Evidence Long Outline

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Evidence – Long Outline
Evidence (Harvard University)
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lOMoARcPSD|23284392
Evidence – Long Outline

Course Introduction.......................................................................................................................11
The Adversary System and Sources of Evidence Law................................................................11
Phillips v Ford Motor Co....................................................................................................11
Brouillard v R......................................................................................................................11
Gordon v Gordon...............................................................................................................12
R v Lawes............................................................................................................................12
R v Brown...........................................................................................................................13
R v Gardiner.......................................................................................................................13
Correcting for Power Imbalances..........................................................................................13
R v Stinchcombe................................................................................................................14
R v Peruta...........................................................................................................................14
R v Darrach.........................................................................................................................14
Factual and Legal Truth..........................................................................................................14
R v Levogiannis...................................................................................................................14
R v Mullins-Johnson...........................................................................................................15
Rationales for the Law of Evidence........................................................................................15
The Argument for Codification..............................................................................................16
The Basics.......................................................................................................................................16
Burdens of Proof in Civil and Criminal Trials..............................................................................16
R v Schwartz.......................................................................................................................17
Woolmington v Director of Public Prosecutions................................................................17
Who Bears the Burden: Civil Burden.....................................................................................17
Fontaine Insurance Corporation of British Columbia........................................................17
Peart v Peel (Regional Municipality) Police Services Board...............................................18
Who Bears the Burden of Proof: Criminal Burden................................................................19
R v Chaulk...........................................................................................................................19
R v Turner...........................................................................................................................19
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F.H. v MacDougall..............................................................................................................19
R v Lichfus..........................................................................................................................20
R v Starr..............................................................................................................................21
R v Nadeau.........................................................................................................................21
R v W(D).............................................................................................................................21
R v S(JH).............................................................................................................................22
R v Nyznik...........................................................................................................................23
R v Querica.........................................................................................................................23
R v Arcuri............................................................................................................................23
Admitting Evidence: Relevance and Materiality........................................................................24
Relevance...............................................................................................................................24
R v Watson.........................................................................................................................24
Thayerian View of Relevance.............................................................................................24
R v Morris...........................................................................................................................25
Direct and Circumstantial Evidence.......................................................................................26
R v Watson.........................................................................................................................26
Materiality.............................................................................................................................28
Multiple Relevance................................................................................................................29
Relevance and Social Context................................................................................................29
R v Lavalee.........................................................................................................................29
R v S (RD)............................................................................................................................30
R v Hamilton.......................................................................................................................31
Excluding Evidence: Probative Value v Prejudicial Effect...........................................................31
Reading in Discretion.............................................................................................................32
Section 12(1) Canada Evidence Act...................................................................................32
R v Corbet.........................................................................................................................32
R v Potvin...........................................................................................................................33
R v L (DO)...........................................................................................................................34
Balancing Probative Value and Prejudicial Effect...................................................................34
R v Seaboyer......................................................................................................................35
R v Grant............................................................................................................................36
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R v Hodgson.......................................................................................................................37
Mitchell v Minister of National Revenue...........................................................................38
R v Hart..............................................................................................................................38
Professor Tanovich on Relevancy in Works of Art.............................................................39
R v Liard and Lasota...........................................................................................................39
Character: The Basics at Play.........................................................................................................39
Habit and Character...................................................................................................................39
Habit.......................................................................................................................................40
Belknap v Meakes..............................................................................................................40
R v Watson.........................................................................................................................40
Devgan v College of Physicians & Surgeons (Ontario).......................................................40
R v B(L)...............................................................................................................................41
Character................................................................................................................................41
R v Krugel...........................................................................................................................41
R v W(L)..............................................................................................................................42
R v Johnson........................................................................................................................42
R v Brissard.........................................................................................................................42
R v Clarke...........................................................................................................................43
Character in Civil Cases..........................................................................................................43
AG v Radloff.......................................................................................................................43
Radwah v Evans.................................................................................................................44
Plester v Wawanesa Mutual Insurance Co........................................................................44
Character in Criminal Cases...................................................................................................44
R v Tarrant..........................................................................................................................44
R v Profit.............................................................................................................................45
R v Rowton.........................................................................................................................45
AG v Hitchcock...................................................................................................................45
R v Handy...........................................................................................................................45
R v Shrimpton....................................................................................................................46
R v McFadden....................................................................................................................46
R v McNamara....................................................................................................................47
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R v Shortreed.....................................................................................................................47
R v P(NA)............................................................................................................................47
R v A(WA)...........................................................................................................................47
Similar Fact Evidence.................................................................................................................48
Bill Cosby Example.............................................................................................................48
Makin v Atorney-General for New South Wales...............................................................49
R v Boardman.....................................................................................................................49
R v Millar............................................................................................................................50
R v B(CR).............................................................................................................................50
R v Arp................................................................................................................................51
R v Handy...........................................................................................................................53
R v Blake.............................................................................................................................55
R v Titmus..........................................................................................................................55
R v Shearing.......................................................................................................................55
R v Peterfly........................................................................................................................56
R v B(C)...............................................................................................................................56
R v B(M).............................................................................................................................56
Character of the Victim – Non-Sexual Assault.......................................................................56
R v Scopelliti.......................................................................................................................56
Character of the Victim: Rape Shield Laws................................................................................57
R v Krausz (English Court of Appeal)..................................................................................57
R v Seaboyer......................................................................................................................58
Criminal Code, Sections 276 & 277....................................................................................59
R v Seaboyer......................................................................................................................60
R v Crosby..........................................................................................................................60
R v Darrach.........................................................................................................................61
R v Temertzoglou...............................................................................................................61
R v S(LR).............................................................................................................................62
Rape Shield Laws cont’d............................................................................................................63
R v LS..................................................................................................................................63
R v Ghomesi.......................................................................................................................64
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R v ARJD.............................................................................................................................65
Michelle Anderson, “Time to Reform Rape Shield Laws” (2004)......................................65
R v Barton...........................................................................................................................65
Bill C-51 – Reforms on Sexual History Evidence.................................................................66
Opinion Evidence...........................................................................................................................67
R v D(D)..............................................................................................................................67
Opinion & Expert Evidence........................................................................................................67
Lay Witnesses........................................................................................................................67
Graat v R.............................................................................................................................68
R v B(H)..............................................................................................................................69
Expert Evidence.....................................................................................................................70
Daubert v Merrell Dow Pharmaceuticals, Inc....................................................................70
R v Mohan..........................................................................................................................70
White Burgess Langille Inman v Abbot and Haliburton Co..............................................71
R v Abbey...........................................................................................................................73
R v J(JL)...............................................................................................................................75
R v Trochym........................................................................................................................75
Abbey #1............................................................................................................................76
R v Sekhon..........................................................................................................................77
Mechanics of Proof........................................................................................................................77
Maters Not Requiring Proof......................................................................................................77
Section 655 Admissions and Guilty Pleas..............................................................................78
R v Falconer........................................................................................................................78
R v G(DM)...........................................................................................................................79
Judicial Notice........................................................................................................................79
Morgan’s View...................................................................................................................80
Thayer and Davis’ View......................................................................................................80
R v Zundel..........................................................................................................................80
R v Lavallee........................................................................................................................81
R v Malot...........................................................................................................................81
R v Spence..........................................................................................................................81
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Delgamuukw v British Columbia........................................................................................83

Mitchell v Minister of National Revenue...........................................................................83
Real Evidence.............................................................................................................................84
Tendering Real Evidence........................................................................................................85
Continuity..............................................................................................................................85
R v MacPherson.................................................................................................................85
Videos and Photographs........................................................................................................85
R v Nikolovski.....................................................................................................................86
R v Andalib-Goortani..........................................................................................................88
Documents.............................................................................................................................89
Section 8, Canada Evidence Act.........................................................................................90
R v Abdi..............................................................................................................................90
Best Evidence Rule.................................................................................................................90
R v Beterest Vinyl Manufacturing Ltd...............................................................................90
Electronic Documents............................................................................................................90
Section 31, Canada Evidence Act.......................................................................................90
R v Cotroni.........................................................................................................................91
R v Hirsch...........................................................................................................................92
Demonstrative Evidence........................................................................................................93
R v Macdonald...................................................................................................................94
Witnesses.......................................................................................................................................95
Child Evidence in Criminal Trials................................................................................................95
Historical Context...................................................................................................................95
Horsburgh v R....................................................................................................................95
R v W(R).............................................................................................................................96
Bill C-2 – A New Law for Canada’s Child Witness (Nick Bala)............................................97
R v S(JZ)..............................................................................................................................97
R v Levogiannis...................................................................................................................98
R v L(DO)............................................................................................................................98
R v F(C)...............................................................................................................................99
Questioning the Witness.........................................................................................................100
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Maves v Grand Trunk Pacific Railway Co.........................................................................100

R v Rose............................................................................................................................101
Refreshing Memory/Past Recollection Recorded................................................................102
R v Wilks...........................................................................................................................102
R v B(KG)..........................................................................................................................104
R v Mattis.........................................................................................................................105
R v McCarroll....................................................................................................................105
Cross-Examination...................................................................................................................106
R v Lytle...........................................................................................................................106
R v R(AJ)...........................................................................................................................108
R v T(A).............................................................................................................................109
R v Osolin.........................................................................................................................109
R v Mills............................................................................................................................110
R v Shearing.....................................................................................................................110
R v McNeil........................................................................................................................110
Collateral Fact Rule..............................................................................................................111
AG v Hitchcock.................................................................................................................111
R v R(D)............................................................................................................................112
R v MacIsaac....................................................................................................................112
R v AC...............................................................................................................................113
R v DS...............................................................................................................................114
Impeaching, Supporting and Rehabilitating Credibility...........................................................114
Impeaching your own witness.............................................................................................115
R v Coffin..........................................................................................................................115
R v Malik..........................................................................................................................115
Canada Evidence Act, s 9(1).............................................................................................116
R v Figliola........................................................................................................................116
Canada Evidence Act, s 9(2).............................................................................................117
R v S (CL)..........................................................................................................................117
Bias.......................................................................................................................................119
General Films Ltd. v McElroy...........................................................................................119
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R v Dikah..........................................................................................................................119
R v Ghorvei.......................................................................................................................119
Supporting or Rehabilitating Credibility..............................................................................119
R v Beland........................................................................................................................120
Common Law Exceptions to the General Rule against Prior Consistent Statements..........120
R v Stirling........................................................................................................................120
R v Ellard..........................................................................................................................121
Prior Identification...............................................................................................................121
R v Tat...............................................................................................................................122
Part of the Narrative............................................................................................................122
R v Dinardo.......................................................................................................................122
Recent Complaint................................................................................................................123
R v O’Connor....................................................................................................................123
Compelling the Accused..........................................................................................................123
Protections Under the Canada Evidence Act.......................................................................123
R v Motola.......................................................................................................................124
Protections Under the Charter............................................................................................124
Section 11(c) and section 13 of the Charter....................................................................124
R v Dubois........................................................................................................................125
R v Mannion.....................................................................................................................125
R v Kuldip.........................................................................................................................125
R v Noel............................................................................................................................125
R v Henry..........................................................................................................................125
Nedeclu............................................................................................................................126
Principle Against Self-Incrimination: Charter section 7.......................................................127
R v Hebert........................................................................................................................127
R v P(MB).........................................................................................................................127
BC Securities Commission v Branch.................................................................................128
R v Fitzpatrick...................................................................................................................128
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R v G(SG)..........................................................................................................................128
R v White..........................................................................................................................128
R v B(SA)...........................................................................................................................129
No Adverse Inference from Pre-Trial Silence.......................................................................129
R v Turcote......................................................................................................................129
No Adverse Inference from Trial Silence..............................................................................130
Nobel................................................................................................................................130
Comments on Trial Silence..................................................................................................131
Section 4(6), Canada Evidence Act..................................................................................131
R v Prokofiew...................................................................................................................131
Exclusionary Rules.......................................................................................................................132
The Voluntary Confession Rule................................................................................................132
Criminal Code, Preliminary Inquiry..................................................................................132
The Rule Pre-Oickle..............................................................................................................132
Ibrahim v R.......................................................................................................................133
R v Wray...........................................................................................................................133
Revised Approach in Oickle..................................................................................................134
R v Spencer......................................................................................................................137
The Pre-Trial Right to Silence and Interrogation..................................................................137
R v Hebert........................................................................................................................137
R v Smith..........................................................................................................................138
R v K(HW).........................................................................................................................138
R v Otis.............................................................................................................................138
R v Roy.............................................................................................................................138
R v Singh...........................................................................................................................139
Dufraimont on Singh........................................................................................................140
R v Sinclair........................................................................................................................140
Introduction to Hearsay & the Principled Approach...............................................................141
Examples of Hearsay............................................................................................................142
Subramaniam v Public Prosecutor (Malaya Case)...........................................................142
R v Dunn...........................................................................................................................143
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R v Baltzer........................................................................................................................143
R v Khelawon...................................................................................................................143
R v Baldree.......................................................................................................................144
Morgan on Hearsay..........................................................................................................145
Approaches to Hearsay........................................................................................................146
Ares v Venner...................................................................................................................146
R v Khan...........................................................................................................................146
The Principled Approach cont’d...............................................................................................147
R v B(KG)..........................................................................................................................148
R v Khelawon...................................................................................................................150
R v Bradshaw....................................................................................................................153
Pigeonhole Exceptions to Hearsay...........................................................................................155
Party Admissions..................................................................................................................155
Khelawon.........................................................................................................................155
Capital Trust Co v Fowler.................................................................................................155
R v Phillips........................................................................................................................155
R v Streu...........................................................................................................................156
R v Evans..........................................................................................................................157
Exceptions where Declarant or Testimony Unavailable – Declarations Against Interest....157
R v Demeter.....................................................................................................................158
R v Lucier..........................................................................................................................159
Exceptions where Declarant or Testimony Unavailable – Dying Declarations.....................159
R v Aziga...........................................................................................................................160
Exceptions where Declarant or Testimony Unavailable – Declarations in the Course of Duty
.............................................................................................................................................160
Exceptions Not Dependent on Availability of Declarant – Declarations as to Physical
Sensation.............................................................................................................................161
Gilbey v Great Western Railway......................................................................................161
Exceptions Not Dependent on Availability of Declarant – Declarations as to Mental or
Emotional State....................................................................................................................161
Mutual Life Insurance Co v Hillman.................................................................................162
Shepard v US....................................................................................................................162
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R v Starr............................................................................................................................163
Exceptions Not Dependent on Availability of Declarant – Spontaneous Statements (Excited
Uterances)..........................................................................................................................164
R v Bedingfeld..................................................................................................................164
R v Clark...........................................................................................................................164
Course Introduction
The Adversary System and Sources of Evidence Law
There are two methods of fact finding:
 The adversary method – when parties cannot agree on historical facts they turn to one
of our institutions and ask a third party to make a determination so that the mater can
be setled. In the adversary method, the judge remains passive. The issue with the
adversarial system is that the truth we find may not be the objective truth.
 The inquisitorial method – in this method, the judge actively investigates and conducts
the inquiry. The issue with the inquisitorial system is the judge may not be impartial.
Phillips v Ford Motor Co
Facts Plaintiff sued for damages arising out of an automobile accident. The issue was
whether the accident was caused by a defective brake mechanism or driver
error. The judge introduced an expert and gave input of his own.
Rule The adversarial system requires an impartial trier of facts.

Facts presented must receive “a dispassionate and impartial consideration in
order to arrive at the truth of the maters in controversy. A trial is not intended
to be a scientific exploration with the presiding Judge assuming the role of a
research director; it is a forum established for the purpose of providing justice
for the litigants.”
Conclusio New trial ordered.

n
Brouillard v R
Rule When a trial judge steps down from his judge’s bench and begins to act as
counsel, it is important that a new trial be ordered, even when the verdict of
guilty is not unreasonable having regard to the evidence, and the judge has not
erred with respect to the law applicable to the case and has not incorrectly
assessed the facts.
It is of fundamental importance that justice should not only be done, but
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should manifestly and undoubtedly be seen to be done.
Although judges must remain impartial in the adversarial system, they may intervene in two
circumstances:
 To clarify;
 To ask questions that should have been asked, but were not asked.
No one intervention is determinative. It’s a holistic thing – you must look at all the interventions
taken together.
Gordon v Gordon
Rule The person conducting the hearing may take a more active role in certain
circumstances (i.e. in a custody case where the best interests of the child is at
issue).
R v Lawes
The common law allows trial judges to comment on evidence provided it is made clear to the
jury that they are not bound by the judge’s views, that the judge’s opinions are not stronger
than the facts warrant, and that the opinions are not overstated to the extent it may sway the
jury.
Facts The accused was convicted of second degree murder arising out of a bank
robbery. On appeal he argued that the trial judge’s comments on evidence
violated his section 11(f) right to be tried by a jury.
Issues Does the common law rule allowing a judge to make comment on evidence
contravene section 11(f) of the Charter?
Rule A trial judge is entitled to comment on evidence when instructing the jury, as
long as it is clear the opinion is given as advice and not direction. A judge has
gone too far, even if the jury was told they were not bound by his views, when:
 The opinion expressed is far stronger than the facts warrant; or
 The opinion is expressed so strongly that there is a likelihood that the
jury would be overawed by it.
Everything is a question of degree, with the overarching principle being
fairness. Comments made by the trial judge cannot amount to a rebutal of the
defence address to the jury or unfairly denigrate or undermine the position of
the defence.
Comments are both a necessary and desirable part of a trial judge’s role. The
limit is set where the comments interfere with the exercise of the jury’s role.
When determining whether a judge has gone beyond limits, it is assumed that
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jurors will abide by their oaths and will accept and follow the judicial
instructions given (i.e. when jurors are instructed to ignore opinions where they
do not accord with the juror’s own assessment, they will)
Analysis  Not every expression of opinion on factual issues by a trial judge, even
on substantial, contested issues, will usurp the function of a jury.
 In view of their role, trial judges cannot avoid commenting on the
evidence. Trial judges, when charging the jury, may select or mention
evidence they feel is relevant.
 Beyond comments that are required or desirable, trial judges have
discretion to comment on evidence during the charge to help the jury
focus on the critical issues.
 A trial judge cannot assess the evidence and make a determination that
the Crown has proven one or more of the essential elements of the
offence and to direct the jury accordingly. The trial judge may give an
opinion on the mater, but never a direction.
Conclusio Appeal dismissed.

n
R v Brown
Rule A court has residual discretion to relax in favour of the accused a strict rule of
evidence where it is necessary to prevent a miscarriage of justice and where
danger against which an exclusionary rule aims to safeguard does not exist.
R v Gardiner
Rule The rules of evidence may vary within a court proceeding depending on the
stage of proceedings, e.g. at sentencing.
The adversary system is not without its flaws.

 It presupposes some level of equality between the parties; where this is lacking the
truth may simply become the view of the more powerful.
 When applied in a scientific context, it becomes absurd: “a lengthy search will fail to
reveal one competent [scientist] who will willingly and in advance confine himself, in
deciding any question involving factual data, to a choice between two existing data sets
offered to him by rival claimants… the inquisitorial method is the one used by every
genuine seeker of truth in every walk of life… with one exception… the trial system in the
common law world.”
 Frequently the lawyer’s motivations actually conceal, rather than reveal the truth. The
lawyer wants to win, not to reveal the truth.
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 When individuals state past ‘facts’, they are really stating their belief or opinion about a
past fact.
Correcting for Power Imbalances

To correct for power imbalances in the adversary system, we add some checks and balances:
 The defense has no obligation to disclose evidence in advance;
 The accused cannot be forced to testify;
 Sections 8 – 14 of the Charter limit the ways of getting at evidence are limited. Sections
8 – 4 of the Charter
R v Stinchcombe
Rule The Crown is obligated to disclose relevant information to defense.
By contrast, the defense is permited to assume a purely adversarial role toward
the prosecution – the absence of a duty to disclose is consistent with the
defense’s position.
R v Peruta
Rule The discovery of evidence is a constitutional guarantee for the accused, meant
to balance the forces involved in the trial. Because this balance is not yet met,
the defense is under no obligation to disclose all evidence in criminal trials.
R v Darrach
Rule While the right to make full answer and defense is a core principle of
fundamental justice, they can be respected without the accused being entitled
to “the most favourable procedures that could possibly be imagined.”
Factual and Legal Truth

While justice is often referred to as a goal of evidence, the SCC has also held that the search for
truth is arguably the primary goal of the law of evidence.
There are two types of ‘truth’. The adversary system looks for legal truth; factual truth is
impossible to completely uncover. Legal truth is what the court can ascertain happened based
on the evidence before them. The court constructs a version of the truth and determines (in
relation to the burdens) whether the plaintiff or prosecution has made their case. Legal truth is
essentially a judgement of whether or not a case is supportable.
A verdict is the product of what can be proved in the confines of the adja udicative forum
applying rules of proof and inadmissibility. A verdict of not guilty is not a factual finding of
innocence, but only an acknowledgement that the Crown could not prove its case beyond a
reasonable doubt.
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R v Levogiannis
Issues Does section 486(2.1), which permits young complainants to testify behind a
screen, violate an accused’s right to a fair trial?
Rule The goal of the court process is truth seeking and, to that end, the evidence of
all those involved in judicial proceedings must be given in a way that is most
favourable to eliciting the truth.
R v Mullins-Johnson
Facts An uncle was wrongfully convicted of the death of his four-year old niece. He
was babysitting her and she was found dead.
An expert in child injuries and child abuse testified and offered evidence used to
convict the uncle, but after the fact it was discovered that his methodology was
very flawed.
Issues Should there be a third verdict of innocence in a criminal case?
Rule The court has no jurisdiction to make a formal legal declaration of factual
innocence.
Analysis  There are genuine policy reasons for not recognizing a verdict of
“innocent” in addition to “guilty” or “not guilty”.
 Determinations of “innocence” could degrade the meaning of the “not
guilty” verdict.
 Moreover, different determinations lead to different types of “truths”.
Rationales for the Law of Evidence

Lisa Dufraimont identifies three rationales of evidence law, and argues the basis of our law is
largely a debate about who to mistrust:
 Fear that jurors may misconstrue evidence;
 Restrain excessive adversarial behaviour of lawyers;
 Exclude perjured evidence.
There have been six major themes to the SCC’s approach to evidence over the last twenty years:
 Ensuring fairness in the evidence-gathering process;
 Bestowing constitutional status to the organizing principles of the adversarial process;
 The development of a principled approach to admissibility;
 Cleansing the law of evidence of stereotypes (particularly in the sexual assault context);
 A recognition of the relevance of social context (biases, stereotypes);
 Protecting against wrongful convictions (Charter jurisprudence).
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The Argument for Codification

Arguments in favour of a comprehensive statement of evidence include:
 Accessibility (all rules in one place);
 A comprehensive statement would make for beter evidentiary arguments;
 Create a beter understanding of how the rules of evidence operate (particularly if
explanatory notes are included);
 Formally recognize the discretion of a judge and promote fairness, efficiency and the
best approximation of the truth;
 Students would be beter equipped for practice;
 Resolves ambiguities, promotes a more uniform law;
 Would make reforms on the law of evidence easier;
 Would make the law clearer to citizens.
Arguments against a comprehensive statement include:
 The present law of evidence is good enough – it is too complex to be reduced to a set of
rules;
 New legislation will introduce uncertainty into the practice;
 A statute will restrict judges’ ability to adjust the law of evidence to changing times – will
‘freeze’ the law of evidence. Changes will take much longer if left to the legislature.
 Discretion in judges will increase the amount of evidence admissible.
 Legislative schemes are subject to political influence.
The Basics
Burdens of Proof in Civil and Criminal Trials
All evidence is aimed at burdens of proof. For the party who bears the burden, evidence is
adduced to discharge the burden (e.g. establishing guilt or putting an issue into play). For this
party, evidence absolutely must be adduced. In the absence of evidence supporting a claim, the
claim will fail.
For the other party (the accused or the defendant), there is not the same strict obligation to
adduce evidence, but rather a tactical burden – failure to adduce evidence risks an adverse
finding. If the defense does adduce evidence, it is usually to show that the burden is not met.
There are two uses of the term burden of proof:
 Persuasive Burden (legal burden, ultimate, major, primary burden) – The requirement of
satisfying the trier of fact that a certain material proposition has been made out. The
party who is unable to persuade the trier of fact of his version of the facts loses the case.
 Evidentiary Burden (tactical burden, minor, secondary burden) – The obligation of
ensuring that there is evidence in the case on an issue in order to put it into play. Failing
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to satisfy this burden will prevent the issue from being considered by the trier of fact.
The party with the evidentiary burden is not required to convince the trier of fact of
anything, only to point out evidence which suggests that certain facts existed.
R v Schwartz
Rule The persuasive burden is a burden to make out a material proposition. The
burden on the Crown to prove guilt BARD is a type of persuasive burden.
The evidentiary burden is a lesser burden – you must adduce evidence to put a
particular issue in play. The party with the evidentiary burden is not required to
convince the trier of fact anything, and is required only to point to evidence
suggesting that certain facts exist.
Woolmington v Director of Public Prosecutions

Rule The “golden thread” of criminal law is that the Crown bears the burden to prove
guilt.
Occasionally, the defense has a persuasive burden (to plead insanity, for
example).
Who Bears the Burden: Civil Burden

In civil cases, the burden is on the person who asserts a proposition. In a negligence claim, for
example, the plaintiff bears the burden of showing each element of negligence. If the defendant
then asserts a defence, such as contributory negligence, the defendant bears the burden of
establishing that defense. The plaintiff cannot shift the burden to the defendant to disprove a
claim. The burden always remains with the plaintiff to show an action.
The burden in civil cases is lower than that in criminal. Claims must be proven on a
preponderance of evidence, or a balance of probabilities. If the evidence is such that a tribunal
can say “we think it is more probable than not”, the burden is discharged. If the probabilities are
equal, it is not.
Fontaine Insurance Corporation of British Columbia
Facts Plaintiff claimed damages for negligence with respect to the death of her
husband in a car crash. She claimed res ipsa loquitir – the thing spoke for itself.
The circumstances of the crash were obscured by bad weather and the trial
judge found negligence had not been proven against the driver.
Issue When does res ipsa loquitir apply, and what is its effect?
Rule RIL arises where the circumstances of the occurrence permit an interference of
negligence atributable to the defendant. For RIL to apply, the circumstances
must “shout facts aloud”.
RIL cannot be used to shift the plaintiff’s burden onto the defendant.
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Analysis RIL is defeated by a single possible inference of non-negligence.

The burden does not shift to the defense at any time – the plaintiff retains the
onus to establish that there are no other possible inferences besides negligence.
RIL itself is a claim that all circumstantial evidence points only to negligence, and
a single possible inference in which there would not be negligence defeats the
claim.
The circumstances of the accident did not meet the threshold – many facts
(date, time, etc). of the accident are not known.
Conclusio This doctrine is not well defined or used often anymore. Its use has been
n restricted to cases where the facts permited an inference of negligence and
there was no other reasonable explanation for it.
Peart v Peel (Regional Municipality) Police Services Board

Facts The police ran a license check on a vehicle they knew to be an easy target for
thieves. They followed the driver and arrested him. The driver then filed a racial
profiling case. Peart argued that due to the difficulty in establishing bias, the
police should bear the onus of proving a lack of racial bias.
Issue Should the burden shift given the difficulty of proving racial profiling?
Rule The civil burden rests on those who assert a claim. It does not vary on the basis
of ease or difficulty. However, this is not an immutable rule.
Fairness may dictate a reversal of the usual legal burden of persuasion in those
rare cases where the party who would normally bear the burden of proof has no
reasonable prospect of being able to discharge that burden, and the opposing
party is in a position to disprove or prove the relevant facts. It is not enough,
however, for the party seeking to reverse the burden to demonstrate that the
other party is in a better position to disprove the fact in issue.
Analysis Defendant police have a tactical burden to negate an inference of racial

profiling, but that is not a true burden.
The plaintiff retains the burden to establish that police actions were racially
biased, and cannot shift the burden to the police on the basis that they are
beter positioned to prove or disprove the claim.
Who Bears the Burden of Proof: Criminal Burden

The burden in criminal law is inherently tied to the presumption of innocence enshrined in
section 11(d) of the Charter. Presumptions of innocence are also integral to section 7
guarantees.
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Our complex and extensive system of police and prosecutors gives the State a powerful
advantage against the accused. If we did not prove innocence, an elementary sense of fairness
would require us to radically revise our system and give the accused an equivalent fact-finding
capability.
R v Chaulk
Issue Is the presumption of sanity found in sections 16(2) and (3) of the Criminal Code
unconstitutional for placing the onus of proving the defense of insanity on the
accused?
Rule The accused may bear a persuasive burden in rare cases. These burdens will
violate section 11(d), but may be saved under section 1 where the alternative
would be to place impossible burdens on the Crown.
Analysis The presumption violates section 11(d), but it is saved by section 1.

It is easy for an accused to fake a mental disorder. If the Crown had the burden
to prove sanity, this would be a practically impossible burden to satisfy, which
could distort the truth-seeking process of a trial.
R v Turner
Facts Accused was charged with having illegally hunted game in his possession. There
were a number of exceptions in the statute that could have applied to make the
possession legal. The Court held that the Crown was not required to bring
evidence to prove that none of the exceptions applied – rather, the burden was
on the accused to show that one of the exceptions applied.
Rule The burden of persuasion in a criminal case can be shifted to the accused in
respect of facts that are particularly within the accused’s knowledge.
Analysis The presumption violates section 11(d), but it is saved by section 1.

It is easy for an accused to fake a mental disorder. If the Crown had the burden
to prove sanity, this would be a practically impossible burden to satisfy, which
could distort the truth-seeking process of a trial.
F.H. v MacDougall
Facts P was a student of a Residential School. Forty years later, P brought suit alleging
his supervisor M had sexually assaulted him on four occasions. At trial, the judge
found that P was a credible witness in spite of certain inconsistencies in his
testimony.
The BCCA overturned the appeal, holding that the TJ had failed to consider the
inconsistencies in P’s testimony. Closer scrutiny was required in cases where
moral blameworthiness is alleged.
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Issues Should the civil “balance of probabilities” burden ought to be shifted to the
criminal burden according to the seriousness of the allegations?
Rules There is only one civil standard of proof at common law and it is proof on a BOP.
The criminal standard is not to be applied in civil cases. There is no
presumption of innocence in civil cases.
Analysis There is no shifting standard of probability in civil cases – judges ought to

scrutinize evidence with ‘greater care’ in serious circumstances.
The law operates on a binary system of 0 and 1. Either the event happened, or it
didn’t. Having a 60% or 70% probability, for example, would not be coherent or
understandable for a decision-maker like 51% is.
R v Lichfus
Facts Accused was charged with fraud. Trial judge charged the jury to give the phrase
“proof beyond a reasonable doubt” an ordinary, everyday meaning.
Issues What is the meaning of “proof beyond a reasonable doubt”?
Rule BARD has a special meaning in criminal trials, tied to the presumption of
innocence. More is required than proof that the accused is “probably guilty”. A
jury which concludes that the accused is only “probably guilty” must acquit.
“A reasonable doubt is not an imaginary or frivolous doubt. It must not be based
on sympathy and prejudice. Rather, it is based on reason and common sense. It
is logically derived from the evidence or the absence of evidence.”
An error in the instructions as to the standard of proof may not constitute a
reversible error. It was observed in R v W(D) that the verdict ought not to be
disturbed “if the charge, when read as a whole, makes it clear that the jury
could not have been under any misapprehension as to the correct burden and
the standard of proof to apply.”
Analysis Judges should avoid inferences such as:

 BARD is not an ordinary expression with no special meaning;
 Jurors should not be invited to apply the same standard they do to even
the most important decisions in their own lives;
 It is not to be equated to proof “to a moral certainty”;
 “doubt” should not be qualified with words other than reasonable, e/g/
serious, substantial or haunting;
 Jurors should not be invited to convict if they are “sure” of guilt, unless
they are previously provided with a proper meaning of the words
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“beyond a reasonable doubt”.
R v Starr
Rule Proof beyond a reasonable doubt “falls much closer to absolute certainty than
to proof on a balance of probabilities.”
It is generally inappropriate to define the meaning of BARD through examples
from daily life, through the use of synonyms or through analogy to moral
choices. BARD is an exacting standard of proof rarely encountered in daily life.
R v Nadeau
Rule A jury does not need to choose between an accused’s or the Crown’s version of
events. The accused benefits from any reasonable doubt at the outset, not
merely if “the two version are equally consistent with the evidence, are equally
valid.”
You don’t have to believe the accused, you just have to have reservations about
the Crown’s version of events.
R v W(D)
Facts Sexual assault trial with a credibility contest between the accused and the
complainant. It was objected that the TJ erred in his recharge in that he
characterized the core issue to be determined by the jury as whether they
believed the complainant or the appellant.
Issues Did the trial judge err in the jury charge?
Rule W(D) Formula for Charging Jury in Credibility Contests

 If you believe the accused, you must acquit;
 If you don’t believe the accused, but are still left in reasonable doubt by
the accused’s testimony, you must acquit;
 If you are not left in reasonable doubt by the accused’s evidence, you
must still ask if, based on the evidence you do accept, you are convinced
of the accused’s guilt beyond a reasonable doubt.
Notes The SCC has recognized various criticisms of the W(D) approach and held that it
should not be applied as a magic incantation.
In H(CW) Justice Woof added an additional question – if, after careful
consideration of all the evidence, you are unable to decide who to believe, you
must acquit.
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R v S(JH)
Facts Credibility contest in sexual assault trial. Trial judge charged jury that the trial
was not a choice between two competing versions of events, and rather they
needed to consider all of the evidence. NSCA set aside the conviction on the
basis that the jury charge failed to express the second W(D) principle.
Issues Did the trial judge err by failing to explicitly charge the jury on the second W(D)
principle?
Rule W(D) is not a magical incantation. In any case where credibility is important, the
question is really whether the TJ’s instructions left the jury with the impression
that it had to choose between two versions of events.
At the end of the day, a jury charge in a credibility contest must express to the
jury:
 The burden of proof is on the Crown;
 That they are to consider all of the evidence, not just to choose between
competing versions of different witnesses, and;
 That they may believe some, none, or all of the evidence of any witness,
including the accused.
As long as the charge satisfies these requirements, there is no error.
Analysis The W(D) instructions can be problematic.

 Part 1 – The jury may believe the inculpatory elements of the statement
of the accused, but reject the exculpatory explanation.
 Part 2 – Some jurors may wonder how, if they believe none of the
evidence of the accused, such rejected evidence may nevertheless itself
raise a reasonable doubt.
 Part 3 – Fails to contemplate a jury’s acceptance of inculpatory bits of
evidence of an accused but not exculpatory evidence.
 Suggest adding another instruction – “if, after a careful consideration of
all the evidence, you are unable to decide whom to believe, you must
acquit.”
Conclusio Appeal allowed, conviction restored.

n
Notes Most judges still stick to the W(D) instruction. As long as the jury understands it
and is warned of the Crown’s burden of proof, it’s fine.
R v Nyznik
Facts Justice Molloy acquited three male police officers charged with sexual assaults
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after engaging in sexual acts with a female complainant in a hotel room.
Rule The judge does not need to rigidly follow W(D) so long as the judge avoids
turning the fact-finding exercise into a choice as to which is the more credible
version of events.
Only evidence that is both reliable and credible can support a finding of guilt
BARD.
Analysis Reliability – whether witness has a good memory, whether she has a good
memory, whether she is able to recount the details of the event, and whether
she is an accurate historian.
Credibility – is the witness telling the truth?
Sometimes an honest witness will be trying her best to tell the truth but
nevertheless will be mistaken in her recollection. Although honest, their
evidence is not reliable.
R v Querica
Rule Where verdict is said to be unreasonable or not supported by the evidence,
appellate court must independently examine and assess evidence adduced at
trial and reach its own conclusion as to the reasonableness of the verdict.
It must decide whether the totality of the evidence is such that verdict is one
that a “properly instructed jury acting judicially, could reasonably have
rendered.”
In deciding if a jury has exceeded the bounds of reasonableness, the court must
give due deference to the advantageous position of the jury, who actually saw
and heard the witnesses.
R v Arcuri
Rule The judge must determine whether there is before the court any admissible
evidence… whether direct or circumstantial, which, if believed, by a properly
charged jury acting reasonably, would justify a conviction.
Where the defence raises exculpatory evidence and the Crown has direct
evidence on all elements of offence, the mater must still go to trial.
Where the defence raises exculpatory evidence and the Crown case is entirely
circumstantial, the judge must engage in limited weighing of whole of evidence
to determine whether reasonable jury properly instructed could return guilty
verdict.
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Admitting Evidence: Relevance and Materiality
Relevance
The Canadian threshold to evidence is quite low. The evidence must be logically probative to
some legal issue. To be relevant, the evidence offered must render the inference for which it is
offered more probable than the other possible inferences or hypotheses. There is no need to
have a certain degree of “plus value” or probative value.
The test of relevancy is less stringent than the test used at a later stage in deciding whether all
the evidence of the party on an issue is sufficient to permit the issue to go to the jury. Don’t mix
up logical relevance and discretion. These are two different analyses. Weight does not factor
into a relevance assessment.
Whether evidence is logically probative comes down to what the premise is. For example,
evidence that roses were in bloom may be circumstantial evidence that it was spring, but this
requires accepting a premise that roses are in bloom in spring. In finding the premise for
relevance, the judge is relying on their personal experience. This is permissible, so long as the
judge does not show a reasonable apprehension of bias. The probative worth of the relevant
evidence depends on the accuracy of the premise which supports the inference. If you don’t
want evidence admited, atack the premise.
R v Watson
Does the evidence have some tendency as a mater of human experience to support the
inference for which it is being advanced?
Rule Relevance… requires a determination of whether, as a mater of human

experience and logic, the existence of “Fact A” makes the existence or non-
existence of “Fact B” more probable than it would be without the existence of
“Fact A”.
If it does, then “Fact A” is relevant to “Fact B”. As long as “Fact B” is itself a
material fact in issue, or is relevant to a material fact in issue in the litigation,
then “Fact A” is relevant and prima facie admissible.
Thayerian View of Relevance

Rule  Nothing is to be received which is not logically probative of some mater
required to be proven; and
 Everything which is probative should be admited, unless a clear ground
of policy or law excludes it; but
 Some maters, while exhibiting some minor degree of probative value
should not be admited because they were too speculative, remote or
dangerous.
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R v Morris
The Supreme Court adopted the Thayerian view on relevance, and rejected the Wigmore view
that a piece of information must have a minimum probative value before it can be considered
relevant.
Facts Morris was convicted of having conspired with others to import and traffic
heroin into Canada from Hong Kong. He appealed on the grounds that the TJ
erred in admitting into evidence and in taking into consideration a newspaper
clipping found in the home of the accused entitled ‘The Heroin Trade Moves to
Pakistan’.
Issue Was the newspaper clipping relevant to the appellant’s conviction as a heroin
dealer?
Rule Relevance is determined by asking if a piece of evidence has any logically

probative value to a legal issue. For one fact to be relevant to another, there
must be a connection between the two which makes it possible to infer the
existence of one from the existence of the other.
The weight to be given to evidence is a question for the trier of fact, subject to
the discretion of the TJ to exclude evidence where the probative value is
minimal and the prejudicial effect is great.
Analysis McIntye J for the MAJORITY:-

The unexplained presence of the newspaper clipping amongst the possessions
of the appellant could lead an inference that he had an interest in the subject of
that clipping. Though the probative value of such evidence may be low,
admissibility should not be confused for weight.
Lamer J DISSENTING:-
Evidence ought not to be admissible if its only purpose is to prove that the
accused is the type of man who is more likely to commit a crime of the kind with
which he is charged. Such evidence is viewed as having no real probative value
with regard to the specific crime atributed to the accused. There is no sufficient
logical connection between the one and the other.
Judges also retain discretionary power to exclude logically relevant evidence
where:
 It is of too slight a significance;
 It has too conjectural and remote a connection;
 Being dangerous in their effect on the jury (likely to be misused or
overestimated by that body, being impolitic).
Here, the relevance of the clipping is solely to the accused’s disposition – the
reasoning being that – because persons who are traffickers are more likely to
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keep such information than not, people who keep such information are more
likely to be traffickers than people who do not.
Conclusio The newspaper clipping was relevant.

n
Notes This case is a landmark for the Canadian approach to relevance. The competing
Wigmore view was that to be relevant, the evidence must have a ‘plus’ value – it
must possess a minimum probative value. Instead, we now have an extremely
low threshold to relevance – does it logically make anything that is a legal issue
more or less probable, to any degree?
Direct and Circumstantial Evidence

In discharging their persuasive burden, the Crown may tender direct or circumstantial evidence
Direct evidence is sensory, and involves experiencing a material fact directly through one’s
senses. For example, “I saw the accused shoot the victim”. After the witness is deemed to be
competent, the only question is whether the trier of fact believes the witness’ account. There is
only one source of error: credibility. The witness may be wrong, intentionally or accidentally.
Direct evidence is not necessarily more reliable – in the case of eyewitness evidence, for
example, juries must be instructed on the specific frailties of the evidence, and both judges and
juries must be highly atuned to inherent frailties in direct evidence.
Circumstantial evidence tends to prove a factual mater through other elements or
circumstances from which the occurrence of the event in issue can reasonably be inferred. For
example, “I saw the accused standing over the victim with a gun, but I didn’t see him shoot the
gun.” There are two potential sources of error: the witness may be wrong; or the proposed
inference may be wrong (either because there is not a sufficient basis for the inference on the
evidence, or because the proposed interference cannot reasonably and logically be drawn from
the established facts).
R v Watson
Facts Accused was charged with second degree murder and was convicted of
manslaughter.
Victim had been at his business premises with his friends. The accused, together
with his friends, arrived in the evening. Not long afterward, the victim was shot
and killed, and the accused’s friend was wounded. There was a conflict in expert
evidence as to how many bullets struck the victim.
The pathologist who performed the autopsy claimed the victim was shot seven
times. A firearms expert testified the victim was shot five times.
The defense contested the admission of the evidence of Clive Mair, a friend of
the deceased, who testified the deceased always carried a gun.
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Issues  Does the fact that the deceased always carried a gun make it more likely
that he was in possession of a gun when he was shot?
 Does the fact that the deceased was in possession of a gun when he was
shot make it less likely that the appellant was party to a plan to kill or do
harm to the deceased, formed some time prior to his arrival with H and
C at the rental unit?
Rule Relevancy must be assessed in the context of the entire case and the
respective positions taken by the Crown and the defence.
All relevant evidence is admissible, subject to a discretion to exclude maters
that may unduly prejudice, mislead or confuse the trier of fact, take up too
much time, or that should otherwise be excluded on clear grounds of law or
policy.
No minimum probative value is required for evidence to be deemed relevant
(Morris). Any mater that has any tendency, as a mater of logic and human
experience, to prove a fact in issue, is admissible in evidence, subject of course
to the overriding judicial discretion to exclude such maters for the practical and
policy reasons already identified.
The fact that a person is in the habit of doing a certain thing in a given situation
suggests that on a specific occasion in which those circumstances arose the
person acted in accordance with established practice. Evidence of a habit is
therefore properly viewed as circumstantial evidence that a person acted in a
certain way on the occasion in issue.
A finding that evidence is relevant does not determine its admissibility.
Relevant evidence will be excluded if it runs afoul of exclusionary rules, or if a
balancing of its probative value against its prejudicial effect warrants its
exclusion.
Analysis  The absence of a direct connection does not determine relevance. If it

did, most circumstantial evidence would be inadmissible.
 Where a person’s conduct in given circumstances is in issue, evidence
that the person repeatedly acted in a certain way when those
circumstances arose in the past has been received as circumstantial
evidence that the person acted in conformity with past practice on the
occasion in question.
 Evidence of a habit is not the same thing as evidence of disposition.
 Evidence of a habit = inference of conduct on a given occasion based on
established paterns of past conduct.
 Evidence of disposition = inference of state of mind from a person’s
conduct on one or more previous occasions and a further inference of
conduct on the specific occasion based on the existence of that state of
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mind.
 Habit = person’s regular practice of responding to a particular kind of
situation with a specific type of conduct.
CONCLUSION: Yes, the fact that the accused had a habit of keeping a gun was
relevant to the question of whether he had one when shot.
 The further inference from possession to use is essential to make Mair’s
evidence relevant to any issue in the trial.
 The deceased and C were shot – evidence does not suggest C shot
himself – he was shot by a different gun than the one used to shoot the
deceased – jury could have inferred deceased shot C.
 Evidence supporting the inferences that the deceased was armed and
used a weapon during the confrontation made the defence position as to
the appellant’s non-involvement in any plan to kill or do harm to the
deceased more viable than it would have been if those inferences were
not available. So, Mair’s evidence is relevant.
SHOULD WE EXCLUDE THE EVIDENCE?
 The evidence that the deceased always carried a gun suggested that he
was a potentially dangerous person and reflected adversely on his
character. Evidence suggesting the accused is a person of bad character
is subject to a specific exclusionary rule to which there are exceptions.
There is, however, no such exclusionary rule in criminal cases where
otherwise relevant evidence suggests that the deceased is a person of
bad character.
 In this case, the proposed evidence had significant probative value and
the record already suggests the deceased was of bad character.
 The admission of Mair’s evidence would not, therefore, have introduced
an element of potential prejudice into the trial which was not already
present.
Conclusio Evidence admited.

n
Materiality
The evidence must be rationally probative of the fact sought to be thereby established. But
more importantly, it must also concern a mater in issue between the parties (it must be
material).
A fact may have some logical relation to the case, but will not be admissible unless it is logically
related to the legal argument being made in the case. Otherwise, it is immaterial and thus
irrelevant.
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For example, recall the case in which the accused was charged with possession of undersized
lobsters. The issue in that case was possession: did the accused have the lobsters? Evidence he
didn’t know he had the lobsters is irrelevant. This evidence goes to his state of mind, not the
issue of possession.
Multiple Relevance
The same piece of evidence may be relevant to different maters. Though evidence may be
inadmissible for one purpose as violating of a certain policy, it may nevertheless be admissible
when tendered for another purpose.
For example, evidence of character could be relevant to both credibility and disposition. Rules
of evidence could exclude such evidence if tendered to prove that the person acted in
conformity with that character on the occasion under review, but admit the same if tendered to
impact the credibility of a witness.
Relevance and Social Context

There is no set rule for relevancy. In the final analysis, the decision rests with the individual
judge to dictate relevancy, but can be dictated by the judge’s culture, age, sexual orientation,
gender, racial or ethnic background, and socio-economic status.
Should judges be able to use social context evidence (ex. racism or sexism prevalence) in
assessing relevance? In Peart v Peel, Justice Doherty argues yes – the reasonable person is not
purely objective: “An understanding of how others legitimately view the circumstances serves to
counteract the subjectivity of the judge’s own view of the world.”
R v Lavallee
Facts A batered woman shot her partner in the back of the head as he left her room.
He had threatened to kill her. A psychiatrist described the accused’s terror and
her inability to escape the relationship, and opined that the shooting was the
final desperate act of a woman who sincerely believed she would be killed that
night.
Issues Was the psychiatric evidence relevant to a material issue?
Rule Social context evidence can be admited in certain circumstances, but it must be
relevant to a legal issue.
Analysis  Expert evidence of the psychological effect of batering on partners must

be relevant to the mental state of the appellant. The common public
needs help understanding batered wife syndrome.
 The definition of what is reasonable must be adapted to circumstances
which are, by and large, foreign to the world inhabited by the
hypothetical “reasonable man”.
 Where evidence exists that an accused is in a batering relationship,
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expert testimony can assist the jury in determining whether the accused
had a “reasonable” apprehension of death when she acted by explaining
the heightened sensitivity of a batered woman to her partner’s acts.
Conclusio Found for the accused.

n
R v S (RD)
Social context evidence can be admited by taking judicial notice or by expert evidence. The
extent to which a judge may rely on social context evidence acquired from personal knowledge
and judicial experience has proved highly controversial.
Facts Black youth was charged with a series of offenses involving an encounter with a
police officer. At trial, the judge preferred the testimony of the black youth to
the police officers and acquited him.
The judge made some comments that police officers have been known to
mislead the court in the past, although she did note she was not suggesting this.
Likewise, she noted that she was not saying that the police officer overreacted,
though police officers were known for doing that as well.
Issues Can judges to import social context into their judgements as evidence?
Rule Social context may be imported into judgements, when there is reason to do so.
Analysis CORY J:-

 In some circumstances, it may be acceptable for a judge to acknowledge
that racism in society might be, for example, the motive for the
overreaction of a police officer.
 But, it would be dangerous for a judge to suggest that a particular person
overreacted because of racism unless there is evidence adduced to
sustain this finding. It would be equally inappropriate to suggest that
female complainants in sexual assault cases ought to be more readily
believed than male accused persons solely because of the history of
sexual violence by men against women.
 Where there is no evidence linking the generalization to the particular
witness, these situations might leave the judge open to allegations of
bias on the basis that credibility of the individual witness was prejudged
according to stereotypical generalizations.
 There was no evidence before Judge Sparks that would suggest that anti-
black bias influenced this particular police officer’s actions.
MAJOR J: -
 Be careful of stereotyping! Just because some police officers lie, doesn’t
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mean all police officers lie.

 The TJ could be perceived as assigning less weight to the police officer’s
evidence because he is testifying in the prosecution of an accused who is
of a different race.
 Whether racism exists in our society is not the question. The issue is
whether there was evidence before the court upon which to base a
finding that this particular police officer’s actions were motivated by
racism. There was no evidence of this presented at trial.
 The fact that some other police officers on some other occasions have
lied or overreacted is irrelevant. Life experience is not a substitute for
evidence. There was no evidence before the judge to support the
conclusions reached.
L’H-D : -
 While judges can never be neutral, they should strive for impartiality.
Differing experiences of judges assist them in their decision-making
process and will be reflected in their judgements, so long as these
experiences are relevant to the cases, are not based on inappropriate
stereotypes, and do not prevent a fair and just determination of the
cases based on the facts in evidence.
 An understanding of the context or background essential to judging may
be gained from testimony from expert witnesses in order to put the case
in context, from academic studies properly placed before the court, and
from the judge’s personal understanding and experience of the society in
which the judge lives and works.
Conclusio No bias.
n
R v Hamilton
Rule R v RDS draws a distinction between findings of fact based exclusively on personal
judicial experience and judicial perceptions of social context, and findings of fact
based on evidence viewed through the lens of personal judicial experience and
social context. The later is proper, the former is not.
Excluding Evidence: Probative Value v Prejudicial Effect

Discretion can be used to exclude evidence in five circumstances:
 Where it is read into or explicitly stated in statute;
 Where probative value is outweighed by prejudicial effect;
 Where evidence is tendered by the accused, discretion to exclude subject to a higher
standard that the probative value is substantially outweighed by prejudicial effect;
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 Where it must be excluded to ensure a fair trial under the Charter;

 Where the evidence has been obtained in a violation of Charter rights under section
24(2).
Reading in Discretion
Section 12(1) Canada Evidence Act
12(1) A witness may be questioned as to whether the witness has been convicted of any
offence, excluding any offence designated as a contravention under the
Contraventions Act, but including such an offence where the conviction was
entered after a trial on indictment.
R v Corbett
Facts Accused was convicted of murder and appealed. He argued he was deprived his
right to a fair hearing by reason of the introduction of evidence of his earlier
conviction of another murder.
He argued that, if he was called as a witness, section 12 of the Canada Evidence
Act would not apply to him because of section 11(d) of the Charter, and he
could not be cross-examined as to his prior criminal record. Under section 12, “a
witness may be cross-examined as to whether the witness has been convicted of
any offence…”
Issues Is section 12 of the Canada Evidence Act constitutional?
Rule Discretion may read into a statute. Here, there is a discretion within section 12
to disallow cross-examination on the prior criminal record of the accused.
The Organizing Principles of the Law of Evidence (as stated by LaForest J in
dissent)
 All relevant evidence is admissible, subject to a discretion to exclude
maters that may unduly prejudice, mislead or confuse the trier of fact,
take up too much time, or should otherwise be excluded on clear
grounds of policy.
 The more similar the offence to which the previous conviction relates to
the conduct for which the accused is on trial, the greater the prejudice
harboured by its admission.
 A court should be very chary of admitting evidence of a previous
conviction for a similar crime, especially when the rationale for the
stringent test for admitting “similar fact” evidence is kept in mind.
Analysis  Had the accused’s record not be revealed, the jury would have been left
with the quite incorrect impression that, while all the Crown witnesses
were hardened criminals, the accused had an unblemished past. It
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cannot be the case that nothing short of this entirely misleading

situation is required to satisfy the accused’s right to a fair trial.
 Depriving the jury of information relevant to credibility creates a serious
risk the jury will be presented with a misleading picture.
 The best way to alleviate these risks is to give the jury all the information
and at the same time give them clear direction as to the limited use they
are to make of such information.
LA FOREST J, DISSENTING:-
 The prejudicial potential harboured by the admission at trial for murder
of a previous conviction for non-capital murder is manifestly profound.
The probative value of this item of evidence in relation to credibility is at
best trifling.
 Discretion cannot be exercised in a vacuum. It is only with reference to
the circumstances of the case that its exercise becomes meaningful. The
circumstances of the present case militate towards exclusion.
Conclusio Discretion ought to be read into section 12 to make it constitutional.

n
Notes Jury instructions permitting evidence to be used for one purpose while
prohibiting its use for some other purpose are known as “limiting instructions”.
Despite reasonable doubts about their effectiveness, limiting instructions are
routinely used in Canadian jury trials to address a variety of evidence problems.
R v Potvin
Example of discretion being read into s. 715.
Facts SCC had to deal with the admissibility of former testimony. The Crown called D
as a witness. Although D had testified at the preliminary inquiry, he refused to
testify at trial.
The transcript of D’s testimony was received into evidence at trial pursuant to
section 715 Criminal Code, and the accused was convicted. At the SCC, the Court
allowed the appeal and ordered a new trial.
Issues Was the testimony prejudicial or unfair?
Rule Evidence may be excluded if it is highly prejudicial to the accused and of only
modest probative value. Even evidence of high probative value could be
excluded if admission would render the trial unfair.
Analysis The statutory provision did not violate section 7 or section 11(d) of the Charter.
However, a trial judge has a discretion to exclude former testimony, even
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though the statutory conditions have been met. In this case, the trial judge
failed to exercise that discretion.
Discretion could be aimed at situations in which there has been unfairness in the
manner in which evidence was obtained OR the effect of the admission of
previously-taken evidence on the fairness of the trial. Evidence may be excluded
if it is highly prejudicial to the accused and of only modest probative value.
Conclusio Because the credibility of the witness in this case was critical, the jury had no
n opportunity to observe the witness’ demeanour and the TJ had failed to
consider this possible lack of fairness.
R v L (DO)
Example of discretion being read into s. 715.1.
Issues Are videotaped statements of young complainants in sexual assault cases

admissible pursuant to section 715.1 of the Criminal Code? Does section 715.1
accord with the POFJs?
Analysis Section 715.1 does not violate the Charter as there is discretion in the trial
judge. The incorporation of judicial discretion into the section, which permits a
trial judge to edit or refuse to admit videotaped evidence where its prejudicial
effect outweighs its probative value, ensures that section 715.1 is consistent
with the POFJs and a right to a fair trial is protected by sections 7 and 11(d) of
the Charter.
Balancing Probative Value and Prejudicial Effect

Probative Value – the significance that a trier of fact assigns to an item of evidence, the
strength of the inference it supports. It applies only once evidence has been admited. Probative
value is determined relative to:
o Reliability/strength of the evidence;
o Strength/extent of the inferences it leads to;
o Importance of fact in issue to those inferences related to.
Prejudicial Effect – the potential that the evidence will make a trial unfair. Includes:
o Fairness to parties and to witnesses;
o Misuse;
o Undue consumption of time;
o Confusion of the jury;
o Potentially distorting effect it could have on the outcome of the case;
o Inviting improper inferences;
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o Inflaming the jury;

o Confusing the issues.
There is a general discretion at common law for a trial judge to exclude evidence where the
probative value is outweighed by prejudicial effect. This discretion applies in both criminal and
civil trials.
In criminal trials, however, the discretion is exercised differently for the Crown as compared to
defence. Where the defence leads evidence, the discretion to exclude can be exercised only
on the basis that probative value is substantially outweighed by prejudicial effect. This rule
applies to positive defences to the alleged defense as well. In assessing the probative value of
defences, the judge is to take the defence evidence at its greatest strength.
R v Seaboyer
Rule Counterbalancing factors to exclude evidence:
 The danger that the facts offered may unduly arouse the jury’s emotions
of prejudice, hostility or sympathy (moral prejudice)
 The probability that the proof and the answering evidence that it
provokes may create a side issue that will unduly distract the jury from
the main issues (reasoning prejudice)
 The likelihood that the evidence offered and the counter proof will
consume an undue amount of time.
 The danger of unfair surprise to the opponent when, having no
reasonable ground to anticipate the development of the proof, he would
be unprepared to meet it.
Court’s statement in Wray, that the judge may exclude only “evidence gravely
prejudicial to the accused, the admissibility of which is tenuous, and whose
probative form in relation to the main issue before the court is trifling” is wrong.
Instead: admissibility will depend upon the probative effect of the evidence
balanced against the prejudice caused to the accused by its admission.
While it’s fine to have a flexible test for excluding evidence tendered by the
Crown, we only exclude evidence tendered by the accused where the
prejudice substantially outweighs the value of the evidence before a judge can
exclude evidence relevant to a defense allowed by law.
Analysis The right to innocence is an essential element of a system for the administration
of justice which is founded upon a belief in the dignity and worth of the human
person and on the rule of law.
The right of the innocent not to be convicted turns on the right to present full
answer and defense. If the evidentiary bricks needed to build a defence are
denied the accused, then for that accused the defence has been abrogated as
surely as it would be if the defence itself was held to be unavailable to him.
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A law which prevents the trier of fact from getting at the truth by excluding
relevant evidence in the absence of a clear ground of policy or law justifying the
exclusion runs afoul of our fundamental concepts of justice and what constitutes
a fair trial.
Evidence that is irrelevant to one issue may be relevant to another – but it may
mislead the trier of fact on the second issue. The law deals with this by giving
the TJ discretion to decide what to do with it.
Relevance isn’t always enough – is its value worth the costs?
R v Grant
Facts Murder charge. The killing was very similar to another which had occurred while
Grant was in custody. The defense argued that an unknown third party had
killed both victims.
Rule Not all relevant evidence is admissible. The TJ must balance the probative value
against the prejudicial effect.
The presumption of the accused’s innocence leads us to strike a different
balance where defence-led evidence is concerned. For the defence, the
prejudice must substantially outweigh the probative value of the evidence
before the judge can exclude.
Defenses
The air of reality test and the Seaboyer analysis remain two separate inquiries.
In order for the judge to put a defense to the jury, the accused must point to
evidence on the record that gives the defense an air of reality. Ask: is there
evidence that is reasonably capable of supporting the inferences required for
the defense to succeed?
When applying this test, the trial judge must take the evidence to be true and
must not assess credibility or make other findings of fact.
The Seaboyer Analysis
1. Assess probative value of evidence;
o Where the evidence relates to an unknown third party suspect,
probative value will depend in part on the strength of the
connection or nexus between two events.
o “The greater the similarity, complexity and distinctiveness of the
events, as well as the relative frequency of the event, the
stronger the case for admission.”
2. Assess prejudicial effects of evidence;
o Unknown or third-party evidence poses a particular risk of
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reasoning prejudice. Introducing evidence of other crimes that

are similar to the crime charged may risk “the distraction of
members of the jury from their proper focus on the charge itself
aggravated by the consumption of time.”
3. Assess the potential prejudicial effect in terms of risks posed to trial
integrity.
o If the potential prejudice does not substantially outweigh the
probative value, defense evidence is admissible.
o Where the connection between the evidence and a fact in issue
at trial is not obvious, the air of reality test may help a trial judge
in determining if evidence tends to prove a defense may become
available.
Analysis In accordance with Seaboyer, once the evidence has been found to be relevant,
unknown third party suspect evidence will be admited unless its prejudicial
effects substantially outweigh probative value.
Here, the evidence was very relevant. The same circumstances in each case. The
Court of Appeal was entitled to conclude that there was evidence upon which
the jury could find that the subsequent crime had occurred and, having regard
to those similarities, that it had been commited by the same person.
In light of the evidence that the accused could not have commited the other
offence, there was some evidence capable of giving the unknown third party
suspect defense an air of reality.
Conclusio Appeal dismissed, MBCA’s decision to order new trial upheld.

n
R v Hodgson
Rule The quality, weight or reliability of evidence is a mater for the jury. The
admission of evidence which may be unreliable does not per se render a trial
unfair.
Mitchell v Minister of National Revenue

Rule The rules of evidence are animated by broad, flexible principles, applied
purposively to promote truth-finding and fairness.
1. The evidence must be useful in the sense of tending to prove a fact
relevant to the issues in the case;
2. The evidence must be reasonably reliable; unreliable evidence may
hinder the search for truth more than help it;
3. Even useful and reasonably reliable evidence may be excluded in the
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discretion of the trial judge if its probative value is overshadowed by its

potential for prejudice.
R v Hart
Provides strong support for the view that judges are empowered to exclude evidence on the
ground that it is unreliable.
Facts The case turned on the admissibility of confessions obtained from a suspect
during an undercover Mr. Big operation.
Issues How do you determine whether the probative value of an item of evidence
outweighs its prejudicial effects?
Rule The role of the trial judge is simply to decide the threshold question of ‘whether
the evidence is worthy of being heard by the jury’ and not ‘the ultimate
question of whether the evidence should be accepted and acted upon.’
How to assess the value of the proposed evidence:
o Must do more than ask whether the evidence is logically relevant; it
necessitates some weighing of the evidence.
o Weighing exercise requirements will vary depending on the specific
inferences sought to be drawn from a piece of evidence.
o May consider the reliability of the evidence. Reliability concerns reach
not only the subject mater of evidence, but also the methodology used
by the proposed expert in arriving at his or her opinion, the expert’s
expertise and the extent to which the expert is shown to be impartial
and objective.
o Otherwise admissible hearsay evidence may be excluded on the basis
where its prejudicial effect outweighs its probative value.
o In conducting this weighing exercise, the trial judge is only deciding the
threshold question of “whether the evidence is worthy of being heard by
the jury” and not “the ultimate question of whether the evidence should
be accepted and acted upon.”
Analysis The probative value of the Mr. Big confessions derives from their reliability. A
confession provides powerful evidence of guilt, but only if it is true.
A confession of questionable reliability carries less probative force. In deciding
whether the probative value of a Mr. Big confession outweighs the prejudicial
effect of the character evidence that accompanies it, a trial judge must examine
its reliability.
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Professor Tanovich on Relevancy in Works of Art

In R v Williams, the Crown sought to use a rap artist’s violent lyrics as evidence in a murder trial.
The artist was accused of shooting his girlfriend. The lyrics described a murder.
Professor Tanovich opined that rap lyrics should only be constructed as probative in value where
there is a direct link between the crime being prosecuted. This is the approach Canadian courts
have taken with accused-authored poems, stories and other writings.
Using rap lyrics as evidence raises serious concerns about moral and reasoning prejudice.
“[U]sing rap lyrics as evidence… constitutes a pernicious tactic that plays upon and perpetuates
enduring stereotypes about the inherent criminality of young men of color; the lyrics must be
true because it ‘fits’ with what we ‘know’ about criminals, where they come from, and what
they look like.
R v Liard and Lasota
Rule The more similar the writings are to the actual murder, the stronger the
inference that the author was interested in the very activity that happened. The
more generalized the writings, the more they may only exhibit a “dark or
disturbed thought patern”, the less probative they are to issues of motive,
planning, and state of mind.
Character: The Basics at Play

Habit and Character
Habit is a specific denotation of someone’s regular response to a repeated situation. This is
circumstantial evidence from which we ask the trier of fact to infer that a person acted in a
similar fashion on the occasion being litigated. It involves an inference from conduct to conduct.
Evidence of habit may be very probative, particularly if the circumstances show invariable habit.
Character is a generalized description of someone’s disposition, or the disposition in respect of
a general trait such as honesty, temperance or passion. It involves an inference of an existence
of state of mind (disposition) from a person’s conduct on one or more previous occasions and a
further inference of conduct on the specific occasion based on the existence of that state of
mind.
Evidence of habit generally has greater probative value than evidence of character.
Habit
Belknap v Meakes
Facts M was on trial for a surgery he had performed. He couldn’t remember what he
had done before the operation. He stated he would have performed his “pre-
operative assessment” because it was a habit from which he did not waver.
Rule If a person can say of something he regularly does in his professional life that he
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invariably does it in a certain way, that surely is evidence and possibly

convincing evidence he did it on the day in question.
Habit can be admissible as a substitute for present recollection.
R v Watson
Issue What significance is there in the fact that the accused always carried a gun?
Rule Where a person’s conduct in given circumstances is in issue, evidence that the
person repeatedly acted in a certain way when those circumstances arose in the
past has been received as circumstantial evidence that the person acted in
conformity with past practice on the occasion in question.
A habit is a regular practice of responding to a particular kind of situation with a
specific type of conduct. Evidence of habit proceeds on the basis that repeated
conduct in a given situation is a reliable predictor of conduct in that situation.
Evidence of disposition is premised on the belief that a person’s disposition is a
reliable predictor of conduct in a given situation.
Devgan v College of Physicians & Surgeons (Ontario)

How many times must you do something before it becomes a habit?
Fact D was charged with professional misconduct in relation to three terminally ill
cancer patients. The Discipline Commitee concluded he charged exorbitant fees
and failed to fairly and accurately explain the likelihood of success.
D argued the Discipline Commitee erred in excluding evidence of what he told
other cancer patients about a cure as this was relevant to the issue of what he
told these three patients.
Issues Is evidence of what D told other cancer patients relevant and admissible?
Rule There must be enough instances to permit the finding of habit and provide a
helpful example to demonstrate how evidence of specific instances may result in
admissibility of evidence of routine conduct or exclusion at the discretion of the
Court.
Analysis Evidence of what D told his patients regularly is relevant. In the context of D
seeing four or five cancer patients a week over a number of years, the proffered
evidence that he did not mention a cure on 3 or 4 occasions which are not even
identified on a timeline does not amount to evidence of any habit or routine on
the part of D to never mention the possibility of a cure.
Even if this evidence could have been used to support his contention, it is so
limited in its probative value that it was proper to exclude it.
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Conclusio Proper to exclude the evidence.

n
R v B(L)
In considering whether the bad character exclusionary rule applies in criminal cases, what
maters is not whether the evidence can be characterized as habit but whether it is
discreditable.
Rule Where the Crown seeks to introduce evidence of the conduct of an accused
other than which forms the subject-mater of the charge, it is the adverse
reflection that this evidence may have on the accused’s character that signals
the need for further investigation.
If the conduct is sufficiently discreditable that it may prejudice the trier of fact
against the accused, the similar fact evidence rule applies and its probative
value must outweigh its prejudicial effect before it will be admited.
Character
Character evidence can be relevant in certain circumstances, including:
1. Where it is relevant to a material issue in the case, without the necessity of the trier of
fact inferring that the person acted in conformity with his or her previous conduct or
reputation on the occasion under review.
o Ex. Where a person is claiming self-defense and introduces evidence of the
victim’s past aggressiveness to support a genuine belief that the victim was
aggressive (as in Lavallee).
2. Occasionally, character of the person is itself a material point in the case – an operative
fact which dictates rights and liabilities.
o Ex. In an action for defamation in which justification (truth) is pleaded, the
plaintiff’s reputation or character is the determining manner.
R v Krugel
Rule Evidence of threats and spying by the accused on a former girlfriend was
admissible as character evidence of motive directly at issue where he was
charged with her murder.
R v W(L)
Facts Appellant appeals conviction for sexual assault. The evidence at issue related to
a history of domestic abuse in the relationship between the appellant and the
complainant and it had probative value regarding material issues in the
prosecution.
Issue Was the evidence admissible?
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Rule The Crown isn’t permited to lead with character evidence – but they can sneak
it in.
Character evidence may be admissible as animus, motive, context, or part of the
narrative.
Analysis The evidence was admissible as part of the narrative, as evidence of motive or
animus and it was relevant in assessing the complainant’s credibility, particularly
on questions concerning why she did not leave the relationship or disclose the
abuse earlier. Its probative value outweighed its prejudicial effect.
R v Johnson
Rule Evidence of an accused’s motive is relevant, as it can impact questions of
identity and intent. Where evidence of motive arises from discreditable conduct,
the evidence’s admissibility must be gauged – it’s not automatically admissible.
Evidence of past misconduct that is woven into a speculative theory of motive
does nothing more than bring in the bad character of the accused, and ought to
be excluded on the basis that its prejudicial value exceeds any small probative
value it might have.
On the other hand, evidence that provides the trier of fact with real insight into
the background and relationship between the accused and the victim, and
which genuinely helps to establish a bona fide theory of motive is highly
probative, even in the absence of similarity with the charged offence.
Analysis It is not sufficient to identify some past conflict between the accused and a
victim, and then speculate it establishes animus and therefore motive.
Evidence that provides the trier of fact with real insight into the background of
the relationship, and helps establish the relationship itself, is helpful.
R v Brissard
Facts Accused was charged with sexual assault of a 12-year-old girl. The trial judge
admited evidence that, on previous occasions, the accused had engaged in play
fighting with the victim, which involved him grinding his pelvis against her
butocks.
The Crown argued that the prior conduct evidence was used to illustrate the
accused’s state of mind and sexual interest in the complainant.
Issue Should the evidence of the accused’s prior conduct have been admited?
Rules Evidence of a mental state, or motive, may be relevant to prove the accused did
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the act constituting the offense or it may be relevant to prove his or her
intention or other mental state.
Evidence of motive may include evidence of relevant emotions or desires.
Courts have repeatedly held that motive evidence is admissible, even where it
tends to show bad conduct.
c o The prior conduct is relevant as it tends to establish that the accused

had a sexual animus towards the girl. It was proximate in time and
location to the assault, and it was aimed at the complainant.
o It was also relevant because it went to the credibility of the complainant
– it confirms her intention that he had an atraction towards her.
o The evidence is presumptively inadmissible because it casts the accused
in a disreputable light. But, its probative value outweighs the prejudicial
value and renders it admissible.
o The risk of prejudice was low in a judge-alone trial.
o The proximity in time and location, and the identity of the victim
enhance the probative value of this evidence.
o The TJ did not misuse the evidence – he did not use it to construe bad
character. Rather, he said evidence that the accused had an interest in
the 12 year-old girl made it more likely that he had acted on that
interest.
R v Clarke
Rule Trait theory holds some weight in the common law – consistent behavioural
tendencies are relevant.
Character in Civil Cases

AG v Radlof
Rule Generally speaking, the character of the plaintiff or defendant in a civil case is
not receivable for the purpose of proving that the litigant acted in conformity
therewith on the occasion under review.
In criminal cases, evidence of good character of the accused is admissible in
evidence, because there is a fair and just presumption that a person of good
character would not commit a crime. This assumption does not always apply in
the civil case – just because someone’s a good guy, doesn’t mean they won’t
breach a contract or shrug off civic duty.
Radwah v Evans
Facts Motor vehicle crash. Plaintiff moved to introduce evidence with respect to his
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general reputation in the community for honesty.
Analysis Except in restricted circumstances, where character is directly in issue, the law
holds that evidence of a litigant’s character is inadmissible. This is not a civil
assault or defamation case where the character of one of the parties for
peacefulness or violence or some other moral quality may be germane.
The evidence may be relevant, but it’s not probative – it’s not informative.
Good character evidence is of limited value here – no compelling inference
could be drawn from it that the plaintiff was not deliberately exaggerating his
injuries for money. Other rational explanations exist, apart from dishonesty, to
explain the shortcomings in the testimony (the plaintiff claimed memory loss).
Plester v Wawanesa Mutual Insurance Co

Facts Couple accused of arson of their own store when they tried to claim insurance.
Rule Though good character evidence is usually excluded, it may be admissible where
good character of a plaintiff may be put in issue by the defendant.
Moreover, evidence of good character is routinely admited in criminal cases –
since the defendant is alleging that the plaintiffs in these actions commited
criminal acts, they should be permited to call evidence of their character.
Character in Criminal Cases

Generally speaking, in the criminal setting the accused is entitled to lead evidence of his or her
own good character. However, the prosecution is not entitled to lead evidence of the accused’s
bad character. If the accused leads evidence that puts their character into question, the Crown
may respond with their own bad character evidence.
While relevant, the law excludes bad character evidence lest the trier of fact give it more
probative value than it warrants or be diverted from judging the action to judging the person.
R v Tarrant
Rule Evidence of good character is evidence which has a bearing on the improbability
of the accused committing the offence – it is also relevant to his credibility. The
evidence of good character may, along with all the other evidence, create or
result in the jury having a reasonable doubt.
R v Profit
Facts Accused convicted of sexual offenses involving his students. 22 character
witnesses testified on his behalf that he had a good reputation within the
community.
Issues Was the character evidence admissible?
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Rule Good character evidence is admissible in criminal trials, although it may be

rightly given minimal probative value depending on the charge.
Analysis The majority found that character evidence in this case dealt specifically with
the appellant’s behaviour with his students, and was thus admissible.
The dissent distinguished the relevance of good character in offences of
commercial dishonesty from offences of sexual misconduct. The Supreme Court
affirmed the dissent’s position, with caveats. They found that character
evidence is admissible regardless of the charge, but the trial judge may weight
it accordingly.
In sexual assault charges, where the offences often happen in secrecy,
character evidence may rightly be given minimal probative value.
Notes Good character is subject to the ‘substantially outweighed’ discretion rule for
excluding defence evidence.
R v Rowton
Rules If the prosecution were allowed to introduce bad character evidence, such
evidence should have the whole life of the prisoner ripped up and introduce
irrelevant bad things he had done many years ago.
The result would be that a man on his trial would be overwhelmed by prejudice
instead of being convicted on affirmative evidence.
AG v Hitchcock
Rules A party cannot be expected to defend the whole of the actions of his life.
R v Handy
Rules Evidence of misconduct beyond what is alleged in the indictment, which does no
more than blacken an accused’s behaviour is not admissible.
You can’t bring up other criminal acts by the accused that are unrelated to the
ones you’re talking about at trial.
Analysis Policy basis – inclusion of bad character evidence has great potential for
prejudice, distraction and time consumption.
These disadvantages will almost outweigh its probative value. It is excluded
notwithstanding the general rule that all relevant evidence is admissible.
It also undermines the objective of rehabilitation of offenders if past conduct
damns you for life.
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Notes There are a number of exceptions to the general rule that the prosecution
cannot lead evidence of bad character as disposition evidence. They include
where:
1. The accused puts his or her character in issue;
2. The evidence constitutes similar act evidence (Handy);
3. The accused leads propensity evidence to suggest that a third party
commited the offence (R v Parsons)
R v Shrimpton
Rules If, either by calling witnesses on his part, or by cross-examination of the
witnesses for the Crown, the prisoner relies upon his good character, it is lawful
for the prosecutor to give the previous conviction in evidence.
R v McFadden
Facts Accused was charged with first degree murder of a woman who died from
sexual assault. Accused stated “I have the most beautiful wife in the world. I
worship the ground that girl walks on” to stave off accusations.
The BCCA held the accused had thereby placed his sexual morality in issue
because he meant to convey he would not get sexually involved with any other
women.
Rule The purpose of evidence of good character is to show the accused is a person
who is not likely to have commited the act with which he is charged, and also to
enhance his credibility.
An accused may adduce evidence of good character by:
1. Calling witnesses;
2. Cross-examining Crown witnesses on the subject; or
3. Giving testimony.
The Crown may call evidence of bad character to rebut the good character
evidence, but such evidence can only relate to general reputation.
R v McNamara
Facts Companies and individuals were accused of conspiracy to defraud by agreeing
on who would make a successful bid.
Rule An accused does not put his character in issue by denying his guilt and
repudiating the allegations against him.
An accused is not entitled, however, under the guise of repudiating the
allegations against him, to assert expressly or impliedly that he would not have
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done the things alleged against him because he is a person of good character; if
he does, he puts his character into issue.
R v Shortreed
Rule An accused does not put his character in issue by denying his guilt and
repudiating the allegations against him; neither do introductory routine
questions about education, marital status, religious affiliation have the effect of
rendering the accused’s character relevant.
R v P(NA)
Facts Accused charged with offences of violence against his wife and daughter.
Analysis The accused must be able to repudiate the charges by presenting his or her
version of that context without suffering the disadvantage of putting character
into issue.
For example, where the Crown is allowed to lead evidence to demonstrate that
an accused was a controlling and dominating spouse in order to give context to
the allegations, the accused has not put his character in issue when he describes
himself as a loving and caring spouse.
A review of the Crown’s evidence demonstrates that a large part of the Crown’s
case consisted of a detailed description of the relationship between MP and the
respondent. He was entitled to give his version of that relationship during his
examination-in-chief without putting his character in issue.
R v A(WA)
Facts Accused was charged with sexually assaulting his stepdaughter. The step-
daughter’s cross-examination atacked her character and truthfulness.
Issues Did the accused put his character in issue through answers given by his wife in
cross-examination?
Rule When dealing with defence witnesses it is only through their examination-in-
chief that an accused’s character may be put in issue.
Analysis The evidence brought out during the cross-examination of the wife is not
character evidence introduced by or on behalf of the accused. It deals with
specific incidents involving the accused and members of his household during
the period relevant to the indictment.
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Similar Fact Evidence

The rules of similar fact evidence form one narrow exception to the general rules on character.
With similar fact evidence, the Crown can go on the offensive and adduce disposition evidence,
regardless of whether or not the accused puts their character in issue, or even testifies.
Previous misconduct of the accused which is similar to the activity he is charged with is
relevant, but prima facie inadmissible for fear that the accused will be prejudiced by its
reception. If probative value outweighs prejudicial effect, then similar fact evidence can get in.
Prejudice in this context does not mean that the evidence might increase the chances of
conviction but rather that the evidence may be improperly used by the trier of fact. The trier
who learns of the accused’s previous misconduct may then view the accused as a bad person,
regardless of his or her actual guilt on the issues at hand. In other words, the evidence may
make the jury less critical of the evidence before them.
If the similar fact evidence is not tenuous in nature, if it has sufficient relevance, and if it has
genuine probative worth when taken together with the other evidence, and is not then
outweighed with considerations of prejudice, the reason for the canon of exclusion disappears.
Bill Cosby Example
Prosecutors wanted to adduce evidence of 19 women who also said they had been assaulted by
Cosby. What was the probative value of this evidence?
1. The strength of evidence the actual outside similar act occurred – For example, a killing
occurred where the victim had a beetle under their tongue. Two weeks before, another
killing occurred where the victim had a beetle under their tongue.
2. The connection between the accused and the similar act – Was the accused connected
to the previous killing, or was this killing by a copycat?
3. The extent to which the matters in the similar act tend to prove an issue in the
proceedings – The materiality of the evidence. Can it go to intent, identity? If it just goes
to credibility on the stand (i.e., because this guy killed others before, he probably killed
this person) it won’t be a solid link.
Balanced against prejudicial effect, the similar fact evidence may or may not pass muster.
Makin v Attorney-General for New South Wales
Similar facts cannot be adduced for disposition, but can be admissible for other purposes (to
rebut a defence, to identify, etc.)
Rule The prosecution cannot adduce evidence that tends to show the accused has
been guilty of acts not covered by the indictment, for the purpose of leading to
the conclusion that the accused is a person likely from his criminal conduct or
character to have committed the offence for which he is being tried.
However, the mere fact that evidence adduced tends to show the commission of
other crimes does not render it inadmissible if it is relevant to an issue before
the jury. It may be relevant if it bears upon the question whether the acts
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alleged the constitute the crime charged in the indictment were designed or
accidental, or to rebut a defence which would otherwise be open to the
accused.
R v Boardman
Facts Accused was convicted of buggery and incitement to commit buggery. The
victims, pupils at the accused’s school, testified concerning the particular acts
commited on each, and the trial judge ruled that the evidence of each could be
taken as corrobative of the other as the acts were similar.
Issue Was the evidence that the man was homosexual admissible even though it
tends to show the accused has been guilty of criminal acts other than those
charged?
Rule The admission of similar fact evidence is exceptional and requires a strong
degree of probative force. This force will be derived from the circumstance that
the facts testified to by several witnesses bear to each other such a striking
similarity that they must, when judged by experience and common sense,
either all be true, or have arisen from a cause common to the witnesses or from
pure coincidence.
The question must always be whether the similar fact evidence, taken together
with all the other evidence would do no more than raise or strengthen a
suspicion that the accused committed the offence with which he is charged or
would point so strongly to his guilt that only an ultra-cautious jury, if they had
accepted it as true, would acquit in the face of it.
This is because jurors may take similar-fact evidence to be more relevant than
it actually is, so its prejudicial effect may outweigh its probative value.
R v Millar
Facts Accused faces charges for manslaughter of his 9-week old son. He had allegedly
shaken the baby using more force than necessary to assist the infant in choking,
or he had shaken the baby in anger.
The defense argued that accused had shaken the baby because it had stopped
breathing. The Crown adduced evidence of a number of other injuries including
fractures to the infant’s ribs. These injuries had occurred some weeks before.
Issues Can the previous injuries be adduced?
Rule Similar facts must be relevant, and the probative value must outweigh potential
prejudicial effect.
Analysis There was not enough evidence to connect the accused to the previous injuries.
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The infant had two parents. There was no reasonable basis to conclude it was
the father, and not them other, who was responsible for the baby’s injuries.
However, the mother gave evidence that she was not aware of the infant’s
injuries. This evidence was accepted by the jury, leaving an evidentiary basis
which could reasonably support a finding that the appellant had caused the
other injuries.
Conclusio The Crown was entitled to rely on all of the evidence on the record. The appeal
n was dismissed.
R v B(CR)
Affirms the Boardman principled approach – evidence of propensity, while generally
inadmissible, may be exceptionally admited where the probative value of the evidence in
relation to an issue in question is so high that it displaces heavy prejudice which will inevitably
inure to the accused, where evidence of prior immoral or illegal acts is presented to the jury.
Facts Accused was charged with sexual offences against his natural daughter. The
daughter testified she was sexually abused from age 11 onward for two years.
The Crown sought to adduce evidence that the accused had had sexual relations
in 1975 with a 15-year-old girl, the daughter of his common law wife.
Issues Was this similar fact evidence admissible?
Rule Evidence of mere propensity is inadmissible. Such evidence, to be admissible,

must have high probative value in relation to its potential prejudice.
The admissibility of similar fact evidence is not based on prescribed category,
but on relevance. It is dependent on the evidence bearing a very high degree of
probative value – sufficient to outweigh the inherent prejudice likely to flow
from its reception.
The judge must consider such factors as:
1. The degree of distinctiveness and uniqueness as to the similar fact
evidence and the offence alleged;
2. The connection of the evidence to issues other than propensity.
A high degree of deference will be shown to the trial judge, who is charged with
the delicate process of balancing the probative value of the evidence against its
prejudicial effect.
Analysis McLachlin J held that similar fact evidence must be considered for its relevance
and not the purpose for which it is adduced. The problem with similar fact
evidence is that it encourages finding guilt from propensity, rather than the
facts.
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The evidence here obviously has a huge prejudicial effect – however, it is highly
similar – both young girls, in a father-daughter relationship, in a similar place. In
this case, she was not prepared to interfere with the TJ’s discretion.
Sopinka dissents, arguing that evidence that the accused has a propensity to
molest children or his or her own children is never admissible solely for the
purpose of showing he molested a child in this circumstance. To have probative
value, the evidence must be susceptible of an inference relevant to the issues in
the case other than the inference that the accused commited the offence just
because he or she has a disposition to the type of conduct charged.
The principle reason for the exclusionary rule is the natural human habit of
judging someone’s action on the basis of their character. The stronger the
evidence of propensity, the more likely it is the forbidden inference will be
drawn, and therefore, the greater the prejudice.
Here we have only two instances, separated by considerable passage of time.
Sopinka found the evidence was too different.
Conclusio Admit evidence, affirm conviction.

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R v Arp
Similar fact evidence when identity is at issue.
Facts Two similar murders 2 ½ years apart. The accused was tried for both murders.
The Crown wanted to use evidence of each offence as similar fact evidence for
the other.
The trial judge charged the jury that if they concluded the same person likely
commited both murders, they could use the evidence on each offence to
decide the accused’s guilt on both.
Issues Was this instruction correct?
Rule Where identity is at issue in a criminal case, and the accused is shown to have
commited acts that bear striking similarity to the alleged crime, the jury is not
asked to infer from the accused’s habits or disposition that he is the type of
person who would commit the crime.
Instead, the jury is asked to infer from the degree of distinctiveness or
uniqueness between the crime and the similar act that the accused is the very
person who commited the crime.
This inference is only possible if the degree of similarity between the acts is so
high it renders coincidence objectively improbable.
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Inquiry to Admit Evidence

1. Is it relevant?
2. Does its probative value outweigh its prejudicial effect?
o Where similar fact evidence is adduced on the issue of identity,
there must be striking similarity between the similar facts and
the facts charged.
 Striking similarity – a unique trademark or signature, or
a number of smaller yet still significant similarities.
o Judge should only consider the manner in which the acts were
commited and not the evidence as to the accused’s
involvement in each act.
o If there is such a degree of similarity between the acts that it is
likely that they were commited by the same person, then the
similar fact evidence will ordinarily have sufficient probative
force to outweigh its prejudicial effect and may be admited. It is
not necessary to conclude that the similar acts were likely
committed by the accused to admit the evidence.
3. A link between the accused and the alleged similar acts is a precondition
to admissibility (Sweitzer).
4. Once the evidence is admited, the jury is to determine on a balance of
probabilities whether the same person commited the offences, unless
this would be a determination of guilt, in which case the standard is
BARD.
Note that where similar act evidence is admited to prove identity in a multi-
count indictment, the jury must be warned “that they are not to use the
evidence on one count to infer that the accused is a person whose character or
disposition is such that he or she is likely to have commited the offence or
offences charged in the other count or counts.”
R v Handy
There is no special rule regarding similar fact evidence in sexual assault contexts.
Facts Sexual assault charge, defense was consent. Complainant claimed she had
consented to vaginal sex, but Handy forced violent anal sex. The Crown wanted
Handy’s ex-wife to testify to him inflicting pain during sex.
Issue When can similar facts be admited to show bad character without the accused
putting character into issue?
Rule Evidence of misconduct beyond what is alleged in the indictment which does no
more than blacken the accused’s character is inadmissible. However, as similar
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facts become more focused and specific to the circumstances similar to the
charge, the probative value of propensity, thus circumscribed, becomes more
cogent.
Handy test for similar facts:
1. Similar fact evidence is presumptively inadmissible. The onus is on the
Crown to show that probative value outweighs prejudicial effect.
2. Identify the issue in question. Must evaluate the probative value in light
of the purpose for proffering evidence. The relative importance of the
issue may be relevant to weighing admissibility. The issue must not be
broadly framed – “credibility” is too broad.
3. Identify the required degree of similarity. The principle driver of
probative value is connectedness between the similar facts and the
offence alleged. The required degree of similarity is tied to the issue in
question – identity requires a striking similarity. If you are looking to
show animus of the accused towards the deceased, a prior atack – even
of a different type – would be compelling.
4. Identify the connecting factors. Are there similarities in character?
Proximity in time? Frequency of occurrence? “Calling cards?” Cogency
increases as the fact situation becomes more specific.
5. Differentiate admissible from inadmissible propensity evidence.
o Admissible – specific propensity, like repeated conduct in a
particular and highly specific type of situation (behaviour
“hallmarks”).
o Inadmissible – general propensity, i.e. a violent disposition.
6. Similar fact evidence need not be conclusive of guilt.
Analysis Probative Value Analysis

1. Is there a possibility of collusion? Where there is at least an air of reality
to collusion, the Crown must satisfy the trial judge on a BOP that the
evidence of similar facts isn’t tainted by collusion.
2. The issue in question must be narrowly construed by the Crown to avoid
creating too broad a gateway for similar fact evidence to be admited.
Credibility is too broad, but establishing actus reus is fine. Here, the
issue is the consent component, and in relation to that, the accused’s
alleged propensity to refuse to take no for an answer.
3. How similar are the facts charged to the similar facts?
o Proximity in time – Similar facts are more cogent where there is
repetition over many years and a recent manifestation just a few
months before the offence charged.
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o Extent of similarity – Not every dissimilarity is fatal, but many

substantial dissimilarities dilute probative value and increase
prejudice.
o Number of occurrences of similar acts – More acts means a
greater patern, which leads to greater probative value.
o Circumstances surrounding or related to similar acts – If the
actions are commited in different contexts (a one-night stand
versus a dysfunctional marriage) there is less value than if it is in
the same context.
o Distinctive unifying features – in this case, these were run-of-
the-mill sex acts. Not distinctive.
o Intervening events – were there intervening events between
the similar facts and the facts charged which undermine the
probative value of the similar facts?
4. Strength of the evidence that the similar acts actually occurred
(reasonably capable of belief). Is there evidence that the similar acts
actually occurred? Although a TJ is just deciding whether to admit similar
facts to the trier of fact, they must engage in some weighing to
determine the likelihood that the similar acts actually did occur.
Prejudicial Effect Analysis
1. Moral prejudice – Will the evidence make the trier of fact convict the
accused for being a bad person? Look to whether the similar facts will
inflame the trier of fact, the moral reprehensibility of the similar fact
versus the facts charged.
2. Reasoning prejudice – Will the trier of fact be distracted from focusing
on the charge itself, either in terms of revulsion detracting from
dispassionate analysis, or in terms of wasting too much time on
uncharged facts?
Final Balance
Weigh the probative value with the prejudicial effect, remembering that similar
fact evidence is presumptively inadmissible and the Crown bears the onus of
establishing that the probative value outweighs prejudice on a BOP.
Conclusio Evidence excluded and new trial ordered.

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R v Blake
Rule “Credibility” is too broad – if the “issue” is the complainant’s credibility, then
practically anything that “blackens the character of the accused” tends to
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enhance complainant credibility.
R v Titmus
This case is kind of radical. When in doubt, stick to Handy.
Rule In some cases, credibility is inextricably tied to the actus reus. Where that
occurs, the issues in question may rightly be credibility.
Where it is the conduct element of the actus reus and not the accused’s identity
that is in issue, “similar fact evidence may be admited to prove that the accused
commited the offence or offences in question”.
Where identity is not in issue, the credibility of a complainant is an issue in
which similar fact evidence might be received.
R v Shearing
Facts Cult leader charged with numerous sexual assaults, including of complainants
living in same group home
Rule There must be something more than mere opportunity for collusion or
collaboration to trigger the Handy rule on collusion
In weighing up of probative value versus prejudice, a good deal of deference is
paid to the view of the trial judge.
Analysis Theory of similar fact evidence is based largely on improbability of coincidence –

alternative explanations like coincidence and guilt – i.e. collusion – destroys
basis of similar fact evidence. In Handy, there was the ‘whiff of profit’ which
triggered the judge’s gatekeeper function. In this case, there was simply contact
and communication between the victims as expected when they live together.
In this case, the trial judge had discretion whether to leave the issue of collusion
to the jury or not. The issue was left along with a warning, which was not a
problem.
R v Petterfly
Rule Evidence by several witnesses as to acts of prior physical abuse by a husband to
his common law wife were held to have been properly admited in a murder
case to show a violent and threatening attitude, a motive of anger at the
deceased’s taunting and disobedience and the type of relationship.
However, the Court confirmed that this was only so because the trial judge had
properly warned the jury that they could not conclude from the bad character
evidence that he was the sort of person likely to have commited the murder.
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R v B(C)
Rule New trial was ordered for an improper warning. Grandfather accused of sexual
assault of daughter and granddaughter. Although the judge warned the jury not
to use the evidence of a prior sexual conduct with other daughters to show the
accused was a bad character such charged, there had not been a direction as to
the distinction between general and specific propensity.
R v B(M)
Rule Court ordered a new trial respecting charges of sexual offences against three
children on the basis that where multiple children make simultaneous
disclosures of sexual abuse the jury must be warned of the possibility of
innocent collusion.
Character of the Victim – Non-Sexual Assault

In Scopeletti, the accused claimed self-defence. Following Scopeletti, in a self-defence case, the
accused may adduce evidence of violent conduct by the victim to show a violent disposition,
regardless of whether or not the accused actually knew of the victim’s violent disposition at the
time.
The Scopeletti defence is used primarily to ask the trier of fact to draw an inference from the
prior violent conduct that the victim was indeed acting violently during the incident in question.
The Crown is permited to rebut the defence evidence by showing the victim’s peaceful
disposition.
R v Scopelliti
Rule Accused was charged with two counts of murder and alleged self-defense. The
TJ allowed the defense to introduce evidence of three prior acts of violence by
the deceased, not known by the accused.
The ONCA, without presenting authority on the issue, held that while the law
precluded character evidence concerning the accused, this was ok. They held
that the Crown would be entitled to rebut the defence evidence by character
evidence showing the deceased to be of a peaceable disposition.
Character of the Victim: Rape Shield Laws

According to Susan Estrich, the evolution of rape laws leaves victim credibility as the “only game
in town.” Rape shield provisions are the rules of the game.
Historically, the common law allowed evidence of the complainant’s character or reputation and
sexual history with the accused. This evidence was relevant to the material issue of consent and
credibility. Evidence of the complainant’s sexual history with others was relevant only to
credibility.
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R v Krausz (English Court of Appeal)

Rule It is setled law that the defense may cross-examine the complainant on the
complainant’s:
1. General reputation and moral character;
2. Sexual intercourse between herself and the defendant on other
occasions, and;
3. Sexual intercourse between herself and other men.
Evidence could be called to contradict her on (1) and (2) but no evidence could
be called to contradict her denials of (3).
In 2016, the starting point is not the case law, but the Criminal Code, section 276(1). Evidence of
a complainant’s sexual history is absolutely inadmissible if it adduced to support the inference
that:
1. The complainant is more likely to have consented to the act, or;
2. Is less worthy of belief by virtue of the sexual conduct.
This rape shield provision is not a total blanket exclusion on sexual conduct evidence – it only
applies where the evidence is adduced for the above purpose.
Where sexual conduct evidence is not adduced for these twin myths, it may come in if it meets
the requirements of section 276(2):
1. It must be evidence of a specific incident;
2. It must be relevant to an issue at trial; and
3. It must have significant probative value not outweighed by prejudice.
The question of whether sexual conduct evidence will be admissible is determined in voir dire
(section 276.1(4)) where the complainant is not compellable (section 276.2(1)).
R v Seaboyer
A challenge to the old section 276 and 277 that resulted in the current provisions.
Facts Accused charged with sexual assault. They argued that sections 276 & 277 of the
Criminal Code were unconstitutional as the sections deprived them of the ability
to introduce relevant evidence.
The defense sought to cross-examine the complainant with respect to their
previous sexual conduct.
Issues Are sections 276 and 277 unconstitutional?
Rules A provision which rules out probative defence evidence which is not clearly
outweighed by the prejudice it may cause to the trial strikes the wrong balance
between the rights of the complainant and accused.
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Instead of a general prohibition, the trial judge must:

1. Assess with a high degree of sensitivity whether the evidence proffered
by the defense meets the test of demonstrating a degree of relevance
which outweighs the damages and disadvantages presented by the
admission of such evidence.
2. Take special care that, in the exceptional case where circumstances
demand that such evidence be permited, that the jury is fully and
properly instructed as to its appropriate use.
Illustrative Examples of Admissible Evidence Relating to Prior Sexual History
o Evidence of specific instances of sexual conduct to prove that a person
other than the accused caused the physical consequences of the rape
alleged by the prosecution;
o Evidence of sexual conduct tending to prove bias or motive to fabricate
on the part of the complainant;
o Evidence of prior sexual conduct tending to prove that the accused
believed that the complainant was consenting to the act charged;
o Evidence of prior sexual conduct which meets the requirements for the
reception of similar fact evidence;
o Evidence tending to rebut proof introduced by the prosecution regarding
the complainant’s sexual conduct.
Analysis Section 277 excludes evidence of sexual reputation for the purpose of
challenging or supporting the credibility of the plaintiff – that’s fine. There is no
logical or practical link between a woman’s sexual reputation and whether she is
a truthful witness. Section 277 is valid.
Section 276 violates the Charter. Its effects go beyond the aim of preventing
outdated and sexist views being used in the trial. Instead of conditioning
exclusion of use of the evidence for an illegitimate purpose, it is a blanket
exclusion.
Though evidence relating to consent to sexual activity on other occasions may
prejudice the jury, some of this evidence will be relevant in the interests of a fair
trial – for example, it may serve as a basis for the defense of mistaken but
honest belief. It may be relevant to atack the complainant’s credibility on the
ground that the complainant was biased or had motive to fabricate the
evidence. It may be relevant to explain the physical conditions on which the
Crown relies to establish intercourse or use of force, which may go to consent.
Section 276 is overbroad.
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Conclusio The case was followed by public outcry, leading to Bill C-49 which introduces the
n new rape shield laws.
Criminal Code, Sections 276 & 277

276(1) In proceedings in respect of an offence under section [sexual assault provisions],
evidence that the complainant has engaged in sexual activity, whether with the
accused or with any other person, is not admissible to support an inference
that, by reason of the sexual nature of that activity, the complainant
(a) Is more likely to have consented to the sexual activity that forms the
subject-mater of the charge; or
(b) Is less worthy of belief.
276(2) In proceedings in respect of an offence referred to in subsection (1), no evidence

shall be adduced by or on behalf of the accused that the complainant has
engaged in sexual activity other than the sexual activity that forms the subject-
matter of the charge, whether with the accused or with any other person,
unless the judge, provincial court judge or justice determines, in accordance
with the procedures set out in sections 276.1 and 276.2, that the evidence
(a) Is of specific instances of sexual activity;
(b) Is relevant to an issue at trial; and
(c) Has significant probative value that is not substantially outweighed by
the danger of prejudice to the proper administration of justice.
276(3) In determining whether evidence is admissible under subsection (2), the judge,
provincial court judge, or justice shall take into account
(a) The interests of justice, including the right of the accused to make full
answer and defense;
(b) Society’s interest in encouraging the reporting of sexual assault offences;
(c) Whether there is a reasonable prospect that the evidence will assist in
arriving at a just determination of the case;
(d) The need to remove from the fact-finding process any discriminatory
belief or bias;
(e) The risk that the evidence may unduly arouse sentiments of prejudice,
sympathy or hostility in the jury;
(f) The right of the complainant’s personal dignity and right of privacy;
(g) The right of the complainant and of every individual to personal security
and to the full protection and benefit of the law; and
(h) Any other factor that the judge, provincial court judge or justice
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considers relevant.
277 In proceedings in respect of an offence under [sexual assault provisions],

evidence of sexual reputation, whether general or specific, is not admissible for
the purpose of challenging or supporting the credibility of the complainant.
R v Seaboyer
Facts It is setled law that the defense may cross-examine the complainant on the
complainant’s:
1. General reputation and moral character;
2. Sexual intercourse between herself and the defendant on other
occasions, and;
3. Sexual intercourse between herself and other men.
Evidence could be called to contradict her on (1) and (2) but no evidence could
be called to contradict her denials of (3).
R v Crosby
Facts Sexual assault charge. In original police statement, the complainant admited to
having consensual sex with the accused three days before the alleged assault.
The complainant also admited visiting the accused on the day of the assault
with the intention of having sex again. At the preliminary inquiry, the
complainant denied having this intention.
Issues Does section 276 prevent cross-examination on the prior sexual activity?
Rule Evidence and cross-examination of prior sexual conduct is permited where it

goes to a material inconsistency in the complainant’s testimony.
Material inconsistencies in prior statements by the complainant are relevant to
credibility.
Analysis There is a discretion with section 276 to allow for certain types of evidence. The
section cannot be interpreted so as to deprive a person of a fair defense.
However, the defense cannot adduce evidence to support an inference that,
because the complainant slept with Crosby before, she was more likely to have
consented on this occasion. They can use this evidence to suggest she is less
credible because of a material inconsistency in her testimony.
Conclusio Section 276 can be read to prohibit general stereotypical inferences.

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R v Darrach
Facts Accused atempted unsuccessfully to introduce evidence of the complainant’s
sexual history. Accused challenged the constitutionality of section 276 under
section 7 and 11(d), particularly that evidence sexual history must have
“significant probative value.”
Issue Is section 276 constitutional?
Rule Section 276 prohibits certain types of evidence only when it is adduced to
support the twin myths. The requirement that sexual history have significant
probative value when not adduced for the twin myths is constitutional.
If evidence is proffered for its non-sexual features, such as to show a patern of
conduct or a prior inconsistent statement, it may be permited.
Analysis The accused has a right to a fair trial, but not to the most favourable procedures
imaginable, nor to procedures that would distort the truth-seeking function of a
trial. The twin myths are prohibited because they are absolutely irrelevant and
prejudicial to the truth-seeking function of a trial, but there is no blanket
prohibition on sexual history evidence.
This type of evidence, when adduced for valid purposes, triggers the section
276(2) and (3) requirements, including a need for significant probative value.
Significant is a raised bar, special to sexual assault. It is intentionally designed to
exclude evidence of ‘trifling’ relevance, but it is constitutionally protected by
having the counterbalance of requiring prejudicial effect to substantially
outweigh the probative value before it is excluded.
R v Temertzoglou
Facts Accused was charged with sexual assault after spending a night in the hotel
room with the complainant.
His defense counsel brought an application under section 276 of the Criminal
Code to adduce evidence of the complainant’s prior consensual activity with the
accused. The accused said he had met three times with the complainant and
they had engaged in sexual touching. She said she was allergic to condoms, so
he brought lambskin condoms to the hotel.
The judge granted the defence an in camera hearing pursuant to section 276.2.
On the hearing, the defence called the viva voce evidence of the accused and a
detective who gave evidence about statements made to him by C which
appeared inconsistent with her videotaped statement to the police and her
testimony at the preliminary inquiry.
Issues Was the evidence admissible?
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Rules Evidence of prior sexual conduct may be admited to provide context for an
incident, but it must still meet the requirements of section 276(2).
The twin myths are that:
1. Because of prior sexual activity, the complainant is more likely to have
consented to the sexual activity that forms the subject mater of the
charge; or
2. Because of prior sexual activity, the complainant is less worthy of belief.
Cross-examination for the purposes of showing consent or impugning
credibility that relies on the twin myths will always be more prejudicial than
probative.
Significant in the context of section 276(2)(c) means the evidence is not to be so
trifling as to be incapable, in the context of all the evidence, of raising a
reasonable doubt – but it is not necessary for the defence to demonstrate
strong and compelling reasons for the admission of evidence.
Analysis Without the context (the sexual history and discussions), the jury would see only
a 40-year-old man, armed with a condom, going into a motel with a teenage girl.
Any explanation by the accused, in the absence of ‘context’, would seem
absolutely improbable.
As long as it meets the section 276(2) requirement that it is a specific incident, is
relevant to an issue at trial, and has significant probative value not outweighed
by prejudice, it may come in.
Conclusio Evidence admissible.

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R v S(LR)
Rule Post-charge sexual conduct between parties is admissible to assess credibility in
relation to the specific events charged but not to support the inference that by
reason of the sexual nature of the later incident, she was more likely to have
consented or was less likely of belief.
Rape Shield Laws cont’d

R v LS
Facts Accused and complainant were in a spousal relationship from 2007 – 2012. The
relationship broke down in 2012, and the wife reported that the accused had
assaulted her physically and sexually.
The accused led evidence that the sexual relationship continued between him
and the wife after the alleged sexual assault.
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Issue Should the trial judge have permited the evidence?
Rule Application of section 276.
Analysis The defense wanted to use this evidence to encourage the inference that before
and after the relationship, consensual sex occurred.
1. When does section 276 apply?
Section 276(1) and (2) creates an evidentiary filter to separate evidence of
other sexual activity which is germane to an accused’s ability to make full
answer and defense, from evidence of other sexual activity that will prejudice
proper conduct of the trial. Evidence of other sexual activity within a
relationship carries the potential to distort the trial process and unfairly
disparage the complainant. Specific or general, the purpose driving section
276(1) and (2) is best served by subjecting all evidence of other sexual activity
to the exclusionary rule in section 276(1) and the test for admissibility in
section 276(2).
2. Was the relationship evidence admissible?
(1) The evidence must refer to “specific instances of sexual activity.” This
helps ensure that the nature of the proposed evidence is properly
identified so we can apply section 276(2). The degree of specificity
required to meet section 276(2)(a) depends to a large extent on the
nature of the sexual activity that the accused seeks to adduce.
If the accused wants to adduce evidence of a general nature, describing
the relationship between himself and the complainant, the specificity
requirement speaks to factors relevant to identifying the relationship
and its nature and not to details of specific sexual encounters. Insofar as
relationship evidence is concerned, the required specifics would include
reference to the parties to the relationship, the relevant time period
and the nature of the relationship.
The appellant gave notice he sought to introduce evidence of sexual
activity before and after the assault – it was specific. He adequately
identified the sexual activity in respect of which he wished to adduce
evidence.
(2) The evidence of other sexual activity must be “relevant to an issue at
trial”.
Evidence that the relationship between the complainant and the accused
continued after the assault was relevant to whether the assault
occurred. The defence could argue that evidence that the sexual
component of the relationship carried on as before supports the
contention that nothing happened.
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Obviously the fact that they continued to have a sexual relationship does
not preclude the possibility that an assault happened, but evidence does
not have to establish or refute a fact in issue to be relevant; it need
only as a matter of common sense and human experience, have some
tendency to make the existence or non-existence of that material fact
more or less likely.
(3) The accused must demonstrate that the evidence has “significant
probative value” and that the probative value “is not substantially
outweighed by the danger of prejudice to the proper administration of
justice.”
Evidence has significant probative value when it has more than “trifling
relevance” and is capable in the context of all of the evidence of leaving
the jury with a reasonable doubt. Evidence that a consensual
relationship carried on between the complainant and the accused before
and after the assault had probative value in which it was more than
trifling. The jury could reasonably, by considering and comparing the
nature of the relationship between the two before and after the alleged
assault, be assisted in deciding whether the assault happened.
There is no risk of prejudice as the jury already knew they shared the
same bed. The jury can put two and two together.
Conclusio Improper to exclude the evidence. It did not keep anything of substance from
n the jury, but it did assist the accused in the sense that the jury did not hear the
limiting instruction it would have heard had the evidence been admited under
section 276(2) as it should have been.
R v Ghomesi
Facts Ghomesi was acquited in Canada based on the inconsistencies in the testimony
of witnesses. The trial judge also put some weight on the complainant’s after-
the-assault conduct, which he described as “out of harmony with assaultive
behaviour.” This is acceptable in Canadian law, but poses some risks.
R v ARJD
Facts The trial judge acquited the accused of sexual offenses against his teenage
stepdaughter because there was no evidence that the complainant avoided the
accused.
Analysis The SCC held the TJ erred in law when he judged his complainant’s credibility
based solely on the correspondence between her behaviour and the expected
behaviour of the stereotypical victim of sexual assault.
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Michelle Anderson, “Time to Reform Rape Shield Laws” (2004)

Defense lawyers get prejudicial evidence of past sexual history admited through a number of
‘holes’ in rape shield legislation:
1. They say it is similar fact evidence – The evidence shows a patern of consensual
behaviour. She consented to a lot of sex before, this was sex, therefore she consented
this time again.
2. She was less than forthcoming about her sexual past and so is less credible as a witness –
the atempt to conceal her sexual history shows she is not credible.
3. The evidence is necessary to give the jury context since they will not properly understand
this unusual situation without it.
4. The past sexual history goes to the semen or injury and whether it was the defendant’s.
5. The complainant had sexual conduct with the defendant before, in the same incident or
previously – many people believe that rape by prior intimates is less injurious.
6. Mental health evidence should be admitted to show the possibility of fabrication –
Legalized fishing expedition meant to deter people from coming forward to the police.
R v Barton
Facts B was charged with the murder of C, a native prostitute. She died from an injury
sustained during sexual activity with the accused.
The Crown alleged that the accused had intentionally inflicted the fatal injury, or
alternatively that the force that caused the injury was applied without consent.
The defense contended that the injury was caused accidentally in the course of
consensual sexual activity.
During the trial, C was referred to repeatedly as a “native prostitute” and
evidence of an instance of sexual activity between B and C the night before was
admited without any proceedings under section 276 of the Code.
Issue Was it relevant that C was a native prostitute?
Rule It is open for an accused to apply to introduce evidence of a complainant’s

prostitution – this is so notwithstanding H-D’s statement in Seaboyer that
“[e]vidence of prior acts of prostitution or allegations of prostitution… is never
relevant and, besides its irrelevance, is hugely prejudicial.”
Section 276 was intended to replace quick conclusions based on false logic and
discriminatory thinking about who consents, who tells the truth and what is
relevant with a careful and structured analytical process designed to balance
evidence in the search for truth – notably by excluding misleading evidence in
support of illegitimate inferences.
R v Williams – Courts can, and should, take proactive steps to prevent racism
from compromising trials.
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Analysis Calling someone a prostitute is a form of sexual conduct evidence caught by

section 276. Since it is not evidence of a specific instance of sexual activity as
required under section 276(2)(a) it is, by itself, inadmissible. It also amounts to
evidence of sexual reputation which is separately prohibited under section 277,
regardless of who seeks to tender it.
Use of the word “native” may also have prejudiced the jury – “Courts in this
country have long recognized that the potential for racial prejudice against
visible minorities in the justice system is a notorious social fact not capable of
dispute. Jurors may consciously or subconsciously consider certain people less
worthy. This bias can shape the information received during the trial.
The trial judge should have taken steps to address the repeated references to C
as a native prostitute to overcome the real risk of reasoning prejudice. The jury
was further skewed because the trial judge instructed the jury that they could
draw no negative inference against Barton for being the type of person who
used prostitutes.
Because the section 276 analysis did not occur, the trial judge never addressed
whether the prostitution evidence was relevant generally, or if its probative
value outweighed prejudicial effect. Most importantly, had the judge used
section 276, he would have been obligated to set out in the charge what use
the jury could – and could not – make of the admissible evidence. The trial
judge’s failure to address this problem may well have influenced other
contents of his charge to the jury.
Conclusio New trial ordered.

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Bill C-51 – Reforms on Sexual History Evidence

 Amends section 273.1 to clarify that an unconscious person is incapable of consenting,
which reflects the SCC’s decision in R v JA.
 Amends section 273.2 to clarify that the defense of mistaken belief in consent is not
available if the mistake is based on a mistake of law – for example, if the accused
believed that the complainant’s failure to resist or protest means that the complainant
consented. This would codify aspects of the SCC’s decision in R v Ewanchuk.
 Expands the “rape shield” provisions to include communications of a sexual nature or
communications for a sexual purpose. These Criminal Code provisions provide that
evidence of a complainant’s past sexual history cannot be used to support an inference
that the complainant was more likely to have consented to the sexual activity in issue, or
that the complainant is less worthy of belief.
 Provides that a complainant has a right to legal representation in rape shield
proceedings.
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 Creates a regime to determine whether an accused can introduce a complainant’s

private records at trial that are in their possession. This would complement the existing
regime governing an accused’s ability to obtain a complainant’s private records when
those records are in the hands of a third party.
Opinion Evidence
Lay witnesses can only state facts, not opinions (although there is room to argue that a fact like
“the car was red” may be an opinion). The qualification requirement then is just that the
witness have personal knowledge. If they do have personal knowledge, they can state an
opinion on anything, including the controlling issue.
There are two caveats to the opinion rule: first, no lay witness’s evidence automatically gets
more weight – if you want their evidence to have more weight, qualify them as an expert.
Second, the judge has a discretion to exclude a lay opinion where prejudicial effect would
outweigh probative value.
R v D(D)
Rule The basic tenet of our law is that the usual witness may not give opinion evidence,
but testify only to facts within his knowledge, observation and experience.
Opinion & Expert Evidence
Lay Witnesses
Lay witnesses may present their relevant observations in the form of opinions where:
1. They are in a beter position than the trier of fact to form the conclusion;
2. The conclusion is one that persons of ordinary experience are able to make;
3. The witness, although not an expert, has the experiential capacity to make the
conclusion, and
4. The opinions being expressed are merely a compendious mode of stating facts that are
too subtle or complicated
Graat v R
Facts Accused was pulled over. Officers had observed him swerving his car, crossing
the line, and hitting the shoulder. They testified they had noticed alcohol on his
breath, that he was unsteady on his feet, and had bloodshot eyes.
They could not test him at the police station because he had to be taken to the
hospital for heart problems. By the time he was treated, it was too late to test.
His friends in the car testified that he was fit to drive.
Issues Can the court admit opinion evidence on the very issue to be decided (can the
cops express they thought he was drunk from what they saw)?
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Rule Exception to Opinion Evidence Rule

Non-opinion evidence is permited where the primary facts and the inferences
to be drawn from them are so closely associated that the opinion is really a
compendious way of giving evidence as to certain facts – in this case, the
condition of the appellant.
Non-expert witnesses may give opinion evidence for:
1. The identification of handwriting, persons and things;
2. Apparent age;
3. The body plight or condition of a person, including death and illness;
4. The emotional state of a person (distressed, angry, aggressive,
affectionate or depressed);
5. The condition of things (worn, shabby, used or new);
6. Certain questions of value;
7. Estimates of speed and distance.
However, the judge has discretion to exclude where prejudicial effect
outweighs probative value and no lay witness’ evidence automatically gets
greater weight than another lay witness’.
Analysis At the admissibility stage, the evidence has a clear and direct logical relevance
to the probandum in the case. The officer’s evidence could solve a legal issue
here.
The probative value is not outweighed by prejudicial effect – there is no danger
of confusing issues or misleading the jury – and there is no unfair surprise to a
party who had not had reasonable ground to anticipate this evidence would be
offered. Adducing evidence will not take an undue amount of time.
While a non-expert witness can’t give evidence about whether someone was
negligent, whether a person is sober enough to drive is really a factual question
– no application of a legal standard.

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R v B(H)
Facts HB convicted of sexual assault of his stepdaughter. Police testified her mother
did not react when told. Police said this was contrary to his experience as an
officer, telling parents about sexual assault.
Officer said he had no special training, education or expertise in psychology,
human conduct or facial expressions, and readily agreed with the suggestion
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that people react to shocking news in different ways.

The Crown tried to use this evidence to show that the mother was trying to
conceal evidence from the police, and that the mother already knew about the
abuse because the daughter told her.
Issues Was the police’s evidence admissible?
Rule Opinion evidence of someone’s emotional state is admissible.

Admissibility is determined by first asking whether the evidence sought to be
admited is relevant. This is a mater of applying logic and experience to the
circumstances of the particular case. The question which must be asked then is
whether, though probative, the evidence must be excluded by a clear ground of
policy or law.
Analysis According to Graat, lay witnesses are permited to testify as to the emotional
state of the person, whether a person was angry, aggressive, affectionate or
depressed.
The trial judge should have applied the principled approach – had he done so,
he might have excluded the evidence on the basis that the prejudicial effect of
the evidence outweighed its probative value.
That said, the admission and use of the impugned evidence in this case did not
impart a fair trial. First, impugned evidence was very limited, and the jury would
not have atached undue weight to it. They knew the officer had no special
training and his knowledge was limited.

n
Expert Evidence
Unlike lay witnesses, who may only give opinions with personal knowledge of an event, expert
witnesses may give opinions without having personal knowledge. As acknowledged in Mohan,
there are some significant dangers with expert evidence – a danger that the trier of fact will
defer to the expert, experts are largely immunized from cross-examination (as lawyers are not
familiar with the field), there are risks of ‘junk science’ and there are concerns about trials
turning into a ‘batle of experts’.
To minimize these dangers, the rules on expert evidence are strict. Historically, the bar was very
high, requiring general acceptance in the scientific community before allowing expert evidence.
This requirement has become more relaxed in recent decades, but the ‘general acceptance’
approach can still be seen in some cases.
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Daubert v Merrell Dow Pharmaceuticals, Inc

Rule General acceptance in the scientific community is not a prerequisite to
admission of scientific evidence. However, the trial judge must ensure that any
and all scientific testimony or evidence admited is not only relevant, but
reliable.
Reliable = Evidentiary reliability, trustworthiness. Reliability is based on scientific
validity. It is wrong to demand that the subject of scientific testimony be known
to a certainty. To qualify as scientific knowledge, an inference or assertion must
be derived by the scientific method.
R v Mohan
Rule “There is danger that expert evidence will be misused and will distort the fact-
finding process. Dressed up in scientific language which the jury does not easily
understand and submited through a witness of impressive antecedents, this
evidence is apt to be accepted by the jury as being virtually infalliable and as
having more weight than it deserves.”
To be admissible, expert evidence must be:
1. Relevant;
2. Necessary to assist the trier of fact;
3. Absence of an applicable exclusionary rule;
4. Qualified expert.
Trial judge has residual discretion to exclude evidence that satisfies the test
where probative value is outweighed by its prejudicial effect.
White Burgess Langille Inman v Abbott and Haliburton Co

Facts Professional negligence/audit. Respondents alleged appellants were negligent in
auditing their company. A forensic accounting partner was retained as an expert;
auditors applied to strike her affidavit of the grounds that the action is a batle
of opinion between two rival accounting firms. Therefore, if her approach were
not accepted, she could be personally liable and she has a financial interest in
the proceeding.
Issues Could MacMillan be qualified as an expert?
Rule Current Legal Framework for Opinion Evidence

1. Establish relevance using the four Mohan factors below.
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o Relevance;
o Must be necessary to assist the trier of fact;
 This requirement exists to ensure that the dangers associated
with expert evidence are not lightly tolerated. Mere relevance
or helpfulness is not enough.
o Must not trigger exclusionary rule.
o Must be from a properly qualified expert.
 Concerns related to expert’s duty to court and his or her
willingness and capacity to comply with it are best addressed
initially in the qualified expert element of the framework.
o Additional factor – if it involves a novel or contested science, or
science used for a novel purpose, examine the reliability of
underlying science for that purpose.
2. Gatekeeper stage: The trial judge must exercise his or her residual
discretion to exclude evidence based on a cost-benefit analysis. Think of
the potential risks and benefits of admitting the evidence in order to
decide whether the potential benefits justify the risks. At the gatekeeper
stage, the judge should also consider if the expert is independent and
impartial.
Expert’s Duty to the Court
 Duty to provide independent assistance to the Court by way of objective,
unbiased opinion.
 Expert evidence should be, and should be seen to be, the independent
product of the expert uninfluenced as to form or content by the
exigencies of litigation.
 Evidence must be fair, objective and non-partisan.
 The underlying duty is impartiality, independence and absence of bias.
The acid test is whether the expert’s opinion would change regardless
of which party retained him or her.
 Just because expert is paid by one party, doesn’t undermine their
independence, impartiality and freedom from bias.
Admissibility or Weight?
 At a certain point, expert evidence can be ruled inadmissible due to the
expert’s lack of impartiality and/or independence. For example, the
expert’s interest in outcome has led to exclusion in a number of cases.
 In principle, lack of independence can lead to exclusion, but expert
evidence did not warrant rejection on the particular facts.
 The expert’s lack of independence and impartiality goes to the
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admissibility of the evidence in addition to being considered in relation

to the weight to be given to the evidence admited.
Appropriate Threshold
 If a witness is unable to fulfil a duty to the Court over their duty to the
lawyer who employs them, that’s a problem!
 So, the expert must be aware of this duty. Absent a challenge, the
expert’s attestation or testimony recognizing and accepting the duty
will generally be sufficient to establish that this threshold is met.
 Once the expert testifies to this oath, the burden is on the challenging
party to show there is a realistic concern that the expert’s evidence
should not be received because the expert is unable and/or unwilling to
comply with that duty. If the opponent does so, the burden to establish
on a BOP this aspect of the admissibility threshold remains on the party
proposing to call the evidence.
 It is not an onerous requirement, and it will likely be quite rare that a
proposed expert’s evidence would be ruled inadmissible for failing to
meet it.
 The existence of some interest or a relationship does not automatically
render the evidence of the proposed expert inadmissible – ex. an
employment relationship with the party testifying won’t be enough to do
so. A direct financial interest in the outcome will be a concern though.
o Also familial relationships, or an expert who assumes the role of
advocate for a party.
o Exclusion at the threshold stage of the analysis should occur only
in very clear cases in which the proposed expert is unable or
unwilling to provide the court with fair, objective and non-
partisan evidence.
Analysis It is very natural to do something serviceable for those who employ you and
adequately remunerate you. An expert’s lack of independence and impartiality
can result in egregious miscarriages of justice.
In this case, the evidence was admissible. She was not biased or acting as an
advocate for the shareholders. She was aware of guidelines in the accounting
industry and testified she owed a duty to the court. The fact that one
professional firm discovers what it thinks is or may be professional negligence
does not, on its own, disqualify it from offering that opinion as an expert
witness.
Conclusio No reason to exclude evidence.

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R v Abbey
Facts Abbey was tried twice and convicted at the second trial of murder. At the first
trial, the judge refused expert evidence as to the meaning of Abbey’s teardrop
tatoos. At the second trial, expert evidence was allowed.
Issue Can the sociologist testify? Can he testify about the possible reasons for the
tatoo and what the tatoo meant?
Rule Before allowing expert evidence, the trial judge must delineate the scope of the
expert’s opinion, which may involve setting the boundaries of the opinion, plus
governing the language the expert will use.
Test for admissibility of evidence (White Burgess)
 Expert evidence is admissible when:
o It meets the threshold requirements for admissibility, which are:
 The evidence must be logically relevant;
 The evidence must be necessary to assist the trier of fact;
 The evidence must not be subject to any other
exclusionary rule;
 The expert must be properly qualified, which includes the
requirement that the expert be willing and able to fulfil
the expert’s duty to the court to provide evidence that is:
 Impartial;
 Independent;
 Unbiased.
 For opinions based on novel or contested science or
science used for a novel purpose, the underlying science
must be reliable for that purpose; and
o The trial judge, in a gatekeeper role, determines that the benefits
of admitting the evidence outweigh its potential risks,
considering such factors as:
 Legal relevance;
 Necessity;
 Reliability;
 Absence of bias
Reliability of expert evidence
In assessing the reliability of an expert’s opinion that relies on data collected
through various means such as interviews, one important question to ask is
whether the data are accurately recorded, stored and available.
Analysis  In another case, the expert’s credentials were questioned, though he

was ultimately qualified to give evidence in several areas.
 Toten’s evidence was based on qualitative and quantitative studies (who
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had a teardrop tatoo, for how many people did it mean they had
murdered someone, etc.) None of the six studies were geared toward
tatoos.
 First, Abbey pointed out that the first study covered 222 participants, not
290.
 Toten’s numbers were not clear. His initial deception re: the 290 versus
222 participants affected all his other numbers and analysis.
 Toten couldn’t verify how the data were collected.
 “First, Toten’s over-lunch about-face regarding whether he had his data
is, at least, suspicious. Second, without access to the underlying data a
court cannot test the reliability of Toten’s claim that in his sample drawn
from six studies, 71 young male gang members who had been convicted
of homicide each had a teardrop tatoo.”
 Toten also said that people get teardrop tatoos for one of three
reasons, but then said that all 71 got it for the sole reason they had
murdered someone.
 Finally, none of his evidence can be tested or verified
 Also, a lot of duplication in his studies.
His evidence is too unreliable to go before a jury. Because it’s too unreliable, its
benefit to the trial process would be minimal at best and the prejudice and
harm from admitting it would be great both because it would consume too
much valuable court time and because the jury would likely be unable to
effectively and critically assess the evidence.
Conclusio Set aside conviction and order a new trial.

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R v J(JL)
White Burgess is the leading case, but other cases are still significant. Here, the SCC expressly
adopts the US Federal Rules of Evidence approach to novel scientific evidence
Facts Accused was charged with sexual offenses in relation to two boys aged 3 – 5.
Defense sought to introduce expert evidence from a psychiatrist to establish
that in all probability a serious sexual deviant had inflicted anal intercourse on
two children of that age, and that no such deviant personality traits were
disclosed on the psychiatrist’s testing of the accused.
The TJ excluded the evidence. The Quebec Court of Appeal overturned and held
the TJ erred in excluding the evidence.
Rule A number of factors that are helpful in evaluating the soundness of novel
science includes:
1. Whether the theory or technique can be and has been tested;
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2. Whether the theory or technique has been subjected to peer review and
publication;
3. The known or potential rate of error or the existence of standards; and
4. Whether the theory or technique used has been generally accepted
 “General acceptance” is one of several factors to be considered.
 A “known technique” which has been able to atract only minimal
support within the community may be properly viewed with
skepticism.
Conclusio Appeal allowed, convictions restored. TJ did not err.

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R v Trochym
Facts Crown witness recovered part of her memory after undergoing hypnosis. The
majority applied the J(JL) factors to determine the admissibility of the post-
hypnotic evidence.
Issues Is the evidence admissible?
Rule Admissibility of scientific evidence is not frozen in time. Some forms of scientific
evidence become more reliable over time (ex. DNA evidence); others may
become less so with further studies (ex. “dock” or in-court identification
evidence).
Even if it has received judicial recognition in the past, a technique of science
whose underlying assumptions are challenged should not be admited in
evidence without first confirming the validity of those assumptions.
Analysis Hypnosis and its impact on human memory are not understood well enough for
post-hypnosis testimony to be sufficiently reliable to be used in a court of law.
Does not satisfy test for admissibility set out in J-L.
BASTARACHE, DISSENTING
Hypnosis is a widely accepted technique that has been used in criminal courts
for many years.
Abbey #1
How do we gauge the reliability of expert evidence in the soft sciences?
Rule Scientific reliability is not a condition precedent to the admissibility of expert

opinion evidence. Most expert evidence routinely heard and acted upon in the
courts cannot be scientifically validated.
To test the reliability of the opinion of these experts is to place a square peg in a
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round hole. Inquiry should instead be a FLEXIBLE one. Ask if the expert’s
research and experiences permited him to develop specialized knowledge
about their field of expertise. Ask:
1. To what extent is the field in which the opinion is offered a recognized
discipline, profession or area of specialized training?
2. To what extent is this work within that field subject to quality assurance
measures and appropriate independent review by others in the field?
3. What are the particular expert’s qualifications within that discipline,
profession or area of specialized training?
4. To the extent that the opinion rests on data accumulated through various
means such as interviews, is the data accurately recorded, stored and
available?
5. To what extent are the reasoning processes underlying the opinion and
the methods used to gather the relevant information clearly explained by
the witness and susceptible to critical examination by the jury?
6. To what extent has the expert arrived at his or her opinion using
methodologies accepted by those working in the particular field in which
the opinion is advanced?
7. To what extent do the accepted methodologies promote and enhance
the reliability of the information gathered and relied on by the expert?
8. To what extent has the witness, in advancing the opinion, honoured the
boundaries and limits of the discipline from which his or her expertise
arises?
9. To what extent is the proffered opinion based on data and other
information gathered independently of the specific case or the litigation
process?
R v Sekhon
Facts S charged with importing cocaine. Claimed he didn’t know – court had
circumstantial evidence that the value of the cocaine would have required the
driver know about it, the evidence of a police officer qualified to give expert
testimony regarding the customs and practices of the drug trade, and how
unlikely it would be that this guy was unaware.
On appeal, S contested the use of the expert evidence.
Issues Is the evidence admissible?
Rule Expert evidence is not admited in vacuum, but a cautious delineation of the
scope of the proposed expert evidence and strict adherence to those
boundaries (if the evidence is admited) is essential.
A remedial instruction advising the jury to disabuse their minds of inadmissible
evidence will generally suffice if there is no objection beforehand.
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Analysis The trial judge erred in relying on the testimony. The fact that the police officer
did not personally encounter a blind courier did not preclude the possibility of a
blind courier.
Though logically relevant, the evidence was not legally relevant – the guilt of
persons that the police officer had encountered in the past had no relevance to
the guilt or innocence of S.
Moreover, it was not necessary! Determining whether S knew about the drugs is
not beyond the knowledge and experience of the judge, and it is certainly not a
mater that is technical or scientific in nature.
Conclusio Not admissible.

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Mechanics of Proof
Matters Not Requiring Proof
In civil cases, pleadings are designed to narrow issues and determine facts not in dispute.
Failure to admit facts can result in an award of costs. Admissions of fact, law or mixed fact and
law can occur in a number of ways including pleadings, a failure to respond, an agreed
statement in a signed leter, or orally at trial.
Section 655 Admissions and Guilty Pleas

In criminal trials, section 655 of the Code allows the accused or his or her counsel to admit any
fact alleged against him or her, thereby dispensing with the need for proof. Section 655 governs
admissions at trials, and section 606 governs guilty pleas. Under section 655, the accused must
get consent from the Crown to admit to any facts while the Crown is still putting in its case.
Once the Crown’s case is in, consent is no longer needed.
Under section 606(1), a court may accept a plea of guilty only if it is satisfied that the accused is
making the plea voluntarily, and understands that the plea is an admission of the essential
elements of the offence, the nature and consequences of the plea, and that the court is not
bound by any agreement made between the accused and the prosecutor. According to section
655(1.2), the failure of the court to fully inquire whether the conditions set out in subsection
(1.1) are met does not affect the validity of the plea.
R v Falconer
Rule An admission validly made in the context of section 655 of the Code is an
acknowledgement that some fact alleged by the prosecution is true.
Once tendered, formal admissions under section 655 of the Code are conclusive
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for the trier of fact. Subject to relief being granted from the consequence of
admission, the fact is conclusively established.
An agreed statement of fact can be admissible as evidence at a subsequent trial,
but as rebutable, not binding admissions.
A trier of fact should not hear evidence describing statements made by an
accused to persons in authority (usually police officers) unless the Crown first
establishes, in a separate proceeding (a voir dire) that the statements were
made voluntarily.
To gain admission of a statement by an accused to a person in authority, the
Crown must establish BARD that the statement was voluntary in the sense that
it was not obtained by either fear or prejudice, or hope of advantage exercised
or held out by a person in authority, or other oppressive conduct.
 This rule applies whether the statement is inculpatory or exculpatory,
and whether the trial is by judge and jury or by judge alone.
 A voir dire is required to be held whether the accused was even a
suspect at the time or that the circumstances appear to make it plain
that the statement in question was voluntary.
 The accused can waive the requirement for a voir dire.
Notes A plea of guilt is another type of formal admission.
R v G(DM)
Facts Accused pleaded not guilty. The prosecutor produced no evidence and instead
read the allegations made against the appellant. They were not evidence, and
did not become admissions under section 655 of the Criminal Code by failure of
the appellant’s trial counsel to make submissions.
Rule What is a plea?

A plea is an accused’s formal response to the allegations contained in the
indictment or information.
 An accused who pleads guilty consents to entry of a finding of guilt, or
conviction without trial, and relieves the prosecutor of the burden of
proving guilt by relevant, material and admissible evidence BARD.
Surrenders right to full answer and defense to the charge.
 A guilty plea must be unequivocal, voluntary and informed. To satisfy
himself of these requirements, section 606(1.1) imposes an obligation
on the presiding judge to satisfy him or herself of the voluntary and
informed nature for the plea.
 A plea inquiry occurs after an accused pleads guilty. The prosecutor
reads into the record the allegations relied on to establish the essential
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elements of the offence, and defense counsel is asked whether the

allegations read are correct or substantially correct.
Formal Admissions and General Pleas
Two kinds of formal admissions in criminal law:
 Plea of guilty (other than an unaccepted plea of guilty under section
606(4).
 Admission of specific facts under section 655 of the Criminal Code.
Analysis By an admission under section 655, an accused admits a fact or the facts alleged
as true.
Judicial Notice
Judicial notice refers to facts which a judge can be called upon to receive and to act upon,
either from his general knowledge of them, or from inquiries to be made by himself for his own
information from sources to which it is proper for him to refer (Commonwealth Shipping
Representatives).
When judicial notice may be taken depends on defining what the fact to be noticed is.
1. Adjudicative Facts – Who did what, where, when, how, and with what motive or intent
in the current case. For an adjudicative fact to be noticed (i.e. a fact relating to the guilt
or innocence of the accused, such as who, what, when, where, why, motive, intent, etc.,
the fact must be beyond reasonable dispute, or be capable of immediate and accurate
demonstration using readily accessible sources of indisputable accuracy.
2. Legislative Facts – When the court or agency develops law or policy – acting legislatively
– the facts it relies upon are called “legislative facts” (facts generally known or
discovered from sources outside the formal proof offered by the parties).
3. A social fact is a fact that provides a social context for an issue at trial, such as Dr.
Walker’s research in Lavallee. Legislative facts on the other hand are facts on broader
questions of policy.
For non-adjudicative facts, the rules of notice depend on the importance of the fact. Where the
fact is dispositive, the Morgan “gold standard” must be followed. Where the fact is relatively
unimportant, e.g. forming merely the background for the mater, notice may be taken if the fact
is beyond serious controversy. Between these two extremes, notice may be taken if the
reasonable, informed person would view the fact as not being subject to serious dispute
(Spence).
Where facts do meet the Morgan gold standard, there is no discretion: the trial judge must take
notice (Spence). Furthermore, taking notice of a fact, regardless of type, ends the mater, and
counsel may not continue to dispute a fact on which judicial notice is taken (Spence).
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Morgan’s View
Professor Morgan argues that judicial notice should be limited to those facts which are
indisputable – to what is so “notoriously true” as not to be the subject of reasonable dispute, or
what is capable and immediate and accurate demonstration by resort to sources of indisputable
accuracy.
Thayer and Davis’ View
Thayer and Davis disagree with this strict approach – they argue that judges ought to be able to
bring in their past experience and understanding. Judges shouldn’t be limited to “wooden
judgements predicated upon the literal words of witnesses.” Davis later emphasizes that “the
basic principle is that extra-record facts should be assumed whenever it is convenient to assume
them, except that convenience should always yield to the requirement of procedural fairness
that parties should have an opportunity to meet in appropriate fashion all facts that influence
the disposition of this case.”
R v Zundel
Rule The court may take judicial notice of a historical fact. So, for example, the court
may take judicial notice of the Holocaust. However, judicial notice is a
discretionary matter and the trial judge is permitted to refuse to take judicial
notice and insist the Crown prove it.
Unlike adjudicative facts, when a judge takes notice of something they are
finding legislative facts. Unlike adjudicative facts, legislative facts can seldom be
disputable and knowledge of them is more properly labelled belief.
The closer the fact approaches the dispositive issue, the more the court ought
to insist on compliance with the stricter Morgan criteria of “notorious or
indisputable”.
R v Lavallee
Rule Facts as above. The Court took judicial notice of a number of legislative facts
relating to domestic violence; the history of how the law allowed for the abuse
of women; societal attitudes towards women; and batered women syndrome.
R v Malott
Facts Accused was charged with murder of his 20-year-long common law spouse. The
accused complained about the treatment of expert evidence on batered
women syndrome.
L’H-D noted that concerns had been expressed that the treatment of the expert
evidence on batered women syndrome, admissible in order to combat the
myths and stereotypes which society has about batered women, had led to a
new stereotype of batered women
Analysis Possible that women who do not fit within the stereotype of the victimized,
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passive, helpless, dependent batered woman will not have their claims to self-
defense fairly decided.
“The legal inquiry into the moral culpability of a woman who is, for instance,
claiming self-defence must focus on the reasonableness of her actions in the
context of her personal experiences, and her experiences as a woman, not on
her status as a batered woman and her entitlement to claim that she is
suffering from ‘batered woman syndrome.’
R v Spence
The closer any issue is to the dipositive issue, the less scope there is for judicial notice. If the
mater relates to adjudicative issues, the strict Morgan criteria of notorious or indisputable
govern. When it comes to social or legislative facts, the standard is slightly relaxed although the
judge must still ask whether the alleged fact would be accepted by a properly informed
reasonable person as not subject to reasonable dispute.
Facts Black person accused of robbery of South Asian pizza deliveryman. TJ permited
defense to challenge potential jurors for cause on the basis of potential bias
against a Black accused, but refused to allow a question addressing the
interracial nature of the crimes. The accused was convicted.
On appeal, the accused argued that he was deprived of his right to an impartial
jury and therefore to a fair trial.
Rule Morgan View on Judicial Notice

According to professor Morgan, judicial notice dispenses with the need for proof
of facts that are clearly uncontroversial or beyond reasonable dispute. As a
result, JN can only accept facts that are:
1. So notorious and generally accepted as not to be the subject of debate
among reasonable persons; or
2. Capable of immediate and accurate demonstration by resort to readily
accessible sources of indisputable accuracy.
If the Morgan criteria are not satisfied, and the fact is adjudicative, then the fact
will not be judicially recognized and that too is the end of the mater.
For social and legislative facts (ex. taking JN of the fact that unions intervene in
political and social debate is well-known and well-documented), use an
intermediate standard – the court should ask itself whether the “fact” would be
accepted by reasonable people who have taken the trouble to inform
themselves on the topic as not being the subject of reasonable dispute for the
particular purpose for which it is to be used, keeping in mind the need for
reliability and trustworthiness increases directly with the centrality of the fact to
the disposition of the controversy.
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Problems with Judicial Notice

1. What “everybody knows” may be wrong.
2. Trial fairness – where do these facts come from, and how are the parties
able to address them? How can parties who are prejudiced by the taking
of judicial notice rebut what everyone knows unless a plausible source is
put to them for their comment and potential disagreement?
3. Judges occasionally contradict each other about what “everyone knows”
Analysis It was up to the defense to show that there was an air of reality to the assertion
that the complainant’s South Asian origin had the realistic potential of
aggravating jurors’ prejudice against the Black accused because of natural
sympathy for the victim by jurors who might by South Asian. The burden was
not met.
The victim also wanted the TJ to take notice that black persons were more likely
to take violent action against non-black people. Though it was open to the TJ to
include the interracial aspect of the crime in the challenge for cause, neither the
case law, nor the studies on which the case law was based, supported the need
for a broad entitlement in every case to challenge for cause based on racial
sympathy as distinguished from potential racial hostility.
There is no consensus that “everyone knows” that a juror of a particular race is
likely to favour a complainant or witness of the same race, despite the trial
judge’s instruction to the contrary and other trial safeguards. Acceptance
through JN of the broad raced-based thesis of the defense would create a set of
irrebutable presumptions about how individuals called to jury duty can be
expected to think.
Notes Find Test

A Court may properly take judicial notice of facts that are either:
1. So notorious or generally accepted as not to be the subject of debate
among reasonable persons, OR
2. Capable of immediate and accurate demonstration by resort to readily
accessible sources widely accepted.
A summary of the Spence analysis:

1. If the Morgan standard is satisfied (“notorious or indisputable”), the fact will be judicially
noticed.
2. If the Morgan criteria is not satisfied and the fact is adjudicative in nature, the fact will
not be judicially recognized.
3. The Morgan criteria is not determinative for social facts and legislative facts – there are
levels of notoriety and indisputability.
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4. When you are dealing with the middle ground between mere background facts and
actual point of contest, ask: would such “fact” would be accepted by reasonable people
who have taken the trouble to inform themselves on the topic as not being the subject
of reasonable dispute.
Delgamuukw v British Columbia
Facts Appellant band claimed Aboriginal title over land. Court held that trial judge
had erred in refusing to admit or give no independent weight to oral histories.
Rule The laws of evidence must be adapted in order that this type of evidence be
accommodated and placed on equal footing with the types of historical
evidence the Courts are familiar with, which largely consists of historical
documents.
This process must be undertaken on a case by case basis.
Mitchell v Minister of National Revenue

Facts Respondent was a Mohawk band member. In 1988, he brought goods across the
St. Lawrence river from the United States. He asserted Aboriginal and treaty
rights exempted him from paying duty.
Issues Are aboriginal histories admissible as evidence?
Rule The rules of evidence are not cast in stone, nor are they enacted in a vacuum.
Rather, they are animated by broad, flexible principles applied purposively to
promote truth finding and fairness.
Oral histories are admissible where useful and reasonably reliable, subject
always to the exclusionary discretion of the trial judge.
Aboriginal Oral Histories may meet the test of usefulness on 2 grounds:
1. May offer evidence of ancestral practices and their significance that
would not otherwise be available.
2. May provide the aboriginal perspective on the right claimed.
Reliability – does the witness represent a reasonably reliable source of the
particular peoples’ history? TJ need not go as far as to find a special guarantee
of reliability – inquiries as to the witnesses’ ability to know and testify to orally
transmited aboriginal traditions and history may be appropriate both on the
question of admissibility and weight if admited.
In determining usefulness and reliability, avoid facile assumptions based on
Eurocentric traditions.
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Real Evidence
There are three modes by which a trier of fact may gather knowledge:
1. Testimonial evidence – The witness saw the event (inference from human assertion to
fact).
2. Circumstantial evidence – Witness saw indicators that the event had happened, but not
the event itself (inference from circumstance to thing producing it).
3. Real evidence – Omits any step of conscious inference or reasoning – it is something you
can see yourself in the court room.
Real evidence refers generally to exhibits, things that can be touched, smelled, etc. They are
important pieces of evidence, but only if they are authentic.
To be receivable, real evidence must be relevant.
1. The item must be genuine – a blood stained shirt is not relevant unless it was worn by
the victim the evening of the murder.
2. The judge must be satisfied there is sufficient evidence introduced to permit a rational
finding by the jury that the item is as claimed;
3. The jury must weigh the real evidence and determine if it is authentic.
Tendering Real Evidence

1. Call a witness with personal knowledge of the object.
o If the witness cannot identify the object as that previously seen, then the
accepted practice is to have it marked as an “exhibit for identification”.
2. Ask the witness to describe the object before showing it to the witness;
3. Allow the witness to examine and identify it as genuine; and
4. Ask that the object be entered as an exhibit, with an appropriate stamp applied by the
clerk.
o Once entered as an exhibit, the jury is allowed to take the exhibit into the jury
room during deliberations.
o According to R v Patterson, it is within the trial judge’s discretion as to whether
exhibits go to the jury.
Continuity
Sometimes, issues arise regarding continuity.
R v MacPherson
Facts Testifying police officer died before he could testify at trial. No alternate
evidence as to the chain of custody of real evidence was proffered by the Crown.
Rule The extent to which the Crown proves the continuity of real evidence in a
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narcotics case, and whether or not breaks in continuity makes evidence

inadmissible are questions of fact for the trier of fact to decide. Breaks in the
chain of continuity reduce the weight that can be given to the proffered
evidence.
However, proof of continuity is not a legal requirement and gaps in continuity
are not fatal to the Crown’s case unless they raise a reasonable doubt about
the exhibit’s integrity.
Analysis In a narcotics case, where the Crown must show BARD that the substance in
possession of the accused is the same as the substance alleged in the
information or indictment, it is important to have continuity of the possession of
the substance from accused to officer.
Videos and Photographs

Videos and photographs can be very valuable pieces of real evidence. Unlike eyewitnesses,
videos and photos are not affected by the stress of a situation, and there is no risk of memory
loss. There are still concerns, however, so videos and photos must be authenticated before they
are admited.
To be authenticated, the proponent of the evidence must establish that they are:
1. Accurate in truly representing the facts;
2. Fair and not intended to mislead; and
3. Verifiable on oath by a person capable of doing so.
Once authenticated, they may be admited as real evidence, allowing the trier of fact to use
them for a variety of purposes (including the identification of the accused).
R v Nikolovski
Authenticity of video evidence
Facts Accused convicted of robbing a store. Sole witness could not identify the
accused with certainty, and when shown a videotape of the robbery during his
testimony, did not identify the person in the videotape as the accused.
Crown called no other identification evidence. TJ relied on her own comparison
between the accused and the robber in the videotape to conclude that the
accused was the robber.
Issues Can a videotape alone provide the necessary evidence to enable the trier of fact
to identify the accused as the perpetrator of the crime?
Rule Ask:
1. Was the witness physically in a position to see the accused?
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2. Does the witness have sound vision, good hearing, intelligence and the
ability to communicate what was seen and heard?
3. Did the witness have the ability to understand and recount what had
been perceived?
4. Did the witness have a sound memory?
5. What was the effect of fear or excitement on the ability of the witness to
perceive clearly and to later recount the events accurately?
6. Did the witness have a bias or at least a biased perception of the event
or the parties involved?
So long as video evidence is of good quality and gives a clear picture of events
and the perpetrator, it may provide the best evidence of the identity of the
perpetrator.
o Ensure video has not been altered or changed;
o Ensure video depicts scene of the crime.
Video evidence is a type of testimonial evidence. It can and should be used by a
trier of fact in determining whether a crime has been commited and whether
the accused before the court commited the crime.
Weight to be accorded to the evidence can be assessed from a viewing of the
videotape. Consider:
o Degree of clarity and quality of the tape;
o The length of time during which the accused appears on the video (less
significant as even a few frames can identify);
o When using video evidence, essential to give clear instructions to the
jury as to how to use it:
o Consider carefully whether video is of sufficient clarity and quality and
shows the accused for a sufficient time to enable them to conclude that
identification has been proven BARD.
If it is the only evidence adduced as to identity, the jury should be reminded of
this.
Further, they should be told once again of the importance that, in order to
convict on the basis of the videotape alone, they must be satisfied BARD he is
identified.
Analysis Video evidence can provide dispassionate and factual evidence of events –
evidence that may have been accepted from eyewitnesses who carry inherent
biases.
If an appellate court, upon a review of the tape, is satisfied that it is of sufficient
clarity and quality that it would be reasonable for the trier of fact to identify the
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accused as the person in the tape beyond any reasonable doubt, then that
decision should not be disturbed.
Tape is of excellent quality – more than adequate for the purposes of identifying
the accused. TJ was entitled on the evidence before her to conclude BARD that
the accused was guilty.
SOPINKA and MAJOR J dissenting:
Judge’s observations are entirely untested by cross-examination.
In order to evaluate the reasonableness of the evidence upon which a trier of
fact relies, the Court of Appeal must be able to examine all the evidence.
This conviction was based on evidence that amounted to no more than the
untested opinion of the trial judge which was contradicted by other evidence
that the trial judge did not reject.

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R v Andalib-Goortani
Facts Police officer charged with assault with a weapon. Crown had a photo of the
assault. No one knows who took the photo because it was posted anonymously
on the internet.
Defense opposes admission of the photo, arguing the Crown is unable to
establish its authenticity. No question that the victim is in the photo – but not
clear that the officer is A-G, and not clear whether the image accurately reflects
what happened that day.
Crown expert testified that there was no evidence that the images had been
manipulated or edited: “No visual evidence of image alteration and/or changes
to the image structure was found.” The size of the image had been altered.
However, they could not say the image had NOT been altered – only that there
was no evidence to suggest it was.
Defense expert noted that if a photo has been modified with Photoshop, and
then uploaded to a website, evidence of its alteration would be removed when
the image is stripped of its metadata. The absence of metadata on the photo
suggested it had been uploaded to facebook at some point. Its dpi (dots per
inch) was indicative that it had been altered manually before it was posted.
Issues Is the photographic evidence admissible?
Rule Some types of evidence are considered presumptively inadmissible (similar fact
evidence, hearsay, prior consistent statements, statements of an accused during
a Mr. Big operation.
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Photographs are conditionally admissible. Certain pre-conditions must be

“established” on the basis of “some evidence” before a photograph is admissible
and made available to a witness and the trier of fact.
It is improper to raise a photograph without first addressing authenticity. The
party wishing to make use of a photograph bears the burden of
authentication, not the other way around.
Authentication (R v Creemer and Cormier)
Admissibility of photos depends upon:
 Their accuracy in truly representing the facts;
 Their fairness and absence of any intention to mislead;
 Their verification on oath by a person capable of doing so.
Analysis Crown failed to establish that the image was not tampered with or altered
before it came into its possession.
Both experts admit some properties of the image have been altered through the
process of being uploaded – neither could say where it had been uploaded first,
or whether the image was automatically stripped of its metadata during this
process, or whether it was intentionally removed.
Given that the image has been changed in some ways, there is a lingering
concern that it has been manipulated in other ways intended to distort the true
state of affairs the image purports to capture.
Materials taken from websites and offered as evidence in court must be
approached with caution, especially in a case such as this where no one has
claimed ownership of the photo.
Danger of tampering in these instances.
Conclusio Photograph not admissible.

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Notes Tanovich argues:

o Does this case set the bar too high? Presumably, a party will always be
able to find an expert to say that materials downloaded from the
internet “could be” manipulated without easy detection or that they
cannot say for certain that it was not.
o Complainant did testify at the preliminary inquiry that the photograph
was an accurate representation of her memory of the assault including
her memory of the height and facial hair of the officer who struck her.
Normally, this kind of evidence is sufficient to authenticate a video or
photograph.
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Documents
Documents are the most common type of real evidence. Just like everything else, a document
must be authenticated by a person capable of doing so, such as:
o The writer;
o Someone who saw the document being created;
o If the document is handwriten, then it can be authenticated by someone who has an
awareness of the person’s handwriting, by direct comparison of the handwriting in
dispute with known handwriting, or by experts.
o By an admission by the party against whom the evidence is tendered.
Remember that, even when a document is authenticated and tendered as real evidence, it does
not replace hearsay rules. Document may be adduced only to prove that certain statements
were made. If they are adduced for the truth of their contents, they are hearsay.
The common law allows for some documents to presumptively authenticate themselves by
circumstantial evidence. Ancient documents are authenticated automatically. To be ancient the
document must be over 30 years old, there must be no circumstances indicating fraud, and the
document must be produced from a place of natural custody. Reply letters also automatically
authenticate themselves. Where Smith signs a leter in reply to Johnson, Smith’s leter is
presumptively admissible.
Section 8, Canada Evidence Act
8 Comparison of a disputed writing with any writing proved to the satisfaction of the
court to be genuine shall be permited to be made by witnesses, and such writings,
and the evidence of witnesses respecting those writings, may be submited to the
court and jury as proof of the genuineness or otherwise of the writing in dispute.
R v Abdi
Rule Section 8 does not preclude the common law option of allowing a jury to compare
writing samples without witness testimony.
The jury should, however, be warned to be cautious in reaching a conclusion without
expert or witness testimony as to the handwriting.
Best Evidence Rule

Where terms of a document are material, proof of the terms of the document must be by
production of the original (documentary originals rule, or best evidence rule).
o This avoids errors in copying or in oral evidence regarding contents.
o It requires production of originals unless it is not possible. Secondary evidence can be
introduced if the proponent can satisfy the court that the original is lost or destroyed or
is in the possession of another and cannot be obtained.
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R v Betterest Vinyl Manufacturing Ltd.

Rule Avoid an over-technical and strained application of the best evidence rule. It may
hamper the inquiry without advancing the cause of truth.
Electronic Documents
The one important note for the best evidence rule is with respect to electronic documents,
which replace the common law.
31.1 Any person seeking to admit an electronic document as evidence has the burden of
proving its authenticity by evidence capable of supporting a finding that the electronic
document is that which it is purported to be.
31.2 (1) The best evidence rule in respect of an electronic document is satisfied
a) On proof of the integrity of the electronic documents system by or in which
the electronic document was recorded or stored; or
b) if an evidentiary presumption established under section 31.4 applies
31.3 For the purposes of subsection 31.2(1), in the absence of evidence to the contrary, the
integrity of an electronic documents system by or in which an electronic document is
recorded or stored is proven
(a) by evidence capable of supporting a finding that at all material times the
computer system or other similar device used by the electronic documents system
was operating properly or, if it was not, the fact of its not operating properly did not
affect the integrity of the electronic document and there are no other reasonable
grounds to doubt the integrity of the electronic documents system;
(b) if it is established that the electronic document was recorded or stored by a party
who is adverse in interest to the party seeking to introduce it; or
(c) if it is established that the electronic document was recorded or stored in the usual
and ordinary course of business by a person who is not a party and who did not record
or store it under the control of the party seeking to introduce it.
R v Cotroni
Facts Accused were charged with conspiracy to possess money obtained by extortion.
The only evidence incriminating them were tape recordings of three
conversations. The recordings proffered in evidence were re-recordings. The
explanation for this was that, after re-recording, the original recordings had
been erased and the tapes of them re-used. This was because at that time it was
not the practice of the police to use tape recordings as evidence in Court.
Issues Were the re-recordings inadmissible contrary to the best-evidence rule?
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Rule Strict evidence rule should not be interpreted strictly. The rule is now only of
importance in regard to the primary evidence of private documents.
“Nowadays we do not confine ourselves to the best evidence. We admit all
relevant evidence. The goodness or badness of it goes only to weight, and not to
admissibility.”
Analysis If the original document has been destroyed by the person who offers evidence
of its contents, the evidence is not admissible unless, by showing that the
destruction was accidental or done in good faith, without intention to prevent
its use as evidence, he rebuts to the satisfaction of the trial judge any inference
of fraud.
The same principle should apply to tape recordings. The learned trial judge
properly received in evidence in the present case the re-recordings proffered.
Conclusio Recordings allowed.

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R v Hirsch
Electronic evidence
Facts Guy was accused of sending threats over Facebook. The trial judge relied on
digital photographs – screen caps – of the post on Facebook pages.
Complainant testified she recognised the Facebook page shown in the screen
captures as that of Mr. Hirsch. H takes issue with this as he had blocked her from
his Facebook page two months before the offence, and therefore she had had
no recent, direct access to his page, and was not in a position to authenticate it.
H alleged Crown had failed to comply with section 31.1 of the Canada Evidence
Act, which states: “Any person seeking to admit an electronic document as
evidence has the burden of proving its authenticity by evidence capable of
supporting a finding that the electronic document is that which it is purported
to be.”
Issues Is the Facebook screenshot admissible?
Rule Section 31.2(1) – The best evidence rule in respect of an electronic document is
satisfied (a) on proof of the integrity of the electronic documents system by or in
which the electronic document was recorded or stored…
Section 31.3 – Integrity of e-docs is proven:
(a) By evidence capable of supporting a finding that at all material times
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computer system was operating properly (or if it was NOT operating

properly, that this had no effect on the document and there are no
other reasonable grounds to doubt the integrity of the electronic
documents system); and
(b) If it is established that the electronic document was recorded or
stored by a party who is adverse in interest to the party seeking to
introduce it; or
(c) If it is established that the electronic document was recorded or
stored in the usual and ordinary course of business by a person who
is not a party and who did not record it or store it under the control
of the party seeking to introduce it.
Analysis Authentication of an Electronic Document

Section 31.1 merely requires the party seeking to adduce an electronic
document as evidence to prove that the document is what it purports to be.
This may be done through direct or circumstantial evidence.
To authenticate an electronic document, counsel could present it to a witness
for identification and the witness would articulate some basis for authenticating
it. While authentication is required, it is not an onerous requirement.
The integrity or reliability of the electronic document is not open to attack at
the authentication stage of the inquiry – all you need to do is introduce
evidence capable of supporting a finding that the e-doc is as it claims to be.
Here, Crown put the screen captures to the complainant and she testified as to
recognising them as depicting Mr. Hirsch’s Facebook page.
Proof of Integrity
CL requires proponent of a record to produce the original record or the next
best available record – original is not readily applicable to e-docs. Often
impossible to provide direct evidence of integrity of an e-doc – so Canada
Evidence Act dispenses with CL requirement for ORIGINAL and substitutes other
means of satisfying the purpose of best evidence rule – to assist trier of fact
with the verification of the integrity of documents because alterations are
more readily detectible on original documents.
Under Act, the integrity of an e-doc is proven by establishing the integrity or
reliability of the e-doc system in which it is recorded or stored.
System integrity is a substitute for proof of electronic document integrity.
Note that section 31.3(b) provides for a presumption of integrity in the
circumstances where a party has established that the electronic document the
party seeks to adduce into evidence was recorded or stored by another party
who is adverse in interest to the party seeking to introduce it.
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Demonstrative Evidence
Despite the heading this appears under, demonstrative evidence (charts, models, etc.) is not
actually evidence, it is merely a replication of something. As a result, there are no concerns
about authentication, although there are requirements that the demonstration is actually
accurate.
The most famous example of demonstrative evidence is OJ Simpson trying on the bloody glove,
only to have it not fit. As a practice direction, the OJ case is a good lesson – if you’re going to use
demonstrative evidence, you beter be damn sure it shows what you want it to.
The worth of demonstrative evidence rests on whether or not it is an accurate depiction of what
happened. The trial judge must be satisfied that the demonstration will genuinely assist the
trier of fact and not distort the fact-finding process.
R v Macdonald
Facts M was a criminal on the run with V. M was charged with two counts of
aggravated assault and one count of dangerous driving. V was charged with
possession of a restricted weapon, possession of a weapon for a purpose
dangerous to public peace and assault with a weapon.
The police tried to make a video reconstruction of the take-down. The finished
product reflected the recollections of four police officers. Defense counsel
objected to the admissibility of the video at trial on the ground that it was more
prejudicial than probative. TJ ruled it was admissible.
Issues Should the video be admited?
Rule  The value of a video-reproduction depends on the correctness of the

reconstruction. Its reliability is often minimal.
 This danger increases when the videotape depicts not just the
undisputed positions of persons and things, but one side’s version of
disputed facts.
 Videos have a high sensory impact and tend to stay at the front of the
viewer’s mind (individuals learn more readily through sight).
Preferred Approach
 Recognize the danger of video-recreations and adopt a case-by-case
analysis.
 Overriding principle should be whether the prejudicial effect of the video
re-enactment outweighs its probative value.
 TJ should consider the video’s relevance, its accuracy, its fairness, and
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whether what it portrays can be verified under oath.

 TJ’s decision to admit or exclude a video re-enactment is entitled to
deference on appeal.
 Question of necessity is beter dealt with under the assessment of
prejudicial effect and probative value balancing.
Analysis A particular concern with videotaped re-enactments, particularly those created

without the participation of the accused, is their potential to unfairly influence
the jury’s decision-making.
TJ erred in admitting the video evidence for two reasons:
 Failed to appreciate that its many inaccuracies undermined its probative
value;
 He was not sensitive enough to prejudice caused by re-enacting one
side’s version of the events.
Video’s probative value rests on its accuracy of its re-enactment of undisputed
facts. This video failed to meet this requirement. It did not accurately represent
the undisputed facts and even ventured into the realm of disputed facts.
 Variation from the actual facts may be permissible but only if the
variation can be fully explained to and properly understood by the trier
of fact.
 Accuracy = consistent with facts – light, sound, dimensions of space and
time.
Discrepancies in various factors may affect the accuracy of a videotaped re-
enactment, including time of day, time of year, weather conditions, lighting or
visibility, speed of action, distance, location, physical characteristics of
individuals portrayed, physical characteristics of props, and complexity of events
depicted.
 Video had no probative value – was inaccurate, and the Crown and
defense gave ample evidence about what happened during the
takedown – they were given maps and diagrams of the scene.
Conclusio Appeals against conviction were allowed, the convictions were set aside, and a
n new trial was ordered.
Witnesses
Child Evidence in Criminal Trials
For the purposes of giving evidence, children are defined as persons under 14 years of age (see
section 16, Canada Evidence Act).
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Historical Context
Horsburgh v R
Rule Evidence of children has traditionally been regarded with circumspection.
Evidence of children is subject to difficulties related to:
1. Capacity of observation;
2. Capacity to recollect;
3. Capacity to understand questions put and frame intelligent answers; and
4. The moral responsibility of the witness.
The trier of fact ought to be warned of the “inherent frailties” of child’s evidence
even if under oath.
In the past, “corroboration” was needed for female victims and children. There was no
accommodation and litle support for child witnesses. Children who did disclose abuse were
usually NOT believed.
R v W(R)
Facts Accused charged with indecent assault, gross indecency and sexual assault
against three girls. The evidence of the oldest child was internally consistent.
The evidence of the two younger children revealed a number of inconsistencies
and was contradicted in some respects.
The accused was convicted on all counts and appealed. The convictions were set
aside on the basis that there was no confirmatory evidence and the evidence of
the younger children was fraught with inaccuracy. Crown appealed.
Issues How should the court approach evidence of younger children?
Rule The law has undergone changes – removal of notion, codified in legislation, that
child evidence is inherently unreliable. So, the requirement that child evidence
be corroborated is gone.
This does not prevent TJ from treating evidence with caution, but it does revoke
assumption that children’s evidence is less reliable than others’ evidence. If a
court proceeds to discount a child’s evidence automatically, without regard to
the circumstances of the particular case – error.
The credibility of every witness must be assessed but the “reasonable adult”
standard shouldn’t be applied to children. Subject to same standard of PROOF,
but children may remember or be interested in different things.
Where an adult is testifying to events which occurred when she was a child,
her credibility should be assessed according to criteria applicable to her as an
adult witness. Yet regard to her evidence pertaining to events which occurred
in childhood, the presence of inconsistencies, particularly as to peripheral
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matters such as time and location, should be considered in the context of the
age of the witness at the time of the events to which she is testifying.
Analysis CA applied confirmatory test to children evidence – treating evidence of the

child as being inherently less reliable than adult evidence might be.
While CA was right to note inconsistencies, they did not consider that the TJ may
have noted them and taken them into consideration in decision. Inconsistencies
might also be explained by the fact that a young child may not pay atention to
sleeping arrangements or the clothes they were wearing.
In summary, CA was right to be concerned about the quality of evidence and
correct in entering upon a re-examination and reweighing of evidence – but it
went too far.
Conclusio Allow appeal and restore conviction.

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Bill C-2 – A New Law for Canada’s Child Witness (Nick Bala)
Section 16.1 of the Canada Evidence Act now has a new format for assessing the competence of
child witnesses. Bill C-2 codifies the reality that children and adult witnesses are and must be
treated differently, a reality recognized in R v W(R).
Section 16.1 operates as follows:
1. Children are presumed competent and capable.
2. If the opposing party wishes to challenge the competence and capacity of the child, they
bear the onus of satisfying court that there is an issue regarding the capacity of the child
to understand and respond to questions.
3. If the court is satisfied that there is an issue, the court will conduct an inquiry into
whether the child can understand and respond to questions.
o Generally done by asking a couple of basic, uncontentious questions about
recent memorable moments, e.g. “Did you have a birthday recently? Did you
have a cake? What were some of the presents you got?”
o If the court is satisfied that the child can understand and respond to questions,
or if the court was never satisfied that there is an issue to begin with, go to 4.
o No questions about their understanding of the nature of the promise for the
purpose of determining whether their evidence shall be received by the court.
There is no comparable requirement for adults.
4. The child is permited to testify after promising to tell the truth. There is no need to take
a solemn affirmation.
o The child may not be asked about their understanding of “promise” or “truth”.
5. The evidence of the child is then to be taken as if under oath.
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The purpose of section 16.1 is to set out the procedure for determining whether a child can be
permited to testify. Once section 16.1 is followed and the child can testify, however, it is not
simply business as usual: children must still be viewed as special witnesses.
Children may be permited to testify behind a screen or via CCTV (Levogiannis). The trial judge
also has an added responsibility to ensure the child understands the questions that are asked
and that the child’s evidence is clear and unambiguous (L(DO)).
Finally, the trier of fact will err if they rigidly apply adult tests for credibility to the evidence of a
child (W(R)): children are, and must be treated differently in the pursuit of truth.
R v S(JZ)
Rule Section 16.1 is constitutional.
R v Levogiannis
Facts Accused charged with touching child for sexual purpose. Crown requested 12-
year-old complainant be allowed to testify behind a screen pursuant to s
486(2.1) of the Code. TJ granted the Crown’s motion following the testimony of
a clinical psychologist who indicated that the complainant was experiencing a
great deal of fear about testifying.
Accused challenged validity of 486(2.1) because it violated his right to a fair trial
under section 7 of the Charter and section 11(d). CA held it did not infringe, but
if it did the infringement would be justified.
Issues Does 486.2 violate the Charter? Does a witness’s obstructed view of an accused
infringe the rights of such an accused under section 7 or 11(d) of the Charter?
Rule Children testifying behind a screen or through CCTV (section 486.2 of the Code)
does not infringe the Charter
Analysis An order under section 486(2.1) just blocks child’s view of accused, not the
other way around. The section recognizes that a child may react negatively to a
face-to-face confrontation and, as a result, special procedures may be required
to alleviate these concerns.
Accused argues screen makes it look like child needs to be protected and adds
to appearance of guilt. No.

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Notes Section 715.1 allowed for video recorded evidence for those under 18, so long
as it’s made before too long a time passes (then it could be inaccurate).
It is also permited for those with disabilities who may have difficulty testifying
normally.
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R v L(DO)
Facts Accused charged with sexual assault alleged to have happened between Sept
1985 and March 1988. Police conducted a video interview with 9-year-old victim
after a medical interview.
Accused sought declaration that section 715.1 was unconstitutional. Denied by
TJ. After a voir dire, videotape interview was admited into evidence and the
accused was convicted. CA overturned, finding videotape unconstitutional.
Issues Is section 715.1 unconstitutional?
Rule Section 715.1 responds to power adults have over children by accommodating
the needs and safeguarding the interests of young children who are victims of
sexual abuse.
Does not offend POFJs or right to fair trial. Does not offend rules of evidence or
hearsay.
No constitutionally protected requirement that cross-examination be
contemporaneous with the giving of evidence.
In cases involving fragile witnesses such as children, the trial judge has a
responsibility to ensure that the child understands the question being asked
and that the evidence given by the child is clear and unambiguous. To
accomplish this end, the trial judge may be required to clarify and rephrase
questions asked by counsel and to ask subsequent questions to the child to
clarify the child’s responses.
Conclusio Appeal allowed (section 715.1 constitutional)

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R v F(C)
Facts Accused charged with molesting his 6-year-old daughter. Videotape of
daughter’s statement sought to be introduced. Girl confirmed she made the
statements on videotape and that they were true.
On cross, victim made statements that contradicted the videotape. ONCA
overturned conviction and ordered new trial. CA held that the videotaped
evidence that was later disavowed could not be considered as having been
adopted under section 715.1
Issues What does adopted mean under 715.1?
Rule Cross-examination is not the only test of reliability. Section 715.1 provides
reliability through:
o Requirement that statement be made within a reasonable time;
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o The trier of fact can watch the entire interview, which provides an
opportunity to assess demeanour, personality and intelligence of child;
o The requirement that the child atest that she was atempting to be
truthful at the time the statement was made.
o Child can be cross-examined at trial on whether or not they were being
truthful when statement was made.
Fact that video is contradicted at trial does not necessarily mean it is wrong or
unreliable – will affect weight given for sure, but TJ may still conclude
inconsistencies are insignificant and find video more reliable than the evidence
elicited at trial.
Questioning the Witness

The fact that witnesses are chosen by the parties and may be prepared in advance by those
parties has led to different rules regarding the manner of questioning, dependent on who is
putting the questions.
The basic rule is that you cannot lead your own witness. Leading on cross-examination,
however, is expected and often encouraged.
Maves v Grand Trunk Pacific Railway Co
Rule A leading question is a question which directly or indirectly suggests to the
witness the answer to be given. The rule is, on material points, a party must not
lead his own witnesses, but may lead those of his adversary.
The rationale behind this rule is that:
1. The witness has a bias in favour of the party bringing him forward, and
hostile toward the opponent; and
2. The party calling a witness has an advantage over his adversary, in
knowing beforehand what the witness will prove, or, at least, is expected
to prove. So, if he were allowed to lead, he might interrogate in such a
manner as to extract only so much of the knowledge of the witness that
would be favourable to his side.
3. Also, a witness may by mistake assent to a leading question which fails to
express his real meaning.
The general rule then is that in examining one’s own witness, on material points
leading questions are forbidden. However, on points that are merely
introductory and form no part of the substance of the inquiry, one can lead.
There are four exceptions to the rule against leading questions:

1. For formal, introductory or undisputed maters;
2. For the purpose of identifying persons or things;
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3. To allow one witness to contradict another regarding statements made by that other;
4. Where the witness is either hostile to the questioner or unwilling to give evidence;
5. Where it is seen, in the trial judge’s discretion, to be necessary to refresh the witness’s
memory;
6. Where the witness is having difficulty communicating on account of age, education,
language or mental capacity;
7. Where the mater is of a complicated nature and, in the opinion of the trial judge, the
witness deserves some assistance to determine what subject the questioner is asking
about.
In determining whether a question suggests an answer, much will depend on the character,
mood and bias of the witness, and manner and inflection of the questioner, all maters to be
determine in the particular case.
R v Rose
Facts Accused was charged with trafficking in cocaine and possession for the purpose
of trafficking. The charges arose as a result of police surveillance observations of
an alleged drug transaction between the accused and B.
B was observed entering the vehicle of the accused. The vehicle was on the
fringes of an area known to be high for drug trafficking. The police stopped the
car and arrested the accused, and found drugs in the vehicle.
B agreed to testify against the accused. He testified that he was buying drugs.
The accused argued that B was the seller and he was the buyer. Accused was
convicted. Grounds of appeal related to the Crown’s conduct at trial.
Issues Were the questions leading?
Rule A leading question is one that suggests the answer.

Rationale behind rule against leading questions is the concern that the witness,
who in many instances favours the party who calls him or her, will readily agree
to the suggestions put in the form of a question rather than give his or her own
answers to the questions.
The rule is applied with some flexibility (ex. leading questions are routinely
asked to elicit a witness’ evidence on preliminary and non-contentious
matters, or to the extent that they are necessary to direct the witness to a
particular matter or concern).
The trial judge has a general discretion to allow leading questions whenever it is
considered necessary in the interests of justice.
Analysis Crown repeatedly asked questions like ‘how many times did you buy cocaine’
and ‘were you going to purchase cocaine’, etc. These questions were clearly
suggestive of the answers – the examination in chief reads more like a cross
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examination.
This was highly improper, particularly where B was the primary Crown witness
and the questions concerned crucial and contentious maters.
The impropriety of the Crown conduct was amplified by the fact that B’s
testimony, obtained as it was in return for a stay of the charges against him, was
already highly suspect.
Conclusion New trial ordered.
Refreshing Memory/Past Recollection Recorded

Most evidence comes through witness testimony, so the memory capacity of the witness is
obviously important. A problem arises when the witness has memory lapses, or no memory at
all.
Where a witness has a memory lapse, they may use a refresher “aid”, such as a notebook, to
refresh their memory (Wilks). The aid itself is not evidence, and is therefore not subject to the
rules of evidence and may be anything (Wilks). The most important consideration is that the
witness actually has a memory to refresh.
To satisfy everyone that there is actually memory being refreshed, generally the witness
testifies that they know the facts, but have a memory lapse. They may then review the aid, and
testify without further reference to the aid. Where there are repeated referrals and the witness
appears to be simply reciting the aid, it may be that there is no memory to refresh and the
testimony will not be permited (Wilks). Despite this, it is fine that a witness simply sticks to the
aid (B(KG)).
If the witness does not have a memory to refresh, then the only other option is to have their
past recollection recorded as evidence (Wilks). Here, the past recording becomes evidence as
an exception to hearsay, immune from cross-examination, and so there are strict rules which
must be followed to have the recording admited:
1. It must be reliably recorded;
2. The witness’ recollection at the time of recording must have been sufficiently fresh and
valid;
3. The witness must now be able to assert that the record accurately represented what
they knew to be true at the time, and, insofar as it is possible, the original record must
be used.
R v Wilks
Facts Accused involved in a car accident, receiving benefits from insurer. Insurer met
and talked to accused on the phone on many occasions. Took notes, transcribed
them onto computer, and destroyed physical copies of notes. Became suspicious
of accused and subjected her to video surveillance. Tapes showed she was lying.
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She was charged with fraud.
Issues Is it permissible to use memory aids?
Rule Refreshing Memory

Permissible to use aids to assist the witness. Can either
o Assist the witness by reviving the memory; or
o Be a direct record of the fact, previously made and now atested to as an
accurate record.
There are few restrictions on the memory revival aids – as long as it jogs the
memory, it is the memory itself and not the aid that is admitted into evidence.
Outside evidence is more complicated – it must meet the criteria of necessity
and reliability.
Past Recollection Recorded
Wigmore rules on past recollection recorded:
1. Past memory must have been recorded in some reliable way;
2. At the time, it must have been sufficiently fresh and vivid to be probably
accurate;
3. The witness must be able to assert that the record accurately
represented his knowledge and recollection at the time. The usual
phrase requires the witness to affirm that “he knew it to be true at the
time”
4. The original record itself must be used, if procurable.
Failure to distinguish between a witness using something to refresh his or her
present memory and a witness using something as a record of past memory
may result in a witness being refused permission to consult notes or other
memory-jogging devices, or, conversely, being permited to testify on the basis
that his memory has been refreshed when it is clear that it is not the memory
being refreshed, but an inadmissible record of past memory that is being
introduced.
Before evidence that falls into the “past recollection recorded” category is
admited, the conditions precedent to its admission are to be clearly satisfied.
When the notes do not revive memory, as here, the notes or the recitation of
them become the evidence. The witness cannot be effectively cross-examined
on his or her recollection, because they have no recollection of the event!
Following elements must be demonstrated to establish a foundation for
refreshing the recollection of a witness who is on the witness stand:
1. Witness knows the facts, but has a memory lapse on the stand;
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2. Witness knows his report or other writing will refresh his memory;
3. Witness is given and reads the pertinent part of his report or other
writing;
4. Witness states his memory has now been refreshed;
5. Witness now testifies he knows, without further aid of report or other
writing.
Analysis In this case, the officer was totally reliant on his notes. It is clear that they were
to be used to jog his memory – but he was totally reliant on his notes. He had
no present memory. This was not past recollection revived – it was past
recollection recorded. The failure to distinguish between these two can result in
the introduction of inadmissible evidence, which is an error of law.
There was insufficient testimony regarding how and when the notes were made
and the Crown did not ask if they were a complete and accurate record of the
discussions which they purport to summarize. TJ erred when allowing into the
records the contents of Unger’s notes under the guise of present memory
revived.
Since what was in Unger’s notes formed an essential part of the evidence
warranting conviction, the notes were a critical part of the Crown’s case.
Permitting the notes to be part of the record was highly prejudicial to the
accused.
Conclusio Acquited.
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R v B(KG)
Facts Accused was charged with second degree murder. Acquited at first trial, new
trial directed. At new trial, convicted. On appeal, accused argued that the TJ
erred in his consideration of the evidence of the mothers of two accomplices of
the accused, because they had refreshed their memories from statements each
had given to the police some considerable time (2.5, 3 years) after the events
about which they were testifying.
Accused argued the mothers had litle to no independent recollection of the
subject events.
Issues Is this permissible?
Rule Where a witness has no present memory, and only a record of a past event,
caution! When a witness refreshes her memory from some external source or
event, she has a present memory, albeit one that has been refreshed.
Analysis TJ acknowledged that the fact the mothers had refreshed their memories before
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trial could affect their evidence. Nevertheless, he found as a fact that they had
an independent recollection of the events and that their evidence was reliable.
It is permissible for a witness to refresh their memory outside of court from
notes which were not made contemporaneously with the events about which he
or she is testifying – but doing so can, and does, affect the weight to be given to
the witness’s evidence.

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R v Mattis
Facts Accused was charged with trafficking cocaine. TJ considered the evidence of the
Crown and of the defence as to what had been observed prior to the accused’s
arrest.
Officers had made up their notes separately – but they were identical. Neither
could come up with an explanation for how this had occurred.
Analysis The only reasonable inference for why the notes were identical is that one copied
the notes of the other. If the second officer did not make his own notes, then they
cannot refresh memory – they act as a replacement for memory!
The fact that the officers collaborated on their notes ought to raise questions
about the reliability of the officer’s testimony. Not always though! The extent to
which the collaboration renders the evidence of the officers unreliable will
depend on the circumstances of each case and the explanation given by the
officers.
R v McCarroll
Facts Accused charged with second-degree murder. Victim was beaten to death with a
baseball bat during a fight between two groups of friends. Kidd was a part of the
accused’s group of friends. The question was who dealt the fatal blow.
Kidd made a videotaped statement during the preliminary inquiry and identified
the accused. At trial, she did not remember these details. She did say, however,
she told the truth in the videotape. The TJ instructed the jury that Kidd had
adopted her statements. The accused was convicted.
Issues Did the witness adopt the statement?
Rule Where a witness adopts a prior statement as true, the statement becomes part
of that witness’ evidence at trial and is admissible for its truth.
In order for a prior statement to be adopted, the witness must be able to attest
to the accuracy of the statement based on their present memory of the facts
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referred to in that statement. In this sense, adoption refers to both the witness’s
acknowledgement that he or she made the prior statement and the witness’s
assertion that his or her memory while testifying accords with the contents of
the prior statement.
Whether statement is adopted is determined by the trier of fact.
As a condition of admissibility, the TJ must be satisfied that there is an
evidentiary basis on which the trier of fact could conclude that the witness
adopted the statement.
Witness must acknowledge the statement and, based on present memory, verify
the accuracy of its contents.
Analysis  TJ erred in stating that Kidd had adopted her earlier statements.
 Kidd did acknowledge having made the statement, but given her
selective memory, could only vouch for the accuracy of the statement
based on the circumstances surrounding the recording. She could not
continue to assert the truth of its contents.
 No evidentiary basis to say adoption occurred – but even if there was, TJ
also usurped function of jury.
Conclusio Appeal allowed and new trial ordered.

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Cross-Examination
Cross-examination is, as said by Wigmore, the “greatest legal engine ever invented for the
discovery of truth.” It allows skilled counsel to elicit information which a witness has been
trained not to testify about or wants to conceal, to show that a witness is not credible or to
adduce potential mitigating factors. The right to full answer and defence within section 7
includes the right to cross-examination without significant and unwarranted constraint.
McCormick states that cross-examination is an essential safeguard of the accuracy and
completeness of the testimony, and common law judges and lawyers have insisted that the
opportunity is a right and not a mere privilege.
The trial judge has an obligation to intervene in certain situations, such as where cross-
examination becomes abusive, but may not do so in a manner that undermines counsel,
frustrates counsel’s strategy, or makes it impossible for the defence to put forward a defence
and test the Crown’s evidence.
The right to cross-examine is not totally unrestrained for either the Crown or the defense. Cross-
examination may not be abusive, and courts frown upon counsel asking a witness to testify
about the credibility of other witnesses, counsel stating their personal opinions, and counsel
asking witnesses for their “theory” of a case.
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Aside from these restrictions, cross-examination is very broad. As long as counsel has a good
faith basis for putting a question to the witness, they may ask it, and there is no longer any
requirement that counsel have the ability to otherwise prove the basis of the question.
R v Lyttle
Facts Accused was charged with assault.
Defence counsel undertook to call two officers, and was permited to cross-
examine other witnesses on the drug theory. After the cross-examinations,
counsel sought to resile from the undertaking to call the two police officers,
atempting to preserve the accused’s right to address the jury last. Was denied
this right and convicted.
CA found that the TJ unduly constrained defence counsel’s cross-examination,
but applied the curative proviso in section 686(1)(b)(iii) of the Criminal code.
Appeal by accused was allowed and a new trial ordered.
Issues Was TJ unduly restrictive?
Rule The right of an accused to cross-examine prosecution witnesses without

significant and unwarranted constraint is an essential component of the right to
make full answer and defense. It is protected by section 7 and 11(d) of the
Charter.
The right must not be abused. Counsel are bound by the rules of relevancy and
are barred from resorting to harassment, misrepresentation, repetitiousness or
from putting questions whose prejudicial value outweighs their probative effect.
A question can be put to a witness in cross-examination regarding matters that
need not be proved independently, provided that counsel has a good faith
basis for putting the question.
Information falling short of admissible evidence may be put to the witness.
Information may be incomplete or uncertain provided the cross-examiner does
not put suggestions to the witness recklessly or that she knows to be false.
The cross-examiner may pursue any hypothesis that is honestly advanced on
the strength of reasonable interference, experience or intuition. The purpose
of the question must be consistent with the lawyer’s role as an officer of the
court: to suggest what counsel genuinely thinks possible on known facts or
reasonable assumptions is reasonable. To assert or to imply in a manner that is
calculated to mislead is in our view improper and prohibited.
Shearing: In most instances the adversarial process allowed wide latitude to
cross-examiners to resort to unproven assumptions and innuendo in an effort
to crack the untruthful witness. However, cross-examination remains subject to
the requirements of good faith, professional integrity and the other limitations
set out above.
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TJ must balance right to fair trial with need to prevent unethical cross-
examination.
As long as counsel has a good faith basis for asking an otherwise permissible
question in cross-examination, the question should be allowed.
Notes SCC has announced that cross-examination is permissible on unproven facts

without evidentiary foundation subject only to good faith assurance from
counsel.
Distinguish from Howard, where it was declared that ‘it is not open to the
examiner or cross-examiner to put as a fact, or even a hypothetical fact, that
which is not and will not become party of the case as admissible evidence.’
In Howard, the Crown sought to examine an expert on the significance of an
admissible guilty plea by a co-accused. There was a crucial difference between
cross-examination on inadmissible evidence and cross-examination on unproven
facts.
R v R(AJ)
Facts Accused convicted of incest with his daughter and granddaughter, sexual assault
and threatening. Appealed conviction on grounds of prejudicial effect of the
cross-examination of the accused conducted by Crown counsel. He alleged
crown counsel had argued with and demeaned the accused in cross-examining
him, etc.
Issues What is appropriate in cross-examination?
Rule Crown counsel is entitled and in some cases expected to conduct a vigorous
cross-examination of an accused. Isolated transgressions in cross-examination
may be of little consequence; repeated improprieties may lead to miscarriage
of justice.
Statements of counsel’s opinion have no place in cross-examination.
Can consider the conduct of the witness as well as the fact that questions were
not objected to at trial in deciding whether a cross was abusive. Not
determinative!
Analysis This cross was abusive and unfair.

o Crown counsel adopted a sarcastic tone with repeatedly inserted
editorial commentary into her questions (at least eight comments, one
where the counsel commented that the answer given by the appellant
was “incredible” and asked the appellant if he wanted the jury to
“believe that one too”.)
o Crown counsel’s approach from the beginning was designed to demean
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and humiliate the appellant. She used the pretence of questioning the
appellant to demonstrate her contempt for him and the evidence he was
giving before the jury.
o She also gave evidence and stated her opinion during the examination
and argued with the appellant (said he was lying, said he was playing
games with the jury, said it was hard to keep up with him because he
kept changing his story).
o Crown counsel asked him to comment on the veracity of Crown
witnesses and explain why witnesses had fabricated their evidence.
These questions were improper.
o Prejudiced the jury, atacked the appellant’s character and lifestyle –
sordid lifestyle might also prejudice the jury. There were numerous
questions that passed the boundaries of relevancy and atempted
instead to draw in evidence of other bad acts to make him look deviant.
o Counsel also asked questions about conversations accused had with his
lawyer – this is irrelevant and also privileged information.
o Asked him about if he filed tax returns to make him look like a delinquent
for not filing them.
Conclusio Cross resulted in a miscarriage of justice. The strength of the Crown’s case is
n irrelevant in determining the appropriate disposition and section 686(1)(b) has
no application. The miscarriage of justice lies in the conduct of the proceeding
and not in the verdict arrived at by the jury.
R v T(A)
Facts Accused was charged with atempted murder and conspiracy to commit murder
after his three children tried to drown their mother in the bathtub. The Crown’s
theory is that the accused was the mastermind behind the murder plot.
Crown wanted to advance theory that he used his religious beliefs to influence
the children to kill their mother. At trial, the Crown made a bunch of remarks
comparing religious massacres and 9/11 to the father.
Analysis The jury convicted the accused, but ONCA allowed the appeal against conviction
on the basis that the Crown’s remarks, which were not addressed or corrected in
the trial judge’s charge to the jury, rendered the trial unfair.
R v Osolin
Rule A fair balance must be achieved so that the limitations on the cross-examination
of complainants in sexual assault cases do not interfere with the right of the
accused to a fair trial.
A complainant can be cross-examined for the purpose of eliciting evidence
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relating to consent and pertaining to credibility when the probative value of that
evidence is not outweighed by danger of unfair prejudice that might flow from
it.
Cross-examination which relies on rape myths will always be more prejudicial
than probative. Cross-examination to elicit such evidence should not be
permited.
It is up to the trial judge to take into consideration all of the evidence presented
at the voir dire and to then determine if there is a legitimate purpose for the
proposed cross.
In order to ensure a fair trial, a voir dire should be used to determine
contentious issues and if cross is appropriate.
R v Mills
Rule Equality concerns must also inform the contextual circumstances of full answer
and defense. An appreciation of the myths and stereotypes in the context of
sexual violence is essential to delineate properly the boundaries of full answer
and defense.
R v Shearing
Rule Cross examination techniques that seek to put the complainant on trial rather
than the accused are abusive and distort rather than enhance the search for
truth.
Sexual assault cases should be decided without resort to folk tales. Defense
must rely on facts and not innuendos and wishful assumptions.
“Although defense must be free to DEMONSTRATE without resort to
stereotypical lines of reasoning, that such information is actually relevant to a
live issue at trial, it would mark the triumph of stereotype over logic if courts
and lawyers were simply to ASSUME such relevance to exist, without requiring
any evidence to this effect whatsoever.”
R v McNeil
There is a duty to cross-examine in certain circumstances! This rule is found in Browne v Dunn.
Facts The accused was charged with numerous offences arising out of an alleged
abduction of one C. One of the people involved in the abduction, B, testified as
Crown witness that he was retained by the accused to collect a drug debt from
the victim and the accused went to the victim’s hotel room for that purpose.
Appellant testified and was denied any involvement in the abduction.
Issues Was the failure to allow the witness to speak to inconsistencies fatal to the trial?
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Rule Section 11 of the Canada Evidence Act codifies the Browne v Dunn rule:
“If counsel is going to challenge the credibility of a witness by calling
contradictory evidence, the witness must be given the chance to address the
contradictory evidence in cross-examination while he or she is in the witness
box.”
This is a rule of fairness that prevents the “ambush” of a witness by not giving
him an opportunity to state his position with respect to later evidence which
contradicts him on an essential mater. It is not an absolute rule.
Analysis In cases like these, where the concern lies with a witness’s inability to present
his or her side of the story, the first option is to recall the witness. If TJ is
satisfied recall is appropriate, the aggrieved party can either take up the
opportunity or decline it.
Where it is impossible or impractical to recall the witness, it should be left to the
TJ to decide if a special instruction should be given to the jury. If so, the jury can
be told that in assessing the weight to be given to the uncontradicted evidence,
they may properly take into account the fact that the witness was not given the
opportunity to speak to it.
The TJ’s instructions to the jury were deficient. TJ led the jury to believe the
witness would be unable to explain inconsistencies in testimony – not
necessarily true. The jury was also not told that the witness should not be held
responsible for what was a tactical error on the defense’s part.
Conclusio New trial ordered for this and other errors.

n
Notes Canadian judges have wide discretion as to how to apply the rule in Browne v
Dunn. Its application in criminal trials is a mater of discretion for trial judges.
There is consensus that its application should be reserved for serious maters
and that discretionary remedies include the possibility of recall and careful
judicial discretion.
Collateral Fact Rule

Counsel in cross-examination is permited to ask questions about non-material maters that may
still be relevant to the witness’s credibility. These questions are subject only to the discretion of
the trial judge, who will take into account such considerations as time and fairness to the
witness.
The collateral facts rule prohibits the introduction of extrinsic evidence which contradicts a
witness’ testimonial assertion about collateral facts. If questions regarding credibility are
collateral, the cross-examiner must accept the answers given and cannot lead other witnesses
to contradict the first witness on such maters.
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AG v Hitchcock
Facts Defendant was tried for a violation of revenue laws. The Crown witness testified
he observed the violation. In cross, the witness was asked whether he had not
earlier made a statement that the officers of the Crown had offered him a bribe to
give that evidence.
The witness denied having said so and defense counsel proposed to call another
witness to testify that such a statement was made. An objection was made that
such evidence was collateral and the witness could not thereby be contradicted.
Analysis The objection was allowed – the evidence was excluded. Had the evidence been
that the witness had made a statement that he accepted a bribe, the ruling would
have been different as that would have reflected the possibility of bias. Bias had
relevance independent of contradiction.
Notes There are two classes of facts which are not collateral:
1. Facts which are relevant to material issues;
2. Facts that are relevant to testimonial factor.
R v R(D)
Facts Parents charged with sexual assault of their disabled children. Children’s
therapist was cross-examined. She was present while the children’s statements
were recorded. Parents counsel sought to cross-examine therapist on the
interview techniques employed during those interviews using unproved copies
of the transcripts of those interviews.
They were seeking to discredit the child witnesses.
Issues Was this collateral evidence?
Rule If the answer of a witness is a mater which you would be allowed on your part
to prove in evidence – if it have such a connection with the issue that would be
allowed to give it in evidence – then it is a mater on which you are allowed to
contradict him.
Analysis The credibility of the children was at the heart of the case against the
appellants. The appellants would have been entitled to lead evidence on the
effect of the interview techniques on the memories of children and accordingly,
met the test in Hitchcock.
Any evidence that might have cast doubt on the children’s credibility, or that
might show that the children had been subjected to coaching and manipulation,
was evidence that would have been crucial to the appellant’s case.
Conclusio TJ erred in restricting cross of child therapist.
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R v MacIsaac
Facts M burned down his building and atempted to collect insurance. Convicted of
arson. Crown relied on evidence of a disreputable witness, who was probably an
accomplice.
Appellant argued that the TJ erred by improperly curtailing the cross-
examination of Leggat, the witness. A report prepared by a psychologist was
introduced at Leggat’s sentencing hearing. Defence counsel confronted her with
the report, which stated she believed she had mystical powers. She denied this
in questioning.
Defense counsel argued this line of questioning was relevant to Leggat’s
credibility.
Issues Was defense counsel’s line of questioning barred by the collateral fact rule?
Rule The collateral fact rule does not curtail what is otherwise proper cross-
examination of a witness; it potentially limits the manner in which answers
given may be subsequently challenged by extrinsic evidence.
Analysis Rule is most often engaged when a cross-examiner atempts to challenge the
credibility of a witness. Generally speaking, credibility is considered to be
collateral, thereby barring the questioner from adducing extrinsic evidence
that bears solely on this issue.
Exception – medical evidence may be adduced to prove that, by virtue of a
mental or physical condition, the witness is incapable of telling or is unlikely to
tell the truth.
If Leggat suffered from delusions or experienced hallucinations, it may have
affected her credibility and reliability as a witness. Moreover, if defense counsel
was contemplating leading the type of evidence considered in Toohey, fairness
to Leggat required that she be confronted with this suggestion during her
testimony.
Not appropriate to cross-examine Legat on an assessment or diagnosis
contained in the report. May have been appropriate to refresh Legat’s memory
using the report.
Conclusio While TJ dealt with issue problematically, it did not result in an unfair trial. No
n ground of appeal here.
R v AC
Rule Collateral fact rule operates to prevent a party from calling extrinsic contradictory
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evidence to undermine the credibility of an opposing party’s witness in relation to

a collateral issue.
It does not operate to confine the scope of what is otherwise proper cross-
examination. The rule is based in trial efficiency and seeks to avoid confusing the
jury and eating up too much time with the sub-litigation of non-essential issues.
R v DS
Rule The collateral facts rule prohibits the introduction of evidence for the sole
purpose of contradicting a witness’ testimony concerning a collateral fact.
The rule seeks to avoid confusion and proliferation of issues, wasting of time and
introduction of evidence of negligible assistance to the trier of fact in
determining the real issues of the case. It endeavours to make sure the
slideshow does not take over the circus.
In general, maters that are related wholly and exclusively to the credibility of a
non-accused witness are collateral, and hence beyond the reach of
contradictory evidence.
A collateral fact is one that is not connected with the issue in the case. It is one
that the party would not be entitled to prove as part of its case, because it lacks
relevance or connection to it. A collateral fact, in other words, is one that is
neither:
1. Material; or
2. Relevant to a material fact.
If the answer of a witness that a party seeks to contradict, is a mater that the
opponent could prove in evidence as a part of its case, independent of the
contradiction, the mater is NOT collateral. Contradictory evidence may be
elicited.
Impeaching, Supporting and Rehabilitating Credibility

There are multiple ways to atack a witness’s credibility.
 Prior inconsistent statements – show the witness has, on a previous occasion made
statements inconsistent with his present testimony.
 You can show this through statements made by the individual himself, or by statements
from other witnesses. If you use other witnesses, there are some limitations:
 Canada Evidence Act section 10 – if you intend to introduce evidence to contradict a
witness, you have to let the witness know before you draw the contradictory evidence.
 If the witness denies having made the contradictory statement, you can adduce proof
that he did, but you must let the witness know about the proof you have.
 Process:
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o Confirm with some precision the witness’s examination in chief;

o Confront witness with the fact that she made an earlier statement;
o Highlight the contradiction;
o Decide how to tactically use the contradiction;
 Atack witness credibility;
 Leave until final address;
 Try to get the earlier statement admited as truth.
 Bias – Show the witness is biased on account of emotional influences such as kinship for
one party or hostility to another, or motives of pecuniary interest, whether legitimate or
corrupt.
 Character – Atack the character of the witness.
 Capacity – Show a defect in the capacity of the witness to observe, remember or recount
the maters testified about.
 Contradiction – Adduce proof by other witnesses that material facts are otherwise than
as testified to the witness under atack.
Impeaching your own witness

There is a common law rule against impeaching your own witness, to stave off the old practice
of forcing a story out of a witness else you destroy their character. There are exceptions to this
rule.
One is where the witness is declared hostile.
R v Coffin
Rule Hostile means “not giving her evidence fairly and with a desire to tell the truth
because of a hostile animus toward the prosecution.”
R v Malik
Facts Crown wanted a declaration that its witness was hostile, thus entitling it to
cross-examine him.
Rule To establish a hostile witness, the Crown must establish that the withholding of
truth flows from a hostile animus to the Crown
Analysis Witness’s evidence is generally consistent with his statement to the police on
his arrest. Witness was clearly trying to minimize the extent of his involvement
in criminal activity, but lying and aversion is not enough to show hostility. The
lies and aversion must stem from a hostile animus. Self-preservation cannot be
grounds for declarations of hostility.
Crown could not prove dishonesty or animus towards Crown. No right to cross
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examine.
Conclusio No hostile witness.

n
You can also impeach your own witness through the Canada Evidence Act, s 9(1) or 9(2).
Canada Evidence Act, s 9(1)
9(1) You cannot impeach your own witness.
However, if the court decides the witness is adverse, you may contradict him through
other evidence or (with the court’s leave) prove the witness has previously made a
statement inconsistent with his present testimony.
If you want to do this, you must give the circumstances of the supposed statement to
the witness, and ask him if he made the supposed statement.
R v Figliola
Facts Murder trial. Crown called a witness who knew about the relationship between
the accused, the deceased, and the accused’s affair.
The witness had made numerous inconsistent statements to both the police and
at PI, adopted a position in testimony contrary to the Crown’s position, and had
a motive to protect her friends.
Issues Can the Crown have the witness deemed adverse under the Canada Evidence
Act, s 9(1)? If so, what does this finding allow?
Rule An adverse witness is not the same thing as a hostile witness, whom the Crown
is allowed to cross-examine at large. Adversity is a much lower bar, just
requiring an opposition in interest or opposition to the position of the calling
party.
An adverse witness is one who is opposed in interest or unfavourable in the
sense of opposite in position to the party calling that witness. A hostile witness
is one who demonstrates an antagonistic or hostile mind toward the party
calling him or her.
Analysis Here, the Crown cross-examined the witness about inconsistencies between her
evidence at trial and statements she had made to the police purely to atack
credibility.
Section 9(1) should have restricted the Crown to cross-examining on the prior
inconsistent statements and the circumstances surrounding them. Jurors
needed to know that if they found the witness lacked credibility, that did not
mean that the appellant was not credible either. The jury should have been
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instructed in this regard.
Conclusio Appeal allowed, new trial ordered.

n
The second way to impeach credibility is only available where there are prior inconsistent
statements which have somehow been recorded. The legislation was designed to allow the
adversity, demanded by s 9(1), to be demonstrated not only by the witness demeanour or
bearing but also by cross-examination on alleged prior contradictory statements.
Canada Evidence Act, s 9(2)
9(2) Where you allege your witness made an inconsistent statement in writing, reduced to
writing, or recorded on audio tape or video tape or otherwise, the court can, without
proof the witness is adverse, grant leave to that party to cross-examine the witness on
the statement.
The court may consider the cross-examination in determining whether, in the opinion
of the court, the witness is adverse.
R v S (CL)
Facts Crown called witness at murder trial. Witness had given a videotaped statement
to the police implicating two of the accused in the killing. At trial, he claimed he
couldn’t remember the events he discussed in his videotaped statement.
The Crown brought an application pursuant to s 9(2) to cross-examine its
witness on the videotaped statement.
Issues  Is “I don’t remember” an inconsistency within the meaning of s. 9(2)?

 What is the burden of proof in determining whether the prior
inconsistent statement was actually made?
Rule A claim by a witness that they have no recollection of events that he or she
related in an earlier statement can constitute an inconsistency within section
9(2) of the Canada Evidence Act.
The party calling the witness must show that there was an inconsistency
between the prior statement and the in-court testimony. The burden then shifts
to the party opposing the cross-examination to establish that there were
circumstances that would render it improper for the judge to permit the cross-
examination.
Procedure for a section 9(2) application (Milgaard Procedure):
 Counsel advises the Court he desires to make an application under s 9(2).
 The Court should direct the jury to retire.
 Upon retirement of the jury, counsel informs judge of particulars of the
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application and produces for him the alleged statement in writing, or the
writing to which the statement has been reduced.
 Judge decides whether there is actually an inconsistency. If there is one,
he should call upon counsel to prove the statement or writing.
 Counsel should then prove the statement.
o If witness admits to making the statement, that is sufficient.
o If witness does not admit, counsel can adduce extrinsic evidence
to prove it was made.
 If witness admits to making the statement, opposing counsel can cross-
examine as to the circumstances under which the statement was made.
 Trial judge retains discretion to decide whether or not the cross-
examination will occur. If so, the jury will be recalled. Judge must be
satisfied that ‘the ends of justice would be best atained by admitting it’.
Judge may consider:
 The actions of police officers who had contact with the witness prior to
the statement being made and the failure of the calling counsel to call on
those police officers;
o The nature of the police questioning;
o The reason given to the witness for the need for a statement;
o Whether the witness was detained or under arrest at the time
of the statement or believed themselves to be so;
o Whether there was any duress, coercion or inducement by
the police;
o Whether police ‘trickery’ was used and its nature;
o Any mistreatment of the witness;
o The length of time leading up to the statement taking;
o The state of mind of the witness when the statement was
taken;
o Whether the witness was impaired by alcohol or drugs or a
non-operating mind;
o Whether the statement was simple yes/no answers to
question or a narrative;
o and the witness’s demeanour while giving his testimony
about the circumstances surrounding the taking of the
statement.
The right to cross-examine under section 9(2) is not automatic. Sometimes,
even where the statement of the recanting witness was taken under threats,
promises and denial of the right to legal counsel, such that the statement could
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not be admited as substantive evidence, those circumstances may not be

sufficient to deny the right to cross-examine on the statement. However, the
circumstances in which cross-examination will be refused are relatively rare.
Bias
If it is intended to impeach the witness by evidence of his or her prior conduct illustrating bias,
it should be preceded by a cross-examination of the witness concerning the same. If the witness
admits his or her bias, that should be the end of it.
General Films Ltd. v McElroy
Rule Only where the witness denies his bias or partiality may counsel adduce
evidence to contradict him.
R v Dikah
Rule Financial incentives to testimony may be grounds for cross-examination and
must cause testimony to be viewed with suspicion, possibly subjecting it to
reduced weight. However, it does not in itself render evidence inadmissible.
R v Ghorvei
Facts Cop testified to seeing accused involved in drug deal. On appeal, accused
wanted to adduce a transcript from another trial with the same cop where the
trial judge called the cop a compulsive liar.
Issues Can a witness be cross-examined on a prior judicial finding that he has lied
under oath?
Rule Cannot cross-examine a witness on the fact that their testimony has been
previously rejected or disbelieved.
Analysis If the cop had a perjury charge, then s. 12 of the CEA would allow cross-
examination on that, but here cross-examination would be based solely on the
credibility assessment of a third party viewing totally unrelated testimony in a
different context.
Supporting or Rehabilitating Credibility

Evidence supporting credibility is not typically permited unless and until credibility has been
atacked. This prohibition extends to both practices of having other witnesses bolster the
credibility of the witness, and to the admission of prior consistent statements. This rule is not
concerned with relevance so much as with superfluity and excess consumption of time.
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In Beland, the Supreme Court expanded on the rules against supporting credibility, and at the
same time ruled that polygraph evidence is not admissible. Since Beland, the issue of
polygraphs has not come up again but it remains the authority.
R v Beland
Facts Respondents charged with conspiracy to commit robbery. The respondents
wanted to undergo a polygraph test and submit the results as evidence. The trial
judge refused.
Issues Can polygraph evidence be admited?
Rule Evidence solely to bolster credibility is not receivable.

The Rule Against Oath-Helping
You cannot adduce additional evidence solely to bolster credibility. Polygraphs
are an example of this – test results and an expert witness to suggest you are
credible.
The Rule Against Prior Consistent Statements
Polygraphs may also be an example of prior consistent statements. Repetition of
statements adds no weight to them, and there is always the risk that consistent
statements can be fabricated in anticipation of a later proceeding.
Analysis The past consistent statement rule would not apply in this case, as the accused
wants to take the polygraph after having already testified.
WILSON J (DISSENTING):-
Polygraphs are not oath-helping; it subjects the accused to a batery of tests to
assess the credibility of a statement, and then an expert opinion on the
physiological reactions of the accused.

n
Common Law Exceptions to the General Rule against Prior

Consistent Statements
R v Stirling
Facts Car accident. H claimed that S was driving. H sues S. Lawsuit gives H motive to
lie. Trial judge admited prior consistent statements that rebuted the allegation.
Rule Prior consistent statements are generally inadmissible, because they generally
lack probative value and are self-serving. It is impermissible to assume that
because a witness has made the same statement in the past, he or she is more
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likely to be telling the truth.

Exceptions to this rule include:
 Where it is suggested that a witness has recently fabricated portions of
his or her evidence. Prior consistent statements can have probative value
in this context because they illustrate that the witness’s story was the
same even before a motivation for fabrication arose.
 Not required that the fabrication accusation be expressly made –
sufficient if the circumstances of the case reveal that the “apparent
position of the opposing party is that there has been a prior
contrivance.”
 Not required that the fabrication be recent.
Analysis The allegation is that H made up his claim that S was driving because of the
lawsuit. To rebut that allegation, H may admit evidence that he had claimed that
S was driving long before the lawsuit was filed, however this may only come in
insofar as it rebuts the allegation and bolster’s H’s credibility. The statements
themselves have no probative value and absolutely may not be used for the
truth of their contents.
By removing a potential motive to lie, admission positively impacts credibility,
but it remains an error to conclude that repetition makes the statement more
likely to be correct. Harding very well may still be lying: maybe he was driving
and immediately after the accident realized the serious consequences of the
accident. However insofar as one potential motive to lie is removed, i.e. financial
incentive, the statements may be adduced and enhance his credibility.
Conclusio Judges may admit prior statements for their existence but not for the truth of
n their contents.
R v Ellard
Rule  Where a party has made an allegation of recent fabrication, the opposing
party can rebut the allegation by introducing prior statements made
before the alleged fabrication arose, that are consistent with the
testimony made at trial.
 In all cases, the timing of the prior consistent statement is central to
whether it is admissible.
 A limiting instruction will almost always be required where prior
statements are admited. The statement can only be used to rebut the
allegation, and may NOT be used to support the fact at issue nor to
support the general reliability of the witness.
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Prior Identification
Litle to no probative value may be gained from in-dock identification. There are some
exceptions to this rule.
R v Tat
Facts Witness was asked to identify the accused in-dock,
Rule Evidence of prior descriptions given and the prior identifications made by the
identifying witness constitute prior consistent statements made by that witness.
The probative force of identification evidence is best measured by a
consideration of the entire identification process which culminates with an in-
court identification.
When a witness in-dock identifies an accused at trial, evidence of previous
identifications and descriptions are admissible to allow the trier of fact to assess
the probative value of the at-trial identification
Part of the Narrative

Prior consistent statements may be admited if they form part of the narrative in that they help
the trier of fact understand how the complainant initially disclosed alleged misconduct. The
statements may not be adduced to confirm the truth of an allegation, but may validly be used to
show the fact and timing of a complaint.
R v Dinardo
Facts Sexual assault charge. Complainant spontaneously recounted the allegations to
several people on the day of the alleged assault. Trial judge found the
complainant’s testimony to be corroborated by her repeated, consistent
statements of the event.
Issue Can these prior consistent statements be admited?
Rule In some cases, prior consistent statements may be admited as part of the
narrative to help the trier of fact beter understand how the complainant’s story
was initially disclosed.
Analysis We must distinguish between using narrative evidence to confirm the truth of
the allegation, which is bad, and using narrative evidence to show the fact and
timing of a complaint, which may help the trier of fact assess truthfulness or
credibility, which is OK. The way the complainant comes forward may add or
detract from the logical cogency of the complainant’s evidence, which may be
useful in assisting the trier of fact.
Trial judge in this case could’ve let the statements in as narrative, but erred in
admitting as corroborative evidence: that required using them for truth, which is
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prohibited.
Recent Complaint
The doctrine of recent complaint is an archaic rule about ‘hue and cry’ following a rape: if you
do not immediately disclose the rape, your testimony could be wholly dismissed.
The Criminal Code was amended in 1983 in respect of the doctrine of recent complaint, but
instead of just abolishing it, section 275 “abrogated” it.
Now, if the defence cross-examines the complainant on a lack of immediate complaint, the
Crown may adduce evidence of a prior consistent complaint. It is important to note this is not a
free-standing ability for the Crown – it is only triggered if the defence alleges lack of recent
complaint.
R v O’Connor
Facts Sexual assault complaint. The defense was that the accusations were fabricated.
Complainant testified that she told a camp counsellor and her best friend that
prior to disclosing the assault.
Defense counsel objected and stated that no allegation of recent fabrication had
been made, so the Crown shouldn’t be able to lead any evidence under the
rubric of recent fabrication.
Rule The law does not require that an allegation of recent fabrication be made
explicitly; the court can look to all the circumstances of the case.
Defense counsel can cross-examine on a lack of recent complaint – but if they do
so then the Crown may adduce evidence of a prior consistent statement.
Compelling the Accused

The general rule is that all witnesses are competent and are compellable. However, there are
special rules when it comes to compelling the accused.
Accused are always competent for the defense, but never compellable by the Crown according
to section 11(c) of the Charter. When the accused does testify, there are two separate but
related concepts of use immunity, one in section 5 of the Canada Evidence Act and the other in
section 13 of the Charter.
Protections Under the Canada Evidence Act

The Crown cannot call the accused as a witness against themselves.
4(1) Every person charged with an offence, and, except as otherwise provided in this
section, the wife or husband, as the case may be, of the person so charged, is a
competent witness for the defense, whether the person so charged is charged
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solely or jointly with any other person.
Once an accused voluntarily decides to testify, they must answer all questions. In Canada, you
cannot refuse to answer a question on the grounds that the answer might tend to incriminate.
Rather, the provision states that you are obliged to answer but the answer cannot be used
against you in later proceedings. It can be used against you in the current proceeding, if it goes
to your credibility or a material fact or issue in the case.
Once the accused testifies, they don’t have a right to silence – but they do have some
protections.
5(1) Not witness shall be excused from answering any question on the ground that
the answer to the question may tend to criminate him, or may tend to establish
his liability to a civil proceeding at the instance of the Crown or of any person.
5(2) Where with respect to any question a witness objects to answer on the ground
that the answer to the question may tend to criminate him, or may tend to
establish his liability to a civil proceeding at the instance of the Crown or of any
person, and if but for this Act or the Act of any provincial legislature, the witness
would therefore have been excused from answering the question, then although
the witness is by reason of this Act or the provincial Act compelled to answer,
the answer so given shall not be used or admissible in evidence against him in
any criminal trial or other criminal proceeding against him thereafter taking
place, other than a prosecution for perjury in the giving of that evidence or for
giving of contradictory evidence.
R v Mottola
Rule For section 5 of the CEA to apply, the objection must be taken by the witness to
the question.
Where the witness thinks that all the questions will incriminate him, the trial
judge might permit a general objection to each and every question – but the
objection cannot be taken before the witness is sworn and before he is asked a
question.
Protections Under the Charter

Section 11(c) and section 13 of the Charter
11(c) Any person charged with an offence has the right… not to be compelled to be a
witness in proceedings against that person in respect of the offense.
13 A witness who testifies in any proceedings has the right not to have any
incriminating evidence so given used to incriminate that witness in any other
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proceedings except in a prosecution for perjury or for the giving of contradictory

evidence.
R v Dubois
Rule “in any other proceeding” in section 13 includes a second trial.
R v Mannion
Rule The Crown is not permited to cross-examine on section 5 testimony in a
subsequent trial where the purpose is to incriminate the accused.
R v Kuldip
Rule Cross-examination on the accused’s previous voluntary testimony is permited if
the purpose is to impugn his or her credibility, rather than to incriminate him or
her.
R v Noel
Rule Under section 13 of the Charter, when an accused testifies at trial he or she
cannot be cross-examined on prior testimony from an earlier trial unless the
trial judge is satisfied there is no realistic danger that the prior testimony could
be used to incriminate the accused.
R v Henry
Facts The two accused had voluntarily testified at their first trial and then, after a new
trial was ordered, provided a drastically different story. The Crown cross-
examined them on their previous testimony.
Issues Was this cross permited?
Rule The Supreme Court overruled Mannion and modified Kuldip. The question is
now whether the accused voluntarily testified at the previous trial. If so, the
Crown may cross on the prior testimony, regardless of whether the purpose is
to impeach credibility or to incriminate.
The protection only applies to compelled testimony.
The Court declined to overrule Dubois with the result that the Crown may not
introduce the prior testimony as a part of its case in chief even if the accused
voluntarily testified at the previous trial.
Section 13 of the Charter does not require an objection to be compelled as
does section 5(2) of the CEA. It is applicable and effective without invocation,
and even where the witness in question is unaware of his rights. It is not
limited to a question in respect of which a witness would have been entitled to
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refuse to answer at common law and its prohibition against the use of
incriminating evidence is not limited to criminal proceedings.
Its use immunity extends to proceedings beyond the criminal. Its purpose is to
“protect individuals from being indirectly compelled to incriminate themselves.”
Section 13 extends the protections of section 5 to give further and beter effect
to this purpose.
Nedeclu
Facts Motorcycle accident. Accused was sued and charged criminally. In discovery, he
testified he had no memory of the event. At the criminal trial, he gave a detailed
recollection.
Issues Can the Crown cross-examine the accused on the discovery answer, which was
given while compellable?
Rule There is a quid pro quo rationale for compulsion – if you tell the truth, the state
will afford you protection.
1. The party seeking to invoke section 13 must show the evidence given
was incriminating and given under compulsion at the prior proceeding.
2. Where incriminating evidence is given under compulsion, it cannot be
used for any purpose.
3. “Incriminating evidence” is any evidence given by the witness at the
prior proceeding that the Crown could use, if it was allowed to, to prove
one or more essential elements of the offence.
4. “Compelled” essentially means compellable. Everyone is presumed
competent and compellable – ordinary witnesses can be forced to testify.
An accused witness cannot be compelled – if they testify voluntarily,
they waive their right of non-compellability under section 11(c). Ask:
Was the respondent statutorily compelled to give evidence in the
proceeding?
Analysis Partially reversed Henry. Confirmed that use immunity under section 13 of the
Charter only applies where an accused gave incriminating evidence under
compulsion of a prior proceeding.
However, TJ in this case did not err in permitting the Crown to cross the accused
on civil discovery statements because the statements were not incrimination, as
“incriminating evidence” only refers to evidence the Crown could (if permited)
use in subsequent proceedings to prove or assist in proving one or more
essential requirements of the offence charged.
Here, there was no quid for there to be a quo. The quid is the incriminating
evidence. The quo is the state’s promise not to use the evidence to incriminate
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the witness in any other proceeding, except prosecution for perjury or for the
giving of contradictory evidence.
Notes Nothing Nedelcu said in the first case went to any elements of the crime… so it
wasn’t incriminating evidence. It goes strictly to credibility.
Principle Against Self-Incrimination: Charter section 7

There is a principle against self-incrimination that is wider than the pre-trial right to silence
recognized in R v Hebert, the protections against compellability in section 11(c) and the privilege
against self-incrimination in section 13.
R v Hebert
Hebert is a very pragmatic decision, concerned primarily with outlawing police trickery which
deprives the accused of the right to silence. This is also why it has become largely obsolete.
Facts Hebert told the police he didn’t want to speak to them. He was placed in a cell
with an undercover cop, who extracted from Hebert an incriminating statement.
Issue Was the statement admissible?
Rule The right to silence is a principle of fundamental justice within section 7, subject
to 4 limits:
1. Police may continue to question the accused in absence of counsel after
the accused has retained counsel;
2. The right to silence is only triggered on detention;
3. The right to silence does not affect voluntary statements to a cell-mate,
provided that person is not an undercover officer nor a police informant;
4. The right is not violated where undercover officers observe the suspect
and do not actively elicit information in violation of the suspects choice
to remain silent.
Analysis The statements were obtained in the violation of section 7.
R v P(MB)
Rule The single most important organizing principle is the right of an accused not to
be forced into assigning his or her own prosecution. This means an accused is
under no obligation to respond until the state has succeeded in making out a
prima facie case against him or her.
Until a Crown has established a case to meet, an accused is not compellable in a
general sense and need not answer the allegations against him or her.
Any state action that coerces an individual to furnish evidence against him or
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herself in a proceeding in which the individual and the state are adversaries
violates the principle against self-incrimination. Coercion means the denial of
free and informed consent.
BC Securities Commission v Branch

Facts Two officers of a company were served with summonses from the Securities
Commission under the provincial Securities Act compelling their atendance for
examination and requiring them to produce all records in their possession.
When the officers failed to appear, the Commission sought a court order
committing the officers for contempt.
Issues Did the Act violate the officers’ section 7 right against self-incrimination?
Rule The principle against self-incrimination requires that persons compelled to

testify be provided with subsequent derivative-use immunity in addition to the
use immunity guaranteed by section 13 of the Charter.
The accused would have the evidentiary burden of showing a plausible
connection between the compelled testimony and the evidence later sought to
be adduced. Once this was done, in order to have the evidence admited, the
Crown would have to satisfy the Court on a balance of probabilities that the
authorities would have discovered the impugned evidence absent the
compelled testimony.
Courts can (in certain circumstances) grant exemptions from compulsion to
testify. The crucial question is whether the predominant purpose for seeking
the evidence is to obtain incriminating evidence against the person compelled
to testify or rather for some legitimate purpose.
R v Fitzpatrick
Rule Distinguishes Branch – section 7 does not prevent the Crown from relying on
statutorily required fishing logs on a charge of overfishing.
R v G(SG)
Rule The discretion to allow the Crown to reopen its case after the defence had
begun to answer was extremely narrow and far less likely to be exercised,
otherwise the section 7 right of an accused not to be conscripted would be
compromised.
R v White
Rule Section 7 barred the admission of motor vehicle accident reports made under
the compulsion of a provincial Motor Vehicle Act at a trial for failing to stop at
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the scene of an accident under section 252(1)(a) of the Criminal Code.

To obtain this use immunity, the person who made the statements would have
to prove compulsion on a balance of probabilities. The test was whether the
declarant held an honest and reasonable belief that he or she was required by
law to report the accident to the person to whom the report was given.
The POFJ against self-incrimination has two purposes – first, to protect against
unreliable confessions, and second, to protect against abuses of power by the
state.
R v B(SA)
Rule The principle against self-incrimination developed under section 7 of the
Charter is of “limited application”.
No Adverse Inference from Pre-Trial Silence

R v Turcotte
Facts Turcote went to a police station and asked that they visit his ranch. He told
police there was no danger, but refused to explain his request. The police found
three murder victims and charged Turcote. The trial judge charged the jury that
they could consider his silence – i.e., not explaining the request – as “relevant to
his state of mind.”
Issue Can inferences regarding an accused’s state of mind be drawn from pre-trial
silence?
Rule 1. There is a common law right to pre-trial silence that does not require
detention to be triggered.
2. Pre-trial silence is generally inadmissible as evidence and no adverse
inferences can be drawn from it.
o A refusal to assist is nothing more than the exercise of a
recognized liberty and, standing alone, says nothing about that
person’s culpability.
3. Exception – evidence of silence is admissible where the Crown can
establish real relevance and a proper basis, and the jury is properly
warned.
o Where a co-accused blames the other, pre-trial silence can be
admited to assess credibility but not to infer guilt;
o Where the defense raises an issue that renders the accused’s
silence relevant (cooperation with authorities, where the silence
is relevant to a defence theory of mistaken identity);
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o Failure to disclose alibi in timely manner;

o If silence is inextricably bound up with the narrative or other
evidence and cannot be easily extricated.
Analysis Absent a statutory requirement to speak, individuals have the right to choose
whether to speak to the police or remain silent. The common law right to
silence exists at all times against the state, whether or not the person
asserting it is within its power or control.
A willingness, like T’s, to disclose some information to the police does not
completely submerge an individual’s right not to respond to police
questioning.
There is an argument that T’s behaviour at the RCMP detachment, including
his refusal to answer some of the police’s questions was arguably admissible
as an inextricable part of the narrative. But, it could not be admitted to
support an inference of guilt in order to contradict an intuitive impulse to
conclude that silence is incompatible with innocence. Where evidence of
silence is admited, the jury must be instructed about the proper purpose for
which the evidence is admited, the impermissible inferences which must not
be drawn from evidence of silence, the limited probative value of silence, and
the dangers of relying on such evidence.
Notes Distinguish between the common law right to silence and the Charter pre-
trial right to silence recognized in Hebert.
The common law right applies whether or not the accused was advised of the
right, prior to arrest or detention, and also the doctrine of waiver applies.
No Adverse Inference from Trial Silence

Generally, no adverse inference should be drawn from the accused remaining silent before trial.
However, there are some circumstances in which adverse inferences may be drawn when an
accused fails to testify at trial.
Nobel
Facts Manager of apartment building sees two young men trying to break into a
car. He takes their license to identify them. The accused remain silent at trial
despite an overwhelming case to meet. TJ draws an adverse inference from
trial silence.
Issue Can an adverse inference be drawn from silence at trial?
Rule No adverse inferences can be drawn from silence at trial.
Analysis Under section 11(c), the accused has a right to remain silent at trial. Allowing
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a negative inference to be drawn from this silence would go against the

presumption of innocence. However, there are some exceptional
circumstances where adverse inferences or similar reasoning processes could
be drawn from trial silence:
1. In a judge-alone trial, silence can be treated as the absence of any
explanation which would raise a reasonable doubt. If the Crown has
proven the case BARD, and the accused is silent, the Crown prevails.
2. In judge-alone trial, silence means there is no need to speculate about
possible defenses.
3. Silence can be confirmation of guilt in that it may indicate the Crown does
not need to negative a defense, like self-defense or an alibi. Alibi defenses
require some substance – they are too easily fabricated.
4. Judge may note to the jury that, due to an accused silence, the Crown’s
evidence on a particular issue is uncontradicted. This may only be an
instruction to take note of a lack of contradictory evidence though, and
may not be an instruction to draw an adverse inference.
The underlying theme for the general prohibition on adverse inferences from
trial silence is that trial silence may not be a ‘makeweight’. So, in all exceptions
(except for the alibi exception), it is important that the Crown has been able to
establish its case BARD.
Comments on Trial Silence

The judge and the Crown may not make prejudicial comments on the failure of the accused to
testify. Remedial comments are permissible, as are reminders that a jury is entitled to take into
account the fact that certain evidence is uncontradicted.
Note that section 4(6) does not prohibit counsel for a co-accused from commenting on the
silence of the other co-accused, but counsel may not mislead the jury on a mater of law (for
example, by asking them to draw an adverse inference).
Section 4(6), Canada Evidence Act
4(6) The failure of the person charged, or of the wife or the husband of that person,
to testify shall not be made the subject of comment by the judge or by counsel
for the prosecution.
R v Prokofiew
Facts Fraud trial with co-accused. Only one accused testified, and invited the jury to
draw an adverse inference from the trial silence of the other. The trial judge
refrained from comment, believing that section 4(6) prohibited him from giving
limited instructions.
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Issue Can judges make non-prejudicial comments on an accused’s silence at trial?
Rule Section 4(6) prohibits only prejudicial comments. The judge and Crown cannot
comment in a manner that suggests an adverse inference, but it is permissible to
give remedial instructions (i.e., to remind the jury that they cannot draw an
adverse inference from trial silence). A trial judge may do so where there is a
realistic concern that the jury may place evidential value on an accused’s
decision not to testify.
It does not prohibit a trial judge from affirming an accused’s right to silence.
It is also permissible for the judge or Crown to comment to the jury that certain
evidence is uncontradicted.
Analysis Judges should use their discretion to determine whether a special instruction
about the right to silence is needed in a particular case. Where an instruction is
given, it must be clear that silence cannot be a makeweight for the Crown’s case.
Section 4(6) does not prohibit counsel for a co-accused from making prejudicial
comments, but where that occurs, there should be an instruction.
Exclusionary Rules
The Voluntary Confession Rule
To be receivable at trial, a confession must be voluntary. The Crown is under the obligation to
prove BARD that it is so.
“In order for most statements made to a person in authority to be admissible the Crown must
establish BARD in light of all the circumstances that will of the accused to choose whether to
speak has not been overborne by inducements, oppressive circumstances, or the lack of an
operating mind. In addition, there must not be police trickery that unfairly denies the accused’s
right to silence.”
Criminal Code, Preliminary Inquiry
Having heard the evidence, do you wish to say anything in answer to the charge? You are not
bound to say anything, but whatever you do say will be taken down in writing and may be
given in evidence against you at your trial. You must clearly understand that you have nothing
to hope from any promise of favour and nothing to fear from any threat that may have been
held out to induce you to make any admission or confession of guilt, but whatever you now
say may be given in evidence against you at your trial notwithstanding the promise or threat.
The Rule Pre-Oickle

Before Oickle, the concern at common law was reliability. Two significant historic cases are
Ibrahim, before the UK, and Wray, a SCC decision.
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Ibrahim v R
Facts A soldier was charged with murder. Evidence was admited at his trial that
within 10 or 15 minutes of the murder, the accused (being in custody of the
guard) was questioned by his commanding officer and the accused revealed he
had killed the fellow because the victim had been abusing him for four days.
Issue Was this confession admissible?
Rule No statement by an accused is admissible in evidence against him unless it is

shown by the prosecution to have been a voluntary statement, in the sense that
it has not been obtained from him either by fear of prejudice or hope of
advantage exercised or held out by a person in authority.
Analysis In this case, the receipt of the statement did not breach the rule, but it was still
inadmissible because it was made in answer to a question, and the question was
put by someone in authority and the answer given by a man in his custody.
Conclusio The evidence was not admissible.

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R v Wray
Facts Accused was charged with murder and gave a statement to the police in which
he stated he threw the gun in a swamp, would try and show them the spot, and
had nothing else to add. He directed the police to the area, the gun was found
and ballistic evidence matched the bullet from the victim’s body to the gun.
The trial judge ruled the accused’s statement was involuntary and thus
inadmissible.
Issue Is the evidence admissible?
Rule The St. Lawrence rule states that a trial judge has a discretion to reject evidence,
even of substantial weight, if he considers that its admission would be unjust or
unfair to the accused or calculated to bring the administration of justice into
disrepute.
The exercise of such discretion is to depend upon the particular facts before
him.
The Court in Wray modifies this rule, stating that the exercise of a discretion by
the trial Judge arises only if the admission of the evidence would operate
unfairly. The allowance of admissible evidence relevant to the issue before the
Court and of substantive probative value may operate unfortunately for the
accused, but not unfairly. It is only the allowance of evidence gravely
prejudicial to the accused, the admissibility of which is tenuous, and whose
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probative force in relation to the main issue before the Court is trifling, which
can be said to operate unfairly.
Analysis The policy underlying the confession rule is rooted in a concern for
trustworthiness; if the confession is confirmed as true by tangible evidence,
there is no need to exclude.
Conclusio New trial directed.

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Revised Approach in Oickle

The two reasons for the voluntary confessions rule include:
1. Reliability – People will say anything to get out of a coercive situation;
2. Fairness – Protecting the dignity and administration of justice.
Facts Series of arsons. Oickle, a member of the volunteer fire department, was first on
scene for every one. He took a polygraph and failed. The police over-
exaggerated the consequences of failing a polygraph.
He was questioned for an hour, then for another 30 minutes after a short break.
Eventually, he confessed to the first fire. 8 hours after the start of the polygraph,
he confessed to setting 7 of the 8 fires. He was seen crying during the
confessions and later gave a writen statement. A total of 12 hours passed
between first going to the police station and giving the writen statement.
Issues Was Oickle’s confession admissible?
Rule Common Law Rule

The Common Law Rule provides additional protection above the bare minimum
afforded by sections 7 to 14 of the Charter.
1. The common law confessions rule applies whenever a person is
questioned by a person in authority.
2. When a person confesses to a person in authority, there is an onus on
the Crown to prove the voluntariness of the confession beyond a
reasonable doubt.
3. The voluntary confessions rule is a common law rule, and violation
means automatic exclusion.
4. A confession that is not voluntary will often (though not always) be
unreliable
5. The application of this rule is contextual.
Hebert recognizes that “the absence of violence, threats and promises by the
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authorities does not necessarily mean that the resulting statement is voluntary,
if the necessary mental element of deciding between alternatives is absent.”
The voluntary confessions rule is broader than the Ibrahim formulation: it is
concerned with voluntariness, broadly understood, over reliability.
Five Types of Confessions
1. Voluntary
2. Stress-compliant – where the aversive interpersonal pressures of
interrogation become so intolerable that suspects comply in order to
terminate questioning. Given in order to escape interrogation.
3. Coerced-compliant – the product of classical coercive influence
techniques like threats or promises.
4. Non-coerced-persuaded – police tactics cause the innocent person to
“become confused, doubt his memory, be temporarily persuaded of his
guilt and confess to a crime he did not commit.” The use of fabricated
evidence can also help convince an innocent suspect of his or her own
guilt.
5. Coerced-persuaded – like non-coerced persuaded, but the interrogation
also involves the classically coercive aspects of the coerced-compliant
confession.
Ways in which confessions can be involuntary:
1. Threats or Promises –
o Confessions may be involuntary if they form a quid pro quo, a fear
of prejudice or a hope of advantage.
o Offering psychiatric assistance or other counselling for the suspect
in exchange for a confession
o Threats or promises do not have to be aimed directly at the
suspect for them to have a coercive effect.
o Avoiding a beating or getting a reduced charge all raise concerns.
o Take careful note of the exact phrasing used by interrogators –
ominous phrases (“it will be beter if you tell the truth”) can raise
concerns, but saying e.g. “your fiancé will be happier if you tell the
truth” or spiritual inducements may not raise the same concerns.
Trial judge must look at the context and ask whether there is a
reasonable doubt that the resulting confession was involuntary.
o Spiritual inducements (you’ll feel beter) are not as big of a deal –
the officer has no way to actually give that benefit.
o Inducements are permissible – they just become improper when
the inducements, whether standing alone or in combination with
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other factors, are strong enough to raise a reasonable doubt about

whether the will of the subject has been overborne.
2. Oppression
o Oppressive conditions, like lack of food, heat, sleep, or aggressive
and excessively long questioning may render a confession
involuntary.
o The conditions must have caused the confession – the suspect
confessed to escape the conditions. There must be some causal
connection.
o Police use of fake or inadmissible evidence falls under oppressive
conditions.
3. Operating mind
o Voluntariness defined broadly, i.e. fairness in the justice system.
o Not as concerned with reliability – the concern is police
interrogating people ‘not there’ mentally (intoxicated, shock,
hypnosis, schizophrenia).
o Does the accused know what they are saying and that they are
saying it to a police officer who can use it to their detriment?
4. Police Trickery
o Primary objective is maintaining the integrity of the justice system.
o Test whether trickery is such that it would ‘shock the community’
– otherwise, trickery is permited with police discretion.
o Ex. Pretending to be a chaplain, lawyer, injecting truth serum.
Summary
Whether or not a confession is voluntary is an extremely fact-specific analysis in
every case. A court should strive to understand the circumstances surrounding
the confession and ask if it gives rise to a reasonable doubt as to the
confession’s voluntariness, taking into account all the aspects of the rule
discussed above.
A minor inducement (offering a tissue) may become a major one if a subject has
been deprived of sleep or warmth for several hours in the middle of the night
during an interrogation.
On the other hand, where a subject has been treated well, it will take a stronger
inducement to render the confession involuntary.
Standard
To overturn a finding that a confession was voluntarily given, you must show a
palpable and overriding error which affected the trial judge’s assessment of the
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facts. Quite a high level of error!
Analysis The police conducted a proper interrogation. Their questioning was never
hostile or intimidating, they repeatedly offered the accused food and drink and
repeatedly told him he could leave at any time.
Conclusio The trial judge’s determination that the confessions at stake in this appeal were
n voluntarily given should not have been disturbed on appeal.
R v Spencer
Facts Accused was arrested in connection with a series of robberies. His girlfriend was
also arrested in connection with one of the robberies. Through an eight-hour
interview, he repeatedly atempted to obtain lenient treatment for his girlfriend
in exchange for his own confessions. He also requested to visit her, though the
police refused to allow so until he “cleaned his slate”
Issue Was withholding the visit until the confession an inducement?
Rule Police are to be given considerable leeway to offer inducements to obtain

confessions without rendering the statement involuntary.
Analysis While it was an inducement, it was not strong enough to raise a reasonable
doubt that the accused’s will was overborne. It is the strength of the alleged
inducement that must be considered in the overall contextual inquiry into
voluntariness.
The Pre-Trial Right to Silence and Interrogation

R v Hebert
Facts Accused gave a statement to an undercover police officer placed in his cell after
he had indicated he did not wish to speak to police.
Rule The person whose freedom is placed in question by the judicial process must be
given the choice of whether to speak to the authorities or not.
Section 7 embodies the right to pre-trial silence, with 4 limitations:
1. It only applies on detention;
2. After consulting with a lawyer, police can continue questioning the
accused without the lawyer present;
3. It does not affect voluntary statements to a cell mate, so long as the cell
mate is not an undercover cop or police informant; and
4. Undercover cops may not elicit information, but may act as listening
posts.
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R v Smith
Rule A detained person has no absolute right to remain silent. The police are not
absolutely prohibited from questioning a detained person and do not have to
advise as the right to remain silent.
When there is no section 10(b) right to counsel, as in the case of a motorist
required to perform sobriety tests, the section 7 right to make an informed
choice as to whether to speak to police requires only that the police do not
engage in conduct that effectively and unfairly deprives the detainee of the right
to choose whether to speak.
R v K(HW)
Facts Police asked the accused in a murder case whether he wished to take a
breathalyser, after assuring the lawyer they would not be viewing him.
Analysis The section 7 right to silence was not breached by overriding the accused’s
choice not to speak. Because of the agreement with the lawyer, the judge found
this case came close to the line between “fair and unfair treatment”, but noted
that the accused had chosen freely and voluntarily to say far more than was
necessary to answer the question.
R v Otis
Rule Continued police questioning, after the accused asked it to stop four times,
violated section 7. The police were not entitled to use their superior power to
totally disregard the accused’s desires and undermine his choice to remain
silent.
Once an accused has clearly stated he or she wishes to remain silent, the
police cannot act as if there has been a waiver.
R v Roy
Facts Accused was convicted of a murder of an 11-year-old girl lured from her home.
Argued that his confession followed an eight-hour interrogation had breached
his section 7 pre-trial right to silence.
Rule The repeated assertion by a detained person during a lengthy interview that he
does not want to speak to the police any further will provide strong and
sometimes conclusive evidence that any subsequent statement was not the
product of a free exercise of the detainee’s right to choose whether to speak.
The question is a factual one, to be decided on a case by case basis by the trial
judge.
Analysis The accused had not chosen not to speak as he had a game plan to answer
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some but not all questions.
Otis and Roy were not followed in the surprising and controversial ruling of a 5-4 majority in R v
Singh, that in the context of interrogation by the police the section 7 pre-trial right to silence
had been subsumed by the voluntary confession rule.
R v Singh
Facts The accused was charged with second degree murder after an altercation
outside a pub resulted in a man’s death. There was no physical evidence linking
the accused to the shooting, but the doorman and another eyewitness
implicated the accused as the shooter.
The accused was arrested, properly cautioned and advised of his right to
counsel, and he privately consulted with counsel. The accused was subsequently
interviewed twice by a police officer while in detention. During the interviews,
he repeatedly stated he did not want to talk about the incident and wished to
return to his cell. On each occasion, the officer affirmed he did not need to say
anything but indicated he intended to continue trying to get the accused to
confess.
After asserting his right to silence 18 times, the accused made incriminating
statements though he did not confess. The statements were deemed admissible
by the SCC.
Issues Were the statements involuntary and obtained in violation of the accused’s pre-
trial right to silence under section 7 of the Charter?
Rule Where a suspect is detained and knows they are speaking with a person in
authority, the section 7 pre-trial right to silence and the voluntary confession
rule are “functionally equivalent”.
Both the section 7 pre-trial right to silence and the voluntary confessions rule
are manifestations of the principle against self-incrimination.
The right to remain silent does not mean the right to remain free of
questioning – police are allowed to question.
Voluntariness encompasses respect for an individual’s freedom of will, the need
for law enforcement officers themselves to obey the law, and the overall fairness
of the criminal justice system. The notion of voluntariness is broad-based and
has long included the common law principle that a person is not obliged to
give information to the police or to answer questions.
The mere fact that a warning was given (you do not have to say anything, but if
you do, it may be used as evidence against you) is not necessarily decisive in
favour of admissibility but, on the other hand, the absence of a warning should
not bind the hands of the Court so as to compel it to rule out a statement. All
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the surrounding circumstances must be investigated.

The voluntary confession rule applies at all time, section 7 only applies in
detention.
Analysis All we care about during a police interrogation is the voluntary confessions rule.
If a confession is voluntary, then there is no section 7 breach. If there is a section
7 breach, then it is involuntary.
Section 7 is a right to remain silent, not a right not to be spoken to. We’re not
going the US route that police need to leave as soon as the right to silence is
invoked, however, continued questioning in the face of a desire to remain silent
may, through oppressive conditions, render the statement involuntary. If the
statement survives Oickle, it will not violate section 7.
There was no requirement here for the police to caution the accused of his right
to silence, but as a practical mater, the court are more likely to rule that a
statement was voluntary where police caution the accused of the right.
DISSENT:-
Where resistance is made to appear futile, submitting may be voluntary, but it is
still a breach of section 7. Thus, section 7 and Oickle are not “functionally
equivalent”.
Also undermines the right to counsel.

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Dufraimont on Singh
o Singh provides insufficient protection for the right to silence. As long as the Charter
protects the pre-trial right to silence, why do we need to guard the power of police
interrogator to undermine a suspect’s choice to remain silent?
o Agree with majority that persistent questioning in the fact of repeated assertions of the
right to silence can render a statement inadmissible.
R v Sinclair
Rule The section 10(b) right to retain and instruct counsel without delay does not, in
contrast to the law in the United States, mandate the presence of defense
counsel during custodial interrogation.
In most cases, an initial warning coupled with a reasonable opportunity to
consult counsel or duty counsel when the detainee invokes the right, satisfies
section 10(b). However, the police must give the detainee an additional
opportunity to receive advice from counsel where developments in the course
of the investigation make this necessary to serve the purpose underlying
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section 10(b) of providing the detainee with legal advice relevant to his or her
section 7 right to choose whether to cooperate with police investigation.
BINNIE J, dissent :-
Allows an individual to be detained and isolated…
Introduction to Hearsay & the Principled Approach

Hearsay is testimony adduced for proof of the matter asserted, with the absence of a
contemporaneous opportunity to cross-examine the declarant. It rests its value on the
credibility of the out-of-court assenter. There is no distinction between express or implied
assertions. Further, a declaration may still be hearsay where the declarant is a witness, as the
problem is contemporaneous cross-examination.
Where a statement is identified as hearsay, it is presumptively admissible unless it falls within a
‘pigeonhole’ exception.
To determine if a statement is hearsay, ask the following questions:
1. Who is the declarant of the out of court statement (may or may not be a witness)?
2. What does the statement assert?
3. What is the purpose of tendering the assertion?
4. If it is to prove the truth of the assertion, there is a hearsay problem.
Given the basis for the hearsay rule – the adversary’s inability to cross-examine the person with
knowledge of the event – we can identify how to avoid hearsay. If there are relevant,
meaningful questions that the adversary might wish to ask of the person who made the out-
of-court statement, then the out-of-court statement is hearsay. If there are no meaningful
questions that can be put, the statement is not hearsay.
So, the reasons for excluding hearsay include a lack of protective safeguards of oath and cross-
examination.
Ex. A police officer stopped a person because he thought she was drunk. The statement that the
police officer thought the driver was drunk is not hearsay – it does not mater if the person was
actually drunk, it maters if the police officer thought and thus had reason to stop the driver.
If the problem is a hearsay problem, the statement is still admissible if:
1. It meets the principled approach of necessity and reliability (Khan, Smith, KGB,
Khelawon, Baldree).
2. Admission of the party-plaintiff or defendant in civil case, accused in criminal case but
not the victim, or
3. Meets one of the seven established pigeonhole exceptions.
Examples of Hearsay
 I saw Mary stab Beth.
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o Not hearsay. You can cross-examine the witness, ask what they saw, evaluate
their recollection.
 George told me that Martin stabbed him.
o Hearsay. We don’t have George under oath, we can’t assess his level of
perception in those circumstances. You cannot adduce this statement as proof
that Martin stabbed him.
 Paternity suit – guy is trying not to pay any child support by claiming he is not his kid.
Mother claims guy sent child a birthday card saying ‘to my darling son.’
o Declarant is father.
 Someone claims they are mute, but the witness claims that person spoke outside of
court.
Counsel often tries to make an end-run around the hearsay rule by saying they are adducing the
statement not for its truth, but for the fact that it was made.
Subramaniam v Public Prosecutor (Malaya Case)
Facts The accused was convicted of unlawfully possessing ammunition contrary to
Emergency Regulations in Malaya and was sentenced to death. His defense had
been duress and he sought to relate conversations he had had with terrorists
who had threatened him. The trial judge ruled the evidence was hearsay and
not admissible unless the terrorists were called.
Rule Evidence of a statement made to a witness by a person who is not himself called
as a witness may or may not be hearsay. It is hearsay and inadmissible when
the object of the evidence is to establish the truth of what is contained in the
statement. It is not hearsay and is admissible when it is proposed to establish by
the evidence, not the truth of the statement, but the fact that it was made. The
fact that the statement was made, quite apart from the truth, is frequently
relevant in considering the mental state and conduct thereafter of the witness
or of some other person in whose presence the statement was made.
Analysis The value of the impugned evidence in this case did not rest on the credibility of
the out-of-court asserter; the value of the evidence was in the fact of the
statement having been made, since if believed by the accused it would support
his defense of duress. No meaningful questions would be asked of the terrorist
themselves.
Conclusio The trial judge was in error.

n
R v Dunn
Facts On a charge of threatening, the Crown needed to establish that the interception
of the telecommunication containing the threat was lawfully made. The wiretap
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provisions of the Criminal Code provide that an intercept is lawfully made if the
recipient of the communication consented to the interception.
The prosecution sought to lead evidence of conversations between the police
officer and the victim, by then deceased, in which the victim gave her consent to
the interception.
Conclusio Not hearsay – the value of the evidence did not rest on the credibility of the out-
n of-court asserter. The police officer had been tendered to testify an objective
fact which he had observed, consent given, the relevance of which simply
resided in its happening.
The adversary was not prejudiced in being unable to cross-examine the
complainant regarding what she meant by the words she utered and the trier of
fact could equally well decide, without her presence, whether the words utered
amounted to a valid consent.
R v Baltzer
Rule It is not the form of the statement that determines if it is hearsay, but the use to
which it is put. Whenever a witness testifies that someone said something,
immediately one should then ask, “what is the relevance of the fact that
someone said something.”
If therefore, the relevance of the statement lies in the fact that it was made, it
is the making of the statement that is the evidence – the truth or falsity of the
statement is of no consequence: if the relevance of the statement lies in the
fact that it contains an assertion which is, itself, a relevant fact, then it is the
truth or falsity of the statement that is in issue. The former is not hearsay, the
later is.
R v Khelawon
Rule Definition of Hearsay
 The central concern underlying the hearsay rule is the difficulty of
testing the reliability of the declarant’s assertion.
 The fear is that untested hearsay evidence may be afforded more weight
than it deserves. The essential defining features of hearsay are therefore
the following:
o The fact that the statement is adduced to prove the truth of its
contents; and
o The absence of a contemporaneous opportunity to cross-
examine the declarant.
Statements adduced for their truth
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 It is only when evidence is tendered to prove the truth of its contents

that the need to test its reliability arises.
Absence of Contemporaneous Cross-Examination
 The traditional law of hearsay also extends to out-of-court statements
made by the witness who does testify in court when that out-of-court
statement is tendered to prove the truth of its contents.
 When the witness repeats or adopts the out-of-court statement in court,
there is no problem. The hearsay issue arises when the witness does
not repeat or adopt the information contained in the out-of-court
statement and the statement itself is tendered for the truth of its
contents.
 Since there is no opportunity to cross-examine the witness
contemporaneously with the making of the statement, there can be
limited opportunity for a meaningful testing of its truth. In addition, an
issue may arise as to whether the prior statement is fully and accurately
recorded.
 However, where the declarant is available for cross-examination on the
earlier statement, particularly where an accurate record of the
statement can be tendered in evidence, the problem is attenuated.
R v Baldree
Facts Accused was charged with possessing marijuana and cocaine for the purposes of
trafficking. The police seized his phone and answered a call for him, from a
person who wanted to buy weed.
The caller provided an address but the police did not visit that address or try
and find the caller. The trial judge admited the call as circumstantial evidence
that the accused was engaged in drug trafficking and convicted the accused.
Issues Are assertions implied in verbal statements properly considered hearsay?
Rule 1. An out-of-court statement by a person not called as a witness in the

proceedings is properly characterized as hearsay where it is tendered in
evidence to make proof of the truth of its contents.
2. Hearsay is presumptively inadmissible as a mater of law.
3. Hearsay are out-of-court statements whose relevance is not that the
statement was made, but rather what the content of the statements
purports to prove.
4. With respect to logical relevance, there is no substantive distinction
between express and implied hearsay. The principled reasons for their
presumptive inadmissibility apply equally to both.
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The defining features of hearsay are:

1. The fact that the statement is adduced to prove the truth of its contents
and;
2. The absence of a contemporaneous opportunity to cross-examine the
declarant.
Hearsay evidence is presumptively inadmissible because of the difficulties
inherent in testing the reliabilities of the declarant’s assertion.
Four Specific Concerns Relating to Hearsay
1. The declarant may have misperceived the facts to which the hearsay
statement relates;
2. Even if correctly perceived, the relevant facts may have been wrongly
remembered;
3. The declarant may have narrated the relevant facts in an unintentionally
misleading manner; and
4. The declarant may have knowingly made a false assertion.
The opportunity to fully probe these potential sources of error arises only if the
declarant is present in court and subject to cross-examination.
The hearsay nature of evidence cannot be made to depend on how the
declarant framed his request. Most importantly, there is no principled reason
to distinguish between express and implied assertions adduced for the truth of
their contents – both function in precisely the same way.
Analysis The Crown produced the evidence as proof of truth of its contents. This was
hearsay. The Crown produced the evidence to try and get the jury to believe
that the accused was a drug dealer – the unknown caller intended to purchase
marijuana from the respondent because he believed the respondent to be a
drug dealer. The relevance of the statement thus hinges on the truth of the
declarant’s underlying belief.
Morgan on Hearsay
Professor Morgan notes that the rule against hearsay has to do with the credulity of witnesses –
individuals will readily believe and repeat what they hear. Distrust for the jury’s capacity to
adequately assess hearsay becomes an after-the-fact justification. The trier of fact will be more
assured of accuracy in his or her decision if descriptions of the events are given in open court
rather than through an intermediary.
In other words, the principle reasons for excluding hearsay evidence are the lack of the
protective safeguards of oath and cross-examination, safeguards which are only necessary when
the value of the evidence depends on the credibility of the asserter.
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Approaches to Hearsay
Ares v Venner
Facts Doctor charged with negligence in amputating leg. Nurses’ notes describe
plaintiff’s toes as “blue”, “bluish pink”, “cool” and were relevant to the issue of
the doctor’s negligence, as the trial court made the crucial finding that “the
classic signs of circulatory impairment manifested themselves clearly and early.”
The trial judge relied on a passage from Wigmore, which argued for the
admissibility of hospital records as an exception to the hearsay rule based on
grounds of necessity and circumstantial guarantees of trustworthiness.
Analysis The adversary was not prejudiced by the reception of the nurses’ notes. If the
nurses were in fact called, they would have been allowed to refresh their
memory by having regard to their notes and litle would be gained by their
atendance as they would ordinarily add litle or nothing to the information
furnished by the record. Sincerity of the declarant was not an issue since nurses
were under a duty to record their observations accurately.
R v Khan
Adopts the more flexible approach set out in Ares v Venner.
Facts The accused was charged with sexual assault. The alleged victim was 3.5 years
old at the time of the assault. The child told her mother that the doctor had put
his “birdie” in her mouth and peed in her mouth. The mother testified that the
word “birdie” meant penis to T.
The TJ ruled the child’s evidence was hearsay and could not be adduced. The
SCC agreed with the ONCA that this was wrong.
Issue Was the child’s evidence hearsay?
Rule There are two general requirements to admit hearsay: necessity and reliability.
Necessity simply means reasonable necessity.
There is a need for increased flexibility in the hearsay rule to permit the
admission in evidence of statements made by children to others about sexual
abuse.
To admit hearsay evidence of child statement:
1. Whether reception of hearsay statement is necessary – the
inadmissibility of the child’s evidence might be one basis for a finding of
necessity. Sound evidence that testifying again in court might be
traumatizing is another reason.
2. Is the evidence reliable – timing, demeanour, the personality of the
child, the intelligence and understanding of the child, and the absence of
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any reason to expect fabrication in the statement may be relevant on the

issue of reliability.
Note – corroborating evidence.
Analysis The child’s statement to the mother in this case meets both necessity and
reliability requirements. Child at this time is incompetent so necessity is made
out. Reliability is satisfied by what would later be referred to in Khelawan as
‘circumstantial guarantees’ of reliability.
Notes Case probably wouldn’t happen now – section 16.1 of the CEA means the child
would probably just testify, no hearsay issue.
The Principled Approach cont’d

Exam Notes
o Fact patern will be like the simulation.
o Think through the class about what we’ve spoken about – if we’ve broken up into
groups, that might be on the class.
o A small exercise may also be on the exam.
o Minimal blending of issues.
o A hearsay problem will be on the exam.
o Spend more time on the law than the facts – more nuance with every legal distinction
that you make.
o A simple application of Don Stewart’s test would get you a B-. If you want to
make it beter, insert the cases in and reference proper authorities. Find the
ambiguous parts of each test and build in the cases (to get to B range).
o If you’re able to find a point of ambiguity (majority or dissent) and say where the
disagreement is and take a position, even beter.
o If you’re able to find what’s at stake in that difficulty and have a bit of a
theoretical position about it (prioritizing truth-finding versus justice) and to use
citations from the course book.
o Mistakes are ok! Law, nuance and legal analysis is what he looks for.
o Don’t miss a whole problem! Parcel your time out carefully.
o Policy question – how would you change the law?
o Summarize what the law is. Zoom in on the point of contention.
o Ex. Recall Khan case – what can be an indicia of reliability?
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R v B(KG)
What to do with recanting witnesses? He talked extensively about having an exam question
based on KGB.
Facts 4 on 2 youth fight. One of the 4 stabs and kills one of the 2. The accused’s three
buddies give separate videotaped statements to the police. In each statement,
the declarant told police that KBG acknowledged causing the victim’s death. At
trial, all 3 recanted.
Some indicia of reliability included: they were interviewed separately, but had a
parent, sibling or lawyer with them. The camera was not far away. A second
camera zoomed in on their face so the viewer could observe the facial
expressions of those being examined.
They said they lied to explicate themselves, and said that because they were
under oath in court they decided to tell the truth.
Issue Can the prior inconsistent statement of the 3 youths be admited?
Rule Hearsay evidence is now admissible on a principled basis, the governing

principles being reliability of the evidence and its necessity.
 When a witness recants, the prior inconsistent statement may be
admited for the truth of the maters they assert if they meet the
principled approach to hearsay, with reliability established by adequate
substitutes for cross-examination in taking the earlier statement.
 The TJ must hold a voir dire to determine the necessity and reliability of
the prior inconsistent statement, and may exercise discretion to exclude
– the threshold being reliability.
 Substitutes for cross-examination – we’re looking for:
o An earlier statement made under oath or a similar action which
impresses upon the witness the need to be truthful. The
presence of an oath, solemn affirmation or solemn declaration
will increase the evidentiary value of the statement when it is
admited at trial.
o A sworn prior statement will be persuasive evidence in any
prosecution against the declarant related to false testimony and
the knowledge that this evidence exists for this purpose should
weigh heavily on the mind of one who considers lying in a
statement, or recanting his or her prior statement to lie at trial.
 Witness has to KNOW there are consequences to lying
(prosecution for perjury).
o If statement is videotaped in its entirety, or similar action which
allows a later viewer to have the “courtroom experience” of
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watching a witness testify (observing demeanour, behaviour, etc.)

being able to see their disposition.
o Opportunity to cross-examine declarant now at trial.
o Note that there are other indicia of reliability – the statement
may meet none of these factors but still be admissible.
 Where prior statement is taken by police, TJ must be satisfied BOP that
the prior statement was voluntary.
“Reasonable Necessity”
Wigmore referred to two forms of “necessity”:
1. Witness is no longer available;
2. Cannot expect to get evidence of the same value from the same or other
sources.
a. In the case of inconsistent statement, the witness holds this
evidence hostage.
The necessity criterion is flexible and capable of encompassing diverse situations
– witness need not be dead or incapacitated, maybe the assertion is just such
that we cannot expect, again or at this time, to get evidence of the same value
from the same or other sources. It will be a contextual inquiry.
Analysis KGB is really just a new approach to reliability. When you have a recanting
witness, reasonable necessity as explained in Khan and Smith is made out.
KGB is concerned with finding adequate substitutes for cross-examination to
test the reliability of the prior statement. KGB says that it lays out ‘factors’ to
consider in reliability, but it really acts as a list: oath, videotape, cross-
examination. For oath and videotape, similar substitutes which serve the same
purposes – impress need for truth and allow courtroom experience, respectively
– can also be validly used, although it is difficult to imagine what else besides a
videotape would allow for the courtroom experience, as KGB indicates that
transcripts do not suffice. Independent witness who saw the prior statement
being made may be beneficial here.
Keep in mind that prior statements are not confessions, and KGB cannot apply to
the accused. Thus the voir dire is not the voluntary confession rule, but it shares
similar characteristics: if the judge is not satisfied that the statement is not the
product of coercion, the judge may exercise discretion to not allow admission of
the statement, even if it meets the requirements of necessity and reliability.
Conclusio When you have a recanting witness, the leading case is KGB.
n
Notes Procedure to Follow When Making KGB Application
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1. Calling party must state its intention in tendering the statement. If the
party gives notice that it will seek to have the statement admited for its
truth, the voir dire will continue on that issue.
2. The calling party bears the burden of proof to establish on a BOP the
admissibility of the prior inconsistent statement for its truth.
3. The calling party must establish threshold reliability on a case-by-case
basis.
4. The calling party must establish that the statement was made voluntarily,
if to a person in authority, and that there are no other factors that would
tend to bring the administration of justice into disrepute if the statement
is admited for its truth.
5. Voluntariness in this context does not equate to the voluntariness
requirement for the admission of confessions.
a. The threshold of proof of voluntariness is the BOP, not proof
BARD.
6. At the end of the voir dire, the trial judge makes a ruling.
a. Reasons are required, especially when the criteria in KGB are not
met and the crown is relying on substitute indicia of reliability.
R v Khelawon
Facts 5 residents of a retirement home alleged abuse against the manager of the
home. One of the complainants, S, gave a videotaped statement but not under
oath. By the time of the trial, one of the complainants had died, and the 5th was
no longer competent to testify.
Issues Can prior statements of the residents be admited for the truth of the maters
asserted? (No)
Rule From the Slides (Mapara)

1. Hearsay evidence is presumptively inadmissible unless it falls under an
exception to the hearsay rule. The traditional exceptions to the hearsay
rule remain presumptively in place.
2. But, a hearsay exception can be challenged to determine whether it is
supported by indicia of necessity and reliability, required by the
principled approach. The exception can be modified as necessary to
bring it into compliance.
3. In “rare cases”, evidence falling within an existing exception may be
excluded because the indicia of necessity and reliability are lacking in the
particular circumstances of the case.
4. If hearsay evidence does fall under a hearsay exception, it may still be
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admited if indicia of reliability are established on a voir dire.

Principled Approach to Hearsay
1. Where the party seeking to adduce the statements satisfies the trial
judge BOP on voir dire that the statements are necessary and reliable,
they may be admited.
o This is threshold reliability – ultimate reliability (i.e. whether the
assertion of the statement is in fact true) is a mater for the trier
of fact. The same factors can be considered at both stages.
2. Hearsay is presumptively inadmissible, unless it falls under an exception
to the hearsay rule. The traditional exceptions to the hearsay rule remain
presumptively in place.
3. Hearsay which is covered by a ‘pigeonhole’ exception is presumptively
admissible.
4. The overarching discretion to exclude if prejudicial effect outweighs
probative value still applies, even if the statement satisfies the principled
approach.
5. Collaboration may be considered in assessing the reliability of the
statement.
“Threshold” versus “ultimate” reliability
The judge on voir dire must make a judgement as to threshold reliability –
whether the evidence meets the reliability requirement to be considered
admissible (whether the circumstances surrounding the statement itself provide
circumstantial guarantees of trustworthiness). The declarant’s reputation for
truthfulness does not factor into this consideration!
The trier of fact (the jury) decides “ultimate reliability” – whether or not the
statement is actually true.
Analysis Necessity:
Khan & Smith remain the authority for the definition of necessity, i.e.
“reasonably necessary”: Is this necessary to assist the court in obtaining a full
picture of the issue in question? Where witnesses are dead or incompetent, as
in this case, necessity is very simple.
Reliability:
Two broad ways to show reliability: (1) no concern about truth because of the
circumstances in which the statement was made, e.g. the statement in Khan – a
very young child dis-interestingly and naively describing sexual acts; (2) no
concern about truth because there were adequate substitutes for cross-
examination, e.g. the statement in KGB. Also consider prior testimony in former
proceedings – many of the traditional dangers of hearsay are not present. “A
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statement that was earlier made under oath, subjected to cross-examination

and admited as testimony at a former proceeding is received in a subsequent
trial because the dangers underlying hearsay evidence are absent.”
Can also look at corroborating evidence, e.g. the stain in Khan, to strengthen
reliability. Lack of corroboration doesn’t mean unreliable, but corroboration
enhances reliability.
In this case, necessity was made out, but not reliability. No circumstantial
guarantees of reliability, the video wasn’t under oath and no substitutes for
cross-examination. The statements were similar, but not enough to meet the
U(FJ) test for striking similarity, and corroboration, i.e. injuries, were equally
consisted with assault as they were with falling. Statements thus not reliable
and cannot come in under principled approach.
Notes Khelawon’s Functional Approach:

1. Is the proposed evidence hearsay?
a. Evidence is being tendered for its truth; and
b. There is no opportunity to cross-examine the declarant.
2. Hearsay evidence is presumptively inadmissible.
3. Is there a traditional exception to the hearsay rule?
a. If evidence falls within traditional common law exceptions,
admissible (Starr).
b. However, in rare cases, the exception itself may be challenged.
4. Exceptions (principled approach) – must establish the necessity and
reliability of the hearsay evidence.
a. Two primary ways to satisfy the reliability requirement:
i. Show that there is no real concern over the truth of the
statement. Statement was made in circumstances where
there is a high probability of its trustworthiness.
ii. Show there is no real concern from the fact that the
statement arises in hearsay form because its truth and
accuracy can be adequately tested.
Overrules Starr with respect to limiting the inquiry to the circumstances
surrounding the making of the statement. Now allows for some consideration
of extrinsic corroborating evidence. Allows for case-by-case flexibility looking to
all the facts.
R v Bradshaw
Facts Accused was charged with two counts of first degree murder. Police ran a Mr. Big
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operation against T, who they suspected was involved in both murders.

In the course of that operation, both T and the accused were recorded making
self-incriminating statements. After T was arrested and police revealed he had
been the subject of Mr. Big operation, T made additional statements to the
police including a videotaped statement in which he implicated the accused in
the murders.
T pled guilty to second degree murder before the accused’s trial. He was called
as a witness at the accused’s trial but refused to be sworn or give testimony. The
Crown sought to adduce the video as a hearsay statement.
Issue Admissible?
Rule Hearsay dangers can be overcome and threshold reliability can be established
by showing that:
1. There are adequate substitutes for testing truth and accuracy
(procedural reliability); or
o Substitutes must provide a satisfactory basis for the trier of fact
to rationally evaluate the truth and accuracy of the hearsay
statement.
o Ex. video statement, presence of oath, warning about
consequences of lying (BKG).
o However, some form of cross-examination is usually required.
2. There are sufficient circumstantial or evidentiary guarantees that the
statement is inherently trustworthy (substantive reliability)
o Consider circumstances in which statement was made.
o Reliability does not need to be established with absolute
certainty. Trial judge must be satisfied that the statement is “so
reliable that contemporaneous cross-examination of the
declarant would add litle if anything to the process.”
o Substantive reliability is established if the statement “is made
under circumstances which substantially negate the possibility
that the declarant was untruthful or mistaken.” Relatively high
threshold.
Threshold reliability concerns admissibility, whereas ultimate reliability concerns
reliance.
Corroborative Evidence
The use of corroborative evidence should be directed to the reliability of
hearsay. A TJ can only rely on corroborative evidence to establish threshold
reliability if it shows, when considered as a whole and in the circumstances of
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each case, that the only likely explanation for the hearsay statement is the
declarant’s truthfulness about, or the accuracy of, the material aspects of the
statement.
o Corroborative evidence must go to the truthfulness or accuracy of the
material aspects of the hearsay statement. The function of the
corroborative evidence at the threshold reliability stage is to mitigate the
need for cross, on the point that the hearsay is tendered to prove.
o CE must work in conjunction with the circumstances to overcome the
specific hearsay dangers raised by the tendered statement. Must show
that material aspects of the statement are unlikely to change under
cross. It does so where the only likely explanation for the hearsay
statement is the declarant’s truthfulness about, or the accuracy of, the
material aspects of the statement.
o TJ must be able to rule out any alternative explanations on a BOP.
In sum, to determine whether corroborative evidence is of assistance in the
substantive reliability inquiry, a trial judge could:
1. Identify the material aspects of the hearsay statement that are tendered
for their truth;
2. Identify the specific hearsay dangers raised by those aspects of the
statement in the particular circumstance of the case;
3. Based on the circumstances and these dangers, consider alternative,
even speculative explanations for the statement;
4. Determine whether, given the circumstances of the case, the
corroborative evidence led at the voir dire rules out these alternative
explanations such that the only remaining likely explanation for the
statement is the declarant’s truthfulness about, or the accuracy of, the
material aspects of the statement.
Analysis TJ erred in admitting the video statement because the evidence was hearsay and
inadmissible under the principled approach. The evidence met the necessity
criterion because T refused to testify, but the evidence did not meet the
threshold reliability criterion.
Conclusio Evidence not admissible.

n
Pigeonhole Exceptions to Hearsay

Some exceptions have been around for a while – the admission of old entries and writings in
proof of ancient maters, writen declarations of deceased persons against interest, and in the
course of duty or business, etc.
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Regular exceptions include:
Party Admissions
An admission is a statement made by a party tendered by the opposing party. Admissions are
an exception to the hearsay rule although they do not share the normal atributes, necessity
and circumstantial guarantees of trustworthiness possessed by others.
Professor Morgan suggests a justification for this exception is that the admissibility of an
admission made by the party himself rests not upon any notion that the circumstances in which
it was made furnish the trier means of evaluating it fairly, but on the adversary theory of
litigation. A party can hardly object that he had no opportunity to cross-examine himself or that
he is unworthy of credence save when speaking under sanction of an oath.
The statement made or adopted by the party is admissible against that party, and in a joint trial
an admission is only evidence against the party who made it and the trier of fact must be
warned of its limited utility. However, it is practically impossible to stop the jury from making
assumptions when the confession of a co-accused implicates the other.
Khelawon
Rule Some cases concerning admissions stand on a different footing – in these cases,
concerns about reliability are based on considerations other than the party’s
inability to test the accuracy of his or her own statement or that of his or her co-
conspirators. Hence, the criteria for admissibility are not established in the same
way.
Capital Trust Co v Fowler

Rule If the adversary chooses to introduce a statement by the party-opponent he or
she must introduce all of the statement and not just the portion which favours
him or her.
However, if the party introducing the statement wants to contradict or qualify
any statement in it, he may with further evidence.
R v Phillips
Facts P charged with murder. When he was caught, he stated “I guess I really did it
this time.” The defence waives the voluntariness of these statements.
When he was placed in the police car, he asked “so who’s the guy I murdered?”
At two subsequent interviews, he advanced several theories of defense to justify
or excuse his actions.
Defense counsel submited that the uterances and the answers given in the
interview constitute one entire statement and if the former part goes before the
jury they should hear the second part as well. The Crown argues the second part
is self-serving and is in no way explanatory of the statements made to the
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arresting officers.
Issue Is this one continuous statement?
Rule The past and future cannot be brought together in order to form an artificial
identity. The law never intends that a party may make evidence for himself from
his own declarations, but merely that the meaning of a conversation shall not be
perverted by proof of a part of it only.
Analysis The statement by the accused to the investigating officer took place well before
the recorded interview. He was speaking to completely different police
personnel and had time to reflect on what he was going to say. Most
importantly, he had the benefit of legal advice. This is sufficient to destroy any
nexus between the two statements.
Conclusio Admission not allowed. Severance permited.

n
R v Streu
Facts Accused was convicted of possession of stolen property having a value in excess
of $200. He sold the property to a police officer, who had posed as a purchaser,
for $125.
The officer testified that the accused had admited to him that the tires and rims
belonged to a friend who had ‘ripped them off’. in the absence of the accused’s
statement there would not be evidence sufficient to meet BARD, that the items
were in fact stolen.
Rule Once it is established that the admission was in fact made, there is no reason in
principle for treating it any differently than the same statement would be
treated had it been made in the witness box.
Admission does not need to be intentionally made against the interest of the
declarant.
Analysis The admission in this case is not merely a reporting of a hearsay statement
without anything more. Clearly the appellant was relying on the hearsay
statement as being true. Either he accepted it as being true or at least he
believed it to be true.
Any evidentiary weakness in the information on which the admission was based
was a mater of weight and not admissibility. This was a mater for the trial
judge who considered the statement along with other evidence and concluded
that the accused was guilty beyond a reasonable doubt.
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R v Evans
Facts Admission to someone who is not in a position of authority. If one of the parties
has made an admission out of court, that admission (even if it is hearsay) can be
admited.
The admission has to be given in full – you can’t just pick and choose part of the
statement. The theory behind it is that it’s not even really hearsay because the
party or their lawyer can be cross-examined or respond to the statement.
Trouble is, when there’s a person in authority you have a special test to do to
make sure the confession is reliable, ex. confessions to the police may be
coerced.
Couple purchased a car, was unable to identify the guy who sold the car. Guy
said he had a big dog who was pregnant and worked in chain link fence (bunch
of innocent statements). But the statement became against interest of Evans
because the Crown sought to adduce evidence that Evans had worked in chain
link fencing and had a big pregnant dog.
Exceptions where Declarant or Testimony Unavailable –

Declarations Against Interest
The common law recognized an exception for a declaration made by a person concerning a
mater within his or her personal knowledge which declaration when made was to the
declarant’s own prejudice. Ex. Jenna says to Bety, “I owe $1000 to this loan shark.” Jenna is
saying something against her own interest. Jenna dies. Bety is a witness in the case against the
loan shark. Generally, Jenna’s statement would be inadmissible as hearsay. But because it is
against her own interest, it gets admited under this “stupid” exception.
The traditional requirements of a hearsay exception are met: there is necessity, as the declarant
is unavailable, and there are circumstances guaranteeing trustworthiness resident in the
thought that a person is unlikely to intentionally misstate a situation against his or her own
position.
As Hamilton LJ noted: “it is very unlikely that a man would say falsely something as to which he
knows the truth, if his statement tends to his own pecuniary disadvantage.”
R v Demeter
Facts Accused was charged with murder. Crown argued that he had procured some
unknown person to kill his wife. Accused sought to adduce evidence from
Dinardo that a person unconnected with the accused, Eper, had confessed to
the murder of the wife.
The trial judge excluded the alleged confession as being hearsay evidence.
Rule In England, the exception to the rule excluding hearsay evidence in respect of
declarations made against interest is confined to statements made against
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pecuniary or proprietary interest and does not permit evidence of a statement

by a deceased person against his penal interest.
This rule was tossed by the wayside in this case as well as in O’Brien, where the
SCC agreed “the distinction is arbitrary and tenuous. There is litle or no reason
why declarations against penal interest and those against pecuniary or
proprietary interest should not stand on the same footing. A person is as likely
to speak the truth in a mater affecting his liberty as in a mater affecting his
pocketbook.
Analysis The confession of Eper was not a declaration against penal interest. Eper was
already under life imprisonment – there was no penal consequence to him
confession.
Principles to use in determining whether a declaration is against penal interest
which, in its view, would have to be applied in addition to those applicable in
determining whether a declaration is against pecuniary or proprietary interest.
They are as follows:
1. Declaration would have to be made to such a person and in such
circumstances that the declarant should have apprehended a
vulnerability to penal consequences as a result.
2. The vulnerability to penal consequences would have to be not remote.
3. The declaration sought to be given in evidence must be considered in its
totality. If upon the whole tenor the weight is in favour of the declarant,
it is not against his interest.
4. In a doubtful case a Court might properly consider whether or not there
are other circumstances connecting the declarant with the crime and
whether or not there is any connection between the declarant and the
accused.
5. The declarant would have to be unavailable by reason of death, insanity,
grave illness which prevents the giving of testimony even from a bed, or
absence in a jurisdiction to which none of the processes of the Court
extends. A declarant would not be unavailable in the circumstances that
existed in R v Agawa.
R v Lucier
Declarations against interest cannot be adduced to inculpate the accused.
Facts Arson charge, fire set by accused’s friend. Friend told police that he had set the
fire in exchange for money from the accused.
Issue Can the Crown adduce the friend’s statement as a declaration against interest in
the accused’s trial?
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Rule Declarations against interest may not be admited if they inculpate the accused,
only exculpatory.
The statement must have been made against the penal interest of the person
making them.
Analysis A statement implicating the accused in the crime with which he is charged
emanating from the lips of one who is no longer available to give evidence robs
the accused of the invaluable weapon of cross-examination which has always
been one of the mainstays of fairness in our Courts.
Statements were inculpatory against accused and not proper to admit them.
Conclusio
n
Exceptions where Declarant or Testimony Unavailable – Dying

Declarations
Courts have traditionally held that the dying declaration exceptions to the hearsay rule apply
only in homicide cases where the victim is the declarant. Dying declarations may be admited
where the deceased-declarant had a settled, hopeless expectation of almost immediate death
at the time of the declaration, the declaration was about the circumstances of the death, and
the statement would have been admissible if the deceased had been able to testify, and the
offence involved is the homicide of the deceased.
The assurance of trustworthiness from the circumstances will only flow if the declarant was
aware of his or her state and the statement would be competent evidence by him or her in the
stand.
The trial judge must:
1. Determine whether or not the declarant at the time of the declaration entertained a
setled, hopeless expectation that he was about to die almost immediately.
2. He must consider whether or not the statement would be evidence if the person making
it were a witness. A declaration which is a mere accusation against the accused, or a
mere expression of opinion, not founded on personal knowledge, as distinguished from
a statement of fact, cannot be received.
R v Aziga
Facts Sexual assault trial for non-disclosure of HIV. Two terminally ill witnesses, B and
C, gave statements. B gave a statement in which she acknowledged her illness,
then died 18 days later. C gave her dying statement while unable to speak,
answering questions by shaking her head, and adopting the contents of a prior
recorded statement.
Issue What does “immediate death” mean?
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Rule Dying declarations are admissible when:

1. Deceased has setled, hopeless expectation of almost immediate death;
2. Statement was about the circumstances of the death;
3. Statement would have been admissible if the deceased had been able to
testify, and
4. The offence involved is the homicide of the deceased.
“Almost immediate death” just means a firm belief that they’ll die soon with no
hope of recovering. The declarant must have a solemn conviction that he or she
will soon die and there is no hope whatsoever of recovery.
The exception is a principled one – there is necessity, as the witness is dead.
Reliability is derived from the belief that a person who knows that he or she is
about to die, will be motivated to speak truthfully.
Analysis Judge in this case admits the statements under both the dying declaration
pigeonhole and the principled approach – that’s the way to do it.
Conclusio Dying declarations are still technically restricted to homicide, but the principled
n approach can be used to get the exact same declarations admited in non-
homicide trials. Note Aziga is not a homicide.
Exceptions where Declarant or Testimony Unavailable –

Declarations in the Course of Duty
Got superseded by Ares v Venner. Used to be a CL exception for declarations taken in the course
of duty. If it was writen, satisfied a number of criterion. Now replaced by the principled
approach – no longer required that the declarant be deceased or unavailable.
Declarations, oral or writen, are admissible for their truth where:
1. They are made reasonably contemporaneously with the event;
2. In the ordinary course of duty;
3. By persons having knowledge of the maters;
4. Who are under a duty to make the record or report; and
5. There is no motive to misrepresent the maters recorded.
Exceptions Not Dependent on Availability of Declarant –

Declarations as to Physical Sensation
Gilbey v Great Western Railway
Facts It was alleged that the deceased had suffered his injury on the job and that
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compensation from his employer was forthcoming. The trial court received in
evidence statements made by the deceased to his wife not merely of his
sensations but as to the cause of the injury.
Issues Were the statements admissible?
Rule Statements of physical sensations, e.g. pain, can be admited to prove the
existence of those sensations. Statements as to the cause of the pain are not
admissible under this section. Ex. “He hit me, my ribs hurt” – “my ribs hurt” is
admissible, but “he hit me” is not.
The rationale is that there is a “fair necessity”, in the sense that there is no other
equally satisfactory source of evidence either from the same person or
elsewhere. Given these grounds of necessity, the evidence should not be
extended beyond the necessity on which the rule is founded.
Circumstantial guarantees of trustworthiness are resident in the fact that the
declarant, if anyone, should be able to perceive his or her own sensations or
feelings; his or her declaration is of the moment and defects in memory are
absent.

Declarations as to Mental or Emotional State
When a person’s emotional or mental state is a material issue in the trial, then that person’s
statements evidencing the same may be received, and for the same reasons as recounted above
justifying declarations.
Ex. where X’s domicile is material, his earlier statement “I plan to make Canada my home” is
receivable to prove his intent, as we see that the hearsay dangers of communication, memory
and perception are absent.
Ex. In a suit for the alienation of affections, the wife-declarant’s earlier statement of “I don’t
love you anymore” is admissible under this exception.
Ex. In a murder trial, “I hate him”, “I’m going to kill him”, are admissible as evidence of intent.
Statements are only received when tendered against the accused. If statements of the accused
“I never meant to do him harm,” I loved him” are tendered under this exception, they would be
met with the rebuke that they are self-serving and inadmissible on that ground. Ex. “I’m scared”
is admissible, but not “I’m scared because he threatened me.”
Issues arise when statements are tendered as evidence of an existing state of mind which is not
itself material but is relevant to a material issue.
Mutual Life Insurance Co v Hillman
Facts Plaintiff sought to recover proceeds from an insurance policy on her deceased
husband. Insurance company resisted on the ground that the body found was
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not her husband but was his travelling companion, Walters.

The disputed evidence consisted of leters writen by Walters to his fiancée that
he intended to go with Hillmon to the creek where the body was found.
Issue Should the leters be received?
Analysis The existence of a particular intention in a certain person at a certain time being
a material fact is to be proved, evidence that he expressed that intention at that
time is as direct evidence of that fact as his own testimony that he then had that
intention would be.
After his death there can hardly be any other way of proving it, and while he is
still alive his own memory of his state of mind at a former time is no more likely
to be clear and true than a bystander’s recollection of what he then said, and is
less trustworthy than leters writen by him at the very time and under
circumstances precluding a suspicion of misrepresentation.
The leters in question were competent… evidence that… he had the intention of
going and of going with Hilmon, which made it more probable both that he did
go and that he went with Hillmon than if there had been no proof of such
intention.
Shepard v US
Facts A murder prosecution. The statement of the deceased was received as a dying
declaration: “Dr. Shepard has poisoned me.” On appeal, the conditions of that
exception were found not to have been met and the prosecution sought to
justify the evidence as indicating the deceased’s state of mind which was then
inconsistent with the defence of suicide.
Rule There are times when a state of mind, if relevant, may be proved by
contemporaneous declarations of feeling or intent.
Declarations of intention, casting light upon the future, have been sharply
distinguished from declarations of memory, pointing backward to the past.
There would be an end, or nearly that, to the rule against hearsay if the
distinction were ignored.
R v Starr
Facts Accused charged with two counts of first degree murder. C and W shot by
highway. C and W had been drinking with the accused in a hotel. C and W drove
to a gas station. The accused also drove to that station.
C told his friend he had to go home and “do an Autopac scam with Robert”. She
understood “Robert” to be the accused. The Crown’s theory was that the killing
was a gang-related execution perpetrated by the accused, and W was an unlucky
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witness who was killed because she was in the wrong place at the wrong time.
The theory was that the accused had used an Autopac scam as a pretext to get C
out into the countryside. The trial judge found that G’s anticipated testimony
regarding the scam was admissible under the “present intentions” or “state of
mind” exception to hearsay rule.
Issue Is G’s statement admissible?
Rule An exception to the hearsay rule arises when the declarant’s statement is
adduced in order to demonstrate the intentions or state of mind of the
declarant at the time when the statement was made.
Wigmore has argued and the Court adopts that the present intentions exception
also includes a requirement that a statement “be of a present existing state of
mind, and must appear to have been made in a natural manner and not under
circumstances of suspicion.”
Hearsay is generally not admissible to show the intentions of a third party. The
dangers of hearsay are multiplied when tendering evidence to show the state of
mind of someone other than the accused – too diluted. A statement of
intention cannot be admitted to prove the intentions of someone other than
the declarant, unless a hearsay exception can be established for each level of
hearsay.
Analysis TJ erred in admitting Cook’s statement to G under the present intentions

exception, and having admited it, in not limiting its use by the jury for three
reasons:
1. The statement contained no indicia of reliability since it was made under
circumstances of suspicion;
2. The trial judge failed to instruct the jury that the statement was only
admissible as evidence regarding the intentions of Cook, not the
appellant; and
3. Even if it had been properly limited, the evidence was more prejudicial
than probative.
Finally, Cook’s statement was more prejudicial than probative. The
impermissible inferences that the jury might well have drawn from Cook’s
statement are that the appellant was in the car that followed Cook, that the
appellant was laone in the car, and that the appellant went with Cook as part of
a plan to lure Cook to a secluded area and kill him.
Conclusio Statement ought to be excluded.

n
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Spontaneous Statements (Excited Utterances)
The history of this final ‘pigeonhole’ is significantly distorted by the English case Bedingfield,
which equated this with res gestae – i.e. if the statement did not form part of the felony, it could
not be admited. It took over 100 years in both England and Canada to get rid of the res gestae
test. Now, the question is whether the statement is made in such circumstances that there is
there is no possibility of fabrication or distortion (Clark). Clark is the leading case in Ontario,
but Shea expands on the elements that a court is looking for here: shock/pressure, reliable
circumstances, and relative contemporaneity.
Remember that the Court refused to apply this exception in Khan. This may raise questions
about the existence of the exception in Canada currently, although it does seem to maintain a
steady presence in cases where there are 911 calls, especially domestic cases.
The rationale is that credibility is not an issue because the person just blurted it out, and their
memory isn’t an issue because the exclamation is stated as an immediate response to the
experience. Still flawed, however, because the person may perceive the situation wrong.
R v Bedingfeld
Rule Deceased ran out of the house with throat cut, pointed at the house and said
“See what Harry did”, then died. Court held that it was not a spontaneous
statement due to lack of res gestae – not contemporaneous with the event, not
‘part of the felony.’
R v Clark
Facts Clark married A, marriage was annulled, then A married BA. Clark went to their
house, BA ended up stabbed. Neighbour heard BA saying “help, I’ve been
murdered, I’ve been stabbed.”
Rule New test relaxes contemporaneous requirement. Statements can be admited

as spontaneous statements/excited uterances where they are made in
circumstances which are such that is no possibility of fabrication or distortion.
The mere fact that evidence of a witness includes evidence as to words spoken
by another person who is not called is no objection to its admissibility. If the
speaking of the words is a relevant fact, a witness may give evidence they were
spoken. A question of hearsay arises only when the words spoken are relied on
‘testimonially’, i.e. as establishing some fact narrated by the words.
Hearsay evidence may be admitted if the statement providing it is made in
such conditions (always being those of approximate but not exact
contemporaneity) of involvement or pressure as to exclude the possibility of
concoction or distortion to the advantage of the maker or the disadvantage of
the accused.
Analysis The circumstances, as outlined by the neighbour, under which the words were
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said to have been spoken by the deceased were such as to exclude the
possibility of concoction or distortion, and if Ms. Pitcher’s evidence was
accepted by the jury, the words “help I’ve been murdered” were evidence of the
belief of the deceased as to what had occurred and evidence as to the truth of
the facts stated by her as a true exception to the hearsay rule…
Notes Ratten v Reginam – Raten was charged with the murder of his wife. Her death
had been caused by a wound from a shot-gun held by the appellant. His
explanation was that the discharge was accidental and had occurred while he
was cleaning his gun in the kitchen of his house. He was unable to explain how
the gun from which the shot was fired had come to be loaded.
He immediately called an ambulance and asked the police to come. The Crown
sought to adduce evidence from the 911 operator who said the person on the
telephone was agitated and sobbing.
164

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Evidence – Long Outline

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Evidence – Long Outline

Delgamuukw v British Columbia........................................................................................83

Maves v Grand Trunk Pacific Railway Co.........................................................................100

Rule The adversarial system requires an impartial trier of facts.

Conclusio New trial ordered.

should manifestly and undoubtedly be seen to be done.

Conclusio Appeal dismissed.

The adversary system is not without its flaws.

Correcting for Power Imbalances

Factual and Legal Truth

Issues Should there be a third verdict of innocence in a criminal case?

Rationales for the Law of Evidence

The Argument for Codification

Woolmington v Director of Public Prosecutions

Who Bears the Burden: Civil Burden

Analysis RIL is defeated by a single possible inference of non-negligence.

Peart v Peel (Regional Municipality) Police Services Board

Analysis Defendant police have a tactical burden to negate an inference of racial

Who Bears the Burden of Proof: Criminal Burden

Analysis The presumption violates section 11(d), but it is saved by section 1.

Analysis The presumption violates section 11(d), but it is saved by section 1.

Analysis There is no shifting standard of probability in civil cases – judges ought to

Issues What is the meaning of “proof beyond a reasonable doubt”?

Analysis Judges should avoid inferences such as:

“beyond a reasonable doubt”.

Issues Did the trial judge err in the jury charge?

Rule W(D) Formula for Charging Jury in Credibility Contests

Analysis The W(D) instructions can be problematic.

Conclusio Appeal allowed, conviction restored.

after engaging in sexual acts with a female complainant in a hotel room.

Admitting Evidence: Relevance and Materiality

Rule Relevance… requires a determination of whether, as a mater of human

Thayerian View of Relevance

Rule Relevance is determined by asking if a piece of evidence has any logically

Analysis McIntye J for the MAJORITY:-

Conclusio The newspaper clipping was relevant.

Direct and Circumstantial Evidence

Analysis  The absence of a direct connection does not determine relevance. If it

Conclusio Evidence admited.

Relevance and Social Context

Issues Was the psychiatric evidence relevant to a material issue?

Analysis  Expert evidence of the psychological effect of batering on partners must

Conclusio Found for the accused.

Analysis CORY J:-

mean all police officers lie.

Excluding Evidence: Probative Value v Prejudicial Effect

 Where it must be excluded to ensure a fair trial under the Charter;

Issues Is section 12 of the Canada Evidence Act constitutional?

cannot be the case that nothing short of this entirely misleading

Conclusio Discretion ought to be read into section 12 to make it constitutional.

Issues Was the testimony prejudicial or unfair?

Issues Are videotaped statements of young complainants in sexual assault cases

Balancing Probative Value and Prejudicial Effect

o Inflaming the jury;

reasoning prejudice. Introducing evidence of other crimes that

Conclusio Appeal dismissed, MBCA’s decision to order new trial upheld.

Mitchell v Minister of National Revenue

discretion of the trial judge if its probative value is overshadowed by its

Professor Tanovich on Relevancy in Works of Art