontaneity or involvement in the event that the
clearly the possibility of concoction can be disregarded.

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RES GESTAE: STATEMENTS OF PRESENT PHYSICAL CONDITION

1. Where a person claims to be experiencing a particular physical condition, the statement containing
that claim IS admissible but ONLY to prove that the person was experiencing the condition at the time
and to establish its duration. This exception is confined to NATURAL EXPRESSIONS that usually
accompany and provide evidence of an existing injury or illness.

2. Statements of PAST PAIN or CAUSES of PAIN are NOT ADMISSIBLE as neither is a spontaneous
reaction to a physical condition.

RES GESTAE : STATEMENTS OF PRESENT MENTAL STATE

Where a person describes his present state of mind (emotion, intention, motive, plan), the person's
statement to that effect is admissible where the state of mind is relevant to a Fact in Issue.

That is to say, IF either the state of mind OR the fact to be inferred from the existence of the state of mind
are relevant, the evidence is receivable subject to objections based on undue prejudice.

R. V. P.(R) (1990) ON HCJ- MENTAL STATE & RES GESTAE

An utterance indicating a certain intention or design will afford evidence that the person acted in
accordance with that stated intention or plan where it is REASONABLE to infer the he or she did
so. REASONABLENESS depends on the nature of the plan described in the utterance and the
proximity in time between the statement as to the plan and proposed implementation of the plan.

RES GESTAE: EXCITED UTTERANCES

A statement relating to a startling event or condition MAY be admitted to PROVE the TRUTH of its
contents IF it is made while the declarant is UNDER the STRESS of EXCITEMENT caused by the
EVENT or CONDITION.

R. V. BEDINGFIELD (1879) - EXCITED UTTERANCES & RES GESTAE

The statement MUST be made in response to an event where the possibility of concoction can be
disregarded.

RATTEN V. R. (1971) H.L. - EXCITED UTTERANCES & THE RES GESTAE

TEST: Was the statement made in circumstances of spontaneity or involvement in the event that the
clearly the possibility of concoction can be disregarded.

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R. V. ANDREWS (1987) H.L. - EXCITED UTTERANCES & RES GESTAE

The statement MUST be made in response to an event where the possibility of concoction can be
disregarded. Therefore, when a trial judge is faced with applications to admit excited utterances
under the Res Gestae exception, he should consider:

1. Whether the possibility of concoction can be disregarded considering the circumstances in which
the statement was made, such that the event was so unusual or startling or dramatic as to
dominate the thoughts of the victim, such that his utterance was an instinctive reaction to the
event, giving no opportunity for reasoned reflection.

2. To be sufficiently spontaneous, it must be a statement made so closely associated with the event
which has excited the statement, that it can be fairly stated that the mind of the declarant
was still dominated by the event, thus giving n real opportunity for reasoned reflection

RES GESTAE: EXCULPATORY STATEMENTS OF ACCUSED

An exculpatory statement made on arrest, apprehension, discovery, etc., by an Accused IS admissible to
the benefit to the accused as part of the res gestae.

R V GRAHAM (1974) SCC - EXCULPATORY STATEMENTS OF A IN A CONTINUING ACT ARE ADMISSIBLE

The Res Gestae MAY be used to admit EXCULATORY statements made by an accused person found
in possession of stolen goods. The res gestae consists of the act of possession, and the offence is
therefore still in progression, at the time the accused is found with the items. Hence statements
made at the time occur during the transaction being referred to and are admissible.

R. V. RISBY (1976) SCC - EXCULPATORY STATEMENTS OF A IN A CONTINUING ACT ARE ADMISSIBLE

The Res Gestae MAY be used to admit EXCULPATORY statements made by an accused person found
in possession of marijuana. The res gestae consists of the act of possession, and the offence is
therefore still in progression, at the time the accused is found with the items. Hence statements
made at the time occur during the transaction being referred to and are admissible.

R. V. KEELER (1977) ABCA - EXCULPATORY STATEMENTS AT TIME OF ARREST ARE ADMISSIBLE

Admissions by the accused at the time of arrest MAY be admitted by the Crown or the Accused in
order to rebut inferences of guilt that may arise from the silence of the accused.

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RES GESTAE: NARRATIVE

In some situations the RES GESTAE will be admitted, although not to prove the truth of the statement,
rather the statement forms part of the story, and is necessarily admitted in order to allow the evidence to
be put in context.

R. V. GEORGE (1985) BCCA - NARRATIVE & RES GESTAE

A statement, otherwise inadmissible, may be admitted as part of the res gestae where it is a
necessary part of the background of evidence presented at trial. It MAY NOT be used to support
inferences of credibility or of the "truth" of the statement, but merely to put the statement or
evidence into CONTEXT.

R. V. F.J.E. (1993) ONCA - NARRATIVE & RES GESTAE

Trier of fact MUST have the chronological cohesion of a full account in order to understand.

To qualify as a narrative, the witness must recount relevant and essential facts describing and
explaining his experience as a victim of the crime alleged so that the trier of fact will be in a
position to understand what happened and how the matter came to the attention of the proper
authorities. But,

1. Narrative should only be used to reveal the existence of prior statements ONLY where it is
NECESSARY to do so.

2. ONLY such detail as is necessary to provide a comprehensible narration of events should be

admitted.

WHICH COMES FIRST, SMITH OR PRE-SMITH PIGEON?

-
-
R. V. CHALLEY, 1992 BCCA, EXCEPTIONS THEN SMITH

A court should consider the existing exceptions to the hearsay rule (traditional exceptions), b/f
going on to consider any "proposed" new hearsay rules (this is problematic as it is not proposed, it
is the new way of considering hearsay).

R. V. HEULIAR 1992, ONCA, SMITH THEN EXCEPTIONS

Considered Smith principled approach first. It simply doesn't matter which you present first (Smith
principled approach v. Pre-Smith Exceptions) as long as you deal with both the ways of looking at
the law of hearsay.

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KEY: SMITH TRUMPS ALL PREVIOUS DECISIONS, not legislation, just prior case law!

CONFESSIONS
Statements made by an accused are ADMISSIONS by an OPPOSING PARTY LITIGANT BUT,
statements made by an accused are not automatically admissible, rather the Crown has an ONUS of
proving, beyond a reasonable doubt, that the statement was made voluntarily. Specifically, that the
admissions was made "free from fear of prejudice or hope of advantage."

AND, even if otherwise admissible, if the admission would violate the right to silence protected by Section
7 or the right to counsel under Section 10(b) the evidence will be inadmissible UNLESS otherwise
justifiable in a free and democratic society under section 1, UNLESS to admit would bring the
administration of justice into disrepute under section 24(2).

WHAT IS A CONFESSION (FIVE CRITERIA REQUIRED):

1. Must be a STATEMENT (an idea or expression of a thought, including conduct)

2. Made BY AN ACCUSED (determined at trial)

3. Made OUT OF COURT - not just out of this trial, but out of any court - so prior testimony is NOT
admissible as confession evidence.

4. Statement must be MADE TO AN AGENT of the State or person in a position of AUTHORITY. An

agent of the state is;

a) At Common Law , a person to whom the accused SUBJECTIVELY perceived as a person who
could effect criminal proceedings against him. (see Rothman)

b) Under the Charter, agents of the state are person who OBJECTIVELY exercise state authority.
(Broyles Case)

5. Evidence MUST be OFFERED AGAINST the ACCUSED BY the CROWN.

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WHAT IS THE LAW RE CONFESSIONS

There are THREE basic steps used in Confessions Analysis:

1. Did the accused have an operating mind?

2. Was the statement voluntary?

3. Is the statement inadmissible pursuant to Charter (see Broyles and Hebert)

If yes, does it violate section 1? Does it violate requirements laid down in Stillman?

WAS THE STATEMENT MADE TO A PERSON IN AUTHORITY

REGINA V. WELLS (1998) SCC - PERSON IN AUTHORITY

Statement MUST be made to a person the Accused BELIEVED was in a position of authority.

R. V. HODGSON (1998) SCC - TO PERSON IN AUTHORITY

Statement MUST be made to a person the Accused BELIEVED was in a position of authority.

R. V. ROTHMAN (1981) SCC - PERSON IN AUTHORITY

"Person In Authority" refers to a person whom the accused at the time of the making of the
statement subjectively perceived as a person who could effect criminal proceedings against them;
does not have to be objectively accurate

CHARTER ANALYSIS AND VOLUNTARINESS

IF STATEMENT WAS MADE TO A PERSON IN AUTHORITY the statement MUST have been
VOLUNTARILY made. Remember the Person in Authority is determined using a SUBJECTIVE TEST.
Therefore, a person may or may not have been agent of state, but the importanc is not whether he or she
was an agent of state but rather whether the accused believed he was an agent of the state.

CONFESSION ANALYSIS IS SEPARATE AND APART FROM HEARSAY ANALYSIS. Confession

evidence MAY or MAY NOT be hearsay but the hearsay analysis is NOT used with Confession Evidence;
rather, look at "VOLUNTARINESS" and CHARTER ANALYSIS when dealing with Confession evidence.

NOTE: IF the accused did not believe the person was an agent of state use the voluntariness
analysis NOT the Charter analysis

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INVOLUNTARY STATEMENTS
To be admissible a statement to a person in authority MUST BE made voluntarily. A statement is
voluntary where it is made without fear of prejudice or hope of advantage (see Hebert)

NOTE: Person in authority is assessed on a subjective test. The person may or may not have been
agent of state, what matters is whether the accused believed the person was a person in authority.
If the accused did not believe the person was an agent of state use the voluntariness analysis NOT
the Charter analysis

R. V. IBRAHAM (166 N: 37) - INVOLUNTARY STATEMENTS B/C OF FEAR OF PREJUDICE

A statement made with fear of prejudice or hope of advantage held out by a person in authority is
NOT voluntary. (Reliability v. Prejudice)

VOLUNTARINESS AND ATMOSPHERE OF OPPRESSION

If persons in authority create an atmosphere of oppression in which the accused becomes so broken down
and thus feels COMPELLED to make a statement in order to alleviate the conditions, the conditions will
be considered oppressive and the statement will be rendered involuntary. (see Horvath & Hobbins)

NOTE: Person in authority is assessed on a subjective test. The person may or may not have been
agent of state, what matters is whether the accused believed the person was a person in authority.
If the accused did not believe the person was an agent of state use the voluntariness analysis

R. V. HORVATH (SCC) - ATMOSPHERE OF OPPRESSION = INVOLUNTARY STATEMENT & INADMISSIBLE

If a person in authority creates an "atmosphere of oppression" such that the accused becomes
brokendown, and foregoes his right to silence as a result, the confession will be INADMISSIBLE.

R V HOBBINS (112 CAS) ATMOSPHERE OF OPPRESSION = INVOLUNTARY STATEMENT & INADMISSIBLE

The voluntariness analysis requires a consideration of whether the admission of the accused's
statement would bring the administration of justice into disrepute. (Reliability v. Prejudice)

VOLUNTARINESS AND DIRTY TRICKS

If a "dirty trick" is used by the state, such that the accused is duped out of his right to silence as a result,
then any confession will be rendered involuntary and inadmissible. (See Hebert & Broyles)

Whether a person was ACTING as an AGENT of the STATE is to be determined on an OBJECTIVE

basis.

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THERE ARE FOUR LIMITATIONS ON THE CONFESSIONS RULE:

Any statements that are voluntarily made are admissible

Rule only applies after detention

Voluntary statements to cellmates are admissible as long as not solicited

Informants can be used as long as they don't solicit information

SUMMARY OF HEBERT/BROYLES

There are two steps to the section 7 analysis of the right to silence:

1. Was the person an agent of the state on an OBJECTIVE basis?

2. Would statement have been made in form and manner it was BUT FOR the state intervention?

(a) Did State ACTIVELY ELICIT the statement from the accused or was it a PASSIVE
statement?

(b) Was the exchange the functional equivolent of an interrogatin?

(c) Was there something in the r/s b/n the accused and the informer that created the
circumstances in which the statement was made, which would not have otherwise
existedd? IF yes it violates s.7 go to s.1, then to s.24(2) and the Stillman analysis.

R. V. HEBERT (1990) SCC - VOLUNTARINESS & STATE TRICKERY

The right to silence has been consitutionalized in section 7. The Right to silence cannot be
subverted by a covert state agent ACTIVELY ELICITING information while the suspect is detained.

R. V. BROYLES (1991) SCC - VOLUNTARINESS & STATE TRICKERY

"Agent of state" refers to someone who is OBJECTIVELY a person in authority; i.e. under cover
police officer (Broyles); very broad and an objective test

An agent of the state cannot actively ELICIT confession evidence from a detained accused who has
asserted his or her right to silence. (Reliability v. Prejudice)

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NECESSITY OF A VOIR DIRE IN CONFESSION EVIDENCE

Voir dires are held in any situation where a judge will be required to make A FINDING OF FACT IN
ORDER TO MAKE A RULING ON A QUESTION OF LAW during a trial.

At trial where confessionary evidence is to be heard, a VOIR DIRE must first be held to determine if the
confession was made voluntarily beyond a reasonable doubt. (See Thiffault, Piche & Ervin) However, the
requirement of a voir dire can be WAIVED as long as the trial judge makes it clear what the accused is
waiving. (See Park)

The confession analysis applies whether it is incriminatory or exculpatory. (See Piche & Ervin)

THIFFAULT V THE KING (1933) SCC - VOIR DIRE REQUIRED TO EST STATEMETN IS ADMISSIBLE

In a voir dire, Crown must establish beyond a reasonable doubt that the statement is admissible.

This is a very high standard and demonstrates that there was concern even before Charter that the
potential weight of confession is so high and therefore the potential prejudice is huge.

PICHE V QUEEN; ERVIN V QUEEN - VOIR DIRE REQ'D WHETHER INCULPATORY OR EXCULPATORY

A voir dire is required in all situations where a statement was made to a person in the authority
REGARDLESS of whether it is inculpatory or exculpatory.

NOTE: B/c Crown is introducing evidence there is no doubt it is being introduced against the
accused (i.e. accused is a liar OR for its truth) therefore a determination of voluntariness IS REQ'D

PARK V. QUEEN (1981) - VOIR DIRE REQ'T MAY BE WAIVED...

Requirement of a voir dire to determine the admissibility of confession can be waived. BUT trial
judge must make it clear what the accused is waiving.

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MENTAL CAPACITY AND VOLUNTARINESS

Where a statement is made to a person in AUTHORITY, it is not sufficient that the statement was
voluntary, rather the Crown must established that the acccused had the mental capcity to KNOW to
WHOM he was speaking, AND to KNOW the IMPLICATIONS of making the statement. (see Whittle &
Clarkson)

R V. WHITTLE (1994) SCC - OPERATING MIND ONLY REQ'S LTD CAPACITY...

Admissibility should be determined based on the ability of the accused to UNDERSTAND TO WHOM
he or she is making the statement AND whether the accused has some LIMITED ABILITY to
UNDERSTAND that what ever s/he says will be used againt him or her. The ONUS of choosing
NOT to speak is on the individual.

Test: Did the accused have a LIMITED COGNITIVE CAPACITY to know and understand:

(a) to whom he was speaking, and ,

(b) that what he said could be used against him

R. V. CLARKSON (1986) SCC - OPERATING MIND

To have sufficient capacity to waive your Charter rights one must have:

1. a MINIMUM ABILILITY to KNOW what one is saying, and

2. a MINIMUM CAPACITY to KNOW the IMPLICATIONS of such an admission.

OPINION EVIDENCE
Opinion is any INFERENCE based on OBSERVED FACT. Anything that isn't FACT.

NOTE re Reasoning: If evidence is established as OPINION, then the trier of fact MUST
DETERMINE:

1. Whether to believe the evidence, and if it is to be believed.,

(a) What kind of WEIGHT should be put on the evidence;

2. What INFERENCES can be DRAWN from the evidence. IF the evidence is direct ("real") then the
jury can accept that it means "X"; however, if the evidence is CIRCUMSTANTIAL, the jury must
rely on reasoning skills in order to decide what the facts in issue should be

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LAY OPINION EVIDENCE

There are 3 criteria to consider regarding the admissibility of Opinion Evidence:

(1) Whether the matter is WITHIN the COMMON KNOWLEDGE or EXPERIENCE such that it does
not require expertise; (R v Graat)

(2) Whether the OPINION EVIDENCE is HELPFUL to the trier of fact? (R. v Graat).

(3) Whether the lay opinion: (1) is NECESSARY, and (2) RELIABLE, and (3) whether its prejudice
outweight is probative value. (R. v. Graat)

R V. GRAAT ( 19__) SCC - LAY OPINION EVIDENCE

There are THREE criteria to consider re admissibility of Opinion Evidence:

Is the matter WITHIN the COMMON KNOWLEDGE or EXPERIENCE such that it does not require
expertise; and

Is the OPINION EVIDENCE HELPFUL to the trier of fact? (alternatively does it represent a
"COMPENDIOUS STATEMENT OF FACT"? AND

Must balance, like hearsay evidence, whether the lay opinion: (1) Is necessary; (2) Is reliable; and,
(3) prejudice outweight is probative value.

NOTE: "Helpful to the trier of fact" just means the trier of fact, not having been there, will benefit
from the opinion of the witness who was at the scene. "Compendious statement of fact" is just
another way of putting it.

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EXPERT OPINION EVIDENCE

In Mohan the court established that for expert opinion to be admissible it must meet THREE
basic criteria:

(1) Must be a matter in which avg. person DOESN'T have necessary knowledge or experience,

(2) Expert MUST have NECESSARY EXPERTISE to provide educated opinion on matter, and

(3) Testimony of the expert must be RELEVANT and RELIABLE, such that its PROBATIVE
VALUE OUTWEIGHS any PREJUDICIAL EFFECT that may arise because of the STATUS OF
THE EXPERT in the minds of the trier of fact. (See Mohan)

An expert may give his or her opinion as to what the fact at issue means, even if he does so in
the form of a hypothetical scenario. (see Fisher). While the use of HYPOTHETICALS by
experts IS NOT REQUIRED, a trial judge MAY REQUIRE OPINION be given in the form of a
HYPOTHETICAL where there is conflicting evidence regarding the UNDERLYING basis of
OPINION. (See Bleta)

An Expert's Opinion is Admitted CONDITIONALLY, "Before any weight can be given to an

expert's opinion, the facts upon which the opinion is based must be found to exist".
(Abbey/Bleta) Because an expert's opinion is admitted CONDITIONALLY, at the end of the trial,
before counsel can invite the trier of fact to give any weight to the opinion, the facts must be
proved. (See Abbey). However, the SCC in a subsequent decisions held that "Expert opinion,
not supported by relevant facts, can be admitted and given weight." (See City of St. John v.
Irving Oil)

As long as there is SOME ADMISSIBLE EVIDENCE to establish basis of opinion it will be

admitted. (Lavallee) MUST LOOK AT RELIABILITY OF BASIS OF THE EXPERT'S OPINION. The
more reliable the basis for the expert's opinion, the more likely it will be accepted. Concern of
the court is with the INHERENT RELIABILITY of the OPINION EVIDENCE - property appraisals
and the like are generally considered pretty reliable (Lavallee)

R V. MOHAN (19__ ) SCC - EXPERT OPINION EVIDENCE

1. IS the matter one calling for expertise that is not within common knowledge of experience

2. Does the Witness who is offered to give the expert opinion have the necessary expertise to
provide an opinion on the matter (usually must disclose relevant qualifications via admissions)

3. The testimony of the expert must have "RELEVANCY": the evidence MUST be RELEVANT and
RELIABLE such that its PROBATIVE VALUE OUTWEIGHS any PREJUDICIAL EFFECT that may
arise because of the STATUS OF THE EXPERT in the minds of the trier of fact.

Reasons: Mohan changed the law re Opinion Evidence. It shifted away from requiring that evidence simply be
helpful, to requiring that evidence be helpful + relevant + reliable. This requires greater caution by judges
admitting evidence to ensure that the "credibility" of the witness doesn't result in undue prejudice.

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R. V. BURNS (1994) SCC - EXPERT OPINION - SCC ADOPTED GRAAT

The SCC adopted Graat’s ratio re lay opinion evidence into expert opinion evidence:

1. Is matter WITHIN COMMON KNOWLEDGE or EXPERIENCE such that opinion is not req'd; and

2. Is the OPINION EVIDENCE HELPFUL to the trier of fact? AND

Must balance, like hearsay evidence, whether the lay opinion: (i) Is necessary; (ii) Is reliable; and,
(iii) prejudice outweight is probative value.

R V FISHER (19__) SCC - EXPERT OPINION IS USED TO EXPLAIN THE FACTS

An expert's opinion, when combined with factual evidence, can be used to infer what occurred in
order to assist the trier of fact to understand the fact at issue.

BLETA V. QUEEN (19__) SCC - BASIS OF EV MUST BE CLEAR B/F IT WILL BE GIVEN WEIGHT

The basis of the expert's opinion must be CLEAR in order for the trier of fact to give it any
weight. The expert can refer to inadmissible evidence in giving a hypothetical (such as hearsay),
BUT the opinion will not be given any weight UNLESS the evidence to support it is admitted.

The use of HYPOTHETICALS by experts IS NOT REQUIRED, BUT a trial judge MAY REQUIRE
OPINION be given in the form of a HYPOTHETICAL IF UNDERLYING basis of OPINION IS
UNCLEAR (i.e. There is conflicting evidence)

R V. ABBEY (1985ISH) SCC - EXPERT OPION ADMITTEDLY CONDITIONALLY 'TIL SUPPORTED BY EV...

An Expert's Opinion is Admitted CONDITIONALLY. "Before any weight can be given to an expert's
opinion, the facts upon which the opinion is based must be found to exist".

CITY OF ST. JOHN V. IRVING OIL CO. (19__) EXPERT HYPOTHETICAL EV ADMISS W/OUT FACTS…

Expert opinion, not supported by relevant facts, can be admitted & given weight

R V. LAVALLEE (19__) SCC - EXPERT OPINION HYPOTHETICAL ADMISS W/ ANY FACTS

As long as there is SOME ADMISSIBLE EVIDENCE to establish basis of opinion it will be admitted.

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STATUTORY PROVISIONS RE EXPERT EVIDENCE

To be admissible, expert opinions MUST be entered under notice!

SEC. 7 CE ACT - UPTO 5 EXPERT EVIDENCE PER ISSUE

No more than five expert witnesses can be called WITHOUT leave of the court

NOTE: In practice this provision is actually meaningless.

HOW DOES EVIDENCE DEAL WITH SCIENTIFIC INNOVATIONS?

Generally if 100% of experts in a given area say it's quackery it's deemed unreliable. But, if there is
SIGNIFICANT BODY of OPINION, it may be considered reliable and thus admissible as evidence to be
put to the trier of fact. Significant, while not defined, does not mean 50%.

SCIENTIFIC INNOVATION GENERALLY

The test is one of NECESSITY & RELIABILITY. This test is exactly the same as the test with any other
expert science: (1) IS IT NECESSARY, (2) IS the WITNESS QUALIFIED, (3) IS EVIDENCE
RELEVANT, and (4) IS EVIDENCE RELIABLE (Belonde).

P. 117 R.V. BELONDE - SCIENTIFIC INNOVATION (POLYGRAPH)

Not "General acceptance" , rather the concern is with reliability of the technique. If generally
reliable it is admissible.

R V. MOHAN (19__) SCC - SCIENTIFIC INNOVATION

NECESSITY & RELIABILITY Test is exactly the same as the test with any other expert science:
(1) IS the EVIDENCE NECESSARY, (2) IS the WITNESS QUALIFIED, (3) IS the EVIDENCE

USE OF TEXTBOOKS
Texts can be used in two ways:

1. Submit it as Expert Opinion Evidence and have an Expert Adopt it

2. Cross Examine Expert: Attempt to elicit testimony re text to Attack other sides expert opinion -
confront them with it and use it as a challenge to their testimony.

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CONSIDERATION OF THE ULTIMATE ISSUE RULE

The ULTIMATE ISSUE RULE IS DEFUNCT (See Graat & Burns)

R. V. GRAAT (19__) SCC - ULTIMATE ISSUES RULE

Ultimate issue rule doesn’t apply to lay opinion evidence

OPINIONS ON PURE Q OF LAW

Witnesses CANNOT give opions on Questions of law, that is SOLELY for the JUDGE to do. But, where a
matter deals with foreign law, including matters in another province if in civil law, it is considered a
question of fact to which experts will testify, usually by affidavit, and is left for the jury to decide.

RULE AGAINST OATH HELPING

Refers to determination of witness credibility based on testimony of “oath helpers”.

Generally a witness CANT testify to the veracity of another witness. You can however, have a witness
testify that another witness is lying based on prior knowledge. Then, in cross examination, you can
CONFRONT the witness.

EXPERT OPINION EVIDENCE & OATH HELPING

An expert can give certain testimony to the credibility of a witness. You can testify as to what you think,
but you CANNOT testify as to what you BELIEVE!

LAY WITNESSES & OATH HELPING

A lay witness can testify as to a witness’ general REPUTATION. ANY witness can testify as to the
reputation of another, AND they can also testify as to whether he or she “believes the witness” (Gonzaga)

R. V. GOZANGUE - REPUTATION FOR TRUTHFULNESS

A witness can testify as to the truthfulness of another witness’ testimony... Witness must be able
to testify that they “know the witness’ reputation for truthfulness within his or her community”.

COLLATERAL FACTS RULE

The asnwer of a witnes to a Q re a collateral matter cannot be contradicted by independent evidence.

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AG V. HITCHCOCK (1847) IF IT CLD BE PROVED IN EV, YOU CAN CONTRADICT...

If the answer of a witness is a matter that would be allowed to prove in evidence b/c it has such a
connection with the issue, then it is a matter on which you may contradict

GOOD CHARACTER OF ACCUSED

"Good character" evidence is proof presented by the accused to suggest that he or she is not the type to
have committed the offence. Proof of good character is generally considered to be relevant.

SIMILAR FACT EVIDENCE

Current view is that it is inappropriate to admit similar fact evidence at the behest of the Crown for the
purpose of showing that the accused is a person who, by reason of his character, is likely to have
committed the offence.

SMITH CASE (BRIDES IN BATH) - SIM FACT EV ADMISSIBLE IF SUFFICIENTLY SIM & # OF INCIDENCES ... SIM FACT EV
ADMISSIBLE RE PROPENSITY TO DO ACT...

To be admissible as evidence of the Bad Character of the Accused, similar fact evidence must be:

(1) Sufficiently similar (2) Must be a # of sufficiently similar case so it is not mere coincidence

CHARACTER EVIDENCE
Character evidence is inadmissible, subject to situations where it is admissible.

R V. DAVIDSON - CHARACTER OF A NOT IN ISSUE UNLESS HE PUTS IT IN ISSUE OR TO SOME OTHER MATTER

The Crown can only deal with the character of an accused where the accused himself puts it in
issue, or where it is relevant to a matter other than the character of the accused during the
Crown's case in chief (but still can’t put it in issue directly w/out Accused doing so).

GOOD CHARACTER OF ACCUSED

R. V. LOGIACCO (1984) ONCA

Evidence of Good Character may be used by the trier of fact to determine that the accused is
NOT the type of person likely to have committed the crime. Judge must charge jury
accordingly.

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CROWN REBUTTAL OF EVIDENCE OF ACCUSED’S GOOD CHARACTER

Crown can REBUT evidence of the accused’s good character in THREE WAYS:

1. Evidence of Bad Character as rebuttal of evidence of Good Character

The Crown can cross-examine the accused, or the witness, who has provided good character
evidence, in a fashion that suggests that the accused does not possess the good character
that is claimed. (See R. v. McNamara (No. 1)).

2. CCC S. 666

This provision allows the previous convictions of the accused to be proved whenever he puts
his good character in issue. Even subsequent convictions can be established provided the
conduct was SIMILAR enough in time to reflect on the relevant disposition.

3. Similar Fact Evidence

Character evidence about the accused that is otherwise admissible as similar fact evidence
can be employed by the trier of fact to neutralize the suggestion by the accused that he is
of good character. [See R. v. McFadden).

NOTES: Crown can cross examine or in Reply after the defendant has entered evidence during its
examination in chief which raises “new issues” involving the character of the accused.

CRB (1990) SCC - "BAD " CHARACTER OF A INADMISSIBLE UNLESS VALUE OUTWEIGHS PREJUDICE OR A PUTS IT IN
ISSUE

Character evidence of an Accused is inadmissible UNLESS... (1) Its probative value outweighs its
prejudicial effect, subject to a judicial caution as to its use. (2) The accused puts his character
into issue by entering evidence of his or her good character

R. V. MCFADDEN - CHARACTER OF THE A IN ISSUE IF A SAYS HE ISN'T THE "TYPE" TO ...

The accused will have been taken to have put his character in issue when they provide information
that does nothing more than suggest that they are not the type to commit the crim charged.

Character evidence about the accused that is otherwise admissible as similar fact evidence can be
employed by the trier of fact to neutralize the suggestion by the accused that he is of good
chracter.

MACNAMARA #1 (1981) - A WILL PUT HIS CHARACTER IN ISSUE IF HE SUGGEST HE ISN'T THE TYPE

An Accused persons will be taken to have put their character in issue when they provide information
that does nothing more than suggest that they are not the type to commit the offence charged.

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CCC 350 AND 379 - CREDIBILITY OF A RE THEFT IF HAVE PRIORS

Both put credibility in issue: anything dealing with theft, where there is a history of such activities, there is
a rebuttable presumption of guilt.

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CHARACTER AND CREDIBILITY OF THIRD PARTIES

Where the character of persons other than the accused is relevant to a primarily material issue, it can be
proved, subject to sections 276 and 277, which impose limits in the case of sexual offence complainants.
(See R. v. Gruenke)

Section 277 of the Criminal Code makes sexual reputation evidence inadmissible on the issue of
credibility. Section 276, established tha tinferences relating to consent or credit which draw on "the sexual
nature of the activity" for their relevance are prohibited.

R V. DUBOIS - EV OF BAD CHARACTER OF VICTIM ADMISSIBLE IF RELEVANT...

In self-defence cases where there is a foundation for suggesting that the deceased was the
aggressor, it is relevant to the reasonableness of the accused's actions that he was aware that the
deceased had a reputation for violence.

R. V. SCOPELLITI - BOOMERANG... IF ADMIT EV OF CHARACTER OF VICTIM/WITNESS A'S CHARACTER AT ISSUE

Proof that the victim has a violent disposition as demonstrated through specific acts of violence
unknown to the accused is also relevant, according to the theory that violent people are more likely
to react violently than those who do not have a violent disposition.

SEXUAL OFFENCES AND THIRD PARTY CREDIBILITY

CCC S. 277 - SEXUAL REP INADMISSIBLE RE CREDIBILITY

S277 of the Criminal Code makes sexual reputation evidence inadmissible on the issue of credibility.

CCC S.276 SEX’L ACTIVITY INADMISSIBLE RE SEX'L ACTIVITY EXCEPT IN SPECIFIC SITU...

S. 276 limits admissibility of proof of SPECIFIC INSTANCES of complainant's sexual activity.

276(1) PROHIBITS ABSOLUTELY the use of SEXUAL EXPERIENCE EVIDENCE for certain
enumerated purposes.

276(2) Even if proof of the sexual activity of the complainant is not being used for a prohibited
purpose, it will still be inadmissible UNLESS judge determines evidence has "SIGNIFICANT
PROBATIVE VALUE" that is NOT OUTWEIGHED BY COMPETING CONSIDERATIONS.

CHARACTER & PRIOR CONVICTIONS OF WITNESS

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CE ACT S. 12 - PRIOR CONVICTIONS OF WITNESS ADMISSIBLE ... AND CAN IMPEACH W/ IT

Section 12 of the Canada Evidence Act provides that any witness, including the accused, may be
questioned as to whether he has been convicted of any offence. If the witness either denies the
fact or refuses to answer, then the cross-examiner may prove the conviction.

NOTE: British Columbia, Evidence Act, s. 15

R V. CORBETT - CROSS EXAM RE PRIORS PROBATIVE VALUE MUST OUTWEIGH PREJUDICIAL EFFECT

Trial judges have discretion whether to allow cross- examination on prior convictions. Probative value
of evidence of conviction MUST BE assessed against potential prejudice in the given case.

Four factors to consider in exercising the discretion to exclude under a Corbett Application:

1) Nature of the previous conviction

2) How similar the previous conviction is to the offence now charged

3) Remoteness or Nearness of prior conviction - if far b/n or only once inadmissible

4) Fairness: where the accused attacks the credibility of the Crown witnesses and credibility is at
issue, it would be unfair to insulate the accused from his own criminal past. (Poscelleti boomerang)

A "Corbett" application is made by the defence prior to calling the accused, usually after the Crown
closes its case. If the judge rules that the cross-examination should be allowed, the defence may
then decide not to call the accused or to call the accused and raise the prior convictions in
examination in chief in order to soften the blow.

NOTE: Corbett ONLY applies to the ACCUSED!

PRIOR INCONSISTENT STATEMENTS

Witnesses may be impeached using prior inconsistent statements.

1. Prior inconsistent statements go only to credibility and are not evidence of their truth UNLESS
adopted by the witness, OR

2. Where It is admissible under a hearsay exception; of particular importance is the hearsay exception
created in R. v. B.(K.G.)

Before counsel will be allowed to contradict a witness by proving a prior inconsistent statement, fairness
demands that the statement be put to the witness. IF witness does NOT recant their inconsistent
testimony, the inconsistency is then put to their credibility.

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CE ACT S 10 - W CAN BE CROSS E RE PRIOR WRITTEN STATEMENTS

10.(1) On any trial a witness may be cross-examined as to previous statements that the witness
made in writing, or that have been reduced to writing ... relative to the subject-matter of the
case, without the writing being shown to the witness

CE ACT S. 11 - W CAN BE CROSS E RE PRIOR ORAL STATEMENTS

Where a witness, on cross-examination as to a former statement made by him relative to the

subject-matter of the case and inconsistent with his present testimony, does not distinctly admit
that he did make the statement, proof may be given that he did in fact make it, but before the
proof can be given the circumstances of the supposed statement, sufficient to designate the
particular occasion, shall be mentioned to the witness, and he shall be asked whether or not he did
make the statement.

FOUR STEP PROCESS RE IMPEACHMENT OF WITNESS

The impeachment of a witness using prior inconsistent statements involves four steps.

1. Counsel has the witness confirm the present testimony. The purpose here is to make the testimony
clear in order to highlight the inconsistency.

2. The witness is then confronted with the making of a prior statement.

3. Prior inconsistent statement is then put to the witness showing the contradiction.

4. Witness asked to adopt prior inconsistent statement for its truth. If witness refuses, then the
statement goes only to credibility.

CREDIBILITY OF OWN WITNESS

Generally you do not want to attack the credibility of your own witness, and usually you would rather
bolster the credibility of your witness, but…

1. You CANNOT bolster your witness’s credibility by raising evidence of prior consistent statements as
that is self serving and is inadmissible under hearsay rule.

2. If other side attacks credibility of your witness you can rehabilitate his integrity

3. In some situations you will want to attack the credibility of a “hostile witness”, in which case you
should turn to the provisions of section 9 of the CE Act.

CE ACT S. 9 - ADVERSE WITNESSES CAN BE DECLARED HOSTILE

Section 9(1) provides, in relevant part, that if the witness produced by a party "in the opinion of
the court, proves adverse, the party may contradict him by other evidence."

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LAW OF PRIVILEGE
Privilege goes beyond fairness to exclude evidence not because it is irrelevant or unreliable, but rather
because of the need to protect certain fundamental r/s within our society.

Compelling reasons must exist before a privilege is recognized. There MUST BE SOME OVERRIDING
SOCIAL CONCERN OR VALUE that warrants the loss of probative evidence. Such a determination is
MORE A MATTER OF POLICY THAN OF PROOF. The assumption underlying a privilege is that it
does indeed go to protect some societal interest, which is an assumption not open to ready proof. [R. v.
Fosty (1991)]

NOTE that Privilege means "privileged at law", whereas duty of confidence implies a moral and legal
obligation to refrain from disclosing UNLESS required to do so by law.

Privilege, as a rule of evidence, arises at trial and belongs to a "witness." The witness, although required
to take the stand, by virtue of privilege can refuse to answer certain questions or refuse to produce certain
documents (See R. v. Gruenke)

In Descôteaux v. Mierzwinski the SCC recognized that a "privilege" or a "right to confidentiality" is a

"substantive rule" giving a person protection from disclosure of communications outside the trial setting.
Descôteaux v. Mierzwinski concerned SOLICITOR-CLIENT COMMUNICATIONS, but there is little
reason why this "substantive rule" should not apply to all privileges, providing protection for confidential
communications inside and outside the courtroom.

R. v. Gruenke not only established that there was no "Class Privilige" attached to Religion, it also
established a need to distinguish between "CLASS" and "CASE-BY-CASE" privileges. Accordingly, it
was held that there is a prima facie presumption that communications in "CLASS PRIVILEGES" are
privileged and inadmissible. Thus, a party urging admission has the ONUS to show why the
communications should not be privileged. Two of the most significant CLASS PRIVILIGES are:

(1) Solicitor-Client Privilege at common law, and

(2) Spousal Communications provided by S.4(3) of the CE Act.

Whereas it was held tha the a court has a discretion where "class privilege" does not exist to assert
privilige on a case by case basis. In this respect, CONFIDENTIALITY or "PROTECTION OF
PRIVACY" MAY BE a sufficient justification on which to found privilege. What is involved in a CASE
BY CASE analysis is a BALANCING of the broader "SOCIAL INTEREST" against the principle that
COURTS SHOULD be provided and HAVE AVAILABLE ALL RELEVANT EVIDENCE in order to
ensure a fair trial.

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WIGMORE PRIVILIGE ANALYSIS - FOUR CONDITIOS FOR EST'T OF CASE BY CASE PRIVILEGE

Wigmore has fashioned FOUR CONDITIONS that serve as the foundation for determining all CASE BY
CASE PRIVILEGES whether claimed or established:

1. Communications must ORIGINATE in CONFIDENCE that will not be disclosed.

2. ELEMENT OF CONFIDENTIALITY MUST BE ESSENTIAL to the full and satisfactory

maintenance of the relation between the parties.

3. R/s must be one which in OPINION of COMMUNITY ought 2b diligently fostered.

4. INJURY THAT WOULD INURE to r/s BY DISCLOSURE of communications MUST be greater than
the BENEFIT THEREBY GAINED for the correct disposal of litigation.

DESCÔTEAUX V.MIERZWINSKI, - CLASS PRIVILEGE APPLIES TO SOLICITOR CLIENT R/S

SCC recognized that a "privilege" or a "right to confidentiality" was a "substantive rule" giving a
person protection from disclosure of communications outside the trial setting.

ED ZIEMBA - NO PRIVILEGE B/N CONSTITUENT AND POLITICIAN

There is no legal privilege b/n politician and constituents.

R. V. GRUENKE (SCC) - NO PRIVILEGE 4 RELIGION, BUT CONFIDENCE/PROTECTIN OF PRIVACY MAY BE SUFFICIENT

BASIS FOR PRIVILEGE

NO blanket privilege for religion, rather it asserted that such privilege should be argued on a "case
by case" basis. Confidentiality or "protection of privacy" MAY BE a sufficient justification on which
to found privilege.

Court went on to DISTINGUISH between "CLASS" and "CASE-BY-CASE" privileges:

1. For a "class" privilege there is a prima facie presumption that the communications are privileged
and inadmissible. The party urging admission must show why the communications should not be
privileged. "Class" privileges are few in number.

2. Two of the most significant are: At common law - solicitor- client communications, and Under
statute - spousal communications.

Case by Case Analysis:

What is involved in a case by case analysis is a balancing of the broader "social interest" against the
principle that courts should be provided and have available all relevant evidence in order to ensure a
fair trial. Wigmore has fashioned FOUR CONDITIONS that serve as the foundation for determining
all such privileges whether claimed or established:

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1. The communications must originate in a confidence that they will not be disclosed.

2. Element of confidentiality must be essential to the full and satisfactory maintenance of r/s

3. The relation must be one which in the opinion of the community ought to be sedulously fostered.

4. The injury that would inure to the relation by the disclosure of the communications must be
greater than the benefit thereby gained for the correct disposal of litigation.

SPOUSAL PRIVILEGE
S.4(3) CE Act established that no spouse is compellable to disclose ANY communication made DURING
THE MARRIAGE. (See Macdonald v. Bublitz)

CE ACT S.4(3) SPOUSAL PRIVILEGE APPLIES TO ANY COMMUNICATION W/IN THE MARRIAGE

No spouse is compellable to disclose any communication made to him/her during the marriage by the
other spouse.

MACDONALD V. BUBLITZ - SPOUSAL PRIV PROTECTS ALL COMMUNICATIONS B/N SPOUSES

Statute does not confine the privilege to "confidential communications," and there is authority that
"any communication" means exactly that and protects all spousal communications whether intended to
be confidential or not.

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SELF INCRIMINATION
Section 11(c) provides the right not to be compelled to testify against oneself, while Section 13 of the
Charter provides the right NOT to have incriminating evidence given in testimony in another case used
against you if you later become an accused.

In R. v. Primeau and in R. v. S(R.J.) the SCC held that IF the predominant purpose in compelling a
witness to testify is the legitimate public purpose of having his evidence to assist in resolving the matters in
issue, he must give evidence; BUT, if the predominant purpose in is to obtain incriminating evidence
against him, the subpoena will be quashed if he will be SIGNIFICANTLY PREJUDICED because of his
testimony.

Moreover Primeau & S(RJ) established that the protections in sections 7 and 13 of the Charter MUST be
considered where a party seeks to compell testimony. Consequently, to successfully compel a witness, the
compelling party MUST show that the ONLY ADVERSE CONSEQUENCE to the witness is to create, or
lead authorities to, evidence against himself, as this prejudice can be corrected by the use immunity under
section 13, and by the derivative use immunity under section 7. IF, however, the WITNESS CAN SHOW
any OTHER SIGNIFICANT PREJUDICES from having to testify at that proceeding, HE WILL NOT BE
COMPELLABLE.

SECTION 11(C) OF THE CHARTER - RIGHT NOT TO TESTIGY AGAINST ONESELF

Section 11(c) provides the right not to be compelled to testify against oneself.

S. 13 OF THE CHARTER - RIGHT NOT TO GIVE INCRIMINATING EV AGAINST ONESELF

Section 13 of the Charter provides the right NOT to have incriminating evidence given in testimony
in another case used against you if you later become an accused - in essence immunity…

R. V. PRIMEAU - 11(C) & 13 MEAN CAN'T USE TESTIMONY FROM ONE TRIAL AGAINST A IN ANOTHER

If the predominant purpose in compelling a witness to testify is the legitimate public purpose of
having his evidence to assist in resolving the matters in issue, he must give evidence; but, if the
predominant purpose in compelling him is to obtain incriminating evidence against him, the subpoena
will be quashed if he will be SIGNIFICANTLY PREJUDICED because of his testimony.

The protections in sections 7 and 13 of the Charter are to be considered. If the party compelling
can show that the only adverse consequence to the witness will be to create, or lead authorities to,
evidence against himself, he must give evidence. This kind of prejudice can be corrected by the use
immunity under section 13, and by the derivative use immunity under section 7. If, however, the
witness can show any other significant prejudice from having to testify at that proceeding, he will
not be compellable.

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R. V. S.(R.J.) - EV MAY INCRIMINATE IN ONE SITU BUT NOT IN ANOTHER

Evidence may be characterized as self-incriminatory in one context but not another…

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