EVIDENCE 280Robert Kiesman – (Perrin)

Fall 2009

BASIC PRINCIPLES

Determining Facts:o Human reason and logic within impartial legal frameworko Distinct Approaches: (a) Civilian Inquisitorial System; (b) CL Adversarial System

R v. Stinchcombe: If it is potentially relevant – it must be disclosed – may it be reasonably useful to the defense?o Justification : Big guy against little guy; it is public’s interest to see justice done; it is a

leveling of the playing field. o Section 7 of Charter is where it comes from.

o Past conduct is important at the level of sentencing.

Federal vs. Provincial acts: If it is criminal matter, you use federal act; if property and civil rights, use provincial. o One important provision: If it is not in federal act, there is residual clause (s.40) –

allows for BCEA to apply to extent it is not consistent with CEA. o If feds do not have answer, look to provincial act – provincial acts thus have

residual role EVEN in federal matters.o Section 2 of Canada Evidence Act sets out jurisdiction, as does BCEA. o Provincial and federal evidence statutes are largely modifying the common law –

NOT codifying it.o In isolation, many of the rules do not make sense – because they are modifying CL.

o Aboriginal sources of evidence law: Oral testimonies are admissible.

Direct evidence does not require any inference to be made – DO we believe the evidence or not? It is evidence that, if believed, resolves a matter in issue. Example: On the issue of whether D signed the contract, the testimony of a witness saying, “I saw him sign it,” is direct evidence of that material fact. Circumstantial evidence requires inferences/generalizations of human logic and experience: “evidence that tends to prove a factual matter by proving other events or circumstances from which either alone or in combo with other evidence the occurrence of the matter in issue can be reasonably inferred. Example: “Like the accused, the robber had a tattoo of a stream of tears on his right cheek.”

When is a piece of evidence admissible? (a) Factually relevant; (b) Materially relevant; (c) Not inadmissible on any ground of law or policy (hearsay; opinion; “value”; Charter).

o Burden of Proof: If you want evidence admitted – YOU must establish relevance.(d) Now for discretion...(judge has discretion on this next step in every case)… Applies to both Crown and defense counsel; (e) Limitations: (Instructions in jury trial) – there is a link with PE. Evidence is so important that, even though there is PE, we are going to allow it. But, it will be applied in a limited way; (f) How much weight will you apply to this evidence? [not sure if this is separate from (e)] Weight is what trier of fact will assess evidence as having. They weigh it with respect to the burden.

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Probative Value: How strong of a link is it between what you are trying to prove and what you are saying? [PV > PE]

Prejudicial Effect: Possibility the evidence may distort fact-finding process – hurting the accused. Causing fact-finder to engage in improper reasoning. It is NOT whether the evidence hurts the accused’s case! Prejudice includes any adverse costs associated with the presentation of evidence.

o Example: Graphic photographs could prejudice D by creating sympathy for P, and thus distort fact-finding.

R v. Seaboyer (1991 SCC) : When you are making PV/PE assessment, evidence can only be excluded if PE substantially outweighs PV.

RELEVANCEo There is no legal test for identifying relevant evidence. Relevance is a matter of

logic – ask: “Does the evidence assist in proving the fact that my opponent is trying to prove?”

o Example : Evidence that the accused smelled of alcohol is relevant to whether her ability to drive was impaired by alcohol.

Evidence she was seen drinking alcohol a week before is NOT.

Two different kinds of relevance: (a) Materiality/Legal Relevance: One that is required to prove cause of action – was it more likely than not that accused had requisite mens rea? Credibility of witness. o R v. Collins: Evidence is material if it is directed at a matter in issue in the

case.(b) Factual Relevance: Does it make a fact at issue more or less likely to be true? Test: “Does the evidence render the desired inference more or less probable that it would be without the evidence?”

Reasons for Excluding Relevant Evidence:1. To admit the evidence would distort fact-finding function of court.2. Admission would unnecessarily prolong a trial or confuse the issues.3. Admission would undermine some important value other than fact-finding (eg:

unfairly surprising other party).4. Manner which it was acquired/presented is inconsistent with nature of trial process.5. PV < PE.

R. v. Watson (1996 OntCA) : Does the evidence have a tendency in logic or human experience tend to make the fact that you are trying to prove more likely?Trial judge said evidence was not relevant.

o Defense wanted “he carries gun like credit card” admitted because it goes to habit – chain of inferences. They say he had gun always on him – makes it look more like spontaneous killing more likely to get acquittal (accused had no knowledge).

o Circumstantial evidence requires chain of logical inferences. Habit aids in these cases.

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o Why is it legally relevant that victim carries gun like a credit card? Legally relevant issue in case was whether accused had knowledge the co-conspirators had intent to kill.

o When assessing factual relevance in this case, court gives test: 1. Does fact that deceased was in possession of gun make it more likely that he

was in possession of a gun when he was shot?2. Does the fact he was in possession of a gun when he was shot make it less

likely the appellant was party to a plan to kill or do harm to the deceased, formed some time prior to his arrival with the other two?

o R. v. Morris: Test of whether evidence is to be considered relevant: There is no minimum PV at this stage (when looking at relevance). Any matter that has any tendency, as a matter of logic and human experience, to prove a fact in issue.

o So how to challenge relevance? The victim has never been known to use his gun. Infer the victim used the gun on the day in question.

Crown will try to attack inference (not credibility of statement). o Note : There is chain because this is circumstantial evidence. If it was direct

evidence, no chain, no attacking inferences. o Balancing PV>PE: Must be “substantial” to be excluded.o Potential for properly using evidence: he may have deserved to die for carrying

gun. How does CA get over that? That prejudice was already on the table, and they could use limiting instructions (only use evidence if you believe he carried gun as credit card – only determine whether accused had knowledge or not – that is all it can be applied for – NOT to ask whether he deserved it or not.

o Important Quote : “Surely any sensible person in investigating whether a given individual did a particular act would be greatly helped in his inquiry by evidence as to whether that individual was in the habit of doing it.”

BURDEN OF PROOF – CIVIL PROCEEDINGSo Persuasive Burden: On the party who in law is required to establish the relevant facts

to succeed.o Evidentiary Burden: On the party whose duty it is to raise an issue. A party under an

EB must adduce or point to some relevant evidence capable of supporting a decision in the party’s favor on an issue before that issue can go to the trier of fact.

o In civil proceedings, the plaintiff bears the EB and PB on all elements of the action.

Motion for non-suit: “Half-time” at civil case; P has laid out all evidence and rest their case. Rule 40 BC Supreme Court Rules (8)-(11). D may argue P has not met his evidentiary burden. o 40(8): No evidence motion: D may apply for dismissal – no evidence to support Ps

case.o If motion fails, judge will ask D for his case (lead evidence).

o 40(10): Insufficient evidence: D may apply for dismissal on ground that evidence is insufficient to make out Ps case.

o If motion fails, more of a gamble, 40(11) says you cannot lead case in chief as defense. Unless court otherwise orders, D must have elected not to call evidence.

o “extent to which evidence supports proposition for what it is put forward to.”Balance of Probabilities:

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o P must prove his allegations on a BOP: “find the fact more probable than not” (Miller) and/or “on the basis of a preponderance of probability…be reasonably satisfied” of the fact alleged” (Smith). Disposition:o Apply BOP test by trier of fact. “Standard applied on whole of the evidence and at

the end of the case.” o “More probable than not” and if it is 50-50, the moving party loses. o A probability that is “reasonably satisfied.”

Summary Judgment:o Moving party asserts the responding party’s case is so weak that it is not worth

bringing to trial judgment without a trial. o BC Supreme Court Rule 18(1)(b).

o In a motion of summary judgment the moving party is NOT claiming the responding party has led no evidence capable of establishing elements of a cause of action.

o Objective: Screen out claims that ought not to proceed to trail because they cannot survive ‘the good hard look” (Pizza Pizza).

BURDEN/DEGREE OF PROOF – CRIMINALDirected Verdict of Acquittal: o Criminal version of non-suit – arises after the Crown rests case – accused asks trial

judge to rule the Crown has not discharged evidentiary burden has not led evidence capable of establishing the elements of the offense.

o R v. Monteleone: Test is whether direct or circumstantial evidence, if believed by a jury acting reasonably, would justify a conviction, the trial judge is not justified in directing a verdict of acquittal.

o Test for burden at preliminary inquiry stage: When Crown adduces direct evidence on all elements of the offense, the case must proceed to trial (R v. Acuri).

o In circumstantial cases (at least one element): Judge must engage in limited weighing of the whole of the evidence, including any defense evidence to determine whether a “reasonable jury” properly instructed could return a verdict of guilt.

Putting Defense in Issue:o The trial judge is required to exercise some judgment as to whether the evidence

supports a defense to the extents the jury should consider it. o Test: “air of reality” – defense should be put to a jury if and only if there is an

evidential foundation for it. When there is any evidence of a matter of fact the proof of which may be relevant to the guilt or innocence of an accused, the TJ must leave that evidence to the jury so that they may reach their own conclusion upon it (Pappajohn v. The Queen).

o Two principles: (1) TJ must put to jury all defenses that arise on the facts, whether or not they have been specifically raised by an accused; (2) TJ has positive duty to keep from jury evidences lacking an evidential foundation.

In applying the “air of reality” test, the TJ considers the totality of the evidence, and assumes the evidence relied upon by accused is true. The TJ does NOT make determinations of credibility of witnesses, weigh evidence, make findings of fact, or draw determinate factual references. The test is NOT to determine whether defense is (un)likely to succeed – the only

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question is whether the evidence discloses a real issue to be decided by the jury (R v. Cinous).

o Once defense has been put to jury, Crown has now burden to disprove defense BRD (exception of mental disorder BOP).

BRD Standard: R v. Lifchus (1997 SCR) : [This case outlines what BRD means and how a jury is to be instructed]. Note qualifier: “A charge which is consistent with the principles set out here will suffice regardless of particular words used by the trial judge.It should be explained that:

o BRD intertwined with the presumption of innocenceo Burden rests with prosecution throughout the trial and never shiftso BRD is not based on sympathy or prejudiceo It is based upon reason and common sense o It is logically connected to evidence or absence of evidence o Does not involve proof to an absolute certainty; it is not proof beyond any

doubt nor is it an imaginary or frivolous doubt o More is required than proof that the accused is probably guilty – a jury which

concludes only that the accused is probably guilty must acquit Other references should be avoided:

o That BRD is ordinary expression with no special meaningo Inviting jurors to apply same standard of proof they apply to important decisions

of their own liveso Equating BRD to “moral certainty”o Qualifying “doubt” with “serious”, “substantial”, etco Instructing jurors they may convict if they are “sure” the accused is guilty

Note for Exam: “The verdict ought not to be disturbed if the charge, when read as a whole, makes it clear the jury could not have been under any misapprehension as to the correct burden and standard of proof to apply.” (R v. W(D)).

CEA:o [2]: Applies to all criminal proceedings and to all civil proceedings and other matters

whatever respecting which Parliament has jurisdiction.o [40]: “In all proceedings over which Parliament has legislative authority, the laws of

evidence in force in the province in which those proceedings are taken…subject to this Act and other Acts of Parliament, apply to those proceedings.”

BCEA: o [2]: Act applies to all proceedings and other matters where BC legislature has

jurisdiction.

TYPES OF EVIDENCE

Witness Testimony.

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o General Rule : Parties must prove or disprove all facts in issue through the oral evidence of witnesses.

o In order to testify, a witness must be competent and either swear an oath or satisfy a statutory substitute.

o Convicts and the parties to civil cases are now in general competent witnesses.

Competence to Testify1. Whether that person is “allowed” to testify: (a) Under oath; (b) Solemn affirmation; (c)

Unsworn Evidence. The witness must give some formal indication that he or she will be truthful.

2. Whether that person is “compellable.”

(a) OATH: Section 14(1) – you can still swear on the Bible – but not forced to. Any form of oath that will grab hold of the conscience of the witness will now suffice. Instead of taking an oath, a person may make a “solemn affirmation” – the whole truth, nothing but the truth… same legal effect as oath.

o BCEA, ss. 20-22: Oaths based on different religious beliefs or no religious beliefs are still valid.

R v. Bannerman (1966 ManCA) : All that is required when one speaks of an understanding of the consequences of an oath is that the child appreciates it is assuming a moral obligation.Evidence we are concerned about was that boy could not say what consequence of lying would be.What degree of understanding of nature and consequences of an oath must a witness exhibit before being permitted to testify?o Court : “The object of the law in requiring an oath is to get at the truth relative to the

matters in dispute by getting a hold on the conscience of the witness.”o Important Fact : Trial judge interviewed the child – in best position for assessment.

There was no “manifest abuse.”o Held : Child believed it would be wrong – he was permitted to testify.

R v. Fletcher (1982 OntCA) : For a child to take an oath, all that had to be determined was whether the child had sufficient appreciation of the solemnity of the occasion, and the added responsibility to tell the truth, which involved taking an oath.

R v. Leonard (1990 OntCA) : Child must understand added responsibility to tell the truth over and above the duty to tell the truth as part of the ordinary duty of normal social conduct. Must know it is right or wrong.

(b) SOLEMN AFFIRMATION

R v. Walsh (1978 OntCA) : There is very little inquiry for solemn affirmations. Solemn affirmation involves nothing more than asking witnesses whether they affirm to tell the truth. Affirmation must acknowledge threat of perjury and the need to state that you will tell the truth. Witness is a Satanist (crown witness) – wouldn’t put hand on Bible – would take solemn affirmation – Crown wants witness in – witness said he would be prepared to lie if he perceived no benefit to himself in telling the truth, however, he would tell the truth in this

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case because he could not live with himself otherwise – he was aware of penalty – he said he decides what the truth is.Was Satanist competent to testify because he did not recognize any social duty to tell the truth in court, although he knew he could be prosecuted and punished if he gave false evidence?o “…incompetent to take oath since it would not bind his conscience, but he was not

incompetent to testify on affirmation.”o Reasoning : Witness was aware of penal sanction (although not required); trier of fact

could assess his credibility afterwards; no need for witness to believe there is social duty to tell truth

o CEA, s.14: “…may make the following affirmation: ‘I solemnly affirm the evidence to be given by me shall be the truth, the whole truth, and nothing but the truth.”

o Held : Witness could make solemn affirmation.

(c) UNSWORN EVIDENCE

Section 16 of CEA provides for substitutes for the oath in the case of a child or a person whose mental capacity is at issue. Allows for unsworn evidence – don’t go through “moral right and wrong”, etc. o An inquiry must be conducted to determine: (a) whether the person understands the

nature of an oath or a solemn affirmation; (b) whether the person is able to communicate the evidence.

R v. Marquard (1993 SCR) : Testimonial competence requires child (or mental capacity adult) promise to tell truth and show ability to observe, recollect, and communicate. The inquiry is into capacity to perceive, recollect, and communicate, not whether the witness actually perceived, recollects, and can communicate the events in question. The best guage of capacity is the witness’ performance at the time of trial. 3.5 year old girl has severe facial burn – living with grandma – Crown says grandma put her face on hot stove to discipline her – girl questioned about duty to tell truth (Crown wants her) – she did not put hand on Bible – not required to solemnly affirm anything – at trial said “nanna put me on stove” – grandmas/grandpa said they found her burned with lighter and cigarette saying she said she tried to light cigarette.What is required for witness to be able to communicate evidence?o She is allowed to give unsworn testimony under s. 16.o There is large degree of deference to Bannerman. o When questioned by the TJ, the girl said, “You have to tell the truth”, and it was

“important” to tell the truth. o “[girl] demonstrated she knew the difference between the truth and a lie.”o “It is not necessary to determine in advance the child perceives and recollects the

very events at issue in the trial as a condition of her evidence be received.” o Dissent (Dube): They are blending everything together – “is it believable” with “should it be heard?” You are

undermining ability of child assault victims to testify and the mentally disabled. o Section 16 is a way around the old common law rule that would disqualify witness

from testifying.

o CEA , s.16 : Dealing with proposed witness, 14 or older. When capacity challenged, court inquires: if they understand nature of oath, and whether person is able to communicate the evidence.

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o Sub 2: If they satisfy both, they can testify. o Sub 3: Person who does not understand oath/affirmation, but are capable of

communicating evidence, they shall be permitted to give testimony on promise to tell truth.

o Sub 4: Where they fail both branches of inquiry, they cannot testify. o Sub 5: Party challenging competency has the burden of satisfying court there

is issue as to capacity.

o CEA , s.16.1 : [Post Marquard]. Dealing with proposed witness, under age 14 (at time of trial). Person under 14 is presumed to have capacity to testify.

o (Sub 2): Shall be received if they are able to understand and respond to questions.

o (Sub 6): Person is required to promise to tell the truth. o (Sub 7): There shall be no questions regarding their understanding of the

nature of the promise to tell the truth.o (Sub 8): If testimony is heard, it has same effect as if it were under oath.

EXAMINATION AND CROSS-EXAMINATION

o When X-exam, goals are: discredit witness; undermine weight given to testimony; they may have info that is helpful to your side (adduce evidence).

o Party offering witness examination in chief.o Opposing party’s counsel asks cross examination.o Leading question : When there is prompting from counsel – suggests its own answer

– Did you see him shoot the gun? Good for X-exam. o Non-leading question : Open-ended. What did you see next? Good for exam in chief.o X-exam of a non-accused witness can be wide-ranging: may be X-examined not only

as to facts relevant to the case but as to matters that might cast doubt on their credibility.

o Only thing a redirect is permitted for is what was covered in X-exam.

Exceptions:o When accused is witness: What types of questions can you ask – they are

MORE restricted than any other witness. o Prejudicial Questions : Can’t ask anything that violates witness right not to

self incriminate or other constitutional rights – “unfavorable.” eg: Cannot draw attention to fact accused remained silent during

police questioning. eg: Cannot draw attention that accused refused to let police into

his house. NOTE: If accused puts it at issue it is fair game – “I was

helpful and answered every question.” Now you can ask.o Character of Accused : What type of person they are.

Cannot ask questions like “Are you honest person?” NOTE: Again, unless they put it at issue.

o Statements to Persons in Authority : Accused cannot be asked, without previous ruling by judge, about statements they may or may not have made to police officers, or others in authority.

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o Non-accused witness: You can ask about prior criminal matters – do not require convictions.

Refreshing Memory: o Witness may refresh his memory before testifying or while testifying.o R v. Fliss (2002 SCC): Witness may refresh memory by any means that would

rekindle his recollection whether or not the stimulus constitutes admissible evidence.

o The stimulus is not the evidence – so it MAY be hearsay, inaccurate, etc.o US v. Rappy: Can use a song, scent, photograph, allusion, or a past statement

known to be false. o Recorded Memory vs. Refreshing: Where a witness cannot remember the events, he

may testify from a record of his past recollection.o R v. Meddoui (1990): Conditions for admissibility of past recollection

recorded: (a) Reliably recorded; (b) Must have been sufficiently fresh and vivid; (c) Witness must assert the record accurately represented his knowledge and recollection at the time; (d) Original record must be used if procurable.

o Exception : Post-hypnosis evidence is prima facie inadmissible (R v. Trochym).

CREDIBILITY Testimonial Factors: In order to accept or reject a witness’ evidence, the trier of fact must make inferences regarding the following:

1. Witness’ use of language: How are they describing things? How certain are they?

2. Sincerity: Do they believe what they are saying?3. Memory: Time between event and when testimony was given;

intervening events; discussions with other witnesses. 4. Witness’ perception: Was there anything interfering with/enhancing

the witness’ ability to hear or see events in question? Was he intoxicated? How good were conditions for observation?

5. Demeanor: How does witness behave? Calm? Evasive? Overly defensive? Tone of voice.

R v. Norman: Take into consideration: general integrity and intelligence – powers to observe – capacity to remember – accuracy. Determine whether he is honestly endeavoring to tell the truth: sincere – frank – biased – evasive? DEMEANOR, however, is not enough – you must ask if his evidence is reliable.

Credibility of Child Witnesses.R v. W(R) 1992 SCC : When assessing credibility of a child, you don’t directly apply same principles as those of an adult – they perceive time and places differently. Flaws or contradictions should not be given the same effect – apply common sense – taking into account strengths and weaknesses which characterize the evidence offered in the case.

o Do not apply prejudice or stereotypes – but common sense.o Assessing credibility of child: Assess with reference to their mental development,

understanding and ability to communicate.

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o Caution: It is age at which event took place that you are to consider – especially in child abuse.

o “Where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an ADULT witness….yet with inconsistencies (time and location)…these should be considered in the context of the age of the witness at the time of the events to which she is testifying.”

Deference of Appellate Courts to Findings of Credibility at Trial:

R v. KGB (1993 SCR) : [Policy for having witness is court]: Trier can observe witness’ reaction to questions, hesitation, degree of commitment to statement; can also assess relationship between interviewer and witness to observe extent to which the testimony of witness is the product of the investigator’s question.

[Housen v. Nikolaisen (2002 SCC) : Standard of review for appellate court to overturn factual findings at trial: appellate court cannot interfere with findings unless there has been “palpable and overriding error.”]

R v. W(R) 1992 SCR: Appellate court can overturn a verdict based on findings of credibility where it concludes, following a review of evidence the findings are unreasonable. Test: “Could a jury properly instructed and acting reasonably have convicted?”o “…must re-examine, and to some extent, reweigh and consider the effect of the

evidence.”

PRIOR INCONSISTENT STATEMENTS

o CEA, s.9(1): …if the witness proves adverse, the party may contradict him by other evidence…or…may prove that the witness made at other times a statement inconsistent with his present testimony (see also BCEA, s.14).

o BCEA, s.13: Witness may be X-examined as to previous statements made by that witness in writing, or reduced into writing…without the writing being shown to him. If it is intended to contradict the witness, the writing must be first called to those parts of the writing that are to be used for contradicting the witness.

o CEA, s.5: No witness shall be excused from answering any question on the ground that the answer may tend to criminate him.

o CEA, s.12: A witness may be questioned as to whether the witness has been convicted of any offence – if he denies the fact or refuses to answer, the opposite party may prove the conviction.

o BCEA, ss. 72, 73: Rules relating to sexual victims’ autonomy and testifying via TV.

Real Evidence and Documents.

o Evidence is real when it refers to tangible items – things you can feel and touch – they can be tested (fingerprints, body fluids, murder weapon).

o Forms of real evidence are existing – have longer life-time so they are often regarded more highly.

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o A witness has to authenticate the real evidence – on the stand. You are demonstrating it is reliable – it can be shown to other witnesses.

o Document : Includes videotapes.o Juries and judges often like to test evidence themselves. (Old case): Small boat –

allegation as to how many people on boat – question at trial – members of jury tried to cram on boat to see how many people could fit. What arguments could you make to deal with this situation (opposed)? They are not on the water (bad context); different sizes of people; they have put themselves in position of investigators – they are only supposed to weigh evidence.

o Two reasons to bring in documents : (1) Truth of contents – because of what it says; (2) Real evidence – for fingerprints, signature analysis, etc.

o CEA, s.28: No book/document can be admitted unless the party has before trial given to the other party notice of that intention.

o CEA, s.30: A record made in the usual and ordinary course of business that contains info in respect of a matter where oral evidence is made is admissible.

o BCEA, ss.34,52: Banking records are admissible when made in ordinary course of business.

Common Law: If you are unable to find rule in act that fits document you seek to admit:

R v. Schwartz (1988 SCC) : Basic common law approach to admissibilityBefore any document can be admitted: (1) Must be authenticated in some way by party wishing to rely on it – requires testimony by some witness. A document cannot simply be placed on the bench; (2) Must be shown to fall within one of the exceptions to the hearsay rule.

R v. Rouse (1978 SCC) : Assertions in documents produced to court when no witness is testifying are inadmissible as evidence of that which is asserted. BCCA said reading to witness from document inappropriate – SCC declined comment.

EXCLUSIONARY RULES

Key things: Before you consider exclusionary rules, consider relevance analysis. If it is relevant. (2) “Is the rule engaged?” (3) How does ER operate? (4) The rationale behind the rule – because the SCC has shown increasing willingness to radically alter or reject old rules – because they no longer serve their purpose.

Hearsay:

IDENTIFYING HEARSAYo “Out of court statement offered for the truth of its contents” (Evans).o There is (a) a witness; (b) a declarant – person who made statement out of court. o Always concerned where source of statement is.Teper v. R: Example of hearsay evidence not permitted – truth of contents and highly prejudicial.Accused charged with setting fire to wife’s store – police officer called as witness to testify that ½ hour after fire started that he heard unidentified woman say to man who resembled accused, “You’re place is burning and you are going away from the fire?” Was it accused who set fire? [Fact at issue: Identity of accused].

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o Statement is relevant (circumstantial), but potentially irrelevant because it is possible he was running to get help (fire crew not there yet). Statement does make it more or less likely the accused started the fire.

o Purpose: To identify arsonist – for the truth of its contents. o Held : Admission of evidence highly prejudicial – not permitted.

R v. Williams: Example of classic example of hearsay.Accused charged with arson – D says fire set by accused’s neighbor – three people said Miller told them he did it.o Witnesses are ALL people who heard statement; declarant is Miller; purpose for calling

witnesses was to prove Miller said he set fire. o Relevant? Yes, could prove he set the fire (identity of arson). If someone else set fire, it was

not the accused. o Hearsay? Yes, an out-of-court statement where witnesses are being called to testify it is true.o Held : Not admissible.

Subramaniam v. Public Prosecutor (1956 JCPC) : It is only hearsay if the statement is offered for the truth of its contents, not when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.Accused convinced of being in possession of 20 rounds of ammunition – he said only in possession because terrorists told him he had to for them – he was trying to claim duress – statement Sub makes is all he has – the alleged terrorist is declarant – makes statements to Sub – Sub is accused in court trying to prove his innocence, testifying what men in jungle said to him – accused said he was walking down hill and a Chinese came out and said to halt, and that he was communist, two others came out with guns, told him he could not return home.Did statement terrorists made to accused amount to hearsay?o Trial judge said evidence not admissible unless declarant called. o Hearsay can be words and also gestures.o Being admitted for purpose of duress defense, NOT for the truth of its contents.

o Accused has to raise “air of reality” that he feared for his life. o It didn’t really matter if they said they would kill him or if they were communists, what

matters don’t care if what they said was true or not. We just want to know if the statements were made.

o The relevancy of these statements had NOTHING to do with their being true.o Test : If the statement was false does it matter – do you still want evidence in?o Held : Statements were not hearsay: The exclusion of this evidence had prevented

the accused from advancing his defense of duress.

RATIONALE FOR RULE AGAINST HEARSAYo Hearsay statements dangerous because: (a) Not under oath; (b) No cross-

examination available; (c) Cannot assess credibility; (d) Not best evidence. o Difficulty in assessing reliability.R v. Blastland: Rationale: It is not the best evidence and it is not delivered under oath. The truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by X-exam, and the light in which his demeanor would throw on his testimony is lost.

SHIFT TO PRINCIPLED APPROACH

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o Principled approach: Contrasted with rule-based approach. Rule-based was, “it is either in or out.” Principled is based on NECESSITY and RELIABILITY.

o Once court makes decision to admit a piece of hearsay evidence under principled approach, it does not constitute a new common law exception.

R v. Khan (1990 SCC) : New principled approach: Has to be significantly reliable and reasonably necessary. Matters relevant to reliability will vary with the child and the circumstances and are best left to the trial judge. This case is an example where the reliability requirement was met because the circumstances in which the statement came about provided sufficient comfort in its truth and accuracy.Sexual assault against young child – mother and 3 year old daughter go to Dr. Khan’s office – daughter alone with Dr. for 15 minutes – girl (declarant) tells mom (witness), without prompting, Dr. told me to open my mouth, he put his birdie in my mouth and peed in it – corroborating evidence is that there was physical evidence of semen on clothing of 3 year old – daughter found not competent to testify – mother called to testify to prove the Dr. assaulted the girl (for truth of contents).Was traditional approach to hearsay in need of reform?o Language used was the language of a 3 year old.o Not sufficient to be spontaneous because not under pressure or emotional intensity

(at CL).o Court says mother’s testimony of what daughter said is admissible…in doing so, they

create entire new approach to hearsay.o Looks at hearsay problems: inflexible; uncertain; just because statement falls within

traditional exceptions, does not mean it overcomes all concerns we had of hearsay. o “Necessary”: Reasonably necessary – it was necessary to hear her evidence here

by some other means because she was not competent to testify. Perrin: If you had someone so traumatized by what happened to them, we may permit statement given to officer (if safeguards followed). It was difficult to obtain other evidence.

o “…inadmissibility of child’s evidence may be one basis for finding necessity.”o “Sound evidence based on psychological assessments that testimony in court

might be traumatic for a child or harm the child may also serve.”o “Reliable”: Confident if declarant’s statement is true. Matter relevant to reliability will

vary and are best left to trial judge. o Court said timing of her statement important (told immediately); solid

demeanor; absence of reasons to fabricate; disinterested (not interested in outcome of charge); statement made without suggestion of litigation; possessed particular knowledge; evidence of a child of tender years on such matters may bear its own special stamp of reliability.

Important Fact : Her statement was corroborated by real evidence.o General statements on reliability: Credibility of witness can affect weight

given to statement; can consider real evidence (semen) in concert. o Held : Statement is admissible.R v. Smith (1992 SCR) : The principles defined in Khan were of a general application and not confined to children. Expands necessary to include death of declarant and others….. Takes broad view of factors that can be considered in assessing reliability: “If a statement sought to be adduced by way of hearsay evidence is made under circumstances which substantially negate possibility the declarant was untruthful or mistaken, hearsay evidence may be said to be reliable.”

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Deceased’s phone calls to her mother: 10:21: “Larry abandoned me.” 11:21: “Larry has not returned.” 11:54: “Larry is back.” 12:41: “…on my way…” At 1am witness seen by phone – at 1:30 body is found.Did Larry really abandon her or did he come back and kill her?o Which of these are hearsay? All are relevant because they may link accused in time. o Court says first two are admissible under Khan principles. The third is not; the fourth

did not make its way up to appeal. o Are they exceptions?o Significance of Khan decision: it overcomes common law approach to rule-based

exceptions – not turning only on its facts. Must be seen as expression of principles that underline principled rule.

o “Necessity”: It is reasonably necessary to prove a fact at issue? Not looking at whether it is necessary to the prosecution’s case.

o Is this hearsay evidence necessary? Yes. Declarant is dead. o “Reliability”: Circumstantial guarantees of trustworthiness – circumstances

surrounding statement being made gives trustworthiness. o Safeguards against fabricating and lying.

o Held : First two admissible because they are necessary – also reliable because there is no motive for declarant to lie; traditional dangers of hearsay are not present.

o Held : Third is NOT reliable because she just had stolen credit card confiscated – could not take taxi to Detroit that her mom ordered – trying to cover it up. She has a motive to lie to her mother. Further, there is someone else that could have given her a ride (Phillip). Further, she could have been mistaken.

o Confusion now: What is ongoing role of traditional exceptions? Court did not clarify relationship between exceptions and principled approach.

o Confusion: What is test for reliability? What factors can be heard? Exam: Can confession to priest be used?

ONGOING ROLE OF TRADITIONAL EXCEPTIONS

R v. Starr (2000 SCC): Factors to be considered on admissibility inquiry should be categorized in terms of threshold and ultimate reliability and corroborating evidence should not be considered [overruled in Khelawon]. Starr convicted of FDM killing Cook – other deceased is Darlene W – allegation that Starr lured them to side of road, claiming they were going to do an AutoPac scam – motive alleged by Crown – Cook was police informer in coming out of jail – Crown theory of Darlene is that she is unfortunate witness – Jodi G (girlfriend of Cook) is witness (supplies motive and links deceased with accused).o Are we trying to admit statement for truth of contents? Not trying to prove AutoPac scam. But

trying to admit that it was said and that it was intended. This is not an AutoPac prosecution. o Trial judge admitted statement: Found it fell within “present intentions” and “state of mind”

exceptions. What is relationship between traditional hearsay exceptions at CL and principled approach?

o Is out of court statement sought to be proven for truth of contents. Does statement, if true, link accused with deceased?

o “Present state of mind” – Must appear to have been made in natural manner and not under circumstances of suspicion.

o Probative Value : Permissible use could only be used to assess Cook’s intentions. There are too many improper ways it could be used.

o Role of Exceptions : Evidence falling within traditional exception is presumptively admissible evidence will be heard unless other side can undermine it (burden) other party can argue based on Smith, that it is not sufficiently necessary or reliable.

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o Court should be cautious in overturning common law exceptions. o “Necessity”: Unavailability of declarant; also refers to quality of evidence –

Can we adduce evidence of the same value from another source? Brings in expediency and convenience (don’t really put in test, but mention).

o “Reliability”: [This part overruled] Judge should not consider declarant’s general reputation for truthfulness, nor any prior or subsequent statements, nor presence of corroborating or conflicting evidence.

CL Traditional Exceptions to Hearsay:o Declarations Against Interest (R v. Demeter, SCC 1977): Oral or written

delcarations the delcarant makes against pecuniary or proprietary interests. o Example: You have property on Bowen Island – walking down creek – you say to

friend you put fence around creek you don’t own – you get called into court about related dispute – friend is called as witness to say you said that admissible. Reason: What motive would you have to lie?

o Admission by a Party (R v. Terry, 1996 SCC): Confession. Accused makes confession to police – admits essential elements of offense – accused will not come to court and make same confession – police seek to admit previous statement recognized as “party admission” admissible under hearsay rule.

o Dying Declarations (R v. Schwartzenhauer, 1935 SCC): (1) Death of deceased is the subject of the charge; (2) Circumstances of death are what dying declaration is about; (3) Requires declarant to have belief of impending death – they have to believe they are dying. o Necessity = they are dead – can’t testify; Reliability: Won’t lie as they are going to

meet their Maker.o Res gestae – Spontaneous Declarations: In times of shock – spontaneous – without

consciousness opportunity to lie. o State of Mind/Statement of Present Intention: Statements related to intention or

mental state – to support inference declarant followed through on stated course of action.

o Prior identification: Usually refers to identification of accused – when accused is identified by witness testifying at trial – and they previously identified them. This exception is exception to general rule that witnesses are not allowed to testify as to his own previous statements.o “Out of court identifications can be admitted for their truth where the witness

makes no in-court identification, but can testify he previously gave an accurate description or made an accurate identification.”

o Prior Testimony (R v. Hawkins): Previously provided testimony to court under oath, reliably captured by transcript – only exception is s.13 of Charter.

o Business Records – Common Law – (R v. Monkhouse; Daum): Presumes accuracy of documents produced by government if there is a public duty to keep them. Statutes say that these are to be “taken notice of.”

o Oral Aboriginal Testimony: Delgamuukw: Use of oral histories in cases related to aboriginal rights are admissible as evidence where they are both useful and reasonably reliable.

NECESSITY AND RELIABILTYAfter Starr, there was a firestorm. Many problems, especially definition of reliability.

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R v. Khelawon (2006 SCC ): This case presents the current law on the admissibility of hearsay evidence. Videotaped statement by police – complainant deceased – complainant previously beaten and threatened – defense said he fell out of bed – doctor says he could have fallen out.o Principled Approach : (para 42). (a) Hearsay presumptively inadmissible unless there

is exception; (b) Hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by principled approach. Exception can be modified as necessary to bring it into compliance with principled approach (necessity and reliability); (c) Evidence falling within existing exception may be excluded if necessity and reliability are lacking in the particular circumstances of the case; (d) If hearsay evidence does not fall within exception, it may still be admitted if indicia of reliability and necessity are established.

o Threshold vs. Ultimate Reliability: Threshold is whether it is admitted (judge); ultimate is everything is for the trier of fact.

o “While it is clear the trial judge does not determine whether the statement will ultimately be relied upon as true, it is not so clear that in every case threshold reliability is not concerned with whether the statement is true or not.”

o Functional Approach : All relevant factors going to the reliability of the statement can now be looked at by the judge. What dangers evidence potentially raises – and then ask are they overcome? Can the jury fulfill its function?

o “The relevance of any particular factor will depend on the particular dangers arising from the hearsay nature of the statement and the available means, if any, of overcoming them.”

o Is there enough information for the jury to assess?o “Necessity” is not to be equated with unavailability of witness – it is to be

given flexible definition – refers to unavailability of testimony – NOT the witness. But in para. 104, “In appropriate question the court may question whether the proponent of the evidence took all reasonable measures to secure the evidence of the declarant in a manner that also preserves the rights of the other party (make application to judge for commissioner to take evidence).

o “Reliability” (para. 106): (a) If there is presence of adequate substitutes for testing the evidence – such as transcripts from other hearing; (b) Crown could rely on inherent trustworthiness of the statement. Factors: Starr no longer applies – now, there is NO limit on factors – corroborating evidence can be used. “Principled exception to the hearsay rule does not provide a vehicle for founding a conviction on the basis of a police statement, videotaped or otherwise, without nothing more.”

o “Show: (a) There is no real concern about whether the statement is true or not because of the circumstances in which it came about; (b) No real concern arises from the fact that the statement is presented in hearsay form because, in the circumstances, its truth and accuracy can be sufficiently tested.”

o Two scenarios for reliability being established: Reliability generally made: (1) No real concern whether statement is

true or not because circumstances in which it is made reduce risk; OR (2) Its truth/accuracy can be tested by alternative means (corroborating evidence, no motive to lie, etc).

1. Is it relevant?

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2. Is it hearsay? If so, it is presumptively inadmissible. 3. Traditional exceptions still apply – generally admissible if they fit into a

category, unless other party can persuade exception should not apply because indicia of reliability/necessity are lacking in particular circumstances of case.

4. Convince court to use principled approach: if indicia of reliability and necessity are established.

5. PV>PE

Need to know current state of the law; work through a couple of text examples; be comfortable understanding rationale behind rule and how it has evolved.

Opinion and Expert Evidence.

o Experts are often called to testify as to their opinion.o General Rule : Opinion evidence is presumptively inadmissible. Rationale: Witness is

supposed to help jury form opinion on guilty/innocence don’t want to usurp role of jury. Also don’t want to confuse the jury.

o Is it statement of fact, or of their opinion? “…there is little distinction resting on the false antithesis between “fact” and “opinion” …the line between fact and opinon is not clear” (Graat).

o Two permissible opinions allowed as evidence: (a) Lay; (b) Qualified Experts.

LAY OPINION: o Non-experts can testify as to certain matters.

R v. Graat (1982 SCR) : A witness can provide an opinion that is within common knowledge and experience. For lay opinion to be admissible it has to be on issue for which an expert is unnecessary and the trier of fact can reasonably confront the opinions. A non-expert cannot give opinion evidence on a legal issue. There is a large discretion for trial judges in determining whether opinion evidence is admissible. Where the witness can communicate the information adequately by describing with particularity what has been observed, the witness should not be permitted to express an opinion.Man accused of drunk driving – officers said he was impaired – went to hospital – no breath-alizer. Accused says he was tired (sailing) and had a couple of drinks over several hours. Which of these statements are admissible?o Constable Case observed him (rookie), “I formed opinion the accused’s ability was

impaired.” o Cst McMullen (8years): Observed crossing of line; weaving; smell of alcohol;

bloodshot eyes, swerving. “It was, in my opinion, his ability to operate motor vehicle was impaired by alcoholic beverage.”

o Sgt Spoelstra (17 years): “In my opinion…impaired by alcohol…driving motor vehicle…” Note: He did not see him driving motor vehicle.

o Mr. Wilson (friend): If he thought he was intoxicated he would not have let him drive. o NONE of these witnesses were qualified experts. o Sherrard v. Jakob: Non-expert witnesses allowed to give opinions: identifying

persons, handwritings, things; apparent age; bodily plight or condition of a person,

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including death/illness; emotional state of person; condition of things (worn, shabby, used/new; questions of value; estimates of speed and distance.

o Rationale: More efficient.o Reasoning : (1) It was relevant – issue of impairment; (2) There is no reason why a

lay witness should be given opinion if it more accurately expresses the facts that were perceived; (3) Compendious statement of facts – may be more difficult to XXXX; (4) Trial judge has large measure of discretion.

o “I can see no reason…why a lay witness should not be permitted to testify in form of an opinion if he is able more accurately to express the facts he perceived.”

o “If a witness is to be allowed to sum up concisely his observations by saying that someone was intoxicated, it is all the more necessary that he be permitted to aid the court further by saying that someone was intoxicated to a particular degree.”

o Note : Risk of admitting police “lay” evidence will be regarded more highly than that of the accused – years of experience – “quasi experts.” Opinion of police officers may “overwhelm” other evidence. BUT judge said opinion of police officers should be given NO special regard.

o Held : Conviction upheld. Opinion testimonies were all validly taken. o POLICY : “If an accused is to be denied the right to call persons who were in his

company at the time to testify that in their opinion his ability to drive was by no means impaired, the cause of justice would suffer.”

Note: A police officer was permitted to express an opinion abut what surveillance and re-enactment videos showed even though jurors were in as good a position to make that determination (R. v. Walizadah).

FACTORS Lay opinion evidence may/will not be permitted:(1) If there is question whether witness is drawing a logical inference from facts.(2) If the facts upon which the opinion is based are too speculative.(3) When having a witness provide an opinion that is phrased as legal conclusion

– legally conclusive statements are prejudicial.(4) If the lay witness is trying to give evidence that goes beyond common

knowledge into expert evidence (e.g. lay witness can’t say “X fell down and was having a heart attack)

WEIGHT: Just because a witness can give an opinion there may be very significant issues to weight. Is the lay witness really qualified to draw this inference even if common knowledge (e.g. maybe they personally have less experience in this area e.g. intoxication)? Does the lay witness have a certain background that would lead them to certain conclusion?

Some opinions are too dangerous to allow. Example: Laypersons cannot claim person was mentally ill.

EXPERT OPINION – ADMISSIBILTY

o If something doesn’t fit lay opinion, you want to try to fit it into expert opinion framework.

o If expert only question for trial judge is whether it fits Mohan framework.o Theriault: If the testimony of an expert is highly technical, counsel who has called

him should ask the witness to explain himself in language the layman can understand – the judge should not translate it.

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R v. Mohan (1994 SCC) : 4 part test on admissibility of expert evidence: (a) Relevance; (b) Necessity in assisting trier of fact; (c) Absence of exclusionary rules; (d) A properly qualified expert. The court then applies its residual power to weigh PE vs. PV.o “Relevance”: Relevance requires finding of BOTH logical relevance and a

determination that the benefits of the evidence (weight, materiality, reliability) outweigh its costs (confusion; “mystic infallibility”). The opinion must be so related to a fact at issue that it has some tendency as a matter of human experience to help resolve it.

o Haynes: Expert evidence about the accused’s dependent personality disorder was not relevant to a material issue since it was not directed at either his intention or to a mental order defence.

o Mattel: Public opinion survey did not meet the relevance test because the question posed was broader than the material issue the court was interested in, leaving the survey results too ambiguous and useless.

o “Necessity in assisting trier of fact”: Necessary because it is outside of the knowledge and experience of a judge or jury – necessary to help decide the fact at issue – must be necessary to enable trier of fact to appreciate the matters in issue due to their technical nature.

o “If on proven facts a judge or jury can form own conclusions without help, then the opinion of an expert is unecessary.”

o Being helpful is not enough. o Abbey: Evidence must be necessary to enable the trier of fact to appreciate

the matters in issue due to their technical nature.o Kelliher: In order to evidence to be admissible the subject-matter of the

inquiry must be such that ordinary people are unlikely to form a correct judgment about it, if unassisted by persons with special knowledge.”

o Lavallee: Expert evidence admitted as to state of mind of battered woman.o Examples where evidence has been received: cause of fire (Hung-Huong);

interpretation of forensic clues as to the cause of a motor vehicle accident (Taylor); parliamentary procedures (Goddard); analysis of DNA (Terciera); airworthiness of aircraft (Allen Estate).

o Examples of where not received: evidence from shrink that witnesses have problems of perception and recall when events are brief and stressful (McIntosh); conclusions of shrink whether person intended to cause death (Currie); sociologist to indicate whether person’s actions provoked (Nahar).

o “Properly qualified expert”: Concerned evidence will be misused – concerned juries will delegate job to expert – could distort fact-finding. Evidence could be treated as “virtually infallible.” Test: “…acquired special or peculiar knowledge through study or experience.” Expert status is achieved when the expert possesses special knowledge and experience going beyond that of the trier of fact (R.W.D).

o Important Note : Still must be outside common knowledge of average person!o Perrin : This is a synonym for “reliability.” o Fisher: Forensic DNA analyst was permitted to report random match stats

even though she was not a population geneticist. AGAIN, go to weight.o Thomas: Deficiencies in training can become pronounced enough to

undermine claimed expertise.o McMillan: Orthopedic surgeon did not have specific expertise needed to

determine the cause of a rotator cuff injury.

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o Bernstein: General surgeon qualified to offer expert opinion on standards of care expected by ob/gyn because he researched and published about cancer treatment and breast examination, the relevant area.

o “Absence of Exclusionary Rule”: Evidence cannot run afoul of exclusionary rule of evidence separate and apart from the opinion rule itself.

o Morin: Evidence elicited by Crown in x-exam of shrink called by accused not allowed because of rule that prevents the Crown from adducing evidence of the accused’s disposition unless the latter has placed his character in issue.

o Pascoe: Evidence excluded because of the danger it would be used solely to show the accused was, because of his character, the kind of person to commit the alleged crime.

How to alleviate concerns:Ultimate Issue

o The closer the opinion goes to ultimate issue – the stricter the test for admissibility – factors will be applied more rigorously.

o No absolute rule that counsel can’t ask the expert to give an opinion on the ultimate issue in the case (“Was a A too drunk to drive?”), but this will result in the court being particularly tough in terms of admissibility of probative / prejudicial test (Bryan).

PV vs. PE: Every piece of evidence can be knocked out with this residual discretion. o Prejudice means : Will jury be caused to be misled by evidence – NOT that it

is harmful to the accused! Does it encourage jury to, due to outstanding allegations, find that the

accused committed act – convicting for elements other than those he is being accused of.

WEIGHT:o (Terceira): Quality and practices of a lab using DNA technology were matters of

weight for the trier of fact, and not circumstances to be considered in determining reliability.

EXAMINING EXPERT WITNESSES

o In determining weight, trier of fact must determine extent to which facts on which it is based have been proved in evidence.

o If witness is giving opinion on basis of his own observations, he may be questioned on those observations and be asked for his opinion.

o If facts are established through testimony of others and are not in dispute, counsel may state facts to the witness and elicit his opinion.

o If facts are in dispute or the expert has taken into account facts that have not been proved in evidence, the expert’s opinion must be elicited on the basis of hypothetical facts.

R v. Marquard (1993 SCC) : Expert can be X-examined about contradictory opinions in authoritative works. But authoritative work must be acknowledged by witness that he is familiar with the work cited and confirms work is authoritative.

o Policy : Prevent witness from being ambushed.o Policy : Ensure the witness is indeed an expert.

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RESTRICTIONS ON EXPERT EVIDENCE

JLJ v. R (2000 SCC) : Trial judge is gatekeeper – to scrutinize expert evidence so to exclude junk science and protect role of trier of fact.

R v. Trochym: Even if you have qualified expert, what techniques they use to test evidence is also subject to scrutiny.

Statutory reforms in England: Restricting more severe; expert evidence is most helpful when it is independent and not tied to adversaries. England does not rely on our system.

Canada: Expert witnesses have obligation to tell the truth, but do not have express obligation to report to the court in an independent and non-partisan manner.

STATUTORY PROVISIONS

o CEA, s.7: Restricts experts that each side can call to five in any proceeding. Interpreted as 5 per issue (Fagan v. Urie, 1958 SCC).

o BCEA, s.10: Requirements for written report (copy given to all parties 30 days prior assertion of qualifications required; etc).

o BCEA, s.11: Expert must not give opinion unless a written statement o that opinion and the facts on which that opinion is formed has been given to all parties 30 days prior to testimony. NOTE: Person presiding may still permit the statement, pursuant to subsection 2.

o Section 12: Section 11 does not apply to criminal proceedings.o BC SC Rule 32(a): Ability of court to appoint independent expert (inspecting

property; assessing mental state of person). In these circumstances, the report of expert is tendered as evidence – does not need to be called. This is form of documentary evidence.

o BCSC Rule 40: Procedures of expert opinion.o Criminal Code, s.657.3: Experts on both sides must disclose they will be providing

opinions. Crown must disclose a copy of its expert report within a reasonable time prior to trial.

Statements by Accused Persons.

o Admission by a party is presumptively operative (confession) – can use to prove truth of its contents.

o General Rule : Accused makes confession to police during interrogation (AR, MR) relevant evidence admissible exception to hearsay.

o First Question : Was statement made to person in authority? If not made to person in authority no special exclusionary rule.

o Second Question : If made to person in authority, Crown must prove BRD the statement was voluntary in order to be admissible.

PERSONS IN AUTHORITY

o Confession to person in authority is presumptively inadmissible.

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o Monette: Crown must establish statement was voluntarily made BRD before using it for ANY purpose.

o Erven: If voluntariness is not conceded there must be a voir dire.o Brophy: In a voir dire, if the accused admits to the offence charged, the

admission may not be used against him in the main trial. o Cases are very facts-specific.

R v. Rothman (1981 SCC) : Statements made to undercover officer do not have to satisfy the voluntariness rule if the accused did not believe the person was a person in authority. Ask: Did accused believe “x” was a person in authority when he made the statement? Once it is established the person was not in authority evidence is admissible without any requirement for the Crown to establish it was voluntary. A claim for protection against self-incrimination can only arise where a tribunal or authority is seeking to compel an individual to disclose something which he does not wish to disclose. Rothman arrested carrying hash – brought to police station – declined to give statement – advised of right to counsel and right to keep silent – undercover cop came into cell with him – Rothman said he looked like nark but later changed his mind after officer said he was not – Rothman eventually confessed.Was undercover cop a person in authority?o Trial judge said he was person in authority – he was police officer.o Trial judge said it was not appropriate way for officer to behave.o Policy : Reliability in confessions – non-voluntary statements are not reliable. Some

could give false confessions; hoping for leniency on part of police; concerned of abuse of power, etc.

o Majority : Not person in authority confession can stand (unless out by other rule).o Why is he not person in authority?

o No subjective belief on part of accused.o Compulsion against self-incrimination only applies to trial [note: This case is

pre-Charter].o Estey in Dissent said should not allow it to be admitted: Voluntariness must be made with

some knowledge of circumstances; obtained through deception (tricks and lies); exercised his right to silence.

o Lamer concurs with Majority: Police trickery can lead to admissibility only when it would bring administration of justice into disrepute – “shocking conscience of the community.” Criminals are sophisticate and shrewd, and authorities often must resort to tricks and other forms of deceit and should not be hampered (real world).

o Common law basis of rule: (Ibrahim): It has been long established ….unless shown by prosecution (p.550).

o Key is that the hope or fear is held out by person in authority.o Factors :

Did person have degree of power over him? Did accused think the person to whom he confessed could either

make good his promise or carry out his threats?

Are these persons in authority?o Prison Guard : (Hodgon 1998 SCC): Prison guard and peace officers are

automatically considered people in authority by virtue of their status.o Victim (pressing charges): (Downey 1976 NS CAD): If accused believes victim

has some control over process, they can be person in authority.

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o Social Worker (child abuse investigation): (Sweryda 1987 ACA): They have reporting obligations and are persons of authority.

o Family of Complainant : (Wells 1998 SCC).o Psychiatrist : (Wilband 1967 SCC) If they have no ability to control proceedings,

they are not person in authority. Note, however, there are some statutory obligations to report. ***Exam question***

o In Wilband, shrink was not person in authority. o Parent: (A.B.) Parent is not as matter of law a person in authority if no close

connection between decision to call authorities and inducement on a child to make a statement.

Poshin (SCC) : The accused’s belief that he is speaking to person in authority must also be reasonable in the context of the circumstances.

R v. Grandinetti (2005 SCC) : If accused reasonably believes person was part of criminal justice system person is authority. Authority in a legal sense means someone who the accused’s opinion can influence the investigation or prosecution.Amount of circumstantial evidence linking accused to murder of his aunt – to obtain additional evidence, police conducted undercover operation – officers posed as member of criminal organization trying to win accused’s confidence – they said “we can use our corrupt police contacts to steer investigation away from you – accused told them he committed murder of aunt.o “Person in authority is generally someone engaged in arrest, detention, interrogation,

or prosecution of the accused. Absent unusual circumstances, an undercover officer is not usually viewed as person in authority.”

o Accused failed to show he thought they could enforce prosecution against them – he needed to lead some evidence they were person in authority.

o “He believed they were criminals, not police officers…”o Important Point : Officers did not claim to be acting on behalf of any state authority

but had offered instead to use corruption to influence the course of the prosecution.o Perrin: But how far could these guys go?

VOLUNTARINESS – INDUCEMENTS

o First branch of voluntariness stage of analysis.

Ibrahim v. The King (1914 PC) : No statement by an accused is admissible in evidence against him unless is it shown by the prosecution to have been a voluntary statement, in the sense that it was NOT been obtained by him from fear of prejudice or hope of advantage exercised or held out by a person in authority (quid pro quo). BUT there must be inducement – the simple question it was confessed to person in authority is NOT enough. That an accused made a statement under circumstances of hope, fear, interest or otherwise goes only to its weight.In custody in shackles, was asked by officer, “Why have you done such a senseless act?” – accused replied, “Some three or four days he has been abusing me; without doubt I killed him.”o Commanding officer was certainly person in authority.Was statement involuntary?

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o No. Officer did not say or induce anything to get confession. Accused spoke because he was sorry that he killed the victim.

o Policy : Forced confessions are useless – they do not help to seek out the truth.

Examples of Statements Induced by Police:o LeBlanc: Police statement “until we get some sort of answers where the stuff come

from…we just can’t get no bail” subsequent statement held involuntary. [Threat of ongoing detention; offer].

o Hayes: Police statement “It wouldn’t be very good if you’re telling us a story now, and it turns out that you are lying” subsequent statement voluntary. [Unclear, vague, not a threat]. (But note you can’t always tell from transcripts).

o Letendre: One officer said, “I’m getting mad” – the other said he did not like to see his partner get mad – accused got scared and confessed held involuntary. [Implied threat; subjective fear].

o Parsons: Narcotics charge – police said, “If we don’t clear this up soon, you will be in custody over the weekend” held involuntary. [Threat].

o Reyat: Accused charged with terrorist bombing – implication from police that harm may come to his “beautiful” family – implied that if accused didn’t co-operate, family may be investigated held voluntary. [Oblique promises or threats].

o SSL: “You tell us what you did and then we will help you get a shrink” involuntary [Induced by planting in the accused’s mind the notion that the path to rehab had to begin with statement to the officer demonstrating he was on the right track].

VOLUNTARINESS – OPERATING MIND

Ward v. The Queen (1979 SCR) : Voluntariness analysis extends beyond inducements. There is further investigation required even if there is no hope or fear of prejudice. Statements made by person without an operating mind cannot be admitted as evidence. Ward in car accident – he was not fully conscious at time statement was made about one-half hour after the accident - .o Underlying Concerns: Reliability; how much weight to give it?o Example of a transitory statement. o Court of Appeal said no inducement so it was okay.o SCC : Statement should be excluded.o Reasoning is very thin.o One possibility is to assess value of evidence rather than exclude it.

R v. Whittle (1994 SCC ): Limited cognitive ability is required for cognitive mind – you do not need fully operating mind. In determining capacity, ask whether accused is capable of making a good or wise choice is NOT part of the analysis. What matters is whether or not accused understands (a) what he is saying and what is said; and (b) the penal consequences. The mere fact of intoxication or mental illness that could impair one’s cognitive function is NOT enough to require exclusion. The focus is on whether the accused has truly been able to make a choice to make the statement. Schizophrenic charged with murder – “very mentally unstable” – at times hallucinated – accused in custody on another matter weeks later – he made statements concerning his involvement in the death including statements that led the police to physical evidence connected with the crime.

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o Inner Compulsion: “IC due to conscience or otherwise cannot displace operating mind, unless, in combination with conduct of person in authority a statement is found to be involuntary.”

o “To the extent that the inner voices prompted the appellant to speak in apparent disregard of the advice of his counsel and to his detriment, because he did not care about the consequences or felt that he could not resist the urging of the voices, they cannot be the basis for exclusion.”

o Held : Statements were admissible. He had the cognitive ability to understand what he was saying and he knew the statements could be used against him.

Other Cases and Examples:o Horvath: Hypnotized statement held not product of operating mind.o Paciocco and Stuesser: “Intoxicated confessions may also be excluded on this

basis, and so too might confessions by some individuals suffering from mental disorders.”

VOLUNTARINESS – OPPRESSION

Lord MacDermott ( Current Legal Problems ): Oppressive questioning is questioning which by its nature, duration, or other attendant circumstances (including fact of custody) excites hopes or fears, or so affects the mind of the suspect that his will crumbles and he speaks when otherwise he would have stayed silent.

Hobbins v. The Queen (1982 SCC) : State of mind is relevant – atmosphere of oppression may be created in the circumstances surrounding in the taking of a statement. What is not included is “accused’s own timidity or subjective fear of the police, unless there are external circumstances brought about by the conduct of the police that can be said to cast doubt on the voluntariness of a statement. o Not simply about illegal police conduct or that police followed the rules.o “Reid technique” of interrogation: Befriending – baiting – minimizing seriousness of

offence – rejecting protestations of innocence – changing subject when desired answer not obtained – claiming we’ve cleared everyone else.

o Oppression was found.

R v. Cook (1998 SCC) : It is not improper for the police to lie.o Police may also confront accused person by claiming to have evidence they

do not – but these tactics may contribute to oppressive interrogation.

R. v. Serack (1974 BCSC) : A lack of intention to humiliate/malicious does not matter. What does matter is that the will of accused is overborne in order to establish oppression.Accused put in lockup – clothes taken from him for forensic evidence – given a blanket – twelve hours later he is questioned (still with blanket) – no threat involved – no argument about operating mind.o Power imbalance is significant factor. He was in detention.o “A man’s trousers are essential to his dignity and his composure.” o Nothing wrong with fact they took his clothes – but given time passed, they should

have given him replacement clothes. o Perrin : Other examples: Not allowing them to use washroom; withholding medication;

room temperature.

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o “The Crown has not shown there was not atmosphere of compulsion” (Wishart).o This is policy driven decision: “It would be wrong for courts to countenance the

practice.” If courts accept this evidence, it would encourage this bad practice. The way you determine admissibility determines how police will investigate.

o The intention of the police was irrelevant to the decision. o [Class opinion: But if they did have intention – should it matter? Only if it

effects subjective state of mind of the accused.]o Held : Statement inadmissible.

VOLUNTARINESS – CONSOLIDATED APPROACH

R v. Hebert (1990 SCC) : Voluntariness rule is meant to ensure that statements made by the accused to persons in authority are admitted into evidence only where the accused has made a meaningful choice to speak.

R v. Oickle (2000 SCR) : New consolidated approach to voluntariness: You can use three possibilities (oppression, inducement, operating mind) broader to make argument will was overborne. The fourth consideration is police trickery that would shock the community. Common law confessions rule should recognize research findings on why people confess – opening door. The absence of oppression is relevant in assessing overall voluntariness. Ask: “Is the will of the accused overborne?” Courts should strive to understand all circumstances surrounding the confession. Moral inducements are OK.Accused for convicted multiple arsons – he is volunteer fireman – several incidents of father’s car and girlfriend’s car and ones in his neighborhood – police administer polygraph at hotel at 3pm – tell accused he failed the test and “machines don’t lie” – now ask for confession (inducement) – confesses to g/f car fire – he then goes to police station – re-cautioned at 8:15pm – at 11pm he confesses to 7 fires – by 1:10am he signs statement – he is in cell by 2:45 – at 6 am he is awake, so they say you are up already, “can you re-enact what you did” – they videotaped the re-enactment.Were these statements voluntary?o What are underlying purposes of rule: Confessions raise concerns about reliability

(involuntary statements more like to be unreliable); fairness.o Areas where false confessions have taken place:

1. Voluntary false confession: Not result of police interrogation.2. Stress Compliant: Result of pressure of interrogation – you want it to stop.3. Coerced Compliant: Threats or promises.4. Non-coerced Persuaded: Police tactics that make person become confused,

doubt memory, or you persuade them they are guilty. 5. Persuaded/Coerced: Bears elements of (2) and (3). Adding on top of

persuasion.o “Eliciting false confessions take strong incentives, prolonged questioning, and

intense pressure.” o Policy : Operating Mind Doctrine serves other purpose in reliability in addition to

fairness to the accused.o Test for Voluntariness: Circumstantial.

o “A relatively minor inducement (warmer clothes, tissue) may amount to an impermissible inducement if the suspect is deprived of sleep, heat, or clothes for several hours in the middle of the night during an interrogation…on the

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other hand, where he is treated properly, it will take a stronger inducement to render the confession involuntary.”

o “The absence of oppression is relevant in assessing overall voluntariness.”o Perrin: A properly conducted investigation suggests the statement is

voluntary. If Crown can lead evidence they did not offer oppressive environment can be used as evidence the statement is voluntary.

o Deference to Trial Judge : Standard of appellate review is palpable and overriding error as long as they got the law correct.

o Rationale: TJ was there and saw evidence in person, etc.o Application to Facts :

o Why was it voluntary statement? Absence of oppression and inducements (quid pro quo). Offer of

psychiatric help was not improper: “…at no point did the police ever suggest the respondent could only get help if he confessed. The distinction is between the police suggesting the potential benefits of confession, and making offers that are conditional upon receiving a confession.”

Frequent reference to Charter rights – police followed rules. References to fiancée (potential inducement when they said they

wouldn’t polygraph her if he confessed). Held to be OK, because no “causal connection” and they were lacking in strength.

TIME was a big factor. “…there were no pending charges against her they were

offering to drop…they never threatened charges against her…the never suggested her as a suspect…

“The most they did was promise not to polygraph her if he confessed. Given entire context, the most likely reason not to polygraph her was NOT as suspect, but as an alibi witness…”

Police can downplay moral culpability of offenses, but there is concern when downplaying legal consequences. Example: “Court will be easier on you if you confess.” Policy: Giving incorrect legal advice.

“…while police did minimize moral significance of crimes, there was never any suggestion by police a confession would minimize legal consequences of his crimes.”

The police were perfectly in line with respect to gaining his trust – speaking to him in gentle, reassuring manner.

There was no atmosphere of Oppression (courteous; no deprivation; apprised him of rights at all times; no fabrications; comfort, etc).

Exaggeration of Polygraph: They did exaggerate the accuracy of it, but in light of circumstances, that does not render confession inadmissible.

“Merely confronting a witness with adverse evidence – even when exaggerating its accuracy and reliability – will not on its own render a confession involuntary.”

o Police Trickery : Even though activity neither violates right to silence nor undermines voluntariness, if it is so appalling that it shocks community inadmissible.

o Inquiry NOT dependent on finding the will of accused was overborne.o Oickle court examples of shocking: Posing as priest – posing as legal aid

lawyer – injecting truth serum in diabetic accused under pretense it is insulin.

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o Rowe: Police gave reward money to Jamaican spiritualist who used a ritual to induce Rowe to confess held to be OK.

o Omar: “Mr. Big” scams where accused are tricked into bragging about criminal exploits as way to gain favor with undercover officers OK.

o It is never a problem to refer to internal conscience of the accused: “You’ll feel better if you confess…”

o The tactic of inflating credibility or reliability of evidence is usually unobjectionable: “We have video that shows your face clearly.”

o Policy of Contextual Approach : Respect “twin goals” of protecting rights of accused persons without unduly limiting society’s need to investigate and solve crimes.

o Held : Oickle convicted.

R v. Singh (2007 SCC) : Statements are enough to trigger rule – don’t need full confession. Tests are functionally equivalent: If you establish statement as voluntary, you cannot make any argument that pre-trial right to silence was violated. The constitutional right to silence has not changed the voluntariness rule. The ultimate question is whether the accused exercised free will by choosing to make a statement. The constitutional right is to remain silent, it is not a right not to be spoken to or questioned. Situations are highly fact specific.Accused asserts his right to remain silent 18 times – interrogation continues – he eventually gives incriminating admissions (not full confession) that get him convicted of 2DM – accused concedes statements were voluntary.Was accused’s right to remain silent undermined under section 7? Are right to remain silent and voluntariness one and the same?o Accused argues police should have stopped questioning after he said he wished to

be silent with written waiver indicating his desire.o Result: Putting more down the chain on the trial judge.o “Right to remain silent does not mean person has a right not to be spoken to...”

o Policy : If suspect committed the crime, it is likely he has most info.o If police properly caution accused, that supports voluntariness.o If suspect is detained by police, the test for voluntariness is stricter. EXAM: Note

where questioning took place.o “If circumstances are such that the accused can show on BOP the statement was

obtained in violation of his constitution right to remain silent Crown will be unable to prove voluntariness BRD.”

o Important Fact : Before interviews, accused was given proper Charter and official police warnings and spoke to counsel by telephone.

o “If the Crown proves voluntariness BRD no Charter violation of the right to silence.o Under both CL and Charter, police persistence in continuing an interview, despite

repeated assertions by the detainee that he wishes to remain silent, may well raise a strong argument that the subsequent statement(s) was not the product of free will.

o “Where suspect has not consulted with counsel, the police caution becomes all the more important as a factor is answering the ultimate question of voluntariness.”

o Individual characteristics of the accused are relevant considerations.o “While accused cannot be obliged to speak, police are free both to question accused

and, within the limits of the voluntariness rule, attempt to persuade him to speak.”o Factors to consider include failure to warn a suspect the police have reasonable

grounds to believe committed the offense, and efforts made by an accused to invoke their right to silence.

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o Confessions rule applies to any statement to person in authority.DISSENT:

o Incriminating statement should be out.o When you are detained, you are completely under the power of people

detaining you; when police press accused after right to silence invoked, he may think he has no right of silence.

o “It gives accused the impression that resistance is futile.”o Implication that confession would be extracted no matter what – interrogator

got stronger the more the accused raised his right to silence. o EXAM on policy/direction/dissent/implication of this case/did it adjust Oickle?

See Harris CAN page 32 for summary TEST.Section 7 Charter: Burden on accused to prove infringement BOP Charter, section 1 – section 24(2). It is not enough to have proven Charter violation – must demonstrate it would bring administration of justice into disrepute. Test for CL confessions

Oickle – Common Law: Burden on Crown – BRD voluntary – “automatic” exclusion. Test is “whether will was overborne?”

Character and Similar Fact Evidence.o CE is relevant at several levels of continuum - can be assessed at different phases. o R v. GSG (1997 SCC): It is trite law that character evidence which shows only

that the accused is the type of person likely to have committed the offense in question is inadmissible.

Crown wants to introduce evidence of sexual assault for murder accused – they want to establish she has character of exercising control.

3 Exceptions where CE admissible: (1) Where evidence is relevant to an issue in the case; (2) Where accused puts her character in issue; (3) Where evidence is induced incidentally to proper X-exam of the accused.

Ensure that proper instructions are given – warning to jury – limiting instructions.

NOTE: If defense brings PE/PV argument, judge will apply “Does PV substantially outweigh” standard.

o Character Evidence is a person’s disposition or propensity to behave in a certain way: What CE is all about. Is he the type of person that would have committed this offense? Concerned with behavioral traits – whether good or bad – that common sense

suggests are much more deeply ingrained. Usually circumstantial: Trier of fact is asked to infer a person behaved a certain

way at a point in time because that behavior is consistent with his character.o Character is different than Habit: Example of habit is the time at which an individual

routinely goes to bed.o Policy for Limiting CE : o Concerns about PV of CE: Nature of offense. How closely related is CE to offense in

question? How much weight should be given to CE? Evidence of bad character – concern jury will misuse CE. Potential for unfairness Efficiency concerns (time and resources required). How trustful are we that jury will have “box” in mind for Limiting Instructions?

PUTTING ONE’S CHARACTER AT ISSUE

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o If accused puts character at issue – Crown can rebut with evidence. o How can accused do it?

Accidentally : Can happen if not careful with questions. Intentionally : Defense thinks it will benefit your case.

R v. Rowton (1865 ER) : Trials get off rails when this evidence is allowed. It is also unfair at times to bring up bad past acts.

R v. McNamara #1 (1981 OntCA) : The accused does not put his character in issue by denying his guilt or by repudiating allegations against him. Also, he may give explanation for issues/allegations that are before the court. Character is at issue if accused asserts expressly or impliedly that he would not have done the things alleged against him because he is a person of good character. Character put at issue when accused adduced evidence that he ran the company “Like any company should be done – legally”. o Held : The accused put his character at issue by affirming his own honesty.o Note (Irwin, p.88): Accused will not have put his character at issue as a result of

answers furnished by other defense witnesses during X-exam.R v. Morris (1978 SCC) : Example of accused putting character at issue.Accused said he said he was “never convicted or arrested”.

o [NOTE: Crown’s rebuttal, hypothetically, would have to lead evidence of similar nature. They would have to try then to argue he was trying to show he was good, law-abiding person if they wanted to expand their rebuttal.]

o Held : He put character at issue.

R v. Wilson (1999 MCA) : Accused persons who defend themselves by pointing a finger at a third party and suggesting that person has a propensity to commit the crime charged will be taken to have put their own character at issue.

ACCUSED – REPUTATION

o Key is “general reputation” – proven by witnesses other than accused – entitled to give evidence of general good reputation of accused.

Accused cannot call witnesses to show he has engaged in specific acts demonstrating good character…CL allows “compendious and concise technique of calling reputation witnesses” (Irwin, 86).

o Restrictions: (a) Needs to be general reputation of community; (b) Not to be established on specific good acts.

o Reputation testified to must be relevant, be it for morality in a sexual offense case (Lizzi), peacefulness in a violence case, or honesty in a dishonesty prosecution (Irwin, p.87).

R v. Levasseur (1987 AltCA) : Reputation based on constant and intimate personal observation – not limited to residential community. If you are going to call witness for general reputation, it cannot be based on their opinion, must be based on constant observation, person must be trustworthy, the law wants the best person.Accused leading evidence of good character – charged with B&E to warehouse where she allegedly stole truck – she said employer said she could – good character brought by subsequent employer.

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Where do we look to find reputation of accused?o Character not put at issue when she said she thought she had permission – it is

merely an explanation.o TJ excluded it because CE can only be given by neighbors or those in residential community. o Primary focus is on reliability. o CA: “Times have changed.” We are no longer working in places where we live. Each

circle may be of no relation, but can express their views on reputation of accused. DISSENT:

o Evidence is not very probative – case against her was so convincing, that CE was “of no consequence.”

o CE is seldom of any assistance – when determining guilt, reputation is rarely relevant. You only want to know this sort of thing during sentencing.

o Guy testifying only knew her for 1.5 years. He talked to 15 other people in business community who knew accused hearsay dangers.

o [Fact that it was subsequent employer may be an issue – could she have changed her behavior for good reference?]

R v. Profit (1992 OCA) : Dissent adopted by SCC: Sexual misconduct occurs in private and is not usually reflected in the reputation in the accused for morality. As a matter of weight, the TJ is entitled to find the propensity value of CE as to morality is diminished in those cases. High school principal – appealing conviction of 2 counts of indecently assaulting boy – called 22 witnesses to support his character – they were from summer camp counselors, church leaders, business people, colleagues, friends – they all testified he was of good reputation – they said he was honest, moral, and had great integrity – said he never made inappropriate comments. o TJ: All this means is that he has a lot of friends. It is best to consider all of the evidence. He

rejects denials of the accused. Regarding CE, it was just one factor to consider to determine credibility of any of the witnesses.

Problem : His remarks indicate he was not aware that there is valid use of CE, namely that it could be used as evidence that accused is not type of person who would assault children.

o OCA: Majority overturned TJ. Would require that judge demonstrated he was aware of disposition use – needed to say so – have to at least consider the evidence. However, the dissent was ultimately adopted by the SCC.DISSENT:

o CE of reputation should not include the witness’ own opinion. o Although CE not admissible of general character, it is evidence of sexual

morality. o Probative Value: “Assumption behind CE is undermined in sex crime

offenses.” Sexual assaults are shrouded in secrecy and flaws in character may not come into light until accused is charged and convicted.

o Task Force on Sexual Abuse: “There is data to show that evidence of good character does not have any bearing on the propensity of an individual to abuse patients sexually…abusers often build good character profiles to camouflage their abuse.”

o R v. R(BS): PV also slight when sexual offenses involve adult victims.o SCC Held : Convictions restored.o Policy Thought : What about murder? Cannot CE also have little bearing on

that crime? Fraud? Most crimes are committed in secrecy.

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PSYCHIATRIC EVIDENCE OF DISPOSITION

R v. Robertson (1975 OCA) : Psychiatric evidence with respect to disposition or its absence is admissible on behalf of defense if relevant to an issue in the case, where the disposition constitutes a characteristic feature of an abnormal group falling within the range of study of the psychiatrist, and from whom the jury can receive appreciable assistance. A mere disposition for violence is not so uncommon as to constitute a feature characteristic of an abnormal group.Accused charged with murder of girl – D wants to bring psych report – report will say accused is “not disposed to violence” and “the type of person who would kill a girl would be a violent person”.o Court distinguishes ordinary crimes from crimes with distinctive features.o Offense would have to have either distinctive features, special class of offender,

recognized traits where psych disposition would be of assistance.o While murder was brutal, anyone, not just a psycho, could have committed it. o Held : Would not allow evidence.

CRIMINAL RECORDSo CC, s.666: Where at trial, the accused introduces evidence regarding his good

character, the prosecutor may adduce evidence of the previous conviction of the accused for any offense – including a previous conviction by reason of which a greater punishment may be imposed.

o Entitles Crown to go further than what is allowed under CEA, s.12.o R v. P(NA): Since the X-exam under s.666 is predicated on the

accused having put his character at issue, the accused may also be questioned about the specifics underlying the criminal convictions.

o CEA, s.12(1)(1.1): Any witness may be questioned as to whether he has been convicted of any offense. If the witness denies the fact or refuses to anser, the opposing party may prove the conviction.o Section applies to trial related to any federal jurisdiction (aeronautics, CC,

etc).

Why would a criminal record be admitted?o R v. Corbett (1988 SCC) : Upholds constitutionality of section 12(1). Criminal

records are relevant to credibility of a witness.o There is something beyond these provisions – the statute says these

records are relevant, but the trial judge still have discretion to weigh the decision with respect to PV > PE.

o Factors to Consider : i. Whether previous conviction related to acts of deceit or fraud;ii. Similarity of previous convictions to charges facing the accused.

o Perrin: Starts to look like disposition evidence – strange they included this factor.

iii. Temporal remoteness of offense (how recent was conviction)? iv. Whether it would be unfairly shielding the accused if the

prosecution’s witnesses had their credibility attacked.

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o Underwood (SCC 1998) : Decision of when to admit record of accused: at close of Crown’s case a voir dire is held into the question of whether the criminal record of the accused will be admitted (half-time show).o If TJ finds there is insufficient PV and won’t admit record,

prosecution can apply to change his mind.o Test : If evidence departs significantly from what was

proposed.

CHARACTER EVIDENCE & JURY INSTRUCTIONS

R v. Dunn (1993 OntCA) : In case of bad character, jury must be told they are not permitted to infer that because accused is a drug dealer he is more likely to have lived off avails of prostitution. Jury must be told this because of dichotomy of how character evidence may be used by Crown and defense.OCA ordered new trial because of inappropriate jury instruction – TJ neglected to say jury was not permitted to consider fact that accused was a drug dealer in inferring he was living off prostitution – only purpose it could be used for was to assess credibility of accused as a witness or undermine arguments that accused was of good character and less likely to have committed the crime. o “TJ failed to warn the jury of the dangers of misuse of this type of evidence in aid of

the conclusion that the appellant was the type of person likely to have committed the offence of living on the avails.”

o Perrin: In case of good character, the jury must be told….XXXo Defense can raise a reasonable doubt with CE. Crown can only use to disprove good

character and undermine credibility, not to infer that b/c they are a bad person they committed this crime.

VICTIMS – BAD CHARACTERo We are talking about facts and actions.

R v. Scopelliti (1981 OntCA) : Accused cannot be aggressor if claiming self-defense. If we have evidence of bad acts of third parties, there is no exclusionary rule – it is admissible if there is PV to it. Can prove through general reputation, psychiatric evidence, and specific bad acts.Serious of pieces of evidence necessary for prosecution to prove its case – store owner shoots guys at night and claims self defense – deceased admits he shot them – accused offered testimony of what happened (said two victims antagonized him) – he said he was fearful they would hurt/rob him – there was significant evidence of bad acts of deceased.o Accused’s testimony was admissible.o Previous bad acts of deceased : road rage; stole gasoline; broke lights on front of

store using snowballs; spat Coca Cola on the floor.o Other bad acts unknown to accused: vandalism, threats to others.

o For case of self-defense, there must be “air of reality” – some evidence that could lead to belief there was need for SD burden on accused.

o Must be reasonable apprehension of death or serious bodily harm.o Key elements are level of threat and immediacy.

o Held : Third party acts are admissible…but for what purpose?o If there is PV!o With respect to acts the accused knew about admissible to

demonstrate there was reasonable apprehension of violence.

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If he doesn’t know about them how can his subjective state of mind be reasonable?

o With respect to acts unknown to accused not relevant to question of reasonable apprehension of harm – but where SD is raised, evidence of the deceased’s character for violence is admissible to show the probability of the deceased having been the aggressor and to support the accused’s evidence that he was attacked.

o Limitation placed on CE of deceased: “As a condition of admissibility where SD claimed, there must be some other appreciable evidence of the deceased’s aggression on the occasion in question…[however]…the additional evidence of the deceased’s aggression may emanate from the accused.”

o Must be link between bad acts (disposition) and event in question. It is not enough to say victims had general propensity for violence – need more.

o Perrin: Court suggesting some reluctance.

CRIMINAL CASES – SFE

o “Improbability of coincidence”.o Evidence of specific bad acts of accused is generally inadmissible. o Concern : Multi-count indictment.

R v. Trochhym (2007 SCC) : One incident is not a pattern – it is only a single event. Example of where an incident was too generic to yield the “improbability of coincidence” required.Neighbor behind her door hears dispute in apartment across the hall – neighbor never sees accused walking into room – victim killed – Crown called as witness an ex girlfriend of accused – victim was girlfriend at time – ex-girlfriend ended relationship and she said he previously entered her residence and caused rucus.o Judge held it was SFE. o Judge was incorrect…it was not SFE…fails test because it was not distinctive

enough, and one angry relationship was not pattern – it was only one event.

R v. Gagnon (2003 QCA): Example of how SFE reasoning can be applied when a signature is present.Young hitchhikers fell very ill – many identified accused as one who gave ride – many could not identify – most in group remember being given chocolate before losing consciousness – one did not remember receiving chocolate.o So long as they recognized they were given chocolate that was enough to identify accused. It

was improbable that it was a mere coincidence (giving chocolate…losing consciousness).o Other person who not identify him nor recall chocolate – their evidence could not be admitted.

R v. Arp (1998 SCC) : Example of modus operandi permitted connection with other murder with similar factors and circumstances. Evidence that does no more than to prove the general propensity of the accused will not gain admission as it will invariable have greater potential PE than PV. Accused charged with two murders – both involved young drunk women late at night looking for ride home in public places – bodies each found outside city – both instances

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clothing cut away from bodies and left at scene – DNA links accused to one of the murders.o SCC : Similarities sufficient to connect him with both murders. o “Relevance of SFE will emerge because the accused’s involvement in the alleged

similar act is unlikely to be the product of coincidence”.o Jury must be told they may not use SFE to reason from general disposition or

character to guilty by inferring accused is a person whose character or disposition is such that he or she is likely to have committed the offence or offences charged.

o Perrin: If it were public that woman killed in that circumstances a week previous – would erode distinctiveness.

R v. Gauthier (2005 QCA) : Example of where similar events did not meet SFE admission standards.Two murders – victims involved in drug trade – 3 months apart – alleged SFs were shot in head, buried in same fashion/area, several hours away from where they lived – accused directly linked to one of the murders.o Held : Not sufficient grounds to find SFE.

o Reasoning : People involved in drug trade more likely to be killed and dumped away – not sufficiently distinctive; [Time between murders].

Glynn (OntCA 1971) : Pre-Charter example of how poorly SFE rule has been used – decision would not stand today.o Accused convicted because he was left handed and homosexual.

R v. Handy (2002 SCC) : In order to be admissible, it would be necessary to conclude that similarities were such that absent collaboration, it would be an affront to common sense to suggest similarities due to coincidence. Must be concluded by TJ on BOP that the PV of inferences exceeds prejudice – onus on Crown. Collusion prevents admissibility. Court brings substance to PV/PE analysis. Accused charged of sexual assault causing bodily harm – complainant consented to sex, but not to rough anal sex – accused trying to lead evidence that accused has disposition for aggressive sex – witness is ex-wife – she says he does not take no for answer and is aggressive: “propensity to inflict painful sex and when aroused will not take no for an answer” – propensity for violence – trial judge does NOT admit as disposition evidence, but as SFE – there are also allegations of collusion when ex said if she complains “all she has to say is she was abused” and will get $ - incident happens soon afterwards.What is the test for admissibility of discreditable SFE where th credibility of the complainant is the issue?o Evidence of misconduct that is not in indictment – cannot just blacken the accused.

o Reasoning Prejudice : Confuse jury; divert trial time, etc.o Moral Prejudice : May convict merely because accused is “bad person”.

o Policy : Don’t want to just round up the “usual suspects”; people can change; people act inconsistently with their own character; accused is not charged for other incidents, only the one before the court.

o Exception: Relevance and PV: (para 41, p.506). We will allow some evidence of bad acts of accused.

o PV>PE. Factors: Degree of similarity Patterns Connecting factors

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Prejudice. Can the Crown establish case other than prejudicial fact

evidence? o Test for admissibility : “SFE is presumptively inadmissible. Onus is on the

prosecution to satisfy TJ on BOP that in the context of the particular case the PV of the evidence in relation to a particular issue outweighs it potential prejudice and thereby justifies its reception”.

o Must be relevant to some other issue beyond disposition or character: “It is therefore incumbent upon the Crown to identify the live issue in the trial to which the evidence of disposition is said to relate. If the issue has ceased to be in dispute (eg: fact is admitted), the evidence is irrelevant and must be excluded”.

o There must be a required degree of similarity: Principle driver of PV is the connectedness established between SFE and the offences, particularly where there is a “degree of distinctiveness or uniqueness” or “the propensity is so highly distinctive or unique as to constitute a signature” (Arp).

o There must be Connecting Factors: (not exhaustive) Proximity in Time Extent to which other acts are similar in detail Number of occurrences of similar acts Circumstances surrounding or relating to similar acts Distinctive features unifying the incidents Intervening events Any other factor which would tend to support or rebut the

underlying unity of the similar acts.o Differentiating admissible/inadmissible propensity evidence

involves patterns or modus operandi.o SFE need not be conclusive.

o Makin: Accumulation of babies found dead in similar circumstances permitted, in relation to the accused, the double inferences of propensity – there was an improbability of an innocent explanation.

o Application : PV eroded by serious questions about credibility of similar act witness, including material inconsistencies in her account, and her financial and personal motives to mislead.

Impact of potential collusion on admissibility of evidence.o If collusion is present, it destroys the foundation on which admissibility is

sought – but if the evidence amounts to no more than opportunity it will usually be left to the jury.

o Where there is an “air of reality” to the allegations, the Crown is required to satisfy the TJ on BOP that the SFE is not tainted with collusion. Then the jury assesses the evidence.

o Ex-wife met complainant a few months before the assault – told of his criminal record – said she received $16,500 from CICB and advised her on how to get some.

o Held : Evidence inadmissible.

CIVIL CASES – SFE

Mood Music Publishing Co. v. De Wolfe (1976 ERCA) : If SFE is logically probative or logically relevant in determining the matter at issue, it is admissible as long as it

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is not oppressive or unfair to the other side. There needs to be opportunity for D to respond to this evidence. Difference between criminal and civil SFE: Same test but just less stringently applied. In a civil case, the TJ should simply decide whether the PV of the evidence outweighs it PE.Plaintiffs has library of music works – provide them to producers – D has similar business – similar songs submitted – P song created prior to D – P tried to bring similar fact evidence to show D acted similar in past – engaged in two attempts to introduce SFE: (1) Trap order: recorded another hit.Was song produced without consent of P?o It is relevant – it makes it more likely they committed this act – refers to pattern of

conduct or behavior.o In civil cases, PV can be guided by same structure as criminal cases (Handy).o In civil cases, PE should emphasize matters of importance in civil litigation, including

unfair surprise, the undue consumption of time, and whether the opposing party litigant is in a fair position to respond.

Kerr v. Creighton (2008 BCCA): While there are generous rules of admissibility, there are instances where the concerns the court has about PV and weight to be given, has exceptions. Previous evidence of good, cautious driving is not admissible – neither is evidence of conduct of pedestrian shortly before an accident. There is a difference between habit (non admissible evidence), and previous conduct. The premises on which the calculations are based must be established by much more than vague and ill-defined testimony. The evidence must be specific and accurate within very narrow limits and not broad ones.Collision with car and bicycle – prior conduct of P as to how he crossed the crosswalk was SFE – young boy’s mother leads testimony, saying he always rode safely.Did judge confuse evidence of habit with previous conduct?o Habit is pattern of behavior (unchanging). Example: Use of the certain intersection.o Careful and Cautious Behavior: “manner in which they crossed the road”.Evidence of crosswalk passing:o Automobile accidents are not appropriate place to look for previous conduct.

o “In an accident case, SFE in (para22). SFE as to manner of being cautious cannot be led to support inference that you were cautious and careful. The evidence would be of so little weight, there ought not to be an exception made.

o Perrin: Does this rule make sense? We are concerned about anomalies. Did it help this case to exclude this evidence?

o Don’t look to Kerr as reference to defining terms .

Privilege.

o Privilege protects info from disclosure in court even where the info is relevant and probative.

o Privilege is evidence that is relevant, probative, and will help judge achieve the truth – so there has to be other reasons for excluding it.

o Why do we have privilege? SCP: Functioning of legal system depends on it; encourages people to be frank and honest.

o Hearsay is primarily about truth seeking; privilege is about protecting values in society above the truth seeking function – not just about reliability, etc.

o First Question : Is it class based privilege, or Case-by-Case privilege?

R v. McClure (2001 SCR) : There is a four-part test for case-by-case privilege. 1. Communications must originate in confidence they will not be disclosed.

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2. Confidentiality must be essential to full and satisfactory maintenance of the relation between parties.

3. Relation must be one that in the opinion of the community ought to be sedulously fostered.

4. Injury that would inure to the relationship by the disclosure of the communications must be greater than the benefit gained for the correct disposal of the litigation.

o Class Privilege provides “blanket, prima facie privilege”. There is prima facie presumption of inadmissibility once it has been established that the relationship fits within the class, unless the party urging admission can show why the communications should not be privileged.

- Examples include: SCP; spousal; informer.o Case-by-Case ex: Doctor-patient; psychologist-patient; journalist-informant; religious.

SOLICITOR-CLIENT PRIVILEGE

Descoteaux (SCC 1992) : When there are situations of conflict involving SCP, they should generally be resolved in favor of protecting SCP. Interference should be done only when “absolutely necessary” in order to achieve the ends sought. Exceptions are to be interpreted restrictively.o Confidentiality may be raised in any circumstances where such communications are

likely to be disclosed without the client’s consent.

Foster Wheeler v. SIGED (2004 SCC) : Privilege protects essential interests of clients and ensures smooth operation of judicial system.

Lavallee, Rackel and Heintz v. Canada (2002 SCC) : SCP exists independently – does not require anyone to assert it. The privilege belongs to the client and can only be waived by the client or through his or her informed consent. There is a presumption that a lawyer’s bills are prima facie privileged and the onus lies on the party seeking disclosure to prove the production would not violate confidentiality of the relationship. o Searches of law offices (p.755): No search warrant can be issued with regards to

docs known to be protected – must be no other reasonable grounds alternative to the search – all documents in possession of a lawyer must be sealed before being examined from his possession – contact lawyer and client at time of execution of search warrant – after warrant, all potential privilege holders must be given reasonable opportunity to assert claim of privilege – prosecuting authority can only inspect docs when it is determined by judge that docs are NOT privileged – when docs found to be privileged return immediately.

Requirements for SCP:

Canada v. Solosky (1980 SCC ): Communication must: (a) be between solicitor and client; (b) must entail the seeking of legal advice; and (c) must be intended to be confidential.

EXCEPTIONS TO SOLICITOR-CLIENT PRIVILEGE

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1. Facilitating Criminal Purpose :

R v. Campbell (1999 SCC) : More evidence is required than mere existence of a crime and that there was consultation with lawyer. There must be something to suggest that the advice facilitated the crime or that the lawyer would otherwise become a dupe or a conspirator.

o Perrin: If lawyer give advice on how to conceal evidence caught.o It is not after the fact – not relating to good advice to fall within exceptions – the

advice itself has to have been for purpose of conducting a crime.o Ask : What is reason for giving of advice?

o Perrin: Often the lawyer’s office will be used.2. Public Safety :

Smith v. Jones (SCC 1999) : SCP can be expanded beyond solicitor and client to third parties retained for purposes of effectively aiding client. When public safety is involved and death or serous bodily harm is imminent, SCP should be set aside. All surrounding circumstances should be considered in correlation with 3 part test. Disclosure should be limited so that in includes only info necessary to protect public safety.Lawyer sends client to shrink for evaluation hoping to get info that could be use in defense – client describes his crime to the shrink and how he took woman as sex slave – said it was trial run and he was going to do it again – shrink was concerned he would do it again – told lawyer the info should be disclosed – shrink went to court to disclose.o Important Fact: Shrink was retained by solicitor! As result, privilege expands to

envelop communications client has to shrink. o Key : Without link to lawyer (if client hired shrink) no coverage!

o Lawyer retained by shrink purpose is to determine whether or not he can disclose this information.

o TJ says mandatory disclosure on part of shrink. CA says it is “permissive disclosure” – can disclose if they choose to do so.

o Note : BC Law Society Rules – permissive – you don’t have to disclose.o Relationship between Client and Solicitor: Conversations with defense experts fall

within SCP and attract permanent and substantive privilege.o Three part test for public safety where facts raise real concerns that identifiable

individual or group is in imminent danger of death or serious bodily harm:o Clarity: Planning; method suggested; prior history of violence or threats; similarity;

whether severity of violence is escalating; whether threat is identifiable (can someone be protected by disclosure)? Threatened harm may be large but if it is clearly identifiable then it is a factor that must be considered in determining whether SCP should be set aside.

“Someone is going to pay!” does not satisfy clarity test.o Serious Risk of Bodily Harm or Death: Psychological harm may count (McCraw). o Is the Danger Imminent? Must be sense of urgency, but it will not always be

necessary to impose a time limit on the risk.o Extent of Disclosure : Attorney is released from is duty to maintain confidence in

order to prevent the act or protect those against whom it is threatened. “…limit disclosure to aspects of document that indicates there is

an imminent risk of serious bodily harm or death to an identifiable person or group…”

o Applying the test to the facts :

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o Clarity: Identifiable group; specific method; evidence of planning; prior mirror acts.

o Seriousness: Very serious threat sexually sadistic murder.o Imminence: He waited 3 months to contact counsel, BUT Jones breached

bail by visiting the area where prostitutes could be found.o Held : Shrink can disclose.o Dissent (Major): Won’t encourage people who need help to seek help – you are not protecting

public safety because it will dissuade people from seeking assistance. o “Conscriptive Evidence”: Disclosure is only to be as much as necessary. Here,

they were going to disclose statement by client to shrink. If we are to recognize exception for public safety, it does not have o be everything. Could just be shrink’s opinion as to ability/likelihood of causing harm.

o Procedure: When/how to make forms of disclosure? Only in rare cases where accused poses an instant risk. Should be judicially supervised.

3. Innocence at Stake : Very difficult to establish – procedurally and substantively demanding.

R v. McClure: SCP must give way where there is danger that an innocent person may be wrongfully convicted. Test: (1) Info to be disclosed must not be available from any other source; (2) Accused must be unable to raise reasonable doubt from any other source Process to have SCP waived: (1) Establish evidentiary basis the communication exists that there could be reasonable doubt raised as to guilt; (2) If such a basis exists, the TJ hears evidence and determines if RD would likely be raised as to guilt of accused. If yes, privilege overridden.o Note : Two-step process in McClure – unsure if it applies in Liepert!

LITIGATION PRIVILEGE

o Protects works done by counsel from disclosure to other parties. Rather than protecting relationship between S-C, it protects counsel’s role in litigation process.

o Differentiating SCP and LP: (a) SCP applies only to confidential communications, while LP applies to communications of a non-confidential nature between solicitor and third parties, and even includes material of non-communicative nature; (b) SCP exists any time a client seeks legal advice from his solicitor whether or not litigation is involved, where LP applies only in context of litigation; (c) LP is based on need for a protected area to facilitate investigation and preparation of a case for trial. It aims to facilitate a process – whereas SCP aims to protect a relationship.

DISPUTE SETTLEMENT

o Another form of Class based privilege (Middlecamp).o Part of policy to encourage settlement before trial – parties need to be frank and

open. Here, they say things they would never say in court. Communications made during attempts to settle litigious matters through negotiation or mediation are not admissible if negotiation or mediation fails and the matter is litigated.

o Key: “…for purpose of settling disputes out of court.” o “Without Prejudice” label: Cannot use for future discussions – statements are free

and do not bind party to anything.

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o Exceptions: Offers to settle can be relevant to costs awarded. o Label is NOT required if it is clear from the circumstances that the

communication was made with the intent that it not be disclosed in litigation, but is a good idea.

o Party who wants to overcome this privilege must demonstrate that a competing public interest outweighs the policy goals behind the rule (Middlecamp).

INFORMER PRIVILEGE

o The rule protects the informer’s identity – it does not protect the information.o Class-based form of privilege.

R v. Scott (1990 SCC) : There are three exceptions to the Informer Privilege. Each of these situations goes to establish the accused’s innocence or a defense – therefore there is NO exception in civil cases! IP in drug cases more important.1. When the informer is a material witness to a crime – particularly the ONLY witness.

[But what if Crown decides not to call them as witness?]2. When informer was agent provocateur – someone who instigates. Exception could

be extended to cases of entrapment where accused provides evidentiary basis.3. Where accused seeks to establish search was not conducted on reasonable

grounds – designed to deal with informants NOT being called as to guilt (s.8). o Competing Values : Protecting identity of police informers v. Need for accused to

know case against him and how it was collected (in constitutional manner)o Policy : Want to encourage people to come forward with this information; want to

protect them from retribution from criminals. o Investigative tools, not allowed in trial: Polygraph test.o “Even under these conditions, a court should strive to provide as much evidence as

possible to the defense by means of editing the information on which the search warrant was based without disclosing the identity of the informer. That disclosure should only be made in circumstances where it is absolutely essential”.

R v. Liepert (1997 SCC) : IP cannot be balanced against other interests. While on the stand, a witness cannot be compelled to state whether he or she is a police informer. IP prevent not only disclosure of the name of the informant, but also any info that may implicitly reveal his identity. Regarding editing, when it is impossible to determine which details of the info provided will/not result in identity being revealed no details should be disclosed. Police received tip from CrimeStoppers he was growing pot in house – police show up with dogs four times – officer noticed smell – on basis of that evidence obtained search warrant – TJ orders disclosure – Crown says they will not.o Under Stinchcombe, it should have been disclosed. o Crown says tip sheet covered by I/P subject only to “innocence at stake” exception.

SCC Reasoning:o Court is very concerned about retribution. o Privilege belongs to the Crown but indirectly belongs to informer and informant.

o Crown cannot waive privilege without informer’s consent either expressly or by implication by not raising it A valid waiver of the privilege requires the consent of both.

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o Privilege is broad in scope and covers both criminal and civil trials. o Even the smallest detail could suffice to reveal identity. o Form of Class Based: “…it cannot be balanced against other interests”. o “…there must be a basis on the evidence for concluding that disclosure of the

informer’s identity is necessary to demonstrate the innocence of the accused…”o The usefulness of the information cannot be speculative. o Application : It was not established the identity of informer was necessary in order to

establish innocence of the accused. Given anonymous nature of tip, it was impossible to conclude whether disclosure of details remaining after editing might be sufficient to reveal identity of informer.

o Editing : Risk of implicitly releasing identity of informer. o Held : Tip sheet covered by informer privilege and should not have been edited.

Identity can be disclosed by other means. o Perrin: How does innocence at stake exception fit here as compared to previously? o Procedure : When accused seeks disclosure of informer info on the basis of “innocence at

stake”: (1) Accused must show basis to conclude that without disclosure sought his innocence is at stake; (2) If basis is shown, court may review info to determine whether the info is necessary to prove innocence; (3) If court concludes disclosure is necessary only reveal as much info as is essential to allow proof of innocence; (4) Before disclosing info, Crown should be given option of staying proceedings.

OTHER RELATIONSHIPS – Case-by-case:

o Case-by-case removes certainty!o Courts are reluctant to recognize other forms of class.

R v. Gruenke (1991 SCC) : Religious communications to be dealt with on a case-by-base basis, and can be excluded in cases where Wigmore criteria are satisfied.Woman joined church after committing murder with boyfriend – she was in his will – he made sexual advances – she “confessed” her involvement to pastor and church counselor – counselor came to visit her (initiated conversation). o Defense Theory: Boyfriend killed old man, had motivation.o Crown Theory: She arranged for boyfriend to be there and wanted deceased to

come to his house and kill the old man.o Hearsay Issue : Hearsay statement – confession to person not in authority. Statement

is admissible unless covered by privilege.o TJ: Statements are admissible – support Crown’s theory. o SCC : Statements are admissible.o Policy : Religious communications, despite social importance, are not inextricably

linked with justice system. o It is also a question of policy as to what should constitute class based:

Part of a move toward a principled approach – no pigeon-holes.o Case-by-case allows court to determine whether the individual’s freedom of religion

will be imperiled by the admission of the evidence. Wigmore criteria will be informed by the Charter guarantee of freedom of religion.

o Communication will be assessed in four ways when talking about religious communications: (1) Nature: must originate in confidence they will not be disclosed; (2) Purpose for which made: confid must be essential to full and satisfactory maintenance of relations; (3) Manner in which it was made; (4) Who parties to communication were.

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In this case : Failed (1), as it was not clear anyone was to keep the conversation confidential. The accused had already decided to turn herself in – conversation was for stress relief.

o Dissent : “There is human need for spiritual counselor, which in a system of religious freedom and freedom of thought and belief, must be recognized and supercede truth-searching…”

o Perrin: What if accused calls counselor and says she has something confidential to discuss? Bring in other factors!

STATUTORY PROVISIONS

o BC Professional Conduct Handbook, Chapter 5, s.12: “A lawyer may disclose information received as a result of S-C relationship if the lawyer has reasonable grounds to believe the disclosure is necessary to prevent a crime involving death or serious bodily harm to any person.

o CEA, s.4; BCEA, s.8: No husband/wife is compellable to disclose any communication made by him/her to other during marriage.

o CEA, s.37: Objection to disclosure of info on grounds of specified public interest.o CEA, s.38: Objection to disclosure on basis of national security.o CEA, s.39: Objection to disclosure on basis of confidence of Queen’s Privy Council.

Improperly Obtained Evidence.

COMMON LAW & CHARTER PROVISIONS

o Prior to the Charter, CL view was rigid: No automatic rule of exclusion. So long as evidence was properly before the court (relevant, etc), it was admissible (Wray).

o US Supreme Court: Automatic exclusion. o Section 24(2) of Charter : Where court concludes evidence obtained in manner that

infringed or denies rights or freedoms guaranteed in the Charter, if it is established that having regard to all the circumstances, the admissibility of it in the proceedings would bring the administration of justice into disrepute.

EXCLUDING EVIDENCE UNDER THE CHARTER – ADMIN OF JUSTICE IN DISREPUTE – “Collins/Stillman Framework”

R v. Collins (1987 SCC) : All illegal searches violate s.8 of the Charter. The admission of unconstitutionally obtained self-incriminatory evidence would render a trial unfair and should be more prone to exclusion than real evidence, the admission of which would not tend to undermine trial fairness. It is whether the admission of the evidence would bring the administration of justice into disrepute that is the applicable test.Undercover cops got tip from someone saying lady had drugs – police grabbed her by the throat – she had heroin in hand – police didn’t want her to swallow the drugs.o SCC: Not clear there were reasonable grounds for search (s.8 violation).o Should drugs be excluded under s.24(2)?

o Drugs are real evidence. Highly probative pieces of evidence.

o Drugs are direct evidence – no inferences needed.o If evidence is excluded, there is not much left of Crown’s case.

o Held : SCC orders new trial: Evidence should be excluded and it will be unless the police can offer justification as to why the throat grab was justified.

o “Intermediate Position” between CL and US approaches.

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o French translation translates 24(2) “would” instead of “could”. o Effect of decision : Should say: “could” lower threshold.o Burden of Persuasion : Burden on applicant to show s.24(2) applies – BOP. o “Purposive Approach”: To prevent administration of justice from being brought

into further disrepute if the evidence is admitted.o Test and Factors for s.24(2 ): In eyes of reasonable person

(dispassionate; fully apprised of the circumstances of the case; tied to community); must consider “all the circumstances” (What kind of evidence was obtained? What Charter right infringed? Was violation serious or only technical? Was it deliberate, willful or flagrant, or inadvertent or committed in good faith? Did it occur in circumstances of urgency or necessity? Were other investigatory techniques available? Would evidence have been obtained in any event? Is offence serious? Is evidence essential to substantiate the charge?

TJ has great deal of discretion to exclude: Appeal only when their conclusion is “unreasonable.”

o Consolidates into Three Factors: (1) Trial fairness: Assessing whether “conscriptive” versus real evidence; (2) Seriousness of infringement; (3) Balance effects of excluding versus admitting evidence [on administration of justice.

o Trial Fairness is actually about concern the accused would be called as a witness against himself – fundamental values of system is privilege against self-incrimination.

o Distinguish Conscriptive (always raises trial fairness issue) versus Real (rarely rendering trial unfair). Conscriptive: …generally…excluded…

o Perrin: There is real conscriptive evidence – these categories not helpful.o Applying Facts : Evidence of balloon is real evidence (nothing suggesting trial fairness will be

affected); “flagrant and serious violation” – without grounds – very physical and violent; if we exclude it, serious drug crime would not be effectively prosecuted – how would public think of that – greater disrepute if evidence admitted because of policy conduct of throat search.

R v. Stillman (1997 SCC) : New summary “unfair trial box” test for determining admissibility of s.24(2) breached evidence.Accused is young offender – deceased found with semen and bite mark – witnesses put accused at time and place – police need to link him to crime – his two lawyers write letter saying there is no consent for bodily samples and cannot be interviewed in their absence – lawyers leave – police take samples and interview him – he blows nose in Kleenex and they take it for evidence. o Four pieces of evidence: Hair; Kleenex; saliva samples; dental samples. o Issue of Abandonment: If you abandon privacy interests, it is considered way to

waive privacy interests. But if you are in police custody, you have no choice. Also, letter says there is no consent.

o Held : Hair, dental, saliva should be excluded; tissue with DNA is admissible.o Evidence is conscriptive when an accused, in violation of his Charter rights , is

compelled to incriminate himself at the behest of the state by means of a statement, the use of the body, or the production of body samples.

o Test for admissibility of evidence under s.24(2) : [p.730]. See chart on Kerr handout.1. Conscriptive or Non-Conscriptive based on manner in which evidence was

obtained? If non-conscriptive, admission will generally not render trial unfair.o If accused not compelled to participate in creation or discovery of

evidence (evidence existed independently of Charter breach). o Court to proceed to consider seriousness of breach and effect of

exclusion on repute of administration of justice.

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2. If conscriptive, and Crown fails to demonstrate on BOP that evidence would not have been discovered by alternative non-con means, admission trial unfair.

o Court generally will exclude evidence without considering seriousness of breach or effect of exclusion on repute of admin/justice.

3. If conscriptive and Crown demonstrates BOP it would have been discovered by alterative non-con means, its admission will generally not render trial unfair. However, seriousness of breach and effect of exclusion of admin/justice will have to be considered.

o Derivative Evidence : Involves Charter violation whereby accused is conscripted against himself which then leads to discovery of an item of real evidence. Gun classified as conscriptive when flowed from “poisoned tree” – anything that comes from it is tainted (Burlingham).

o Application to Facts : Hair, Dental, Saliva are conscriptive and excluded – not otherwise discoverable. NO discussion of trial fairness because failure to show discoverable by alternate means. Tissue is admissible (no force), they could have got warrant for garbage can after sealing it.

R v. Lyons (1987 SCC) : A fair trial must not be confused with the most advantageous trial possible from the accused’s point of view.

R v. Mann (2004 SCC): Intermediate step towards Grant.[Begins to show cracks in wall in C-S Framework] – Frisking person – incidentally passed over bunny pouch and discovered marijuana in his pocket – he had not been warned of right to attorney – purpose of search was to see whether he was armed.Should marijuana be admitted?o Case also deals with search incident to investigate and detention: scope of search only

supposed to be for officer safety. But here, search went beyond scope.o (1) Court said it is non-conscriptive evidence. [Col-Stil framework more clear at this stage].o (2) Seriousness: Frisk is minimally intrusive, but pocket check must be weighed against

minimal grounds for justification. Good faith is but one factor in the analysis and must be considered alongside other factors.

o (3) Consequences of exclusion v. Admission: Exclusive would substantially diminish if not eliminate the Crown’s case. Public would find this result problematic.

o Para 57: “Non-con evidence essential to Crown’s case need not necessarily be admitted”. o Excluded largely because of lack of reasonable grounds for search and the fundamental

nature of the rights involved.o Held : Evidence should be excluded.o Exam Questions, p.742.

EXCLUDING EVIDENCE UNDER THE CHARTER – “Revised Approach”

o Collins-Stillman rule-based; Grant test is statement of principles and balance.

R v. Grant (2009 SCC) : New principles-based societal approach to admissibility. In all cases, it is the task of the TJ to weigh the various indications. No overarching rule governs how the balance is to be struck.Accused walking down street – two plain clothed officers drove by and thought he looked suspicious as he stared and was fidgeting – school nearby and there had been bad things going on – uniformed officer approached accused and subsequently other two officers approached accused – officers asked if he had anything on him – accused said he had firearm and marijuana – officers took these two items – officers had no legal grounds or reasonable suspicion to detain accused – he was “psychologically” detained.

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o TJ said no Charter violations; no detention; waived his rights by co-operating.o OCA: Was detention that crystallized during conversation before he admitted to possession;

arbitrary detention with no grounds. Admitted because of application of Col-Still framework.o Firearm classified as “derivative evidence”.o SCC Held : Evidence admitted.o Stillman created an “all but automatic exclusionary rule for non-discoverable

conscriptive evidence, broadening the category of conscriptive evidence and increasing its importance to the ultimate decision on admissibility”.

o “It is difficult to reconcile trial fairness as a multifaceted and contextual concept with a near-automatic presumption that admission of a broad class of evidence will render a trial unfair, regardless of the circumstances in which it was obtained…trial fairness is better conceived as an overarching systemic goal than as a distinct stage of the s.24(2) analysis”.

REVISED APPROACH – Section 24(2):o Concerned about maintaining good repute of administration of justice…

repute of justice system viewed in long term…forward looking…purpose is societal…not about punishing police or providing compensation to accused.

o Ultimate Test : The court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system.

1. Seriousness of Charter -infringing state conduct : FACT SPECIFICo Focus is not merely on the breach – broad look at state’s conduct.o Court is asking: Can we afford to be associated with their conduct? Are the

courts condoning deviation from rule of law?o Spectrum: Severe-Deliberate conduct -- -- -- Inadvertent-Minor.

i. Ask: Was breach inadvertent or minor or willful or reckless disregard for Charter rights?

ii. If acted in “good faith” – reduced need to disassociate itself.iii. Is there evidence of pattern of abuse? (racial profiling, discrim)…

o “…must consider seriousness of violation viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter”.

o “…extenuating circumstances, (eg) need to prevent disappearance of evidence, may [thin] seriousness of police conduct” NECESSITY/EMERGENCY? eg: Likelihood that co-conspirators knew of arrest raised spectre that any contraband at his house would be removed before police could arrive (Silveira). Initial delay in providing right to counsel caused by desire of police to get potentially volatile situation under control (Strachan). Police entered house without warrant after receiving report the accused by machine gun OK due to police safety (Golub).

2. Impact of breach on Charter -protected interests of accused :o Does admission send message that individual rights count for little?o “…evaluation of extent to which breach actually undermined the interests protected

by the right infringed…the more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen…”

o Look at interests behind the right (para.77): “an unreasonable search contrary to s.8 of the Charter may impact on the protected interests of privacy, and more broadly, human dignity.”

o Example : “How big was human dignity interest impacted?”

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o Bodily Evidence in violation of s.8: requires court to examine degree to which search and seizure intruded upon privacy, bodily integrity, and human dignity of the accused.”

o Why focus on “interests”? We are concerned how society would view it.o Section 7 silence to protect from self-incrimination.o Perrin: This part of case not very well fleshed out.

3. Society’s interest in adjudication of case on merits : [radical change to law]o Now TJ will be asked to assess liability!o Whether truth-seeking function of process would be better served by

admission or exclusion: “…society’s collective interest in ensuring those who transgress the law are brought to trial and dealt with according to the law…”

o (a) Focal Point: How reliable is unconstitutionally-obtained evidence? o Admission of unreliable evidence does not help anyone – but exclusion of

relevant, reliable evidence undermines public confidence – even if unconstitutionally obtained balance of interests.

i. A breach that compels suspect to talk undermines reliability. ii. Evidence obtained from an accused’s body is generally reliable.

o (b) Importance of evidence to Crown’s case is important factor. Link reliability with importance to Crown’s case!

i. Tied closely to reliability concerns (para.83): If questionably reliable, evidence is more likely to bring admin of justice to disrepute when forming the entirety of Crown’s case.

ii. But if we exclude highly reliable evidence it may impact more negatively on repute of admin of justice where the remedy effectively guts the prosecution.

o (c) Seriousness of offense: (para.84) – it is a wash and doesn’t help [this court] decide this case. While seriousness is valid consideration it has potential to cut both ways.

i. “Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system…yet…it is long term repute of the system that is s.24(2)’s focus” – not immediate impact on how people view system!

ii. Exam: Should seriousness play a role in fact pattern? [Deschamp says it is vital consideration and does NOT cut both ways. It cannot be legitimate interest of the accused to exclude evidence simply because they are charged with a more serious offense. The more serious, the more the public will be outraged that evidence was not included to get at the truth.]

iii. Irwin (p.45): Section 24(2)’s goals “operate independently of the type of crime for which the individual stands accused”.

o “…having made these inquiries, which encapsulates all of the circumstances of the case…” – EXHAUSTIVE!

Application to Different Kinds of Evidence: o (a) Statements by Accused: Once you go through test, they will be presumptively,

but not automatically excluded. Where statement is made to recognized person in authority inadmissible unless Crown established BRD that it was made voluntarily.

o (b) Bodily Evidence: Huge range for difference with respect to impact of breach – that is why you shouldn’t have automatic Stillman exclusionary rule. Stillman treated hair sample the same as body cavity search because they are both conscriptive. Breathalyzers are example of very low intrusive method of obtaining bodily samples.

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Concriptive test produced anomalies: minor breaches (breathalyzers) often automatically excluded, while major (seizure of illegal drugs) have been admitted when non-conscriptive. Para 110: Society’s interest generally favors admission [they are reliable].

o (c) Non-Bodily: Stage 1 is fact specific: Depends on extent to which the conduct can be characterized as deliberate or egregious. Turns primarily on manner of discovery and the degree to which manner of discovery undermines Charter-protected privacy interests of accused. Regarding #2 stage, eg: privacy, a dwelling house attracts a higher expectation of privacy than a place of business or an automobile; cavity search demeaning to human dignity.

i. Searches of home more serious than car, office, or locker.ii. Many features can change intrusiveness of strip search: where it took

place, nature of physical contact, relative sex of subject, those who are present (Golden).

o (d) Derivative: Consider 3 steps of inquiry and where evidence came from. Now, there is diminished role for derivative evidence. This evidence usually “real” or physical – less concern of reliability public interest in having trial adjudicated on merits usually favor admission of derivative evidence. Ask: Did breach have no real impact on Charter-protected interest of accused to make informed choice about whether to speak? Would statement have been made notwithstanding Charter right? Would it have been discovered anyway?

Application to Facts:o Breach was significant, but not serious; value of evidence was considerable and

reliable; significant impact of breach on rights strongly favored exclusion of gun, while…..favored admission.

Deschamps J: “Regarding the factors to consider in deciding whether to admit or exclude evidence obtained in violation of a Charter right, the new test proposed by the majority is inconsistent with the purpose of s.24(2) of the Charter, which is to maintain public confidence in the administration of justice. The statement that s.24(2) has a long-term societal purpose is of great significance for the identification of the factors to consider in the analysis. The proposed test, by focusing the analysis on the conduct of the police in the first branch and on the interest of the accused in the second, and by attaching less importance to the seriousness of the offence in the third, does not give sufficient consideration to the long-term societal interest that must guide the judge in reaching a decision”.o “One of the problems with the reliance on trial fairness [in Collins] was that it is a concept with several

possible meanings and can accordingly lead to confusion”.o “I find the majority’s emphasis on state conduct puzzling in view of the purpose of s.24(2)”.

R v. Harrison (2009 SCC) : Balancing exercise is qualitative and not capable of mathematical precision. Car driving with no plate on front – pulled over by cops – driving suspension – detention continued and found drugs – Alberta did not require plate on front after all! o The fact that police officer attempted to mislead the court about his Charter

compliance was “properly a factor to consider as part of the seriousness inquiry”.o “…evidence of systemic or institutional abuse will aggravate the seriousness of

the breach and weigh in favor of exclusion…”o Court discounted seriousness of drug charges involving 35 kg of cocaine, an

appalling amount, because this factor “must not take on disproportionate significance”.

REVISIONS TO IRWIN CHAPTER 9

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o New 3 step analysis changes : (1) Treats statements and body samples differently for admission purposes; (2) Reduces importance of discoverability; (3) Renders seriousness of offense almost immaterial; (4) Discontinues past practice of asking pro-admissibility balancing question of whether exclusion will bring admin of justice into disrepute, and replaces it with a consideration of impact of exclusion on public interest in the truth-seeking function of trials.

o “This now obsolete two-box approach had been built on a ‘fair trial’ theory that borrowed heavily from self-incrimination concepts…since ‘fair trial’ demands the Crown prove its case without calling accused as witness, a trial would become unfair if Crown could indirectly co-opt accused as witness by presenting out of court statements obtained from accused in violation of the Charter”.

o “It was only when the Crown could prove discoverability – that evidence would have been discovered even without the Charter breach – that the admission of these kinds of evidence would not render a trial unfair”.

o “While Grant rejected fair trial theory…this did not make the kinds of evidence being tendered immaterial. The kind of evidence secured is key consideration in assessing the degree of intrusion”.

o In discussing how degree of intrusion is to be measured, Grant breaks things down according to kind of evidence secured.

o “Greatest change” by Grant was its approach to bodily evidence – equation erroneous because bodily samples, unlike statements are not communicative, and therefore are not “self-incriminatory”. Statements create new information, but bodily samples exist (p.37).

o “It has to be wondered why the seriousness of the offense was recognized as a valid consideration if it will in fact have no material bearing on the outcome”.

EVIDENCE WITHOUT PROOF

FORMAL ADMISSIONS

o Purpose is to promote efficiency without sacrificing fairness.o Party admits facts without any form of compulsion.o If civil case – admissions usually made through pleadings.

(a) Criminal: Guilty pleas are special form of admission: Formal admissions dispense need of proving facts they admit.

R v. Gardiner (1982 SCC) : In Canada, there is guilty plea that is restricted in some important ways.TJ will ascertain whether there is defense available to the accused. If proof of further facts is required for other purposes, those facts must be agreed to or proved. If Crown wishes to rely on further facts for purpose of sentencing parties may agree as to facts of offense if no agreement, Crown may attempt to prove facts it alleges BRD in sentencing hearing.

(b) Civil Proceedings:o Formal admissions can be made in course of pleadings or in failure to deliver

pleadings;o Agreed statements of facts.

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o Counsel of accused can make statements (admissions) at trial.o Exchange of letters before trial!*!o Failure to reply or respond to other party’s o Purpose is to dispense with proof – deemed conclusive.o Court bound by admission regarding evidence that subsequently comes up at trial.

Tunner v. Novak (1993 BCLR) : Counsel and client are bound by formal admissions made by previous counsel in the same proceeding.

JUDICIAL NOTICE

o Reliance of TJ or JA where there is no evidence on proceedings – nor formal admission of parties.

o Judge decides whether or not they can recognize or find facts without evidence.o Binnie: JN is very common and often does not appear in decisions.o Often judge will say “I am going to take JN of… Do you have issue with that?”o Issue becomes more controversial with respect to the question of “fairness”.o Davis proposes three part test: (a) Whether fact in issue is close to center of controversy

between parties, or merely background or near periphery of dispute; (b) Whether facts are adjudicative or legislative; (c) Degree of certainty or doubt with respect to the particular fact.

R v. Find (2001 SCR) : Threshold for JN is strict. Facts must be either: (a) So notorious or generally accepted as not to be the subject of debate among reasonable persons; or (b) Capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy.

Danson v. Ontario (1990 SCC) : There is a difference between legislative and adjudicative facts and their respective standards of admissibility. Charter decisions must not be made in a factual vacuum. Charter applications without adjudicative facts can only be made in rare or exceptional circumstances – where there is simple question of law, it is clear and uncontrovertible.Law passed that made solicitors liable in some circumstances – wanted to challenge constitutionality of law – question of standing as there were no facts – no affidavits or sworn statements – no witnesses – AG wanted to quash application because facts are disputable.o Distinction between Legislative and Adjudicative Facts:

o Adjudicative : Facts that concern the immediate parties – “who, what, when, motive, intent…” specific must be proven by admissible evidence.

o Legislative : Those that establish purpose and background of legislation, including its social, economic, and cultural context. These facts are more general in nature, and are subject to less stringent admissibility requirements more susceptible to judicial notice.

o “The concept of legislative fact does not provide an excuse to put before the court controversial evidence to the prejudice of the opposing party without providing a proper opportunity for its truth to be tested”.

o SCC Held : Factual vacuum can result in bad law, and there is something at issue in this case that requires facts – such as proof of the negative impact on lawyers.

o Perrin: Discrimination cases may satisfy exception.

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Andrews v. LSBC (1989 SCC) : Court employed JN in concluding that non-citizenship was analogous to grounds listed in s.15(1) and a basis for disadvantageous treatment.

Vriend v. Alberta (1998 SCC) : The discrimination homosexuals suffer is no notorious that judges can take JN of it without evidence.

Newfoundland Treasury v. NAPE (2004 SCC): SCC adopts test in Find. Purpose of JN is not only to dispense with unnecessary proof but to avoid a situation where a court, on the evidence, reaches a factual conclusion which contradicts readily accessible sources of indisputable accuracy and which would therefore bring into question the accuracy of the court’s fact-finding process.NFLD passed legislation that erased its obligation to pay $24-million to public sector employees because of extreme economic crisis – deficit in 1988 was $5-million but public accounts was ($120-million) – Could economic crisis be relied upon?o Held : It was acceptable to rely on judicial notice.o Serious limits on getting past cabinet privilege.

STATUTORY PROVISIONS

o CEA, ss.17,18; BCEA, s.24: JN shall be taken of all acts of Parliament, public or private, without being pleaded.

[In-Custody Informers: o Concern: Wrongful convictions based on their evidence.

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o “They rush to testify like vultures on rotting flesh.”o They are systematically unreliable: they have nothing to benefit because they are already in

jail. o Why would they engage in informing? Mental impairment, easy to be persuaded by police;

ignorance of law; seeking attention.o Recommendations: Registry of informers; get rid of in-custody informants completely; justify

use of certain informer to committee.o Should it be presumptively inadmissible?

o Vetrovec warnings tell jury not to believe unless there is corroborating evidence.]

Tunnel Vision:o “The single minded and overly narrow focus on an investigation or prosecutorial theory so as to unreasonably color

the evaluation of information received and one’s conduct in response to the information.” o Perrin: It is a survival tactic – a basic element of human nature.

[Eyewitness Identification:Deals with witness who genuinely believes that what they are saying is true – yet they misidentify the accused. Page 52 – 8 bullet pointsWas suspect a complete stranger or known to witness?Was opportunity to see suspect substantial?Light conditions?Was subscription reduced to writing – reporting in time?General description – vague?Potential contamination of identification?Distinguishing feature given?Has eyewitness identification been confirmed in particular (corroboration)?]

[DNA Evidence & Forensic Evidence. How to deal with problems?1. Oversight of experts2. Post-conviction DNA testing3. Increased indepdence.4. Corroborating evidence5. More info/training for lawyers enhance adversarial process6. “Disclosure” to defense.

[Jensen Opening Statement Exercise:

Fact in issue: Did Mark cause the death of Julie?First Degree: AR; MR; pre-meditated; identity of accused.Burden on Crown, BRD.

o Testimony of co-worker: “thinking of poisoning” – close to direct, but not totally direct. It is relevant: Makes it more likely he killed her because poison was found in her body; inference that if he thought if it made it more likely he did.

o Julie’s Letter: Allegedly given by deceased to neighbor – gets to police. It is a document – being admitted for proof of what is written on it – read in court.

o Could ask to have letter admitted on limitation instruction, only to prove MR, and not the identity of the accused. Even later on in trial, it cannot be used for anything but proving MR.

o Jailhouse Informant: Witness in custody was going to testify to fact that he asphyxiated wife direct evidence. o It is hearsay, but falls under “declarations against interest” exception.o Does PE>PV?

o Internet Evidence: If the piece of information doesn’t make it any more likely, only “as likely” that it was either a suicide or a murder – only can be technically (limited) used by murder – “if jury finds it was accused”, may consider internet search to determine pre-meditation.

o Inference of depression: That it is more likely she committed suicide. ]

Thierens Fact Pattern Practice

Zeetsma’s Testimony: What is Crown trying to prove? FIRST question to ask is who is introducing evidence!!!

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o Live issue at trial is credibility of complainant versus accused. Real issue is whether he hit his wife.

o Trier of fact will either have believe him or her. Wound up in this is his issue of drug use goes to credibility of his testimony. It is the MOTIVE behind the assault.

o (1) Relevance (Watson). Fact that accused demanded drug money is motive (not element; circumstantial evidence) – gives reason to believe her and disbelieve him.

o Why is first piece of evidence relevant? Passage of time is an issue! Whether he is addicted or not on

June 2006 – but there is no minimum PV. It is relevant but of lower PV. Identify how low it is (many months before event in question).

o If it is relevant, it is admissible unless it is excluded: o ( ) Character: Did accused put character at issue? Crown is leading evidence to

rebut statement that he was addicted to drugs. He either put his character at issue by claiming to be clean, or he made statement about specific good act “kicked habit” OR he has made assertion of fact that the Crown is entitled to rebut.

o Character potentially is being put at issue!! Concern is accused is drug addict who are types of people that assault others to get drugs.

o This has raised potential PEo ( ) Exclusion: Lay opinion versus Expert: He “believed” he had….. CLEARLY

opinion. Must cite “GRAAT” – whether it is within common knowledge and experience. Graat can be extinguished (more common; alcholol easier to identify; person actually observed person – rather than just webposting inference). Is this a situation of proper category of lay opinion? NO. It is possibility to exclude.

o Expert Opinion Exception: Is Zeetsma an expert? On yes side, he has BA and five years experience at time of incident, worked with 30 people at one time; on no side, he does not have professional certification, BA is not enough; points to NO, but argue both sides.

o Mere fact he interacted with accused does NOT make him an expert. o ( ) Case-by-case- Privilege: o Perrin: If you solidly conclude evidence is excluded by lay opinion, leave it at that

and move on.o Note : If you find PV>PE (evidence is admissible), you still have to instruct jury! If

judge-only trial in reasoning, has to say what he is using evidence for, and what he could not use it for.

o Potential PE: Because is drug addict, more likely to hit his wife; drug addict type of person to hit wife (disposition). Judge should say evidence played no part in this!

Zeetsmas’s copy of posting to support group: [Both 2 and 3 talking about same posting!]o Four days before assault took place. Only thing accused posted since June 2006.o Document must be authenticated through witness!o Is statement relevant “I got sucked into drugs”?

o YES! It is very probative (see above) and only is four days before! Goes to motive and credibility.

o Exclusionary Rules: (only two are possible here!)o Case-by-case Privilege :

Test : Wigmore (Greunke). (a) Originate in confidence? (+): username and password…you wouldn’t know who it was; high

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expectation given; Zeetsma promised confidentiality… explicitly tells him not to worry it is password protected; seemed to create a trust relationship, people were vulnerable; have to be screened to be admitted into group!; purpose of group to support drug addicts…recognized collective method of counseling…need confidentiality for it to work; (-): Not simply therapist and patient…it is support group with 30 other people on site; it is on internet…never totally safe; people changed…subsequently posts and said “new faces”…doesn’t know who some viewers are; nothing in writing saying he wants posts deleted; Perrin Concludes YES – satisfies. (b) Must be essential to full maintenance of relationship? (c) Sedulously fostered relationship? (+) it is important to treat addicts and confidentiality is necessary; routine and accepted practice; Perrin: talk about links between these issues and root causes with criminal acts…this is voluntary treatment! (d) Injury to relationship in general by disclosure greater than benefit gained by disposition of evidence? KEY is whether these communications are important/damaging enough to relationship that it overcomes need to …. we may get incorrect disposition of evidence. Injury of disclosure: (-) Disclosure is of ordinary moral failing NOT that he hit his wife!; Would be different if it was “wife hitters anonymous”; harm is done to accused, not other 29 people; (+) At drug forum, you are admitting criminal behavior!

Perrin: Is relationship linked to administration of justice? They don’t have to be tied, but Greunke says it can be a weighty factor.

[Perrin: What if he was charged with drug possession of herion? If they agree with part of attempt to make charges go away to go into treatment. They agreed to say they broke down and bought drugs stronger argument for protection now because it is tied to their rehabilitation disclosure tied more to justice system.]

Burden on establishing Greunke: Party asserting privilege defense! It will be in unless it is excluded! If you find Wigmore is not met, it would not be excluded!

o Hearsay : Is this hearsay statement “I got sucked back into drugs”. YES. If it is true, he is lying about what he said in court and also had motive (Khelowon test).

Does it fall within traditional exception? May be declaration against interest or admission XXX. (Just mention it may – attack for not being necessary or reliable).

Necessary: Is statement necessary? Not necessary to prove assault or his credibility. Issue of whether there is evidence of same quality before the court. He has taken the stand! If he had refused to take stand, he would be unavailable. If unavailable, Khelewon says it should be given flexible definition necessary is not equal to availability.

o Prior Inconsistent Statements can be necessary if evidence of same quality is not available. Court is in difficult position of relative reliability of each

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statement. (Para 86): No real concern when you have witness. Reduces hearsay danger!

Reliable: How reliable was the RECORDING of the statement? Passwords shared? Make argument that it is relatively safe means of keeping data; it was made contemporaneously. Discuss whether Khelewon facts can be distinguished.

o KEY to analysis is assessing Khelowon test with respect to prior inconsistent statements.

What if witness and declarant are the same person? *** special treatment given ***

Burden: Hearsay statements are presumptively inadmissible. PERRIN: Statement more likely to be excluded.

PV/PE. Address.

Jenkin’s copy of posting to support group: o Document must be authenticated through witness!o Who’s section 8 rights are violated? If Zeetsmas, he is not before court, accused is!!!

Have not covered, but good to ask.o With respect to infringement, look at Grant, 3 part test: Consider all relevant factors

in assessing seriousness, o Seriousness: Severe and deliberate infringment: Knew they needed

warrant but didn’t get one;;; threatened; court MUST disassociate itself from breach.

o Privacy interests of accused and group members involved. Does court need to disassociate itself (lower end); is it

o Correct adjudication: Password protected; how important is evidence to Crown’s case? YES: without it, all they would have is he-said-she-said.

Para 83: Evidence important to case and reliable suggests it favors admissibility.

This is piece of documentary evidence, but is also statement of accused.

Important Societal interest.o How to decide outcome? BURDEN OF PROOF. Burden lies on person seeking to

apply s.24(2) accused! He must establish admin of justice would be brought into disrepute!

o Could you do best 2/3? Perhaps. o Could also argue (Harrison): Similar willful breach of Charter rights; infringment in H

a little higher (vehicle search in detention); socieity’s interest also high and highly reliable and all the Crown had. Even then, because infringment was high evidence was excluded. “Case where evidence excluded in worse state conduct……”

o If you got into need to dissuade police not to do this type of thing – policy reason – Perrin would have problem! SCC said that was NOT purpose of test…it was “happy coincidence”!!!

o If you say admissible, be sure to discuss limiting and how evidence can be applied!

EXAM INFO

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Open book – bring ANY written material – notes, case books, CEA, BCEA, hard copy of all cases (Singh, Khelewon, Grant).2.5 hours: shorter fact pattern than Lawrence Fact pattern (60%)…75 minutes. Issue identification is key! Note correct leading cases on all exclusionary rules. Application and rigorous factual analysis is KEY! Reasoning by analogy is also effective. Be sure to say why a piece of evidence is excluded! Use bullet points if you run out of time. Development of Law (20%): Looking at how law changed and WHY. Example: Would Khan be decided differently today? You have to know facts of Khan, law of Khan, outcome…then you need to know new law and apply to FACTS of that decision. Maybe you will find same outcome but resulting from new reasoning. If asking persuasion of opinon: will it make it more difficult for juries…make things more efficient…result in unfairness/inconsistency/odd results? Ex: Does Oickle have negative impact on rights of accused persons and why? Bring in report on false confessions.

Think critically of development of law. Look at summary, and be sure you are clear on progression.Policy (20%): Answer these at the end of your exam! Be well-organized with this answer. Critically consider examples of trend! If you agree with statement, give examples of where discretion is extensive (Grant) – discretion has made its way into character evidence and s.24(2) breaches – while well intended potential for inconsistent judges. Balanced answer gives you the best/safest approach!

Other examples: Put in position of DOJ lawyer – minister asked if should codify sections in CC on hearsay. Need legislative intervention???

Generally these things will be quite broad.

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