EVIDENCE
Fundamental Principles
almost anything can be admitted or excluded consistently with evidence law and the decisions to admit or
excluded comes before the law is applied
evidence can be a physical thing or can be something the judge is told (testimony)
the admission or exclusion of evidence of facts is based on unspoken shared assumptions and norms, for
example judges will give elderly people more leeway as civil defendants
role of evidence
evidence only deals with admission of facts for consideration at trial, accordingly, evidence will determine
only what a judge will consider in deciding a case at trial
evidence acts as a gatekeeper limiting what a judge can see and hear thus making the practical business
of conducting trials possible
in its role as a gatekeeper, evidence acts to exclude unnecessary and irrelevant material, the goal is
accurate but practical fact finding – material and relevant facts are often excluded from consideration
because they are only marginally helpful or because they were obtained in a fashion the court wants to
discourage
the rules of evidence are a set of standards that regulate the way facts may be proven at trial – because
triers of fact must base their decisions solely on the evidence presented in court, the rules are designed to
limit the evidence to that which aids the trier of fact in determining the issue in dispute in a practical and
pragmatic manner
example of distinction between practice and theory: an elderly woman is sued on a promissory note –
because she is elderly, the judge found a reason not for her to pay but this is not evidence
probability, relevancy and materiality
evidence fulfills its gatekeeper role by limiting what a judge considers to what is rationally relevant to the
issues before the court and cutting even that back to exclude otherwise relevant material that is misleading
or obtain in some way repugnant to the judge
Thayer’s Test, the most important rule in evidence and the first test under the law of evidence
“Nothing which is not rationally relevant to issues in dispute is admissible. Subject to many qualifications,
anything that is rationally relevant to issues in dispute is admissible”.
we have this test because trials are expensive and we want to cut down their length, we also want to make
trials fair
the issues in dispute are the questions the court must decide – the pleadings deal with the issues in
dispute
1
the terms “relevancy” and “materiality” are used in the context of issues in dispute
relevancy speaks to the tendency of a fact to establish a proposition
materiality speaks to whether the proposition is an issue before the court
for a fact to be considered by a court, it must be both (1) relevant, ie. the fact tends to prove a proposition
and (2) material, ie. the proposition it proves makes a difference to the court
the test for relevancy is quite low – to be relevant, all a fact has to do is to render the relevant proposition
more probably than it would be without the fact – there must be a connection to something that matters in
the case
questions dealing with age, place of birth, martial status etc. are allowed by convention to make the
witness more comfortable even though such questions are not rationally connected to the issues in dispute
– someone’s religious background may be kept out from such questions because the jury may form certain
conclusions
remember that the judges is not an investigator, he or she is there to listen to the evidence
relevancy and materiality are two different concepts – this is particularly important in the U.S.
to prevent irrelevant evidence from going in one must object – the problem is of course, the judge has
already heard the “irrelevant” evidence – but in objecting we must think why we are objecting – we don’t
want to make things worse or annoy the judge
relevancy and materiality may be an exam question
probative value and countervailing social values
the law of evidence is premised on a hearing before a jury and not a judge alone – this presumption is
quite inaccurate since jury trials are rare in criminal cases and largely unheard of in civil cases
as a general rule, if the evidence in question is likely to colour a jury’s thinking ie. gruesome photos of a
murder victim or evidence the accused is a member of a despised religious minority, the court will exclude
the evidence if the prejudicial effect of the evidence outweighs the evidence’s probative value
so although the evidence is relevant and material, it is may be excluded if it is prejudicial, for example or
already proven
prejudicial effect means the likelihood a jury will decide a case on the basis of faulty or unfair reasoning
because of an emotional, rather than intellectual reaction to the evidence
an example of unfair prejudice is can an accused’s history be excluded even though it is relevant and
material – the issue here is can a person have a fair trial if such evidence is before the court – the rule in
Canada says no – the courts have concluded that a judge or jury will give such evidence undue weight and
convict regardless of other evidence
evidence that is otherwise relevant and material is sometimes excluded to protect other social values ie.
evidence discovered in an illegal search
2
probative value, process and unfair prejudice
as noted above, although relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice
evidence may also be excluded if it tends to confuse the issues or mislead the jury, or if considerations of
undue delay, waste of time or needless presentation of cumulative evidence suggests evidence may be
properly excluded
probative value is the tendency of the evidence to prove a proposition – since evidence need only affect
the probability of a proposition, most evidence has some probative value – the probative value of evidence,
as determined by a judge, is that value which the evidence would have if it is believed
in both civil and criminal matters, the Court has the authority to exclude evidence, the probative value of
which is not commensurate with its prejudicial effect
looking at the flow chart, p. xiii
Step 1 – Thayer’s Test
Step 2 – Exceptions to Thayer’s (this is what the course is about)
Step 3 – Prejudice v. Probative Value
so in order to determine if evidence is admissible, we look at it
Step 1: we then ask does it pass the Thayer’s test, ie. does it deal with a matter in dispute and does it tend
to establish something about that matter – if the evidence is relevant and probative, it is admissible unless
excluded by some other specific rule (Step 2)
Step 2: even if an exception applies, the evidence may still be admissible but the relevant details of the
exception must be considered
Step 3: even if the evidence is otherwise admissible, the party opposing such admission can still argue that
the probative value of the evidence is slight (usually an argument that the evidence is only marginally
probative as opposed to relevant) and the prejudice of such evidence is out of all proportion to its value –
the question is, would a jury on seeing such evidence, decide to convict, acquit etc., regardless of the
matters actually proven
so if there is prejudicial effect, we must balance this against probative value
if the reason evidence is being called is to colour the jury’s reasoning, then this outweighs the probative
value, and evidence is excluded – the same applies if the question being asked is to inflame the mind of the
judge
Brief summary:
Thayer’s principle = anything rationally relevant is admissible
note tension between advocacy and rules of evidence as a prosecutor you would want to put things in
to get prejudicial effect but these things may not necessarily meet Thayer’s test
3
judge has to decide whether prejudicial effect outweighs the probative value – judges tend to decide this
issue based on their own values
JUSTICE SYSTEM
Adversarial System:
- The common law system is premised on an adversarial trial, regardless of the nature of the case.
- Evidence law presumes that disputes will be resolved by an adversarial trial.
There are three players in a court process (note court includes tribunals)
1. Plaintiff/Prosecutor: the party seeking to have a judgment;
2. Defendant/Accused: the party seeking to have no judgment made against them;
3. Judge: the party granting or not granting judge.
- Judge makes decision based on issues put to him
- Judge conducts no independent investigation, no independent review of the facts, and rules solely
on what is put before the court.
- however note Semelhago case where SCC commented on an issue not put before it
- Most cases in ON are heard by judge alone – jury trials are unheard of in civil cases except in
personal injury
- If there is only a judge, the judge decides facts and law
- At trial factual issues are more important than legal issues – legal issues become more important
on appeals
- If we have a judge and a jury – the jury is the “trier of fact” and the judge decides the law
- In a civil case, the judge presents questions to the jury – the judge then takes the answers to the
jury’s questions and decides what the answers mean legally
- Right of appeal is usually limited to questions of law…not fact. So lawyers try to frame items as
questions of law – so there are few appeals that come from a jury
- Admission of evidence is always a question of law – a judge decides if evidence is going to be
heard by the jury.
o Example: Involuntary confessions are not admissible. Whether a confession was
involuntary is a factual determination…but is considered a legal question for these
purposes.
- Evidence is either admitted or not admitted, there is no middle ground.
Nature of the evidentiary objections:
- Judges only resolve disputes; they only adjudicate questions put before them.
- This means that:
o There must be a dispute
o One party must appeal to the judge for the resolution of the dispute. Remember: the
parties, not the judge, frame the issues in dispute.
- Unless a party objects, a judge will not rule, and without a ruling, there is nothing to
appeal.
- If there is no objection a judge is not generally allowed to say whether the evidence is
admissible or not just because evidence is not admissible this does not mean that it will not
necessarily go in as evidence – we have to object for the judge to decide whether the
evidence is admissible or not this can sometimes lead to unfairness ie. with unrepresented
parties
- So unless and objection is made, evidence goes in whether admissible or not (ie. whether it
passes Thayer’s test or not)
4
- We can only appeal with the judge made a wrong decision not if he made no decision
- So it is important to recognize the need to put make an objection to get it on the record for
appeal purposes later
- A small sort of exception to this is Engel’s decision
- Judge’s exist for the purpose of making decisions
Difference between admissibility of evidence and whether evidence is convincing
- simply because evidence is admissible, does not mean it is convincing
- the difference between the two is advocacy
- admissible evidence will not necessarily be accepted
Duty of Counsel
- Parties’ only goal, subject to a few ethical limitations, is to win. Parties are expected to be
partisan and fiercely combative.
- Each party has the task of winning within the confines of the law – there is no loyalty to the
other side and we are not to make the case for the other side
- Counsel cannot lie to the court
- Decision of what to do at trial is based on client’s best interests.
- Counsel has a general duty not to break the law for a client, mislead the court or fabricate
evidence
- If your client tells you a story it is not up to you to believe it, you need to make the trier of fact
believe it
- Your job as counsel is to present your client’s case as best as you can
- If your client tells you a crazy story, you can say to your client you may lose but if your client
wants to go ahead you have to put your client’s case in as best as you can
- If your client tells you something and they continue to maintain it, it may be true, sometimes
things are not always what they appear to be
- Note advocacy points: don’t’ bully a witness, that can hurt you – also if there is a bad fact
about your client you may want to make the admission first as it is better coming from you then
other side, although this appears as though you are helping the other side
Criminal Prosecutor has a different role than any other lawyer
the prosecutor is to see that justice is done not that someone is convicted although sometimes
prosecutors see these two things as the same
this means if a prosecutor is not of the view that someone is guilty beyond a reasonable doubt
they ought not to prosecute
the fruits of the prosecutor’s investigation is not to be withheld from defence counsel, good or bad
if the prosecutor does withhold information, this may lead to an acquittal after conviction
for all other types of counsel, their job is to win so withholding evidence is ok, ie. not calling a
witness who may give bad testimony
o Criminal: Crown has a duty to disclose all factual information. The results of police
investigations are not the property of the prosecutor to secure a conviction but rather
belong to the public to ensure justice is done (Stinchcombe).
o Civil: a party has a duty to produce all relevant documents and as counsel you must
ensure this is done – that said, you have no duty to highlight the weaknesses of your
client’s case. Counsel has an obligation to answer questions asked, but does not
have any obligation volunteer information.
- General Rule – no obligation to advise about potential evidence. Thus is a client says the
incident was caught on a video camera in the shop, you have no obligation to tell anyone
about that.
5
Counsel’s Duty with respect to Testimonial Evidence:
- Counsel cannot allow a witness to give testimonial evidence that he knows is false (Meek v
Fleming).
- Information received from a client does not have to be disclosed…ever.
Counsel’s Duty re Physical Evidence note may be exam question
if you physically come into possession of evidence in a Criminal case, you must offer to hand over the
evidence to the authorities without saying how you came into possession of it
remember from the Bernardo case that Bernardo told his lawyer about the videotapes in his house –
the lawyer retrieved the tapes, watched them and then held on to them – he was suppose to turn them
order but was in trouble for damaging the crime scene
exception: if he had put videos back that would have been ok as he would not have damaged crime
scene
- Criminal: Where counsel takes physical possession of an object, counsel is obliged to offer
the object to the police or Crown without giving any comment on how they received it and
without changing it in any way (can’t wipe off fingerprints).
o As long as do not take physical possession, no obligation to disclose arises (Murray).
- Civil: Discovery obligation does not extend to physical objects. Obligation to disclose
documents.
Bodies Case
Facts: man charged with murder tells lawyer where bodies are; lawyer digs up bodies and reburies
Held: this comes out at trial and lawyer is alleged of professional misconduct but court said, no because he
did not change crime scene, No possession, therefore no duty to disclose – no misconduct.
Judges – not discussed in class in detail
Function:
1. Decide evidentiary issues and ensure the trial runs smoothly during testimony.
a. Judges can determine what evidence is admitted, but not the weight to be given to the
evidence.
b. Judges will not intervene, except to protect the fairness of a trial. Judge has duty to
intervene when he/she sees a trial process is unfair, ie. party unrepresented
c. Judges are neutral. They sit and hear cases, and do not actively investigate. A judge may
intervene to clarify ambiguities, but not act as an advocate (Jones v National Coal).
2. Decision-making process after evidence is adduced.
a. Judge decides questions of law.
b. Judge determines preliminary questions of fact, such as the admissibility of evidence.
c. A judge may clarify issues, review evidence such as pointing out weaknesses in testimony,
but cannot say one side’s case is better.
d. Judges should give reasons that are full enough for party’s to understand their decisions.
McCrae v Eldridge – Judge’s duty to clarify issues
The duty of trial judge is to see that the jury has a clear understanding of the issues that they will determine.
He should refer the jury to the evidence that will enable the jury to make proper findings of fact.
6
Division of Duties Between Judge and Jury
textbook
In a jury trial, judge must determine the admissibility of evidence. Judges generally decides questions
of law and, in some cases, preliminary questions of fact.
Judge is required to determine preliminary questions of fact relating to the admission of evidence, such
as in exclusionary rules like hearsay, privilege, or the incompetency of a witness.
By contrast, the jury determines issues of fact dealing with the weight and meaning of evidence.
Example: Where two witnesses give different versions of what happened, the jury decides who to
believe. Judge’s role is limited to deciding if, in the last example, the witnesses can testify and not who
is to be believed.
If there is some evidence in support of a proposition even if it is weak and unconvincing, the judge must
turn the case to the jury because a judge is not a trier of fact
By contrast if there is no evidence supporting a proposition the judge is to withhold the case from the
jury and decide against that proposition
A judge’s role in fact finding is limited to ensuring the jury is limited to rational determination
So long as a rational jury could make a fact-finding determination – so long as there are reasonable
grounds to find something true – the judge must leave the question to the jury
Morton
If the plaintiff adduces no evidence of an issue in dispute then this cannot be given to a jury to decide
If the plaintiff adduces so little evidence that the jury could not reasonably decide the issue it should not
go to the jury but this can be difficult
If there is so little evidence to support a finding of fact it can become subject to appeal because this
means the jury could not have been acting judicially
In general, there is no appeal from factual decisions by a jury however if decision is so clearly wrong it
may be subject to appeal but note this is a very tough test
APPEALS AND EVIDENTIARY REVIEW
Concept of Appeal
There were no such things as appeals before 1870s
an appeal is a new trial
it is a review of a decision made by the trial court
it is only a review of questions of law not of fact
Example:
There is an administrative tribunal ie. a planning board and they sentence you to jail. If they do something
beyond their authority/jurisdiction one can always take it to a higher court to quash it solely on the basis they
had no authority to make such a decision.
this is different from an appeal where we are generally looking at whether an error in law has been made
when the court of appeal reviews a decision the test is one of correctness
in order to bring an appeal, there must be a mistake made by the lower court and in order for a mistake to
have been made there must have been a decision and an objection this is the general principle
the principal on the edges is as follows:
- courts do want to do justice and occasionally evidence is not objected to but it is objectionable
- in criminal cases where a failure to object leads to a manifest injustice, the court may still
intervene
7
Q. how do they justify this
A. the judge is to see that justice is done and if something is going really wrong with the trial, ie an
unrepresented party, the judge may intervene for example and explain what hearsay is, or if a party
did not object because they did not know what was going on, the court should intervene
this principle “on the edges” is limited to criminal cases and unrepresented parties
a judge can make a subtle enquiry which may give a lawyer an opportunity to consider an evidentiary issue
in order to make an objection or not
there are appeals regarding ineffective assistance by counsel but these are very rarethe lawyer has to
be drunk or asleep or something to that effect during the trial
so with appeals there must be a mistake but this is not enough, the mistake has to be material
Example:
There is an appeal and the judge concludes that the trial J was wrong – we need to show effect of this
errorwhy? b/c trials are very expensive, so courts do not want to order a new trial if they do not have to
it is very possible a trial J was wrong at least once during the trial but unless we have a further step beyond
a mistake there could be numerous appeals so we have to ask what effect has it had on the trial
in civil cases we ask is the mistake significant enough that the decision would have been different
in criminal cases we ask is the mistake significant enough that the decision could have been different
in criminal cases the test is a bit easier to meet
in general, it is very tough to succeed in having an appeal allowed solely on evidentiary issues
What do Courts Do When They Allow An Appeal?
they have the power to make a different decision or order a new trial
in almost all civil cases (including family law) they make a different decision
in 60 to 70% of criminal cases, they order a new trial
Nature of the Courts of Appeal
There is usually one appeal as of right from a final decision and a second appeal with leave.
Appeals of Fact & Law
COA has absolute authority to review questions of law but only very limited authority re questions of fact –
this is because the trial J has seen and heard the evidence
remember that in order for a fact to be reviewed, the decision has to be so bad its ridiculous (the puke test)
– the jury’s verdict has to be plainly unreasonable so much so that no jury reviewing the evidence as a
whole and acting judicially could have reached it
note there are certain facts that have to be determined by a judge in coming to an evidentiary conclusion,
for example, confessions
with respect to confessions, a judge has to make a preliminary finding to determine whether the confession
is really a confession – if the trial court misapprehended the evidence and made an overriding error the
COA can intervene and order a new trial – note confessions often lead to new trials
Example:
Accused is being questioned in his underwear for hours and finally gives a confession. Trial court in this
case said this was no pressure to make a confession but the COA said there was pressure and ordered a
new trial.
8
ONUS, BURDEN AND PRESUMPTION
Burden of Proof
This is an ambiguous term covering two different ideas:
1. burden of production (producing evidence) aka “burden of going forward”
2. burden of persuasion
burden of production means there must be some evidence re the issues in dispute, ie. truth of the
proposition- it is the responsibility of providing some evidence that a fact exists – unless the burden is met,
a judge will withdraw the issue from the jury and decide the issue as a matter of law - the burden rests
with whoever must prove the fact
burden of persuasion means establishing the truth of the proposition and rests with the
plaintiff/prosecutor
Example:
In some crimes being intoxicated is a defence. It is possible to be too drunk to commit an offence because
intoxication negates mens rea.
burden of production tells us that we have to introduce some evidence of intoxication – there has to be
some evidence before one can even argue the defence of intoxication – the test is a scintilla of evidence
– for example, it could be the bartender saying the person drank a lot that night, or a empty bottle of vodka
beside the gun
the burden of persuasion would demonstrate to the court at a sufficient level that the person was drunk and
therefore could not have committed the offence
Another Example:
M buys sofa from J – M does not pay for sofa and admits same – J sues – M says sofa is bad
this issue in this case is whether it was a good sofa
there M, the defendant, bears the proof of showing it was a bad sofa, M just needs a scintilla of evidence,
ie. a photograph of the beat up sofa
the scintilla of evidence may not be accepted and J may still win
if M does not meet the burden of production, J wins automatically
The Standard re Burden of Persuasion - Balance of Probabilities (B of P) or Beyond a Reasonable
Doubt?
In a civil case, the burden of persuasion is the balance of probabilities, that is the plaintiff must establish
50% plus a little, ie. 50.0001 that his claim is correct and none of the defences are correct.
if the probabilities are equal, the burden has not been discharged
so for every defence, the plaintiff must disprove to 50% plus .00001
but note the plaintiff only has to disprove defences that meet the burden of production
In criminal cases the burden of persuasion rests with the prosecution as we know and the test is beyond a
reasonable doubt, that is all elements of the offence must be proven beyond a reasonable doubt and all
defences properly raised (that meet the burden of production) must be disproven beyond a reasonable
doubt.
a judge will determine whether burden of production has been met and whether issue will go to the jury
defences do not go to a jury unless the burden of production is met
the prosecutor must then disprove defences beyond a reasonable doubt
9
The same applies in civil cases. The plaintiff does not have to persuade on an issue unless the evidence
meets the burden of production.
What does Beyond a Reasonable Doubt Mean?
This term has given difficulty to the SCC for many years.
the most recent case dealing with it is Starr
beyond a reasonable doubt is not something to be understood in every day language – its not absolute
certainty but you are really really sure
we are no longer permitted to use the phrase “moral certainty” ie. if you are morally certain you convict
the standard is, are you really sure it happened? if you have any lingering doubt you cannot convict
The Difference Between the Criminal and Civil Standard
the difference between these two standards means there is no inconsistency
Example:
OJ. He was found not guilty criminally but found liable civilly. The jury thought that OJ was approximately
70% guilty criminally but this is not high enough for a conviction. This percentage is however high enough
on the civil standard to find liable.
what about the other way around? What if OJ was guilty this would mean that he would be automatically
liable civilly because beyond a reasonable doubt probably equals a percentage of 90 or so
so guilty criminally = liable civilly
not guilty criminally = liable or not liable civillyan acquittal does not mean necessarily liable
The Two Standards
The SCC has expressly said there are only two standards for the burden of persuasion, the criminal one and
civil one. However, sometimes there are some situations in a civil case where there are acts of moral
turpitude ie. theft, fraud, assault.
the burden of persuasion in a civil fraud case is on the b of p but the SCC has said that you need clear and
compelling evidence to find fraud
Q: so how is this consistent with the 50/50 system
A: it’s not
in a civil case where there is no wrong doing it is a 50/50 system
if there is wrongdoing the percentage is more like 70% although the SCC will never say this
so when you assert moral wrongness, you need a higher burden of persuasion although the SCC says
there are only two standards for burden of persuasion
so for moral turpitude it is higher than 50% but lower than the percentage required for beyond a reasonable
doubt ie. 90 something percent
note moral turpitude is an elastic term, it also depends on what people think – for example most today v. in
the 60s would think drinking and driving constitutes moral turpitude
clear examples of moral turpitude are fraud, assault, wrongful death
For criminal cases, it seems that in minor offences the standard is closer to 50% likely that it happened v.
beyond a reasonable doubt (so closer to the civil standard).
for more serious matters the percentage should be closer to 100% with things in between on a sliding
scale
Circumstantial Evidence
Circumstantial evidence is evidence that is not direct – it does not go immediately to proof of the case
10
in a criminal case where all evidence is circumstantial, a conviction is only possible if there is no
explanation of circumstances other than guilt this decision is one for the jury
any reasonable doubt is resolved in favour of the accused
circumstantial evidence can be very strong
Who Bears the Onus of Proof?
broadly speaking, the plaintiff/prosecutor beards the burden of proving their case but on specific issues the
defendant or accused may have the burden of producing evidence – for example the defendant or accused
has the burden of producing evidence for affirmative defences and only need to raise a doubt that the
defence applies – in a civil case the same rule applies but since the burden of persuasion is on a b of p,
raising a doubt is not enough, an affirmative defence needs to be established on the b of p
as noted above, the burden of persuasion is the responsibility of persuading a trier of fact that some fact is
actually true
What is Presumption and How Does it Relation to Burden of Proof?
A presumption is a legal principle where proof of one thing is taken to be proof of the other.
Example: the mail
If I put a letter in the mail on Monday, it is taken as received a week later. So proof of mailing is taken as
proof of delivery. this is known as the presumption of regularity
Another example: LSUC membership
Possession such a membership card is taken as being proof of a lawyer is in good standing and member of
LSUC.
Three types of presumptions
1. presumptions of fact
2. rebuttable presumptions of law
3. irrebuttable presumptions of law
Presumptions of fact: are not prescribed by anything – they are a matter of common sense, for example a
diamond ring on left hand of a woman is some evidence of engagement or marriage
these are not presumptions of law and are rebuttable but they are evidence of something
Rebuttable Presumptions: are presumed by law – Parliament has said proof of A is taken to be proof of B
unless there is evidence to the contrary – so proof of A meets burden of production for B
Example: s.195(2) of Criminal Code which says evidence of a person habitually in the company of
prostitutes is proof that the person lives on the avails of prostitution – this is subject to a defence of showing
that one does not live on the avails of prostitution (from Downey case)
Irrebuttal presumptions: are prescribed by law and conclusive to some issue – these presumptions to do
not allow evidence to the contrary and may fly in the face of common sense
Example: In US there is only one offence of being impaired there is a presumption that if your blood
alcohol level is over 80, you are impaired this is irrebuttable which means that once you are over 80 you
are deemed to be impaired and this creates offence of driving over 80
in Canada rather than rely on a presumption the same result is obtained by criminalizing both impaired
driving and driving with blood alcohol level in excess of a certain level
11
Another example of something irrebuttable but also absurd: English courts that said contracts made at sea
are deemed irrebutably to have been signed at Royal Exchange in England – this was known as a legal
fiction – legal fictions are rare in modern day
In Canada, there are not many legal presumptions but factual presumptions remain.
We can think of factual presumptions as circumstantial evidence.
Last points on burden of proof and presumptions:
burden of production may occasionally be met with no evidence at all
presumptions are usually rebuttable so presumptions are evidence but not necessarily proof
Judicial Notice
Defn: a judge will take judicial notice of such facts as are generally known in the community and which are
not capable of dispute among reasonable people
the core concept of this definition is not difficult but its edges are – for example what does “generally
known in the community” mean and who is a reasonable person
Example:
An ON court does not have jurisdiction over a murder in BC but a prosecutor is not going to call evidence in
a murder trial where the murder occurred in Toronto to say Toronto is in the province of ON
however if the crime took place in an area where a judge might have never heard of, the prosecutor might
make a point of stating that such a place is in ON
but normally a judge would take judicial notice that a place is in Ontario the judge is making
assumptions not even knowing he/she is making an assumption
often times judicial notice comes in where there is a failure of proof
Example:
Plaintiff/prosecutor fails to provide proof of something and ask the judge to take judicial notice of the fact
when someone does this they are usually in trouble and it is usually not proper to ask the judge to take
judicial notice
judicial notice is really for things that go without saying, ie. judicial notice is the cognizance taken by the
judge itself of certain matters which are so notorious or clearly established that evidence of their existence is
deemed unnecessary this type of judicial notice is proper
it used to be that judicial notice was taken of the fact that mothers are the best persons to raise young
children this type of judicial notice is improper
legally, judicial notice must be taken of all acts of Parliament, legislatures, court decisions etc., and all
British courts (which includes Australia)
a court is NOT required to take judicial notice of by laws
judicial notice should not be taken of things central to a case, ie. a central issue
Example:
Zundel case – the prosecutor wanted the judge to take judicial notice of the fact that the holocaust took
place – Zundel’s defence was it did not take place – so the prosecutor was asking the judge to take judicial
notice that Zundel’s defence did not work – but this defence was the central issue of the case – this same
reasoning applies with respect to taking judicial notice of the fact that mothers are the best parents
so judicial notice cannot be taken of central issues only side issues
12
judicial notice is the acceptance of a fact as true without the introduction of evidence of that fact – once a
fact is taken judicial notice of, in Canada, it is incontestable and no evidence may be led and the judge will
not consider any other fact possible – it is no longer an issue in dispute – it is like an irrebuttable
presumption
judicial notice is always a question of law
if a judge takes judicial notice which IS capable of dispute it can be set aside on appeal
just because a view is widely held in a community and not disputed among reasonable members thereof,
does not mean it is correct, ie. at the turn of the century it was accepted as commonplace among educated
North Americans that intelligent beings lived on Mars
one can argue over whether judicial notice should be taken but if you are arguing about it, it is likely that
judicial notice should not be taken
what is no notorious and clearly established that evidence of their existence is deemed unnecessary,
changes and develops over time
in the 1900s we could probably take judicial notice of how horses behave but today how horses behave is
not known in the community so a judge could not take judicial notice of that
similarly in the 1960s photocopiers were unknown and judicial notice of what they are could not be taken
where as today judicial notice of what photocopiers are could be taken
you can ask a judge to take judicial notice of things that are straight forward – if you are asking a judge to
take judicial notice of things not so straightforward then you probably should not win
Example:
In an assault case you want the judge to take judicial notice of battered wife syndrome because you can’t
afford an expert to lead evidence on this issue
when properly confined, judicial notice is a sensible way to limit the court’s investigation to matters really in
dispute – the point to recognize is that judges are human and matters that judges are certain to be true will
influence them – it is probably better that these certainties be stated rather than being passed over in
silence
TESTIMONIAL EVIDENCE
Intro
As a general rule, evidence in a trial is given either by the testimony of a witness telling the court what
happened or by the court itself inspecting physical evidence.
Witnesses must communicate to the court what they perceived. To do so they must (said in book)
1. be able to perceive an event
2. be able to understand and remember the event in a coherent fashion
3. be able to relate that understanding and memory to the court
even if a person is able to relate testimony at the time of trial, they cannot testify if, at the time of the
incident they were unable through disease, drugs, or extreme youth to perceive the incident
Examples:
Two children are walking down the street and one is killed by a car. The one who survived is 4 at the time.
He may be 9 at the time of trial and able to testify but was incompetent at the time of the incident
13
Morton is in a bar and roaring drunk and took some ecstasy – he is a witness to a barroom brawl where
someone is killed – he may not be able to testify because he was not able to perceive at the time
2 concepts
1. competence
2. compellability
these two concepts are related but are not the same thing
a witness may have competence which is the prerequisite to giving evidence and compellability which is
the ability to force the witness to testify
it is possible to have competence but not have compellability, ie. Russian president (see below)
also, a witness can have compellability but not be competent, ie. you can summons someone and require
them to attend trial but they are not actually mentally competent
Competence
Competence is the legal ability to give testimony in court
the determination of who is or not competent is a legal matter decided by a judge
in practice, except for children, competence rarely causes a problem
all adults are, until shown otherwise, presume competent with exceptions (to be discussed below)
Mechanical Competence
In order to testify at a basic level there must be mechanical competence
1. ability to perceive an event
2. remember an event/understanding of the event
3. communicate the event to the court
perception: perception is relevant at the time of the event – one must be able to perceive the event at the
time it happened
understanding: understanding is a continuous process – you must understand what you saw at the time of
the event to some degree and continue to understand right up to trial
communicate: you must be able to communicate the event – if your mental facilities deteriorate by the time
of trial, you will not be able to communicate
so these three elements are mechanical competence and it is very rare to be challenged on one of them –
all adults are presume to be mechanically competent – it is up to the person who does not want them to
testify to show that they cannot
Legal Competence (exceptions to competence)
(1) Accused
In criminal cases only an accused is not competent as a witness for the Crown – this means an accused
cannot be a witness for the prosecution – he is not able to testify against himself – the prosecutor cannot
call the witness against himself
note this does not mean the accused cannot testify at trial on his own behalf for his own defence – if he
does so the prosecutor can cross examine
also note you can be competent as a witness in someone else’s criminal trial (ie. even if you were charged
with an offence in the same crime, ie. a parallel crime )
14
in R. v. S. the SCC held that there is a presumption that an accused person is a compellable witness in a
parallel criminal proceeding against someone alleged to have committed with the accused unless it is
established that the predominant purpose in compelling the testimony of the accused is incrimination of the
accused
In civil cases you ARE competent to testify against yourself even if you are being sued civilly for the same
crime.
(2) Spouses
In criminal cases a married spouse ie. husband or wife (and soon to be same sex couples if married) and
not separated or divorced at time of trial, is not competent to testify against their accused spouse for the
Crown
married at the time of testimony is the relevant time period
does not matter if you were not married at the time of the incident
have to be married and living together
does not matter why you got married
generally this does not apply to common law couples
but the exception to this rule is that your spouse is competent to testify for the Crown against himself in
family violence cases (including sexual abuse) – here we look at who is family in the broad sense – ie. who
is living under your care
In civil cases a married spouse is able to testify against the other spouse at any time.
(3) Children and People of Weak Intellect (feeble minds)
this is related to mechanical competence but treated differently
this exception applies in criminal, civil, family
in generally, if a child is about to testify, the court has to decide if the child understands the meaning of an
oath or affirmation – if so, they can testify like everyone else and their evidence if not given more or less
weight because of their age
if a child does not understand the meaning of an oath, they may still testify if they understand the
difference between truth and lies and if they promise to tell the truth – if this applies the child can give
evidence and the evidence is not given more or less weight because of the child’s age
for anyone who is under age, he issue of whether they can swear an oath is triggered automatically – it is
up to the person calling the child to show they can swear an oath
if you are calling an adult with a feeble mind the issue of whether they can testify has to be raised by the
person opposing their testimony ie. you don’t need to show they can swear an oath
what does it mean to understand an oath or affirmation
an oath book lists all kinds of religious oaths and binds your conscience with God - an affirmation was for
people who did not believe in God but this is no longer the law
to swear an oath today you just have to have an appreciation of the solemnity of the event and importance
of the enhanced need of telling the truth
an oath and affirmation are now the same thing, whether someone chooses an oath or affirmation is just a
preference
if a child cannot understand the meaning of an oath then we go to the next step of whether they
understand the difference between true and lies and if they promise to tell the truth this standard is a low
standard but not all children meet it
15
as an advocacy point, Morton says it is important to point out the fact that the person is making an
affirmation or an oath, this shows the person is being conscious of the importance of the trial and makes
them more credible as a witness
possible exam question: it is not proper for a Judge to ask “do you believe in God Jimmy” – if a judge
does do this and then concludes a child is not competent because he does not believe in God, this is an
error and the CA will correct it
final thought on competence from Morton: there is a presumption of mechanical competence but legal
competence is presumed only for adults
Level of Proof
Competence of a witness is distinct from belief in that witness’s testimony. The level of proof need to find a
witness competent is limited to the balance of probabilities.
Compellability
Compellability is purely a legal concept and certain people are immune from being compelled to testify such
as
1. Heads of state which theoretically in Canada is the Queen and any of her agents such as the
Governor in General and Lieutenant Governors
also foreign ambassadors and their direct staff and judge
remember the Clinton fiasco, a summons was issued to hem and he declared he did not have to
obey it – he said he was competent but not compellable – he testified anyway but he did it in this
way to preserve the right of the president not to have to testify
2. Judges/Jury/Chairs on Administrative Tribunals ie. Human Rights Commission
judges cannot be required to testify regarding their reasons for a decision
but they are competent and compellable regarding matters occurring during trial but not collateral
to the trial
in order for an incident to be collateral to the trial, the incident must have no bearing whatsoever
on the trial or its process – if the incident would in some way lead to questioning the judge about
the nature of the trial, the incident is not collateral
administrative or chamber matters occurring during the course of the trial which are related to the
trial are not incidental and judges cannot be compelled to give testimony regarding those matters
if a judge were sued for not closing a real estate deal he would be compellable to give evidence
juries cannot be required to testify regarding their reasons for a decision
an example of a collateral matter s a riot – in the Thanet case a riot broke out during a trial and
the judges being witnesses to the riot were compellable
NB: competence and compellability is a question of law
Interpreters
Interpreters are only required as necessary because translated evidence loses much of its immediacy and
an unscrupulous witness pretending to have poor language skills could use the translator to shield answers
and fabricate evidence. Moreover, translation invariably changes the meaning of questions and answers
and, unless really needed, out to be avoided.
16
EXAMINING WITNESSES
Witness Preparation
Order of examination
1. direct examination
2. cross
3. re-examination
can speak to as many witnesses as possible but cannot directly speak to a party represented by a lawyer
other than yourself – parties can only be dealt with through counsel
it is your duty to examine your witness carefully in advance, to refresh his recollection as to dates and
details by showing documents; to acquaint him with the sequence of questions to be asked so that the truth
may be established in an orderly fashion and without confusion; to explain to the witness what they are
facing at trial
note you assist them in telling their story not in telling your story
in witness preparation, counsel may not “prepare away” inconvenient facts
as an advocacy point, listen to everything your client has to say even if it seems ridiculous as that is how
you learn a lot
you want to hear your client’s whole story in their own way but they can’t talk this way to the court so you
tell them the best way to put their story to the court
there is artificiality in being in a court room
Direct Examination
When you are conducting a trial, you call your own witnesses first – this is your examination in chief and is
direct examination. The key to understanding direct examination as opposed to cross lies in the concept of
leading and non-leading questions. Subject to exceptions, leading questions are not allowed in direct
examination.
A leading question is one that directly or indirectly suggests the answer ie. “I put it to you that you knew …”
A non-leading questions does not suggest an answer such as “what if anything happened next”; “who if
anyone was there”; “what if anything did they say”’; “do you recognize this document, what is it about”
non-leading questions are very difficult to do, very difficult to write
the distinction between leading and non-leading questions is not that clear – for example if your witness
forgets a critical piece of evidence like involvement of a gun you may want to pose a leading question to get
at what they forgot
The Rule is: counsel may not lead their witnesses on material issues but should lead them on introductory
or non-contentious matters (to speed up trial) – for example, how old are you, you live at so and so, let’s go
back to the night in question, etc.
The exception to the leading question rule are hostile witnesses. The hostile witness is a witness who
by demeanor or manner shows a refusal to testify willingly but you need this witness to testify. The question
of whether the witness is hostile is one of fact. You may ask the judge to declare your witness hostile if he is
showing a disinclination to testify and if the judge does so, you may pose leading questions on all points.
17
you can’t declare a witness hostile simply because you don’t like his answers
also, a failure to remember is not the same as hostility – if something happened six years ago your witness
may simply not be able to remember (versus something that happened six months ago)
the fact that a witness is not a good witness for you does not necessarily mean he is hostile
As an advocacy point, leading your own witness is unconvincing b/c the evidence does not come from your
witness so this should be avoided as much as possible even when technically it is permitted. Non-leading
questions are more effective because the judge hears the story coming from the witness which makes the
story more credible.
Cross
After direct examination is finished, the party opposite is entitled to cross-examine or ask questions of the
witness called on direct examination. Here leading questions are quite proper.
The purpose of cross is
1. to destroy or weaken the force of the witness’s testimony in direct examination
2. to elicit something favourable and
3. to discredit the witness
but you have to be careful on cross – it is important that counsel not conduct a cross-examination that
merely repeats the chief; such examination reinforces the evidence in chief
one does not have to ask leading questions, you can ask open ended questions where the answers given
will not hurt you
as an advocacy point however, you want to ask very focused questions – you should write them out before
your cross so you don’t go on forever in cross and merely just go through what the person said in chief,
emphasizing that testimony
you are not required to do a cross-examination but this rarely happens
in Canada there is no limit on the scope of cross examination – any relevant question may be put to any
witness – however unless cross has a clear and unambiguous purpose, it is better not to conduct a cross –
no cross can be far more helpful then a bad cross
Exception to not having to do a cross-examination the Rule in Browne v. Dunn
“a party wishing to impeach the credibility of a witness must ordinarily put the contradictory material to the
witness in order to give the witness an opportunity to explain it”
so if you intend to suggest that someone is lying, mistaken or in error and you are going to call evidence on
it, you have to cross examine them b/c this is only fair to the witness
if you don’t do the cross you may be deemed to accept the witness’s testimony
it may seem silly therefore to ask the witness questions you know will be denied but if you don’t do so you
may be barred from putting your case in if it is based on denial of testimony you are deemed to accept
a way to show the court you are not simply asking silly questions is to say you are complying with the rule
in Browne v. Dunn
if you don’t comply with the rule you cannot call evidence to the contrary to what the witness has testified
to OR you can call the evidence but the court will not give it any weight
18
Re-Examination
After cross, the party who conducted direct may ask questions to clarify answers given during cross. These
questions may not seek to repeat the testimony from direct, or raise new issues – they may only clarify or
expand on matters raised on cross.
For example: “In cross you mentioned you met Mr. S and Ms. W on January 22, was anyone else at that
meeting?”
An attempt to deal with matters in re-examination that ought to have been dealt with in chief will not be
allowed. Counsel are not allowed to split their case.
HEARSAY
Intro
Remember the purpose of this course is to decide whether a piece of evidence is admissible or inadmissible
and whether we should object.
Step 1 is Thayer’s Principle
Step 2 are the Rules
Step 3 is the prejudicial/probative value
With hearsay we begin discussing step two of the flowchart – does an exception to the general
admission rule apply? The first exception is HEARSAY.
So with hearsay, we are presuming the witness is competent and has been asked a proper question (ie. not
a leading question) then the first step is to ask if the evidence is material and relevant (Thayer’s test), if so
then we go to the exclusionary rules, ie. the hearsay rule. If there are no applicable exclusionary rules, the
evidence can still be excluded under step three if the prejudicial effect outweighs the probative value.
So the only time we consider the hearsay rule is if the evidence passes the Thayer’s test.
hearsay is in tremendous flux in the Canadian law system – so what we learn now might not be relevant by
the time we practice.
hearsay deals with the problem of broken telephone ie. a story changes a little bit from one person to the
next or can completely change
when a story is repeated there are transmissions errors (which can include lying)
Hearsay is generally in admissible. It has three attributes (see below).
Hearsay Rule: subject to the exceptions, is an out of court statement (element one), adduced in court
(element two) to prove its truth (element 3) is inadmissible.
so there are three elements to the hearsay rule and we must have all three before testimony is hearsay – if
we don’t have all three elements, statement is not hearsay and we don’t have to consider the hearsay rule
a hearsay statement is someone else’s statement being repeated in court and we are asked to accept it is
true
19
Hearsay Dangers
the rule of hearsay is to try to keep statements made by non-witnesses out of court – the court should not
hear gossip and should hear the best evidence available – hearing what someone else dais is not the best
evidence
Hearsay is excluded because it is considered unreliable and you can just get the person to testify himself
this point is important because there are many exceptions to the hearsay rule ie. what if the person is
unavailable to testify
hearsay poses the twin dangers of unsworn and untested evidence (ie. not subject to cross examination)
being treated as reliable and worthy of belief
the main problem with hearsay is not that the trier of fact is particularly gullible but rather the person
repeating the out of court statement may not understand the statement
the exceptions are united by the fact that there is a reason to believe the hearsay is true and is necessary
ie. perhaps the person is dead and can’t testify and we believe that when this person made his statement it
was true
Hearsay Defined by Purpose
Subramaniam case
Mr. S was living in Indonesia and there was an ongoing civil war – the government made it a capital
offence to carry ammunition – conviction of the offence resulted in the death penalty – at the time the local
criminal code provided that this offence had a defence of compulsion
Mr. S admitted her was carrying a gun but stated that warfare guerillas made him and said “if you don’t
carry we will shoot you”
so here we have an out of court statement “if you don’t carry the ammunition we will kill you” this was
Mr. S’s defence
the HL said yes it is an out of court statement, adduced in court (so meets first two elements) but that the
statement was not being said to prove its truth, ie. Mr. S was not trying to prove what the guerillas said was
true just that their statement him compelled him to carry ammunition – so here the truth of the statement
was irrelevant, what counted is that the statement was made and Mr. S believed it and was relevant in
considering his mental state
what mattered in this case was what Mr. S thought about the statement not whether it was true or not
therefore if you are repeating the out of court statement to the court to prove the contents of the statement,
this is hearsay – if you are repeating the statement to prove something else, this is not hearsay
Subramaniam v. Public Prosecutor
“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 it was made.”
Example:
Traffic ticket – police officer gets in witness stand and says on so and so date, Jane Doe was speeding –
the officer does this by looking at this notes – if you ask the officer if he remembers giving the ticket he
20
probably does not – this technically poses a hearsay problem – the notes are an out of court statement,
being repeated in court to prove the truth of the notes
Note hearsay statement can be made by the person themselves – it does not matter who made the
statement
BUT in this example above there is an exception “past recollection recorded” – in other words the “notes
refresh the witness’s memory” – if this is what really is happening it is not a hearsay statement
note, you can have your memory refreshed by anything
when the out of court statement is offered for its truth, the inability to cross-examine or “test” the source of
the evidence in court under oath or affirmation as to the truth of the assertion, undermines its reliability
hearsay also carries with it the risk of acceptance of the statement without the ability to consider the
demeanour and effect of the person making the assertion
the leading case on the definition of hearsay is R v. Starr
What is a Statement?
A statement can be something said, written, etc. it does not have to be oral
it must be communicated by an intelligent being which is generally a person, but not a clock or computer
for example, if you told the court that the clock on the wall said it was 9am – this is not a hearsay statement
– on the other hand if you said “I knew it happened at 9am because a student told me it was 9am” this is a
hearsay statement
if you told the court you knew it was 9am because you heard it on the radio, this would be a hearsay
statement
it is not the manner in which it was communicated rather whether it came from an intelligent being
a dog barking is not a hearsay statement
so the evidence must come from a sentient being
a hearsay statement could have been written by the person giving the testimony
Example:
sexual assault case
7 year old witness is supposed to give evidence that she was molested
she is put in the stand and her mechanical and legal competence is dealt with
she is asked to tell the court what happened
she responds saying “I can’t tell you but Mr. Cuddles can” – so the prosecution gets Mr. Cuddles the doll
and gives it to the witness
she then pretends to listen to Mr. Cuddles who gives her the answers to the questions
is their a hearsay issue? no, b/c Mr. Cuddles is not a sentient being, Mr. Cuddles is not actually
speaking, he does not have memories, he is no different than a briefcase
Another Example:
Richard Nixon had a tendency to speak in the 3rd person about himself but this is not a hearsay issue b/c
not an out of court statement
21
Implied Statements
Wright v. Tatham
this case dealt with whether an individual was competent to make a will
the testator dies and leaves all moneys to someone other than his family so his family challenges the will
saying he was mentally incompetent
so the issue before the court is whether the testator at the time he made his will was competent
in order to prove he was competent three letters were produced at trial
unfortunately the writers of the letters were dead at the time and could not testify themselves
the letters were written as if the testator was competent but did not expressly say Mr. X is competent – the
letters said things like “thank you for assisting me at the tribunal”; “thank you for completing the transaction
of the contract”; “thank you for your sensible comments”
note, you would not send a letter to someone like this if there were not sane
the family challenging the will said the letters are hearsay because there is an implication in the letters that
the testator was competent
HL agreed that the letters were hearsay and that an implication makes a hearsay statement – so if there is
an out of court statement and you are trying to prove its implication it is a hearsay statement and is excluded
(unless there is an exception)
but this is not the law in Canada, the U.S., Australia etc.
our rule is that only if you are trying to prove the facts EXPRESSLY stated in an out of court statement is it
considered hearsay
so in Canada the letters would have not posed a problem b/c they were not being adduced to show the
testator actually did assist in a tribunal, completed the transaction or made sensible comments
the leading case in Canada re implied statements are not hearsay is R. v. Wysochan
in Wysochan a woman is shot and there are only two people in the vicinity, the woman’s husband and a
close male friend of hers
before she dies she says to her husband “John I am very cold can you give me a blanket”
this statement was adduced at trial
the defence objected pursuant to the hearsay rule stating it was adduced to show husband could not have
killed her otherwise she would have not asked for a blanket from him
but court said in Canada we do not treat implied assertions or implied conduct as hearsay – it is not what is
implied in the statement but is what is expressly/explicitly in the statement that we consider whether it is
hearsay or not
Exceptions to the Hearsay Rule – Necessity and Reliability
only if there is a hearsay problem and only if, do we consider the hearsay exceptions
the Starr case says that all hearsay exceptions (ie. where we admit hearsay evidence) occurs when that
evidence is both necessary and reliable – that is, there is no other way to put the witness before the court
and there is some reason to believe the statement is true
the Wigmore criteria sets out the criteria for the exceptions
1. circumstantial guarantee of trustworthiness (reliable)
2. necessity
Professor Wigmore has written the leading book on evidence
so evidence that is hearsay is inadmissible in any court unless it falls within the Wigmore criteria
but the Wigmore criteria are difficult to apply b/c what is necessity and reliable
the SCC has gone further
so if you have a hearsay statement you do the following
22
1. consider if there is a traditional exception – if so the hearsay evidence can be admitted unless it is
very clear it is not necessary and reliable – the person opposing such evidence only need to show
it is not necessary or not reliable, do not have to show both
2. if none of the traditional exceptions apply, hearsay evidence can still be admitted if the person
seeking to have it admitted can show it is both necessary and reliable on a b of p
so we still have to know the traditional exceptions to the hearsay rule
evidence which is admissible under a hearsay exemption may not be admissible if it does not meet the
twin test of necessity and reliability
if we follow the method above we should come up with the correct answer on the exam
note, people challenge the traditional exceptions infrequently and when they do, they rarely succeed
Present Knowledge and Refreshing Memory
If a witness does not recall the events they are called upon to give evidence concerning, there is nothing
wrong with allowing them to review notes to refresh their memory. The notes refresh the witness’s memory
and accordingly, they are giving testimony of their own recollection. If the memory is not refreshed and all
the witness can do is read the notes to the court, there is a hearsay problem – the notes are an out of court
assertion, being repeated to prove the truth of that assertion. The testimony is then hearsay and is excluded
unless it falls within one of the exceptions to the hearsay rule. Merely because the hearsay statement is
being repeated by its initial author does nothing to alter the fact that the statement is hearsay.
TRADITIONAL EXCEPTIONS TO THE HEARSAY RULE
Summary of the hearsay analysis pursuant to Starr
1. is there a hearsay issue
2. does a traditional exception apply
3. if a traditional exception applies, can the party opposing the admission show that the evidence is
nevertheless not necessary and reliable
4. if a traditional exception does not apply, can the arty seeking admission show that the evidence is
both necessary and reliable
Broadly put, most of the exceptions can be explained based on the two elements of the Wigmore
criteria
1. the evidence is relevant, material and important but cannot be adduced except by hearsay and,
2. there is some circumstantial indicia of trustworthiness that suggests the hearsay is believable
the traditional exceptions are mechanical and are to be applied mechanically, not liberally
any policy arguments should be left for item 4 above, this is where we would make policy arguments
The Exceptions
A. Testimony in Previous Hearing
Where a witness has given his testimony under oath in a judicial proceeding in which the adverse litigant
had the power to cross-examine, the testimony so given will, if the witness cannot be called, be admitted in
any subsequent suit between the same parties or those claiming under them, provided it relate to the same
subject or substantially involve the same material questions. (Erdman case)
23
Therefore the criteria are
the witness must have given testimony under oath in an earlier judicial proceeding (this includes
administrative tribunal)
the adverse party must have had an opportunity to cross –examine this does not mean however that
they did cross examine
the witness who gave testimony is unavailable through death, illness, mental instability or just cannot be
found through reasonable attempts
the suit must be between the same parties (which includes successors) on the same issues – it does not
have to be the same precise issues but generally the same
Example:
There is administrative tribunal hearing about an employment termination – a person gives evidence as to
why the employee was fired – there is an opportunity to cross-examine – subsequently there is a wrongful
dismissal case with the same parties (and the same general issue) – the witness is not unavailable
if all of the criteria above are met, the evidence can be admitted through hearsay how do we do this
by providing the court with a copy of the tribunal transcript
Note: the criteria must be established on a balance of probabilities
this exception is rare
Q: how does it fit with necessity and reliability
A: the witness has to be unavailable (this meets necessity test) and since the witness was previously under
oath, this meets the reliability test
B. Admissions
this exception is very common
Anything that a party says can be used in evidence by the opposite party.
says includes anything written or indicated
leading case is Jacks
an admission can be good or bad but can only be used against the party
Example:
I am charged with killing my boyfriend and I say “I could not have done it because I was with Bob last night”
- then it turns out I was not with Bob so although my statement is not negative it can be sued against me to
challenge my credibility
Q: who is a party
A: in a civil case it is the person named in the title of proceedings
a Crown prosecutor in a criminal case is not a party, only the Crown itself and the accused are parties
Q: how does this fit with necessity and reliability
A: it does not
this exception has limitations
1. an admission is evidence only with respect to the party making the admission, ie. can’t use it
against another defendant in the same action
24
2. silence may be used as an admission but only where silence necessarily implies an admission –
admissions from silence are rarely found but theoretically it could happen – so if someone says
something and you don’t respond, you are taken to agree – however this can never happen in
criminal cases – but in a civil case if you delivered a bad product and someone said this is a bad
product and you did not respond this may amount to an admission
3. admissions by businesses mad be made by agents ore employees b/c a corporation cannot speak
and can only speak through its employees – BUT the statement has to be made by an employee or
agent within the scope of their employment or agency before it can be admitted – so if you ask a
receptionist did the firm receive a package and she says yes, this statement can be used b/c it is
within the receptionist’s job criteria to accept packages so this would be an admission on behalf of
the company – but if you ask her what the firm’s profits were for last year and she gives an answer
this is not an admission on behalf of the company b/c it is not within the receptionist’s job criteria to
know what the firm’s profits are – therefore when dealing with a party who is not human you
have to look at WHO is making the statement and whether they are an appropriate agent
C. Statement Against Interest
this exception is often confused with the admission exception
under the admission exception, anything a party says can be sued against that party regardless of the
hearsay rule – the admission exception applies only to parties
the statement against interest exception differs in that it applies to anyone and can be used to adduce , for
proof of its truth, any out of court statement if that statement was “against interest” and the declarant is
unavailable
An oral or written declaration, by an unavailable person, of a fact that person knows to be against
their immediate or pecuniary or penal interest, is admissible, though hearsay, of the facts contained
in the declaration.
penal = can hurt you criminally
pecuniary = can hurt you financially
note emphasis on “immediate”
the statement must be wholly against the declarant’s interest – a confession to shoplifting that gives the
declarant an alibi for murder will not amount to a statement against interest
How does it fit with Wigmore Criteria?
it meets necessity because the person has to be unavailable
it is said to meet reliability because a statement that at the time it was made was so contrary to the
declarant’s interest that a reasonable person would not have made the statement if it were not true
Examples
If someone while drinking at a tavern says that they stole thousands of dollars from their employer but only
gives their first name and no details, the exception cannot apply – but if that same person goes to a police
station and makes a full statement to the same general effect then the exception does apply because they
are subject to immediate penal consequences
O’Brien case
A deceased witness, J, went to a lawyer, confessed a crime but said he would not expose himself to
prosecution – the SCC rejected the out of court statement introduced by prosecution saying it was hearsay
25
not falling without the “statement against interest” exception – because J intended to use the Canada
Evidence Act he was not in any immediate danger of penal consequences
however if J had gone to the police and wanted to make a confession this would constitute a statement
against interest because he would be aware that he would be subject to immediate penal consequences
Another Example
A person goes into a bar and says I stole from my employer but does not say who employer was – this does
not meet the exception because this statement does not subject the person to immediate penal
consequences – but if you repeated this same statement to the HR person of your employer this would meet
the exception because the statement would have immediate penal consequences
Pecuniary Interest
note with pecuniary interest that quantum does not matter
for example, if someone writes a letter to their creditor acknowledging they owe 12,000 to them, this meets
the exception rule because it is a statement that subjects them to immediate pecuniary consequences
what if you write a letter saying you owe service charges of 59 cents – cases involving small amounts such
as this one have been held to meet the exception even though the amount is trivial – so in such a case you
might be able to make a case on reliability ie. b/c the amount is so trivial the statement may not be true
Note: generally with the exceptions to hearsay
a single statement can have many different aspects
for example the statement “I acknowledge I owe 25,000” and then the party who made this statement is
sued – this statement can be an admission b/c it was made by a party – it can also be a statement against
interest – and it might also be a business record
so one single statement can fall within a number of hearsay exceptions so you always have to scan
through all of the exceptions
D. Business Records
the two most important exceptions to the hearsay rule are admissions and business records - the
other exceptions do not come up that much
business records are not limited to profit making entities
this hearsay exception exists to allow business records to be proven for their truth
How does it fit with Wigmore criteria?
the exception is justified b/c
a. such evidence is generally reliable and
b. it cannot be adduced otherwise
for example, an automobile manufacturer’s records of engine block numbers – such records are relied on
daily to determine entitlements to warranty protection so the evidence is reliable, and no one could possibly
have an independent memory of such engine block number and the only way to prove such a number is
through a business record
When is a business record admissible?
there are two rules, one is common law and one is statutory
26
Common Law Rule
at common law, a business record is admissible to prove the truth of its contents if:
1. it was made at or near the time of the matter recorded
2. it was made by someone with personal knowledge of the matter recorded and whose position
obliged them to record the information (ie. it was their duty to record it), and
3. it was made in the ordinary course of business
Example:
In a parking lot, someone writes down plate numbers to record whose there and to make sure they have a
valid pass
here, the person writes down the plate when they see it so the record is made at or near the time of the
matter recorded; they have personal knowledge b/c they are looking at the plate and it is part of their job
description to record the plate number; and it was made in the ordinary course of business
what if the person in this example does not record himself but by walkie talkie repeats the plate numbers
and gets someone else to record them this statement would not be an admissible business record under
common law because the person who is recording the information has no personal knowledge of the matter
recorded
Statutory Rule s.35(2) of the Ontario Evidence Act
business records may also be admitted into evidence by statute
the statutory requirements are less onerous than the common law and it is more common for business
records to be admitted this way – however you don’t have to use this route and may choose the common
law route if for example, you are out of notice time – in any event both apply
the key difference is that personal knowledge of the facts recorded is irrelevant under statute, however,
written notice of the intention to call business records must be given before the evidence is to be called
(notice period is seven days)
typically parties agree on business records BUT merely delivering notice of the intention to call business
records and then filing same is not sufficient to allow the sue of those documents to prove the truth of their
contents – other conditions such as the circumstances of creation and their use as actual business records
must be proven independently – mere production of a document is not sufficient to prove the document or
its contents
What about police notes?
sometimes an officer does not show up so the Crown may want to introduce the officer’s notes as business
records
this argument never succeeds because you cannot just “mail in testimony”, and there may be reliability
issues – the technical answer is that an offer is not under a duty or obligation to record the notes, they are
merely there to refresh his memory
if it was a very serious case and the officer had been killed, the Crown may be able to sneak the notes in
arguing necessity and reliability
E. Past Recollection Recorded
this exception did not exist in Canada until very recently, it was not around in the late 80s but was present
in the 90s
27
often a witness at trial has no recollection of a relevant and material fact but did make written notes about
the fact earlier
the classic example is a witness who saw a car speeding away, wrote down the license plate number but
at trial has not memory of the license plate number
since such evidence is often necessary and has the reliability of being recorded at a time when memory
was fresh, an exception to the hearsay rule is made
A memorandum or record concerning a matter about which a witness once had knowledge but now has
insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or
adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge
correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received
as an exhibit…
note it can be your own statement
so:
1. the past recollection must have been recorded in some reliable way
2. at the time it must have been sufficiently fresh and vivid to probably be accurate
3. the witness must now be able to assert that the record accurately represented his knowledge and
recollection at the time
4. the original record must be used, if procurable
note however if the person does not acknowledge making the recording of the recollection, then the
exception does not apply
KGB statements
KGB statements refer to a case that was actually B(KG)
it comes from the necessity and reliability criteria
it is NOT a traditional exception and so we do not have a mechanical application
let’s say you write down a license plate number and at trial you are asked was it accurate at the time, and
whether you accept it as being true, and you respond respectively, “I’m not sure”, “Not really”
this does not meet the exception of past recollection recorded because we are missing the indicia of
trustworthiness, ie. it does not meet criteria #3 above
the problem is, this happens all of the time in spousal abuse cases
the victim makes a lengthy statement to the police, usually under oath and now sometimes videotaped but
at trial the victim will say she is not sure if the statement is true
How does it fit with Wigmore criteria?
we know it is necessary because complainant is no longer able to say what happened – so the facts are
otherwise unavailable
reliability is met because at the time the statement was taken, it was taken under oath
Note the distinction between physical and testimonial evidence?
let’s say there is a videotape of X who has been injured somehow – she says was hit by her spouse – this
statement is a hearsay statement (because it is being adduced through video)
the bruising on the videotape is not hearsay it is physical evidence – the bruising alone does not mean
anything but linked with the victim’s statement and the officer’s charge and testimony, it made be relevant
28
let’s use an example of an intoxicated person charged with impaired driving who was videotaped giving
statement – he never makes any important statements so there are no hearsay issues but the way he
makes the statements are relevant because it is quite obvious he is impaired
so this conduct linked with the officer’s charge and testimony and charged of impaired driving is relevant
F. Res Getae
this is a rather confusing exception to the hearsay rule
it has been used and is still used by some counsel to try to admit hearsay without giving serious
consideration to the issue of hearsay
sometimes it is used incorrectly as part of narrative – narrative means that something said during unfolding
of events – but this is not good enough to meet exception – it must be a statement made under pressure of
an emotional or dramatic event, it must be something climatic
narrative = consider what an assault victim said to someone in the days after the assault about the assault.
clearly not a statement made while the drama was unfolding - that sort of stuff is (wrongly) admitted as
narrative
we should think of it as “he shoots, he scores”
A hearsay statement relating to a startling evidence or condition that was made while the declarant
was under the stress of excitement caused by the event or condition is admissible through hearsay.
the reasoning is that the event was so startling that the declarant does not have reflective capacity and will
only speak the truth as the declarant sees it
the statement must have been made while the declarant still feels the shock of the event – it is not a past
recollection or a memory being repeated
if the shock has worn off and reflective thought has occurred, the statement will not be admitted
Examples of res getae statements:
“oh my god, he’s got a gun”
“don’t hit me”
Example that’s not a res getae statement
“he’s taken a shot”
Wilkinson case
A deceased made a statement suggesting that she was in the midst of a fight with her husband – she was
then shot by an unseen shooter – the Crown wanted to adduce the deceased’s statement to prove she was
fighting with her husband – the statement was hearsay but was made contemporaneously with the fight and
flowed from it and as a result was admissible as res gestae
Ratten case
Lord Wilberforce said “if the drama leading up to the climax has commenced and assumed such intensity
and pressure that the utterance can safely be regarded as a true reflection of what was unrolling or actually
happening, it ought to be received”
so something dramatic must have happened
it is an outburst
29
How does it fit with Wigmore criteria?
necessity is not met because there is no requirement that the witness be unavailable – so the necessity
requirement is not always present
with respect to reliability, it is a statement made in the heat of the moment – so may be lacking in reliability
– just because it is information received during a period of excitement it is not necessarily reliable
Example:
Professor teaching class and students come in and pretend to shoot him – he then asks startled students to
record what they saw – a lot of them got the gender wrong, ethnicity wrong etc.
G. Existing Statement of Physical, Mental or Emotional State
A statement made by someone with regard to their physical, mental, or emotional state, when they are not
available to testify is admissible to prove that statement.
the statement must be of an existing state or condition and a recollection thereof is not sufficient
Examples:
A personal injury case – someone falls down and says “I can’t feel my toes” – this person later dies (so is
unavailable) – this statement is admissible and would be used to prove that person could not feel their toes
at that time
Let’s say there is a homicide but the evidence is person killed themselves and her diary is looked at – in her
diary she writes “ I feel so depressed, there is nothing left for me” this is admissible because it is an
existing statement of someone’s mental state and they are not able to testify
if the statement instead say “Last night I felt depressed” this would not meet the exception because it is
not a statement of an existing condition – it did not at exist at the time of her writing or speaking it
How does it fit with Wigmore Criteria?
necessity is met because of the requirement of unavailability
reliability is said to be met because when people talk about how they are feeling at a particular time, they
are usually telling the truth Morton is not sure how correct this is
Hillman case
this case is the leading decision on this exception
in the case it was material to determine if a deceased did or did not go to a place in Kansas called crooked
creek (CC) – the deceased had written letters saying he intended to go to Colorado – this was an intention
held at the timer the letters were written and the letters were sought to be adduced to prove that intention
the letter is a hearsay statement because it is being adduced to proof the truth of it, ie to show the
deceased’s intent
the court held it was an existing statement of physical, mental or emotional state – so where an intention
is a current statement of existing intent it can fall within the exception
in this case it was a piece of evidence supporting the idea that the deceased did not go to crooked creek
NB: note that statements of existing intent are proof of the intention only of the declarant and cannot be
used to prove the act or intention of any other person
30
Note: Morton says the problem with this case is that it can easily turn into hearsay statements but for
purposes of the exam, “intent” counts as a statement of physical, mental or emotional state as long as it is a
current intent
HOWEVER you might defeat such “intent” evidence going in by saying that such statements are not reliable
H. Dying Declarations
this exception is rarely seen
it only applies were ALL FIVE elements apply
1. the declarant must be deceased
2. the declarant knew of impending death (ie. must have a fixed and certain senses of impending
doom)
3. the statement is related to death (ie. the statement relates to the manner or cause of death)
4. it is a criminal case (only applies in criminal cases, NEVER applies in civil cases)
5. element of criminal charge is death of declarant
if all five elements are met, then statement of deceased delcarant is admissible
note items 4 and 5 are critical
the exception generally applies in homicide cases
Schwartzenhauer
illustrates how narrow the exception is
an A was charge with an offence of illegally procuring a miscarriage – not manslaughter
the death of the woman resulted from the induced miscarriage – just before death and knowing she was
going to die she said “I had an abortion performed by S”
the only evidence against S is this statement – the statement meets all of the criteria except number 5 –
the charge was not focused on death nor was it an element of the charge
NB: there are very few charges where death will be an element and those typically are homicide,
manslaughter and criminal negligence causing death – note back in the time of the Schwartzenhauer case
we did not have criminal negligence causing death but if we did it is likely that this is what S would have
been charged with
in this case you could have argued that the evidence should go in because of necessity and reliability even
though the exception does not apply – it would have met necessity because the woman is dead and since
the statement was made while dying it is probable that it was true
in a civil case this exception would not apply but you would want to argue necessity and reliability
I. Official Statements
this is very similar to the business records exception
this exception is fairly important because at trials some government document may be adduced
there are two rules (1) common law and (2) statutory
common law rule broader than statutory rule
A written report or record of a public official is admissible if the official had first hand knowledge of the
reported facts and had a duty to make the record or report.
31
note that a public official may be a harbour master, school teacher a union representative – the question is
what role does the declarant play – if it is one related to a governmentally sanctioned role dealing with the
public, then the declarant is a public official
statutory rule the Evidence Act
this provides for the proof of certain documents
s.31(2) of the Act provides that entries in books of account of a municipality are admissible as evidence of
the truth of their contents without further proof
broadly speaking any certified document from our government (or government records with a seal) are
going to be admissible although it is hearsay
note that the government document has to be a certified copy
So the above are all of the exceptions to the hearsay rule in Canadian law – there are some other
obscure exceptions that exist in other jurisdictions that one could try to convince a judge to use but if you
don’t have an exception you are better off trying to argue necessity and reliability
Note on Exceptions to the Hearsay Rule
exceptions to the hearsay rule are no longer absolute
we must apply the exceptions first before we consider necessity and reliability (ie. Starr test, Wigmore
Criteria)
the hearsay exceptions only apply if you hit of all the criteria contained within the exception
necessity and reliability do not affect the criteria, just whether there is a way out of the exception – for
example the exception of Statement Against Interest – if the person is available the exception does not
apply because one of the criteria is unavailability but the evidence may still go in because of necessity and
reliability but not because the exception applies
practically speaking, the analysis seldom goes to N & R because the judges usually just go to the
exceptions because they are mechanical and therefore easier to apply
remember if an exception applies, it is going to be admitted unless the person opposing the evidence
shows that it is not necessary or not reliable on a balance of probabilities
if an exception does not apply, the evidence does not go in unless the person seeking to have the
evidence adduced proves on a balance of probabilities that it is BOTH necessary and reliability
with exceptions that don’t requirement unavailability and hence do not appear to meet necessity criteria
like admissions, such exceptions are still used –re admissions it is a concept that is so deeply engrained
even though it does not meet N & R – historically admissions existed before hearsay it was a stand alone
principal which is why it is so engrained – the discovery principal is based on admissions (this bit on
admissions is not examinable)
What is Necessity and Reliability?
it is not terribly clear what N and R are
the court seems to take necessity very seriously ie. the witness has to be truly unavailable through death,
disappearance or there has been a genuine attempt to find the witness and it can’t be done
with respect to reliability, Morton thinks reliability has a much lower standard which is almost if the court is
asking “is there a reason to think statement was unreliable”
there was an SCC case where the court found necessity but not reliability because there was a reason to
suspect unreliability
but so far there has been no appellant decision that says what N and R are
32
when a decision finally comes down from the SCC they may get rid of the exceptions altogether but this
probably will not happen for a number of years because of the Starr decision
What does Morton think of exceptions to the hearsay rule?
Morton believes that in the long term, the exceptions will disappear and the court will focus on necessity and
reliability. Right now we have to go through the exceptions to see if one applies.
We have now completed hearsay and move on to the next exception to the general admission of
evidence rule.
EXCLUSION OF OTHERWISE RELEVANT EVIDENCE
The older rule was that evidence was excluded because of unreliability. This is no longer the case. Evidence
serves a number of roles, one of them is reliability and other roles include an element of instruction for
society as a whole. So evidence obtained in a fashion repugnant to the court or society can legitimately be
excluded such as evidence obtain in breach of a constitutional or quasi-constitutional right.
A constitutional right is the Constitution Act 1867, the Charter, unspoken constitutional rights such as who is
the Queen.
Quasi-constitutional rights include those rights contained in the Bill of Rights and Human Rights Code – for
example say an employer is harassing an employee and because of harassment searches through her
things and finds drugs and wants to report her – this finding of drugs cannot be used as evidence because
the search was in breach of a right under a Human Rights Code or the Bill of Rights
these things generally apply in criminal proceedings
Right Against Self-Incrimination
Remember from before that a person is not competent to testify against themselves. So this rule is
illustrative of this general proposition.
Historically, people would not testify on their own behalf because of reliability – ie. no one is going to tell the
truth if they know they are going to get the death penalty.
As a general rule, an accused cannot be compelled to give testimony against themselves in a criminal trial.
This is clear from both s.11(c) of the Charter and s.5(2) of the Canada Evidence Act.
an accused’s compelled answers at someone else’s trial also cannot be used against him at his own trial –
this evidence is excluded not because it is irrelevant but because of the right to not testify against yourself
the right to not testify is not a prohibition on testifying – an accused may give evidence at a criminal trial – it
is a question of judgment whether to call such evidence and whether such testimony will do more harm than
good – once an accused testifies he is subject to all sorts of questions and is subject to cross examinations
ie. questions dealing with character, prior convictions etc.
note however the failure of the accused to testify shall not be made the subject of comment by the judge or
by counsel for the prosecution – for example the prosecutor can’t say “if the accused did not have
something to hide he would be testifying”
33
the court commented in the Gallagher case that it is the duty of the court to protect the accused from
damaging insinuations
the court is not to even imply the accused ought to have taken the stand but a relatively neutral description
of the law setting out the accused’s failure to testify is proper – for example the court may not comment on
the accused’s failure to testify but may state the law that the accused need not testify – this distinction
between stating the law and commenting is not always clear – so a judge cannot comment in a negative
way but may reference the fact that the accused is not obligated to testify
defence counsel may also state to the jury that the accused is not obligated to testify to remove any
queries from the jury’s mind as to why the accused did not testify
Self-Incrimination and the Charter
Unlike the right to silence (noted below), the right against self -incrimination is explicitly set out in the
Charter in s.11(c):
Any person charged with an offence has a right not to be compelled to be a witness in proceedings against
that person in respect of the offence.
On its face it seems obvious that s.11(c) says an accused cannot be forced to testify. The right in s.11(c) of
the Charter is reinforced by s.13 of the Charter which provides:
A witness who testifies in any proceedings has the right not to have any incriminating evidence so given
used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for giving
contradictory evidence.
So in a proceeding where you are compelled to testify, section 13 of the Charter protects you from having
incriminating testimony used against you in a subsequent criminal proceeding (not in a subsequent civil
proceeding. So if you made an incriminating statement in a family law proceeding and there was then a
subsequent criminal proceeding, your incriminating statement could not be used against you.
note the protection is against criminal self-incrimination only
Right to Silence (RTS)
This rule is a bit different than the right against self-incrimination. The right against self-incrimination only
applies re court. The right to silence applies generally, ie. you don’t have to speak to police unless you are
statutorily obligated.
The Charter does not provide a right to silence. The right to not answer questions is deeply ingrained in our
legal culture so much so that many lawyers are surprised the Charter is not more explicit in its protection.
The Right to Silence is limited by statute that is some persons must speak because they are statutorily
obligated to. If this is the case however, such a person’s statements cannot be used against them in a civil
or criminal proceeding, as long as the statement was truly compelled by statute. However derivative
evidence can be used, ie. X says to police because he is statutorily obligated, I killed someone and put gun
in the sink – the police can uncover evidence on the basis of what you have said.
Note you are obligated to blow into a breathalyzer
Right to Counsel (this is a subset of right to silence)
34
someone is allowed to consult their counsel right away, even before a breathalyzer for example
if you are not given your right to counsel the things you may say to police after being barred from your right
to counsel are not admissible
so if X is arrested and says to policy I want to talk to my counsel, the police are supposed to stop
questioning – if the police continue to question, the person’s statements are not admissible
Herbert
this case illustrates how serious the courts take the right to silence even though not enunciated in the
Charter
in this case, the police tricked the accused who had claimed his right to silence into making an inculpatory
statement by putting the accused in a cell with a police officer pretending to be a cell mate
the accused told his new cell friend many things
SCC: once an accused says “I’m saying nothing, I want to see a lawyer” the state has no further right to
obtain a statement from the accused either directly or indirectly (unless after obtaining legal advice the right
to silence is waived)
Note: if someone is aware of the right to silence and their right to counsel and they choose to talk and not
exercise those rights, any statements they make are admissible
what happens here if they then will not testify but police have notes of statements – there is a hearsay
problem but the obvious exception to the hearsay rule is admissions
note re civil cases
what happens where a person in says he is exercising his right to counsel and to silence and then is still
questioned and makes statements, and then is subsequently sued civilly, can those statement be used
against that person
the answer is no, the statements are inadmissible, BUT remember in a civil case you can be compelled to
testify against yourself
We have now completed exclusion of otherwise relevant evidence and move on to the next
exception to the general admission of evidence rule.
CONFESSIONS
Intro
a confession is not what you see on TV
it does not have to be an incriminating statement, it can be, but does not have to be, it is often merely a
statement
confessions only apply in criminal proceedings
As a general rule a confession is a statement made by an accused to a person in authority. Such
confession is not admissible in a prosecution of the accused unless the prosecution proves beyond a
reasonable doubt by the prosecutor that he confession was made voluntarily.
this rule is motivated by fear that coercion will be used to obtain confessions which (a) may be wrong and
(b) in any even may be obtained in violation of society’s views of what is fit and proper.
35
So, a confession is
1. merely a statement – can be anything, does not have to be inculpatory – but if it is not, the
prosecution probably is not interested in it (unless goes to credibility) and if not inculpatory it may
not pass the Thayer’s test
2. it has to be made by an accused – who is an accused an accused is not necessarily someone
charged with an offence – an accused is someone which suspicion is resting upon – so the minute
the police have a suspicion about someone, they become an accused
3. has to be made to a person in authority
Who is a person in authority?
A person in authority is anyone an accused reasonably believes is in a position to influence the prosecution
of an accused. It must be the reasonable belief of the accused. A person in authority could be:
- police
- prosecutors
- jail wardens
- owners of property alleged to be stolen
- security guards
- fire marshals
- owner of a store in shoplifting case
- parents in a sexual interference case
- salvation army officer working inside a prison
- school principal
if the accused reasonably believes the person has power to influence the prosecution than this person
qualifies as a person in authority
note in the Herbert case (above) the confession rule would not be triggered because Herbert did not
perceive/believe his cell mater as a person who had power to influence the prosecution
so the confession rule does not apply if an accused makes statements to someone who is factually in
authority but whom the accused does not believe is in authority (ie. under cover police officers)
as well, the confession rule will not be triggered unless the belief is reasonable
Free and Voluntary
A confession statement will be admissible if it was made freely and without the accused being coerced. The
question is subjective. It may be that giving the usual warning “anything you say can and will be used
against you” will do for most adults but not for persons of limited capacity.
The prosecutor has the onus of proof beyond a reasonable doubt (note most burdens re other evidence
rules are on a b of p).
An element of voluntariness is that the accused must have an operating mind – so someone suffering from
physical shock, drunkenness, or lacking in mental capacity cannot make and admissible confession.
To establish an operating mind the prosecutor must show beyond a reasonable doubt that the accused (a)
knew what they were saying (b) knew it could be sued against them and (c) comprehended the police
warning (ie. not just have it read to you but understand it).
36
so the first two conditions of free and voluntary are that (1) you require knowledge that you don’t have to
say anything (ie. if you think that you have to talk then the statement is not free and voluntary), and (2) an
operating mind
Beyond the operating mind requirement, a third condition of voluntariness requires the confession was not
obtained by hope of favour or fear of prejudice (ie. thinking you are worse off if you keep quiet or better off if
you talk).
Hope of favour = “if you talk you can phone home”; “your sentence will be reduced”
Fear of prejudice = “if you don’t talk we’ll charge your wife”; “you can’t use the washroom if you don’t talk”
Simply stated, before a statement can be said to be free and voluntary, the prosecutor must show to beyond
a reasonable doubt that the accused has an operating mind, knows of this right not to have to talk, knows
the statement may be used in evidence and has not been put under any physical or emotional strain (ie. has
no fear of prejudice nor hope of favour). If these conditions are not met the statement must be excluded.
Note: an easy way to get a statement out of evidence is the confession rule – if you are the Crown you will
worry about the confession rule – if you are the defence counsel you will look at all of the statements to see
if any of them can be excluded by the confession rule
Side note:
In a civil case, settlement negotiations are always privileged, ie. they cannot be revealed to the court this
privilege does not exist in criminal proceedings as discussions are always made on the record – but there is
a way to make such a discussion in a criminal proceeding privileged – at the beginning of the meeting you
say “my client and I have come today in the hope of favour to get a lower sentence or in fear of prejudice of
a higher sentence and what is said today are all confessions” – this makes any confessions inadmissible –
but note the police may learn of things so you must be careful of what your client says
Another aside: the exclusionary rules to admissibility of evidence do not interrelate – keep them separate
and always deal with them separately – be mechanical and functional
Voir Dire
Once the issue of whether the confession rule applies is raised, the prosecutor must prove beyond a
reasonable doubt that the confession is admissible. Such proof is established in a voir dire. A voir dire is a
trial within a trial. In the case of confessions, the voir dire is held to determine whether a confession is
voluntary and therefore admissible. The jury is excluded during the confession voir dire and does not hear
the evidence taken. A separate transcript is created. The evidence on a voir dire does not form part of the
evidence eon the trial and is not repeated later regardless of whether the confession is admitted. The judge
looks at whether there was an operating mind etc. – the judge looks at the facts surrounding the taking of
the statement.
Note: as a practical issue if the judge is conducting the trial with no jury, he is going to hear the statement –
even though he may have to ignore it, he will have still heard it.
A voir dire ought to be held whenever an issue of a confession is raised unless the accused quite explicitly
waives the need for a voir dire. Silence or lack of object is not sufficient as a waiver and if the evidence goes
in it could still be subject to appeal. You may want to waive the voir dire where the statement is both
beneficial and harmful to you, or where you generally think it is a hopeless case to argue the voir dire
knowing the confession will go in anyway.
37
The burden of providing a confession is voluntary rests with the prosecution. If the accused wishes, he may
testify during the voir dire but in a such event the judge may allow the accused to be questioned on the truth
of the statement. The De Clercq establishes this principle and says the truth of the statement goes to
voluntariness. However, Morton says if the issue went before the SCC again, it is likely the SCC would say
that you cannot ask an accused if the statement was true.
So on a voir dire, an accused does not typically testify, usually evidence is called by someone else such as
a psychiatrist.
Note: statements do not have to be videotaped but if there is no videotape, this is indicia against the
prosecution
Note: there was a case where an accused confessed while being questioned in his underwear – the CA
said this created a poisoned environment and confession was inadmissible
Evidence Collaterally Proven True
Why is a confession excluded unless it is shown to be free and voluntary? There are two obvious reasons
(1) it may be that evidence is frail and suspect and cannot be given any credit (ie. unreliable) or (2)
involuntary confessions are barred because of the broader social prohibition on benefiting from prosecutarial
misconduct.
Example:
Let’s say an accused is beaten until he confesses where stolen goods are hidden and police then find the
stolen goods where accused said they were hidden. Obviously, such a statement would be an involuntary
confession but the part of the statement about the location of the goods was true. So there is good evidence
that the confession was true, ie. collateral proof that it is true.
If confessions are excluded because they are unreliable and for no other reason then such a verified
confession ought to be admitted but if we go with the other policy rule then the truth of the confession does
not matter.
What is the law today on involuntary confessions?
The Wray case, which is theoretically still good law because it has not been overruled says involuntary
confessions collaterally proven right are partly admissible. This decision would likely not stand today. In a
case before the HL, the court said involuntary confessions do not go in whether true or not.
EVIDENCE OBTAINED ILLEGALLY
illegality in obtaining evidence is irrelevant
evidence obtained in an unconstitutional manner is relevant and not admissible
as a practical matter, conduct that amounts to illegality is usually unconstitutional conduct – so there will
not be very many instances where evidence is obtained illegally that was not also unconstitutional - for eg.
an illegal search of a home is both criminal trespass and a breach of the constitutional right to be secure
from unreasonable search and seizure
but illegality itself will not exclude evidence from being admitted – evidence is only excluded because
it is unconstitutional
38
note:
1. in the US illegal searches lead to the exclusion of evidence
2. unconstitutional searches are only done by the state (ie. to be unconstitutional a state actor must
be involved, the Charter only applies to state actors) – so if you are in a civil suit and you hire
someone to break into your opponent’s store and steal evidence – this evidence can be admitted
so evidence obtained by illegal searches by private citizens can be admitted especially in a civil case – if
someone steals your documents, the only remedy is to seek an injunction requiring the person to return your
stolen property so that it cannot be used as evidence – so this relates to theft not the illegality of obtaining
the evidence
note a voir dire determines whether the evidence is admissible or not
R. v. Hanan
this is not a very important decision BUT everyone cites it
this case states that a police officer is not different from a thief – this is important because one of the
issues that comes up re evidence obtained unconstitutionally is could it bring the administration of justice
into disrepute
so fact that evidence was obtained by a thief does not affect the evidence
except for constitutional breaches, illegality does not taint admissibility of evidence
Wiretap Evidence (not discussed in class)
There is a statutory exception to the principle that illegally obtained evidence is inadmissible. Wiretap
evidence is not admissible in a criminal matter unless the prosecutor complies with notice and disclosure
requirements prior to seeking to introduce the evidence.
At present and ignoring Charter issues, wiretap evidence is admissible if the limited notice and disclosure
prerequisites are met. Note, if the wiretap is not judicially preauthorized, there is likely to be a breach of the
s.8 Charter protection against unreasonable search and seizure.
THE EXCLUSION REMEDY AND THE CHARTER
theoretically this applies in civil and criminal matters however it is rare that you see it in a civil or Family
case so for the most part we are talking about criminal cases
remember the criminal law falls under federal jurisdiction but offences can be created provincially and still
be entitled to Charter protection – so the Charter applies to provincial offences
Creation of Remedy – History
this remedy is unknown to the common law
a judge cannot exclude evidence because it was obtained in a questionable manner
so the remedy is based only on statute and constitutional documents
the remedy comes from the US where there was a history of serious police misconduct
the US Superior Court decided in Boyd that if there was an illegality committed by policy the only way the
court can ensure the Constitution is followed is by not looking at the evidence
however over time, criticisms of such rigid exclusion emerged, mostly directed at the concern that minor
police irregularities could allow serious criminals to go free (this was the public perception anyway)
39
this criticism led to the exclusion remedy being rejected by the courts when dealing with the Canadian Bill
of Rights
then Charter cam into force in 1982 – s.52 makes the Charter part of the Constitution and the supreme law
of Canada – put otherwise, the charter is superior to and overrules any other law (the Bill of Rights was just
a statute unlike the Charter which is supreme law)
Section 24
s.24(1) – gives a general power to the court to provide a remedy but this does not apply to the exclusion
of evidence – it gives the court power to make other orders ie. ordering the Crown to pay legal costs or
making a restraining order against police to prevent categorizing by race
for the purposes of exclusion of evidence, only s.24(2) is relevant – exclusion of evidence can be
made only under s.24(2) – there is not jurisdiction to exclude evidence under s.24(1)
s.24(2)
Where … evidence was obtained in a manner that infringed or denied any rights for freedoms guaranteed
by the Charter, the evidence shall be excluded if it is established that having regard to the circumstances,
the admission of it in proceedings would bring the administration of justice into disrepute.
exclusion of evidence under s.24(2) of the Charter requires two elements
1. the evidence must be obtained in a manner that violated the Charter
2. the admission of the evidence would bring the administration of justice into disrepute
so if there is no Charter breach we do not even get into s.24(2)
Step (1)
this part of the test requires that there be some alleged Charter violation – absent a specific Charter
breach, there is no basis to seek an exclusion under the Charter – merely raising an illegality will not trigger
the exclusion
there also has to be a causal connection to the Charter breach – for example – police do a legal search of
your house and find drugs – then subsequent to this they do not give you your right to counsel – there has
been a Charter breach but this came after the finding of drugs so it had nothing to do with obtaining the
evidence
so there has to be a connection to the breach this is more difficult where there is a breach first and then
the finding of evidence
in the US, the connection is a but for test – in Canada, our test is not that strict – if we can establish a
breach that has some connection to the finding of evidence this is good enough – we do not have to
demonstrate the but for analysis
R. v. Bartle
Generally speaking, so long as it is not too remotely connected with the violation, all evidence obtained as
part of the “chain of events” involving the Charter breach will fall within the scope of s.24(2).
Stillman
let’s say a statement was made by an accused after denial of his right to counsel and then evidence was
subsequently found based on that statement
40
this case says that if the Crown can establish on a balance of probabilities that the Crown would have
inevitably obtained the evidence regardless of the breach then the evidence goes in (and is not causally
linked)
note emphasis on word “would”
note that this is extremely difficult for the Crown to prove
Step (2)
the second element says (as noted above) “the admission of the evidence would bring the administration
of justice into disrepute”
note the French text of this provision essential says “could” bring v. would bring – the word could means
the French standard is lower and is clearly a less demanding standard that suggests a mere possibility of
disrepute
in Collins the court suggested that the standard in the French text was to be used nationwide so even
though the English text says “would” we should read it as “could”
this lower test is very elastic
the word “could” has something to do with community standards, a standard which is decided by a judge
and is constantly evolving – it is not a standard we get survey studies on
Cory J. has said that the community standard is not to be set too high therefore the court should take
into account public perception but should not be wedded to that perception – this is because members of
the public generally become conscious of the importance of protecting rights and freedoms of an accused
only when they are in some way brought closer to the system personally or through experience of friends
and family
so if the reasonable person considers the actions of the state not to be good and virtuous, ie. no different
than the actions of a criminal then this would bring the administration of justice into disrepute
note illegality may be a factor in determining whether the administration of justice has been brought into
disrepute but it is not determinative
one would think that this second step means police acting in good faith is an important consideration in
whether the administration of justice has been brought into disrepute but it is not necessarily
for example, a police officer arrests X, does not read him his rights but lies to the questioning officer and
says his rights have been read – the questioning officer questions X in good faith but evidence will still be
excluded
Burden of Proof
The party seeking to exclude evidence under 24(2) of the Charter has the burden of demonstrating the need
for exclusion on both elements to a 50/50 standard.
So defence counsel has to establish (as party seeking to exclude) the two elements are met on a 50/50
standard – if defence counsel succeeds and Crown wants evidence included that Crown has to show that
the evidence would have inevitably been found despite the breach and must show this on a 50/50 standard.
Note when demonstrating a breach of a Charter violation you generally do not have to do a section 1
analysis. This is because it is presumed such analysis has already been done. For example, if this is the
very first case of a write of assistance you would have to show it is a breach of the Charter, then the Crown
would try to show it is justified under s.1 and if the Crown fails the writ will be considered thereafter to be
unconstitutional, so the next guy does not have to do the s.1 analysis.
For exam purposes, we don’t need to talk about the section 1 analysis.
41
PROTECTION OF CONFIDENTAL RELATIONS
There are certain communications that society has decided ought to be kept private even though they are
relevant and material. The basis of the exclusion is purely societal.
the classic example is solicitor/client privilege
generally the communication is only privileged if it is a “secret” discussion in the first place
discussions must arise in confidence
if the communications are privileged they do not have to be disclosed to the court
There are two types of confidential communication that is protected:
1. privileged by class
2. privileged by case
(1) Privilege by class
if your communication falls within one of the following sub-categories, it will not be told to the court
- solicitor/client
- spousal
- state
- judges
- informant
note do not confuse privilege with compellability
note what is missing from categories is doctor/client; therapist/patient; counselor/patient; priest/penitent
so there communications are not privileged on a class basis (but they might meet privilege by case)
(2) Privilege by case
in certain specific instances a specific communication may be privileged if it falls within the Wigmore
criteria (here we are talking about different Wigmore criteria)
- confidence
- essential
- relationship
- balance
PRIVILEGED BY CLASS
Solicitor/Client
There are two types of privilege under this category
1. solicitor/client
2. litigation privilege
Solicitor/Client
Communications between a solicitor and client in a professional capacity are privileged and subject to a
few exceptions cannot be disclosed except with the consent of the client.
the client has the privilege
the purpose of the privilege is to enable people to talk freely with lawyer to get advice
Limitations on Solicitor/Client privilege
discussions must arise in confidence
42
the lawyer’s agents and employees are covered by privilege ie. students, secretaries, law clerks (the law
office generally)
but if a third person is present this can mean the privilege is lost, ie. someone that brings their friend to the
meeting – if they are both charged with the same offence and they are there to seek legal advice on the
same issue, this discussion is covered by privilege but there is no privilege as between the two friends
as a practical note, it is best to talk with people privately
what is the effect as to no privilege between the two persons – take for example an insured and insurer
hire the same lawyer which often happens and then later there is a lawsuit between the insured and the
insurer – statements made by one in the presence of the other to the lawyer are not privileged and so can
be used
what happens if the client brings a friend to help them explain the story because they don’t speak English
very well there would be no privilege in this situation to get around this problem the lawyer can hire
the person as a translator, as long as the friend is paid something (even a dollar) as a translator, he
becomes and agent of the lawyer and the discussion will then be privileged
what if someone overhears the conversations what counts is the reasonable expectation of the client,
ie. having a discussion across a crowded room means a reasonable person would not assume this
conversation to be private but talking privately in a restaurant would be considered to be a private
conversation
only communications that are privileged not material evidence – if a client tells a lawyer where
videotapes of a murder are, counsel cannot disclose this information – if however a lawyer goes and gets
the videotapes, he must turn them over to the state – when you turn evidence over to the State you have to
do so without saying where you got it from so typically you hire a lawyer to turn over the evidence for you
if someone asks you take evidence, don’t take it if possible
what about white collar crime ie. your client is charged with tax evasion crime and you have books of
account – are you required to turn these over Morton says yes b/c material evidence is not limited to
knives and guns
privilege does not apply to advice taken to commit a crime in the future – if someone asks about the
law without stating why, privilege likely attaches – but if someone seeks advice for the purpose of
committing a crime, privilege does not apply – if a client tells a lawyer he is “planning to kill Becky” the
lawyer is under no obligation to disclose this information unless the lawyer is summonsed and asked about
it
independent paralegals and court agents are not covered by privilege – so such persons could be
summonsed to produce their file
another limitation on privilege has to do with who a lawyer is who is a lawyer a lawyer is
someone called in the jurisdiction you consult them in or consult them about
so if you have a discussion with a lawyer in ON who was called in UK about UK law, this is privileged
but if you have a discussion with a UK lawyer in ON about Polish law, this is not privileged because the
UK lawyer was not called in Polish jurisdiction
note in an international law firm, all lawyers count as lawyers in all jurisdictions
solicitor client privilege is defeated by innocence at stake (R. v. McClure) – where a lawyer has
privileged information that could assist an innocent accused, that information cannot be privileged at least
with respect to the innocent of the accused – but this information cannot be used against the client who had
43
the communication – however if the information is necessary to demonstrate the innocence of someone
wrongfully accused, it will be available
so let’s say your client comes in and confesses a crime to you but he has not been charged and someone
else has been charged – if that someone else learns of the confession or has reason to believe of the
confession they can make an application to the court – the lawyer’s notes regarding the confession can be
used as evidence to get innocent person off but can’t be used to charge person who confessed and police
cannot use any derivative evidence
the innocent at stake exception only applies when there is no way to put the innocence to the court except
by breaching privilege
Loss of Solicitor/Client Privilege only one way to do it: Waive it expressly or implicitly
the client has the privilege and can give it up expressly, ie. “I release my file to X”
the client cannot also waive privilege implicitly ie. if the client sues the lawyer for negligence the legal
discussions between them are put in issue and there is no privilege
if someone says, I received legal advice that says …. “ this implicitly waives privilege
if the client receives an opinion letter and mails it to his friend, this implicitly waives privilege over this
document
so if you repeat legal advice or if the advice becomes an issue in a law suit, you may lose privilege
should advise your clients up front of these situations
privilege is also waived (as discussed above) if someone seeks advice for a future crime or if someone
asks or tells you how they can change documents for tax evasion purposes when either of these
scenarios happens, you could stop your client talking, tell them you don’t want to be a part of this and tell
them this part of their discussion is no longer privileged
Examples of putting legal advice in issue (which waives privilege implicitly)
a client is suing his lawyer or says I was told by my lawyer “X”
bad faith claims – this is where an insurer knows they should have paid money on a claim but did not – so
if you sue your insurer and they defend then the insurer’s lawyer’s file is open
so if you raise in a pleading or evidence, what a lawyer said to you, privilege is waived
NB: if you have clients that are to be cross-examined, make sure to tell them never to say “my lawyer told
me not to do X” – if this happens all discussions between the client and lawyer are open
privilege can’t be lost accidentally, ie. if client mails lawyer a letter but it gets delivered to someone else
– the privilege is still there – one cannot waive privilege by accident – there has to be an intentional act of
giving a document to a third party although in such a circumstance the client might not realize they are
waiving privilege
if you as a lawyer receive another lawyer’s fax to his client accidentally, you ethically cannot use this
information, you would advise other lawyer of the mistake and shred the document
what happens if client dies privilege passes to successor in interest and they could probably waive it
privilege can also pass to a trustee in bankruptcy who may be able to waive privilege subject to the type of
discussions (ie. probably have to be business related)
so subject to waiver and exceptions s/c privilege is absolute
NB: physical evidence and observations are not privileged - sometimes lawyers are summonsed about their
observations ie. if someone ran into your office with blood all over them – remember this is because
privilege is limited to communications only
44
also, the fact that you went to see a lawyer is probably not privileged – on the other hand if you went to see
a lawyer like Brian Greenspan who only does one type of work, the fact of the consultation might be
privileged (but this is not certain)
Litigation Privilege
this is a separate type of privilege under the heading of solicitor/client privilege that is important to keep
separate
note both litigation privilege and s/c privilege apply to both criminal and civil proceedings
so any communications made for the purpose of litigation is privileged which means any communication
with anyone that is made for the dominant purpose of litigation is privileged until litigation is complete
Examples:
experts reports are privileged even though they are obviously relevant and material, the reports are made
during litigation or in contemplation of litigation
witness statements are privileged although you may have to disclose the names of the witnesses (but not
the statements)
the purpose of litigation privilege is to protect the lawyer’s trial brief
so we must ask if there is ongoing litigation or a reasonable prospect of litigation and whether the dominant
purpose of the communication is for litigation or in anticipation of litigation
Example:
a slip and fall in a grocery store – a clerk prepares an accident report – the accident report will not be
privileged if it is prepared for the purpose of better future mopping – but if the report is prepared to instruct
counsel, it is privileged
note Morton advises people to write on the top of such reports “for instruction of counsel” – however this
may not mean anything unless it is really for the instruction of counsel
litigation privilege ends when the litigation concludes – solicitor client privilege never ends
Husband and Wife Privilege – Spousal Privilege
this privilege is forgotten by almost everyone
remember that in a civil context (although not in a criminal context subject to sexual offences) a husband
and wife can be forced to testify against each other
BUT the communications between the husband and wife during marriage are privileged at the instance of
the person called to testify
what does this mean?
husband and wife (or same sex) must be legally married and together, that is not separated, divorced or
deceased
Example
Husband says to wife, “Becky I shot Frank yesterday” – Becky is then called as a witness in a civil case for
wrongful death – she can claim privilege and say I can’t speak of my discussions with my husband – note
Becky holds the privilege the privilege is held by the person testifying not by the person who spoke
in a civil context, a spouse can testify as to other things such as events, observations but not what they
were told by their spouse if they choose to claim such privilege
45
State Privilege
communications made for the purpose of governmental policy-making are privileged – so cabinet or policy
discussions are privileged at the instance of the Crown
this privilege unlike other privileges has a balancing component – if the evidence is material and relevant in
some way a court will weight whether the injury to the cabinet secrecy of disclosing the information is
greater than the injury to justice by not disclosing the information
the purpose of the privilege is to allow for free and frank discussions of policy matters at a high
governmental level
note as well, that the cabinet discussions must be confidential for privilege to attach – so if the cabinet is
on a plane and having a heated discussion where the whole plane can hear, this discussion will not be
privileged
Judges Privilege
as we know, judges cannot be compelled to disclose their discussions or reasoning in coming to a decision
– in addition they also have this privilege that reinforces this fact
this privilege extends to members of administrative tribunals
note where there is an issue of juror misconduct, a juror may be called to testify
Informant Privilege
police cannot, except in criminal cases where needed to demonstrate an accused’s innocence, be
compelled to disclose an informant’s name or identity
so a police informant’s identity is privileged at the instance of the police and cannot be disclosed unless
necessary to acquit someone in a criminal proceeding
Example – Morton’s Rubera case?
a man is charged and then the charges are withdrawn – he wants to then sue police for wrongful arrest –
police say it is not wrongful arrest because they received information from informant – man declares he
wants to know who informant is – it seems there should be no privilege because the issue has been raised
in a law suite but the courts have said privilege still attaches – so name of informant cannot be disclosed
note privilege belongs to police and not the informant
CASE BY CASE PRIVILEGE
case by case privilege is defined by the Wigmore Criteria (this is different Wigmore criteria than previously
discussed)
if the four following elements are fulfilled then any discussions between the two people are privileged
regardless of whether they fall into a class privilege
1. the communication must originate in confidence
2. confidentiality must be essential to the communication – ie. the confidentiality must be essential to
the full and satisfactory maintenance of the relation between the parties
46
3. the relationship must be one which in the opinion of the community ought to be sedulously fostered
– so the relationship between the two people must be one that society values
4. Balance – the judge must balance whether the injury to the relationship by disclosing the
communication would be greater than the benefit of keeping the privilege (ie. the harm to society of
keeping the privilege)
so if a communication not otherwise covered by a class privilege fits with the Wigmore criteria, the court
may exclude the communication from evidence
privilege on a case by case basis will arise in narrow circumstances
the party seeking to establish privilege exists must establish by clear and cogent evidence each element of
the Wigmore criteria
note with item 3 it does reflect the majority’s ongoing thinking so some majoritarian prejudice is built in
note with item 2 if you want the communication to be confidential, for example in a therapy situation, it
should not take place in a group discussion
Examples:
a long term relationship between a common law couple wherein a communication is disclosed by one to
the other this would meet criteria 1,and 2, you always have to argue 4 and 3 always reflects what the
majority thinks – in this case criteria 3 would likely be met (but note with a same sex couple 20 years ago,
criteria three would likely not have been met)
a priest and a penitent – this would easily meet all four criterion
two drug dealers – criteria 1 and 2 would be met, 4 we always argue BUT 3 would not be met for obvious
reasons
note precedents set can be helpful BUT do NOT establish a new class – so you have to argue four
criteria each time
examples of privileges not existing by class
priest – penitent
doctor – patient
accountant – client
these communications are prima facie not privileged and are admissible unless it is established Wigmore
criteria apply to exclude the evidence
the court is generally disinclined to grant privilege in anything but the most obvious cases
in a typical situation where doctor-patient privilege is claimed, the court has noted that if the treatment
provided is the focus of the trial, privacy considerations must yield to the litigation process
An Exception to All Privileges
If during a privileged communication you learn that someone poses a threat to public safety – the privilege
can be overridden and you are allowed to contact police.
47
For example, a doctor during counseling learns that a patient is considering causing serious harm to a
neighbour. Regardless of whether that doctor patient communication is privileged on a case by case basis,
disclosure is justified.
Where a serious harm to an identifiable person exists, privilege is waived albeit only insofar as it is
necessary to avoid the danger, ie. you are only obliged to volunteer the minimum amount of information in
order to still protect your client.
The SCC said in Smith v. Jones in order to determine if privilege no longer applies, there are three factors to
consider
1. is there a clear risk to an identifiable person or group of persons
2. is there a risk of serious bodily harm or death
3. is the danger imminent
note this public safety exception applies only to future harm –admissions of past violence, no matter how
serious do not fall within the exception
A Note on the Application of Privilege
you first look to see if there is a class privilege – if you don’t find a class privilege then you go to the case
by case privilege which only applies once
we must ensure not to confuse the case by case and class privileges – the balancing test in case by case
privilege does not apply in class privilege except in very narrow circumstances (ie. cabinet secrecy)
Example:
A and B are living together but not married
A has been charged with frauds and made statements about it to B
B is summonsed to testify (recall B can be summonsed b/c competency only applies to married couples)
B cannot claim spousal privilege because A and B are not married
But maybe there is case by case privilege so as defence counsel you will want to argue case by case
privilege – you will have to look at the Wigmore Criteria ie. #3- does society value this relationship
probably because of other legislation protecting unmarried couples
courts in general do not like privilege because it is a clog on the administration of justice therefore privilege
is interpreted narrowly
so for class privilege you have to fit squarely within the class and for case by case privilege you have to fit
squarely within ALL Wigmore criteria
SETTLEMENT DISCUSSIONS
settlement discussions are sort of like a form of privilege
public policy favours the amicable settlement of civil disputes
only applies to civil cases (civil includes family, administrative but NOT bankruptcy)
all discussions and communications made for the purpose of resolving a dispute are privilege and cannot
be used in eviedence
commonly people put “without prejudice” on such communications
the communications do not have to come from a lawyer, they can be between anyone, ie. owner of
Sobey’s and yourself relating to a slip and fall – but litigation has to be ongoing or in contemplation of, AND
the discussions must be intended as confidential at least as regards the court
48
the actual words “without prejudice” are meaningless – they do not make a communication privileged and
not putting them on a letter does not mean letter is producible
whether or not the words “without prejudice” appear on a letter, if the letter is written for the purpose of
settling or comprising a claim, the letter is privileged
it is convenient to write the words “without prejudice” on a settlement letter because it is easier to identify it
later as a settlement letter and judges won’t look at it if they see these words
HOWEVER, some lawyers write these words on everything, even regular demand letters
you can also have letters parts of which are privileged and parts of which are not – in the event you have to
produce this letter for the non privilege portion, what you must do is black out the privileged portion
note that it is the person making the communication which counts as whether the communication is
privileged
but note the privilege attaches to the offeror and offeree so both would have to waive privilege
settlement privilege only applies until the issues in the action (including damages but NOT costs) are
concluded
Example:
there is a case where there has been extensive settlement discussions – the discussions are obviously
note mentioned at trial – a decision is rendered and then court says to parties speak to me re costs – once
we get to this stage, settlement discussions are no longer privileged and they can be discussed in front of
judge with respect to costs because judges base costs awards on settlement discussions
What happens if parties agree on an actual settlement and then one side does not comply?
if this happens you can go to a judge and discuss what the settlement was to try to have it enforced
What about the words “with prejudice”?
unlike words “without prejudice” these words have a meaning
these words mean the letter is not privileged and person intends to rely on the letter even though it has
settlement discussions on it
why would someone do this?
Example:
wrongful dismissal case where behaviour of parties is a factor in determining damages – if one party
becomes unreasonably this may have an impact on settlement so you may want to send them a settlement
letter with the words “with prejudice” saying “we propose to settle for X” to show other side is being
unreasonable – BUT this is a very danagerous strategy b/c if the judge thinks the settlement is
unreasonable you could be in trouble
if you see such a letter come to you, you may want to phone the other side to make sure it is not a typo
because otherwise this letter can and will be produced
remember in criminal cases there is no such thing as without prejudice or settlement discussion
privilege - everything you say can and will be used against you
remember to get around this we use the confession rule whereby if we go to a settlement meeting we say
to everyone “we are attending this meeting in the hope of favour and fear of prejudice” – put this in writing
and we need the Crown or police to agree - if they say no we leave – if they agree we have created
something similar to settlement discussion privilege
but note this strategy is NOT settlement discussion privilege it is just a clever way of invoking privilege
if you don’t say this at the outset of the meeting and your client makes a damaging statement it will be
used because it was made in a free and voluntary fashion – although you as a lawyer could be facing a
negligence suit
49
OPINION EVIDENCE
as a general rule, opinion evidence is not admissible b/c witnesses are to testify as to what they said,
heard, tasted, perceived – witnesses are not called upon to make conclusions as to what is the meaning of
what they perceived – this role is saved for the trier of fact
but the distinction between opinion and fact can be difficult
for example if you say “X looks drunk” – is this an opinion or a fact
when a police officer talks about impairment he says X had glassy eyes, was unsteady on his feet, etc – ie.
he talks about factual things that can lead the judge to conclude X was drunk
but ordinary persons do not do this – that is you can see someone is drunk but you cannot say why – the
same applies to guessing someone’s age or if you see a document with your husband’s signature on it –
you know its your husband’s signature but you don’t know why
Opinion evidence, that is conclusions drawn from facts, is inadmissible unless it is (1) an opinion of
a layperson that is necessary for a clear understanding of their evidence (ie. they are unable to
testify in any other way) AND it is a statement about an ordinary every day thing or (2) an expert’s
opinion.
1st Exception - Opinions of Laypeople
Example:
Witness says “X was drunk” – the lay witness does not know how to say X was drunk in the same manner a
police officer can – so you cannot go behind their opinion
so the first criteria here is that the lay witness is unable to testify in any other manner
second criteria is that it must be an everyday thing ie. an ordinary experience of the witness
so a witness could not testify about a flying saucer
what about a heroin addiction? if the person was an addict he could probably give an opinion on this
but not if it is outside his normal ordinary experience
obviously this means lay witnesses will be able to give opinions on different things depending on what their
ordinary experience is
if both criteria are met, the opinion evidence is admissible
things lay witnesses can generally opine on
1. speed
2. handwriting
3. age
4. marital status
so this is the first exception and is usually not even noticed as an exception – you have to be thinking
quickly to recognize statement was an opinion and not a fact
2nd Exception – Opinions of Experts
expert testimony is allowed b/c there are certain things a judge or juror cannot reasonably be expected to
understand without the guidance of someone skilled in a recognized field
50
so if the opinion is of someone knowledgeable and skilled in art or science and is necessary for the trier of
fact then the opinion will be allowed
If specialized knowledge will assist the trier of fact to understand the evidence or a fact in issue, a
witness qualified as an expert by knowledge, skill, experience or training may testify by way of
opinion.
Example:
A bridge collapses – in theory you could teach a jury engineering principles or you could get an engineer’s
opinion – if such an opinion is necessary then it will be admitted
so if the trier of fact can properly come to a conclusion without the help of an expert, then such evidence is
superfluous and should be excluded
it must be necessary otherwise we are giving away the jury’s role, it cannot be something that is just
helpful
the standard of necessity is based on the average judge or jury
if the jury cannot figure out something for themselves, then an opinion is allowed
an expert witness cannot say the last witness was a liar b/c this is for the jury to decide
the potential prejudicial effect of the evidence must not outweigh its value to the trier of fact
Example
In commercial litigation cases, often accountants will give their “expert” opinion – but Farley J. says these
persons are not actually expert witnesses, they are simply testifying as to what they saw in books and
records – so it is not necessary to have this opinion and the opinion is not an expert opinion it is just regular
testimony
What about a doctor who testifies about what he observed on a patient – his observations are not an opinion
but if he draws a conclusion based on his observations, this is an opinion
Basis of Expertise
The qualifying of an expert requires proof that (1) this person has some special or peculiar knowledge of
their subject and (2) the subject they are an expert in a legitimate area of study.
the requirement of special knowledge or skill does not require academic or professional qualifications
although generally experts tend to have such qualifications and generally experts have enormous CVs
the determination of whether the field is an area is legitimate is problematic – merely b/c people have
devoted time and effort to a topic does not mean the topic has value for the court
the field of expertise has to have been generally accepted by the scientific, professional or academic
community as having achieved a threshold of reliability
in the early 1900s psychiatrists could not testify
note that you won’t see this issue regarding a problem with the field of expertise come up that often as the
vast majority of experts are called to testify as to matters within traditional academic or professional fields
but unless there is a settled and accepted expertise, the opinion is inadmissible
we determine whether an expert is qualified through a voir dire, this voir dire unlike others is held in front of
the jury – the judge decides whether the expert is qualified and can determine what the qualifications are
and what the opinion will be limited to – so experts are not qualified for everything ie. a doctor is qualified for
51
medical things only – the range of qualification can be quite narrow – for example in a rural farming case a
real estate lawyer qualified as an expert for conveyancing of urban properties but not for rural ones so her
evidence was no good
in qualifying a witness we go through their CV during this procedure it is proper for the other party should
they wish, to say that they accept the person as an expert, so there is no need to qualify him
HOWEVER you should thank the other side but still qualify the expert to go through the CV and show the
expert’s brilliant qualifications, otherwise, the judge will assume your expert is just as good as the other
side’s
if other side accepts person as an expert, you may not wish to continue going through the CV of your
expert, if he is not very qualified ie. he dropped out of engineering school – this way you don’t have the court
seeing that your expert is a thin one
in civil cases you must provide a report/summary of your expert’s opinion 90 days before trial in addition
with their CV (the same applies in criminal)
BUT generally the report and CV does not go into evidence (where you have a jury) – only the testimony
given by the expert is evidence – this is because if the jury has the report to rely on they may simply rely on
it without giving more thought to it
the report and CV can go in as evidence with consent of the parties
note that if it is a judge only trial, you will let the report and CV go in (otherwise judge will become
annoyed)
Recap re experts
1. testimony must be necessary
2. expert must be qualified in an area of expertise
3. area of expertise must be one that is recognized
4. expert’s testimony must fall within qualifications
#1 - testimony must be necessary – it can’t be simply helpful – ie. you cannot have expert testimony on the
credibility of a witness as a jury can figure that out for themselves
#2 - expert must understand and be conversant in his filed – this does not mean he requires formal
education but generally we do call experts with paper qualifications – paper qualifications impress the court
– qualifying an expert is done through a voir dire in front of a jury
#3 - qualifications only count if it is a field recognized by the court – the court has to come to the conclusion
that the field of study is a legitimate one – when courts are required to determine whether a field of study is
legitimate, they look for things such as peer journals, ongoing journals of study, are courses in the study
offered at university, do people earn a living in this area of study – if the court does not accept the filed as
legitimate are of study then the expert cannot give testimony
#4 – experts must testify within their field of study
Note on Foreign Law: proof of foreign law always is done by an expert – so if you want to say what the
law of NY State is you have to call a lawyer from NY State to say what it is – if you fail to call an expert, then
the foreign law is deemed identical to the law of Ontario
Recent Case in CA
this was a homicide case and dealt with the murder of two young women
the issue was whether the boyfriend of one of the women was the killer
52
there had been a staged break in
the Crown called an expert on crime scene reconstruction to talk about the set up of a staged break in and
why people do it
CA rejected this expert because it said that the jury did not need this evidence ie. the jury could figure out
that since the window was broken and nothing was taken it was a staged break in and obviously someone
did this on purpose to make it look like a robber murdered the women
the CA said the expert testimony was helpful but not necessary
also, because the expert was so qualified the jury might have not thought about the evidence on their own
and would have taken the expert’s opinion to be what the evidence is
so here the prejudicial effect of the expert outweighed the probative value and this will always be
the case unless the testimony is necessary
there is a real risk for juries to simply take the evidence of experts, if the testimony is not necessary
Opinion Evidence and Ultimate Issue
occasionally expert testimony is objected to as being directed to the ultimate issue of the dispute – that is
the actual issue in the case
the concern is that an expert opinion on the very issue the court is to decide tends to usurp the role of the
court as decision maker
BUT the SCC in R. v. B (RH) says this does not apply anymore, so an expert can testify about an ultimate
issue
at most, the ultimate issue rule amounts to a principle that ought to govern a court’s consideration of an
expert’s opinion
Factual Basis of Expert Testimony
an expert gives an opinion as to the interpretation of facts
almost invariably (except for doctors) experts have no direct knowledge of the facts that the base their
opinions on
in order to determine if the expert opinion is of any value, the facts the opinion is based on must be
described and proven – the facts must be proved independently
therefore, expert testimony is usually given by way of a hypothetical question that sets out the facts the
expert’s opinion is based on – this is how we tie an expert’s opinion to the facts
this allows the trier of fact to decide if the expert’s opinion is worth anything – if the expert’s opinion is
based on facts not accepted by the trier of fact, the opinion is of little or no value
Example: “if we assume A, b and c to be facts, what if any opinion do you have about d”
if the court rejects a, b or c, it can judge the expert’s view accordingly – furthermore cross-exam is made
possible ie. the expert can be asked what if instead of a, b and c, x, y and z were true
so you must independently prove each fact
sometimes hypotheticals can be quite complicated so you want to set them out specifically
Morton says he writes them out and hands them to judge and jury so they can see whether he proved A, B
and C BUT if C is not true then jury and judge will see expert’s testimony is meaningless
Example: engineering case involving collapse of bridge – you would say to your expert, assuming the truck
traveling across bridge weighed A grams and the wire cables had B tension and the bridged had C
suspension what is your opinion? – the expert will say based on these facts the bridge was faulty – but you
53
would have to prove independently each of A, B and C – if you don’t prove each independently, your
expert’s opinion does not really prove anything although it will still go in as testimony
EVIDENCE OF CHARACTER
this exclusionary rule is generally important in the criminal context but is also applicable in the family and
civil context
CHARACTER OF AN ACCUSED
Bad Character
evidence of bad character is not admissible to prove an accused committed a criminal act ie. to prove the
guilt or liability of someone
so we can say someone is guilty of a crime because they are a bad person
this rule applies only where the sole purpose of evidence touching on bad character is to show the
accused is the type of person likely to have committed the offence
why do we exclude such evidence b/c prejudicial effect outweighs probative value (even though this is
a separate step in the analysis) and for efficiency of trial time
so evidence of bad character leading to guilt is a forbidden chain of reasoning
BUT, evidence that implies bad character can still be admissible – it depends on why the evidence is being
adduced
in the Makin case where the Makins were accused of being baby killers, the Makins objected to the
evidence of corpses being put forward to court arguing that the Crown was trying to show they had bad
character – but the court said this was being adduced to show the Makins killed the babies not for bad
character
once a person is guilty, this can lead to the conclusion of bad character and this is ok b/c it is irrelevant –
once found guilty the quality of someone’s character is no longer a legal issue
Example: spousal abuse – if the Crown shows that the Husband was beating up his wife all day up until the
assault in the evening – this is to show he likely assaulted his wife, not that he has a bad character
(although this incidentally shows this) – but if the Crown showed that the Husband slapped the wife five
years ago this would be bad character evidence to show accused his guilty and would the evidence would e
excluded – but it is a fine line!
Example: child murderer, person shook baby to death – Crown adduced evidence of dislike of man towards
child and adduced evidence that man mistreated wife before she got pregnant – the former evidence was
admissible but that latter was excluded because it was to show bad character leading to guilt
if there are two possible purposes for adduction of evidence then generally the bad character evidence will
be allowed because the rule is to exclude evidence only being adduced to show bad character
if bad character evidence is let in, you can argue against it at the prejudice/probative step
Good Character
evidence of good character IS permissible to prove someone is not guilty
the real reason why this is allowed is a historical reason – historically the way in which you would prove
your innocence would be to have a no. of people swear that you were honest
54
evidence of good character is most important in dealing with public offences – ie. bank robbery – the more
public the offence the more relevant good character evidence is
it is a very powerful tool and defence counsel should consider calling good character evidence although it
can be dangerous
good character evidence is not adduced by putting a witness on the standing and saying “tell me about X”
– it is adduced by putting the witness in the stand and asking “do you know X, do you know his community,
what is his reputation in the community for truthfulness, honesty etc.
this notion of “community” can raise problems practically – for example if you live in Toronto, what is your
community – there is not really one so we have to ask about the person’s circle of friends or business
associates
note that when a witness speaks about the accused’s reputation he is actually speaking of incidents the
accused has been involved in although technically this is not supposed to come out in evidence
the personal opinion of the witness as to the accused’s character is not to be put in evidence
in responding to good character evidence, the Crown may call (1) general evidence of bad character,
although again a witness’s personal opinion of the accused’s character is inadmissible (2) evidence of
similar acts or (3) cross-examine the accused or witness about specific past disreputable acts
note that the Crown is entitled to destroy the good character evidence by using bad character evidence
and this use of BC is ok because Crown is not adducing BC to show guilt (although in reality it is really
showing guilt)
the Crown can cross-examine the witness giving GC evidence and ask about the accused’s criminal past
and previous charges (note this is the only time a question re charges is allowed)
note the concept of not stating your personal opinion comes out of an English case involving child
molestation where the court said not putting the witness’ personal opinion of the accused into evidence is
highly artificial because in asking about a person’s community the witness is really saying what his or her
personal opinion is
so we must be careful about calling good character evidence b/c as soon as you do this, you open the door
to bad character evidence
so how can you get evidence of good character in without really calling good character evidence you
can give bit of narrative ie. X has been a doctor for 30 years
you don’t however want the accused to put his character in issue in the course of giving his testimony ie.
the accused makes assertions to show he is a person of good character particularly with respect to the
issue in the case, “I am an honest, hard working citizen”
CHARACTER OF NON-PARTIES
the rules we discussed above are limited to parties in the action, they don’t apply to non-parties, so
defence counsel in an assault case can obtain the criminal record of the victim to show he has a previous
history of violence and perhaps he initiated the assault
there is no limit here other than relevance and materiality and such character can be proven by reference
to specific acts
but note if the character of the victim is put in question, it is a short step to suggesting the accused is of
good character and if that step is taken, even by accident, the Crown may adduce evidence of bad
character
the character of a victim of a crime is relevant to make a defence of self-defence more likely justified
but since there is a danger that evidence of a victim’s bad character will be misused, t he evidence must be
treated carefully and its probative value carefully weighed but the courts will be loath to restrict the right of
an accused to call material and relevant evidence even when it may have some prejudicial effect so the
prejudice must substantially outweigh the value of the evidence
Victims in Sexual Offences
55
generally the character of the victim in a sexual offence is not something that can be used by the defence
evidence of sexual experiences of the victim is excluded unless the probative value of such evidence is
substantially outweighed by the need to ensure a fair trial
general sexual reputation cannot be used to prove a complainant unworthy of belief
the court in applying the “rape shield” law, balances the rights of both the complainant and the accused
so defence counsel cannot enquire into the victim’s history or attack their credibility but can attack the
victim in other ways, other than sexual ie. if their criminal record shows fraud perjury etc. – but can’t deal
with their sexual past
so subject to this sexual offence exception, you can raise the good or bad character of a third party
(non party to the action)
PROPENSITY AND EXPERT TESTIMONY
it is very common in a criminal trial, for an expert witness to say, for example, whoever committed the
crime had to have been left handed or taller than six feet, etc.
this evidence is admissible (if the expert is qualified)
how does this evidence relate to bad character evidence
the answer is there is a fine line between a mere disposition of violence (which is not the subject of an
expert evidence) and a peculiar psychiatric tendency (which may be the subject of such evidence)
the problem is when psychiatric evidence is called it is usually called by the Crown and is usually negative
which suggests the person has a bad character so what is really happening is that bad character evidence
is being adduced to show guilt, dressed up in another fashion – in theory the Crown’s psychiatric evidence
is not being adduced to show bad character but the trier of fact may assume that a sexual deviant is guilty
no matter what (ie. he might not be guilty of this offence but might commit one in the future)
so expert testimony of an accused’s mental state is proper but only if relevant to an issue other than mere
propensity (ie. psychiatric inclination or tendency) – it must be a peculiar psychiatric tendency
so evidence of psychiatric tendency can only go into evidence if the tendency is one that represents less
than 1% of the population and is a tendency that is clearly defined, almost like a trademark and the person
who committed the crime and the accused both fit into this peculiar tendency
the reason we have this test is because of the risk of bad character evidence – the other reason is
unspoken – judges don’t generally trust psychiatry – it is too fluid – what is theory now might not be the
same theory in five years from now
so as a Crown you can call psychiatric evidence that the person who committed the crime was a specific
peculiar group and the accused fits into this group
one way to look at this is to ask whether the evidence could be properly analogized to testimony regarding
a physiological fact – ie. is the psychiatric evidence similar to evidence for example that the killer was left
handed – if the analogy between physiologic and psychiatric fact is close then subject to prejudicial effect
overwhelming probative value, the expert evidence is admissible
note that only where the probative value is very high will the prejudicial effect of propensity be outweighed
– “evidence of propensity while generally inadmissible may exceptionally be admitted where the probative
value of the evidence in relation to an issue in question is so high that it displaces the heave prejudice which
will inevitably insure to the accused”
What if the Accused wants to Call Psychiatric Evidence?
if you do this as defence counsel you run into the danger of calling good character evidence which can
trigger and open the door to bad character evidence
if you do want to call psychiatric evidence to show the killer is of a certain group and the accused is not ,
the standard is lower than it is for the Crown, ie. the tendency does not have to be as peculiar, it still has to
be peculiar, a defined group but can be a broader group
56
Example: the Accused says I am calling a psychiatrist to say the person who committed this offence was a
homosexual (which in the 60s was a peculiar group) and I will also have the psychiatrist give evidence to
say I am straight this evidence would be allowed (but might not be allowed by the Crown because not
peculiar enough?)
today, it is not uncommon in a pedophilia case to see if the accused has tendencies towards pedophilia but
for the Crown, pedophilia is too common of a group to fall within the propensity exception rule so evidence
would be excluded
SIMILAR FACT EVIDENCE AND CREDIBILITY
CHARACTER AND PSYCHIATRIC PROPENSITY
in order to prove a case the plaintiff/prosecutor must demonstrate the facts alleged and cannot show the
defendant/accused is a bad person and is more likely than not guilty/liable
an accused is on trial for their acts and not their character
the general rule is set out in Makin and this case is the classic case on similar fact evidence
Makin
the Makins were baby farmers – they took unwanted children into their care in return for money – the body
of a bay was found buried in their garden – the burial was clearly irregular but this standing alone was not
necessarily proof of murder – but the Crown adduced evidence of at least nine more dead babies buried on
the property – the evidence of the other dead babies did show the accused was of bad character but the
legal basis of allowing proof of the other dead babies was to rebut accidental death – one baby may die
accidentally even two but not ten and counting
the key is that evidence of similar acts can be admitted even though it may incidentally show bad
character if it is otherwise relevant – so similar fact evidence is excluded except in exceptional cases
the HL held in Makin “the evidence of all the other babies was relevant on account of the statistical
improbability that a number of children which the Makins had at various times in their care would have all
died of natural causes – from this it followed that they were likely to have been murdered and once this
stage of reasoning had been reached it was a short step to concluding the Makins had murdered them - the
similar fact evidence was not used to show that the accused were the sort of people likely to have
committed the offence”
so similar fact evidence is where the Crown tries to say that a defence of accident, for example, does not
apply because it is statistically improbably and would be an affront to common sense to suggest the defence
is an explanation
Example: a cashier in 40 transactions gave the wrong change to the customer and in all transaction it was
too little change – this strongly suggests a course of conduct that is not accidental – this might not suggest a
particular course of conduct if some clients got more, some got less this might just suggest the cashier is
not too bright
if the Makins had 100 babies and 60 died but 40 lived one could probably argue that they are not good
parents but they are not murders – but when every single baby is dead this is an affront to common sense
57
note the concern about similar facts arises from the perception that the prejudicial effect of allowing this
type of evidence may overwhelm any probative value the evidence has – “nobody is charged with having a
general disposition or propensity for theft or violence or whatever – the exclusion thus prohibits character
evidence to be used as circumstantial proof of conduct ie. to allow an inference from the “similar facts” that
the accused has the propensity or disposition to do the type of acts charged and is therefore guilty” – the
danger is that the jury might be confused by the multiplicity of incidents and put more weight than is logically
justified
since evidence of prior actions can easily be given too much weight, the balance between probative value
and prejudicial effect is of great significance – another element of prejudice is that can accused can be
overwhelmed by the attempt to disprove similar facts
similar fact evidence cannot be just general bad stuff about the accused, it must be specific to be allowed
Brief Recap
SFE is consistent with Thayer’s principle it is relevant and material b/c people tend to behave today the
way they have behaved in the past
there is a conflict between SFE and the bad character rule, ie. we can’t say because the person has a
criminal record this means they robbed the bank (even though this is how we related things on a normal
daily basis)
in very specific cases where it would be an affront to common sense SFE can be adduced, ie. if the
behaviour of someone now is almost precisely the same as it was in the past
in the Makin case, by showing the other dead babies this displaced/destroyed the Makins’ defence of
accidental death and the evidence was being adduced not to show bad character evidence (for the sole
purpose of showing guilty and therefore a forbidden chain of reasoning) but to show the Makins were killers
and to show that their conduct today is consistent with their prior behaviour
the reason SFE is excluded is because of prejudicial/probative value
you must show probative value is high, so similar evidence has to be “strikingly” similar (although SCC
does not like that term)
HOW SIMILAR IS SIMILAR?
the phrase often used is the acts have to be strikingly similar
note that prior acts do not have to be the subject of prior judicial determination
the SCC has said that SFE is not admissible if people involved in prior acts have had an opportunity to get
together and concoct a story
Example: Husband was charged with beating up his wife in a specific way ie. with a broom – the Crown
adduced evidence from the husband’s ex-girlfriend that he had hit her in the past with a broom – the court
said this similar act was close enough to be adduced – BUT the ex girlfriend had gone to the wife having
heard about the incident and then went to the Criminal Injuries Board – so the evidence was ultimately
excluded
prior acts have to be truly independent – when there is an opportunity and evidence of discussion or
collaborations, then the evidence cannot be admitted
Morton’s Real Life Example: someone is charged with sexual assault on a minor – the assault took place in
the basement of the minor’s home – then there are 6 more allegations relating to sexual assault with respect
to the same person – all the complainants are male and at the time were 13-15 years of age, no genital
contact was involved – the one count is weak standing alone because the complainant has credibility issues
– but if the similar fact evidence is admitted ie. the 6 other allegations – the accused will likely be convicted
58
– Morton thinks the similarities are not strong enough – similar means basically the same thing over and
over again – a preference for teenage boys is not similar enough
the question often is, is the possibility of coincidence excluded? if it is possible the similar act is mere
coincidence then it is not good enough for similar fact evidence – we have to look at a fact scenario and see
what is similar – peculiar acts might very well be considered similar enough – we also have to look at
whether the charge in question was released by the press as this might give people an opportunity to
collaborate
when SFE is admitted in a criminal proceeding it is devastating and almost impossible to get an acquittal
this is because the forbidden chain of reasoning leaks through
so as defence counsel you might want to think about how to make a defence where the SFE is irrelevant
note this is easier to do in a civil case
in a criminal matter to make such a defence, you would have to make express stipulations to admit certain
things ie. you want to admit everything but say it was by reason of insanity (which Morton says is not
necessarily a great thing to do but this is just an example) – in Canada you cannot make a stipulation in a
criminal proceeding without the consent of the Crown, ie. you can’t take the issue in dispute away from the
trier of fact without consent of the Crown – so you can’t say “I robbed the bank but I have a defence
because…” without the consent of the Crown
even if acts are similar, SFE only goes in if it is relevant this takes us to Thayer’s principle
SFE applies in both criminal and civil proceedings
Similar Fact Evidence in Civil Cases
here the element of prejudice is less important
a civil case is limited to the facts in issue not history
it is easier to adduce SFE in a civil case because broadly speaking, the risk of unfair prejudice is lower
SFE ought to be admitted unless to do so would be unfair or oppressive
but we still have the “coincidence” test (as above)
evidence of similar facts both prior to and subsequent to the acts forming the basis of the dispute can be
admitted – such facts can prove motivation or intention
Example:
The plaintiff claims damages of $10,000 for fraud saying he paid $350 for a driveway resealing but what
happened was a phony oil spray – the defendant says
a. it wasn’t him
b. it was him but the damages are excessive
c. maybe it was him but he did a good job
three people from last summer come forward with stories of phony oil sprays – are these prior acts similar
enough to be admissible as SFE Morton says yes but prior acts of bad house painting would not be
similar enough
then we go to the second question, if these acts are similar enough, are they admissible (because they are
relevant), this is Thayer’s principle
under (a) it is relevant b/c the prior acts tell us who performed the current act and the defendant is denying
it was him
under (c) it is relevant, b/c there is a question of who and the quality of the job
59
but under (b) it is NOT relevant b/c the defendant had admitted it was him so SFE is not proving who did it;
the defendant is not denying what was done so SFE is not proving what was done so the prejudicial
effect outweighs the probative value
CREDIBILITY
Collateral Facts Rule
the rule is no extrinsic evidence may be called to contradict a witness on matters solely raised to
challenge the witness’s credibility
this goes back to Thayer’s principle
the collateral fact rule prohibits evidence the sole purpose of which is to contradict a witness’s testimony
regarding a collateral fact
a collateral fact is a fact that is neither material nor relevant
so if a question is put to a witness regarding a fact that does not impact on an issue in the lawsuit, the
answer to that question regardless of what the answer is cannot be challenged by extrinsic evidence
so if you ask a witness the question “isn’t true you failed your CA exams” and the answer to this does not
impact an issue in the lawsuit, and the witness says, “this is not true, I passed my exams”, then you are
stuck with this answer and cannot call evidence to show the contrary
if the case had something to do with passing CA exams then you CAN adduce evidence to show that they
lied
the purpose of the collateral facts rule is to limit evidence called to that which is truly of assistance to the
court
note extrinsic evidence is not limited only to physical things – for example if a witness lies you cannot then
ask the next witness if you think the previous witness was lying
you can also not ask about collateral facts with no basis for asking them, for example, you can’t ask if the
witness is a drug user with no basis for asking that question, you are only asking on the off chance they
might be one
Why did the rule come back into prominence in the 1970s? b/c of sexual assault cases
before the Criminal Code said you could not cross examine a complainant on their sexual past, defence
counsel would ask about the complainant’s sexual history to show they either consented to the act or are
not worthy of belief b/c they were sexually active
the court wanted to stop such questioning and to stop private investigators being called to show the
complainant’s sexual history and this rule was used to do this
Example:
Defence counsel would ask the complainant, “isn’t true you have slept with more than 10 men” – if the
witness says not true, the defence counsel would then call in their private investigator to give evidence b/c
this fact is collateral ie. how many persons a complainant has slept with has nothing to do with sexual
assault so this rule prevented this and this makes sense because
so if you want to ask a question to show someone is lying, make sure you can call evidence to show later
on that the person was in fact lying (ie. make sure it relates to a collateral fact)
Cross-Examining on a Prior Statement
there ways a prior statement of a witness can be used
60
#1. a prior inconsistent statement by a party may be admissible as proof of its contents (we have discussed
this previously)
if there is a prior statement by a witness (KGB) in writing and sworn to and then the witness claims to later
not remember anything from the statement this is an out of court statement that cannot be adduced because
is hearsay unless it is necessary (ie. witness cannot remember) and reliable (it is a sworn statement)
recently the US Supreme Court made a ruling saying such witness statements cannot be used unless
there is an opportunity to cross examine the witness and since KGB statements are based on US case law,
this might be important for Canada
so this general rule of putting in the KGB statement may mean that the person has to be subject to cross
examination – this could be very important in domestic assault cases in Canada (ie. the complainant would
be subject to cross-examination)
Morton is not sure the law re KGB in Canada may change but it might – so someone any day now might
argue that a KGB cannot be admitted because of this overruling in the US
#2: a prior inconsistent statement can be used to cross-examine a witness – in such cases the prior
statement is not admitted to prove its truth but only to show the witness’s testimony is unreliable
let’s say you have a prior statement and the person gets in the witness stand and says something different
from the prior statement and let’s say this is not your witness – let’s also say you don’t want either statement
to be taken as true – so, you cross examine the witness using the prior statement to show neither statement
is worthy of belief – you want to show that since their testimony is inconsistent on a couple of points, they
are generally not credible
as per the Evidence Act, if you are going to contradict someone on an inconsistent prior statement you
have to clarify the statement made presently; clarify the statement made previously; show them the
previously statement and give them an opportunity to explain
note in doing this you will want to make sure in fact that their statement is inconsistent
What about prior consistent statements?
you CANNOT adduce prior consistent statements to show the truth of the statement except where the
other side makes an allegation of recent fabrication – for example the accused is charged with a crime and
says I was in Guelph at the time of the murder and maintains this story – then the Crown says “didn’t you
just make this up now” and then you can show by using the prior consistent statement that this has always
been the accused’s story
What happens if you call the witness yourself and they vary from their prior statement?
the first thing you have to decide is why they are doing this
have the simply forgotten, if so you may try to lead them but the other side may say they have already
answered the question
as an advocacy point when this happens you might ask for a break or just move onto to another area and
then come back to it
but if your witness has simply changed their mind and changed their story can you cross examine your
own witness the answer is generally no unless they are adverse or hostile
a hostile witness is someone who evinces by their conduct or answers an unwillingness to testify
in the Rules of Civil Procedure, there is an explicit provision that someone who is an agent or employee of
the other side is deemed to be adverse but this does not apply in Criminal
if you simply get an answer you do not like this does not necessarily mean the your witness is hostile
but if they are hostile, you have to ask the judge to declare your witness hostile (they also have to be
subpoenaed) and once you get this declaration you can cross examine your witness
with a hostile witness you cannot simply adduce their statement because it would not meet the necessity
and reliability test, therefore you have to cross examine them
61
when you cross examine on a statement you have to get the witness to acknowledge that the prior
statement was true, ie. by saying “I assume you were trying to tell the truth at the time you made this prior
statement” – when the witness says it was true the statement becomes evidence at trial – if this does not
happen and person says “I just made that statement” then the statement is useless
so before you call a witness not friendly to you, make sure you really need to call that witness
Recap on How to Use Prior Inconsistent Statements
there are three things you can do with a prior inconsistent statement – remember you cannot do anything
with a prior consistent statement except rebut a recent allegation of fabrication
note inconsistent means concrete and different, it must be significant
1. you can try to get the witness to adopt the prior statement and in doing this, the prior statement
becomes evidence and part of the witness’ testimony today – so you want the witness to adopt it
so you can rely upon it in your case – here the prior inconsistent statement is helpful to your case
and you want the judge to believe the witness’ first story
2. to show the witness is someone not worthy of belief – in this case we are not trying to establish the
truth of a prior statement – if you can get the witness to accept or prove to the court that their story
has changed then you can show that nothing they have said is the truth – here the prior
inconsistent would not be helpful to your case and the current testimony is also unhelpful, and you
do not want the judge to believe anything the witness says
3. try to get statement admitted regardless of what witness says
Example: spousal abuse case – wife calls police saying she was beat up – police takes a statement –
then wife comes to court and says I fell down the stairs or don’t remember - what can the Crown do
with this prior statement which is now inconsistent – the Crown does not want to demolish her
testimony completely b/c then the Crown has no evidence – if the witness says that what she says in
her statement was true, then the statement is adopted and there is some evidence of assault – but if
the witness says she does not remember, the Crown would lose and this is why we have KGB, the
Crown instead says we have a prior inconsistent statement and the witness does not remember so this
meets the necessity and reliability test to adduce it into evidence even though hearsay – it is necessary
b/c witness does not remember and it is reliable b/c the statement was made shortly after the event
took place – in this case the statement goes to the court as independent evidence and a court can
convict on a KGB statement
if the witness gives conflicting testimony by saying I fell down the stairs instead of saying I don’t
remember, it will be harder to get this statement in b/c it is harder to meet the test of necessity
note, there might be a tactical advantage as defence counsel to have the wife give conflicting
testimony b/c it is harder to get the prior inconsistent statement in as evidence query, does this
encourage perjury?!
Prior Criminal Convictions
prior criminal convictions of any witness are relevant insofar as they impact on credibility
note, that the collateral facts rule which is no extrinsic evidence may be called to contradict a witness on
matters solely raised to challenge the witness’s credibility would normally apply to criminal convictions BUT
62
the Evidence Acts say you are allowed to ask about criminal convictions even if the person lies or does not
remember – so criminal convictions is an exception to the collateral fact rule
if the question does not go to credibility then it is not collateral but a question going to the issue in the case
normally criminal convictions are a collateral fact
the Evidence Acts allow you to put to any witness, their criminal convictions history (criminal charges and
Young Offenders are not included)
so if you ask a question of a witness about his criminal convictions and he lies, you are allowed to call
evidence to prove the convictions but you are only allowed to prove the offence itself, ie. the nature of the
offence (cannot prove the details of the offence), the location of the offence and the date of the offence – so
you are only allowed to prove nature, location, date
you are not allowed to prove details ie. show a photo in court of an assault or say “isn’t it true that you were
convicted of a brutal assault of this elderly woman” (might be an exam question)
the only time you can go into details is if you are the Crown and you ask a witness a question about their
prior criminal convictions, and in answering the witness himself explains the nature of the offence, then the
Crown can go into details – for example, say you say to the witness, “isn’t true you were convicted of assault
five years ago and the witness says yes but it was a barroom brawl” – so by explaining the nature of the
offence, the witness opens the door to the Crown asking about details
remember that any witness can have their criminal convictions put to them
What about putting criminal convictions to your own client, the Accused?
criminal convictions (CCs) can be put to the accused if they testify, otherwise past CCs do not go to the
trier of fact
Example: the accused has a long criminal record and he is charged with bank robbery – the criminal record
has no prior bank robberies so there is no similar fact evidence – if the accused does not testify, his CC
does not go to the court but if the accused does get in the witness stand and give evidence, the Crown will
go through the whole history of the accused’s CCs (with except of Corbett application, see below)
note that asking an accused about his CCs is not bad character evidence Why – b/c in theory when you
are calling evidence of prior criminal convictions you are calling it to show the accused has a criminal past
and that they are unworthy of belief, you are not calling it to show these prior convictions show the person is
guilty
R. v. Corbett
this case has been taken to say that if you have a criminal accused and the Crown is going to examine him
on prior CCs, b/c of the danger of prejudicial effect (ie. the forbidden chain of reasoning with bad character
evidence) you are not allowed to ask the accused about the same convictions he has been charged with
previously
so if the accused is charged with bank robbery, you cannot put to him his prior bank robbery convictions
but what about similar fact evidence these two principles actually don’t work well together but as a
mechanical matter we must segregate them and we can segregate by thinking about the following things:
SFE does not depend on prior convictions – it is used to show because an accused did something 3 times
before it is likely they did it this time
with SFE it does not matter whether the accused testifies and you can prove all the details of prior
convictions/acts
unless there is striking similarity, SFE cannot be adduced
63
with prior CCs, if the accused was convicted in the past of doing things that were strikingly similar to the
charge at trial then these prior acts can be proved as SFE regardless of this rule on prior CCs and the
Evidence Act
if the prior CCs are not strikingly similar, ie the charge is a sexual assault with a broom and prior
convictions are sexual assaults but of various kinds, the Corbett decision says the Crown cannot put these
prior CCs to the accused and examine him on them, they are not similar enough for SFE and the chances
that they will be misused are high ie. the prejudicial effect will outweigh the probative value (the probative
value here being credibility) – the prejudicial concern is that the trier of fact would engage in the forbidden
chain of reasoning
so if you have an accused with a prior record you analyze whether there is any SFE (which is actually rare)
if not then criminal record will not go before the court unless the accused testifies and where this occurs the
accused can bring a Corbett application to keep some of the (similar type of) convictions out
it has been argued by the Crown, that by editing the criminal record you are giving a misleading impression
of accused – Morton thinks it is better to say the criminal record should only go in it if its relevant with
respect to credibility
Example: note in the jury trial with OJ Simpson that OJ never testified – a jury does not know about this rule
regarding prior criminal convictions so if the accused does not testify, the jury might think that if he had a
good story to tell he would tell it, and this is the extent of what they think – but the judge knows about this
rule so if the accused does not testify, the judge might think this guy has a record and a bad one at that
so if you have an accused with a record that is not that devastating, you may want to put your client on the
stand b/c you want to the judge to know he has a record and it is not that bad
remember judges unlike juries are NOT shocked by criminal behaviour – for example just because
someone is convicted of soliciting prostitution does not mean they are not a credible witness
Recap
the accused’s criminal past is only relevant for credibility and nothing else – but of course as a practical
matter, once the record is before the court, the past conduct and character will colour the case and make a
conviction more likely
the purpose of cross-examining an accused on prior convictions is to weaken credibility
SUPPORTING CREDIBIILITY
as noted above, a prior consistent statement of a witness is generally inadmissible – it proves nothing
except that a witness has not changed their story
but there is an exception, a prior consistent statement can be adduced to rebut an allegation of recent
fabrication
if a witness’s account of some incident or set of facts is challenged directly or implicitly as being of recent
invention, the party calling the witness is allowed to rebut that challenge by showing that at some earlier
time the witness made a statement to the same effect
the earlier statement must have been made contemporaneously with the event or at a time sufficiently
early to b
CORROBORATION
corroboration is needed for a case of high treason or treason to reach a conviction
it is also required when you are going to convict someone on the sole evidence of a child
with a child, we are not talking about a child who can swear an oath or affirmation but a child who is unable
to do so, so unsworn testimony
64
strictly speaking, corroboration is evidence, in the criminal context, that tends to show a crime has been
committed and tends to link the accused with the crime
for example, a sexual assault on a child too young to testify ie. the Khan case – in the Khan case the little
girl could not testify b/c she could not tell the different between truth and lies but let’s pretend she could – so
we have her testimony and she cannot swear an oath or affirmation so we need corroboration – then we
have semen that was found on her clothing – the semen tends to show a crime has been committed and
since the semen was that of Dr. Khan’s, it tends to link Dr. Khan with the crime – if we instead found torn
underwear with Dr. Khan’s blood on it this would also likely be good enough for corroboration
the importance of corroboration statutorily speaking, is that absence corroboration a conviction may not
follow – so you cannot be convicted of high treason without corroboration
in the Khan case, the corroborating evidence was one piece but it could be two
for example if it were the 1920s and we were not able to tell whose semen it was, just that there was
semen, the semen would tend to show a crime was committed but then we would need another piece of
evidence to link the accused with the offence
corroboration is very rarely used, it is used only with unsworn testimony or where a statute requires it, like
with treason
corroboration used to be required with sexual assault and co-conspiracy
today with sexual assault, we do not need corroboration and an accused can be convicted on testimony of
the complainant uncorroborated
What is the Vetrovec rule?
this is sometimes called corroboration by judges but it is not, it is what replaced corroboration C in a lot of
cases
previously, some cases did require C for conviction ie. co-conspiracy – let’s say two people rob a bank, X
and Y – X is on the stand saying Y did it but there is no corroboration so Y cannot be convicted
but theVetrovec rule said we do not need C for anything unless the statute requires it (or with unsworn
testimony of a child) – so C is no longer required at common law
but in a case where the conviction of the accused rests on the testimony of an unsavoury witness, it is
prudent for the judge to direct himself and the jury to take special care in considering this evidence this is
called a Vetrovec warning and frequently comes up in the cases with co-conspirators
let’s say X and Y rob a bank – X makes a deal with the Crown to testify as to who committed the crime in
exchange for a lighter sentence – b/c Y is a friend of X or b/c X is afraid of Y, X will be reluctant to say Y
committed the crime so will pick another person out of the blue – in such a case a judge does not need to
find C but needs to look at whether there is something else that supports X’s story and if there is nothing
then the evidence ought not to be accepted
Vetrovec has been expanded b/c of the language of the court “unsavoury witness” – an unsavoury witness
is someone about whom there is something that is not quite right (not in a mental way) but maybe they have
a reason to lie or have a lengthy criminal history
so where a witness is questionable, it is appropriate for the judge to give a warning to himself and the jury
ie. a Vetrovec warning that there is a need to look for other supporting evidence
Vetrovec is the ghost of C
note if there is one unsavoury witness and there are 20 “savoury” witnesses there is no need for the judge
to give a Vetrovec warning
to get a Vetrovec warning you have to ask for one – so you have to ask the judge to consider giving the
warning (this is usually done after all the evidence heard) – if the judge does not grant the Vetrovec warning,
this could be grounds for appeal
65
Question to Morton
I just want to confirm that a piece of evidence alone, ie. clothes with semen on it, even though it
meets the corroboration test, is not enought to convict, ie. we still need the unsworn testimony of
a child along with it. I guess what I am trying to say is we need (1) unsworn testimony of a child
and (2) corroborating evidence, to convict.
tHE EVIDENCE ALONE MIGHT BE ENOUGH BUT YOU WOULD STILL; NEED SOMEONE TO
IDENTIFY AND PROVE IT. SO... YOUARE CORRECT, JAMES ON PDA
POLYGRAPHS, LIE DETECTORS AND TRUTH SERUMS
the results of any of these tests are inadmissible in court – so if you try to put them in this will most
definitely warrant an appeal
but police use these tests all of the time – the results are not admissible but the discussion taking place
while the polygraph is running might be admissible particularly if the lawyer consents to it
so the transcript of a lie detector interview is admissible on the same basis as any other question and
answer session – an accused asked to take a lie detector test, cannot do so without risk, as subject to the
confession rule, any statements made during the test can be used against the accused as an admission
so the moral is don’t take the test the police can’t use your refusal to take the test as evidence
what if your client wants to take the test and the police refuse – can you put the fact that you wanted to
take the test into evidence the answer is YES provided the individual who wanted to take the test was
not very sophisticated (ie. not a mastermind of law) – this evidence can be called to show lack of guilty
knowledge – there was a recent case identifying that this could be done
BEST EVIDENCE RULE
historically this was the only rule of evidence
no one refers to it much anymore
it is dying a slow death
historically, this rule said that you can only adduce in court the best evidence available so by our standards
if relevant and probative maybe still excluded b/c not the best evidence– this rule subsumes in it
intellectually a great number of the other evidence rules
for example, in the hearsay context, you cannot adduce hearsay evidence because it is not the best
evidence ie. it is better to get the actual person to testify but if person is dead the best evidence is hearsay
(ie. would meet necessity and reliability test)
the rule now is limited to this: if you want to prove the written contents of a document the way to do it is to
produce the actual document unless it is unavailable for good reason
so this is still the law today but is largely ignored b/c of the exceptions to it which have increased largely
Exceptions to the Rule
#1
a duplicate is admissible (like the original is) – so a photocopy is admissible unless the person seeking to
keep it out establishes one of the two following things
(1) there is a genuine question raised as to the authenticity of the document – a good reason to
believe a copy is not the same as the original is if it is really a two sided document and only one
side has been copied or the photocopied version has been cut off or it is a phony document
(2) or it would be unfair to adduce it – this is the basket clause
66
if the person seeking to keep it out the duplicate is successful in establishing (1), this means the original
has to be produced assuming it still exists
this does not come up very often as no one really pays attention to the fact documents are copies and not
originals
#2
a carbon copy or a photocopy produced at the time of the original was produced is also considered an
original – but a photocopy produced afterwards is not considered an original
Example: Morton writes a letter to X and signs it – he makes a photocopy for the file and he faxes it to X in
Calgary – both the faxed copy received by X and the copy in the file are considered originals
then, three weeks later X asks for the letter to be faxed again as he misplaced it so Morton faxes it again –
this fax received by X is NOT considered an original b/c it was three weeks later
the concern is, if you are making a copy after the transaction is complete, it is more likely you fiddled with it
note the Best Evidence rule generally does not fit well when there are multiple copies of an original
also note that an electronic document can be an original (and not what is printed from it) but Morton is not
sure on how you would look at or produce such an original
What if you want to prove the document but it has been lost or destroyed in a fire?
if the original has been lost or destroyed, evidence from a copy may be admitted – in such a case, the copy
must be verified as a true copy that contains the same terms as the original
testimony (parole evidence) of a lost or destroyed document is also admissible
note if the original was destroyed it is necessary that it was not destroyed in bad faith – bad faith =
destroying the document for the purposes of hiding it BUT it is irrelevant if you were careless or negligent in
destroying the document
What if the original exists but you can’t get a copy of it because it is in the hands of a party outside
the process of the court or who cannot be compelled to produce the original?
in a situation like this you can rely upon a copy
BUT, if there is a judicial process to get the original you cannot rely upon a copy even if obtaining the
original is expensive and inconvenient – if you can summons or subpoena someone to produce it, you must
do it
Other situations when you can rely upon a copy:
the original is not required and other evidence of the contents of a writing is admissible if:
- originals lost or destroyed – all originals are lost or have been destroyed unless the proponent
lost or destroyed them in bad faith (this is just a recap of above)
- original not obtainable – no original can be obtained by any available judicial process or
procedure (this is recap of above)
- original is in the possession of the opponent – this does not come up too often with the civil
discovery process
- collateral matters – the writing is not closely related to a controlling issue – so if you are
dealing with a purely collateral matter ie. if you make a collateral comment not critical to the
case you don’t have to put in the actual document to prove your collateral comment
67
Limitations of the Rule
the best evidence rule deals with the contents of documents, not the existence or identification of
documents
where the existence as opposed to the context of a document is relevant, proof of that existence is not
subject to the best evidence rule
the best evidence rule applies to the contents of documents
Example: homicide case – accused says it was suicide and says 3 days before death the victim made a will
– here the making of the will might be relevant but the contents of the will are irrelevant – so the best
evidence rule would not apply here b/c you simply want to prove the will was made
Another example is where you want to prove someone was somewhere at a certain time – so you might
want to say I received a postcard from X from Italy – here you don’t have to prove the contents of the
postcard simply that it was sent and it exists – but if you are trying to prove the contents then you have to
produce the postcard
as an advocacy point even if you are not seeking to prove the contents you might want to still produce
the postcard but as a legal matter you don’t have to
A NOTE ON FAMILY LAW
NOT EXAMINABLE
criminal law, civil, administrative law all have the same evidence rules
but family law seems to have developed a different path in the law of evidence
with family law, the rules of evidence are to be considered on a cost benefit analysis and the rules are to
be ignored when the parties cannot afford to get evidence before the court except in breach of the rules of
evidence
so the rules are to be ignored if the cost of complying with the rules are so high as to make it impractical for
parties to put their case to the court, without breaching the rules
so it is better to ignore rules to do substantive justice, on a cost benefit analysis
for example, if an individual does not have money to hire an expert on an issue, they can go to the public
library, make copies of relevant studies and hand them in
another example, is the unsworn testimony of children – these statements have been allowed in family law
even though they are clearly hearsay on the basis that it might injure the child to testify and on the basis of a
cost benefit analysis
so with family law in addition to the three step approach re Evidence (Thayers, Exceptions,
Prejudicial/Probative Value) – it appears there is another step that is not part of the three step column but
floating out there to the right
the courts in family law ask “as a matter of fairness, should the court hear this evidence anyway” – what
goes into this thought process are considerations of financial consequences, fact the parties are
unrepresented, impact on children this is known as the “Winnipeg Principle” – so you may need to get
around the rules of evidence if you need to
RECAP ON COURSE
laws of evidence are based upon an adversarial context which we have in criminal, civil, administrative
maybe people are trying to move family law away from this adversarial context
68
EXAM REVIEW
note re exam it is not in format of last year’s but years before
don’t need to know Chapter on Forensic Evidence b/c it is a repeat of opinion expert evidence rule
69