THE LAW OF EVIDENCE

Page Methods of Adducing Evidence Formal Admissions Competency and Compellability Manner of Questioning Refreshing Memory and Recorded Evidence Cross Examination Evaluating Testimony Corroboration Vulnerable Witness Protection Real Evidence Judicial Notice Admissibility The Basic Rule Exclusionary Discretion Character Evidence In General Similar Fact Evidence Types of Character Evidence Character of 3rd Parties in Criminal Cases Character in Civil Cases Hearsay The Common Law Exceptions - Listed Principled Exceptions Prior Inconsistent Statements Admission of Opposing Party Litigants Admission in Furtherance of Common Design Declaration Against Interest (Non-Parties) Dying Declarations Declaration in the Course of Duty Prior Testimony Prior Convictions Res Gestae Prior Identifications Opinion Evidence The Rule Lay Witnesses Expert Witnesses The Ultimate Issue Rule Hearsay and Opinion Evidence Evaluation of Expert Evidence Statements by the Accused in Criminal Cases Formal Proceedings Right to Silence and Pre-Trial Confessions The Principled Approach 3 3 4 6 6 7 8 8 10 11 13 14 17 18 23 25 26 27 28 31 32 34 35 36 36 37 38 38 39 40 40 40 43 44 45 47 53 59

Detained Persons Illegally or Unconstitutionally Obtained Evidence Trial fairness Current Law The Law Illustrated Excluding Evidence Under S. 24(1) Charter Privilege In General Solicitor Client Litigation Privilege Spousal Settlement Negotiation Case-by-Case Protection of 3rd Party Records Public Interest Immunity Evidence About Other Evidence Discrediting Witnesses The Collateral Facts Rule Bolstering Your Witness Rehabilitating Your Witness Challenging Your Witness

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METHODS OF ADDUCING EVIDENCE

Formal Admissions
dont require proof o pleadings, failure to respond, agreed statement of facts, or orally

Obtaining Evidence by Viva Voce Examination

COMPETENCY AND COMPELLABILITY TO TESTIFY
Competency - qualified/capable of giving evidence - in crim cases, governed by the CEA o s.16 - adults assumed competent - inquiry only undertaken when competency is challenged must understand oath and be able to communicate evidence o s.16.1 - children under 14 yrs presumed competent, inquiry undertaken when proposed Ws competency is challenged children testify on promise to tell the truth, and there is not inquiry as to their understanding of the promise - competency is: o capacity to observe to recall to communicate o responsibility accept and be aware of the responsibility to tell the truth s. 16 - Adult Witnesses - where a persons mental capacity is challenged, the court shall conduct an inquiry to determine o person understands oath o can communicate E if both questions are answered yes, W can answer/ affirm if person doesnt understand oath - can give unsworn E if W cannot communicate E, W is incompetent - burden rests with challenger to prove incompetence - inquiry is generally conducted in front of a jury R v Marquard - clarified meaning of communicate the E. Not necessary to determine in advance that the child perceives the events in issue - not required of adults and should not be required of children. W can swear if o Appreciates the added responsibility of telling the truth in court W can give unsworn E if

o Simply understands the duty to speak the truth after promising to do so Competency of Child Ws - pre 2006 the s.16 inquiry was mandatory for all under 14, but now will only occur if childs capacity is challenged - court can raise the issue itself (s.16.1(5)) - E given by child by way of promise has same effect as under oath Competency/ Compellability of Spouses - trend towards the erosion of spousal incompetency - CL exception (also in s.4(5) of CEA) - spouse can testify if case involves spouses liberty, person, health o Extended to include crimes of violence or crimes against the spouses children - Cannot invoke the rule in a CL relationship - Once marriage is over, spouse is competent to testify (R v Salituro) - ABCA in R v Schell endorsed that compellability flows from competence - text agrees - Out of court statements fall under the spousal incompetency rule (R v Couture) - cannot do indirectly what not allowed to do directly o Cf with spontaneous utterance - Courts have said its not their place to extend the principle to CL, its for Parliament (R v Martin)

MANNER OF QUESTIONING
Examination in Chief - W is questioned by party that called her - Open ended Qs - No leading Qs Open ended Q - allows W to tell story, reduces influence of the lawyer - persuasive and credible because responses are natural - well organized, open-ended Qs are a strategically sound way to present E Leading Qs - Qs which suggest an answer or assume a state of facts in dispute - Binary Qs are not leading (R v E.M.W.) but note that the case was in regard to a child W - Leading Q can be calculated to manipulate the answer unfairly o Ex. Have you stopped beating your wife? - Leading Qs will be allowed in Exam in Chief at times o Introductory/undisputed matters Ex. I understand youre a plumber? o Identifying people or things o Contradicting anothers statements o Complicated/technical matters o When leave is obtained to Xex ones own witness as hostile 4

TJ can also remove ban on LQs if in the interest of justice o If W (due to age or mental challenge) is having difficulty answering Q o If Q is meant to refresh memory of W who is not recalling To ID a leading Q - does the Q suggest the answer?

SPECIAL PROCEDURES FOR CHILD WITNESSES - courtroom situation can cause trauma/ stress - Parliament has facilitated kids giving E by o Allowing public to be excluded o Support person o Testify behind a screen o A cannot Xex kid unless plaintiff says its OK o Publication ban o Videotape E Testifying outside the presence of the Accused - subsection 486.2(1) of the Criminal Code (CC) o child W or challenged adult W can testify behind a screen unless TJ says otherwise - 486.2(1) must be read with 486.2(7) which allows the A to watch via CCTV and communicate with counsel - presumption in favor of use for children with suggestion of an instruction to jury that no adverse inference should come of its use Videotaped E - s. 715.1 CC o if W is under 18 at time of offense, video E is allowed if W adopts contents of recording - 715 achieves 2 purposes o preservation of E and discovery of truth o less tragic/ stressful for the child R v L(D.O.) - SCC upheld constitutionality of s. 715. A argued it violated hearsay rule. Court held if W adopts it, E is no longer strictly hearsay what does adopt mean? o ABCA in R v Meddoui says W can adopt a statement even though W does not remember events if Remembers giving statement; AND Being truthful at time of statement o ONCA took view that W had to be able to attest to accuracy o SCC resolved in R v F(C.C.) - ONCAs approach was too restrictive. Reliability can be tested by Statement made in reasonable time Assess personality/ intellect of child Child must attest she was trying to be truthful Child can be Xex at trial THIS IS THE CURRENT APPROACH Any inconsistencies between child Ws present testimony and tape go to weight of E, not ADMY

Consistency does not equal credibility - W can be consistently lying Before using tape there must be a voir dire on ADMY o Review tape to ensure statements conform to rules of E o Court must be satisfied tape was made in a reasonable time - depends on circumstances of the case Judge has discretion not to admit tape if in the view that it would interfere with admin of justice (R v F(C.C.))

REFRESHING MEMORY AND RECORDED EVIDENCE (Pg 415-426)

prior to trial o W can use whatever means they wish to refresh memory o No post-hypnosis E because no reliable foundation and is based in novel science (R v Trochyn) During trial o Past recollection recorded 4 Wigmore Criteria reliably recorded fresh and vivid when recorded knew it to be true at the time original record used, if possible leading Qs can be used to ascertain Wigmore criteria then ask court for permission for W to review the notes the record is not E unless its incorporated into testimony can be viewed as an exception to the hearsay rul the record supplies details/ facts, the W vouches for the record its generally not cool for W to read record ver batim, usually counsel draws attention to important parts and asks Qs some courts allow doc to be admitted as E, others will not o Present Recollection Revived A review of a doc inspires actual recall of the events Record is merely a trigger so doesnt have to conform to requirements above Before allowing a W to review a statement that does not meet Wigmore criteria, TJ must examine risks Reliability Potential of wrong information Time passed If the risks are too high, the TJ will not allow the review (R v Shergill) Transcripts and depositions allowed - W should read silently and answer Qs without referring to the record Refreshing memory with unconstitutionally obtained E may be allowed if done prior to trial (R v Fliss, SCC, obiter)

CROSS EXAMINATION (Xex) - Pg 430-455

2 goals 6

o elicit positive testimony o discredit testimony Canada follows the English rule - can inquire into any relevant matter Method of Q o Can ask leading Qs, but becomes improper if W appears partisan to Xexs side

Xex on Credibility - counsel are free to impeach credibility upon Xex o can show bias, prejudice, corruption, attack character by raising prior acts elicit inconsistent statements challenging W capacity to be accurate putting contrary E to W show Ws experience is contrary to common experience - collateral facts rule o if Xex asks Q purely to credibility, W answer is final o cannot present E to contradict W on collateral matter Limitations on Xex - must have a good faith basis for putting a question to the W (R v Lyttle) - but Xex does not have to adduce E to support those suggestions - if Qs seem suspect, TJ can enter a voir dire to get counsels assurance that good faith exists o must be relevant material - Xex should be persistent and exhaustive, but not abusive - Limits on Crown in Xex of A o Cannot ask A about the truth of Crown Ws This puts the onus on A to provide motive, which undermines the presumption of innocence (R v Eldard) o Cannot as A as to otherwise inadmissible bad act E Protects A from introduction of bad character E by way of Xex (R v C(W)) - Failure to Xex - the Rule in Browne v Dunn o if counsel intends to impeach W by introducing contradictory E, the E should be put to the W o its unfair to W to adduce E that casts doubt in credibility without allowing W to address it - Impeachment of W using prior inconsistent statements o Must follow the proper procedure W must confirm present testimony Confront W with prior statement Put prior statement to W W asked to adopt prior statement - if W refuses then info goes to credibility (unless W is A, then the statement is an admission)

EVALUATING TESTIMONY
Assessing credibility / reliability 7

o Faryna v Chorny - story must be consistent with probabilities surrounding current conditions o R v B(R.W.) - credibility tested in light of all E presented o R v P - P (S. H.) - one is not judging character - demeanor is only one factor in assessing credibility and must be used with caution Testifying can be stressful Was testimony internally and externally consistent What is Ws interest in the outcome? Judges assessment of E o Mentions E of W as being externally consistent with E of A o E of A consistent with physical E

CORROBORATION
requires independent E that confirms other E before it is relied upon rules are becoming less common and less technical FORMER LAW: o Some types of E were unsafe Testimony of kids Testimony of accomplices Testimony of those alleging sex offences o Corroboration had to be Independent Confirm testimony Implicate the accused Circumstantial E only had to be consistent with guilt o The law regarding corroboration is criticized because of its technicality and assumptions of unreliability Some statutory corroboration rules still apply, but the trend is to construe them out of application So - subject to statutory limit, the objective is to permit TOF to evaluate info free of general assumptions about credibility

VULNERABLE WITNESS PROTECTION

the Child Witness o Parliament has introduced measures to make it easier for kids to give E Exclude public Support person Testify out of room or behind a screen A cannot personally Xex the child Publication ban about identity Video E is ADM o Testifying outside presence of A Ss 486.2 CC Allows testimony behind screen or outside room Applies to all under age of 18 486.2(7) A, TJ and jury can watch via CCTV A has no right to face accuser, and SCC upheld that this was constitutional (R v Levogiannis)

Its been argued that screen undermines presumption of innocence ONCA has said judge should tell jury that no adverse inference can be drawn, the SCC has approved but the instruction is not mandatory 486.2 applies to adults at TJs discretion o Video E S. 715(1) Criminal Code W is under 18 at time of offence, makes a video in reasonable time after testifying W can adopt contents of video unless TJ rules it would interfere with admin of justice rule aids in preservation of E and discovery of truth preserves early account of E best account without outside influence preserves recollection less traumatic for child child doesnt have to recount incident provision does not violate As right to fair trial because of hearsay rules once adopted, the video is the same as in court testimony (R v L(D.O.)) hearsay concerns arent relevant because W is present and can be Xex on statements R v F(C.C.) SCC - Xex isnt the only guarantee of reliability if: - statement is made in a reasonable time - TOF can watch to determine demeanor/ intellect of child - Child can attest she was being truthful - Child can be Xex as to whether she was being truthful Any inconsistencies between the current memory and the tape go to weight, not ADMY. Prior to using the taped E, vior dire on ADMY of tape must Conform to rules of E Tape made in reasonable time (which depends on the case) TJ has discretion about admitting the tape, and will consider Form of Qs on the tape Interests of those involved Quality of tape Content Ability to edit inappropriate content Other statements made by W Visual info that could prejudice A Trial by judge or jury? Amount of time passed

Real Evidence
E can be linked to occurrence E can be demonstrative

Views
May be impractical to bring E to court, so court may go to E Value must be weighed against inconvenience and disruption Must be taped and court reporter present

Chambers v Murphy - TJ rejected drivers claim that his view was obstructed after visiting accident site. ONCA said judge relied on his own E, which is no good. MBCA rejected such an approach, saying its illogical to ask judge/juror to ignore own observations. This is the approach advocated in the text. o Photos and tapes ADM depends on Accuracy Fairness/ ability to mislead Verification by someone able to do so R v Maloney (No. 2) - 2 NHL players fought. M slammed Ts head into ice. M charged with ABH. Crown sought to introduce tapes of the game. TJ refused to admit some tapes because they were out of sequence or in slow-mo - distorting the true reality and speed of what occurred R v Nikolovski - A charged with robbing a store. Camera caught it on tape. V could not ID robber from tape, judge could. Tape was of good quality. However, the tape wasnt associated with a W. SCC said a tape can stand on its own as a silent W, once its authenticated. Video re-enactments

R v Latimer - L walked through killing his daughter (as a confession). Theres a danger of prejudice if just any party is allowed to dramatize their own version of events. Courts have a case by case analysis for re-enactments, weighing PV against PJ. Emphasis on undisputed facts is essential. Documents Can be authenticated many different ways Guarded by the best E rule o Original doc must be tendered if contents are to be proven

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o Today, rule seems to be confined to where someone has the original but does not want to produce it Flexibility is urged - best not to hamper inquiry by over use of the rule Computer generated E Records o Many are ADM under the business records exemption (s. 30(3) CEA) - if adducing a copy of certificate of authenticity is required o Time of input of record is critical, not time of retrieval o W called to introduce record must have knowledge of how records are kept, secured, retrieved o Reliability of records shown by the fact that a business relied on them to conduct affairs

R v Gratton - Re the ADMY of a printout from a sensing module of a truck driven by A. Accident killed 5. W could only explain printout, didnt know how module worked or about its reliability, or its margin of error. HELD that without expert evidence about the reliability of the module, the printout was INADM. Computer rendered 3-D models o Counsel must show: Expert testimony is relevant and model relates to it Expert is familiar with model Model is fair and accurate Model will aid TOF in understanding expert E R v Suzack and Pennett - computer model showed bullet entry/exit paths - model was less graphic than photos. So long as expert can attest to model accuracy the programmer does not have to be called. o Computer recreations of events must be assessed using Mohan criteria for novel science Can be excluded if PJ outweighs PV o Powerful impact o Ex. Autopsy photos - may not be included because gruesome and of no PV Cf with photos in R v Muchikekewanape - autopsy photos had PV because they showed the extent of injuries discussed by experts with contrasting opinions E must be both relevant AND ADM Forensic tests can be conducted to prove real Es integrity Onus is on the Crown for establishing a foundation for the E o continuity

Judicial Notice
certain facts dont need to be proven 11

dispenses with need to prove uncontroversial facts or things beyond a reasonable doubt notice is taken of facts that are o so generally accepted that theres no debate among reasonable people o capable of immediate and accurate demonstration by resort to sources of indisputable accuracy what is general knowledge is based on the community where the trial is held 2 rationales for judicial notice o expedite the trial process o need to protect the credibility of the judicial system facts so indisputable that the rep of the court would be question if they were not recognized once notice is taken, the matter is indisputable (R v Find, R v Spence) adjudicative facts o who did what, where, when, how and with what motive and intent o notice can be taken of facts previously found by other courts

R v Paszczenko - held that based on hundreds of cases courts can take judicial notice of the accepted elimination of alcohol rate and the plateau effect regarding the elimination of alcohol. Legislative facts o Relevance to reasoning and law making process, can involve broad considerations of policy o Used when court is asked to make law o Seen in decisions regarding the constitutionality of a law, etc. Social framework facts o Refer to social science research that is used to construct a frame of reference for deciding issues critical to the case o Less impact on the adversarial function o Judicial notice of social context facts should be done with caution More likely done with widely understood facts than novel facts o Social context info must be linked to the evidence in a particular case Procedure for taking judicial notice o can be asked at trial o TJ can do so on own initiative o Can also be raised/taken by an appellate court

R v Spence - the test for taking notice was based on 2 related variables: the indisputability of the fact sought to be noticed and the centrality of the fact to the issues. The more central the fact, the more stringent proof is required. o With legislative and social facts, the court urges reports and studies to be introduced through expert Ws who can be Xex about the value and weight of the studies. Judicial notice of laws o Notice is taken of the laws of Canada and the provinces o Subordinate legislation must be proven through certified copies

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ADMISSIBILITY
The Basic Rule
info can only be admitted as E where it is RELEVANT to a MATERIAL issue in the case o relevance and materiality are necessary, but they arent sufficient for ADMY

R v Truscott ONCA - relevance makes a fact more or less likely. Material evidence is directed at a material issue in the proceedings. Materiality - can be discerned by asking what are they trying to prove? and if the thing sought to be proved is a matter in issue - Primary Materiality o Primary issues determined by the pleadings in the case o Evidence that pertains to Laws that allegations turn on Procedural rules These are primarily material and the law of E is more receptive to its admission - Secondary Materiality o The court has to assess the quality of the material E o Other E can assist in this assessment o Secondary materiality describes E that is about other E o Strict limits imposed because of concern about time and unnecessary complication of matters o Xex is the main tool for adducing secondary material E - Reception of Immaterial E o Some will be admitted - this is because one cannot always know in advance what the proposed use of the E is Relevance - a matter of logic - does E assist in proving the fact sought to be proven - Direct E o Establishes a material fact without any need for an inference to be drawn Ex. I saw that man with a gun - Circumstantial E o Proves events/ circumstances from which the occurrence can be inferred

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The standard of logical Relevance o Relevant E has a tendency to make the fact more likely than it would be in the absence of that E o The threshold of relevance is not that high Relevance and context

Monteleone v R - Crown watned to prove that A told the cops he put a hot vacuum next to boxes. Alone, this suggests a fire that was an accident. Other E proved the vacuum did not overheat - together, the 2 items gave rise to inference that A lied about starting the fire. Relevance may only become apparent because of other E. o Also, apparently relevant E may be proven irrelevant when taken in context R v Ferris - A overheard saying I killed D. this would seem relevant, but what was overheard was mumble I killed D mumble - without knowing the surrounding words, the statement is irrelevant. What about human logic and experience? o Many passages suggest TOF should be able to access all info they mind find useful - if an inference isnt speculative or unreasonable, the relevance standard is met o Judges can exclude E as irrelevant by relying on courts and studies saying some E appears probative, but its not

R v Seaboyer - rejected the premise that past sex experience of a complainant is relevant to credibility or readiness to consent. evaluating the probative value of E o once E is found to be relevant, its up to TOF to assign it weight o how believable is the E? credibility considers the honesty of the W If W is corrupted or has motive to mislead, credibility will decrease Reliability is about accuracy Can be scientific, or relate to a Ws inaccurate observations, memory problems, or inability to communicate o How informative is the E? How live to the issue is it How cogent is the E in proving the thing it is offered to prove? Direct E is informative I saw him kill her - all that affects weight is credibility circumstance, the strength of the inference helps determine weight as well ex. Fingerprint carries more weight than a common fibre o SO: believability + informativeness = Probative Value The Legal Relevance concept

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o View that legal relevance is not just about logical connection between E and fact in issue, includes an evaluation of whether the E is sufficiently probative to justify admission o It is cleaner to treat logically relevant E about material issues as ADM subject to the rules of exclusion and exclusionary discretion THE EXCLUSIONARY DISCRETION - judges have discretion to exclude relevant and material E where its admission leads to PJ - must weigh the value vs. the costs (practicalities, fairness to parties and Ws) - because of full answer considerations defense E can only be excluded where risks of PJ outweigh PV - there is concern about too much discretion o implication of choice, and its dangerous to be ruled by choices of people rather than the law o 2 types of judicial discretion exists CRIM CASES - can exclude E obtained in circumstances that would result in unfairness at trial (unfairly/illegally obtained E) CRIM, CIVIL and ADMIN CASES - can exclude where benefits of ADM do not justify the negative effects Cost benefit analysis o At common law - defense E only excluded where PV is substantially outweighed by the PJ it could cause o Protection of innocent and right to a full answer must be protected and this depends on the ability to call E o No inclusionary discretion - E doesnt satisfy rules of ADM, TJ cannot receive it o Rules can be relaxed, applied more loosely to reduce risk of convicting innocent people R v Ferderhof - raised possibility that CH may allow technically INADM E, if doing so would remedy a state action that made a trial unfair

Exclusionary Discretion and Weighing PV - TJ can assess how informative E is, but there is controversy as to whether he can assess believability (credibility and reliability) - Ex. Can a judge consider credibility and reliability when deciding whether to withdraw a case from the jury when the Crown has not presented a prima facie case? o SCC has determined the court must assume everything to be true credibility and reliability are for the TOF to decide R v Duguay - TJ erred when rejecting relevant E because he had concerns about reliability of W. Cf R v D(AS) - ONCA held that a TJ must take credibility into account when assessing PV (re s. 276 CC - rape shield)

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R v Handy - SCC said when ADMY is intertwined with PV, credibility is a factor TJ can consider Es value is based on o Strength of inference o Credibility (if the E is testimony) o Reliability

The concept of Prejudice - ex. Graphic photos can prejudice a D by creating sympathy for P, distort accurate fact finding - prejudice can describe how E can distort finding of fact and the fairness in allowing E to be presented - PJ can include o Undue use of time o Depriving other side of a chance to respond because of surpise o Creating distracting side issues o Assault dignity of W o Potential to undermine result - The balancing o Probative Value (believability and informative); v o Prejudice (Costs) R v Powell - P charged with robbery. Gun never discovered. W couldnt describe gun well. P had a handgun sometime later. Crown tried to argue this was circumstantial E because P, like the robber, had access to guns. TJ held that linking P to a possibly unrelated gun was too prejudicial to admit given the limited PV. theres no bright line that will yield a single right result its a discretion and TJ decisions are informed by legal principles and are entitled to deference when PJ is too great, exclusion will occur in its entirety - if jury has already seen it theyll be told to disregard it

NARRATION - when a W is narrating a story they will likely include facts that dont meet the tests of materiality and relevance - generally tolerated as harmless, but can be prejudicial R v Smith - Events could not be described without narrating the daily criminal pursuits of the A charged with murder. As a result, the jury learned about discreditable conduct that would have otherwise been INADM. judges must avoid relying on such narrative for improper purposes and instruct jurors to do the same

STANDARDS OF ADMISSIBILITY OF E

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not the same as standards of proof - these relate to whether facts are proved rather than INADMY testimony where no exclusionary rule is in issue o must comply with basic rule relevance and materiality exhibits (real E) o generally admissible if it is relevant and authentic Rules with factual triggers o Where one or more factual preconditions must exist before the rule applies o General rule is that factual trigger must be proven on BOP o Establishing facts BRD May be applied when the E may have a conclusive effect as to guilt Statements made by A to authority figure - before can be ADM Crown must prove BARD that statement was voluntary Where finding of a presume fact is conclusive of guilt, Crown must establish basic fact BARD Basic common law rules of exclusion o Some rules (opinion, hearsay, character E) do not have factual triggers - they are matters of legal characterization Statutory modifications o Sometimes statutes alter the standards of proof for ADMY - where they differ from the common law, they govern.

Character Evidence
proof presented in order to establish capacity of an individual to do something can be established circumstantially by proving acts of person at other times can also be proved through statements of opinion rules of E are guarded about this type of E o great risk of PJ rules vary depending on o civil/criminal proceeding o party/non-party o primary issue (what happened) v 2nd issue (credibility) o crown or accused calling the E this deals with character E introduced as circumstantial E to help determine what happened

Character and relevance - info presented to lead to conclusion about As behavior on certain occasion o NOTE: people dont act consistently - Generalizations are dangerous and judgmental - Character and Habit o must distinguish between the 2 o where a habit can color the impression held by others of the kind of person the subject is, rules of character E determine ADMY

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R v B(L) ONCA - if crown seeks to lead E about practices of A, must ask if its discreditable to the A. if its not, character E rules dont apply Discreditable Conduct E called by Crown in Criminal Case - presumptively INADM - onus on the prosecution to establish on BOP that PV outweighs potential prejudice - assessing PV o consider strength of E connectedness of E to the Qs in issue the extent to which it proves matters at issue (materiality) - assessing PJ o moral prejudice - E will be used to draw the prohibited inference that A is the kind of person to do the bad acts o reasoning prejudice - risk that TOF will be distracted from reason because of inflammatory nature of E, or TOF will be confused about which E relates to crime and which relates to similar act. o TOF may focus on whether similar act happened instead of whether crime happened. o A would be unable to respond to allegation that similar act occurred. The prohibited inference - primary rule of exclusion - character E called by crown which shows only that A is the kind of person likely to commit the act - bad character is not a crime - proving someone is a bad person creates nothing but moral prejudice (Handy) - could cause TOF to convict because of a reaction to the A, not proof of committing the act - propensity reasoning based solely on general bad character of A is prohibited

THE SIMILAR FACT EVIDENCE RULE

Scope - applies where Crown is presenting E to establish guilt of A that may reveal the bad character of the A - applies whether conduct is criminal or not - rule is triggered by discredit, not similarity - the rule is stated in R v Handy o sim fact E is presumptively inadmissible o onus on prosecution to establish on BOP that PV > PJ o the Handy decision resolved years of confusion in Canada Development of the rule - the classic approach o determine ADMY by identifying permissible inferences to avoid the impermissible o relied on precedent o used labels to develop blanket ADMY

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o Handy clarifies distinction between general and specific propensity reasoning and articulates standard of proof How does the rule avoid general propensity reasoning? o Applying a strict test - E that only proves a general propensity will always have greater potential for PJ than PV o Handy emphasizes the E must be evaluated in relation to a particular issue - general disposition of A is not a live issue, therefore the Crown must ID an issue to which the E relates Categories of Cases o What is required to meet the Handy rule depends on nature of issue to be resolved Ex. In identity cases, where crown tries to ID A as the perpetrator by proving A committed another act, then: Must be E connecting A to other act Other act must bear enough similarity to crime charged to support the conclusion that A committed both crimes If those to factors are missing then PV does not outweigh PJ o Cf with animus cases No high degree of similarity required between acts if trying to show A had a negative animus toward the complainant o Key to applying the Handy rule Understand the concepts of PV and PJ

APPLYING THE HANDY RULE: Step 1 Weighing PV - PV of sim fact E can be gained by considering o Strength of E that similar acts happened o connectedness between sim fact E and the Qs in issue o materiality of E - strength of E that Sim Facts occurred o the more believable the sim fact E is, the more PV the E has o where sim fact E depends on credibility of a W, TJ considers whatever testimony is reasonably capable of belief before admitting the E o Acquittals and Stays Prior prosecution will ordinarily be impermissible to use as sim fact E (estoppel) The Ollis Exception O was acquitted for cashing a cheque when there was no $ on the account Made same claim when he was prosecuted a 2nd time for same thing 2nd event occurred after 1st criminal complain, therefore unlikely that O could honestly believe there was $ in the account SCC endorsed Ollis Exception in R v Mahalingan - Crown can lead E if the FACT of the prior charge is relevant The Arp Anomaly Applies to multi-count indictments If similar fact rule is satisfied, Crown can rely on E re one charge as similar fact E helping to prove another charge 19

o Collaboration If PV depends on 2 or more people colluding re false statements, this undermines the PV Where there is an air of reality to the prospect of collusion, it is not incumbent of the defense to prove the collusion More than proof of opportunity to collude is required o Extent to which E supports desired inferences Prior conduct linked to A How informative is the sim fact E o Connection to the A If there is insufficient E to connect the A to the sim fact E it can yield no logical inferences R v Sweitzer - Crown wanted to use 11 allegations with same MO as sim fact E. none of the incidents could prove Ss ID but there were 3 other incidents S could be linked to. Since MO was similar the 3 allegations could be used as sim fact E that S had committed all 14 similar attacks Its enough if E linking A to the sim act establishes more than a mere possibility that A did it Connectedness to a properly defined issue

R v Handy - V alleged A sex assaulted her in a painful/degrading way. Crown argued that ex wifes testimony re violent acts was relevant to Vs credibility. Crown said E would help establish credibility by showing that A took pleasure from sex partners pain. Held that E cannot help credibility of V. Crown wanted to use similar fact E to prove actus reus. o since it is the improbability of a like result being repeated by chance that has PV, its the similarity between instances that has value o court IDs 7 factors that assist in finding similarity proximity in time extent of similar detail number of similar acts circumstances relating similar acts distinctive features of incidents intervening events any other factor to support/rebut o in Handy the acts were sufficiently similar and connected to yield PV, BUT PV diluted by dissimilarities: choking wasnt relevant because it wasnt sexual incidents with ex wife were in a long term relationship, V was a one night stand o E gave rise to inference That A got pleasure from causing pain o But 2nd inference - that A would force himself on someone was more problematic Neither inference was allowed because the E wasnt sufficiently connected to the facts of the offence to yield PV on WETHER THE ACTS OCCURRED

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R v Shearing - S denied he had sex with G, sisters who lived at cults residence with their mother. S claimed the acts with 11 other complainants were consensual. Crown wanted to rely on all other allegations as sim fact E to prove the AR for each allegation. Held that this was allowed - the connectedness of acts to each other was examined and the court found that there was sufficiently similar MO to support the inferences sought by the crown. o where the PV of E relies on similarities its important not to act on generic similarities increase the risk of the prohibited inference Discreditable Conduct that is Directly Relevant o Crown cannot prove the offence without revealing that A has engaged in other discreditable conduct Ex. Crown theory was that A ordered murder because he suspected he would be ratted on for drugs/ stolen goods (R v G(SG)) Discreditable Conduct Establishing Mens Rea o Can have PV in demonstrating knowledge of the A

R v Francis - A charged with false pretences. Claimed he thought the crystal he was selling was a diamond, as he had said. Proof that he had sold crystal as a diamond before weakened his defence of mistake of fact. R v Stewart - E that D had propensity to sexualize clients helped rebut his claim that touching was accidental. Discreditable Conduct Establishing AR

Makin v AG for New South Wales - E that a number of babies buried in property linked to the Makins was admitted to establish baby HM had been killed. Prospect HM died of natural causes was significantly reduced by E of other babies. Cf R v Watkins - Crown attempts to prove AR with sim fact E, fails because the fim fact E was too different to support the inferences. Crown said deceased was strangled with a phone cord around the neck, and this was supported by E from a girlfriend saying A had tied her wrists with a phone cord. discreditable conduct and credibility of complainant o similarities in allegations may defy common sense to think they are accidental o independent allegations can be used to support an allegation if there is a network of features shared that can undermine chance ex. Allegations against a teacher that he groomed each student prior to exploitation, through extra affection, etc. o credibility depends on ability to discount collaboration/contamination between Ws discreditable conduct re alleged V

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o crown often permitted to prove violent nature of prior relationship between V and A R v McDonald - V allowed to recount specific uncharged acts of violence A had done. ONCA held that these events told about nature of relationship and provided context. Such E does not support inference of bad personhood, but supports inferences that A was predisposed to act violently towards V. o such E still presumptively INADM Materiality of E - E must refer to live material - if fact is admitted, E is immaterial - Confirmation by other E o Inquiry is into PV of inference yielded, not PV of Crowns case, therefore PV of sim fact E is not enhanced because other E supports same inference R v Arp - Crown presented sim fact E saying similarities between MO of 2 killings showed same person did both. If A was linked to one, he was linked to both. Crown also had other E linking Arp to killings. SCC had to evaluate PV of sim fact E independently of other E.

THE HANDY RULE: Step 2 Assessing prejudice for the purpose of admissibility - consider o moral prejudice - risk of convicting A because hes a bad person o reasoning prejudice - distracting/ using up juror time, danger that juror will have trouble separating charges from sim fact E - Moral Prejudice o Directions by judge do not eliminate the prohibited inference (R v Last) o Sim fact E that is morally repugnant will therefore require a high PV to overcome its prejudicial impact o Risk of moral PJ is said to be modest where sim fact E involves prior acts of aggression against V - because such E would be so closely linked to the charge that its unlikely that a jury would make the prohibited inference - Reasoning Prejudice o Distraction can be Sentiments of revulsion Risk court is caught up in conflict about the sim fact E R v MacDonald - sim fact E not allowed because the E was more complex/ controversial than offence charged. o Danger the TOF may mix up matters of sim fact E with matters of the decision Factors reducing the impact of Prejudice o Risk considered less in judge trial than jury trial (but not eliminated)

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o Editing E, paying attention to other ways in which potentially prejudicial E will be admitted Factors enhancing impact of prejudice o When sim fact E bears whole burden of connecting the crim charged very high degree of similarity is required

THE HANDY RULE: Step 3 The balancing - remember that sim fact E is prima facie inadmissible - when PV increases, PJ does not necessarily decrease (Handy) - no exact right/ wrong answer, therefore the decision of the TJ is entitled to substantial deference - Mandatory direction o Tell jury to avoid the prohibited inference o Tell jury they cant punish A for past conduct by finding them guilty of charge o Direct jury as to appropriate use of E o Must not use sim fact E unless absolutely sure it occurred o Describe frailties of sim fact E - Limiting instructions are essential, without there is almost always a successful appeal A SPECIAL CASE - Proving ID through Sim Fact E - 2 Qs must be answered o does the similarity between the 2 acts show it is likely they were done by the same person o is there E linking A to the sim act? - If yes, can go to jury and the jury can infer that the unlikelihood that A would be implicated in 2 very similar acts is E of guilt for both - Problem: multi - count indictments o Most often each charge arises out of 1 event o In these cases, can use E presented with one count to dispose of others o BUT - sometimes different counts arise from different events, leads to risk of PJ because TOF will learn about separate allegations of the A o 3 options A applies for severing If Sim fact E is allowed, application to sever will likely be denied If sim fact E is not good, severing may be allowed Charges that arent severed Rely on jury directions to reduce prejudice Evidence is sim facts and is allowed Train jurors Provide complex directions

CHARACTER EVIDENCE
Character E called by A v co-A

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can allege co-A is more likely to have done the act, but must put own character in issue if doing so A can rely on the prohibited inference against his co-A NOTE: A cannot rely on charges from which the Co-A was acquitted Judge still has discretion to exclude character E if Co-A prejudice is too great

Good Character E called by A - reputation W - expert testimony - As testimony - Sim fact E - Opinions of those who know A - Calling such E allows crown to bring E against the character E of A by: o Xex of A and character Ws o Rebuttal Ws o Proof of previous convictions o Expert W o Admissible sim fact E - Such E is generally considered relevant o Common law is guarded about this E because it takes a long time to present o Strict limits on how it can be used Presenting Good Character E - Reputation E o W who knows A can testify about As reputation o Reputation must be relevant, ex. Morality in a sex offence case, peacefulness in a violent case, etc. - Opinion o Character W must confine himself to communitys perceptions of the A, and not state own opinion o Court will occasionally ignore this limitation o Reliable expert W can state that A is less likely to commit an offence if TJ is satisfied that doing so would be of material assistance o E of this type often fails because there are rarely reliable correlations between character types and incapacity to commit certain crimes - Testimony of A o A can assert his good character o Opens the door to Crown to rebut the testimony o A puts character in issue when he suggests that he isnt the type to commit such an offense o If a clear inference suggests A would not commit such a crime, his character is in issue R v H (E.D.) - A said I did not and I would not do that. This was sufficient to put his character in issue. o However, A does not put character in issue by denying, explaining a defense or repudiating part of a crowns case

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o Xex of other defense Ws cannot do the same, this would be a sneaky way of getting character in issue sim fact E indicative of innocence o allowed as long as the E is relevant in supporting the disposition claimed o and as long as it is sufficiently situation specific

Good Character E and Crown Rebuttal E - Crown can refute the As assertion of good character o Xex Crown can xex A or W giving good character E in a fashion that suggests A does not have good character Dangerous for A Reputation is hearsay by its nature, therefore hearsay can be used to rebut it. Ex. Can ask W if he has heard rumors about the A o Rebuttal Reputation E Can call W to show As reputation is not good o S. 666 CC Allows crown to put As previous convictions in E if As character is in issue o Expert E o Sim Fact E ADM sim fact E can be used for both the purpose it was admitted AND to neutralize good character E o Prior Inconsistent Statements R v Dussiaume - A said he was happily married in order to invite the inference he was unlikely to sex assault a student. Crown called 3 people who spoke of marital problems. ONCA held this was permissible. o Testimony about acts which dont satisfy the similar fact E rule Where A testifies to specific acts intended to show good character, TJ has discretion to allow Crown to call W to contradict those acts - but PV must still outweigh PJ

THE CHARACTER OF 3RD PARTIES IN CRIMINAL CASES

3rd parties dont benefit from the presumption of innocence o ex. In Self Defense cases, Vs reputation for violence is ADM E about discreditable propensities of non-V can be led when A says the act was committed by someone else with the opportunity to do so TJ will retain discretion to exclude E called by A if PJ outweighs PV Can use Handy factors to determine ADM

Rebuttal E and character of the A - A who points at a 3rd party suggesting they have propensity to commit a crime will generally be taken to have put character in issue (but not always - R v Wilson)

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Even if A opens door to bad character E it doesnt mean hes guilty, any E led simply neutralizes any suggestion that he isnt the type to commit the offense

3rd Party E called by the Crown - done to rebut character E raised by the Defense R v Dejong - BCCA held that it is not ok to lead E where it would suggest that because of the peaceable nature of the V, the A must have been the type to commit an offence COMPLAINANTS IN SEXUAL OFFENCE CASES - the twin myths o that V was more likely to consent because of sexual history o that sexual history makes the V less worthy of belief - s. 277 CC o sexual reputation E is INADM on the issue of credibility - s.276(2) CC sexual reputation E is INADM about consent o even if proof of sexuality is not going to be used for inadmissible purposes, it is still INADM unless TJ rules that PV outweighs PJ - therefore one cannot say that the complainant was the type to consent/ or should not be believed - s. 276(2)(c) - excludes E that does not have significant PV, and even then the E will be excluded if the PJ outweighs the PV - s. 276 (3) - provides a non-exhaustive list of factors for the court to consider R v Crosby - V denied she went to home of man accused of assaulting her so she could have sex with one of them (she had told the cops she had done this earlier). HELD that A was allowed to make proof of prior inconsistent statement. Statement was relevant to credibility, not because if its sexual nature.

CHARACTER EVIDENCE IN CIVIL CASES

unless character is in issue, or the civil case raises allegations of criminal activity good character of the parties of primary materiality o proof of good character is generally inadmissible bad character of the parties of primary materiality o governed by the sim fact E rule

Kotylak v McLeans Agra Centre Ltd - Product liability case. E offered by other farmers that like the Ps crops, theirs were damaged by Ds product. TJ applied sim fact E rule, but this wasnt necessary. Rule should only be consulted where E implies one party has bad character. its common for courts to proceed on basis that the rule is the same in crim and civil cases the text says this shouldnt happen, even if the rule is applied more liberally in civil cases crim cases, the prohibited inference operates to exclude relevant E because of fear of wrongful conviction and presumption of innocence 26

o theres no need for this in civil cases, because the presumption of innocence does not operate o also, sim fact E rule only applies to crown in crim cases Lord Denning, Mood Music Publishing v DeWolfe ltd o ADM in civil case is determined without regard to the prohibited inference, simply determine relevance, and if PV is outweighed by PJ PJ assessment o Emphasize focus of civil litigation Unfair surprise, consumption of time, position to respond

HEARSAY EVIDENCE AND EXCEPTIONS TO THE EXCLUSION OF HEARSAY

an out of court statement offered to prove the truth of its contents 2 defining features o statement adduced to prove its truth o absence of opportunities to Xex declarant From R v Khelawon (SCC)

THE RULE: Absent an exception , HEARSAY EVIDENCE IS INADMISSIBLE without maker of statement in court, one cannot inquire about o perception o memory o narration o sincerity o mistakes and lies may go undetected

Statements offered for their truth - an out of court statement offered as proof that it was made is not hearsay o the person saying the statement was made is in court and can be Xex - relevancy (apart from truth) o TJ must tell jury about limited relevancy o Juries should not have to determine proper or improper uses of E Subramaniam v Public Prosecutor - A charged with possession of ammo. Defense was duress. A described how he was captured by terrorists and was then stopped from relating conversations that occurred. The TJ said it would be hearsay. HELD by the PC that TJ erred - relevancy was that threats were made in conversations, not that threats were TRUE. Such E is not hearsay. R v Collins - Officer arrested a woman because of what he had been told about her by other officers. He was not allowed to testify about what he had been told. HELD

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that a new trial was required, because the officers actions were reasonable based on WHAT he was told, not the TRUTH of what he was told. Prior Statements of Witnesses - Absence of Contemporaneous Xex - traditional law of hearsay extends to out of court statements made by W who testifies when that out of court statement is tendered for truth (R v Khelawon) - if a W repeats or adopts that out of court statement, no hearsay issue arises - hearsay arises when W recants or cannot recall earlier statement o TOF is asked to accept earlier statement

The Exceptions
Admissions by a party Prior identifications Prior testimony Prior convictions Declarations against interest by a non-party Dying declarations Declarations in the course of duty Res gestae Declarations as to reputation, pedigree and family history Statements in ancient or public documents Admissions by parties in furtherance of a common design Aboriginal, expert

Hearsay Principled Exceptions

Can be ADM under an existing exception or on a case by case basis according to necessity and reliability Necessity o Reasonably necessary in order to obtain the Ws version of events Reliability o Threshold reliability is determined by TJ if statement has sufficient reliability to allow the TOF a good basis for evaluating truth E used to only be ADM under an existing exception o pigeon holing Wigmore advocated for a more principled approach o Adopted by SCC in R v Khan (1990) o R v Smith (1992) confirmed the principled approach had general application o R v Starr (2000) existing hearsay exceptions are still relevant Based on Starr and affirmed in R v Khelawon a framework for admission of hearsay E was established FRAMEWORK o E is presumptively INADM unless it falls under an exception traditional exceptions are presumptively in place o A traditional exception can be challenged on the basis of principles of necessity and reliability, and can be modified o In rare cases, E that falls within an existing exception can be excluded if necessity and reliability are missing

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o If E does not fall under an exception, it can still be admitted if necessity and reliability are established at a voir dire NOTE: even if E is acceptable under traditional or principled approach TJ can still refuse to admit if PJ outweighs PV Admitting E under a hearsay exception does not trump other rules of E o Ex. A hearsay statement that contains INADM opinion cannot be admitted Where hearsay is tendered by A, TJ can relax rules of ADM to prevent a miscarriage of justice

The Hearsay Rule - The Principled Exceptions

Necessity - reasonable necessity - the key is the unavailability of courtroom testimony o W may be available, but time may cause testimony to be incomplete or W may change testimony - Wigmore - necessity also involves expediency or convenience Khan - disciplinary hearing. Child was 8 years old now, could not provide full account. It was reasonably necessary to admit mothers out of court statement, but not reasonably necessary to admit statements made to others. must make reasonable efforts to get direct E from W generally, if W is available and there is no E of trauma to W if called, W should be called there is no presumption of necessity

R v Nicholas - P in a break and enter sex assault was not called to testify. A psychologist was called and testified that P had PTSD, and this established necessity for admission of out of court statements. there is no rule that E need be called in all cases - necessity may be selfevident test of necessity may be met by fact of age of W, or from facts or circumstances at time of trial

R v F(WJ) - A charged with sexually assaulting a 5 year old girl. At trial girl was 6 years 8 months. Girl called, but clammed up. Crown wanted to introduce out of court statements. TJ refused to admit statements for want of necessity - Crown did not provide explanation of why girl could not testify. SCC said an explanation not required, enough that child was unable to testify. repetitious statements are not allowed by neither available nor unavailable witnesses

Threshold Reliability - E must be sufficiently reliable to overcome dangers arising from difficulty of testing it - There is a difference between threshold and ultimate reliability

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Threshold - determined by TJ and concerns admissibility o So long as E can be assessed and evaluated by TOF, then if should be admitted Once admitted, TOF remains ultimate arbiter of what to do with E and whether statement is true

Starr - SCC limited factors TJ could consider to circumstances surrounding the statement (threshold box). All external considerations could only be used by TOF in determining ultimate reliability. TJ was also not to consider corroborating or conflicting E. boxing E in this way was difficult and led to inconsistency SCC abandoned this approach in Khelawon - now functional approach is used o All relevant factors going to reliability of the statement can be considered by TJ Concerns that voir dire on hearsay E could take over trials TJ must be mindful that Ultimate reliability is determined by TOF Reliability can be shown in 2 ways o Statement made in circumstances that speak to truth; or o Statement and accuracy can be tested

Inherent trustworthiness - consider girls statement to mom in Khan - it was made shortly after incident and without prompting o inherently trustworth R v U(FJ) - C told police about incest with dad and provided details. Police then got similar details from father. At trial, C recanted and denied all acts. Crown was allowed to introduce prior statements for truth - the similarities between C and dads statements indicated truth. was statement made o spontaneously, naturally, contemporaneously with events, no motive to lie, sound mental state, against persons interest, by a young person with no understanding, where corroborating evidence exists also consider o was person under duty to record statements o statement made to public officials o was statement recorded o did person know statement would be publicized motive is relevant to reliability

R v Czibulka - A convicted of killing wife. Key issue on appeal was ADMY of letter written by wife 3 months before death. Wife described abuse and violence from A. TJ admitted the letter because wife had no apparent motive to lie. HOWEVER - lack of E of motive to lie is NOT THE SAME as absence of motive. relationship between declarant and receiver or statement is important - would there be any reason to lie to receiver? SCC says issue is reliability of DECLARANT, not receiver

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TJ faces high threshold for establishing trustworthiness of a statement - must exercise caution and any real concern must be removed (Khelawon, Couture)

Can the E be tested? - some measures address the dangers presented by lack of XEX, oath and presence o was person under oath when making statement? o Was the statement taped? o Was person XEX at time of statement? o Can person be XEX on making the out of court statement? - Focus under this ground is whether TOF can rationally evaluate the E R v Hawkins - H was a cop charged with taking bribes. His then GF testified at preliminary inquiry and implicated H. GF then recanted and by trial was married to H (no longer competent to testify against H). Crown was allowed to introduce E from inquiry because at that time GF was under oath in a court, and subject to XEX - that testimony was trustworthy. Contradictions between present testimony went to PV - a matter for TOF to consider. the two grounds should not be separate, rigid inquiries - they may overlap and should be fluid and functional

Prior Inconsistent Statements - at CL PIS made by non-party Ws were not admissible if offered for truth unless adopted as true by W o only ADM as to credibility to show that on a prior occasion W said something different - TJ would charge jury with job to assess only E given in courtroom for truth, that PIS only for credibility o This was considered pious fraud - Concerns with the CL rule o Why would someone accept PIS as true and not believe sworn testimony? o Pressures and inducements can have influence in making statements - SCC recognized in KGB that in appropriate circumstances PIS could be admitted for truh R v B(KG) (KGB) - A was charged with murder. V and brother were walking home when they got in a fight with 4 guys in a car. V stabbed and killed in fight. Crown called all 3 occupants of car. Each made separate taped statements to cops, each with family or lawyer present. All recanted at trial, admitted making statement but denied truth. TJ thought they lied on the stand and that the PIS were true, but under existing law the statements could not be admitted for truth. Insufficient E led to charges being dismissed. At SCC, Lamer J applied the principles of N and R from Khan. N arose from fact that statements were important E going to prove what occurred. R became comparative reliability between 2 statements. since KGB, SCC has confirmed that the N criterion is met when a W recants R requirement satisfied when

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o PIS is under oath following a warning as to existence of sanctions and significance of oath o Statement is videotaped in its entirety o Opposing party has full opportunity to XEX the W re the statemen The above are in optimal conditions o In Khelawon it was said that PIS for truth were to be determined using the principled case by case approach - criteria from KGB provide guidance In order for factor of XEX to weigh for ADMY, it must be effective, meaning W must be able to provide reason for recanting Untoward pressure from cops re obtaining and recording statements also speaks to reliability Videotaping is desired and should be encouraged KGB is all about testability Admitting PIS on basis of truth for striking similarity (as in U(FJ)) assumes both statements are ADM o But if dads statement was ruled INADM it there would be no comparison statement o TOF would have to assess reliability without a key indicia of reliability In U(FJ) it was held that comparison statements must be ADM

Procedure - application to admit PIS would following an invocation of s.9 of the CEA - s.9 hearing is by way of voir dire and allows proof that a W called made a PIS - KGB application procedure o Calling party must state intention (admit statement for truth) o Calling party bears burden of proof - must establish on BOP the ADMY of PIS for truth o Calling party must establish threshold reliability on case by case basis o Calling party establishes that PIS was made voluntarily to person in authority, and no other factors would bring admin of justice into disrepute if PIS admitted for truth - Judge will rule, reasons not required - PIS must be otherwise ADM, even if KGB is satisfied o In other words, if W could not make that statement in court, it cannot be made out of court

ADMISSIONS OF OPPOSING PARTY LITIGANTS (pg 147 60)

admissions are acts words of a party offered as E against that party text classes admissions as hearsay Wigmore does not - says there is no need for party against whom the E is given to XEX himself SCC in Evans and Couture say that an admission is an exception to the hearsay rule R v Foreman - ONCA found that admissions do not need to meet the N/R reliability analysis

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Most admissions take the form of written or oral statements - they can be used to impeach the party by way of showing a PIS and are admissible for their truth

Formal and Informal Admissions - formal o dispense with the need to prove a fact in issue - is binding and not easily withdrawn o in criminal cases, most common formal admission is that of the guilty plea o s. 655 of the Criminal Code also allows A to admit any fact alleged by Crown against him - informal o is not conclusive proof of an issue and does not bind the parties - distinction between formal and informal discussed in R v. Korski R v Korski - certain W statements introduced by consent as agreed facts. Defence counsel argued the jury ought to have been instructed to accept as fact what was said by W. CA said that these were not formal admissions of fact, just agreements as to what the Ws would have said. Admissions need not be based on personal knowledge - a party can accept/adopt what others say R v Streu - A charged with possession of stolen tires. Crown needed to prove they were stolen and relied on admissions made by the accused. A sold to undercover cop and said he knew they were hot relying on what he was told by friend. As statements of belief needed to be accepted as statements of fact. SCC held they were, saying that A presumably satisfied himself as to reliability of the statement. party must in some way indicate belief of the hearsay statement value attached to belief is for TOF to decide

Admissions can be by personal conduct - the A can signal or acknowledge guilt by fleeing from the scene or lying when confronted - an admission of negligence can be inferred from remedial measures taken after the accident Admissions by silence - certain conditions must exist o a statement (accusation, usually) must be made in the presence of the party o the party should be expected to respond given the circumstances o partys failure to respond could reasonably lead to the inference that the party had adopted the statement o the PV of the E outweighs the PJ - one must be cautious - before admitting such E a voir dire is required so that the TJ can assess how and when the statement was made

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R v Tanasichuk - A charged with killing wife. He phoned a friend from prison and complained that he wasnt allowed to attend his wifes funeral. Friend became angry and said that A had killed his wife, the only person who ever loved him. A was silent. Because of how this was raised at trial, there was no voir dire, and therefore the E should not have been put to the jury. principle of adoption by silence does not apply where A is accused by a person in authority - as then the A has the right to remain silent law also protects selective silence - can answer some questions and not others (R v Turcotte)

Vicarious admissions - when a person authorizes another to speak, they are bound by admissions made - most common situation is where an agent or employee makes an unauthorized statement that the opposing side now seeks to have admitted as an admission - no consensus on what is proper o in UK such unauthorized statements are inadmissible o ONCA adopted this, but Laskin J dissented o Laskins approach is consistent with law in the US Statements by agents/employees have some trustworthiness agent is informed about acts in the course of employment Unlikely the agent would make a statement against principals interest unless it were true Admissions by parties in furtherance of a common design - generally, confession of one co-A is not admissible against the other co-A - there is concern with accomplice statements and reliability - if tried separately, admission of an accomplice can be admitted provided it satisfies principled test - consider also a partnership - if a partnership exists, admission of one partner acting within the scope of the partnership is E against all partners - not all statements of co-conspirators are admissible o must be made during course of conspiracy o in furtherance of the conspiracy o a co-conspirators guilty plea is not admissible - difficulty if there is E that A was member of the conspiracy and that issue is before the court o TOF must decide what to do o In common design charges all E is conditionally admissible o TOF reviews and determines whether to invoke exception o Requires a 4 part jury instruction TOF must consider BARD if E says a conspiracy existed If conspiracy exists, review E against the A and decide on BOP if he is member of the conspiracy If A is member, they can apply the hearsay exception and consider things said in furtherance of the conspiracy

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Ultimate determination is for the TOF alone and remember if there is E that the A is a member of the conspiracy it does not make a conviction automatic R v Carter (1982) o Note that the jury is required to correctly apply 2 different standards of proof to E - this is a lot to expect of lay people American approach is that judges determine admissibility of co-conspirator statements o SCC rejected this approach in R v. Mapara Co-con statements are hearsay and raise valid hearsay concerns - but evaluated the Carter rule and found both N and R N Co-accused declarants are not compellable by the Crown Undesirable to try co-cons separately E value of contemporaneous declarations R TOF must be satisfied BARD that conspiracy existed prior to statements admission State must establish on BOP through E that A was member of conspiracy TOF is only to consider out of court declarations made in furtherance of the conspiracy Such statements generally given at times where there would be little reason to lie o Therefore, the Carter approach meets the requirements of the principled approach

Declarations against interest by non-parties (pg 161-165)

Common law exception to hearsay rule for statements made against declarants interests - assumption is that people dont say things against their interest unless they are true Declarations against pecuniary and proprietary interests - can be admitted where o declarant cant testify o statement made against interest; AND o declarant has personal knowledge of the facts stated - necessity flows from unavailability of declarant - reliability flows from fact that declarant admits adverse facts o ex. Acknowledgment of a debt owed - courts admit all matters knit up in a statement o ex. Higham v Ridgeway - at issue was date of childs birth. Entries made by a midwife were admitted - they were against interest because they should she had paid debts on a ledger. Ledger contained note that payment for birth attendance was on a certain day - a collateral fact to be proved. Court admitted.

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Declarations against penal interest - admitted where o is made in situations were its obvious penal consequences may result o penal consequences cannot be too remote o statement must be considered as a whole - if it is in favor of the declarant in tone, it isnt against interest o court can consider circumstances connecting the declarant with the crime or the A o declarant must be unavailable by reasons of death or insanity (etc.), if they refuse to testify they are NOT unavailable Lucier v R - Common law excluded such statements because of concern about false confessions - R v OBrien (SCC) was supposed to eliminate the distinction between pecuniary/proprietary and penal interests o Note that the principles above are more stringent that the ones applied to P/P interest statements Ex. Person must know the STATEMENT will be held against them - its not enough to just accept the adverse fact, they must have vulnerability flow from making the statement - Vulnerability o R v Underwood (ABCA) A was in drug trade, accused of killing one of his associates. At trial tried to lead evidence that P (an associate now dead) had confessed to the killing. Another associate would testify that P confessed to the killing. ABCA found that even though P had made the confession to an associate, he should have felt vulnerable to penal consequences. This is a generous interpretation - means that everyone who confesses to something should feel vulnerable. o Note that ONCA decision in R v Kimberly ignored the exception rules above and focused entirely on N and R when deciding to admit a statement against interest.

Dying Declarations
in a criminal case, a DD of a dead person is ADM when o deceased had an expectation of almost imminent death o statement was about circumstances of death o statement would have been ADM if deceased could have testified o offence involved is the homicide of the deceased N is obviously present - the witness is dead R comes from the belief that when faced with death, one tells the truth Test is subjective and each case is decided on the facts Likelihood or probability of death is not enough o R v Aziga - A charged with murder and sexual assault for spreading HIV. Statement from Vs were taken - one 18 hours before death and one 18 days before death. It was established that death was imminent, and statements were admitted as DD under principled approach.

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ADM for dying declarations should be determined under the principled approach

Declarations in the Course of Duty

ADM based on their reliability, as most records are mechanical, prepared as part of a routine At CL, if the declarant has a motive to lie, the records are INADM Declaration in the course of duty is not an admission

At Common Law - ADM for truth if: o Made contemporaneously o In ordinary course of duty o By those with personal knowledge o Under a duty to make a report; AND o No motive to misrepresent - At CL, maker of statement had to be dead - makes sense if small shopkeeper, but makes no sense given modern business community - SCC changed this rule in Ares v Venner o Medical malpractice case - a mans broken leg had to be amputated. At issue was notes made by nurses regarding state of patients leg. SCC said that such notes were prima facie proof of the facts stated. - R v Monkhouse ABCA o W brought a document to court which summarized company payroll records. W had no personal knowledge of the information, but the document was used to prove employee earnings. No need to ID specific recorder, a document is ADM so long as the maker was under a duty to record the information. Business records - an exception for these was made in CEA and most provincial acts - CL applies to oral and written statements, while statutes are confined to writings and records - All the statutes require that the record be made in the usual course of business o Palmer v Hoffman SCC Defendant railroad wanted to introduce as a BR an accident report prepared by an engineer that was deceased. Applicable statute required that records be made in regular course of business. Court held that accident reports were not made in the course of business and were not admissible. - There is also a further requirement in half of the provincial statutes that it was in the usual course of business to make the record - Double hearsay is also a concern o Record is hearsay, and if the record relies on hearsay statements of others, it becomes double hearsay - Trend is towards using the principled approach when difficulties arise regarding the admission of business records Electronic records 37

the concern is the authenticity and integrity of the stored information must be admitted under existing CL and statutory hearsay exceptions

PRIOR TESTIMONY (pg 139 - 144)

testimony given at a prior proceeding and admitted for truth is hearsay o Wigmore disagrees - it was already subject to Xex o SCC treated it as hearsay in R v Hawkins The Common Law exception o ADM for truth if W is unavailable Parties involved are substantially the same Issues to which E is relevant is substantially the same; and Person against whom the E is used had a chance to Xex the W earlier o In principle, requirement that it is the same party offering the evidence is not necessary so long as the person against whom the E is offered is the same This is a case where the principled approach is warranted

ADM under the Rules of Court - in civil cases some rules of court provide an alternative route for ADM ADM under the Criminal Code - s.715(1) - text at pg 140 of the VD text o in criminal cases, the CL rule is embodied in this section o R v. Potvin P and 2 others charged with murder. Crown proceeded against P first - one of the others testified at inquiry but refused to testify at trial. Court confirmed that it is the opportunity to Xex that is crucial, not actual Xex. E from inquiry was admitted. - If prior testimony does not fit within this section, the principled approach can be applied

Prior Convictions
in a civil case convictions can be proved for the purpose of showing that the person committed the offence charged E of prior convictions can be used defensively to resist a claim o Demeter v British Pacific Life Insurance Co D convicted of the murder of his wife. Brought an action to recover as a beneficiary on insurance. Insurers defended on the basis that D could not benefit from criminal actions. Convictions admitted as proof that D was the murderer subject to rebuttal Because of the high burden of proof in a criminal case, that fact that an accused is acquitted is not evidence that the A didnt commit the offence on a civil standard

Res Gestae Exceptions (Pg 174 - 182)

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spontaneous statements o reliability is founded on the spontaneous making of a statement before there is time to think of a lie o necessity is based on expediency unavailability is not necessary, the W can testify AND the spontaneous statement can be admitted into E

Statements of present physical condition - confined to natural expressions that usually accompany and provide E of an injury/illness - statement of past pain is INADM, as is an explanation of cause of pain, as neither of them are related to present physical condition Statements of Present Mental State - if statements are explicit of a state of mind OR if permit an inference as to the speakers state of mind they are ADM - statements of intention must be made in a natural manner and not in circumstances of suspicion - it is impermissible to use the statement of intention of A to prove intention of B - R v Griffin o A on trial for murder. Deceased said to GF, if anything happens to me its Griffin. Statement accepted as going to the deceaseds state of mind - but it was not admissible as proof of identity. Excited Utterances - statement can be admitted for truth if it was made while the person is under stress or excitement caused by the event or condition - used to be that statement had to be part of the transaction o R v Bedingfield A charged with murder. Defence was suicide. A was seen going into house. Deceased ran from house with throat cut, said see what A has done! Statement was not admitted because transaction (throat cutting) was done. - The transaction requirement is no more - PRINCIPLE: statement made in response to event where the possibility of lying can be disregarded. - R v Andrews (House of Lords) o 5 guidelines for TJ looking to admit such E can the possibility of concoction be disregarded? Consider circumstances of statement and satisfy himself that the event was so unusual that any utterance was instinctive To be spontaneous, it must be fairly stated that the mind of the person was still dominated by the event There may be special features which relate to the possibility of concoction Possibility of error due to recollection goes to weight and not admissibility - R v Nicholas

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o V of a sex assault called 911 10 minutes after the attack. Could not testify because of PTSD. The audio tape of the trial was admitted as a spontaneous utterance. Statements of a Present Sense Impression - this is recognized in the States, but not yet in Canada - a statement not prompted by excitement but is reliable because it was made contemporaneously or immediately thereafter o less chance for fabrication or forgetfulness o time requirement is far more strict than for excited utterances.

Prior Identification (pg 136-139)

out of court IDs can be admitted for truth if the W makes an in-court identification can also be admitted for truth where W makes no in-court ID but can testify that the ID previously given was accurate where W makes no in-court ID and does not testify to accuracy then the situation is the same as if she had not testified - the out of court ID is hearsay and cannot be admitted in court IDs alone are suspect o W expects to see A in court and the A is conspicuously present This is why out of court IDs are acceptable and should be gotten as quickly and as fairly as possible

OPINION EVIDENCE
The Opinion Rule (Pg 183 - 187)
Opinion - an inference from and observed fact General rule is that W can only testify to FACTS - it is for the TOF to draw inferences 2 categories of ADM opinion evidence o lay ordinary experience is required o expert special training or experience is required to form the opinion in determining which rules apply consider the information being offered would that information require special training to observe o substance of E is what is considered, not status of W

Lay Witnesses - the line between fact and opinion is not always clear, and the generally exclusionary rule is not always applied - Graat v R (SCC) o G charged with DUI and TJ let W offer opinion E about whether G could drive o Dickson J decided that the E was ADM because lay W can give opinions when they are giving facts that are too subtle or complicated to be narrated separately 40

Ex. Try and describe the difference between a car traveling 70 km/h and 40 km/h If a W can communicate the information properly by describing what has been observed, the W should not be allowed to express an opinion

EXPERT WITNESSES
presumptively INADM ADM only if 4 conditions are satisfied on BOP o E must be necessary - expert deals with material that ordinary people need assistance understanding o E must be logically relevant to a material issue o W must be qualified to offer opinion - possess knowledge/experience beyond that of TOF o Opinion cannot fall under any exclusionary rule apart from the expert evidence rule TJ retains discretion whether or not to admit They are called the Mohan standards o Burden is on the party calling the E to establish that the components are satisfied on BOP Mohan standards apply in civil litigation, admin cases where E rules apply and criminal cases o Also in jury and judge alone trials Prior decisions are useful guidance, but the Mohan test is not a matter of strict precedent o Highly contextual approach

The Abbey Restructuring of the Mohan test - in R v Abbey the ONCA adjusted the Mohan test o the Mohan standards include preconditions that are necessary conditions to ADM N, R, absence of exclusionary rule, qualified expert Gatekeeping function that requires a contextual examination and balancing of costs/benefits o Mohan didnt separate the stages, but analytically it makes sense to do so - Abbey invites judges to examine the 4 conditions first without examining context, followed by the gate keeping function of balancing competing interests - ONCA cannot change SCC ruling, but approach is sensible and uses same legal standards Applying the Expert Witness test - determined during a voir dire - party providing the expert must indicate scope of testimony and what it is intended to prove PRECONDITION 1: Necessity in Assisting the TOF - the necessity test o necessity applies in both criminal and civil cases

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o subject that ordinary people cant form a correct judgment about without assistance o information outside the knowledge of the judge or jury o technical information not applied to strictly, but will not be passed simply because the information is helpful o TJ must consider Can a jury direction make expert E unnecessary? Can the point be made without expert E? R v C(G) - V gave good explanation about why she didnt tell her mother about sexual assault - expert E to that effect was unnecessary. o Judged according to whether the E meets the requirement, not whether other experts have filled the need for testimony Abbey on necessity o A sliding scale - the more necessary the E is, more likely to be admitted o Its a judgment call and not a precise measure o Necessity remains a pre-condition to admissibility

PRECONDITION 2: Relevance - Mohan discussed legal relevance -TJ must look for more than just logical relevance (the gatekeeping function is performed at this stage) - Using the Abbey structure, relevance must only be logical - cost benefit analysis is conducted later o All components of Mohan are still in tact - just more orderly analysis - Logical relevance o Relevance and materiality - if E has no tendency to make the existence of a fact more or less likely, then it is INADM o R v Haynes E about the As personality disorder not relevant to a material issue - why he joined the killing was not material, making the E INADM. PRECONDITION 3: A properly qualified expert - Expertise exists where the expert has knowledge beyond the TOF - R v R(WD) - TJ erred by not allowing W who did not have clinical experience with assault V to testify about problems with repressed memories. This should have been allowed as expert had more knowledge than the TOF. o Lack of experience goes to weight of E - Enforcing the qualification requirement o Area of expertise defined at the voir dire - W cannot offer E beyond that - Must the expert be independent and impartial? o Danger of expert becoming a hired gun o The conventional view is to treat impartiality as going to weight of E, not ADMY o Exclusion is a viable option if independence is very questionable PRECONDITION 4: The absence of an exclusionary rule

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ex. R v Pascoe E excluded because of danger it would be used to show that A was the kind of person to have committed a crime (prohibited inference)

THE GATE-KEEPING FUNCTION - if necessity, logical relevance, a qualified expert and the absence of an exclusionary rule are satisfied, the E will be admissible provided that TJ determines benefits outweigh costs o not all or nothing - E can modified or parts left out if other portions meet the requirements Determining benefits - examination of PV o how influential and believable the E is - influence of expert E depends on how well the E proves what it offers to prove and how live the issue it addresses is - also turns on how much of the opinion is founded on facts that are proven - E must achieve a threshold level of reliability before putting it before the TOF - If the opinion is based on science, the factors considered in Daubert v Merrell Dow Pharmaceutical will be considered o Scientific method is the key to reliability Test of hypotheses, peer review, rates of error - Scientific validity is not a condition precedent to ADM of expert E - not all expertise is founded in science o Some is in experience - The law is settled - the benefit of admission is evaluated as an amalgam of o Cogency of the E o The importance of the issues the E addresses o The believability of the E Believability includes impartiality and credentials of the expert, as well as their performance Identifying the costs - practical considerations o using too much time o distraction from important issues o inability of opposing party to cope with the E because of a resource disadvantage - court will consider procedural safeguards o jury directions o Xex o Editing of the expert opinion o Provision of notice and discovery

THE ULTIMATE ISSUE RULE

it was said that an expert or lay opinion can never be received if it touches the very issue before the court o fear was that TOF would take that opinion as their own without weighing the E properly this rule was put to rest for lay W in Graat v R

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o A attempted to use the rule to oppose the admission of lay opinions about his drunkenness. o It was said that as long as opinions werent over the top, they could be heard The fear of undue influence is more real when the W is an expert o But the ultimate issue rule is gone then, as well. Any danger is considered when determining whether the E should be admitted. 2 cousins to this rule remain: o opinions on pure questions of domestic law o rule against oath helping

Opinions on pure questions of domestic law - E is about fact, not law - law is for lawyers to argue, facts are for W to offer o Ex. An error to let an expert witness to interpret terms in the Criminal Code - The court can receive expert evidence about foreign law - foreign laws are not laws here o Therefore foreign laws are not treated as a question of fact The Rule against Oath-helping - prohibits the admission of E solely for the purpose of proving that a W is truthful o juries are the ones who are supposed to assess credibility and reliability o the fear is that if others express their opinions about telling the truth, TOF may simply defer to those opinions rather than assessing credibility themselves - the rule also prohibits a W from testifying that they believe another W to be lying o ex. In R v W(AW) the TJ erred by permitting an experienced officer to say she believed the complainant to be lying - W is not allowed to offer an opinion on how to interpret reliability problems with the testimony of another W o Ex. In R v Reid expert witness broke the rule by saying the inconsistencies in a murder Ws E could be account for by battered womens syndrome. - W cannot bolster own testimony by invoking hearsay support o Ex. R v Ranger - a crime scene expert said she had her findings verified by 10 colleagues - Limits on the rule o Not violated when E of a W expressing own observations/opinions supports another Ws E o If the PV of an opinion about credibility outweighs the PJ, the E can be received Ex R v Burns - expert based his opinion on what he was told b the W - if he had not believed him he would not have formed the opinion. SCC said when he said he believed the W he did not bolster the Ws testimony, just explained the foundation for his own.

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o Experts offering the TOF background information outside the competence of the TOF is OK - the TOF can use that in order to make own conclusions. Ex. W may have characteristics that could diminish their credibility, and those characteristics may not be apparent to the TOF. Expert E could reveal that the W has a delusional mental illness that causes them to misperceive facts. Opinion E relevant to credibility is admissible - so expert in R v Reid could have been allowed to testify that battered womens syndrome could have an affect on how someone discloses information (rather than saying inconsistencies were due to battered womens syndrome). So TJs have 2 obligations regarding the rule against oath helping: o Where a W gives E relevant to credibility, TJ must ensure that E is confined to its proper purpose o Must direct jury on the limited use that can be made of the E

HEARSAY AND OPINION EVIDENCE (211-212)

experts may conduct an investigation before the trial o interview W o read documents then offer an opinion based on findings - but these findings will be based on hearsay

R v Lavallee - psychiatrist diagnosed A as suffering from battered womans syndrome based on conversations with A, As mom, and the hospital records. The Testimony of the expert about what hed been told could not be used as proof of the events described. The description of those conversations came in solely so that the basis for his opinions could be understood TOF must know the basis for an expert opinion, so the expert can relate information relied on, even if it is hearsay TOF must only use the facts learned to evaluate the opinion, not as proof of facts o Note: in R v Abbey the SCC said that before the experts opinion can be given any weight, the facts on which the opinion is based must be found to exist So, expert can testify based on hearsay but before the TOF relies on the opinion, there must be admissible evidence that proves the hearsay info was true o R v Lavallee explained that the rule in Abbey does not mean each and every fact relied on must be proven. So long as some admissible E establishes the foundation for the experts opinion the opinion can be accepted Though judge must tell jury that the more the expert relies on facts not proven in evidence, the less weight can be given to the opinion o In the hearsay relied on falls under the hearsay exceptions, the foundation can be established by the expert directly and the TOF can give the opinion weight it thinks deserved 45

SCC has also said that if an expert relies on information within the scope of his expertise that DOES NOT come from a party to the litigation, the trier of fact is free to weigh the opinion even if that information does not meet established hearsay exceptions

City of Saint John v Irving Oil Co - appraiser relied on the ordinary sources appraisers consult in determining value. Even though those sources were technically hearsay, it was adequate foundation for the appraisers opinion.

The Presentation and Evaluation of Expert Evidence

Expert Training - expert will advise TOF of background info and then TOF will formulate own opinions o ex. Expert talks about general phenomenon that children may continue to associate with their abusers Expert Opinions based wholly on Personal Observations - experts may be witness to the facts forming the foundation for their opinion (ex. Examining a burn before diagnosing it in R v Marquard) - the opinion will be offered about what those facts signify Expert Opinions Secured by Hypothetical Questions - experts are often asked to opine on the proper inference arising from the actual facts of the case or make an observation about what has been presented o NOTE: facts are for TOF to determine, not expert, so expert should not listen to evidence and form an opinion based on their conclusion of the facts - Present expert with a hypothetical fact scenario (reflecting the one its hoped the TOF will find), expert then gives opinion - If TOF finds those facts exist, then the opinion can be applied - but if TOF finds facts different than the hypothetical, the opinion should be ignored - Risky, because the risk the TOF will adopt the experts conclusion without critical analysis increases R v K (A) - the state of learning about actions of sexually abused children was insufficient to allow the expert to respond to a hypothetical question about whether the P had been abused. However, the state of learning was sufficient to allow the expert to rely on the kinds of misbehaviors described in a hypothetical question that could be resulting from sexual abuse. balance between necessity and prejudice can also prevent the use of hypotheticals

R v Reid - expert could educate the jury about the impact of battered womens syndrome without going so far as to offer opinions on hypothetical questions that tracked the facts of the case Presenting Expert E and explaining it to Juries

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if the testimony is highly technical counsel should as the W to explain in laymans terms SCC does not want judges explaining expert E to jurors, as this is a dangerous task o Potential to recap in a misleading way

STATEMENTS BY THE ACCUSED IN CRIMINAL CASES

a person should not be required to answer an allegation against him unless the Crown has established a case to meet during trial by presenting E idea rests on ideals about privacy/ dignity of individuals the common law has developed rules o privilege against self-incrimination o right of the A to decide whether to testify o exclusion of involuntary confessions these are all examples of testimonial self-incrimination for a long time there was no rule against non-testimonial conscription o blood samples, breathalyzers, standing in a police line up confining self-incrimination was to testimony was done because of the belief that the reliability of real E is not affected by the manner in which it is obtained s. 24(2) of the Charter expanded the self-incrimination concept o requires judges to exclude unconstitutionally obtained E if it would bring the admin of justice into disrepute o court accepted that if unconstitutionally obtained E is self-incriminating it should be excluded o began to treat blood samples, etc. has compelled testimonial selfincrimination for the purposes of exclusion in 2003 the high-water mark of the concept was reached when the broader idea of self-incrimination was recognized outside the s.24(2) context in R v. B(SA) o case involved a constitutional challenge to DNA warrants compelling persons to produce samples o SCC said the principle of self-incrimination applies to both products of the mind and body In 2009 the SCC backtracked in R v Grant o Said that its earlier section 24(2) authority wrongly equates bodily E with statements o Communicative information warrants greater legal protection The self-incrimination concept is unstable but most issues can be resolved using 2 sets of rules. Some rules apply during: o Formal proceedings (the privilege against self-incrimination) o Outside formal proceedings (the right to silence) However broadly the rules are applied, some things are clear o There is more aggressive protection of compelled communicative evidence o With the exception of bodily samples the concept does not apply to pre-existing items of real E

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Ex. Does not apply where A is compelled to hand over existing documents Has to do with creation of information, not disclosure of existing info o Provides protection only against incrimination, not other uses of compelled info R v Weitnz - SI principles not implicated where a driver had to blow in the face of an officer because the officers observations could not be used at trial as E that the A had committed an offence - they could only be used to allow the officer to decide whether he had authority to arrest the A

Self-Incrimination (SI) Protection - FORMAL PROCEEDINGS

at common law the principle is supported by 2 rules o privilege against SI W could refuse to answer questions in formal proceeding if their answers would tend to incriminate them o Crown cannot call A as W in own trial Ws now have use immunity under statute The rules have been modified by the charter, and its now said the rules on SI have 3 parts o Use immunity o Derivative use immunity W testimony protected, AND E derived from or found as a result of that testimony is exempt o Constitutional exemption Common law con-compellability of A extended to provide immunity from testifying where proceedings are used to obtain E for prosecution

THE SI PROTECTION OF Ws Statutory Use Immunity - s. 5 Canada Evidence Act o removed the common law right to refuse to answer questions o it now provides protection to those who are forced to reveal info tending to show the have committed offences so W can still be prosecuted for the offenses their testimony reveals, but the answers given cannot be used against them in the subsequent prosecution for any purpose - only relates to the answers given at the time - does not extend to other answers W may give - to gain the use immunity under s.15 the W must invoke it by stating her fear of making incriminating remarks o need not invoke it for each question, can do so for a series of related questions - s.13 of the Charter gives easier access to use immunity o entitled to protection under s. 13 as a matter of right, whether they claim it or not

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s. 5 should not be given broader application than s. 13 for 3 reasons o they have the same theoretical foundation o in R v Henry the court noted that s.13 was intended to extend s. 5 of the CEA to give better effect to the common purpose o if s.5 is interpreted wider than s. 13 there will be cases where s.5 would allow an A to give a version of events to the TOF differing from an account given under oath it remains prudent to invoke the protection of the provincial evidence act

Constitutional Use Immunity - s.13 of the Charter - s.13 provides o W who testifies has the right not to have any incriminating E given to incriminate that W in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence - Adverse inferences can still be drawn from earlier refusal to testify or answer questions - Rules are stated in R v. Henry (much of the s.13 information in cases prior to this one is now wrong) o If A does not testify at his trial, his testimony from an earlier proceeding cannot be used against him at that trial, regardless of whether he was the accused or a mere W at the earlier proceeding R v Dubois - D testified at his first trial and said he killed, but acted in self-defence. Conviction overturned, and at retrial a s.13 violation occurred when TJ allowed the crown to use admissions made by D at first trial that he struck the fatal blow. o Even if A does testify at his trial, his testimony from an earlier proceeding cannot be used if he was compellable as a W at the earlier proceeding. R v Noel - N was a compellable W at his brothers murder trial. When he was testifying N implicated himself in the killing. At Ns trial for his part in the murder, s. 13 was violated because the Crown was allowed to Xex Noel using extracts from the testimony N had given at his brothers trial. o If A does testify at his trial, his testimony from an earlier proceeding can be used to Xex him at the trial provided he was not compellable as a W at the earlier proceeding. R v Henry - H testified as a W at his first trial on charges of murder. Conviction was set aside. H testified at his 2nd trial, giving a different account. Crown was allowed to Xex H using his testimony from the 1st trial.

The field of operation of the constitutional use immunity rules - testimony of A must occur in other proceedings relative to the trial at which the protection is invoked - other proceedings o includes a bail hearing, preliminary inquiry, a voir dire, an earlier independent proceeding (civil trial, administrative hearing)

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s. 13 does not give protection in civil or purely administrative cases, as it is used to prevent an A from being inciminated

The Constitutional Use Immunity Rules Explained - where A does not testify at his trial o if A does not testify, his testimony from earlier proceedings cannot be used o use immunity is absolute - Where A does testify o Crown can use earlier testimony to Xex in some situations if A testifies in own defense If A was not compellable at earlier proceeding AND Chose to give the earlier testimony o Crown cannot use earlier testimony if the A was compellable at the earlier proceeding o Pre-Henry a different approach was taken Crown COULD Xex regardless of whether the A was compellable or not But could not Xex for purpose of producing positive evidence of guilt - incrimination purpose was prohibited COULD Xex to demonstrate A was not a reliable witness impeachment purpose was allowed This approach was discarded because it was easy for Crown to put incriminating admissions forward under the pretence it was used for impeachment, when real impact showed guilt, as was the case in Noel Noel modified the approach so that Xex on prior testimony was impermissible if it incriminated, or COULD incriminate This presented opportunity for an A to give false testimony, have it rejected at 1st trial, then upon retrial volunteer a better story and jury would be kept in the dark about inconsistencies So, in R v Henry court held that permissible and impermissible Xex turns on whether A was compellable as a W - Theory behind the distinction o The key is being compelled to incriminate oneself - if A takes the stand voluntarily in 1st proceedings and again in 2nd proceedings, A has not been compelled to incriminate himself in any of his testimony o S. 13 protects COMPELLED testimony, nothing more o There are issues with this approach Ignores the quid pro quo promise stated in Noel - the common law right to refuse to answer was taken from ALL Ws, and now has been replaced with protection JUST for those who are compelled to take the stand Why are those who CHOOSE to take the stand at their 1st trial treated as if compelled when they are silent at their 2nd trial? There is a paradox - not allowed to use voluntary testimony given at earlier proceeding, but the crown CAN use voluntary pre-trial confessions made to the police

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Exceptions: Perjury and Similar Cases - without being permitted to use E from prior proceedings to incriminate W under perjury charges, it would be impossible to prosecute o the earlier testimony is the AR of the offense Derivative Use Immunity - testimony may lead to the discovery of other E - derivative E o ex. W testifies that he threw gun into the bushes. Leads to gun being found. W I later prosecuted, and his testimony from 1st trial cannot be used, but s. 13 does not prevent the gun from being admitted. - S. 7 of the Charter can be used to fill this gap o Occurs where authorities are attempting to use E against the A that they would not have found but for As earlier compelled testimony o Burden to show that E would have been discovered regardless of testimony can be shifted to the Crown if A can show a plausible connection between his testimony and the E o If crown cant, the derivative E is excluded R v Z(L) - crown used compelled testimony Z gave in a related criminal proceeding to persuade a W, B, to give a statement against Z. Crown offered Bs evidence at Zs trial under a hearsay exception. The evidence was derived from Zs earlier compelled testimony. ONCA held that the statement should have been given derivative use immunity. Note: ONCA treated the derivative use immunity as discretionary. Use immunity under S. 7 of the Charter - use immunity can be conferred under the section even if the E is not being used to incriminate the A - SCC said this occurs if the Crown tries to use testimony or derivative E obtained from that individual through an investigative hearing at a deportation or extradition hearing Cross-Examination about Immunity - one wonders if s.13 means that someone could falsely admit at the trial of an accused that they, not the A, committed the offence yet avoid having their admissions used against them R v Jabarianha - Crown Xex someone who said that they alone committed the offense that A was on trial from, asking if they knew that s.13 left him little to lose if he took the rap. SCC held that Crown should not have been able to xex on the Ws knowledge of s.13, as probative value was low. W can still be charged and tried on other evidence, or charged with perjury if admission is false Such questioning treats enjoying a constitutional right as an indicia of honesty SCC did say that in rare cases, if the Crown can prove a plot to lie, the line of Xex may become permissible

NON-COMPELLABILITY OF THE ACCUSED AT OWN TRIAL

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Competence and Compellability outside the Charter - at common law, A were disqualified from testifying at own trial because of their interest in the outcome o now, ss.4(1) CEA allows them to testify on their own behalf, but they are not compellable o an accused who chooses to testify must answer the questions asked refusing to answer questions will impact credibility Subsection 11(c) of the Charter - any person charged with an offence has the right not to be compelled to be a W in proceedings against that person in respect of the offence o note that corporate A cannot rely on this, because the inanimate nature of corps means they dont experience the indignity of compelled selfincrimination - charged with an offense o matter of substance, not form - the question is whether there are penal consequences Martineau v Canada (Minister of National Revenue) - 11(c) not available during a Customs Act forfeiture proceeding, even though the unpaid duty had been assessed because the subject was alleged to have broken the law by lying. The proceedings operated as a recovery system for unpaid duty, not for punishment. in order for the benefits of this section to apply the person must o be compelled to be a W testifies at formal proceeding does not catch informal admissions or confessions does catch pre-trial discovery o in proceedings against that person a question of substance would prevent co-A at a joint trial from forcing each other to testify o in respect of an offense there must be some connection between the offence and the proceedings Martineau, in obiter, says that the protection is not confined to the proceeding at which A is being tried How far does the protection extend? Extends the protection to situations where there is a substantive link between the 2 proceedings

Section 7 and Constitutional Exemptions from Testifying - in rare cases, a W who is a suspect can avoid testifying because of section 7 o it is contrary to fundamental justice to compel someone to testify, even if they are not accused, for the purpose of obtaining incriminating information from him R v Bagri - the SCC called this protection a constitutional exemption that arises when the predominant purpose of calling a person is to obtain evidence for the prosecution of the W.

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the predominant purpose test should be used to determine whether a suspect called to testify will be entitled to quash a subpoena there has been suggestion that the prejudice from testifying is lessened by use immunity , but it seems that prejudice is not a factor the predominant purpose test is all that needs to be satisfied it is difficult for W to enjoy this right, however, normally testimony is ought for a legitimate reason

Adverse Inferences from the Failure to Testify - although A has a right to refuse to testify, it may be a bad idea for him to do so - if the crown calls for an answer that the A should be able to provide, jurors may assume guilt if A refuses to do so - it is an error of law for a TOF to draw such an adverse inference R v Noble - TOF (judge) erred when he commented that Ns failure to testify may add weigh to the Crowns case on the issue of identification. SCC indicated that where it is shown that A is guilty beyond a reasonable doubt, As silence can be used to conclude that A has no explanation that could raise a reasonable doubt. One clear exception to the rule o Adverse inferences are permitted to be drawn against the credibility of an alibi if the A does not provide reasonable notice of the alibi to the Crown in advance of the trial, or if the A does not testify in support of his alibi

RIGHTS TO SILENCE: PRE-TRIAL ADMISSIONS AND CONFESSIONS

A is entitled to choose whether to speak to persons in authority o No adverse inferences can be drawn from this There are rules for what the A does say and whether it can be admitted o The rules protect the principle of choice At common law o The voluntariness rule Applies to statements made by A to people he reasonably believes to be in authority To admit such statements, crown must establish that the A was not overborne by inducements, oppressive circumstances, lack of an operating mind Will not be admitted if there is a reasonable doubt as to voluntariness Section 7 of the Charter o Recognizes right of A to whose whether to speak o Can cause the exclusion of statements elicited by undercover agents A could not make an effective choice to speak to authorities o Can cause the exclusion of some statements A has been obliged by law to make Court will look for

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Coercion in making the statement Adversarial relationship at time of statement Risk that statement is unreliable Risk that authority to compel statements will lead to abuse of power Factors will be evaluated to decide whether admission would compromise the purposes underlying the principle against selfincrimination o Can cause exclusion of derivative evidence If the entire involuntary statement is excluded, the derivative evidence likely will be as well the redundant general constitutional right to silence o the Charter right to silence is redundant to the common law voluntariness rule in most cases o the crown bears the burden of proving voluntariness and the A bears the burden of establishing a charter violation, so A is generally better off relying on the voluntariness rule than the general right remedial exclusion of statements for breach of other Charter rights o most common instance is violation of the right to counsel if A establishes on BOP that statement was obtained in violation of a charter right, the statement will likely be excluded

In General - SCC observed that the common law right to silence reflects the general principle that no one is obliged to provide information - The law gives affirmative protection to the right to silence, including prior to trial Where the A does remain Silent - right to remain silent at investigative stage comes from both common law and s.7 of the Charter - a decision not to speak is normally irrelevant at trial - the accused does not waive this right by providing information selectively R v Turcotte - T walked into a police station and told the cops to send a car to a ranch where he worked, that they should put him in jail, and that there was a rifle in his truck. Refused to speak further. 3 men had been murdered at the ranch. His right to silence survived his disclosures and prevented adverse inferences being drawn from his decision not to give details. sometimes silence will be admitted as part of the narrative surrounding admissible evidence o ex. Turcotte - the Crown could prove that T refused to answer questions, for it would have been impossible to prove the admissible statements he made without relating the conversation and the parts where he refused to speak. But silence could only be used to understand the admissible statements. o Ex. R v Stephenson - Crown was allowed to ask a psychiatrist about the refusal of A to be interviewed so that psychiatrist could show why 54

her opinion was based on less complete info than the defense psychiatrist. If A claims to have co-operated with the police, silence can be used to rebut that claim Alibi cases o If A does not provide reasonable notice of alibi, this can affect the weight of any subsequent alibi evidence o Silence at time of arrest is not sufficient to ground this inference notice of alibi is usually only required after A has had an opportunity to consult counsel If co-accused wants to prove failure to speak o This will be allowed because both accused have the right to make an answer and full defense o In an effort to compromise the right to make an answer with the right of silence the SCC has said that pre-trial silence of a co-A can only be used to challenge credibility, not prove guilt Requires complex jury direction

Admissions by the Accused - statements made by A are admissions made by an opposing party litigant, and are an exception to the hearsay rule o so if A makes statement to friend/family, they are admissible to prove the truth of their contents o note - statements made to persons in authority are CONFESSIONS The Confession rule - statements made by A to person in authority are admitted into E only where A has had meaningful choice to speak o reduces risk that unreliable E will be admitted o preserves fairness of adversarial trial process - not all means to persuade A to admit guilt are improper o police questioning is a legitimate tool - goal to balance the usefulness of questioning with exclusionary rules - SCC in R v Oickle recast law relating to voluntary confessions o Rejected fixed/narrow rules and replaced it with a contextual approach o Twin goals Protect rights of accused persons without unduly limiting societys need to investigate and solve crimes - In broad terms, the rule in Oickle is o A confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness As will any subsequent statements made where the factors that tainted the involuntary statement are still operating at the time of the subsequent statement (derived confessions rule) Ex. Police refer to involuntary confession to persuade the subject that theres not point in remaining silent, any subsequent confession will be excluded - The rule: o In order for most statements made to a person in authority to be ADM the crown must establish BARD in light of all the circumstances that the

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will of the A to choose whether to speak has not been overborne by inducements, oppressive circumstances, or the lack of an operating mind. In addition, there must not be police trickery that unfairly denies the As right to silence. Refining the rule: - in order for most statements to be admissible o not every statement must be voluntary if statement is AR of an offense, the crown doesnt have to prove its voluntary o applies to full confessions o applies to less complete admissions o applies whether statements are inculpatory or exculpatory and whether they are offered for truth, or just for Xex to show inconsistency - statements made to a person in authority o PIA will be thought to have coercive power o Those formally engaged in the arrest, detention, examination or prosecution of the A R v Laidley o PIA differs depending on whether the voluntariness concern is with: Inducements or oppressive circumstances Whether A, based on his perception of the persons ability to influence the prosecution believed that refusing to talk would result in prejudice, or that talking would result in better treatment Ex. Rothman v R - statements made by Rothman to an undercover police officer who was posing as a fellow prisoner did not have to satisfy the voluntariness rul given that Rothman did not believe that the officer was a person in authority Because a subjective standard is used, a person with no real authority can satisfy the PIA test. o R v Wells A made statements to the father of a boy he was suspected of molesting. Father approached Wells to see if he could make Wells say anything. Since father had met with the police and indicated he was acting as a police agent, Wellss confession was inadmissible Operating mind doctrine Inhibited operation of the mind o Mind of A affects how they are induced or oppressed Pure inoperative mind o Mind of A is not operating because of its own internal state o Does the impact of those conditions make it irrelevant whether the person receiving the statement is a PIA Police trickery Will operate only if person is in fact a state agent 56

o Procedure and PIA If a statement is made to a police officer, a voir dire should be held unless it is waived by A the Crown must establish BARD, in light of all the circumstances o 2 standards of proof apply to a statement crown must meet the burden of satisfying a TOF that the statement was made crown must prove BARD that the statement was made voluntarily no improper quid pro quo inducements, oppression or the As mind was not operating, no police trickery o evaluation is done with regard to the circumstances surrounding the confession o Crown will not succeed if there are material gaps in the voir dire evidence Crown should call material witnesses who could describe what was happening in the company of the accused o Video taping the process has advantages Monitor interrogation Deter police impropriety Make an informed judgment on voluntariness Taping is not a prerequisite o But there is argument that if taping facilities are available it should be done o ONCA has said that if failing to tape occurs, it will render the confesion suspect

What must the Crown Establish in the Voir Dire? - the Crown must establish that the will of the A has not been overborne o causation is a consideration - but for the improper pressure, would A have made that statement? Inquiry requires an examination of the pressure and the ability of the A to resist the pressure R v M(C) - a statement made by a young offender was admitted in spite of police inducements. Court did not believe the statements made by the police were inducements to the A, because A was familiar with the system and the kind of sentences handed out for the offences he was charged with. the will of the A not overborne by inducements o the Ibrahim rule Crown had to prove that a statement was voluntary because it wasnt obtained by fear of prejudice or hope of advantage held out by a PIA Fear of prejudice Express or implied threats Hope of advantage Benefit given in exchange for testimony o Not all inducements are inappropriate

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R v Spencer - SCC ruled that though the police had promised A he could visit his girlfriend if he talked, the TJ was allowed to find that the inducement was not strong enough to render the statement involuntary. Spencer was a mature and savvy participant who negotiated during the taped interview. Will was not overborne. o Rule does not require that the A lose any meaningful ability to choose this would blur inducement with oppression o Oickle - non-exhaustive illustration guidance Any confession thats the product of violence is involuntary Suggestions that it would be better to confess may be involuntary if the words could be taken as a veiled threat Moral/spiritual inducements will not be involuntary because they are not within the control of the police o With regard to hope of advantage inducements, the court said: Offer to get lenient treatment is a strong inducement and will warrant exclusion except in the most lenient cases Where A has been subject to long and intense questioning that no-one will believe hes innocent, holding out the chance of a reduced sentence will raise a reasonable doubt Offer of counseling is not as strong an inducement as an offer of leniency the will of the accused has not been overborne by oppressive circumstances o Oickle identified 2 psychological mechanisms Stress compliant confession made to escape the oppressive conditions Phenomenon by which the oppressed accused doubts his own memory and believes the relentless allegations by police o Circumstances that can create an atmosphere of oppression Denying Food Clothing Water Sleep Medical attention Access to counsel Intimidating questioning for a long period of time

R v Hoilett - H was drunk and left naked in a cold cell for 2 hours before being given inadequate clothing. He was awakened after an hours sleep and interrogated; he nodded off 2 times during questioning. He was refused Kleenex to wipe his nose and warmer clothing. His confession to sexual assault was excluded because of the circumstances. o It is not immediately improper for police to lie about E they have, but using that tactic can contribute to an oppressive interrogation o Before a statement will be considered involuntary because of oppression it must result from external pressure rather than As subjective fear or timidity the will of the A has not been overborne by the lack of an operating mind o examples 58

a statement made by someone suffering from shock after an accident a hypnotized statement some intoxicated confessions some confessions from those with mental disorders o mere intoxication/illness is not enough R v Whittle - W, a schizophrenic, confessed to murder. Was very unstable and was actively hallucinating. The voices in his head made him confess. The statements were admissible because W understood what he was saying and knew the statements could be used against him. Court explained that the operating mind test requires A have the requisite capacity to make an active choice. The test is: Did A possess an operating mind? o The operating mind test is just one application of the general rule that involuntary confessions are inadmissible o The concern is not with the conduct of the authorities - ex. In Ward, statement made by a person in shock from an accident, not from the conduct of the authorities o There are cases where the diminished mental capacity of the A should be examined within the general voluntariness rule Though A suffers mental impairment he can understand what hes saying and that it can be used against him Diminished mental faculties will be an important factor in assessing inducements or oppressive conduct police trickery o so appalling as to shock the community o courts must be wary not to unduly limit police techniques examples provided in Oickle posing as a priest posing as a legal aid lawyer injecting truth serum into a diabetic under the pretence that its insulin the shocks the conscience test was developed by Lamer in Rothman conduct that would bring justice into disrepute would lead to exclusion tricks can produce unreliable confessions, which would have to be excluded o statements obtained through police trickery, even though they dont violate the right to silence or undermine the voluntariness rule, will be excluded if the actions are so appalling that they shock the community

THE PRINCIPLED APPROACH TO SELF-INCRIMINATION

Principles to Consider - approach builds on the factors first identified in the statutorily compelled statements area

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R v B(SA) - B argued the DNA legislation was unconstitutional because it compelled him to give a sample that is so tied to his person that the legislation requires him to self-incriminate. Court said the key question is whether the search for truth outweighs self-incrimination concerns about the abuse of state power. Court said that DNA evidence is reliable and can be obtained in an unobtrusive way, and there were safeguards attached to the warrant. Although the compulsion is great and the adversarial position high, the balance favored discovering truth over selfincrimination concerns self incrimination principles are not contravened if officers pose as gangsters and induce confessions from targets o R v Osmar

R v Jarvis - J wanted to be protected from incriminating himself to prevent tax authorities from using info they gathered during his prosecution. He said they were abusing regulatory power to get info. The SCC said that revenue Canada had not done so, but had the government acted as alleged it would have been improper. If the relationship between the taxpayer and the government becomes sufficiently adversarial, self-incrimination protection arises. the principle of self-incrimination can be invoked in many contexts to exclude E, depending on whether the search for truth outweighs self-incrimination concerns about the abuse of power

The Principled Approach and Non-testimonial In Court Self-Incrimination - ex. A is called upon in trial to perform a physical act (like showing his hands to a W, or walking) - A is not a W, so subsection 11(c) will not apply R v Cyr - TJ claimed that C needed to remove shirt and show a tattoo, and if he refused an adverse inference could be drawn. R v Ouelette - ABCA drew an adverse inference against A for not rolling up his sleeve to show that he didnt have a tattoo the constable described. such acts contain an element of conscription the contribution A is making to truth can vary, and the adversarial position at trial is VERY high o prospect of an adverse inference can exert pressure on A little room for abuse of state authority given the presence of a judge, de[ending on what is being asked the incursion into privacy can be large

SUBSECTION 10B of the CHARTER - detained person have the right to retain counsel and be informed of that right - this is not a substitute for the voluntariness rule o arming a person with rights information does not assure that his rights are protected - even if statements are voluntary they may be excluded under 10b

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10 b imposes informational and implementational rules on the police - if any of the obligations are violated the E may be excluded under s.24(2) o detainee must be informed of right to retain and instruct counsel without delay and the existence of legal aid if detainee doesnt understand this because of language difficulties or mental disorder, police must take reasonable steps to ensure the detainee understands police cannot belittle the As lawyer with the goal of undermining the As relationship with them o the police must provide a reasonable opportunity for A to consult counsel and provide privacy for the consultation police must not get E from A until there is a reasonable opportunity to consult counsel (unless in urgent times) the right lapses where A has not been reasonably diligent in exercising the right the right to counsel of ones choice unless it is not possible to do so in a reasonable time this does not include the right to have counsel present during interrogation obligation to facilitate contact with counsel where a change in circumstances warrants it this will be breached if it becomes clear that the advice given no longer suits the context. For example o if polygraphs or police line-ups are attempted o investigation takes a new or more serious turn as events unfold o it seems the detainee that waived his rights did not understand them o detained people can waive their rights to counsel and provide selfincriminating info without a Charter violation occurring SCC says waiver standard will be high, especially when it has not been expressed R v Whittle equated standard for waiving the right with the operating mind test - A must be able to communicate and understand the function of counsel, and that he can dispense counsel even if its not in the As best interests. A doesnt need analytical ability.

DETAINED PERSONS
statements under the Youth Criminal Justice Act o must comply BARD with s.146 informational, consultation and attendance rights consultation and attendance rights young person can speak to and have a lawyer or appropriate adult with them informational young person must understand that they need not speak and they have the rights above, and that any statement they make can be used as E against them

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must delivered in an age appropriate way suitable to the level of intelligence of the A the general discretion to exclude o independent of the voluntariness rule, judges have residual discretion to exclude confessions/admissions o PV must outweigh PJ o Preservation of trial fairness o The broad discretion is keeping with SCC decisions Harrer and Terry endorsed a general power in judges to exclude E in order to preserve trial fairness However, there is little guidance because of wish for things to be flexible Section 7. Of the Charter o Right to silence is a principle of fundamental justice guaranteed by s. 7 o The Charter has supplemented or added to the common law protections in discrete areas S.7 is violated if A is Xex about why he failed to give a statement to the police o Undercover/ detained statements S.7 is violated if detained person has an undercover cop elicit a statement, and will likely be excluded under s. 24(2) of the charter

R v Herbert - H told cops he didnt want to talk. Cops planted an officer in his cell. The undercover cop got H to talk - depriving H of right to make a free and meaningful choice as to whether to speak or remain silent. Confession was excluded.

The rule in Herbet will only be violated if the undercover cop causes A to make comments he would not otherwise make Test to see if theres a causal link between conduct of state agent and the making of the statement Was the exchange between the 2 parties akin to an interrogation? If yes, the rule is broken If a state agent assumes a special relationship with the A that it would cause the A to reasonable believe his statements would not be heard by cops, then statements to him are violated. Rule does not apply to voluntary statements made to other inmates o Statutorily compelled statements Can prevent the crown from using statements the A made because of a legal obligation to speak (or what A believes to be an obligation) Some statutes require people to speak to cops in a regulatory context R v White - statute require W to make a statement due to a motor vehicle accident. SCC prevented crown from using this statement - use immunity. Did not mean that W could refuse to make the statement.

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Protection only arises if the admission of the statement would compromise the purpose underlying the principle of selfincrimination Protection from unreliable statements Prevention of using state power to compromise autonomy and dignity o Factors to consider Coercion Adversarial relationship at time of statement Increase of state abuse because of legislation White had no choice but to drive, so she didnt really choose to enter the regulation regime State authority undermined voluntariness Jeopardizing reliability o Derivative evidence At common law, St. Lawrence rule says where involuntary confession leads to discovery of real E, its admissible and so is as much of the confession that con be confirmed by the real E R v Sweeney - A confessed to robbery and said where gun was. TJ found the confession was involuntary but used the common law rule to admit both gun and confession. A challenged, seeking ONCA to over rule the rule in St. L using s. 7 of the charter. Instead, it was held that charter was violated when the police got the involuntary confession. Admissibility of the confession turned on s. 24(2) of the charter. Section 7 and the right to silence - hasnt added to the voluntariness rule - if that rule is satisfied there is no s. 7 breach, because A will have exercised the choice to speak (what s.7 protects) R v Singh - A tried to persuade the SCC to use the constitutional principle to support a rule that it would be contrary to Charter for police to continue to question a detained subject who says he doesnt want to talk. S said a right to silence is pointless if the police can ignore it and attempt to get the A to give it up. SCC said the right is to remain silent, not to be left alone by the authorities. Derived Confessions to persons not in Authority - where the A describe an involuntary confession made to someone in authority when speaking to someone not in authority o the subsequent conversation will also be inadmissible - does this apply if the A adds something more in the telling to the person not in authority? o This is unsettled, but SCC did suggest that the subsequent statement would be derivative and inadmissible (R v T(SG) )

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ILLEGALLY AND UNCONSTITUTIONALLY OBTAINED EVIDENCE AND TRIAL FAIRNESS

The evolution of the inadmissibility of some improperly obtained evidence: At Common Law: - PV of E does not change because it was gotten illegally - Common law generally refused to reject E because of how it was obtained o Even statements obtained violating the voluntariness rule were excluded because they were unreliable, not because of how they were gotten R v Wray - SCC excluded Ws involuntary confession but allowed the gun the cops found. W said that the gun should be excluded. SCC said the gun should be admitted because it would produce an accurate verdict - at the trail, the issue is not whether the police officers acted illegally, its whether W did so, time to deal with police illegality was at an action about it - but police discipline was rare o harmed the repute of justice it was not until the Charter that things changed with s. 24(2)

The Charter - most E obtained illegally is now subject to s. 24(2) and potential exclusion - some unconstitutionally obtained E will be admitted, provided that it does not bring admin of justice into disrepute - SCC said exclusionary remedy should be taken seriously in R v Stillman (1997) - Approach was aggressive and rigid, and in 2009, SCC took the decisions in Grant and Harrison and rejected the 2 box approach THE CURRENT LAW Summarized - s. 24(2) states o anyone whose charter rights/freedoms have been infringed can apply to obtain a remedy from the court o in those proceedings, the court can exclude evidence that was gotten by infringing rights, if admitting it would bring the administration of justice into disrepute - must satisfy the court on BOP that the preconditions of s.24(2) have been met - the first requirement - obtained in a manner o E can be excluded if it was gotten in a way that breached Charter rights o A causal connection is not strictly required Examine whether there is a sufficient connection, given temporal, contextual and causal factors so that it seems breach and discovery are part of the same transaction nd - The 2 requirement - admission could bring the administration of justice into disrepute o Where E is obtained in a manner that violates the charter, it will be excluded if The breach is serious enough; and 64

o o o

The impact on the Charter protected interests of the A is significant enough to Outweigh societys interests in the adjudication of the case on its merits The court will assess whether a reasonable person, fully informed of all the circumstances and values underlying the charter, would conclude that admission of the E could bring the administration of justice into disrepute Focus on the damage that could be done to the long-term interest in maintaining the integrity and confidence in the justice system Guaging the seriousness of the breach Blameworthiness of the conduct - officers state of mind about Charter compliance, also extends to systemic issues Significance of the impact Examining the nature and degree of intrusion into the interests of the A Impact varies with the kind of E admitted Statements: intrusion is generally high, because As right to choose to speak is aggressively protected. As a result, statements are presumptively inadmissible. Impact reduced if theres a sound basis for concluding that A would have spoken anyway, or the breach is highly technical. Body samples: degree of intrusion depends on extent to which privacy, bodily and human integrity are compromised. Non-bodily physical evidence: impact turns on manner of discovery and whether it undermines Charter protected privacy interests of the A. Derivative evidence: real evidence that is a result of badly gotten statements - the impact will turn on the charter breach that led to the derivative evidence. Intrusion will generally be significant unless o Breach had no real impact on the charter protected interest of A to make a choice o The statement would have been made anyway o Likely that the E would have been discovered anyway Societys interests in adjudication on the merits Reliability of the E Importance of that E to the case for the Crown

The Law Illustrated

R v Grant - police were neighborhood policing a high crime school area. Stopped, and questioned G because he was fidgety and was staring at them. This was a detention, because a person in Gs position would think he had no choice but to comply with their demands. The detention was unlawful and contrary to S. 9 of the charter because cops didnt have reasonable grounds to suspect G had offended.

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They also breached the informational obligations under 10b. The court held that a gun (derivative E obtained unconstitutionally) was admissible because the breach was not serious enough to undermine justice, because the Os believed they were acting lawfully and the law of detention was unclear at the time. Police conduct was not abusive, nor racially motivated. S.9 breach was not severe, but more than minimal. S. 10b breach was significant. G wasnt given an informed choice to speak. While the impact of the breach of Charter violations weighed heavily for exclusion of the gun, the public interest in the case weighed highly for its admission. SCC admitted the gun into E. R v Harrison - cop on a highway stopped a car because it didnt have a front license plate (required in ON). During pursuit, cop realized car was an AB car, which isnt required a front license plate. Cop chose to pull the car over anyway because he thought it would look bad if he didnt complete what he started. Cop discovered car was rented in BC, and knew that drug couriers often rented cars. Cop had a hunch the car was carrying drugs. Determined driver had a suspended license. Arrested driver, searched vehicle (he claimed to look for the missing license, but this was unnecessary because discovering the license is irrelevant to driving with a suspended license). Cop discovered boxes of cocaine. E was obtained in a manner contrary to the charter because the detention was arbitrary (s.9 charter) search was illegal (s.8 Charter), and this led to discovery of the E. Breaches were serious, cop showed a blatant disregard for charter rights. E was highly reliable and crucial to crown case (favoring admissibility). Applying s. 24(2) the TJ erred in admitting the E by giving undue emphasis to reliability. SCC held that the stop and search without reasonable grounds, aggravated by misleading testimony made the breach significant enough that the court could not condone the charter breaches. The E was excluded. THE APPLICATION FOR EXCLUSION: Technical components: - A must apply for exclusion - A must establish on BOP that charter rights were breached by a state agent The application - some courts require formal notices of motion, others allow mere submissions - dealt with during a voir dire - courts reluctant to deny relief because of procedural flaws A court of competent jurisdiction - over subject matter, person, and to grant a remedy - any superior court can be competent for granter charter relief, but 24(2) applications are brought before the trial court The Applicants CH rights are violated - A must establish on BOP that rights were infringed - This raises 2 obstacles o Its the As OWN rights that must be violated R v Palitto - A couldnt rely on s.24(2) to exclude writing samples obtained from an accomplice in violation of the accomplices right to counsel

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R v Edwards - A didnt have a reasonable expectation of privacy in his girlfriends apartment o The CH right must be violated by a State Agent (SA) In Harrer A claimed that a statement made to American authorities should be excluded because they didnt respect the 10b rights. Court said could not relay on s.24 because no Canadian SA actions were impugned. Test is whether the charter violation would have taken place but for the actions of a state agent Once its established that the CH rights have been violated, A must establish: - the E was obtained in a manner that breached the rights o A must establish a connection between CH breach and discovery o Case-specific - key questions is that E has been tainted by the CH breach Cases with a causal connection But for the unconstitutional technique, the E would not have been discovered Includes E found with an unconstitutional warrant Derivative E can also meet the test R v Burlingham - gun discovered has a result of a confession made after right to counsel was violated was derivative evidence that was excluded along with the confession. If the factual connection between the breach and the discovery is too remote the E will not be obtained in a manner and will not be excluded

R v Goldhart - police learned of a W through an unconstitutional search. In a sense, the Ws testimony was evidence that was available because of a CH breach, but no causal connection was found. SCC said factual connection too remote because finding the W does not make the testimony available.

Cases without a causal connection If the CH violation and discovery are integral parts of the same transaction, it will be found to have been obtained in a manner

R v Strachan - cops found drugs using a valid warrant. While conducting that search, police violated 10b requirements by refusing to allow S to call a lawyer. Crown argued that CH violations had nothing to do with the discovery of the drugs, so they could not be excluded. SCC disagreed, and held that so long as the discovery is part of the chain of events, the connection is not too remote. Both the 10b breach and the discovery were part of one transaction - searching the home.

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Its arguable that the breach doesnt even have to precede the obtaining of E so long as its the same transaction An overall evaluation Ability to rely on temporal and contextual connections provides the obtained in a manner requirement with some flexibility A meaningful factual nexus between the breach and the discovery of the evidence - The effect of the admission on the administration of justice o Assessing disrepute Court must gauge Seriousness of the CH infringing conduct Impact of the CH breach on the protected interests of the A Societys interest in adjudicating the case on its merits THEN those 3 factors are weight to determine whether A reasonable person Fully informed of all the circumstances and the values underlying the CH Would conclude that admitting the E would bring the administration of justice into disrepute; based on o Not the immediate reaction to the case o But the long term interest in maintaining the integrity of o And public confidence in the justice system R v Payette - crown urged that E gotten by an unconstitutional sniffer dog search should be admitted because the search was transitory and the E reliable. Court recognized that this refers to all sniffer dog searches - if too much weight is given to those qualities, that would lead to routine admission of such evidence, harming the repute of justice. o It is a balancing exercise, not capable of mathematical precision o Provided TJ has considered the correct factors, deference should be given to their decision But in cases like Harrison, where TJ placed too much emphasis on the interest in adjudicating the case (a contest between degree of police misconduct and seriousness of the offense), the appellate court can redo the calculation Rejected Practices - prior to Grant , the courts applied the Collins/Stillman framework - two box approach o E would be put in 2 boxes: Box 1 - compelled conscriptive E excluded unless Crown could prove the E would have been discovered without breaching the CH

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no consideration to how serious the breach or how much damage the exclusion would do to the admin of justice Box 2 - non-compelled or non-conscriptive E Only excluded if more harm would be done to the repute of the admin of justice by admission than by exclusion o Logic was that Crown had to prove its case without calling A as witness, not fair if they could indirectly co-opt the A as a W by presenting out of court statements from A by violating the CH In 2009 Grant held that a fair trial concept is multi-faceted and contextual o Near automatic exclusion of Box 1 E was irreconcilable with 24(2)s command to judge the impact of admission on the repute of justice o also produced anomalous results - more apt to exclude a plucked hair than real E secured from an objectionable strip search take care when evaluating pre-grant case law, as the court has o rejected the equation of self-incrimination and other conscriptive E o reduced the role discoverability plays o marginalized reliance that can be placed on seriousness of the offense as a relevant factor in 24(2) reasoning

Assessing Disrepute: STEP 1: Gauging the seriousness of the CH infringing conduct - refers to the gravity of the conduct - degree of harm is not assessed until later - gravity is affected by o blameworthiness o departure from CH standards o presence/absence of extenuating circumstances - blameworthiness o pre-Grant authority on the good faith/bad faith of the SA can still give guidance o note that both good faith and bad faith can be more or less unreasonable o good faith relates to officers belief they are being CH compliant, not that its necessary to breach the CH to catch the bad guy officers are not expected to anticipate or predict the outcome of what hasnt yet been declared unconstitutional o one moves off the good faith spectrum when the officer should have known about the CH limit R v Kokesch - SCC refused to treat an inadvertent violation as being in good faith because the need for a search warrant to invade the privacy of a residence, even to conduct a perimeter search, should have been clear to the Os in light of established decisions about warrants. o Carelessness can be bad faith Ex. Officer was rushed and did not include accurate information in a warrant application R v Dhillon o extreme bad faith is when violation is willful R v Burlingham - a forced to accept a deal before his lawyer was available

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R v Clarkson - police interviewed A when she was drunk, knowing if they waited for her to sober up shed want a lawyer o Willful CH violations will generally require exclusion o Institutional and system conduct Officers might, in good faith, comply with internal policy that is defective R V Wong - admission of E was aided by legal advice officers got before unlawfully installing video cameras It seems strange that the violation or rights is reduced in seriousness because someone higher up made a more serious mistake As such, bad advice or bad institutional practices will do little to mitigate breaches o Pattern of violations Will aggravate the seriousness, as it demonstrates a lack of respect for law Degree of departure from CH standards o More deviation, more compelling case for exclusion o A departure will be less major where the defect is technical in nature

R v Wise - cops installed a tracking device but were unaware the warrant had expired. Held that the CH violation was not serious. o Departure from CH standards will also be more intense if vulnerability of the A is exploited R v Evans - right to counsel violation was more serious because A was mentally challenged. extenuating circumstances - necessity and emergency o necessity in breaching CH to preserve E can reduce seriousness of CH violation o more is required than the possibility that E might be destroyed

R v Silveira - Ss arrest was very public, and it was likely his co-conspirators knew of his arrest. The probability that they would destroy any E in their homes was likely. o In emergency public or police safety cases, the approach is more generous. R v Strachan - delay in providing a right to counsel caused by desire of police to get a volatile situation under control. Justified the admission of the E STEP 2: Gauging the impact of the CH violation on the CH interests of the A - the more intrusive the breach, the greater danger to the administration of justice if CH right is discounted - statements o unconstitutionally obtaining statements undercuts the ability of A to make a choice about whether to speak, be silent or self-incriminate o significant intrusion into liberty/autonomy

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o there is a presumption that statements made in breach of the CH will be excluded can be overcome when balance of factors favor admission o impact of a breach will be lessened where there is no causal link between the breach and the statement R v Harper - statements made after a defective right to counsel warning were admitted, because prior to being detained the A had already blurted out that he was the one the police were looking for. R v Hachez - H declined to contact counsel, and then confessed. Police changed focus of interrogation to other crimes - should have re-advised him as to right to counsel but they didnt. Confessions to other crimes were admitted because TJ was satisfied that H would have said them even if he had been advised of his right to counsel. bodily evidence o the A whose bodily samples are taken is not a W against himself statements create new info, body samples just exist o obtaining bodily samples contravenes the CH because they violate the privacy and dignity of the A nature, degree of violation will fluctuate with sample - ex. Dna is more invasive than fingerprints. o There is no presumption favoring the exclusion of bodily E o Degree of intrusion is assessed on a case by case basis o Alcohol driving cases Grant characterizes breath samples as non-intrusive and less severe, and more apt to result in admission Non bodily physical evidence o Intrusion is influenced by nature of the search/seizure that produces the E More serious Body cavity searches Strip searches Less serious Pat down/ frisk o But note a pat down is still more offensive than property searches o what the search uncovers can also affect intrusiveness - ex. Search that uncovers personal documents more intrusive than one that uncovers articles of clothing derivative E o usually, the impact on the CH will be high because the breach that uncovers the derivative E is an unconstitutionally obtained statement o discoverability can reduce the intrusiveness - more likely that it would have been obtained, the lesser the impact of the breach discoverability and causation o if CH does not lead to discovery of the E sought to be excluded, or the E would have been discovered even without the breach, the intrusion in the CH protected interests is mitigated

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STEP 3: Judging Societys Interest in an Adjudication on the Merits - weight varies according to o reliability of the evidence o importance of the E to that case for the crown - reliability of the E o there is no public interest in admitting unreliable E o early SCC cases about 24(2) did not consider reliability o R v Belnavis held that the more reliable and probative the E, the greater the costs of its exclusion o the greater the breach and its impact, the reliability of the E will not necessarily save it from exclusion - the importance of the E o exclusion of E may more negatively impact the repute of justice if the remedy effectively guts the prosecution o even if evidence is crucial, exclusion will occur if a CH breach is serious enough or its impact is significant enough o the long range goal is the interests of justice, however - this doesnt mean that if the crown REALLY needs the E, it will stau - The seriousness of the Offence o Under the Collins/ Stillman framework, seriousness of the offence was important Greater costs if E excluded from a serious offense Ex. R v Colarusso - appalling circumstances under which impaired driving occurred justified admission of E But serious breaches still led to exclusion (Feeney, Stillman) o Now, seriousness is largely immaterial to 24(2) analysis, though it is still mentioned from time to time and pre-Grant attitudes seem to remain EXCLUDING EVIDENCE UNDER s.24(1) of the CHARTER - 24(1) can exclude E to remedy CH violations that do not occur at the time the E is obtained, but which relate to that E o ex. Remedy an abuse of process by the crown - R v Bjelland the SCC ruled that exclusion under 24(1) is only available as a remedy where its admission would result in an unfair trial or would undermine the integrity of the justice system - Exclusion may occur if the receipt of E by a court would breach the CH, ex. Admitting statutorily compelled statements that would compromise selfincrimination principles (R v White) EXCLUDING UNFAIRLY OBTAINED EVIDENCE WITHOUT A CHARTER VIOLATION - courts can do so R v Harrer - A applied to exclude statements made to US authorities. US authorities had complied with US law, but if the interview had been done in Canada, A would have been denied right to counsel. A couldnt rely on 24(2) because there had been no misconduct by state agents. Court did not that had the actions of the US rendered the E unfair, the E should be excluded. In the circumstances, the E was allowed but the discretion to exclude was recognized by the SCC.

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courts tend to rely on the following factors o manner of obtaining E renders it unreliable o E, by its nature, could be misleading o The seriousness of the misconduct o Whether the A is compelled to incriminate himself

IMPROPERLY OBTAINED EVIDENCE AND CIVIL CASES - conventional view is that the 24(2) remedy is only available in criminal cases or where the state seeks to rely on unconstitutionally obtained E - judges conducting civil trials do have an exclusionary discretion, and must exercise it consistently with CH values o can exclude E in private, civil litigation Mooring v Canada (National Parole Board) - SCC recognized that fairness applies to all public authorities making administrative decisions, and may require the exclusion of unconstitutionally obtained E.

CHAPTER 7: PRIVILEGE
General Principles - a W can refuse to answer certain questions or produce certain documents - SCC said privilege was a rule giving a person protection from disclosure of communications from outside the trial setting o Descoteaux v Mierzwinski (concerned with solicitor/client) - Compelling reasons must exist before privilege is recognized o Overriding social concern or value o Matter of policy - Wigmore test for determining privilege: o Communications must originate in a confidence that they will not be disclosed o This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties o Relation must be one which in the opinion of the community ought to be fostered o The injury to the relation by the disclosure of the communications must be greater than the benefit gained for the correct disposal of litigation Class Privileges and Case-by-Case Privileges - class privileges o prima facie presumption that communications are privileged and inadmissible party wanting admission must show why the communications should not be privileged there are few of such classes at common law - solicitor/client under statute - spousal communications - case-by-case o a prima facie presumption that the communications are not privileged and are admissible 73

party wanting exclusion must show why the communications are privileged court has accepted the Wigmore test as a general framework

Waiver of Privilege - the holder can waive the privilege (the person for whom the benefit of privilege exists) - issue arises if the government is the holder o narrowly, the holder is the executive - this would insulate government from any claim of waiver by its civil servants - where a W is a holder, none of the parties have a right to assert the privilege, and non of the parties are harmed if a TJ overrides a Ws claim for privilege (just the W) o neither party can appeal the error o if judge upholds privilege in error, then the party that lost the info to privilege can appeal - waiver can be express or implied o note that a person will seldom waive privilege unless it is to their advantage o but waiver cannot be used as both a sword and a shield Inadvertent disclosure of privileged information - traditionally, the privilege is lost and communication is admissible o privilege protects the source, and not the information o privilege is narrowly construed to avoid loss of E o those involved in the privileged relationship are obliged to safeguard their communications, and if they dont the privilege is lost Rumping v DPP - A was convicted of murder. Wrote letter to wife, confessing, and letter was intercepted and admitted at trial. Under statute, neither husband nor wife could be called to testify about the letter, but this didnt preclude admission of the letter through 3rd parties. modern decisions afford greater protection flowing from the SCC decision above, D v M . o privilege is a substantive rule o counsel have been remove when they decide to make use of privileged documents sent by mistake in civil cases, disclosure doesnt result in loss of privilege - its a case-by case matter

SOLICITOR AND CLIENT PRIVILEGE - arises because lawyers are indispensable to the administration of justice o clients seeking advice need to be able to speak freely o privilege belongs to client - client can waive/ authorize solicitor to disclose - TJ must ensure lawyers only disclose confidential things with consent of client - Successful Challenge to s. 488.1 CC - a procedure for dealing with docs seized from a lawyer under a warrant

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o Problem was the section stated that if lawyer didnt claim privilege, it would be lost without client even knowing o Unconstitutional and was struck down o Now every effort must be made to contact lawyer and client Wigmore outlined SC priviliege o Where legal advice is sought o From a lawyer in that capacity o The communications relating to that purpose o Made in confidence o By the client o Are permanently protected o From disclosure by himself or the lawyer o Except if waived There is no need for a retainer o Contact with lawyers secretary/clerk are also privileged NOTE: in house counsel, government lawyers - sometimes will communicate about issues outside the law - these ARE NOT protected The communications must be intended to be confidential o If an unnecessary 3rd party is present, privilege is undermined o So long as parties have a joint/common interest, it will remain privileged

Pritchard v Ontario Human Rights Commissioner - P wanted access to a legal opinion given to the commission on her claim, citing joint interest. SCC found the common interest exception did not apply because there was no shared interest between the commission and P. The commission was a disinterested gatekeeper and not an advocate for the P. what are communications?

Maranda v Richer - RCMP wanted a warrant to take fees paid to a lawyer by a client. Crown argued that the information was not privileged (the SCC had ruled in R v Fink that no warrant could be issued regarding Solicitor/client info). Crown said that fees were pure fact, not communication. Court rejected this, adopted functional approach. If the fact arose out of the SC relationship, there is a presumption that the fact, info or communication is privileged. is the identity of a client confidential? o In Fink the SCC said the clients name may be protected, but its not always the case o Ordinarily, not - but client may seek advice in order to keep identity a secret. Privilege cannot be used to keep client from disclosing otherwise nonprivileged material o Ex. Client is getting audited, cannot send her tax docs to lawyer and say they cannot be disclosed because of privilege. o Does not apply to objects (stolen property, etc.) as these are not communications Privilege survives the relationship and the death of the client

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o Exception for wills cases - principle is that interests of the client are furthered by disclosure R v Jack - J was on trial for murder of his wife. At issue was her state of mind prior to her disappearance. Wife had gone to a lawyer prior to death. MBCA took principle from above in order to allow communications from wife and lawyer to be admitted. Communications in furtherance of crime or fraud - not part of the solicitor client relationship and therefore not protected - there is a distinction between future and past crimes o no privilege for future crimes o but there is privilege for advice sought about past crimes o privilege also exists for legal advice seeking to avoid committing future wrongs - suggesting criminal wrongdoing is serious, so person raising it will have to give an evidentiary foundation o not sufficient to have proof of a crime and then a consultation with a lawyer - in Blank v Canada the SCC said that privilege will not protect any misconduct from the light of day - and its suggested that the privilege should apply where the communication is made in furtherance of any unlawful conduct o this would include, torts, breach of contract, regulatory offences - contrary to the administration of justice to allow communications about circumventing the system to be protected Innocence at stake - in Canada no privilege is absolute, but it will be protected an only overridden as a last resort - privilege will yield to As right under s. 7 to make a full answer and defense, and if it stands in the way of an innocent person establishing their innocence R v Brown - SCC outlined the McClure test: The Threshold test - A must establish that: 1. the info he seeks from the solicitor client communications is not available from another source; and 2. he is otherwise unable to make a reasonable doubt If the threshold test is not met the privilege stands. If it is met, the judge goes on to the Innocence at Stake test: 1. A seeking production of the communication has to establish evidence to conclude that a communication exists that could raise a reasonable doubt as to his guilt. 2. If such an evidentiary basis exists, TJ should examine the communication to see if it is likely to raise a reasonable doubt. Note that the burden in the 2nd stage (likely to raise RD) is stricter than in the 1st (could raise RD). Onus is on A to establish each element of the test on the BOP. R v Brown - B charged with murder. He was linked to the murder and a jailhouse informant said he heard him confess. Before trial, B wanted solicitor client communications that took place between Benson and his lawyers. Foundation for application: statement from Bensons gf that Benson had told her he had killed the V

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and said so to his lawyers. Police investigated, but found no other E linking Benson to murder. Judge granted the motion and ordered production of documents from Bensons lawyer. Benson appealed to SCC. SCC overruled TJs decision and detailed above procedure. SCC overruled because: - in the threshold test, one has to determine if info was available from another source o it was, from the gf - hearsay rules could have been relaxed to allow it - courts also said its better to delay the McClure application to the end of the trial, because the TJ will better to be able to assess the factors required Criticism about the McClure test - that A has to show he cant raise an RD without the disclosure is unworkable o puts D lawyers in a place to argue that their case isnt strong enough to avoid a conviction o in a judge alone trial this will prejudice their case by admitting that their only hope is the info - text states test is unduly restrictive - court has even acknowledged that a failed application could lead to a wrongful conviction How do you protect the party whose privileged items are produced? In Brown court set safeguards: - TJ only order needed info be disclosed - Communications are not given to the crown - if A decides not to use them they will not come to crowns attention - If info is used, the privilege holder is protected by the charter by use immunity and derivative use PUBLIC SAFETY - this exception to solicitor client privilege recognized by SCC in Smith v Jones o public safety is threatened or serious harm is imminent, privilege is set aside Smith v Jones - A charged with sex assault on a prostitute. Counsel referred him to psychiatrist in prep for a guilty plea. During that interview, A detailed his plan to kidnap rape and murder a prostitute. Psychiatrist told counsel that A was dangerous and would commit more offenses. Counsel wasnt going to do anything. Psychiatrist applied to the court for a declaration the he could disclose the As communications. SCC allowed As confession and intent to be disclose. to determine whether public safety outweighs privilege consider: o CLEAR risk to identifiable group of people or persons? o SERIOUS risk of bodily harm or death? o Is danger IMMINENT? These exceptions are available for all privileges

LITIGATION PRIVILEGE - counsel will have to interview Ws, consult experts, research in prep for advice - will accumulate a lot of info, and this is subject to litigation privilege - the rationale

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o was argued that it was a branch of solicitor client privilege, but this was said not to be so in Blank o Lit privilege is separate from SC privilege in these ways SC exists to protect the relationship, lit exists to facilitate the judicial process SC exists when a client seeks advice, regardless of whether litigation is involved SC privilege is permanent, lit is temporary and ends with litigation SC protects client confidences SC is highest privilege, not likely to be overridden - lit privilege will more likely be overridden. Blank v Canada - key issue was whether litigation privilege expired or was protected permanently under SC privilege. B and a company were prosecuted for pollution offenses. Charges were dropped. B began suing government for damages in fraud, conspiracy, perjury and abuse of powers. Wanted disclosure about the earlier prosecutions. Government said that they were privileged under SC privilege. SCC said they were caught by lit priv and that ended with the litigation. Parameters of litigation: includes proceedings that involve same or related parties and come from same or related cause of action. The documents in question were not caught by the priv and ought to be disclosed. o Solicitor client privilege extends 3rd parties If 3rd party is an agent Expert witness o Lit priv creates a zone of privacy for preparation of litigation and no more o Lit priv is less sacred that SC priv, and has narrower protection R v Uppal - people being tried separately for same offense as Uppal were given copies of W statements that U got when prepping defense. TJ said that the W statements could assist the others and would not prejudice U by disclosure. Lit priv was overridden, and would not have happened for SC priv. o Lit priv also requires an adversarial process - does not attach to materials for an inquest, etc. The Dominant Purpose Test o Attaches to info made for the purpose of litigation commenced or anticipated

Waugh v British Railways Board - Ps husband was employed by the board and he died in a work accident. Internal report was prepared, with a heading stating it was intended for litigation. D claimed privilege and refused to produce it to P. In the circumstances, the report had 2 purposes: railway safety and legal advice in anticipation of litigation. HL adopted the dominant purpose test, and as the purpose of the report was not dominantly for getting legal advice, it had to be disclosed. the status of copies

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o unresolved issue - if originals are not privileged, should the copies in a lawyers possession be privileged? 2 responses outlined in Hodgkinson v Simms - majority found copies to be privileged because counsel need to be able to make case in confidence the info they collect will be protected. Dissent, would not protect copies where the originals would not be protected. Should not be dealt with in an all or nothing fashion. In Regional Municipality of Ottawa Carleton v Consumers Gas ONCA differentiated between corporate search records and legal research. Corporate documents should not be privileged because the original isnt. But legal research speaks to the legal theory of the lawyers case, and should be privileged. The implied undertaking rule o Documents gathered on discovery are only to be used for the litigation at hand, and upon receiving them the lawyer makes an implied undertaking to that effect o Rationale is 2 fold Discovery process compels litigants to produce documents and answer questions, an invasion of privacy and assuring litigants their info is privileged promotes honesty, candidness o sanction for breach is contempt o can make a motion to use them, but before allowing it court must be satisfied that justice outweighs prejudice o applicant must establish on BOP that public interest is of greater weight

Juman v Doucette - SCC outlined how to balance the public interest with the prejudice suffered regarding the implied undertaking. They said to consider: - that the rule is not absolutely protected, but should not be readily set aside - identify the competing values in the particular case - ex. Public interest in safety may trump the rule, but the concerns over self-incrimination may need greater protection - prejudice to the parties - if material is in an action with same/similar parties, prejudice may not be an issue, but note courts have not favored attempts to use for other unrelated actions - the rule shouldnt shield contradictory testimony - not allow one to play games with the administration of justice o does it apply in crim proceedings where Crown discloses info to the defense? P (D) v Wagg - ONCA examined whether this would be allowed, but did not decide. Justice Rosenberg observed: - the rule is one for civil court - principle is that because a party can access docs for one purpose does not mean they can access them for another - policy reasons are in place - example highly person information may have been made available

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although 3rd parties must accept intrusion in pursuit of a proper result, law should provide them with protection against use of the info for different purposes if it were to occur, Crown and police should be given notice if one party is in possession of the Crow material, fairness dictates its produced any info used in courts should be produced court seems to be moving in direction of endorsing implied undertaking rule in criminal proceedings

SPOUSAL PRIVILEGE - s. 4(3) CEA codifies that a spouse cannot be made to disclose communications made during marriage - competency is not the same as privilege o competency may prevent a spouse from testifying at all o privilege means someone can testify and refuse to answer certain questions - if a spouse is competent to testify, it does not sweep away privilege R v Zulstra - before calling the spouse of A, defense sought a ruling as to whether the spouse could assert the s.4(3) privilege. ONCA held that the privilege could be asserted, but it would be in the presence of the jury. Court also held that when the privilege was asserted a special instruction was called for - that the privilege is a statutory one spouse is entitled to assert at trial and that it belongs to the witness, not A, and it is the Ws to assert or hold. text says that Canada should abolish spousal privilege (like UK has) protects communications during the marriage and ends with the marriage o so protects husband and wife, not widows/widowers or divorcees. What does any communication mean? o Wigmore thought privilege should protect confidences/ secrets only o Statute does not confine it to that, and there is authority that it protects ALL communications Privilege does not extend to observations of spouse (R v Gosselin) If one spouse wishes to waive the privilege the other cannot stop them from doing so

SETTLEMENT NEGOTIATION PRIVILEGE - applies to both civil and crim - nature and scope of the privilege o in place as a matter of public policy - allows people to resolve issues without trial o some uncertainty as to form of the privilege prevailing view is that its a blanket and discussions made for purpose of settlement are prima facie privileged some say it should be decided on a case-by-case basis must balance the need for disclosure and the harmful effects to the parties

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class privilege - preferred approach provides a starting point - the party seeking disclosure must convince the court to override the privilege provides certainty in application promotes operation of the legal system class privilege - will be recognized when: a litigious dispute exists or may happen communication must be made with the express/implied intention that it would not be disclosed to the court if negotiations fail purpose of communication must be an attempt to affect a settlement use of phrase without prejudice is not required nor is it conclusive

Histead v Law Society of MB - correspondence exchanged as to appointment of case management judge. One lawyer made mean remarks about one judge. The phrase strictly confidential and without prejudice was on the top of the letter. It was forwarded to the law society. Lawyer claimed privilege at disciplinary hearing. MBCA said that the letter was about process and had nothing to do with settlement. Overriding the privilege o onus lies on one seeking disclosure to prove an exception o it is not a rule of law or fundamental civil right - but it is in the publics interest and a compelling case must be made o key factor will be relevancy and use of the communications policy is to protect admissions made in the course of settling o if the communication is not sought to be used against its maker and theres no PJ, the public policy is not triggered and the courts may override

R v Bernardo - ordered production of negotiation communications between Crown and Homolka, as shed already been sentenced and could not be prejudiced. o Must show relevancy for a purpose other than as an admission AND that admission is necessary o Meyers v Dunphy - recognized exceptions if communications have resulted in a concluded agreement to show an agmt concluded should be set aside because of fraud/undue influence if a statement made causes another party to act (estoppel) exclusion of E would act as a cloak for perjury/ blackmail to explain delay in responding to an application whether C had acted reasonably to mitigate his loss whether an offer is expressly made without prejudice except as to costs Dos Santos v Sun Life assurance - P reached a settlement for injuries from a car accident. SL gave long term disability to P and had a subrogated claim to monies recovered. A global settlement sum was revealed, Sun life wanted to know portion 81

attributed to disability. P claimed privilege, which existed but an exception was found to prevent unjust enrichment. o So, first consider if a settlement is at issue - if it is, priv does not apply. o Relevance and prejudice must be considered o There also must be public interest to override CASE BY CASE PRIVILEGE - Wigmore 4 Criteria o Communications originate in a confidence that they will not be disclosed o Confidentiality must be essential to the maintenance of the relationship between the parties o The type of relationship should be fostered o Injury by the disclosure of the communication must be greater than the benefit gained for the disposal of the litigation - Examples o Journalists o Clerics o Physicians o Social workers o Son/daughter - SCC has said new classes of privileges must be made by parliament (R v Gruenke), but will recognize on a case by case basis using the W4 (Slavutych v. Baker) M. (A.) v Ryan SCC - R had been Ms psychiatrist. M was 17 at time of treatment. R had sex with her and was convicted of indecent assault. M brought a civil action, saying she had mental distress and anguish and was left with lasting trauma. R said the sex was consensual and did not cause the trauma alleged. M wanted to see a new psychiatrist but wanted to keep those communications confidential. During exam for discovery R requested new psychiatrists notes. M raised privilege. At lower court hearing, it was found that the communications did not originate in confidence, as M and new Dr. must have known that they may have to disclose. Justice McLachlin said that this did not change the fact they were made in confidence. It was found that confidentiality was essential, and that the relationship between a psychiatrist and a patient should be fostered. As to whether the injury would be greater than the benefit, McLachlin said that the profession and patient would both have an injury as would the values under s.8 and s.15 of the Charter (privacy and equal treatment). As to benefit in court, said that where notes would prevent an unjust verdict, they should be produced but this is less compelling in a civil than a crim case. a rare example of where case by case priv was found:

Letourneau v Clearbrook Iron Works Ltd. - D wanted to examine P about conversations he had with his common law partner about his invention. P claimed privilege, and spousal privilege was not applicable. Judge found it existed, but note that the E sought was marginal versus the potential injury to the long standing relationship.

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court should also consider partial disclosure, which the SCC ordered in Ryan o note that this method and the W4 analysis leads to uncertainty, the biggest criticism.

Journalist/Source case-by-case privilege R v National Post - SCC recognized this sort of privilege was available on a case-bycase basis. Court applied the W4 and found the criteria applied. The 4 th criteria does most of the work - balancing injury with benefit. The weighing process should include - nature and seriousness of offence - centrality to the dispute of the E sought - potential PV - type of info (in this case the information was real E) - purpose of the investigation - whether facts or information are available from another source - the degree of public importance of the story and whether the story is already in the public domain. It was argued that once the first 3 W4 criteria were met, the onus should shift to the party seeking disclosure to show why the disclosure should be ordered. Court disagreed - until all 4 are established no privilege arises.

PROTECTION OF THIRD PERSON RECORDS IN CRIMINAL CASES - Crown must disclose to A all relevant info in its possession o Duty is triggered by a request o Duty is premised on 2 assumptions The material the Crown has is relevant to Ds case The material will likely comprise the case against the A - Crown can refuse to make disclosure on grounds that info is irrelevant, privileged or its disclosure is governed by law - Law cant make Crown disclose what it doesnt have, and the duty does not attach to other non-involved agencies o Police have a corollary duty to disclose to the crown, however - Prior to R v McNeil corollary duty applied only to fruit of investigation, but this case extended it. R v McNeil - M was charged and convicted of drug charges. Arresting office was crowns main witness. Prior to sentencing A learned the officer was facing discipline and charges about misconduct on another occasion. A wanted production of the related documents. Crown said they were not fruits of investigation and to secure them M would have to meet OConnor test. SCC said that misconduct could impact case on the accused, and should be disclosed. Crown is under duty to inquire when put on notice of such info. scope of duty to inquire not yet fleshed out, but it does apply to government records o A does not have freestanding right to adequate investigation of charges o A does not have a constitutional right to direct the conduct of the investigation

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o The disclosure right does not extend to require the police to investigate certain things R v Darwish As for work product - Crown notes, etc, this is also uncertain. Different considerations apply to info that 3rd parties have - strangers to the prosecution with no duty to assist the D 2 regimes for such prodution - CC 278.1 to 278.91 apply to sex offence cases, and the regime in OConnor applies to others o OConnor was a sex offence case but it provoked the passage of CC ss above which limited its application

The Common law in R v OConnor - first attempt by SCC to balance As right to full answer with 3 rd party right to privacy - O was a former catholic priest charged with offences against former students - D wanted disclosure of complainants medical, counseling and school records, which crown did not have - Court used constitutional principles to develop a 2 step procedure o A must convince TJ that info is likely to be relevant Reasonable possibility that info is logically probative to issue or competence of W If this is satisfied, info produced for TJ to review o TJ examines records to determine whether and to what extent they should be produced, done so by balancing interests - A majority in the SCC found that the documents provided to the crown became public property - Procedure to be followed in an OConnor application is o A gets a subpoena under ss. 698(1) and 700(1) CC and serves it on record holder, which compels them to attend court with the material o A also brings an application showing records are likely relevant at trial, with notice given to Crown, the person who is subject of records, and anyone else with a privacy interest o Application is brought before the TJ o If record holder or other interested party claims that the documents are privileged, the documents will likely be barred from production o Where privilege is not in question, TJ determines whether production should be compelled according to the 2 steps from OConnor - When it comes to balancing, if the material is relevant to As right to make full answer they will likely allow the production - Privacy interests arent discarded - the court can put conditions on the information Third Party Records in Sexual Offences: Legislation - legislation is broad in scope and applies to both complainants and Ws - s.278.1 defines record o any form of record containing personal information for which there is a reasonable expectation of privacy o gives list of records, if record sought is on the list then must rebut presumption of expectation of privacy

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legislation applies even if the W has given the records to the Crown - the crown must then notify the A they have it legislation adopts 2 step test from OConnor and changes it

Step 1 (a): should inspection occur - the relevance inquiry - must be a reasonable possibility that the info is logically probative to the material issues or evidence relating to credibility of W and the other E in the case o this regime, established in Mills is meant to counter assumptions about sex assault victims o s.278.3(4) says that any of the assertions listed dont establish on their own that the record is relevant - A must be able to point to casespecific E or info that record is relevant to issue at trial o must establish an evidentiary foundation that demonstrates a reasonable possibility that the doc will have relevant info Step 1(b): should inspection occur - the interests of justice inquiry - TJ, without having seen the record, must balance the As right to make full answer against the right to privacy of the complainant or Ws o Cf with OConnor - this would happen after step 2, when the judge had already seen the material - 278.5(2) lists 8 factors o record is necessary for full answer o PV o Reasonable expectation of privacy to record o Is production based on discriminatory belief/bias o PJ to dignity and privacy of the person to whom the record relates o Interest in encouraging reporting of sex offences o Interst in encouraging obtaining treatment by complainants of sex offences o Effect of determination on the integrity of the trial process These factors are not conclusive, must be taken into account Step 2: Inspection - TJ reviews record and determines if it should be produced - Considerations o Interest in encouraging reporting of sex offences o Interst in encouraging obtaining treatment by complainants of sex offences o Effect of determination on the integrity of the trial process

PUBLIC INTEREST IMMUNITY - info about certain govt activities should not be disclosed in the publics interest - was once called Crown privilege, but is not called public interest immunity - differs from privilege in 3 ways o protection is not owned by the crown o crown cannot waive the protection o primary purpose is to protect info, not a relationship - the Common Law o court is called on to balance 2 competing public interests admin of justice

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o o o o

government secrets in a criminal action this immunity cannot prevent A to make full answer/defend himself available in both criminal and civil action if protection is rejected civil - state must disclose criminal - crown can choose to disclose or stay the charged usually crown objects to disclosure by way of affidavit from minister or government official objection can be based on either class (ex. Cabinet documents) or content of documents court may be able to determine issue on contents of affidavit alone

Carey v Ontario - leading case. Civil action around the failure of a resort that the government was involved in. Carey alleged breach of contract and deceit. Subpoenaed cabinet documents that dealt with funding of the resort. Government said they were protected as a class with little supporting info. SCC said the documents werent absolutely protected. LaForest rejected argument that there must be rigorous prerequisites to court inspecting the documents. Said the best way for a judge to balance competing interests is to look at the documents and see what they say. o Considerations in balancing Level of decision making Nature of the policy discussions Contents of the documents Time the document is to be revealed Importance of the case Need to have docs to ensure case is fairly presented Whether or not allegations involve government misconduct Ability to make sure that only related facts to case are revealed o Common law applies to provincial matters o Legislation has been passed for federal matters, but it does not cover everything S. 36.1 - 39 of the CEA apply to federal issues - they have been amended by the Anti terrorism act

S. 37 - Issues of a specified public interest - objection can be taken under this section by a government official - concerned with the disclosure of info - if court concludes that disclosure would encroach upon a specified public interest the information can be released, but only if the interest to do so outweighs the interest specified - court must balance the 2 interests o can receive INADM E to do so S. 38 - National Security Issues - imposes obligations on the parties to notify the AG of Canada of any potentially sensitive information that may be disclosed - the AG is empowered to authorize disclosure or enter an agreement about it with the interested party

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application is confidential, and hearings will be in private

Toronto Star Newspapers v Canada - determined that private hearings apply only to ex parte applications. judge hearing the application must determine 3 things o is the info relevant, reasonably useful to the D o if the info is relevant, would disclosing be injurious to international relations, national defense or security o if the disclosure would result in injury, does the public interest in disclosure outweigh the interest in non-disclosure s. 38.14 gives AG override power, that if judge does order disclosure the AG can stop it or impose conditions

S. 39: Cabinet and Committee Information - protects confidences o proposals o recommendations o papers o agenda o decisions o communications - protection is absolute - a minister files a certificate with the court indicating the information falls within the class, and that info is protected Babcock v Canada - established 4 principles to ensure certificate was valid: - made by clerk of PC or a minister of the crown - falls within the categories in s. 39(2) - power exercised must flow from the statute and be issued for bona fide purpose of protecting cabinet confidences - applies to disclosure - if a document has already been disclosed it does not apply This decision also said that the principle applies to tribunals as well as courts, and that the rule is constitutional. PROTECTION OF AN INFORMANTS IDENTITY - this is a fixed rule of law o encourages others to come forward with info o protects the current informant - protects ID, not info provided - only exception is where the E is needed to demonstrate the innocence of an accused person o no exception in civil cases - ID must be revealed if o Informant is a material W o Where informant has acted as an agent, and the A presents a case for entrapment R v Scott - The innocence at stake test is used here and is from SCC decision in McClure

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o A shows basis that without disclosure innocence is at stake o If shown, court can review info to determine if its necessary to prove innocence o Court concludes disclosure is necessary, then only reveal as much as is essential o Crown should be given option to stay proceedings o If crown proceeds, disclosure can be provided

IV. EVIDENCE ABOUT OTHER EVIDENCE: PROVING THE CREDIBILITY OR LACK OF CREDIT OF OTHER EVIDENCE Discrediting Witnesses
The collateral facts rule
prevents the calling of E to contradict an opponents W on collateral matters o 2 approaches the Wigmore test could the fact, to which the error is predicated, have been shown in E for any purpose independent of the contradiction? The Phipson test Proof can only be given on matters relevant to the substantive issues in the case. Proof of contradiction going to credibility is prohibited unless it falls within certain exceptions o Text suggests Allowing E to contradict a Ws testimony is better left to the discretion of the TJ, who will weigh benefits against potential prejudice. Contradiction allowed where PV is not outweighed by policy concerns and in the case of defense E, the policy concerns must significantly outweigh receiving the E Rule is often stated as follows: a Ws answer on a collateral matter to a question asked in Xex is final o Note the rule is not confined to answers given in Xex, it is now understood to apply to the contradiction of any answers - in chief or on Xex PV of such E is that it makes it more probable that W isnt telling the truth Rule is based on policy - allowing proof on collateral matters could confuse TOF by engaging side issues, which take too much time and unfairly surprise aW Difficult comes from determining whether its a collateral fact Leading case, AG v Hitchcock outlined the following test o If the Ws answer is a matter which you should be allowed to prove in E, if it has such a connection that you would be allowed to give it in E, then you may contradict him

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If the only basis for presenting the E is to contradict the W, its INADM If the E assists the TOF in some other way, its ADM This is Wigmores approach o Phipsons approach is more restrictive - prohibits proof of contradiction going to credibility, and this approach was taken in SCC decision in R v Krause Under this view, E about credibility of a W is collateral, and cannot call E to contradict a W unless it fits within one of the exceptions Proof of bias, interest or corruption Proof of previous convictions Proof of E of reputation for untruthfulness Difficulty is that it can lead to pigeonholing E and if to strictly applied could lead to vital E being excluded o The principle on excluding proof of collateral matters is excluded because it may confuse the trier of fact by engaging distracting side issues, take up too much time, or unfairly surprise a W Where E has sufficient value, its not collateral (as you can see from phipsons exceptions) o Text says categorizing is not the correct approach Says should look at value of E, not type of relevancy offered This is consistent with other trends in E law Sim fact rule and the principled approach Hearsay rules - necessity and reliability Treating collateral facts rule as discretionary would clarify the law Its a rule that says whether parties can call E to contradict collateral answers that have been received But courts often cite the collateral facts rule as a basis for refusing collateral Qs during Xex Recognizing the true question to be PV > PJ would clarify things R v Riley - D wanted to Xex C about an allegation of a sex assault she made against another man which D claimed was false. D wanted to call other man who would testify he had been acquitted of charges brought by C. TJ said this line of Q was collateral and ought not to be allowed - trial would expand into relitigation of other charge. Court went on to say that PROVEN fabrication would have more relevance than ALLEGED fabrication. o The Phipson approach has a strong tradition in Canada and the exceptions are well recognized by the courts o Exception 1: Bias, Interest, Corruption R v Hitchcok - D charged with breaking revenue laws. Kew W was asked in Xex if hed ever received/been offered a bribe. D tried to contradict W by showing that hed been offered a bribe - court found this to be collateral. If he had proof he HAD received a bribe, this would have been allowed - as bias/corruption colors Ws entire testimony and such E is always relevant. 89

o Exception 2: Previous Convictions Recognized under statute - should W deny or refuse to answer, Xex can prove the convictions. This exception is based on ease of proof and the conclusive nature of that proof. o Exception 3: Reputation as to trustworthiness Ask 3 Qs Do you know the rep of W in community? Is rep good or bad? From that reputation would you believe W on oath? W called to impeach other W was asked specific questions about that Ws reputation, but not give E of specific facts ONCA held its permissible to have W express opinion about other Ws veracity - R v Gonzague ONCA extended this and allowed credit Ws to explain basis for their opinions - R v Taylor This approach was reconsidered in R v Clarke, where they held that trial judge would be justified in refusing to allow the 3rd Q to be asked because its dangerously close to ultimate issue rule and usurping jurys function. o Exception 4: expert opinion on the reliability of a W Toohey v Metropolitan Police Commissioner - HL ruled that expert E could be called to show physical/mental improbability that W is incapable of giving reliable E.

Cross Examination on Prior Convictions - S. 12 CEA says that any W, including A, can be asked about prior convictions o If W refuses to answer/ denies, Xex can prove the convictions - Prior conviction could bear on credibility, and TJ must instruct jury about the use it can make of the E - conviction is strictly construed - cannot Xex on a discharge or a disciplinary action - A can only be examined about the fact of conviction, not the circumstances - Ordinary W can be examined on facts underlying the conviction, subject to limits of relevancy and propriety R v Corbett - SCC recognized that TJ has discretion to allow Xex of A on prior convictions. If A has long record, D may seek to bar Xex on more prejudicial convictions. R v Leland - A was charged with murder, TJ refused to allow Xex on prior convictions for violent offences but allowed Xex on convictions involving dishonesty. 4 factors for TJ to consider when exercising discretion o nature of previous conviction - conviction for perjury more telling than conviction for assault o how similar previous conviction is to offence now charged - concern of prejudice o remoteness or nearness of previous conviction

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o fairness - where A attacks credibility of crown W, it would be unfair to insulate A from his own criminal past a Corbett application is made prior to D calling E and after close of Cs case (R v Underwood) o a voir dire is held, and D has to reveal A it means to call - just enough for context, is not defense disclosure

R v Maracle - a what not to do case. A was on trial for sex assault of 14 year old girl. A had long record and 2 priors for sex assault. TJ ruled that Crown would not be allowed to Xex A on the prior sex assault convictions D led remainder of As record in direct examination. In Xex C referred A back to listed convictions and said thats all? and A said No its not. Q is both misleading and highly prejudicial - jury now left with impression that D was not forthright. Jury would also speculate that something was being hidden from them. Corbett applications may arise in civil cases

Hutton v Way - P bought injury action for damages. D was allowed to admit a criminal record. Verdict found a certain meanness of spirit and ONCA found that a Corbett action should have been held and the convictions excluded. Prior Inconsistent Statements - W can be impeached by adducing E that they have made prior inconsistent statements - shows capacity to err o Statement goes to credibility or reliability and is not for its truth, unless W adopts or fits under hearsay exception - S. 10 and 11 CEA govern the questioning of PIS in crim matters o Xex must give W notice of the statement - done out of fairness to the W Saves time - W may admit making the statement and save Xex from calling other W to prove it o Includes parties in civil cases and A in criminal cases o S.10 deals with statements in writing o S.11 deals with oral statements - S.10 o Does away with CL rule that required the Xex show W in writing before Q on its contents Negated any tactical surprise on Xex behalf TJ has power to make writing shown to W o Test for inconsistency: McKormick - could the jury find the W who testified would have been unlikely to make such a statement? o Impeachment has 4 steps Counsel confirms present testimony W is confronted with making a prior statement Statement is put to W showing contradiction W will be asked to adopt the PIS for its truth - if W doesnt, statement goes to credibility, unless the W is a party or an A which makes the statement admissible as an admission - Even where requirements of s.10 and 11 are complied with TJ has discretion to exclude

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PIS of A or Parties - are admissions - Crown cannot split its case and hold back certain statements to be used in anticipation of A testifying - A may not be Xex on a statement ruled INADM because it was involuntary or excluded under 24(2) of the Charter

R v Caler - A gave a statement. He was not informed of right to counsel and TJ found breach of s. 10(b) of Charter. A took stand and gave E that contradicted earlier statement. Crown wanted to give 1st statement to impeach As credibility. TJ refused to allow the other statement to be used, and SCC agreed.

BOLSTERING YOUR OWN WITNESS

The bar on bolstering your own W - not allowed, due to concern about time and creating distracting side issues - until credibility is made an issue, Ws are assumed to be trustworthy and of good character R v Siu - officer stated he believed the key crown witness, which breached the rule. The rule was breached futher when the officer said his belief was based in the Crown offering to take a polygraph. it is permissible to introduce a W to the court, and W will provide age, describe family and employment status, as well as connection to the case o counsel will do this in a way that will enhance Ws credibility

Expert E and Rule against oath-helping - can call expert W to testify about facts relevant to credibility of a W where the facts are beyond the experience of the TOF - rule against oath helping prevents the expert from going so far as to testify the W is likely to tell the truth Prior consistent statements - generally cant prove that W made statements consistent with testimony o no PV, self-serving no PV cause W can consistently lie and consistently tell the truth o also, if provided for truth, the hearsay rule is infringed o rule can be broken if content of prior consistent statement is disclosed indirectly R v Demetrius - crown showed that as a result of info received from complainant the police went looking for D as a suspect. Even though officer didnt repeat the previous conversation, it was obvious that the C had IDd the D as the attacker - consistent with what he was saying in his testimony. exceptions o prior consistent statements as circumstantial E

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sometimes a statement will raise relevant and permissible inferences R v Edgar - A claimed he had a disordered mind at time of killing. A said nonsense words after killing, supporting inference that his mind was disordered. Although those statements contained denials of guilt, D was allowed to prove them at trial for purpose of showing disordered mind, not consistency. o Recent fabrication If opposing party claims that testimony has been recently fabricated, prior consistent statements that serve to rebut allegations of recent fabrication can be admissible Can only be sued to show rebut claim of recent fabrication cannot be relied upon for truth or as confirming in court testimony R v Stirling - S was in a fatal collision and denied he was the driver. Attacked Crowns key witness by saying W only IDd S as driver to advance a civil suit W had and in return for Crown dropping charges against W. Proof that W IDd S before commencing the civil suit and before the Crowns decision to withdraw charges rebutted these alleged motivations. Did not do anything to prove Ws ID was true. R v Walker - shows how must keep in mind function of rebuttal E in fabrication cases. W testified during a voluntariness voir dire that cops told him if he confessed his family would not be charged. TJ used the recent fabrication exception to allow the D to prove that W told this to his lawyer. This should not have happened - Crown position was that W was lying prior to talking to his lawyer, so proof that W talked to lawyer did not rebut the position of C. Allegation of fabrication can be mad during Xex of W

Welstead v Brown - D claimed the C and wife conspired to claim the D was the father of the child the wife had. Her spontaneous statement shortly after discovering her pregnancy tended to rebut the claim. Allegation of recent fabrication can occur during opening statement or through implications. If party wants to rely on claim of recent fabrication must announce this to the court Recent Complaint in Sex Offences At CL if V didnt tell someone about sex offense at earliest opportunity it was said to hurt the reliability of V S. 275 CC says that failure to complain cannot be used as a presumptive adverse inference relating to credibility or consent Prior consistent admissible hearsay Because the statement falls within a hearsay exception it is admissible for truth of its contents and can be relied on to support the credibility of the W Statements made when found in possession Res gestae rule allows statements made of A with stolen goods or drugs to be admitted Exculpatory statements made on arrest

o o

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If A testifies and exposes self to Xex, such statements can be proved by A or other Ws Reaction of A is relevant to credibility This was found in R v Edgar - rejected conventional position of such statements being inadmissible. Used principled approach to find that spontaneous denials of guilt have significant probative value and their admission raises little prejudice. Problems with reasoning in Edgar are on page 499 of text o Narrative Some statements will form part of the narrative but fail to satisfy hearsay exceptions. R v George - permissible for Crown to show when A was confronted by cousins parents, A admitted he forced himself on his cousin. This would have made no sense to the jury unless they learned the reason why the parents confronted A - cousin had complained about being assaulted by him. Therefore, complaint was admissible solely as background, and couldnt be used to support the inference that complaint was more credible because of the prior consistent statement. Narrative is now a common technique for presenting E about previous complaints But doctrine of narrative should be used only when necessary - if statements dont impact unfolding of events, its not allowed Only as much detail as necessary is allowed to be revealed Sometimes narrative will yield circumstantial E

R v Dinardo - E showing mentally challenged sex assault complainant had difficulty placing events in time, and lied occasionally. SCC said that the spontaneous nature of complaint and repetition of essential elements provided context for credibility The way the prior consistent statements were made provide context about whether complainant was confused

REHABILITATING YOUR OWN WITNESS - Although cannot bolster own W, opposing counsel can open the door allowing this to be done by bringing up credibility o Show prior convictions of W o Call reputation or lay W o Calling expert E about Ws defects o Xex on bad acts or associations - Approved technique o If W is Xex about past, bad conduct or associations, counsel is stuck with the answers and there is no evidence to rebut o If W admits to bad facts, counsel can clarify or re-examine to cast in a better light o Counsel can call reputation witness o Softening anticipated blows Bring up convictions in exam in chief - suggests nothing to hide 94

R v Thresh - crown pre-empted D by revealing the deal it had made with one of its W to secure testimony. Held that this was ok.

CHALLENGING THE CREDIBILITY OF YOUR OWN WITNESS

hostile W - has motive to harm party who called him or to assist the other party o can Xex as hostile with leave of the court include Qs to show that harmful E given is not credible or to attempt to get W to give helpful E adverse W - E given is unfavorable to the party calling him o can Xex with leave of court if W is adverse under the evidence act under CEA s. 9(2) counsel can get leave to Xex witness without declaring witness hostile or adverse o can Q about prior inconsistent statements to testimony, provided the statement is on tape or in writing if statement is oral, must declare W adverse

General Attacks on credibility - counsel vouches for Ws called, so its not cool to challenge own witness by calling E about lack of trustworthiness o but this doesnt mean that you have to accept everything Ws say or refrain from referring to this that diminish credibility of W R v Biniaris - Crown W, friend of A, seemed anxious to accept any suggestion made by D during Xex. No error was made when Crown pointed this out in submissions. Calling Other Ws who contradict your W - this is ok - important to point this out because on face of CEA it seems that in order to do so, one must declare one W adverse - this was called a drafting blunder Leading Qs and Refreshing Memory - if appears W has forgotten, refreshing memory and leading Qs may be allowed R v Glowatski - after being shown a past recorded recollection, Crown W adopted accuracy of what he told the cops. techniques should only be used when there is a foundation for memory problems causing the W to testify poorly

Cross Examination of Ones own Witness - TJ must rule this can occur o Hostile W W is hostile when doesnt give E fairly because doesnt like who called him

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Do not have to establish why W doesnt like person calling them, judge must simply be satisfied that animus exists

R v Haughton No 3 - W Idd A at inquiry was declared hostile after failing to ID at trial. His hostility was apparent from failure to tell Crown that he thought hed IDd the wrong guy. Old law used to be that W had to be openly hostile (ex. Bristling v. polite), but this meant one W who lied politely could not be Xex o Adverse W S. 9(1) CEA interpreted broadly allows one to Xex a W if hes declared adverse Adverse - when testimony is unfavorable to party calling him Seems that the way s.9(1) allows Ws to be labeled adverse renders hostile Ws obsolete Adversity and provincial evidence acts - allow such Ws to be Xex Some rules in civil cases will allow Ws to be called without declaration of adversity A court may refuse to give leave to Xex Xex scope is subject to discretion of TJ Competing views on scope of Xex of own witness o Some authority says Xex can only be used to discredit that Ws testimony o Based on view that its unfair to call a W that is known to testify adversely just for the purpose of intimidating the W to change version of events o TEXTs VIEW is on PAGE 514

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