EVIDENCE by lonyoo

VIEWS: 173 PAGES: 44

									Introduction

R. v. Corbett 1988 SCC

Facts: Corbett charged with murder in respect of one of his associates in the
drug trade. The deceased owed Corbett lots of money. He was in the cocaine
trade with him. He was on parole for a life sentence imposed in 1971. He and
Allen (girlfriend) argued in hotel room then he went to the deceased’s house and
shot him.
The accused attack the credibility of the Crown witnesses who identified him. He
elected to testify and the defense sought to prevent the Crown cross-examination
of him on past offences. They argued that if the jury found that he had already
been convicted of murder it would be so prejudicial as to infringe on his Charter
right to a free trial. The evidence came out in evidence in chief to limit the
damage and the judge told the jury not to use it for anything other than
credibility.
The Court of Appeal found that the trial judge erred in admitting the evidence.
Issues: Was the accused deprived of a right to a fair trial?
Holding: Appeal dismissed (LaForest dissenting).

Ratio: Per Dickson and Lamer: Legislature has decided that prior convictions
do bear on the credibility of the witness. There is a worry that the trier of fact will
not be able to use this information for the purpose of assessing credibility only.
Juries have to make these distinctions all the time. The problem in this case is
that the Crown witnesses all had criminal records if Corbett’s past convictions
had not gone in the jury would not have had a balanced picture. Best way to go is
to give the jury all the information with a good directions and trust them. There
may be very unusual circumstances where a mechanical application of s. 12
would undermine the right to a fair trail. There should be an inclusionary principle
and one should err on the side of inclusion. There is a discretion to exclude but it
should not have been used in this case. There is a rule but there is a narrow
place for exceptions.
Beetz agreed but added that it there was no discretion then it would not conform
with the Charter.
McIntyre and Le Dain: The trial judge has no discretion to exclude evidence
under s.12. There is a clear law in the Evidence Act. The doctrine of
parliamentary supremacy leaves no room for such a discretion. Otherwise
parliament cannot alter the common law.
LaForest (dissenting): Independent of a Charter breach the trial judge has the
discretion to exclude evidence. Should not divorce legal reasoning and common
sense. You must interpret statutory principles in the light of guiding principles. It
should have been exercised in this case. There is always a discretion to omit
evidence.



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Smith v. Jones SCC 1999

Facts: Aggravated sexual assault on a prostitute. He was referred to a
psychiatrist to help with his defense. During the interview he told the psychiatrist
in detail his plan to kidnap, rape and kill prostitutes. The psychiatrist formed the
opinion that the accused was dangerous and would more than likely re-offend.
He was concerned that his views would not surface at sentencing in the trial. He
wanted to let the police and the Crown know in the interests of public safety. The
trial judge allowed this. The Court of Appeal allowed the appeal but only to a
certain extent??
Issues: Should the information be in?
Holding: Appeal dismissed. (Lamer, Major and Binnie dissenting).The file will be
unsealied and the ban on publication of its contents removed except for those
parts which do not fall within the public safety exception.

Ratio: L'Heuruex-Dubé, Gonthier. Cory. McLachlin, Iacobucci, Basterache.The
client- solicitor privilege is not absolute. In setting it aside you must look at
1) Is there a clear risk to an identifiable person or group of persons?
2) Is there a risk of serious bodily harm of death?
3) Is the danger imminent?

There is a case here of public safety.

Dissent say that the breach should be as narrow as possible so as not to
discourage dangerous people from seeking help.




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Burden of Proof

Woolmington v. D.P.P. 1935

Facts: A man 21 1/2 was charged with the murder of his 17 1/2 year old wife.
They had been separated for a while and she was living with her aunt.
Woolmington went around to the house where she was staying to convince her to
come back to him. The aunt heard talking and a gun shot then saw Woolmington
leaving. Woolmington contends that it was an accident. He had wanted to scare
his wife into returning to him by threatening to commit suicide and had shot her
by accident.
Issues: The judge in his instructions to the jury tells them that if the Crown prove
that someone killed a person it will be presumed that it was murder unless that
person can prove otherwise; " for the law presumeth the fact to have been
founded in malice, until the contrary appeareth" Sir Michael Foster. This seems
to suggest that the burden is on the defendant to prove his innocence. Is this a
correct statement of the law?
Holding: Held. The conviction should be quashed.

Ratio: There are very few authorities that would support such a position.
M'Naghten and Rex v. Oliver Smith are rare exceptions dealing with the defense
of insanity which the defendant must prove. We must bare several factors in
mind when considering very old cases as many things have since changed. In
fact the statements of Foster and others means that if it is proved that the
conscious act of the prisoner killed a man and nothing else appears in the case,
there is evidence upon which a jury may, not must, convict a man. If at any point
the judge could say to the jury that the defendant had not proved his innocence
and therefore they must find him guilty the judge and not the jury would have
decided the case.
       "…he is entitled to the benefit of doubt. But while the prosecution must
prove the guilt of the prisoner, there is no such burden laid on the prisoner to
prove his innocence and it is sufficient for him to raise a doubt as to his guilt; he
is not bound to satisfy the jury of his innocence". The case must be proved
beyond a reasonable doubt.

This presumption violates the presumption of innocence in two ways:

1) If the act causing the death of the victim is proved then this gives rise to the
   presumption of intent. This releaves the Crown of the burden of proving that
   the accused had the required mens rea for the crime. Thus the jury could
   convict a man while they still had a reasonable doubt as to an essential
   element in the crime (mens rea).
2) There is also the problem that this creates a revers onus. The accused then
   assumes the burden, if he wants to offer a defense, of proving that he did not
   have the intent to kill.


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R. v. Downey

Facts: Charged with living off the avails of prostitution. The accused worked for
an escort agency. He made up the receipts and did the banking and was aware
of the activities. He claims that s. 195 (1) (j) of the Criminal Code violates s. 11(d)
of the Charter. “evidence that a person lives with or is habitually in the company
of prostitutes…is, in the absence of evidence to the contrary, proof that the
person lives on the avails of prostitution”. This provision is a mandatory
presumption (the accused has an evidential burden, not a legal one, to raise
reasonable doubt that not living off avails).
Issues: Does the provision infringe the presumption of innocence?
Holding: Appeal dismissed (LaForest, McLachlin and Iacobbucci dissenting).

Ratio: The provision does infringe the Charter s. 11 (d) as the presumption is not
necessarily connected to the truth. A person can live with a prostitute without
living off the avails of prostitution. However, it is justified under s. 1.
It is a pressing concern to curtail pimps. The law is proportional- it is well
designed to meet its objective- it is difficult to prove in any other say as
prostitutes are often too scared to give evidence. It is only a minimal impairment.

ME: Remember that this is not a legal burden to provide proof that not living off the avails of
prostitution. However there is a tactical burden as without giving an answer in defense it is
dangerous to rely on weak prosecution case. This seems unfair as in practical terms a tactical
burden may be as onerous as a legal burden but it is not unconstitutional as the Charter only
applies to the law. However the Charter considers not only the face of the law but also the
practical consequences.

1. Eldridge v. British Columbia
The law can discriminate in its application. There was no express discrimination. Once a benefit
is given it must be given equally to all- equal benefit of the law.
Rule to accommodate the people who adversly affect the norm that is otherwise neutral.

Dissent LaForest: There is an infringement of s. 11(d) and it is not justified under
the Charter. Not necessary to cast net so wide- the provision covers people who
are not living off the avails of prostitution but who do live with prostitutes.

McLachlin & Iacobbucci: There is an infringement and not justified under s.1. It is
important but does not meet proportionality test.


R. v. Audet SCC 1996

Facts: Teacher accused of touching a person for sexual purpose while in a
position of trust and authority towards her. Met girl in nightclub during the
summer holidays. They went back to a cottage and the accused went to lie down.
The girl joined him in the same bed. During the night they engaged in oral sex.
He admitted that he has instigated the touching. He was to teach at the school
again. He was acquitted as it was found that he was not in a position of authority.


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The Court of Appeal agreed with this decision. This is an evidentary burden, a
mandatory presumption.
Issues: Is there a violation of 11 (d)?
Holding: Appeal allowed.

Ratio: The Crown does not have to prove that the accused abused or exploited
his position but merely that he was in a position of authority. Teachers will often
be in a position of authority. There is no violation of s. 11 (d) in this instance. It is
not a crime of strict liability as you must still prove the mens rea with respect to
each aspect.

NB: May be on dodgey ground what is position if he is a teacher but the girl is not in the
same school but in the same town?
Also, worry that court has created presumption and not parliament.

Dissent Major and Sopinka: Not all teachers will be in a position of trust and
authority it will depend on the facts of each case. The teacher would then have to
disprove that a relationship of trust and authority existed which is a burden of
proof that he should not have to bear.


R. v. Laba SCC 1994

Facts: Prosecution under s. 394 (1) (b) offence to sell or purchase any rock or
mineral or substance containing precious metals “unless he establishes that he is
the owner or agent of the owner or is acting under lawful authority”. The trial
judge said that there was a violation of 11(d) and it was not saved under s.1. The
Court of Appeal said that there was a violation but it was saved under s.1. This is
a legal burden a reverse onus case.
Issues: Is there a violation of the presumption of Innocence? Jurisdictional
problem.
Holding: Allowed in part.

Ratio Sopinka: The reverse onus in s. 394 does violate s. 11(d). The person must
prove that he was the owner or agent or acting with legal authority. It allows
people to be convicted despite the presence of a reasonable doubt as to whether
they were engaged in a legitimate transaction. [After Crown’s case there is a
reasonable doubt that he did not do it but he cannot prove that he did not].
Concern is pressing and substantial? Yes
There is a rational connection. But it does not infringe the presumption of
innocence as little as possible so it cannot be saved by s.1. Parliament could
have imposed an evidentiary burden and not a full legal burden. An evidentiary
burden would still violate s. 11(d) but would be saved by s. 1.

NB- Worry that court did not really know anything about precious stones.




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R. v. Stone SCC 1998

Facts: Accused of murder and convicted of manslaughter of wife whom he had
stabbed 47 times. Had argument and wife berrated him. They were driving home
and he stopped car and felt whooshing feeling. He “came to” and found his wife
was dead. He disposed of the body and left the jurisdiction. The defense
psychiatrist said that he was in automatistic state and the Crown psychiatrist said
that it was unlikely but possible. Both said that he was not insane. The trial judge
decided that he only defense possible was insane automatism and only put to the
jury to think about not guilty by reason of insanity or provocation. The Court of
Appeal dismissed the appeal.
Issues: Does the reverse onus violate s. 11 (d)?
Holding: Yes violate but saved by s.1.

Ratio: The trial judge must first find if the accused has satisfied the evidentiary
burden of proving that he was in an automatistic state and then decide whether
to put it to the jury that it was insane or non-insane.
        There is a presumption of voluntariness so the accused must rebut this
presumption on the balance of probabilities. This reverse onus is a violation of s.
11(d) but is saved by s.1.
    Automatism will almost always be a disease of the mind as this is a legal and
not a medical question. The trial judge should start from the basis that there was
a disease of the mind. With regard to the trigger if it is to be non-insane
automatism it must be a trigger that normal people would find very shocking. This
is an objective standard but it only affects the classification of the state once
automatism has already been established so not violation of s. 7 or 11(d) [but it
has grave consequences]. Continuing danger theory- will the trigger reoccur? If
the judge does put non-insane automatism to the jury he must warn them of
problems such as feigning.

1) High evidential burden to get autom before a jury in the first place.
2) Legal burden must prove on balance of probabilities that not voluntary.
3) Also legal burden to prove on balance of probabilities that non-insane

Binnie, Lamer, Iacobbuci, Major dissenting: Should not have withdrawn issue of
non-insane auto from jury. The accused had met the evidential burden so was
entitled to defense. Parliament made a choice to reverse the onus in the case of
insanity s. 16 and it did not chose to do the same for automatism- the court
should not make this up. A jury may convict a person that had failed to prove on
the balance of probabilities that it was automatism even though they still had a
reasonable doubt as to his guilt.




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R. v. Lifchus SCC 1997

Facts: Charged with fraud. The trial judge told the jury that the words “beyond a
reasonable doubt” should be used in their every day sense. Court of Appeal
allowed appeal and ordered new trial.
Issues: What does “beyond a reasonable doubt” mean and should the trial judge
define if for the jury.
Holding: Appeal dismissed.

Ratio: The jury should have an explanation of reasonable doubt. It has a specific
meaning in a legal context. Not imaginary or frivolous or based on sympathy or
prejudice. Based on reason and common sense and must be logically derived
from the evidence or absence of evidence. Not absolute certainty but not
probably either. Should not quality doubt with other adjective or say that it is a
moral certainty.

A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon
sympathy or prejudice. Rather, it is based on reason and common sense. It is logically
derived form the evidence or absence of evidence.
Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In
those circumstances you must give the benefit of the doubt to the accused and acquit
because the Crown has failed to satisfy you of the guilt of the accused beyond a
reasonable doubt.
On the other hand you must remember that it is virtually impossible to prove anything to
an absolute certainty and the Crown is not required to do so. Such a standard of prood is
impossibly high.
In short if, based upon the evidence…you are sure that the accused committed the
offence you should convict since this demonstrate that you are satisfied of his guilt
beyond a reasonable doubt.

R. V. W.D.S. 1994 SCC

Facts: Charge of sexual assault on young girl several years after event. The trial
judge instructed the jury on the meaning of reasonable doubt. The jury
deliberated for four hours then asked for clearer instructions on reasonable
doubt. In the response the judge suggested that the jury had to chose between
two competing conclusions- the girl’s story or the accused’s story. The Court of
Appeal dismissed the appeal.
Issues: Do you have to choose?
Holding: Appeal allowed.

Ratio: Without believing the accused they may nonetheless have a reasonable
doubt about his guilt. It shifts the burden of proof to the accused by telling the jury
that they may only acquit if they believe the accused.
NB- Do not have to prove all facts beyond a reasonable doubt.
     Do not have to prove all evidence beyond a reasonable doubt
             - Cumulative effect of all evidence beyond a reasonable doubt.
HD dissents.


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Relevance

R v. Cloutier 1979 SCC

Facts: The accused was charged with importation of cannabis. It was in the
bottom of a piece of furniture sent form friends in South America. He asked his
mother to pick it up. The police surveyed the house but grew impatient when no
one came. When they seized the furniture they also seized a metric scale, a
cigarette butt, pipes, literature on cannabis and pot containing green substance.
There was also an Air Waybill.
Issues: An appeal because among other things some evidence was not included
that should maybe have been included.
Holding: Held. The Airway bill can be admitted but not the other things.

Raito: The other items sought to prove mens rea and the interest in importation.


Air Waybill: the weight marked on the bill would prove that the furniture left South
America with the cannabis in it. The judge did not allow it because it was a copy.
The Court of Appeal said that it should have been allowed. It can be admitted if
accompanied by affidavit s. 303 (3). Pigeon in dissent does not think that the Air
Waybill is a copy.
Other things: The judge did allow the things to be admitted but not proof that it
was cannabis in the various things. One fact is not relevant to another if it does
not have and real probative value with respect to the latter. There is no sufficient
connection between one fact and the other. Crown wanted evidence in to go
towards intent but SCC thinks that there is not enough connection between
evidence of use of cannabis and intent to import. The crown cannot use evidence
to counter a possible defense (he did not even know what cannabis is). It must
be used to prove their case. Majority: It is not enough that you prove that the
accused was interested or that it raises a suspicion against the accused. There is
not enough connection between possession and importation.
Dissent: The intention to import is hard to prove so you must admit every bit of
circumstantial evidence even if the connection between it and the guilty intent is
not conclusive.

If not failed on relevance then may have failed on prejudicial effect.

Relevance decided by logic and human experience. For one fact to be relevant to
another, there must be a connection or nexus between the two which makes it
possible to infer the existence of one from the existence of the other.




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R. v. Morris SCC 1983

Facts: Conspiracy to import and traffic heroin from Hong Kong. In his residence
they also found newspaper clippings about the heroin trade in Pakistan. There
was other evidence of certain phone calls with other people involved in the drugs
trade and specifically on person Wa Young who was arrested after passing
through Canadian customs with body pack containing heroin. The trial judge
allowed it to be admitted. The Court of Appeal in a two to one majority thought
that it was admissible although of little weight. Anderson J. in dissent thought that
it was irrelevant and even if it were relevant the prejudicial effect outweighs the
probative value.
Issues: Relevance
Holding: Appeal dismissed

Ratio: The trial judge did not err in allowing the evidence to be admitted. The
difference with Cloutier is that here the evidence could show that the accused
took preparatory steps to importing heroin. Value may be low but should not
confuse admissibility with weight. Evidence to prove alone that the person is the
sort of person who would commit crime is not admissible.

Majority took that view that there should be a low threshold for the admissibility of
evidence. If it is not irrelevant then it should go in and the jury will decide on
weight. Here there was a connection between the evidence and the charge of
importation (unlike in Cloutier where the cannabis paraphenalia was not relevant
to importation). There was also a connection between the evidence in question
and other evidence. This was enough to raise the relevance above the threshold.

The minority thought that the prejudicial effect outweighed the probative value.

Check full text as the case book is confusing.




R. v. Seaboyer; R. v. Gayme

Facts: Seaboyer was charged with sexual assault. The Crown wanted to put
forward evidence of former sexual behaviour causing bruises as relevant to
consent. Gayme was 18 and accused of aggression of a girl of 15 in school. It
was claimed that she was the aggressor and wanted evidence of past sexual
conduct at trial.
Issues: Does rape shield violate s.11 (d) Charter (Assumption of innocence)?-
evidence of complainants past sexual behaviour.
Holding: Appeal dismissed. S. 276 is inconsistent with Charter and not saved
under s.1. s. 277 is not inconsistent with Charter.



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Ratio: Majority found that s. 276 is inconsistent with s. 11 (d) and s. 7 and is not
justified under s. 1.

 They found that s. 277 is not inconsistent with the Charter. Sexual history is
irrelevant to truthfulness and therefore can never be admissible.

H-Dubé and Gonthier are worried about rape myths. They find that s.276 does
infringe charter rights but that it is justified under s.1. Not even sure that it
infringes Charter.

s. 277 excludes evidence of sexual reputation for the purpose of challenging the
credibility of the plaintiff. Evidence of past sexual conduct cannot be used to
prove that the witness was more likely to have consented on this occasion nor
that she is not a reliable witness.

S. 276 is a blanket exclusion subject to three exceptions those of consent,
rebuttal and identity. It could be the case that evidence that would be of great
relevance and necessary to the accused’s right to raise a defense would be
excluded by this provision. For example the defense of honest mistaken belief or
defense of proving an alterior motive. Father discovered that daughter involved in
sexual relations with brother and when he stopped it she accused him.
An accused must be allowed to call evidence in his defense. This right should be
limited as little as possible so as to guarentee the s. 11 (d) and s. 7 rights.
Sometimes however such evidence is needed as the building blocks of a defense
without which there will be no defense. Should there be a blanket inadmissibility
law? Constitutional right to fair trial out weighs right to privacy.
Other rules of evidence are now subject to exceptions e.g. hearsay, privilege,
character and opinion evidence.
Most other jurisdictions allow for some discretion.

Two problems:
1) The failure to distinguish between the different purposes for which evidence
   may be tendered.
2) The predicting of the relevance of evidence on the basis of a series of
   categories and not treating it on a case by case basis. Not looking to see if
   the evidence is truly relevant in the circumstances.

s. 276 has the potential to exclude otherwise admissible evidence when it may
be highly relevant to the trial.

Summary-
Yes infringes charter
Yes is pressing and substantial objective (abolition of outmoded sexist-based use
of sexual conduct evidence)



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Is it proportionate?
        i)     Yes there is a rational connection.
        ii)    No it does not restrain as little as possible

Not saved by s.1.

Thus evidence of sexual conduct cannot be used to prove the credibility of the
witness or to suggest that she may have consented BUT it may be admissible for
other purposes where the probative value outweighs the prejudicial effect. There
should be a voir dire to establish this and the judge must warn the jury of the use
that it can make of the evidence if he decides to let it in for some other purpose.

Dissent H-Dubé & Gonthier: says that it is too prejudicial. The evidence
excluded in s. 276 is simply irrelevant because it is based upon discriminatory
beliefs about women and sexual assault. There is no constitutional right to
adduce irrelevant evidence so there is not a constitutional problem to the extent
that the evidence in s. 276 is irrelevant. The accused’s right to adduce every little
bit of evidence that may prove innocence is here overruled by other
considerations- the need to irradicate myths from sexual assault trials. The
evidence excluded by this provision is either irrelevant or the prejudicial effect
outweighs the probative value.
Even if unconstitutional the provision is saved by s. 1.




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Similar Fact Evidence

R. v. L.E.D. SCC 1989

Facts: Man charged with sexual assault on his daughter. The Crown wanted to
include other evidence of sexual assault and intercourse. The other incidents
came out in trial and the judge informed the jury that they should only use this
evidence as background.
Issues: Is the similar fact evidence more prejudicial than probative?
Holding: Appeal allowed

Ratio: The trial judge was right. The other incidents were far more serious. They
were logically connected but their prejudicial effect was greater than the
probative value. Two acts of touching in 1983 and 1985 were allowed in because
they were of a similar nature and nearer in time. Once it had come out in trial the
judge erred in letting it in. It was still of the same nature that it was when he
decided that it should not have been let in. If an immediate direction to the jury
was not enough then there should have been a mistrial. The judge did not make
it sufficiently clear to the jury the purpose for which the evidence should be used.

L'Heuruex-Dubé says that the evidence could have gone in the first place. The
evidence once it was “out” in trial could stay in as evidence as to the credibility of
the Crown’s witness.


R. v. C.R. B. SCC 1990

Facts: The accused is charged with sexual assault on his daughter. The Crown
wanted to admit similar fact evidence that the accused had a sexual relationship
with his 15 year old step daughter. The trial judge allowed the evidence because
the sexual acts were of a similar nature and this goes to prove that it was the
same man.
Issues: Is the similar fact evidence admissible in this case?
Holding: Appeal dismissed.

Ratio: The starting point is that similar fact evidence that goes to propensity is
inadmissible. However, if the probative value out weighs the prejudice then it
may be allowed. The judge was wrong with respect to identity as it was not an
issue otherwise his ruling was sound. The similar pattern suggests that the story
is true even if there is a great time gap and that there a certain dissimilarities.

Dissent Lamer and Sopinka: No similar fact just for propensity. Yes if for other
than propensity and if the prejudicial effect does not out weigh the probative
value. Admitted if close or striking similarity to acts charged. Here there was no
other reason to admit evidence. The judge did not really use it to assess the


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credibility of the accused. If the similarities are so striking that it would be an
assault to common sense to say that they were a coincidence then they can be
admitted even if they do show propensity. Must draw the distinction between
general character and modus operandi. Modus operandi may be admissible
where there is a striking similarity not with standing the fact that it may also show
propensity. This is the more orthodox approach to similar fact evidence.
This seems to be for disposition only. This approach seems more similar to LB
than to Arp.

There is a problem here the issue is whether or not the similar fact evidence
should go in. Here what tips the balance in favour of probative value id that the
acts were so similar- circular reasoning.


R. v. M.H.C. 1991 SCC

Facts: Indecent assault (force to have sex with dog) of ex-wife and sexual assault
of daughter of subsequent common law wife. Court of Appeal upheld but
substituted gross indecency. In the trial of the wife it was her word against his ten
years later (so similar fact evidence important). The common law wife gave
evidence that he fantised about her having sex with a dog. Also problem about
the time scale which the complainant got wrong a bit and the judge said that this
did not matter and non disclosure of witness.
Issues: Is similar act evidence allowed?
Holding: Allowed.

Ratio: The judge was wrong about the time scale thing and about the witness.
Whether or not the similar fact evidence should be included will be up to the new
trial judge. It does pose serious threat of prejudice to accused.


R. v. F.F.B. SCC 1993

Facts: Sexual assault of niece for 6-8 to 16. He was living in house and charges
with rape assault and procuring an abortion. No evidence as sexual assault on
sister but yes as to violent control that he exercised in the house.
Issues: Should similar act evidence be admissible?
Holding: Appeal allowed

Ratio: Here the evidence was probative although prejudicial- its probative value
outweighs its prejudicial effect. It explains why the complainant did not complain
before. However, the trial judge did not explain the use to be made of the
evidence. The jury’s verdict would not necessarily have been the same so there
should not be a directed verdict.
H-Dubé thinks that the judge did instruct the jury adequately.
Healy: This seems very close to margin.



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R. v. M.A.G. & L.B. Ont Court of Appeal 1997

Facts: LB was accused of sexual assault of stepdaughter on numerous
occasions between the age of 8 and 12. Evidence of three other women was
allowed at trial saying that he had sexually assaulted them as little girls (one of
the incidents led to charge of incest to which he pleaded guilty in 1974). MAG
accused of 9 counts of sexual offences involving 7 students and babysitters. He
admitted to the charges related to three girls and that evidence was used it the
trial concerning the others.
Issues: Should similar fact evidence be allowed?
Holding: Appeals dimissed.

Ratio: Charron:
Similar fact evidence will be admissible if the probative value outweighs the
prejudicial effect.
Questions to be asked:

1) Is the conduct which forms the subject matter of the proposed evidence that
   of the accused?
-must be link between facts and charge.

2) If so, is the proposed evidence relevant and material
-This test is just the same test that you would use in any circumstance.
What inference is sought and does the evidence have some tendency to advance the
inquiry before the Court.

3) If relevant and material, is the proposed evidence discreditable to the
   accused?

4) If discreditable, does its probative value outweigh its prejudicial effect?

Assessment of probative value.

   i)      Strength of evidence- if there is collusion then evidence will loose
           force. The judge does not have to decide on this it will be left to the
           trier of fact.
   ii)     How far it supports the inference to be made from it- often how similar
           it is but not always. Furthermore, they do not have to be exactly similar
           as long as they are of the same nature.
   iii)    Extent to which matters it tends to prove are at issue in the
           proceedings.


Assessment of the prejudicial effect



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   iv)     How discreditable it is
   v)      Support inference of guilt solely on bad character?
   vi)     Confuse issues?
   vii)    Accused ability to respond to it.

Prejudice does not mean that it seems to show guilt but rather that it may be
used in a prohibited line of reasoning.
There are problems with a principled approach as different people have different
views about what is prejudicial and what is probative. There are problems with
the categorical approach as highly prejudicial evidence may be admitted just
because it fits into a box or highly probative evidence excluded because it does
not.
However, here are some guidelines about how to assess probative value and
prejudicial effect which could become rules.

Does the evidence have a tendency to advance the inquiry before the court? In
sexual offences the similar fact evidence can be used to support the credibility of
the complainant. To the extent that the similar facts are similar the probative
value will be raised. Not just propensity to commit sexual offences but to commit
very similar offences. This sort of propensity reasoning is allowed.
In both cases the evidence was properly admitted.

Cannot merely go to propensity. Goes to the credibility of the witness and to
whether the acts that the complainant said occurred really occurred. It is also for
disposition. It can be admitted for disposition alone if materiality and relevance
are very clear. Test is classic probative value outweighs prejudicial effect.
The reasoning that x did bad things in the past therefore he is a bad person and
he is guilty is still very much to be avoided as it is highly prejudicial and will result
in an unfair trial. However, you do not have to find something other than
propensity where the facts are very similar and it goes to an issue in the trial.
[Example is helpful in Lepage there were three flatmates only one of whom was a
dealer. This evidence was lead to show that it was more likely that Lepage was in
possession. This is not because he was a bad person but because it was at
issue in the trial. If all three were drug dealers then this evidence would not be let
in. It would be prejudicial and would not advance the trier of fact in reaching a
verdict.]

This approach is more likely to prevail.




                                                                                      15
R. v. B (S.C.) SCC 1997

Facts: Sexual assault with a weapon and sexual assault causing bodily harm. An
expert was called at trial to show that the accused did not fit the profile of the
person that would have committed such a crime. He said that the perpetrator of
the crime was either a sexual sadist or a person with anti-social personality
disorder. The tests he had conducted on the accused showed that he was
neither. The accused offered to take a polygraph test and give bodily samples.
All of this was used in his acquittal.
Issues: Should the judge have relied on this evidence?
Ratio: Appeal allowed.

Holding: This sort of evidence is usually inadmissible. However, if it can be
proved by the scientific community that there is a group that has identifiable
characteristics then the defense may show that the accused is not part of that
group. The expert did not say that people other that the two groups mentioned
above could not have committed the crime. There was no question of whether or
not the scientific community had developed such a profile.
After fact conduct by accused approached on a principled basis will be admitted
when probative value outweighs prejudicial effect. The polygraph tests cannot be
admitted into court and there is no evidence that the accused did not know this.
The evidence of the polygraph test does not reach the standard of probative
value. The samples and clothing were probative and should have been allowed.



R. v. Arp SCC 1998

Facts: Two women murdered two and a half years apart in the came city. The
accused was arrested after the first murder and gave bodily samples which was
matched against the hairs found on the victim’s coat but there was no match. For
the second murder he refused to give samples but the police took cigarette buts
and analysed them and found that they matched the semen found in the second
victim. The was charged with both murders. The application to sever the cases
was denied twice and he was found guilty on both counts. He appeal was
dismissed in the Court of Appeal.

MB outside pub in BC Taxi driver saw lone man with black sholder length hair
pull up in grey pickup truck and he saw MB get in. Three weeks later a cross-
country skier found jaw bone 10 km from Prince George. The police found other
bones which had been distributed by animals and cause of death could not be
ascertained. They found the clothes in a pile. Sharp edged instrument had cut
clothing.
A friend had been drinking with the accused the evening that MB went missing
and when he was dropped off he saw his friend return to town and not go in the
direction of home. The accused told him the next day that he had picked up a



                                                                                16
lady and she gave him jewellery for petrol money. A police search of the car they
found a large blade and some jewellery. Also found fibers matching MB’s jumper.

Theresa Umphrey was seen near convenience store after being out drinking.
She has later found dead 50 km for PG. He hair was cut with knife and her
clothing was cut also. Semen was found in her vagina.
Issues: Similar fact evidence and standard of proof. If it is civil does this offend
that charter? Was the use of samples form one investigation for the other in
contravention of the s. 8?
Holding: Appeal dismissed.

Ratio: Does the probative value outweigh the prejudicial effect? Must infer from
the distinctiveness of each crime whether or not it was the same person that
committed those crimes. The high degree of similarity between the offences and
the likelihood of coincidence will be the criteria. Once this is established then one
may look at the accused’s implication in the crime. Proof of involvement in one
crime may be used for the other to the extent that they have been found to be
very similar and committed by the same person.
The standard of poof in looking at the similar fact evidence is the balance of
probabilities. This evidence would not be conclusive at trial (me: but it is pretty
prejudicial!) the standard of beyond a reasonable doubt is only used at the
preliminary stage where it will have almost conclusive effect on guilt.
The jury must be instructed not to use the evidence as proof that the accused is
the sort of person who would do that sort of thing but only for the purpose for
which it was admitted (here for identity). It would be possible to not allow
severance but then rule that the similar fact evidence could not be used.
However, the two should not be confused as the burden is on the accused to
prove on the B of P that there should be severance and on the Crown to prove
that the similar fact evidence should be admissible.
There must also be a link between the accused and the similar facts.

Healy: Worry that there was not much of a case in either circumstance
individually. Evidence that had opportunity to do it but no evidence linking him to
the scene of the crime in 1st one and no evidence of intent.




                                                                                       17
Character Evidence

R. v. Clarke 1998 Ont Court of Appeal
Facts: Forcible seizure, assault with a weapon, and possession of a weapon for
the purpose of committing a forcible seizure. There is a dispute between two
people one of whom says that she was pulled out or her car and forced in to the
accused’s car, holding a knife to her throat. He says that she was upset and he
comforted her when she left he retrieved the purse and coat from the van. The
defense wanted to call evidence about the general reputation in the community of
the accused. The complainant and accused were members of small Caribbean
community. The Crown appealed.
Issues: was the trial judge right to allow the character evidence?
Holding: Appeal dismissed

Ratio: A character witness should only rarely be able to ask if he would believe
the evidence of a witness. The trial judge was wrong but the result woul dnot
have been different. The following line of questioning is not allowed:

1. Do you know the reputation of the person in the community?

If yes then…
2. Is that reputation good or bad?

If bad then…
3. From that reputation, would you believe the witness under oath?

There is a limited discretion of the trial judge to not allow the first two questions to
be asked it will be used only rarely. The third question should only be asked in
rare circumstances as its prejudicial effect will almost always out weigh its
probative value. Cannot call evidence to booster a witness’s character until that
character has been attacked (not true for the defense who can call character
witness without the Crown first attacking). However this evidence is not to say
that they would be more likely to tell the truth under oath “oath helping”. In this
circumstance it is only where the credibility of witness has been attacked.
Character can be proved by specific act, by expert evidence or by reputation in
the community. Evidence of reputation is not all that probative. Fators to consider
include;
1) Danger that the evidence will arouse the jury’s emotions or prejudice, hostility
    or sympathy
2) The danger that evidence creates side issues that unduly distract jury
3) Consume undue amount of time
4) Danger of unfair surprise to opponent
5) Usurp the function of the jury- it is ultimately the jury who must decide on the
    credibility of the witnesses.



                                                                                     18
R. v. Levasseur Alt Court of Appeal 1987

Facts: Accused of breaking and entering and theft. She said that her employer
asked her to remove the vehicles so she had colour of right. She wanted to call
the evidence of her subsequent employer. The trial judge said that she could not
as he did not know that reputation in the community where she lived.
Issues: Is this still a valid distinction?
Holding: Appeal allowed.

Ratio: This restriction has no place in modern society. We do not all live in small
communities and it makes sense that someone who knows the general
reputation of a person as work or in the gym can give evidence to that effect. The
evidence would influence the jury so appeal allowed. (dissent says that not
influence jury).

R. v. Profit Ont Court of Appeal 1992


Facts: Sex offences relating to students. 24 witnesses all say that he is great guy
and never saw any touching. GD came forward in 1989 after having heard about
charges pressed by other students regarding incidents in 1977/1978.
Issues: Should all the character witnesses be allowed?
Holding: Appeal allowed (Dissent- see SCC below).

Ratio: Character evidence allowed to support credibility of accused and show
that he was unlikely to have committed offence. Good character of diminished
value in sexual assault however, character goes to honesty and integrity but also
to morality in broader sense.
Dissent: Reputation may be important in crimes of dishonesty but little probative
value in cases involving sexual misconduct against children and by persons in a
position of authority. The evidence should go in with a direction from the judge
that it is of little value.


R. v. Profit SCC 1993

Facts: Sex offences relating to students. 24 witnesses all say that he is great guy
and never saw any touching. GD came forward in 1989 after having heard about
charges pressed by other students regarding incidents in 1977/1978.
Issues: Should all the character witnesses be allowed?
Holding: Appeal allowed

Ratio: Agree with Griffiths the dissenting judge.




                                                                                 19
R. v. Mohan SCC 1994

Facts: Pediatrician four counts of sexual assault on patients. He wanted to call
expert who would say that the perpetrator of the alleges offences would be part
of a limited an unusual group and that the respondent did not fall within that
group. The first three compainants were pedophile and fourth was sexual
psychopath. The Court of Appeal allowed the appeal after he was convicted.
Issues: Was character evidence properly used? Was expert evidence properly
used?
Holding: Appeal allowed.

Ratio: Admission of expert evidence depends on :
1) Relevance;
       Logically relevant, not probative value ouverborne by prejudicial effect, not
       too much time required compared to probative value. Not where may be
       misused or distort the finding of fact or confuse the jury.

2) necessity in assisting the trier of fact;
      Must be outside the experience and knowledge of judge or jury and
      assessed in light of the potential to distort the fact-finding process.

3) the absence of any exclusionary rule;

4) a properly qualified expert;
      Qualified through study or experience. Basing opinion of scientific
      information.

The Crown cannot lead expert evidence as to disposition in the first instance
unless it is relevant to an issue and is not being used merely as evidence of
disposition. The defense can but limited to reputation in the community.

Here the evidence was not reliable enough and the jury did not need expert
testimony to help in this case. However reliable evidence of this type would be
admitted if the judge was convinced that it would be of assistance in determining
guilt.


R. v. Crosby 1995 SCC

Facts: Appellant and friend charged with sexual assault of complainant. They
claim that the trial judge erred in not including certain prior inconsistent
statements made by the complainant. Credibility was a key issue as the defense
was consent. They say that she made up the allegations of sexual assault after
she was confronted by her parents. There were four statements relating to sexual



                                                                                 20
activity other than the activity forming the object of the trial and the judge allowed
one of them.

Statement 1; She had visited him three days before and had sex. She had visited
him that day to have sex with him. In the preliminary hearing this changed and
she said that she did not visit him thinking of having sex.

Statement 2; description of unwanted sexual touching a few hours previous to
the assault. The inconsistency with subsequent statements are minor.

Statement 3; Told the two accused that she had engaged in group sex on other
occasions after the alleged sexual assault.
Issues: Should statements go in ?
Holding: Appeal allowed.

Ratio: The first statement should have been included as it went to the
complainant’s credibility. It was otherwise admissible evidence and it was
excluded merely because it related to prior sexual events that not connected and
so rape shield s. 276 applies. However this was only of the unfortunate way in
which the police posed the question (you went for sex before “yes” did you do so
again?). The first statement had significant probative value and it was not very
prejudicial. Would not matter if the jury knew that they had already had sex- not
too prejudicial. The evidence should have been admitted and the jury told not to
use it for credibility on level of sex alone. Credibility on basis of prior inconsistent
statement not just because of sexual activity.

Did not err in excluding second statement of earlier sexual touching. Same as the
third statement- the prejudicial effect outweighed the probative value.

Dissent Sopinka , Iacobucci and Major: the third statement should have gone in-
consent cannot be given after but a statement inferring that there was consent is
highly relevant.

R. v. Darrach 1998 Ont Court of Appeal

Facts: Sexual assault. Defense of consent or honest belief in consent.
Admissibility of prior sexual activity with accused. The accused chalanges the
constitutionality of s. 276, s. 276.1 92) (a), s. 276.2, s. 276.2 (2), s. 273.1 (2) (d),
and s. 273.2(b). The trial judge upheld the provisions.
Issues: All of the above.
Holding: Appeal dismissed.

Ratio: s. 276 (1) is not a blanket prohibition against evidence of the complinant’s
sexual activity on the issues of consent and credibility. Rather that evidence of
sexual activity is not admissible to support an inference that, by reason of the
sexual nature of the activity the accused is more likely to lie or have consented.



                                                                                      21
Accused has tactical burden to testify if the complainent does not but this is not a
legal burden.
Basically say that all provisions are alright- not a very good summary but it is
long and boring.


R. v. Ecker 1995 Sackat Court of Appeal

Facts: Breaking and entering and committing sexual assault and sexual assault.
He said that the trial judge should have allowed evidence that before the incident
the woman had sat on his lap in a bar and touched his genital area. He thought
that she had invited him back and she says that she did not. She woke up o find
a man on her bed with his hand on her hip. He wanted to challenge her
credibility. The defense was honest but mistaken belief in consent.
Issues: Should the evidence be excluded on strength of s. 276 (1) (b)?
Holding: Appeal allowed.

Ratio: The evidence was of probative value with regards to the defense and
appeared to support his interpretation of events at the party.

 Is it possible to separate the issues in this case? Did they do indirectly what they
could not do directly? Because she consented before she consents this time? He
believed that she consented? Backs up his story but not just to do with the
sexual activity.


R. v. Scopelliti Ont Court of Appeal 1981

Facts: Worked at gas pump in front of trailer park. Two boys 17 yrs. The boys
entered the store and tried to hit him he told them to go and they would not. They
tried to go for the till and she ship them. Shot in the back and the other twice in
the head. He did not know of their reputation for violence.
Issues: Should evidence of bad character of the deceased be allowed in self-
defense.
Holding: Appeal allowed.

Ratio: In a trail for murder where the accused raises self defense, the evidence of
the deceased’s character or disposition for violence is admissible to show the
probability of the deceased having been the aggressor and to support the
accused’s evidence that he was attacked by the deceased.

This is a condratiction with s. 276- should admit that there is contradiction and it
is done for reasons of public policy- banashing twin myths but at least admit that
there is a contradiction.




                                                                                  22
Hearsay

R. v. Khan 1990 SCC

Facts: The daughter who was 3 and a half told the mother that the doctor has
sexually assaulted her. There was semen mixed with saliva on her jogging suit.
The trial judge said that the child was not a competent witness and that the
conversation with the mother was not admissible. He was acquitted, the Court of
Appeal set aside this ruling and ordered a new trial. The trial judge said that it
was not a spontaneous declaration so it did not fit into a box. The Court of
Appeal said that as it was a sexual case the 15 mins could be considered
spontaneous.
Issues: Can a young child’s unsworn evidence be given to the court by the
mother?
Holding: Held on both questions: Yes the child can give evidence and if not then
the mother should be able to give it.

 Ratio: The child must only understand what it is to tell a lie in normal
circumstances. The age of the child should not be taken into account.
 It cannot be spontaneous declaration as it was not said under intensity of
emotion. However it court looked at the possibility of relaxing the hearsay
exceptions in the case of young children in sexual offences. An exception that
does not fit into the traditional categories was already allowed in Ares v. Venner
a case about medical records.
McLachlin quotes the House of Lords on four points (1) it must be difficult to
obtain other evidence; (2) the declarent must be disinterested; (3) must be made
before dispute or litigation; (4) must have peculiar means of knowledge not
possessed in ordinary cases (what does this mean?). McLachlin resumes these
points as “necessary and reliable”. Children in sexual cases may be more likely
to be telling the truth as they are not able to invent things that they know nothing
about. The USA has a tender years exception to the hearsay rule.
She rules that the evidence must be necessary. That the child’s evidence is
inadmissible could be grounds for necessity, or that it would be too traumatic for
the child or other things (it is the other things that are source of controversy
here). The witness does not have to be unavailable for the statement to be
necessary.
It should also be reliable- intelligence of the child, timing of statement and
demeanor. Cross-examination does not have to be available (as it was in Ares v.
Venner).

Can this case be used as an authority for a general discretion or a new rule?
Does it only apply in the case of young children and sex offences?




                                                                                  23
R. v. Smith 1992 SCC

Facts: Both accused and deceased US citizens. The accused picked up the
daughter from the mother’s house and they drove to Canada and spent the
weekend in a hotel. The body was found near a service station at 1.30am. The
Crown claimed that the accused was a drug smuggler and asked the daughter to
take cocaine over the border on her body. She refused, he first abandoned her
then came back and he killed her. The Crown relies on four phone calls to the
mother.
(1) He has abandoned me and I need a lift home. 10.21 pm Hotel room
(2) He has still not come back. 11.21 pm Hotel room.
(3) He has come back and I don’t need a lift home. 11.54 pm, hotel lobby.
(4) She was “on her way”. 12.41 am, service station.

Evidence of a further phone call made to the accused’s residence around
1.00am. Witness puts a man that looks like accused near the payphones. There
was also the evidence of another woman who the accused had asked to smuggle
drugs. The defense claims that he did not return to the hotel. The accused was
convicted. The Court of Appeal allowed his appeal saying that the first two
conversations were admissible but only to prove state of mind (that she wanted
to come home and not that Larry had abandoned her; why would it be useful to
know this in a murder trial?) and that the last one was not. They quashed the
conviction and ordered a new trial.
Issues: Should the telephone calls be admitted as an exception to the hearsay
rule?
Holding: Appeal dismissed.

Ratio: Chief Justice LAMER. The fist three conversations do not fall within the
present intentions exception to hearsay. The fourth statement is not at issue.
However, the there can be other exceptions that are not in list. Just because
evidence does not fall into one of the traditional categories is not fatal to the
case. If the person is not available to give evidence at trial then the hearsay
evidence should be admissible where it is necessary and reliable and subject to
discretion where the prejudicial effect outweighs the probative value. The first two
conversations are admissible but not the third. The evidence of the woman is not
admissible as it goes to character (similar fact) and is not relevant to a murder
charge.

If you look at the reason that hearsay was traditionally unreliable-ie that it is
possibly source of inaccuracy and untrustworthiness- then in circumstances
where this is not the case the evidence could be admitted. The Lords have
affirmed that it is open to judges to mold the common law to make it serve the
interests of those who it binds. Principled approach based on necessity and




                                                                                    24
reliability. Necessary does not mean necessary to the prosecution’s case but
necessary because direct viva voce evidence is not available.

First two statements were necessary and reliable. Necessary because she was
dead. Necessary does not mean necessary to the prosecution’s case. Necessary
should be given a flexible meaning- it could even be described as an expediency.
Reliability dose not have to be absolute reliability but just threshold reliability-
after that it is up to the jury to decide. There was no reason for her mother to lie-
the problems of perception, memory and credibility were not present so it could
be admitted. The third conversation is not reliable. There is some room to doubt
the truth of the victim’s statement. She may have been mistaken or even lied
because she did not like the alternative that her mother had suggested.

What about corroboration- should it come into the consideration of the judge in
threshold reliability? Here there was saliva and semen on the sleeve. IN Hawkins
the SCC said that the trial judge should not look to see if the woman was reliable
as that is the job of the trier of fact. However, in FJU they say that the fact that
the statements are similar tends to prove that they are reliable so the court is
doing something that it should not be doing.

Me- May be should take wide view consistent with probative value and prejudicial
effect otherwise we risk falling back into categories if we just look at the
circumstances in which the statements were made.

Me: the fourth question would not have been admitted. It is indeed necessary on
the same basis as the others above as the daughter is dead and cannot give
evidence. It could also be admitted to prove that she was still alive at 12.41 if
this would have been relevant as this is not a use of the statement that would
attract the hearsay rules as it is not hearsay. However we cannot be sure that
she is returning with Larry- the jury may draw that inference (together with the
third statement) which is not admissible anyhow. She does not say that Larry is
going to give her a lift home. If the third statement is not in there then the fourth is
of limited use to the prosecution anyhow as Larry is no where near the scene. It
is not even clear that she is no her way home.

Is this really hearsay? Are the phone calls being used for the truth of their
contents? There could be some debate.
Any doubt that there is general discretion/ rule is put to rest in this case.


R. v. K.G.B. 1993 SCC

Facts: The accused and three of his friends were in a fight, one of the youths
pulled a knife and stabbed the victim, killing him. The four youths were
interviewed separately by the police. Each was accompanied by a parent and in
one case a lawyer. They were advised of their right to counsel. The interviews



                                                                                     25
were video taped. Each of the three friends said that they had heard the accused
say that he thought that he had killed him. The three recanted their statements at
trial. Although the judge was sure that they were false recantations the previous
statements were now hearsay and they could not be used. The prior inconsistent
statements could be used to impeach the credibility of the witnesses but not as
evidence of the truth of the statements.
Issues: Should these statements be allowed despite the fact that they are
hearsay? Should prior inconsistent statements be allowed to impeach the
reliability of the witness?
Holding: Appeal allowed and new trial ordered. HB and Cory dissenting.

Ratio: Look at problem through lense of hearsay problems- that the statement
was made when the boys were not under oath or solemn affirmation, trier of fact
cannot assess demeanor and therefore credibility, and no cross-examination.

 Here the fist statements were made under oath so that is not a problem (meet
problem of reliability). They were also video taped there cannot be a problem of
reliability. There would also be cross-examination on the present state of mind of
the witnesses.

Prior statements should be admitted following the requirements of reliability and
necessity. They will only be admitted if they could have been given in evidence-
in-chief- this cannot be used to circumvent other evidence rules. Here the
statement is admissible on standard hearsay exception of admission.

Reliability; The importance of the oath has diminished since people no longer
really believe in divine retribution. Videos mean that the problem of the presence
in court is not as great. Lack of cross-examination is remedied by cross-
examination at trial.

Necessity; Necessity does not always mean that the witness is not available.


R. v. Evans SCC 1993

Facts: Three people were involved in a robbery and attempt murder. The
company-accused was identified by witnesses. The robbers drove away in a car
that had been purchased two days earlier from a married couple. A man who
matched the description of the accused had bought a car from the couple but had
not given his name or completed a bill of sale. He asked to borrow the license
plate. The man who bought the car said that he worked in chain-link fencing and
had a big dog who was going to have puppies. The accused worked in chain-link
fencing and had a big pregnant dog. There was also a map with the route taken
from the bank to where the car was left marked out on it in the house of the
accused. The accused was convicted. The judge said that alone the evidence
was weak but taken with everything else it was good enough.



                                                                                26
Issues:
Holding: Appeal dismissed. McLachlin and Major dissenting.

Ratio: SOPINKA: The statements were not being used for their truth and they
are of some probative value as it narrows the identity of the declarent to the
group of people who are in a position to make similar representations. The more
unusual or unique the more probative. Must prove the identity of the person who
uttered the statements on a balance of probabilities. If this first stage of the test is
met then the judge must consider the statements along with the other evidence in
ascertaining guilt or innocence. In this case there were only a narrow group of
people that would know the facts offered in the statements. Otherwise it could be
a coincidence.

Dissent McLachlin and Major: the information was not known exclusively to the
accused but anyone could have found it out by asking around. The statements
are only a use if they can be assumed to be true. If they are not true then their
value as a means of identifying Evans is diminished.

Is there a problem of relevance? Is there a problem with boot strapping? Need to
know that it is Evans to let it in and let it in to prove that it is Evans.



R.v. F.J.U. SCC 1995

Facts: Incest with 13 year old daughter. Daughter said that intercourse was
regular since the age of 5 and that the last intercourse was the night before. The
father said the same thing. At trial both recanted their statements.
Issues: Can the prior statements be used for the truth of their content?
Holding: Dismissed.

Ratio: Old approach abandoned in favour of reliability and necessity- must be
interpreted in a flexible way taking in to consideration the facts of the case. In the
case of prior inconsistent statements you can cross-examine about them as the
witnesses are in court. The absence of an oath and looking at demeanor can be
confronted through police work (videos?). The statements are necessary as the
witness has recanted.

In this case the fact that both the father and the daughter gave such strikingly
similar accounts is enough to ascertain reliability. There was be significant
similarities based on the balance of probability where there is no reason to
suspect that the declarants colluded or there was undue pressure from outside.
In this case, all of these criterion were reached. Could say that the fact that the
girl made those statements and irrespective of whether or not they are true goes
to the possible truth of the confession to the extent that they coincide with the
statements of the father. If being used only to challenge credibility then it can go



                                                                                     27
in however if it is to be used for the truth of its contents then must look at hearsay
rules.
Here it was admissible at trial.

Prior inconsistent statements were only used to impeach the credibility of the
witness. In Evans these statements used for their probative value in a non-
hearsay context. Even though the statements may not have been true they were
useful because of the similarity with the accused’s characteristics. However it is
impossible to say that the statement made by the daughter supports the truth of
the statement made by the father without at the same time saying that the
statement made by the daughter is true.

HB in dissent disagrees with the finding of the daughter’s statement. She says
that it is admissible to compare it with the statement of the father. The only point
of dissent is that L'Heuruex-Dubé found that the similarities need not be striking
but only significant.


R. v. Hawkins 1996 SCC

Facts: The Crown believed that Hawkins, a police officer, had given M
information about the police surveillance of her motorcycle club. Hawkins’
girlfriend was a key witness in the trial and testified in the preliminary inquiry
against Hawkins. She then recanted those statements. G and Hawkins got
married and therefore G was not a compellable witness.
Issues:
Holding: Appeal dismissed.

Ratio: The spousal incompetence should not be overlooked in this case. Her G
was unable to testify for the purposes of the necessary criterion. There was an
oath in this case and opportunity for cross-examination mean that it is reliable.




                                                                                     28
Opinion

R. v. Graat 1982 SCC

Facts: Gratt was seen by two policemen driving his car all over the road. He was
stopped and taken to the police station where he was observed by the desk
Sergeant as walking wavly, smelling of alcohol and having blood shot eyes. He
complained of chest pains and he was taken to see a doctor. By the time he was
back it was too late to give him a breath test. The case was made on the basis of
eye witness evidence. Wilson, his friend testified that he thought that he was in fit
condition to drive.
Issues: Can the policemen give non- expert evidence?
Holding: Appeal dismissed.

Ratio: In this case it was decided that the four witnesses could give their opinions
of the state of Graat on the night in question. They could even answer the
question that was before the jury almost in that they could say whether or not in
their opinion Graat was intoxicated. You will be allowed to do this in a case
where the opinion you give is merely a way of summing up all the other evidence
that you have put before the Court. “a compendius statement of all the facts”.

Still cannot ask the question of law- was he negligent?

R. v. Mohan SCC 1994

Facts: Pediatrician four counts of sexual assault on patients. He wanted to call
expert who would say that the perpetrator of the alleges offences would be part
of a limited an unusual group and that the respondent did not fall within that
group. The first three compainants were pedophile and fourth was sexual
psychopath. The Court of Appeal allowed the appeal after he was convicted.
Issues: Was character evidence properly used? Was expert evidence properly
used?
Holding: Appeal allowed.

Ratio: Admission of expert evidence depends on :
1) Relevance;
       Logically relevant, not probative value overborne by prejudicial effect, not
       too much time required compared to probative value. Not where may be
       misused or distort the finding of fact or confuse the jury. This is a higher
       level of relevance than for general evidence.

2) necessity in assisting the trier of fact;
      Must be outside the experience and knowledge of judge or jury and
      assessed in light of the potential to distort the fact-finding process.



                                                                                  29
       That the issue could not be resolved without an expert is too high. That it
       would be useful is too low- somewhere in between. If it is a novel science
       then it must be necessary- higher test.

3) the absence of any exclusionary rule;
      Can the expert rely on hearsay? Should it go in but the jury instructed to
      give it little weight/ not go in?


4) a properly qualified expert;
      Qualified through study or experience. Basing opinion of scientific
      information generally excepted by the scientific community- this was the
      test in the USA for a long time. Now they are moving away form it. For
      novel science experts the test should be necessity and reliability.
      Necessity should be higher here. If it is not generally excepted in the
      scientific community then there should be some other way of proving its
      reliability.
      The closer it related to the ultimate issue the harder the scrutiny will be.

The Crown cannot lead expert evidence as to disposition in the first instance unless it is
relevant to an issue and is not being used merely as evidence of disposition. The
defense can but limited to reputation in the community.

Here the evidence was not reliable enough and the jury did not need expert
testimony to help in this case. However reliable evidence of this type would be
admitted if the judge was convinced that it would be of assistance in determining
guilt.


R. v. Marquard 1993 SCC

Facts: Charged with aggravated assault of a grandmother on her grandchild. The
Crown held that she held her head close to the oven to discipline her. The child
was burnt. The defense held that she had burnt herself when trying to light a
cigarette with butane lighter.
The child abuse expert gave evidence that the child had suffered a contact burn
and not a flame burn. Non-burn doctor who worked in casualty said that it was
probably a contact burn. Burn expert said that passivity in medical examination
was characteristic of abused kids. The judge did not object to the expert witness
going beyond their field of expertise and allowed the evidence and told the jury
that they could rely on these opinions. The defense counsel did not object to the
evidence being in but to the instruction to place weight on it.
Issues: Extent of experts expertise.
Holding: Allowed.

Ratio: The only requirement for the admission of expert opinion is that the expert
witness possess special knowledge and experience going beyond that of the trier


                                                                                        30
of fact. The deficiencies of the expert go to weight to not to admissibility. The
general evidence should be admitted even if it goes slightly further that the
bounds of the expert’s area of expertise. However, the opinion that the child was
the victim of long term abuse was highly prejudicial and its probative value was
little so it should be excluded. There was no other evidence that the child was a
victim of long term abuse and it was not an issue in the trial. An expert opinion
as to credibility is not allowed as this would by usurping the jury’s role. However
the expert can offer an opinion about human behaviour and particularly that of a
child in dealing with situations in order to ascertain the credibility. Why the child
may change her mind about the story, why a battered woman would stay with her
man. In other words if you need an expert opinion on a question of credibility to
explain some sort of behaviour that goes to credibility then it will be allowed
otherwise it is not. This can be a fine line.

Even though the experts gave evidence beyond their specific field of expertise
they were nonetheless more qualified than a lay person to give evidence in these
areas.

There is also a problem that if the Defense objects that the witnesses are going
beyond there expertise then they will not be able to continue. If they do not object
then the “expert” is allowed to continue. What should the role of the judge be?
Should the judge ensure that the experts are within their field of expertise?

There was also an issue of whether or not the expert can be confronted in cross-
examination by literature that she does not acknowlegde the authority. If she
agrees then it wil become part of evidence and if she does not then she will have
to explain why and this could challenge her credibility. Here they asked to use
work that the expert did not recognise as authoritative so long as the reliability is
acknowledged by the Court as is the case in some states in the USA . However,
the issue was not resolved as they did not even meet this new standard.


R. v. Malott 1997 SCC

Facts: Charged with murder of husband and attempt murder of husband’s
girlfriend. She was an abused wife and they had been common law husband and
wife for 19 years. A few months before the accused took their son and went to
live with his girlfriend. The accused and her daughter lived in the mother in law’s
house. On the day of the killing the accused went to the doctor’s with the
husband to get drugs for his illegal drug trade. She took his pistol. He got angry
with her and choked her. She could not get the drugs and was scared that he
would be angry. He tried to get out of the car and she shot him. She then took a
taxi to the girlfriends house and shot and stabbed her but she survived. She led
evidence of battered wife’s syndrome. She based her claim on self-defense.
Issues: Expert opinion in the case of battered women.
Holding: Appeal dismissed.



                                                                                   31
Ratio: Three parts to self defense:

1) That there was an unlawful act
2) That there was a reasonable apprehension of risk of death of GBH
3) A reasonable belief that it is not possible to save oneself except by killing the
   other.

Expert evidence that the woman was a battered spouse will help the jury on the
first point- did she think that she was being assaulted? Battered wife syndrome
evidence is about the nature and extent of abuse, why stay in relationship, ability
to perceive danger, reasonable ground to preserve herself form death of GBH.
With respect to the first point you must not ask was the accused being assaulted
but did the accused reasonably think that she was being assaulted- battered wife
counts for this.
L'Heuruex-Dubé and McLachlin high light the fact that BWS is a gender based
thing. You should look at the experience of the individual woman but also at the
experience of women in general in society to be aware of the position in which
the woman found herself.


R. v. Scardino Ont Court of Appeal 1991

Facts: Accused charged with murder and remanded to institutions for psychiatric
assessment. At trial the mental condition deteriorated and he was certified
mentally ill. He was found unfit to stand trial and was to be kept in custody of
psychiatric hospital. He then improved and was found fit to stand trial. The same
doctor was at trial and testified to his insanity defense.
The appellant states that there was no evidence that he could have taken he
stand if necessary- one of the ingredients needed in order to be found fit for trial.
Dr. Olivier was not aware of the legal requirements of finding someone fit for trial.
Issues: Can expert base opinion of out of court statements?
Holding: Dismiss appeal.

Ratio: The Court does not accept the problem with Dr.Oliver not understanding
the legal requirements. Dr. Olivier may not have addressed all of the issues but
he was a competent doctor and could make a decision that the accused was fit to
stand trial.
 Issue is weight that the jury is entitled to give to portions of Dr. Oliver’s evidence
that relied solely on statements of the appellant to Dr. Olivier concerning the
circumstances surrounding death. The trial judge said that these remarks should
be given no weight as the statements are not in front of the court. However, the
statements are not being used as hearsay but to explain why the doctor reached
his opinion.
The Court finds that the opinions of the experts must be based on factual
information that is admissible in court. To the extent that the opinion of Dr. Olivier



                                                                                    32
is based on hearsay it should not be relied upon by the jury. Here Dr. Olivier
admitted that he based his opinion to a large extent on the conversations he had
had with Scardino.

Think about if the new reliability/ necessity test could be used to get around this
saying that the hearsay itself would be admissible.


R. v. Lavallee 1990 SCC

Facts: Lyn Lavallee shot her boyfriend in the back of the head as he was leaving
he room and claimed self- defense. The defense claimed that she was a battered
woman. On the night in question she had an argument with her boyfriend and
witness at the party testify to this. She was beaten by him (bruises on her face
and autopsy say match bruises on his hand). She hid in a closet, she was very
scared. Her boyfriend gave her a gun and she shot one shot through a scene. He
told her that he would kill her later that night if she did not kill him. She shot him
in the back of the head. At trial the defense did not want her to give evidence as
she might damage her case. They called an expert in battered wife syndrome to
give evidence. He said that she was a battered wife and that she really did
believe that he was going to kill her that night. He based his conclusions on the
hospital reports (8 where doctor ways that he did not believe the accused story of
accident), her statement to the police and a four hour interview with her.
Issues: Is battered wife syndrome relevant to self-defense?
       Is it appropriate to call an expert to talk about battered wife syndrome?
         Can the expert witness give evidence based on hearsay?
Holding: Appeal allowed.

Ratio:
Is it appropriate to call an expert to talk about battered wife syndrome?
You can call an expert where a normal lay person would be unlikely to form a
correct judgment about the subject unassisted by people with special knowledge.
Knowledge of BWS is necessary to understand this case. Worry that the jury will
draw conclusions based on myths (they like it really) and not have a full
understanding of BWS.

Is battered wife syndrome relevant to self-defense?
The evidence of BWS is relevant to
(1) understanding whether or not the accused was “under reasonable
    apprehension of death or GBH” from Rust.
(2) Assessing the magnitude of the violence and again seeing if it was
    reasonable to believe that Rust would kill her.

It is a subjective test but it must be reasonable and based on reasonable
grounds. Case law says that this apprehension must be imminent. If there was
considerable time between the assault and the killing it may be motivated by



                                                                                   33
revenge. Whynot a Nova Scotia case said that self defense was not open in the
case of BWS.
 There is a recognizable pattern of tension mounting, violence and contrition. Dr.
Shane states that Lavallee was in the violent stage of the relationship as tension
had been building for some time. Part of the cycle is the ability to predict the
nature and extent of the violence. Rust told Lavallee that if he did not kill him he
would kill her- this is not unusual in situations of BWS.
Does the woman have to be beaten at the time that she kills her beater? The
SCC quotes an American court saying that this would be subjecting her to
“murder by installment”.

Lack of alternative to self-help.

In order to prove that it was reasonable- must show that no other way out. Why
did she not leave him? You become paralyzed with fear and lose the will or ability
to do anything “learned helplessness”. Also a reluctance to disclose that you are
being beaten is a sign of BWS.

Can the expert witness give evidence based on hearsay?

Dr. Shane based much of what he said on interviews with Lavallee and her
mother. This was hearsay. However, the Jury must understand on what he based
his opinions.
In Abbey it was concluded that expert evidence can be admitted even of it is
based on hearsay. It will be used to show the basis on which the expert reached
his conclusions it cannot be used to assert the truth of the hearsay. The question
is a question of weight. Before any weight can be given to the opinion the facts
on which it is based must be found to exist. However, you do not have to prove
each and every fact with admissible evidence as long as some facts are proven.
The fewer the facts proven by admissible evidence the less weight should be
given to the evidence. In this case there was enough independent admissible
evidence.
In giving your opinion you can use the hearsay to explain how you came to that
conclusion. If there is no other evidence for your conclusion then it will be given
no weight. If there is some independent evidence then it can be given some
weight.
Cannot base your evidence on hearsay- however here there does not seem to be
a great deal of independent evidence and still allowed- say that keeping it strict
but in application it is relaxed a little.

See Scardino- Ont Court of Appeal say that SCC still quite strict.

Spoinka: Expert evidence based on hearsay cannot be admissible but worth
nothing as this would make it irrelvant and therefore inadmissible. However if
there is an independent source as there was here then it can go in and the jury
must be instructed to ignore the evidence to the extent that it is base on hearsay.



                                                                                  34
Note: Talk of repeated violence in statement. Say that he gave her gun and
“dared” her to kill him- not unusual in BWS. Friends talk of violence. Doctor says
8 visits to hospital from violence. Definitely violence on that night- bruises on
hand match bruises on face, friends at party say heard violence. Lying about
being beaten. Her remorse after killing Rust- evidence said to police in car after
killing.

R. v. B.M. Ont Court of Appeal 1998

Facts: Sexual offences over 39 years against 9 people and bestiality. The motion
for severance was denied- waste time no more prejudiced by dogs than by
children. The defense wanted to say that there was collaboration between the
complainants and they wanted to get the telephone records of the complainants
as proof of this. The request was denied. The defense wanted to call an expert
about memory to say the complainants could not remember things over 20 years
ago. The judge concluded that she was an expert but said that the evidence may
confuse the jury. Also the jury members have to deal with memory everyday and
they were fit to decide. There was no ruling on similar fact but the judge told the
jury that they could look at all the evidence together.
Issues:
Holding: Appeal allowed.

Ratio: The judge should have severed the bestiality counts. There was no nexus
between the offences and the bestiality would not have come out in the case on
the sexual offences. He also erred in not instructing the jury to look at each case
separately. If it was not admissible for similar fact evidence then the jury must
look at each separately. Even if it was admissible as similar fact there had to be
instructions to the jury that it should not be concluded that he was the sort of
person to sexually assault women and children.
He was wrong not to let in the phone records but it was not serious as it would
only prove that the calls were made and not the contents of the calls.
The judge did not consider whether the expert was to testify about broadly
recognized scientific knowledge. The memory of two year olds is based on
reliable body of knowledge. Moreover, the memory of small children is beyond
the knowledge of the average person. However, the testimony about trauma and
its effect on memory could not be admitted as it was not based on recognised
body of scientific knowledge. Some of the evidence was properly excluded on
relevance.




                                                                                 35
Confessions

R. v. Hodgson SCC 1998

Facts: The complainant says that she was sexually assaulted by a family friend
and babysitter between the ages of 7/8-11 several times. When she told her
mother the mother, father and stepfather went to confront the accused and he
admitted to the sexual assault. The mother called the police and the father held a
knife to the accused throat. The accused denied at trial making the confession.
The trial judge convicted the accused. The Court of Appeal found that in certain
circumstances the parent of complainant could be found to be person in position
of authority. He also said that it is up to the defense to raise the issue of
voluntariness at trial. The appeal was dismissed.
Issues: In what circumstances should a voir dire be held to ascertian the
admissibility or voluntariness of out of court confessions? Should counsel request
it or can the judge rule that it should be held?
Holding: Appeal dismissed.

Ratio: The confession must be voluntary and product of operating mind.
Voluntariness must be proved in a voir dire beyond reasonable doubt. However,
the accused bears the evidential burden of ensuring that there is some evidence
that the person was indeed a person in authority. Based on two principles: the
need for fairness and the need to avoid the coercion of the state. Concern for
reliability and fairness. The accused must believe that the person is a person in
authority and there must be a reasonable basis for this belief. If it was a person in
authority the statement must be voluntary. Usually it will be up to the defense to
raise the issue of volunariness. In extremely rare circumstances the judge can
decide of the need for a voir dire himself. If the person is not obviously a person
in authority the burden will be on the accused to raise the question of a voir dire.
If it is found that the statement was not voluntarily then the judge must instruct
the jury to look carefully at the weigh of the evidence. In this case no reason to
believe that father was acting on behalf of police.

1) Statement made by accused to person is authority must be voluntary and be
   the product of an operating mind.
2) Need to ensure reliability and fairness- no state coercion.
3) No absolute definition of a person in authority. A voir dire will be held to
   determine the volunariness where a person in authority is involved.
4) Other people could be considered persons in authority if the accused believed
   that they were acting on the behalf of the police etc – to be decided on a case
   by case basis.
5) Subjective test for person in authority but also objective.
6) Not usually under cover cops
7) The defence should raise the issue if they think that they are dealing with a
   person in authority.


                                                                                  36
8) Defense evidential burden of showing person in authority. Crown must prove
   beyond reasonable doubt that person not in authority or that statement
   voluntary.
9) Extremely rare the judge can raise it himself.
10) Only where evidence suggests person in authority.
11) If judge thinks that statement may not be volunatry then instruct jury to
   decide and give it weight accordingly.

Persons in authority will be “those formally engaged in the arrest, detetnion,
examination or prosecution of the accused”. The accused must believe that this
is the case. If he does not know that it is a policeman then it is not the case. If it
is a private citizen but the accused believes that he is a person in authority then it
will be the case.

L'Heuruex-Dubé and Bastarache- The dissent claim that the test for persons in
authority is too broad. Persons in authority will only very rarely be persons who
are not traditionally in this role- police, undercover agents, prosecutors.


R. v. Wells SCC 1998

Facts: Charge of sexual touching of two young boys. When the fathers found out
they went to talk to an RMCP officer and decided to trick the accused into
confessing. A father held knife to throat of man that he accused of sexually
touching his young boy. The accused confessed and the father punched him and
made him apologize. The accused was surprised that it took the father three
days to report it to the police. The defense raised no objection. Jury found him
guilty at trial. Court of Appeal decided that GD had some power over him as he
thought that he could arrest him.
Issues: Should the judge have held a voir dire?
Holding: Appeal dismissed HD and Bastarache dissenting.

Ratio: The judge can call a voir dire in rare cases and in the absence of a request
from defense counsel. The determination of a person in authority should be
made on a case by case basis and will be a subjective point of view form the
accused. In this case the judge should have asked about a voir dire to establish if
the accused believed that the father was a person in authority.

HD-




                                                                                    37
Illegally Obtained Evidence

R. v. Wray 1971 SCC

Facts: Comrie shot through heart in his Service Station, money was stolen form
the cash register. Charged with non-capital murder. Statement inadmissible
because not voluntary per trial judge. Wray told the police, after being beaten,
that he threw the weapon in the swamp. He directed the police to where the
weapon was found. Evidence that his was the murder weapon. The weapon
belonged to the brother who had noticed that it was missing. The trial judge did
not allow this evidence in and aquitted Wray. The Court of Appeal agreed with
him saying that he has a discretionary power to refuse evidence.
Issues: Should the evidence of the weapon go into trial?
Holding: Appeal allowed and new trial ordered- Cartwright, Hall and Spencer
dissenting.

Ratio:
Martland:
There is no discretion to disallow evidence if it brings the administration of justice
into direpute. There may be a discretion if it would be unjust to the accused.
Looked at the cases of Mohamed and Kuruma and decided that it only applies to
a limited number of cases where the prejudicial effect greatly outweighs the
probative value. Here we are talking about a matter of great probative value.

There is no discretion to exclude evidence because the judge thinks that its
admission would bring the cause of justice into disrepute. Relevance is the test.
Cannot exclude admissible evidence because unjust to accused. The evidence
may be unfortunate for the accused but not unfair. Only where extremely
prejudicial evidence with very little probative value can it be excluded however, it
is very narrow. The method by which it is obtained has no bearing on the case.
When a confession is confirmed by a subsequent finding of real evidence the
part of the confession that led to finding that evidence is admissible but no more
than that.

Judson:
Should not have a discretion. If the law must be changed it should be changed in
the Evidence Act and not by judges. Positivist approach to case.

Cartwright (dissent)
Cartwright- dissent- evidence that say that the gun is in the swamp is admissible
but not the evidence that he says that he threw it there. But because he was
beaten to say even where the weapon was the judge has a discretion to exclude
that evidence.
Hall- judge does have discretion.



                                                                                   38
 This is a case of confirmation by subsequent facts- there are several ways to
look at this evidence;

1) Subsequent facts are admissible but cannot be connected to the confession
2) Can say that it came from a statement made by the accused
3) Evidence of subsequent facts may be given and part of confession that
   related to them
4) Subsequent facts and whole of confession are admissible
5) Subsequent facts are not admissible.

Position in Canada is (3) R. v. St. Lawrence

The court decides that the fact that the accused told the police where the weapon
was can go into evidence but not the rest of the confession.

They then discuss the discretion of a judge to rule inadmissible evidence. There
should be discretion. He concludes that the evidence of the finding of the weapon
is in but the rest of the confession is out as it was not voluntary. There should be
discretion on the trial judge to then omit this evidence if it brings justice into
disrepute- it did in this circumstance.

Hall (dissent):
Do have discretion based on Monhamed v. The King, Kurma v. The Queen, and
Callis v. Gunn.

Spence (dissent): should not be able to testify against himself- do have
discretion.



R. v. Collins 1987 SCC

Facts: Appellant had been under police surveillance. The police approached her
in the pub and said “police officer”, grabbed her throat (to stop her swallowing
drugs) and threw her to the ground. He told her to let go of the drugs in her hand.
The search was found to be unlawful but the evidence was admitted anyway as
the judge was not convinced that it should be excluded under s. 24(2). The Court
of Appeal agreed and dismissed the appeal.
Issues: Should the evidence have been excluded under 24 (2)?
Holding: Appeal allowed (McIntyre dissent).

Ratio: Did the officer have reasonable and probable grounds for believing that
there were drugs on the premises? Because the judge did not establish this, a
new trial should be ordered, if the evidence would be excluded on the record as it
stands now. If the search was illegal then the evidence should be excluded if its
inclusion would bring the administration of justice into disrepute.



                                                                                 39
It would bring the administration of justice into disrepute if it was unfair to the
accused or judicial condonation of unacceptable behaviour on the part of the
authorities. This involves a community standard.

1) Fairness of trial

2) Seriousness of charter violation ______________
                                                      Admission of evidence
                                                      would not render the trial
                                                      unfair
3) Effect on the trial of excluding the evidence_______

The first of these criteria is the most important. Use the French less stringent
standard “could bring the admin of justice into disrepute”. This was a serious
violation of rights if there was only a mere suspicion. This would have to be
looked at in a new trial.

McIntyre dissented because he found based on all the same criteria that the
admission of the evidence into trial would not bring the admin of justice into
disrepute.
Shows how subjective all of this can be- seems so wide as to be a discretion
rather than a rule.


R. v. Stillman 1997 SCC

Facts: 17 year old arrested for murder of girl. He was the last person seen with
the girl. He arrived home at midnight shaken and wet with a cut eye and mud on
his clothes. He said that he had been in a fight but accounts varied. Semen was
found in the girl’s vagina and a bite mark on her stomach. The accused lawyer
informed police that he would not give samples of hair or blood or teeth marks.
When lawyer left accused was forced to give samples and pullout pubic hair and
give teeth impressions. The accused was interviewed for an hour and then blew
his nose in the bathroom. This was used for DNA testing. The trial judge found
that the hair samples, teeth imprints and buccal swabs had violated s.8 of the
charter but were nonetheless admissible. The tissue was rules admissible as it
did not violate s.8.
The Court of Appeal upheld the decision.
Issues: Should the evidence obtained in contravention of s. 8 be admissible?
Holding: Appeal dismissed (HD, McLachlin, Gonthier dissenting).

Ratio:
Cory: The taking of hair, buccal swabs and teeth impressions violated s.8. S.7
was also vioated- security of person. The taking of the tissue infrindged s.8. The
samples taken from the accused were not evidence independent of the breach of
the Charter. This was a serious breach of the Charter- both evidence taken and



                                                                                      40
Young Offenders Act. The admission of the evidence would bring the
administration of justice into disrepute. The tissue was not a serious Charter
breach and would not bring the administration of justice into disrepute.

Major thought that the tissue did not breach s.8 as he thought that he abandoned
the tissue and gave up the right of privacy to it.

Here the Court draws a distinction between conscriptive and non-conscriptive
evidence. Conscriptive evidence is that which comes from the accused in
violation of his right not to incriminate himself. There is a two part test for
conscriptive evidence:

A. Evidence will be conscripive when:
1. It is a statement
2. It is a bodily sample- some uncertainty about routine conscriptive evidence like
   breath samples (not conscrip) and finger prints (conscrip). Things that are really
   routine may fall into the rare circumatances where the fairness of the trial is not
   effected.
3. Its descovery involved “the use as evidence of the body” of the body of the
   accused- not any kind of use like emptying out pockets. Things like line-ups or re
   enactments. or
4. It is derivative evidence that would not have been discovered but for the
   unconstitutional obtainment of evidence in 1-3

B. The accused was compelled to participate in the creation or discovery of the
evidence

You can also have constriptive derivative evidence. This would be the gun in
Wray as it has no existence independent of the conscriptive statement.
Conscriptive evidence will almost invariably be excluded as it would be effect the
fairness of the trial (Collins criteria (1)) as it is obtained in violation of right against
self-incrimination.

If the evidence was discoverable in some other way- non-conscriptive then it
may go in as this would not render the trial unfair however, the evidence will be
treated as non-conscriptive and other two criteria will have to be looked at in this
instance . The Crown has to prove discoverability on the balance of probabilities.
Evidence will be thought to have been discoverable where it would have been
discovered by an independent source or its discovery was inevitable. These
other methods must non infringe the Charter in order to be counted as other
methods of discoverability.

You can also have non-conscriptive evidence (illegal search and seizure). This
will not be excluded automatically but you will have to look at the other two
criteria to see if there is a serious charter violation and the seriousness of the
charge. There is also non-conscriptive derivative evidence.



                                                                                         41
McLachlin (dissent) s. 7 does not apply- only s.8. The principle against self-
incrimination does not extent to real evidence. The tissue did not violate s. 8 as it
was abandoned. She is reluctant to interfere with the trial judge’s conclusion that
the evidence would not bring the admin of justice into disrepute as he could
weigh all the factors.

L’Heuruex-Dubé (and Gonthier): Search was authorized by common law search
power incidental to arrest.


R. v. Calder 1996 SCC

Facts: The accused, a police officer is charged with attempting to obtain sexual
services form a person under 18, extortion and breach of trust. The policeman
said that he had not met the prostitute which proved to be untrue. The Crown
sought to use it in cross-examination to challenge the credibility of the accused.
The trial judge excluded form case-in-chief the statement as it was obtained in
violation of the accused’s right to counsel. The Court of Appeal dismissed the
Crown’s appeal.
Issues: Does the purpose for which the evidence will be used have a bearing on
the considerations in 24 (2)?
Holding: Appeal allowed (McLachlin dissenting).

Ratio: (Sopinka) Use of the evidence even for the purpose of credibility is
admission of the evidence within the meaning of 24 (2). For evidence that has
been excluded there must be a change in circumstance in order to allow it in at a
later date. Here the Crown argue that the change in circumstance is that the
accused testified at odds with his previous statement. However, the Crown could
have anticipated that this would happen. They also say that the limited purpose
of admission was a change in circumstances. However, when the 24 (2) hearing
took place there was no question of allowing the evidence for a limited purpose
therefore the use in cross-examination was also forbidden. It was argued that the
use of credibility could not have been known at the time of the hearing.

The purpose is to protect the repute of the administration of justice. Conscriptive
statements in violation of Charter rights will almost always bring the
administration of justice into disrepute. Even though it was for a limited purpose
the effect of attacking the credibility of the accused would have almost the same
effect as the use of this evidence as part of the case-in-chief. The jury could be
instructed on how to use the evidence but it would still be prejudicial. It is not the
juror who will decide the question of the effect on the repute of the administration
of justice but rather the well-informed member of the community. It will only be in
very rare circumstances that 24 (2) decision will be over turned because of a
change in circumstances. LaForest says that it would be difficult to imagine any
circumstances where this would be the case.




                                                                                    42
Note: 24 (2) is about the way in which the evidence was obtained so it is difficult
to see how things that happen subsequent to that can change things. This is
particularly so if you adopt the justification that 24 (2) is about dissuading bad
police work and the Courts not condoning such behaviour after the fact.

McLachlin (dissent): You must decide “having regard to all the circumstances” if
the admission of the evidence would bring the administration of justice into
disrepute. The purpose for which the evidence is tendered may have an impact
on this balancing activity. There are two objectives- to get at the truth and to
insure the accused’s right to a fair trial. Getting at the truth may exclude the
evidence when there is concern for its reliability. It may also tip the balance in
favour of admitting the evidence. Same for the fairness of the trial- it is unfair to
allow evidence obtained in breach of the Charter into trial but where the accused
puts his credibility in doubt by inconsistent statements then it may be less unfair.
The trial judge should have allowed the statements.

R. v. Cook SCC 1998

Facts: Accused arrested in US following extradition order for murder in Canada.
Read Miranda rights and went before judge in US. Asked for lawyer but did ont
get one. The Canadian police informed the accused of his right to a lawyer in a
defective manner. The trial judge found that the statement was admissible for the
limited purpose of impeaching the accused’s credibility in cross-examination. The
Court of Appeal dismissed his appeal.
Issues: Does Charter apply to Canadians in the USA? Should the evidence be
used if it was obtained in violation of Charter?
Holding: Appeal allowed (L'Heuruex-Dubé not present in Calder, McLachlin
dissenting).

Ratio: The Charter does apply to Canadian policemen in the US. Notwithstanding
the international law that says domestic law only applies within the borders this is
sometimes not the case. It cannot be applied to foreign officers even where they
are acting as agents of the state. There was a breach of Charter rights as the
police mislead the accused as to his rights. The accused’s statement was
conscritpive (even though it was not self-incriminating as it was constituted of
denials). Whether or not the statement is incrimination should not make a
difference not should the fact that the Crown wished to use it for the purpose of
cross-examination.

Gonthier, Bastarache: More discussion of international law.

L'Heuruex-Dubé, McLachlin: Was the accused a rights holder? The Charter does
no apply in the USA. The Canadian police where acting under USA legal
authority. The breach was not serious and the accused was aware of his right to
counsel. His statement was voluntary and should be admitted in the interests of
finding the truth. In this case another witnesses statement was impugned by prior



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inconsistent statements so it would be misleading to let the accused stand
unblemished. The purpose for which the evidence will be used has a bearing in
this case- it should have been admitted.




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