EVIDENCE INTRODUCTION -SOURCES OF LAW: 1. Common Law 2. Statute: Canada Evidence Act & Criminal Code 3. Charter: ss.

7-13 -Can defeat statute & is directly applicable -NOTE: Recent move away from rule-based approach to principled approach -RECEIVABILITY: Entrance of evidence in court CRITERIA (Palma): 1. Relevance -If it makes proof more or less likely -Not legal concept, but one of logic & human experience 2. Materiality -If relevant to issue before court -Materiality is function of governing substantive & procedural law 3. Admissibility -Must satisfy rules & policies of law of evidence -RULE: All relevant & material evidence is admissible until proven otherwise -PRESUMPTIVE ADMISSIBILITY: -TWO MAJOR ELEMENTS: 1. Fair Trial: ASK: Does evidence assist in search for truth & justice? 2. Probative v Prejudicial assessment -PRELIM TRIAL: Primary point of evidentiary assessment, but evidence may arise at any point in trial -PROBATIVE/PRJUDICIAL BALANCE: -PROBATIVE VALUE: -RULE: Not received unless logically probative of matter to be proven -If probative, then is received unless exclusion is justified on some other ground (Seaboyer) -PROBATIVE: Evidence both logically relevant & material (Arp) -Assessed on a scale depending on overall strength & reliability as well as nexus of evidence to issue in the case -PREJUDICIAL EFFECT: -EXTRINSIC MISCONDUCT EVIDENCE: Evidence making D look bad (B(FF)) -Increases moral prejudice (particularly relevant in cases of character) -Lowers standard of proof -Adds to length & complexity of hearings -EXCEPTION: Door to evidence can be opened by D, but jury must be properly instructed (B(FF)) -TEST:

1. Prejudice the TOF against D for reasons unrelated to logic, common sense & law -Affects TOFs reasoning process, emotional level, etc 1. Prejudicial effect on administration of justice -Harm public trust in rule of law, set negative precedents -BALANCE: -TEST: Evidence OK if probative outweighs prejudicial effect (Seaboyer) -CRIMINAL CONTEXT: Different standard applied to evidence, depending on whether Crown or Defence (Seaboyer) -CROWN: Evidence admissible if probative EXCEEDS prejudicial -DEFENCE: Evidence admissible if prejudicial effect does not SUBSTANTIALLY outweigh probative value -CIVIL CONTEXT: Lower standard as no loss of liberty (Johnson v Bugera) -LET IT ALL IN DEBATE: -OPEN: Some judges in favour of admitting whole picture to TOF -Question is then of weighting of reliability -Argued that proper instructions to jury can guide weighting process -Rules which put blinders over eyes of TOF should be avoided except as last resort (Corbett) -CLOSED: Judges have gatekeeper role (Penney) -Unreliable or highly prejudicial evidence has caused wrongful convictions -Increases length of trials -PURPOSE OF ADMITTED EVIDENCE: -ASK: Can evidence be heard for a specific purpose or not? -Can be probative for one material issue but inadmissible for another -If evidence admissible for only specific purpose, jury must be instructed -NOTE: Failure to do so frequent source of reversible error -GENERAL PRINCIPLES OF LAW OF EVIDENCE -QUALIFIED SEARCH FOR TRUTH: Many different policies in conflict -Societal goals: Noel -Joint trial may be necessary to ensure all evidence put to jury in cases of vicious co-accused: Grewall -Long-term repute of administration of justice may justify exclusion of evidence under Charter: Grant -NO DISTORTED PICTURE PRINCIPLE: -Prevent TOF from deciding on distorted picture of evidence -EXAMPLES: -Editing videotape potentially misleading & eliminated probative value (Penney) -Hesitating to admit extrinsic misconduct evidence is to avoid distorted picture (Cuadra)

-Opened Ds criminal background as to do otherwise would present him as saint & witnesses as hardened criminals (Corbett) -Partially heard inculpatory statements out of context are inadmissable (Hunter) -Rule on leading questions helps avoid distorted picture (Maves v Grand Trunk) -OPENING THE DOOR PRINCIPLE -Party can open the door to otherwise inadmissible evidence by conduct of own case -EXAMPLES: -Crown may not raise question of mental disorder UNLESS D puts sanity to issue: (Swain) -Ds defence, an attack on credibility of C, put otherwise inadmissible extrinsic misconduct evidence into play (B(FF)) -D opened door to bad character hearsay by questioning diligence of police investigation (Dhillon) -By suggesting C had fabricated testimony, D opened door to Cs prior statements (Stirling) -Ds theory others had motive to kill V increased probative value of contested circumstantial evidence (Griffin) -By choosing to take stand on retrial, D opens door to Ps use of prior court testimony (Henry) -Evidence of silence presumptively inadmissible as rarely probative of guilt (Turcotte) -FORMAL (OR JUDICIAL) ADMISSIONS: D can eliminate live issues, thus reducing body of possible admissible evidence -IMPROPER REASONING BY JURY PRINCIPLE: -Sometimes evidence must be limited/excluded to avoid improper reasoning -EXAMPLES: -Horrifying & inflaming evidence must be pared down (Kinkead) -Risks of similar fact evidence include moral prejudice & reasoning prejudice on part of jury (Handy) -ADMISSIBILITY IS NOT ALL OR NOTHING: -Possible to admit only part of divisible evidence -Evidence can be accompanied by judges instructions on proper application -EXAMPLES: -Extrinsic misconduct evidence of first incident admitted as probative of credibility, second incident excluded (Cuadra) -Some evidence allowed, some excluded, some allowed in modified form (Kinkead) -EXPERT EVIDENCE: Judge can admit part or modify nature/scope or language used to frame opinion (Abbey) -Hearsay deleted from phone transcript but rest allowed (Grewall)

-TRIER OF FACT: -Effort to standardize instructions to jury regarding differences & issues of evidence -CANADIAN JUDICIAL COUNCIL: Outlined focused instructions, but sticks to definitions -ISSUE: Does not highlight common issues of evidence -Can set aside evidence lacking air of reality -ISSUE: Miller: Dismissal of singularly unconvincing evidence without considering effect within whole -NOW: Jury considers evidence as whole & is instructed on reasonable doubt -TYPES OF EVIDENCE -DIRECT EVIDENCE: (Dhillon) -Goes directly to proof of actual fact in issue -EYE WITNESSES: Sources of error: 1. Witness may be lying 2. Witness may be mistaken -Very prevalent, particularly for ID, exacerbated by length of trials & has little value -VIDEOTAPES & PHOTOS: Can be direct evidence (Nikolovski) -CIRCUMSTANTIAL EVIDENCE: (Dhillon) -Indirect evidence of circumstances from which inference may be drawn which may lead to proof of fact in issue -SOURCES OF ERROR: 1. Witness may be lying 2. Witness may be mistaken 3. TOF may draw wrong inference -DIRECT v CIRCUMSTANTIAL: -Direct witness evidence may contradict each other but circumstances are often not in dispute (Dhillon) -Griffin: Case involving numerous instances of direct & circumstantial evidence -USE OF EVIDENCE: -No obligation on D to prove facts, need only raise reasonable doubt by showing reasonable possibility Ps case is wrong (Robert) -Guilt must be based on proven facts BUT not guilty may arise simply if TOF does not believe anyone (Baltrusaitis) -Court rejected notion jury should consider POC separately from other evidence to see if it reflected consciousness of guilt BRD (White v The Queen) -REAL EVIDENCE v DEMONSTRATIVE EVIDENCE: Criteria 1. Is it authenticated? 2. Is it fundamentally misleading?

-Look to fairness, accuracy & absence of intention to mislead 3. What is the purpose of this evidence? To explain or enflame? 4. Look to probative/prejudicial balance -TESTIMONIAL: Stands on its own -REAL/PHYSICAL: -Gun taken from D (Grant) or documents in possession of D (National Post) -DEMONSTRATIVE: -Representation of an object -VIDEOTAPES: -Unaltered videos of crime generally admissible as trustworthy, unemotional, unbiased & accurate witness with complete & instant recall of events (Nikolovski) -Unauthenticated video with potential to mislead & lacking probative value not admissible (Penney) -Video of crime admitted subject to being edited shorter (Kinkead) -PHOTOGRAPHS: -Photos relevant & did not present distorted picture of crime, admissibility determined on case-by-case probative/prejudicial balancing (Kinkead) -DOCUMENTS: -Not generally physical as are submitted for contents -Documents can be considered physical, not documentary, as RCMP wanted to dust for forensics (National Post) -Transcript of interview between D & C inadmissible as not authenticated (Lowe v Jenkinson) -Business records must meet business record exception & be authenticated (Wilcox) -JUDICIAL NOTICE: -If party wishes to dispense evidence as generally accepted fact -i.e. Need not prove holocaust in court every time -Helps avoid lengthy delays & onerous levels of evidence -TEST: Olson v Olson: Court may take judicial notice of facts that are either SO NOTORIOUS or SO GENERALLY ACCEPTED as to not be subject of debate among reasonable people -Very high standard as befitting adversarial system -Cannot take judicial notice of video format changes as expert necessary to displace presumption that effect renders video inadmissible (Penney) -OTHER ISSUES: -ADVERSARIAL SYSTEM OF TRIAL -Given that POFJ demands adversarial & accusatorial system of criminal justice founded on respect for autonomy & dignity of human beings, is clear that POFJ requires D have right to control own defence (LAMER in Swain)

-D has right to control order of his testimony, if at all, & testimony cannot be prejudged (Smuk) -C not obliged to call witness unhelpful to Ps case, entitled to trial strategy & to modify it as trial unfolds as long as does not cause unfairness to D (Jolivet) -DISCOVERY IN CRIMINAL CASES: -C must disclose ALL relevant evidence in possession whether inculpatory or exculpatory (Stinchcombe): TEST: 1. Disclosure must be broad & timely 2. Irrelevant info not disclosed 3. Privileged material cannot be disclosed 4. Crown has discretion to delay disclosure of certain evidence -Ex. Witness safety -Must provide list of what is not being disclosed -Counsel can argue for disclosure to Judge -REMEDIES: -Failure to uphold Stinchcombe standards is not, by itself, sufficient to overturn guilty verdict or plea, D must show there was reasonable possibility that failure to disclose affected outcome or overall fairness of trial process, in particular: (Tailleger; Duguay) 1. Different outcome analysis considers the direct effect of the evidence on jury 2. Fairness of trail assess whether new evidence might have opened up new avenues of investigation for defence -Trial may be adjourned on fault of Crown, if adjourned too long, may have case completely chucked under s.11(b) CRF -Non-disclosure in midst of trial may mean mistrial -NOTE: Judge will look to the diligence of the Defence to ensure they have not in effect waived right to disclosure through negligence or laziness -DISCLOSURE IN CIVIL CASES: -Dual duty of disclosure -COMMON CAUSES OF WRONGFUL CONVICTIONS: -General propensity reasoning -Unreliable eyewitness ID -Unconfirmed testimony of manifestly unreliable witnesses (i.e. Vetrovec Witness) -NOTE: Discussed later -Experts going beyond limits of expertise (mentioned in Abbey) -Unreliable confessions (Oickle; Grant; Singh) EXTRINSIC MISCONDUCT EVIDENCE -WHAT: EME is evidence that D or witness was involved in unsavoury activity unrelated to current charges

-Revelations of Ds prior behaviour would indicate bad character & propensity for behaviour as that which is accused -BAD CHARACTER OF THE ACCUSED -Where evidence sought to be adduced by P concerns a morally repugnant act committed by D, potential prejudice is great & probative values must be high indeed to permit its reception (MCLACHLIN in B(FF)) -GENERAL ADMISSIBILITY: -RULE: EME tending to show bad character of D is presumptively inadmissible -TEST: EME admissible when: (IACOBUCCI in B(FF)) 1. Relevant to some other issue beyond disposition or character of D, AND: 2. Probative value outweighs prejudicial effect (Dhillon) -NOTE: The No Distorted Picture Principle operates as justification for above test -Cuadra: D thus seeks to have best of both worlds; he impeaches the witness with prior inconsistent statement & then seeks to restrain states inquiry into reasons why witness made prior inconsistent statements -D himself can then open the door to EME & strengthen probative value of evidence which reflects poorly on own character in relation to other issue -SIMILAR FACT EVIDENCE: Subtype of EME, promotes propensity reasoning -SFE is evidence tending to prove D previously did act with similar facts to crime currently charged -Prejudicial effect often vastly outweighs probative value and thus SFE is normally inadmissible unless relevant to some other issue than general bad character (Arp) 1. GENERAL PROPENSITY: NEVER ADMITTED -Meant to show D has a general disposition for theft, violence etc. -Historically major cause of wrongful convictions & is based solely on bad characters of D -Aspect of moral prejudice (Handy) 2. SPECIFIC PROPENSITY -In order to be admissible, would be necessary to conclude that similarities were such that absent collaboration, would be affront to common sense to suggest that similarities were due to coincidence (Handy) -Must show the improbability of coincidence -Must show specific propensity to do specific act in specific circumstances, a number of facts that when grouped together, are highly unique (Handy) and that cause probative to outweigh prejudice

-CAUTION: -While identification of issue defines precise purpose for which evidence is proffered, does not (& cannot) change inherent nature of propensity evidence, which must be recognized for what it is. By affirming its true characters, courts keep front & centre its dangerous potential (BINNIE in Handy) -JURY INSTRUCTIONS: -If C can get SPE admitted, jurors will be instructed that they may draw inference -Admission almost allows judge to single-handedly decide case (BINNIE in Handy) -INDEPENDENCE: -Probative value of SPE driven by improbability of coincidence, but requires independence between both sources of SPE -Handy: D was able to raise air of reality to theory of collusion between complainant & Ds ex-wife. Cs failure to rebut on BOP constituted independent ground for excluding SPE -TEST FOR ADMISSIBILITY: Hardy -Independent & probative must outweigh prejudicial -ISSUE: SPE must be to establish narrow element, mere credibility is too broad 1. Factors connecting similar facts to events of charge: -Whether similar facts capable of supporting inferences to be drawn, AND: -Strength of proof of similar facts themselves -CONSIDER: -Proximity of time -Physical conduct: Similarity/differences -Number of occurrences -Circumstances surrounding incident -Distinctive features -Intervening events -NOTE: SPE must be reasonably capable of belief to be admitted 2. Factors contributing to prejudice are evaluated -Can fluctuate depending on nature of evidence -Confusing SPE may raise prejudice -Must aim to avoid moral prejudice allowing jury to slip into general propensity reasoning

3. Probative value of SPE (1) is balanced against prejudicial effect (2) -IDENTITY & SIMILAR FACT EVIDENCE: -If admitted, can use SPE from separate crime scenes as a whole to determine the culprit -POST-OFFENCE CONDUCT -WHAT: Consciousness of guilt, circumstantial evidence of POC that leads to inference of guilt (Peavoy) -ISSUE: Wrong inferences, too prejudicial, may inhibit TOF from considering alternatives -ARCANGIOLI RULE: POC cannot be used in determining the LEVEL of culpability -Can be used to determine ID -POC evidence must be reasonably capable of supporting inference -EXCEPTION: When POC is indicative of actions themselves that show first degree planning (Prof) -FRAMEWORK OF ADMISSIBILITY: (White) 1. Cannot be merely speculative of guilt Ex. Cannot rely on suspects reaction to news of death (i.e. Stoicism) 2. Must be at least one reasonable inference that POC indicates guilt -Multiple inferences still admissible to TOF (White overturning Arcangioli) -INSTRUCT THE JURY: On considering multiple explanations 3. Evidence must be considered within context, not isolated and subjected to reasonable doubt standard -NOTE: Must still assess probative/prejudicial balance -INTOXICATION: As a self-defence (Peavoy) -POC may undermine notion D lacked presence of mind (MR) indicative of extreme intoxication necessary for defence -POC IN FAVOUR OF DEFENCE: -Seaboyer: Establishes lower standard of probative value for evidence in favour of defence HOWEVER this was not considered the case for POC -TJ prone to rejecting self-serving evidence -PRINCIPLED APPROACH: Brought in by B(SC) allowing POC evidence for defence -ISSUE: Evidence submitted by D often trifling & a prejudicial distraction -CRITERIA: POC must have significant probative value -Ex. D immediately offers sample search in case of sexual assault

-Very contextual -NOTE: This does not undermine Charter rights to silence (Turcotte) -BAD CHARACTER OF THE WITNESS: D may be witness in own defence -PRIOR CONVICTIONS: s.12 CEA: Witness may be questioned about prior convictions -WHEN WITNESS IS ACCUSED: (Corbett) -D may ONLY be questioned about priors for purpose of impeaching credibility -NOTE: One of many factors to assess credibility NOT for propensity! -Judges will read into provisions a residual discretion on part of trial judge to exclude evidence of PCs where prejudicial outweighs probative -FACTORS OF DISCRETION: 1. NATURE: Of PC & whether it involved dishonesty & is thus more likely to be useable in impeaching credibility 2. SIMILARITY: Of PCs to charged offence. NOTE: A higher degree of similarity increases prejudicial effect & makes admissibility LESS likely as it may cause jury to engage in general propensity reasoning. 3. TIME LAPSE: Remoteness/nearness of PC, even conviction involving fraud but followed by legally blameless life, should generally be excluded on grounds of remoteness 4. WHETHER DEFENCE HAS MADE DELIBERATE ATTACK: On credibility of Crown witness, particularly if resolution of case boils down to credibility contest between D & witness -Falls under No Distorted Picture Principle -PROF: If questioning witness about PCs has no purpose other than to show bad character, will likely not stand up to Charter challenge under ss.7 &11(d) -BENEFITS TO D UNDER COURTS INTERPRETATION OF S.12: 1. D gets CORBETT HEARING to determine admittance of prior convictions 2. If evidence of prior conviction admissible, then: -Generally only fact of conviction admissible, NOT details thereof -Fact of conviction is admissible only for purpose of testing Ds credibility -RELEVANT CASES & STATUTORY PROVISIONS: Canada Evidence Act -s.12(1): Witness may be questioned as to whether witness has been convicted of any offences

-In case of D, courts have interpreted this to mean that D may be questioned, but only for purposes of impeaching credibility (Corbett) -s.12(1.1): If witness denies having convictions, opposite party may prove conviction -Corbett: CEA s.12 is constitutional in respect of D, does not infringe s.11(d) Charter -However, trial judge retains residual discretion to exclude questioning about priors where prejudicial effect outweighs probative value -OTHER DISCREDITABLE CONDUCT: 1. CEA s.12 applies ONLY to convictions; all other evidence of extrinsic misconduct on part of D is subject to general rules on such evidence 2. Any ordinary witness may be cross-examined with respect to any discreditable conduct -Unlike with D, can get into the details with other witnesses -CASE LAW: -Cullen: Conduct leading to charge of which D has been acquitted cannot be proved against him as similar act (CONTRAST: Titus) -Titus: Cross-examination of Crown witness concerning outstanding indictments admissible for showing possible motivation to seek favour with prosecution -NOTE: Could be shut down as speculation though -Seaboyer: Evidence of discreditable conduct of Crown witnesses would surely be subject to Seaboyer standard: -STANDARD: Nothing is received which is not logically probative of some matter requiring to be proved & everything which is probative should be received, unless its exclusion can be justified on some other ground -THE VETROVEC WITNESS: -ISSUE: Such incredible witnesses have been present in most wrongful convictions -GENERAL RULE: Even seriously unreliable evidence will be admitted (Murrin) but with Vetrovec instructions -VETROVEC WITNESS: Determined by judge via contextual inquiry considering all circumstances -ASK: Does witness have such severe credibility problems that it would be dangerous to convict based on testimony alone? -INDICIA OF SERIOUS INHERENT LACK OF CREDIBILITY INCLUDE: 1. Numerous prior inconsistent statements 2. Criminal history, particularly convictions for offence of dishonesty 3. Bias or massive vested interest in outcome (i.e. Titus seeking favour with Crown) -NOTE: All factors weighed together

-JAILHOUSE INFORMANT: Particular class of Vetrovec Witness: Murrin; Dhillon -Confessions of D (even to jailbird) are presumptively admissible -ISSUES: Though rarely explicit, institutional understanding of quid pro quo from authorities -Jailbirds shown to be very resourceful in finding details of crime to pad stories -RULE: Crown prosecutors seek approval from independent tribunal before leading evidence of jailhouse informant -NOTE: Need not be jailhouse information to qualify for Vetrovec warning Ex. Witnesses in Khela; Jolivet -VETROVEC INSTRUCTION: -PURPOSE: Judge must deliver clear, sharp warning in order to: (Vetrovec; Khela) 1. Alert TOF to danger of relying on this type of evidence, AND: 2. Give TOF tool to assess reliability of witness -Vetrovec warning focuses on presence or absence of confirmatory & corroboratory evidence supporting witness -CONTENT: Must achieve the following: (Khela) 1. ISOLATE the witness testimony from rest of evidence: I am now going to give you some special instructions about Mr. Smith... -NOTE: Runs contrary to normal rules of evidence, which emphasizes holistic approach 2. EXPLAIN to jury why witness evidence is subject to special scrutiny -Details of how testimony arose 3. CAUTION jury that it is dangerous to convict on unconfirmed evidence of this sort but that jury is entitled to do so if it is satisfied that evidence is true, AND: 4. INSTRUCT jury, when assessing truthfulness of witness, to look for evidence from another source tending to show that untrustworthy witness is telling truth -ELEMENTS: Independence & Materiality (FISH in Khela) -If testimony goes only to peripheral part of witness story, then it is NOT material -BUT: Confirmatory evidence need not be direct evidence of Ds involvement, TOF should instruct jury to keep in mind limited disputed issues & jury should look for evidence confirming Vetrovec witness story on those limited issues DESPITE fact that confirmatory evidence need not implicate D -HOWEVER: In accomplice cases, whether D was perpetrator is usually only issue at hand

-CASE LAW: -Murrin: Evidence isnt unfair to D just because it is unreliable, assessment of reliability is best done by designated TOF -Khela: Particularly important to instruct jury on independence because of defence allegations of collusion between Vetrovec witnesses -Dhillon: Evidence tending to prove fact that D & witness had opportunity to talk is not capable of being confirmatory as would be peripheral evidence -Warning to defence as can open otherwise inadmissible topics -ARGUE: Decision narrows scope of materiality -EYE-WITNESS TESTIMONY -STRANGER IDENTIFICATION: Most dangerous as high risk -Strong link to wrongful convictions but POLICY decision that evidence is presumptively admissible, credibility & reliability left to jury -EXAM: Look to fact pattern to comment on weight to be accorded to such testimony -CONSIDER: Lighting, stress, timing, specificity of description, distinctive features, confirmatory evidence, etc -PRIOR DESCRIPTIONS: Precise prior description & subsequent pick out of line up can be strong ID evidence -Courts prefer statements/identification at time of offence, not later -PHOTO PACKS: Best practices for conducting photo line-ups: (Gonsalves) 1. At least 10 subjects in photo pack 2. Conduct of photo line-up must be recorded on videotape, or at least audiotape 3. Line-up should be conducted by double-blind administrator who tells witness beforehand that he is not involved in investigation & does not know suspect 4. Line-up must be presented sequentially, not handed over as package, AND: 5. Officer conducting line-up must not do anything to bias or reinforce witness suspicion about any photos -CASE LAW: -Gonsalves: In-court ID gets very little weight -When photo pack tainted by incorrect procedures, flaws go to weight, not admissibility -Swanston: Extrajudicial eyewitness ID is admissible as exception to general rule against prior consistent statements -WHY: Because trials take time and sight-memory fades, must be lenient -Still has probative value

-Such ID is admissible not only to confirm in-court ID, but as independent evidence going to ID OPINION EVIDENCE -WHAT: General position of courts is that opinion evidence is inadmissible (Murrin): -Must show evidence more probative than prejudicial -EXCEPT: 1. The compendious statement of facts exception (common knowledge) 2. The expert witness exception -COMMON KNOWLEDGE: -NON-EXPERTS may give their opinion on matters within everyday experience of ordinary people as such an opinion is just a compendious statement of facts too subtle & complicated to be narrated separately & distinctly (Graat) Ex. Can give evidence of anothers drunkenness, emotions, age, etc -NON-EXPERTS CANNOT: 1. Speculate 2. Stray into realm of opinion which would require specialized expert, OR: 3. State his opinion in terms of legal standard -EXPERT EVIDENCE: Paid by one party for purpose of bolstering partys case -PURPOSE: Assist TOF in drawing inferences on issues beyond their knowledge -GENERAL RULE: Presumptively inadmissible, must establish admissibility on BOP (Abbey) -TEST: Principled framework for probative/prejudicial balancing (Mohan; Abbey) -STATUTORY: Provisions barring admittance -s.7 Charter: Disclosure to defence requirement -s.657.3 CC: Requires DEFENCE to disclose expert use to Crown with reasonable notice -KEY: Timing of disclosure must meet statutory expectations, experts must agree to show no bias -STAGE 1: Preconditions must all be satisfied to proceed: 1. Is witness properly qualified EXPERT? -Low threshold: Need only greater expertise than ordinary person 2. Is proposed evidence logically RELEVANT to material issue? -How close is it to ultimate issue? -NOTE: Judge may choose to limit nature & scope 3. Is the expert evidence NECESSARY? -High threshold: Subject matter must be such that ordinary people are otherwise unable to draw correct inference (Mohan) -Courts will assume juries possess broad range of knowledge (Corbett)

4. Is evidence otherwise admissible (not barred by any other exclusionary rule)? -STAGE 2: Gatekeeper cost/benefit holistic analysis -ELEMENTS TO CONSIDER: -Strength of first three factors -Does it stray into inadmissible general propensity evidence? -Consumption of time/money -Prejudice -Confusion caused by unduly protracting & complicating proceedings -Jury abdicating fact-finding role & in favour of expert opinion -Meet threshold of reliability to have sufficient probative value? 1. Ordinary expert evidence (Abbey) -Bias can be a factor 2. Novel scientific evidence (J-Lj; Mohan) -CONSIDER: Subject matter, methodology, expertise, impartiality of expert -MANNER EVIDENCE LED: Pre-packaged, or accessible? -LEAST USURPING: Set out comparable factors then let TOF decide -Less helpful, may lead to incorrect inference -MOST USURPING: Direct answer to critical issue -Serious concern & viewed with skepticism -Necessary for some specific issues (Ex. Medical) -CASE LAW: -Mohan: Testimony inadmissible as profiles not standardized enough such that it could be said that one of them matched supposed profile of offender in this case -J-Lj: Evidence failed to meet threshold of reliability for novel scientific evidence & was close to ultimate issue & presented in prepackaged manner, both of which weighed against it -Abbey: Evidence admissible as long as scope & language was properly restricted -BASIS & WEIGHT OF EXPERT EVIDENCE: -DOES EVERY ASSUMPTION HAVE TO BE LED AS ADMISSIBLE EVIDENCE? -In Lavallee, defence psychiatrist called to give expert opinion on D that thought was life in imminent danger based his opinion on 4hour out-of-court interview with D, during testimony he recounted some details of interview. There was NO admissible evidence for these details

-HELD: If some of assumptions relied on by expert were led as admissible evidence, but some were not, then expert opinion is admissible & only issue is one of WEIGHT -Jury instructed that it may, NOT MUST, ignore experts opinion as expert relied on some evidence which was not put before jury -OVERTURNS: Abbey which previously disallowed such evidence -NOTE: Palma: No one had led evidence actually proving alleged case facts upon which jury had based opinion -HYPOTHETICAL QUESTIONS: -ISSUE: When counsel asks questions of experts which incorporate assumptions about case, may send message to TOF that assumptions are actual facts when may still be live issues -Do not want expert entirely detached from case -THUS: Counsel generally required to pose questions to expert in hypothetical form which reminds TOF that assumptions are not necessarily settled & that answer should be treated with skepticism -Ideally avoids touching on the ultimate issue -EXCEPTION: Bleta v The Queen -SCC HELD: Trial judge has discretion to admit expert opinion which is not based on hypothetical question IF nature & foundation of opinion has been clearly indicated to jury by other means -PARTICULAR MATTERS: -EXPERT BEHAVIOURAL PROFILE EVIDENCE: -Mohan & J-Lj: Defence attempted to lead expert evidence to prove sexual offences had to have been committed by one who fit specific behavioural profile that D did not fit -HELD: Evidence inadmissible as such evidence must meet test for NOVEL SCIENTIFIC EVIDENCE & evidence must establish that: 1. Expert is using standard profile not put together on ad hoc basis for purpose of particular case, AND: 2. Profile clearly IDs distinctive psychological elements which separate deviant perpetrator from others -OPINION EVIDENCE ON CREDIBILITY: -ISSUE: Credibility is paramount issue falling within expertise of TOF, courts suspicious of opinion evidence, expert or not, that may usurp this role -Known as oath-helping: Generally inadmissible unless relevant to legitimate issue beyond credibility, & probative value outweighs prejudicial (Llorenz)

Ex. Teaching TOF young abuse victims prone to retracting otherwise true statements -KEY: Manner in which evidence is led & presence of limiting instruction -Av: Officers statement that he certainly would have no problem with victims credibility was inadmissible oath-helping -NOVEL SCIENTIFIC EVIDENCE: -Higher threshold of admissibility than other expert evidence, subjected to special scrutiny (Mohan), courts expected to take gatekeeper role seriously (J-lj) -Due to likely going straight to ultimate issue & being relatively untested -FACTORS OF ADMISSIBILITY: (BINNIE in J-Lj) -NOTE: In such circumstances courts are wary of ironclad tests 1. Whether theory/technique can be & has been tested 2. Whether theory/technique has been subjected to peer review & publication 3. Known of potential rate of error or existence of standards, AND: 4. Whether theory/technique used has been generally accepted -CASE LAW: -J-Lj: Docs novel use of penile forensics with personality tests failed to meet threshold of reality -Abbey: Docs evidence not novel scientific theory, not scientific, not novel & not theory -LIMITING ADMISSIBILITY OF EXPERT EVIDENCE: -J-Lj: Courts first expressed concern with the habit of just letting everything go to weight -Emphasized role of gatekeeping -RISKS: which make it advisable to limit admissibility (DD) 1. May usurp TOF role 2. Experts highly resistant to cross-examination 3. Expert opinions largely based on unsworn evidence not before the court 4. Time-consuming: Wasteful, jurors forget evidence etc 5. Expensive to public/private parties (i.e. Having to compete with Crown) 6. Devolve into contest of experts with TOF acting as referee in deciding which experts to accept -NOTE: Encouraged judges to make instructions on complex matters not requiring experts -SCC CLAMP-DOWN: Particularly as experts may be bias to bankroller: FISH in DD:

-It has been repeatedly recognized that admissibility requirements of expert evidence do not eliminate dangers traditionally associated with it. Nevertheless they are tolerated in those exceptional cases where jury would be unable to reach own conclusions in absence of assistance from experts with special knowledge -THRESHOLD: High level of NECESSITY -CASE LAW: -DD: Evidence reflecting current state of law merely reflects an undeniable proposition, has no technical value whatsoever -Mohan: Trial judge must take gatekeeper role seriously -Parrott: At the time expert testimony was called, it had NOT been shown that testimony was necessary DIFFERENT EVIDENTIARY CONTEXTS -CIVIL TRIALS: -KEY: Difference between civil & criminal proceedings is civil are not governed by federal evidence rules such as Canada Evidence Act & Criminal Code -Instead governed by BC Evidence Act & rules of court for civil proceedings -Some civil cases reference different statutes -Johnson v Bugera: Likely no difference between probative/prejudicial balancing in criminal & civil contexts -BUT: May be heightened concern in criminal, particularly for juries, to avoid prejudice due to liberty issues -NOTE: CL rules tend to apply across the board -COLLATERAL EVIDENCE RULE: Segura -On cross-examination, subject to trial judges discretion to disallow any question which is vexatious or oppressive, witness can be asked literally anything to test credibility -BUT cross-examining party is subject to collateral evidence rule -RULE: Where witness is asked question irrelevant to facts & asked purely for purpose of testing credibility, cross-examining party is bound by her answer & may not lead evidence to contradict her -Stops needlessly lengthy proceedings -NOTE: If questioning goes to more tangible issue than general credibility, can lead cross-examination further -JUDGE-ALONE TRIALS: -Governed by same rules of evidence as other trials, but trial may play out different for several reasons: Malik 1. Trial judge hear gist of evidence on voir dire when they are deciding upon admissibility, thus no point excluding certain evidence which would be inadmissible in jury trial -Cassibo: In judge-alone trial, parties agreed that evidence adduced on voir dire would form part of trial record

2. Trial judges receive special training to consider evidence only for its proper evidentiary value -Judge more capable of ensuring such evidence not prejudiced against another -ISSUE: Impulse to call a million witnesses must be mitigated -COMPETENCE & COMPELLABILITY OF WITNESSES: -RULE: Generally all are both competent & compellable -COMPETENT: If Ws evidence can be received in court -COMPELLABLE: If W can be forced to testify on pain of contempt proceeding -s.16 & 16.1 indicate courts will err on side of making witness evidence admissible -LEGISLATION: Canada Evidence Act -EXCEPTION: D is a competent but NOT compellable witness, D has final decision to testify -Charter right -CHILDRED UNDER 14: s.16.1 -RULE: Presumed competent to testify -If party challenges competence of child witness, onus on that party to demonstrate child cannot understand & respond to questions -Ability to understand & respond LOW threshold -Certainly lower than communicate the evidence threshold under CEA s.16 -Child may NOT take oath or solemn affirmation but instead must testify under promise to tell the truth -If child can understand & respond to questions & has thusly promised, evidence is admissible -Opposing party may not question child on understanding of nature of promise for purpose of determining admissibility -Making of promise is determinative of admissibility -But may cross-examine child on understanding of promise at trial, and cross-examination may properly be taken into account by jury in assessing WEIGHT to accord evidence -JZS: Affirms constitutionality of s.16.1, particularly the inability to question child on understanding of promise -Parliament need not provide fairest trial D can imagine under right to make full answer & defence (s.7) or to satisfy right to fair trial (s.11(d)) under Charter -Acknowledges other interests, such as search for truth, are at stake -THRESHOLD: Is it fundamentally unfair violation of s.7 & 11(d)? -MENTAL (IN)CAPACITY: s.16

-Somewhat easier under s.16 (versus s.16.1) for party to have person with mental capacity problem declared incompetent than child witness under 14 years of age -KEY DIFFERENCES: s.16: MENTAL s.16.1: CHILD UNDER CAPACITY 14 Standard of Communicate the 16(1)(a Understand & respond s.16.1(3) competence evidence ) to questions How inquiry Challenge 16(1) Satisfy court there is s.16.1(4) initiated competence issue Burden during On party 16(5) Unclear 16.1(5) inquiry challenging Oath or solemn Default option 16(2) Prohibited 16.1(2) affirmation Promise to tell truth Backup option 16(3) Default & only option 16.1(6) Questioning Not permitted: DAI Not permitted 16.1(7) promise -STANDARD OF COMPETENCE: JZS -Communicate the evidence standard is slightly more stringent than understand & respond to questions standard, apparently requiring ability to perceive & recollect events -NOTE: Can still cross-examine at trial on understanding, just goes to weight not admissibility -Parrott: Crown took unusual step of applying to have its own witness, the complainant, declared incompetent under s.16 -DAI: Promise to tell truth under s.16(3) interpreted to prohibit questioning on abstract understanding of promise to tell truth for purpose of admissibility -SPOUSES: -THEN: Broad CL approach made spousal testimony almost impossible -POLICY: Preserve marital harmony, lower status of wives -EXCEPTION: Violence between spouses (CL) -LEGISLATION: Expanded the exceptions: s. 4 CEA (1) Spouse is competent witness for defence -NOTE: Some case law indicates also compellable (2-4) Lists exceptions allowing Crown to call -i.e. Offences against children (3) Marital communication privilege: No spouse is compellable to disclose any communication made DURING marriage -NOTE: Does not include that which is seen -OATHS & SOLEMN AFFIRMATIONS: Canada Evidence Act -s.14: Instead of swearing oath before giving evidence, can make solemn affirmation which carries same effect

-s.15: Instead of swearing oath before making affidavit or deposition, person may make solemn affirmation carrying same effect EXAMINATION OF WITNESSES -CALLING WITNESSES: -ORDER OF CALLING WITNESSES: -Parties control conduct of case (Adversarial System Principle) -ISSUE: Witnesses sitting in could tailor answers according to what they hear -Parties will routinely seek orders excluding witnesses from courtroom until they have given testimony -ACCUSED AS WITNESS: Smuk -Despite risk of tailoring or risk of accusation of such, cannot be compelled to testify first, nor can Ds credibility be prejudged -ARGUE: Was decided in 1971 CL terms, would now likely be decided according to s.7 & 11(d) Charter -FAILURE TO CALL WITNESS: Jolivet -If Crown declares witness, then fails to call him, one looks to motive behind decision -If motive determined, look to what mischief or prejudice was suffered by defence in order to determine appropriate remedy -ARGUE: Role of Crown not to win, but to seek truth -MOTIVE: Trial judge must decide whether C action: 1. Was perverse of oppressive exercise of prosecutorial discretion amounting to abuse of process 2. Did not amount to abuse of process but still gave rise to concern over Cs motives, OR: 3. Was merely normal trial tactics -REMEDY: Strength decreases with severity of C conduct, but will always be available regardless of blamefullness of Cs actions, as long as actions resulted in unfairness to D -If C gives explanation for change of tactics & it is believed by trial judge, this amounts to finding of fact that C gave truthful explanation -Concern about truthfulness of witness is NOT perverse consideration -REMEDY: Cannot oblige Crown to call witness as would disrupt inherent balance of adversarial system (BINNIE), instead: 1. Trial judge could call witness himself 2. TJ could instruct jury that it may draw adverse inference -NOTE: First two only in EXCEPTIONAL CIRCUMSTANCES where there are concerns about Cs motive

3. Defence could comment on failure to call witness in closing arguments -D could invite jury to draw adverse inference (strong remedy) -D could invite jury to infer that witness would have been unhelpful to Cs case (weak remedy) -Granted in Jolivet to undermine fact that Crowns comments might lead jury to believe case stronger than in reality -NOTE: Available where no motive, but element of UNFAIRNESS to D -Strength of remedy depends on how much prejudice was suffered by D 4. Nothing done at all, rely on jurors to remember unfulfilled promise & draw own conclusions -NOTE: Strong POLICY against rerunning trials -WHY WOULD YOU NOT CALL WITNESS YOURSELF? -Both parties can call any witness, but she who calls the witness is restricted to direct examination which is less effective than crossexamination, particularly when witness is unfriendly -NOTE: Always possible to have witness declared hostile -OTHER CONTEXTS: -PROF: Likely none of these remedies would be available to Crown against D given Ds constitutional right not to lead any evidence at all -In civil context, TJ would likely not call witness, but adverse inference remedy would be preferred -DIRECT EXAMINATION: -WHAT: Process of examining partys own witness in chief -Rules apply to direct examination, re-examination & examining witnesses called to give rebuttal evidence -LEADING QUESTIONS: Maves -WHAT: Usually involves feeding chunks of evidence to witness, or where the only answer is yes or no -NOTE: Determination is contextual -GENERAL RULE: -On material points, one may not lead own witness -On points that are merely introductory & form no part of substance of inquiry, one SHOULD lead -PROF: Leading questions also asked where mutually agreed upon by counsel -POLICY: Theory that ones witness is biased in favour of ones party (thus hostile witness designation), three justifications: 1. Witness bias for own party & hostility towards opponent

-NOTE: Principle reason! 2. Party calling witness has advantage over opponent as he knows beforehand what witness will prove, or is expected to prove, & could consequently lead witness only to favourable points: FALSE GLOSS ON WHOLE 3. Witnesses may honestly assent to leading questions which fail to express whole meaning, even if they would have expressed things differently in own words -EXCEPTIONS TO RULE AGAINST LEADING QUESTIONS: Party may lead own witness on material matters when: 1. For purpose of indentifying persons or things (may draw witness attention directly to them) 2. When one witness is called on to contradict another as to expressions used by latter, but which he denies having used Ex. Did other witness use such & such an expression? 3. At TJs discretion: When witness is hostile or unwilling to give evidence 4. Where inability of witness to answer questions put in regular way can fairly be attributed to defective memory -Maves; Shergill issue: TJ should consider whether preferable to relax rule on leading questions before resorting to refreshing witness memory via PRESENT MEMORY REVIVED 5. Where inability of witness to answer questions put in regular way arises from complicated nature of matter on which he is being interrogated -REFRESHING WITNESS MEMORY: -THE FORGETFUL WITNESS: Due to length of trial, interlude or repetitive nature of work -SOLUTIONS: Present memory revived (PMR) or past recollection recorded (PRR) -CRITERIA: When determining if witness actually forgot, will consider: (McInroy and Rouse) -Witness -Details -Amount of time elapsed -PRESENT MEMORY REVIVED (PMR): -Unlike PRR, PMR is concerned with refreshing witness memory with trigger -TEST FOR PMR: 1. Has witness forgotten something material? 2. Is witness memory exhausted

-NOTE: TJ should consider relaxing rule against leading questions before PMR 3. Is this legitimate case of refreshing memory & not adducing PRR? 4. Is proposed memory trigger appropriate? -Discretionary balancing: Will proposed trigger legitimately refresh memory, or is it more likely to taint witness? CONSIDER: -Contemporaneity -Not required in Shergill as trigger was made 6.5 years after event -Creator of the document -Whether witness verified its accuracy -Whether it is reliable -Whether it could be too suggestive or distortionary -Will it prejudice witness/jury? -GENERAL RULE: Only use witness own highly contemporaneous statement -Though courts may accept other documents as long as in good faith -EXAM: Shergill: Consider difference between Ms. Kaurs police statement & verbatim transcript in order to reason by analogy if arguing about admissibility of PMR -Strikes balance between two extreme schools of thought: 1. Anything may serve as trigger 2. Only contemporaneous documents authored by witness are accepted -PAST RECOLLECTION RECORDED (PRR): -PRR does not refresh memory, but instead is procedure to follow when proven memory totally absent -Involves entering out-of-court statement made by witness into evidence as proof of contents of statement (Shergill) -NOTE: Operates as exception to HEARSAY rule -TEST FOR ADMITTING PRR: Amalgamation of tests in JR; Fliss: -BINNIE: Test applied strictly, to fail one is to fail entire test 1. Absence of memory: Witness must have no memory of recorded events 2. Reliable record: Past recollection must be recorded in some reliable way -Witness must have prepared record OR reviewed it for accuracy if someone else prepared it -Original record must be used if it is available 3. Timeliness: At the time, it must have been sufficiently fresh & vivid to be probably accurate

4. Present voucher of accuracy: Witness must now be able to assert that record accurately represented his knowledge & recollection at time -Usually, witness must affirm that he knew it to be true at the time -JR: Police statement 16 hours after incident was sufficiently fresh & vivid for PRR -Had testified at time of statement that her words were truthful -Fliss: (Tape excluded for s.8 issues): Police recollection of what was taped still admissible -ISSUE: Cop appeared to be reading transcript -Crown argued were just really detailed notes -PRR MORE SEVERE REMEDY: B(KG) -PRR more severe remedy than PMR & typically not attempted until PMR fails -ISSUE: Lacks three circumstantial indicia of reliability: -Statement often not under oath -Not videotaped -Not subject to contemporaneous cross-examination -THUS: Requirements for timeliness & reliability are strict for PRR but more flexible in PMR -POLICE NOTES ARE PRR: -PROF: Almost presumption that certain types of witnesses may use memory aids in certain types of proceedings: -Ex. Police officers will likely to be allowed to rely on notes -Applications to TJ to rely on memory aids may be extremely informal -CROSS EXAMINATION: -MAJOR & FISH in Lyttle: -Cross-examination is indispensable ally in search for truth. Often no other way to expose falsehood, to rectify error, to correct distortion, or to elicit vital info. The right of D to cross-examine Crown witnesses, WITHOUT SIGNIFICANT & UNWARRANTED CONSTRAINT, is an essential component of right to make full answer & defence -LEADING QUESTIONS are permitted in CE, which is examination of witness called by other party -In special circumstances, party may CE own witness, as when witness has been declared hostile by TJ or when successful application has been made under CEA s.9 -EXAM:

-Take note of substance of question put to witness: Is question designed to elicit response which is itself inadmissible, as in Howard? -Ex. Answers that indicate bad character -GENERAL RULE ON CROSS-EXAMINATION: -Tsoukas v Segura: On CE, subject to TJs discretion to disallow any question which is vexatious or oppressive, witness can be asked literally anything to test credibility -Ex. Can ask leading questions -Lyttle: Question can be put to witness in CE regarding matters that will not be proved independently provided that counsel has GOOD FAITH basis -CHARTER: Basis for broad discretion under ss. 7 & 11(d) -s.10 CEA: Outlines procedure to put prior statements to witnesses -GOOD FAITH BASIS: Lyttle -Consider: Info available to CE, belief in its accuracy, purpose for which it is used -Info may be incomplete or uncertain, as long as questioner does not put suggestions recklessly or which he knows to be false -Questioner may pursue any hypothesis that is honestly advanced on strength of reasonable inference, experience or intuition -NOTE: If line of questioning is suspect, TJ may conduct voir dire to ensure that good faith basis exists -EVIDENTIARY BASIS? -Need not provide evidentiary basis for question -NOTE: Browne v Dunne TJ erroneously turns this on its head & is to be ignored, Lyttle prevails, no evidence required as long as in good faith -LIMITS: Lyttle -Cannot be completely irrelevant -Cannot waft in unwarranted information -Cannot harass witness or engage in theatrics (irony, sneering etc) -Cannot in effect reverse the onus of proof: Ex. Can you explain why the witness said such things? -OBLIGATION TO PUT FORWARD PROPOSITION? -ISSUE: TJs interference may affect pre-agreed no-touch subjects between counsels -TJ may appear to be involved member of the court -RULE IN BROWNE v DUNN: To rely on a proposition in final statement, must have previously put it to the witness (must be allowed opportunity to contest statement) -POLICY: Such absence would defy rules of professionalism, fair play & fair dealing with witnesses -LIMITS: Carter -Consider holistic approach to determining violation of rule

-Only applied in clearest of cases where significant matter was erroneously forgotten or not put to witness & Crown seeks to rely on it -REMEDY: Statement of adverse/helpful inference -Counsel/TJ may alert jury to lack of CE on particular statement, relevant in TOFs assessment of credibility -RE-EXAMINATION: -WHAT: Examination of partys own witness after witness has been cross-examined -GENERAL RULE: Moore -TEST: For right to re-examine 1. Right only exists where there has been a cross-examination 2. Must be confined to matters arising in cross-examination 3. Arises only where witness gave material (new) evidence on CE -LIMITS: -Not witness improvement technique, cannot bolster eviscerated CE in RE -New facts may not be introduced -BUT: Leave may be requested from TJ to introduce new facts, opposite party then gets opportunity to RE on those facts -Leading questions may not be asked -Fear of prejudicial strength of final leading questions -POLICY: Efficiency of the courts against fear of boxing in witness without opportunity to present truth -CE OF OWN WITNESS AT RE STAGE: Moore -TJ may grant leave to counsel to CE own witness on prior inconsistent statement, even at stage of RE where witness in CE has given evidence on material matter which is contrary to prior statement -Moore: As Hogan gave no evidence on material matter during CE, Crown was NOT permitted to CE at stage of RE -ARGUE: Should it have been permitted, given the test? -Cassibo: Counsel permitted to CE Mrs Cassibo regarding testimony elicited by defence CE & inconsistent with prior statement -REBUTTAL EVIDENCE: -WHAT: While RE involves examining same witness after other party has finished CE, rebuttal evidence is reaction to entirely unexpected defence case: 1. Crown/plaintiff may wish to rebut evidence elicited by own CE of defence witness 2. Crown/plaintiff may wish to react, at close of defence case, to case as a whole -NOTE: No auto-right to call rebuttal witness, witness may not be led -GENERAL RULE: MCINTYRE in Krause -TEST: For right to call rebuttal evidence

-CONDITIONS FOR REBUTTAL AT CLOSE OF DEFENCE CASE: 1. Defence has raised some new matter or defence 2. Crown/plaintiff had no opportunity to deal with it 3. Crown/plaintiff could not reasonably have anticipated it -CONDITIONS FOR REBUTTAL AFTER CE: 1. Something new such that Crown had no opportunity to deal with it 2. New matter concerns an issue essential for determination of case 3. Crown could not reasonably have anticipated it -POLICY: Rule prevents unfair surprise, prejudice & confusion which could result if Crown were allowed to split its case...Underlying reason for rule is that defendant is entitled at close of Crowns case to have before it full case for Crown so that it is known at outset what must be met in response -COLLATERAL ISSUES: Rule against rebuttal -Even where new matter raised, either on CE of defence witness or in defence case, & matter is COLLATERAL, that is NOT-DETERMINATIVE of issue or not relevant to matters which must be proved for determination of case, NO rebuttal will be allowed -Krause: Crown wished to lead rebuttal evidence to contradict evidence elicited from D on CE for purpose of impeaching credibility -Credibility was collateral matter, NO rebuttal permitted -NOTE: Tsoukas v Segura collateral evidence rule is very similar STATEMENT EVIDENCE -PRIOR CONSISTENT STATEMENTS: -WHAT: Previous statement in which witness said same thing that he testifies to at trial -GENERAL RULE: Ay -Cannot present prior CONSISTENT statements -Cannot lead own witness through evidence harkening back to PCS -POLICY RATIONALE: 1. Lack probative value 2. Are self-serving -Concern jury will draw unwarranted inferences of truthfulness from witness consistency -Ad infinitum repetition is not indicative of truthfulness, only consistency -EXCEPTIONS: To rule against PCS -NOTE: Exceptions, except for prior identification exception, do not permit statement to be admitted as proof of truth of its contents -Jury instruction required, especially where content of statement is revealed

1. RECENT FABRICATION EXCEPTION: -Does NOT require explicit allegation of fabrication to allow PCS to be admitted -Need only show opposing party takes position there has been prior lie -Probative value of statement comes from ability to show witness story was same even before motivation to fabricate arose -PCS NOT admitted as proof of truth of contents, but merely as probative of issue of credibility -JURY INSTRUCTION REQUIRED -Stirling: PCS admissible NOT for truth of contents, but to show Hardings story did not change as result of new motive to fabricate -Allows PCS to be admitted to rebut CE allegation of recent fabrication -Cassibo: Rosetta & Darlenes claims to have told their mother when they were 12 was separately admissible under RFE to address defence claim that they concocted their stories after reading the magazine 2. NARRATIVE EXCEPTION: Ay -Fact that statement made is admissible to assist TOF as to sequence of events from alleged offence to prosecution so TOF can understand conduct of complainant & assess truthfulness -Indicative that allegation not fabricated in courtroom, but instead part of free-standing & existing story -Witnesses can then provide corroborative evidence in form of impressions of initial story-telling (Ex. Emotional? Visible bruises?) -Must be relevant to some live issue -NOTE: Narrative does NOT mean details of PS may be admitted, only the existence of PS -ADDITIONAL AY EXCEPTIONS: -Statements on arrest -Statements made on recovery of incriminatory articles -PRIOR SEXUAL ASSAULT COMPLAINTS: Ay -ISSUE: Almost inevitably credibility competition between two witnesses -ADMISSIBLE & INADMISSIBLE EVIDENCE: -Relevant & material matters which as admissible are: -Fact that prior complaint was made -When it was made, AND: -Why it was or was not made in a timely fashion

-Prior complaint must be described in general terms only, omitting details of what was actually said -Content of statement is inadmissible unless relevant for some other purpose such as providing the necessary context for other probative evidence -PERMISSIBLE PURPOSES -Context for other probative evidence -Assessing complainants credibility by examining whether events are consistent with conduct of someone who is telling the truth -IMPERMISSIBLE PURPOSES: -Proof of truth of content, or implicit content of the PCS -Enhancing the credibility of complainant by proof that she made an earlier statement corroborating her current testimony -JURY CHARGE: -Ay: Where evidence strictly confined to fact that prior complaint was made, without details, TJ MUST instruct jury that evidence is admitted only to assist understanding of what happened, not for its truth -Turcotte: While not a case about PCS, otherwise inadmissible evidence of Turcottes silence was admissible as inextricable part of narrative -Cassibo: One of the purposes for which Dr. Voyseys testimony would have been proper was to provide narrative & context 3. PRIOR IDENTIFICATION EXCEPTION: -Prior ID evidence is admitted for truth of its contents -NOTE: Thus also an exception to hearsay rule -Gonsalves: Eyewitness will likely give police statement describing suspect in crime relatively soon after it occurs -Witness may then be asked to ID accused in photo line-up or by some other method -Such prior extra-judicial identifications may occur months or even years before court system gets around to trying the case, with memories fading or becoming tainted -Swanston: Unlike other testimony that cannot be corroborated by proof of prior consistent statements unless it is first impeached, evidence of an extra-judicial ID is admitted regardless of whether testimonial ID is impeached, as the earlier ID has greater probative value than an ID made in the courtroom after the suggestions of

others & circumstances of trial may have intervened to create a fancied recognition of witness mind -Failure of witness to repeat extra-judicial ID in court does not destroy its probative value, for such failure may be explained by loss of memory or other circumstances -ATTACKING THE CREDIBILITY OF PARTYS OWN WITNESS -Absent certain circumstances GENERALLY: -Jolivet: Party may NOT CE or lead own witness -s.9 CEA: Prohibited from impeaching credibility of own witness -CL RULE ON HOSTILE WITNESSES: -TJ has discretion to permit counsel to CE own witness if TF believes witness hostile -s.9 CEA does not eliminate TJs discretion (Wawanesa; Cassibo) -STATUTORY REGIME: -s.9 CEA framework defining circumstances under which parties can attack credibility of own witnesses -Commonly done by using evidence of prior INCONSISTENT statements -RELATIONSHIP BETWEEN ss.9(1) & (2) CEA CEA s.9(1) CEA s.9(2) Purpose -Codifies CL -Exception to s.9(1) allowing -Clarifies that PIS may be CE on PIS without declaring proved by calling other witness adverse (Milgaard) witness -General provision on attacking credibility of partys own witness What it -Contradicting partys own -CE the witness as to PIS enables witness by other evidence, (but only PIS Milgaard) if witness declared adverse -Proving PIS, with leave of court Types of PIS -No restrictions (Cassibo) -Explicitly mentions CE, but allowed only as to the PIS -PIS must be in written/recorded form Mentions CE -No, but CE permitted at CL -Explicitly mentions CE, but it witness hostile (see CL only as to the PIS Rule on Hostile Witnesses) Scope of CE -No restrictions (Milgaard) -Limited to PIS (Milgaard) Other -CE may be used for purpose of deciding whether witness is adverse under s.9(1)

-NOTE: PIS only admissible for its truth if accepted by witness under CE -CEA s.9(1): -WHEN: Partys own witness testifies against PIS & is adverse, allows CE -CE is broad but cannot include impeaching on general bad character -Can bring in other evidence disproving CE -GOAL: Undermine weight of witness testimony -Cassibo: Adverse moms PS allowed for corroboration, rebut recent fabrication & narrative purposes -Allowed for CE on RE of now adverse witness -MEANING OF ADVERSE: Not just outright hostility, can include merely unfavourable behaviour. PIS alone not always enough (Cassibo;Wawanesa) -GENERALLY: Witness appears to now identify with other party absent logical explanation -Purpose is to destroy witness, simple absence of evidence (memory) not same as adverse testimony (McInroy) -But if memory-lapse not believed, may be adverse -IN USING PIS TO DETERMINE WHETHER WITNESS ADVERSE: TJ must: 1. Be satisfied that witness made statement 2. Consider importance of statement, AND: 3. Consider if it is substantially inconsistent -CEA s.9(2): -WHEN: Party alleges own witness made PIS in writing, reduced to writing or recorded, court may grant leave to CE on PIS without declaring witness adverse -PIS must be clear & significant inconsistency in probative part of statement -Not a witness improvement technique -McInroy and Rouse: Where witness claims not to remember events contained in her WRITTEN statement & TJ does not believe her, this is evidence of inconsistency within meaning of s.9(2 ) -MILGAARD PROCEDURE FOR DETERMINING APPLICATIONS UNDER s.9(2) 1. Counsel advises court she wants to make application under s.9(2) 2. Court directs jury to retire 3. Counsel produces alleged statement meeting s.9(2) criteria:

-In writing, reduced to writing, audiotape, video or other 4. TJ examines statement to see if inconsistent 5. Counsel proves statement: -By asking witness &, if witness denies making it, proving it by other evidence 6. Counsel opposite is permitted to CE any witness -Witness need not be adverse (as this is not s.9(1)) -Confined to pointing out inconsistencies & demanding basic explanation -NOTE: Under s.9(1) can aim to destroy credibility 7. TJ decides whether CE under s.9(2) will be permitted & recalls jury -Not obliged to allow CE -ISSUE: As in Milgaard, s.9(2) allows number of assumptions & correlations to be put before TOF, jury instruction notwithstanding, factor in wrongful convictions -JURY INSTRUCTIONS: -PIS introduced to impeach credibility of own witness, NOT admissible as true -When party proves PIS under s.9(1) or CEs witness under s.9(2), jury MUST be instructed that PIS may only be used in assessing credibility, not for truth HEARSAY -WHAT: Out of court statement entered for its truth (DE SILVA in Subramaniam) -MACDONALD in Baltzer: Whenever witness testifies that someone has said something, immediately one should ask, what is the relevance of fact that someone said something? -SCC in Khelawon: An OOC statement is hearsay if: 1. Adduced to prove truth of its contents, AND: 2. No opportunity for contemporaneous CE of declarant -NOTE: Hearsay presumptively inadmissible -BUT unlike other OOC statements, if hearsay admitted, does not require limiting instruction as entire purpose it is to prove truth of contents -DOUBLE HEARSAY: -WHAT: OOC statement is itself repeating a second OOC statement heard from someone else -Each level of double hearsay must fall within exception, or be admissible under principled approach (Starr; Griffin) -HEARSAY DANGERS: Two different opinions: -CHARRON in Khelawon: Attributes of declarant which cannot be tested:

1. Perception 2. Memory 3. Credibility -LAMER in B(KG): Absence of: 1. An oath 2. The declarant in front of the TOF 3. Contemporaneous CE -ADMISSIONS OF THE ACCUSED: -See Probative Value of Informal Admissions -CIRCUMSTANTIAL EVIDENCE OF STATE OF MIND: Three different factual scenarios: -Baltzer: FACTS: Sought to admit D saying crazy things, no question of statements of weird nature being used to prove truth of statements, only used to show D might have been insane -OOC statements in this case are clearly NOT hearsay at all as not taken for truth -Ratten: FACTS: Sought to admit female voice saying Get me the police & being hysterical, was ostensibly only brought to show female in state of emotion or fear -NOT hearsay for purpose for which it was admitted -Griffin: Witness reported victims words implied witness afraid of Griffin, CHARRON appears to admit for its truth of fact that witness feared Griffin -Was TRUE HEARSAY, but fit within CL exception Declarations of Present State of Mind -GENERAL RULE ON EXCEPTIONS ALLOWING HEARSAY: -Statutory first, CL second, principled approach last -CL & statutory exceptions remain presumptively good law (Mapara) -Hearsay presumptively inadmissible -If it falls into exception, flips to admissible subject to being challenged under principled approach -In absence of exception, can look for admittance via principled approach -STATUTORY EXCEPTIONS: s. 30 CEA Business Records Exception -Looser standards than CL but cannot flout other CL rules of evidence & must be authenticated -Embraces tenants of necessity & reliability (10): Cannot be contrary to public policy (11): Should supplement, not replace, existing CL exception -Wilcox: CL rule states record must be made in usual & ordinary course of business by one under duty to so act -s.30 omits this duty, causing CROMWELL to question whether this opened rule to those records made against employers instruction -RULE: As a result of this semantic confusion, CROMWELL advocated application of PRINCIPLED APPROACH in such circumstances -CL EXCEPTIONS TO HEARSAY RULE: Used to be only way to enter hearsay 1. BUSINESS RECORDS: Wilcox

- An OOC record containing: -An original entry -Made contemporaneously -In the routine of business -By one who had DUTY to make record, AND: -Acts as circumstantial guarantee of truth based on assumption that declarant would fear censure & dismissal if inaccurate -NOTE: This is where Wilcox failed -By one who had NO MOTIVE to misrepresent -Admitted for proof of truth of contents 2. DECLARATIONS AGAINST INTEREST: Financial or Penal -Declaration sought to be adduced as hearsay must: OBrien -Have been made to person & in circumstances that declarant should have apprehended penal/pecuniary consequences, AND: -Vulnerability to consequences must not be too remote -OBrien: Hearsay failed as Jensen clearly took steps to avoid jail -Declarant must realize declaration may well be used against him, shows reliability -Brown: Girlfriends hearsay would likely not have met criteria of the exception -PROF: Confessing to loyal friend likely does not count 3. DECLARATIONS OF PRESENT STATE OF MIND: -Statement criteria: Griffin -Declarants state of mind must be relevant -Statement must be made in natural manner -Statement must not be made under circumstances of suspicion -Griffin: Poirers declarations admissible as conveying a fearful state of mind, but NOT as evidence of Griffins state of mind (as would be double hearsay at best) 4. STATEMENTS OF INTENT: -Griffin: Statement of intent is just a particular subcategory of declaration of present state of mind -PROF: Im going to the gas station & Ill be back in half an hour 5. DYING DECLARATIONS: -Reliability of statement is thought to flow from fact that dying person has lost all reason to lie -Generally declaration revolves around who did the murder -NOTE: Facts must still satisfy test of necessity & reliability 6. PAST RECOLLECTION RECORDED: See prior notes -JR: NBs second police statement, taken 16 hours after ordeal, met both criteria for PRR & for admission under principled approach to hearsay

7. PRIOR IDENTIFICATION EVIDENCE: -Evidence of extra-judicial ID is admissible as exception to rule against PCS & hearsay -Swanston: Principal danger of admitting hearsay evidence is not present here since the witness is available at trial for CE -NOTE: As the prior ID was made at preliminary hearing, worth noting that an oath would also have been present at the time -Gonsalves: Prior ID from photo line-ups conducted with both witnesses were admissible & any flaws in the procedure went to weight 8. RES GESTAE: -Belief that certain statements are natural & spontaneous without deliberation during course of event, leaving little room for invention by declarant or misunderstanding by witness hearing them: -Words of phrases that either form part of, or explain, a physical act, AND: -Exclamations that are so spontaneous as to belie concoction -PRINCIPLED APPROACH TO HEARSAY: Necessity & Reliability -Mapara: CL exceptions still good law, but must conform to overarching principled framework -PROS: -Better aligned with search for truth & less technical -Addresses CL concerns that good evidence was being kept out & that exceptions were being twisted to fit the facts -CONS: -More time-consuming, less predictable -PROF: Hinted that it may be factor in lengthy pre-trial waits -TEST OF NECESSITY & RELIABILITY: Probative must exceed prejudicial -Khelawon: As necessity of evidence goes down, reliability threshold may go up -Ultimate reliability is for TOF to decide & necessity is not evaluated in isolation from threshold reliability -B(KG): One putting evidence forward must demonstrate necessity & reliability on BOP -FIRST CONSIDER: Pre-necessity/reliability 1. Is it being used for truth? 2. Is it otherwise inadmissible? 3. Is it the product of (state) coercion? -NECESSITY: Need not be necessary to Crowns case (Smith), but necessary to search for truth -CRITERIA: Is flexible & not solely determined by unavailability of witness (Khelawon) -Two classes of necessity: Wilcox 1. SOURCE OF HEARSAY UNAVAILABLE FOR TESTING

-Pelletier: Coles hearsay testimony of what Kong said during call not necessary as Crown failed to make reasonable efforts to get Kongs testimony -Fear or unwillingness to testify alone not necessity -Khelawon: Though necessity present, can argue proponent of evidence did not make all reasonable efforts to secure evidence 2. CANNOT GET EVIDENCE OF SAME VALUE FROM OTHER SOURCES -B(KG): Where party seeks to adduce PIS as proof of truth, cannot expect to get evidence of same value from recanting witness, recanting witness holds PS hostage -Necessity based on unavailability of correct testimony, not witness -Wilcox: Necessary as detailed nature of accounting prohibits independent recollection of entries & because entries written -Parrott: Voire dire to decide if W was mentally capable, or if hearsay testimony from handlers should be allowed in Ws place -RELIABILITY: CHARRON in Khelawon: Summarized CL reliability under PRINCIPLED APPROACH: Reliability can be supported on two different CRITERIA: -NOTE: Khelawon arose in response to issues with B(KG); Starr criteria which required substitutes for absence of oath, lack of presence, inability to CE (very narrow) Ex. Neither case addressed use of striking similarities as grounds for reliability in U(FJ) despites its failure on traditional B(KG) criteria -ARGUE: Does the multi-factor approach of Khelawon inevitably leave it up to TJ? -Party can satisfy all B(KG) criteria & still be dismissed under Khelawon 1. INHERENT TRUSTWORTHINESS FACTORS: -Presence/absence of motive to lie -Probability of accurate memory -Time between events & declaration -Other circumstances affecting accuracy of memory rd -3 party influence leading declarant to concoct statement -Whether possession of special knowledge by declarant, as evidenced by declaration makes it more likely declaration true -Existence of corroborating evidence -Existence of striking similarities with other statements where coincidence, collusion or other tainting could not realistically be a factor -Non-existence of clear lines of CE

2. SUFFICIENT TESTABILITY OR ADEQUATE SUBSTITUTES -NOTE: Can considered together or as independent ground for reliability -ISSUE: Requires party resources to be sufficient -SUFFICIENT TESTABILITY: -Presence of declarant at trial for CE -Video/audiotape simulating presence for TOF at time statement is made -ADEQUATE SUBSTITUTES FOR TESTABILITY: -Oath, solemn declaration or affirmation, plus warning of consequences -Contemporaneous CE, as at preliminary inquiry -FACTORS AS APPLIED IN CASE LAW: CASE INHERENT TRUSTWORTHINESS TESTABILITY OR ADEQUATE SUBS Khan -Statement of kid to mom almost immediately after event -Kid had no motive to lie -Statement made naturally & without prompting -Kid not knowledgeable of sex -Evidence confirming kids story (semen stain) Smith ADMITTED PHONE CALLS: -No motive to lie -Traditional hearsay dangers of perception, memory, credibility not present FAILED PHONE CALL: -Because there were clear lines of CE B(KG) -OOC statement videotape -Declarant available at trial for CE U(FJ) -Striking similarities between -Declarant available at declarants statement & trial for CE independent statement of her father Hawkins -Entirely determined based on adequate subs, as witness not available to testify at trial -Generally, witness testimony before

preliminary inquiry will satisfy threshold reliability since under oath subject to contemporaneous CE in hearing involving same parties & issues Parrott -No possibility of mistaken ID -No motive to lie -Possibly no mental capacity to lie -NOTE: Had reliability been issue, declarants ability to perceive accurately & recall & recount faithfully would still have required consideration -No motive to lie -Routine nature of Books creation -Relied on for business purposes -During the recorded time period, no fisherman disputed any payment made -Statement made when events fresh in declarants mind -Statement voluntary, no leading questions, no police influence -TJ found no contamination of declarants recollection by friend MR -Statement accurately recorded

Wilcox

-Declarant available at trial for CE

-Though statement itself not under oath, declarant testified under oath that she was being truthful & accurate when she made statement -Declarant available at trial for CE Khelawon INDEPENDENT FAIL INDEPENDENT FAIL -Possibility of injuries caused by fall -No adequate subs, -Mental capacity of declarant in mere video without oat issue or availability of rd -3 partys obvious motive to declarant at trial not discredit D & ability to influence sufficient declarant -Oath & simple yes in -Declarants own separate motives response to cops to lie based on his rambling question as to whether complaints declarant understood -Striking similarity with other important to tell truth complainants statements not do not give insight into helpful as those statements had even whether declarant

JR

more issues

understood consequences to D of declarants statement

-PRIOR INCONSISTENT STATEMENTS: -Where party seeks to adduce PIS as proof of truth, as in B(KG);U(FJ), the sufficient testability arm of Khelawon reliability inquiry is more relevant than inherent trustworthiness, must NOTE: 1. PIS sought to be admitted must be otherwise admissible 2. Evidence involves certain special concern over reliability not present in other forms of hearsay -SPECIAL CONCERN OVER RELIABILITY: -LAMER in Khelawon: Reliability concern is sharpened in cases where the focus of the inquiry is on comparative reliability of PS and testimony offered at trial -CIRCUMSTANTIAL INDICIA OF RELIABILITY: LAMER in B(KG) 1. Whether statement was made under oath (or with subs) 2. Whether statement was audio/videotaped, simulating TOFs presence during statement, or whether there is sufficient sub allowing TOF to assess demeanor 3. Whether witness was subjected to contemporaneous CE (or sub) -PROF: CE issue is the trump card -OATH: Absence not determinative, as not present in B(KG); U(FJ), but exists in spectrum: LESS RELIABLE <------------------------------------------------------------>MORE RELIABLE Totally & Fairly No oath, No oath, Oath, Oath, ridiculousl informa truth not but formal but not told of y informal l stressed, interview, told of penaltie but importanc penaltie s formal e of truth s intervie stressed w -PRESENCE: Demeanor of witness on stand assists the TOF in assessing credibility, but TOF not present for PIS, thus must have substitute -LAMER in B(KG): Substitutes in decreasing effectiveness: 1. Videotape 2. Testimony of independent 3rd party who observes statement in entirety, with respect to demeanor of declarant -Due to the close-up on witness in B(KG): Evidence ceased to be hearsay, since declarant could be brought before the TOF

-U(FJ): Made up for lack of videotape etc with striking similarities -CE: Trump Card -LAMER in B(KG): Absence of CE is most important of hearsay dangers, but in case of PIS, is also most easily remedied -No oath, but as statements were videotaped & witnesses available for CE, likely sufficient indicia of reliability -LAMER in U(FJ): CE alone is substantial way to assess reliability of PIS by TOF, sometimes PIS can be admitted even in absence of oath & video record, BUT NOT in absence of CE -Striking similarities, in conjunction with daughters availability for CE, gave statement sufficient indicia of reliability -REMEDY: Lack of contemporaneous CE can be remedied by CE at trial -ORAL HISTORY IN ABORIGINAL TITLE CASES: Mitchell -RULE: Admissible oral history evidence must meet test of necessity & reliability -Will be given due weight but not interpreted in manner that contravenes principles of law of evidence -CRITERIA: Must show existence of consistent pre-contact practice -Preferably backed by historical documents -HEARSAY ANALYTICAL FRAMEWORK:

ADMISSIONS & CONFESSIONS -FORMAL (OR JUDICIAL) ADMISSIONS: No obligation on either side to admit facts (Castellani), but parties may agree to admissions -REFUSAL TO ADMIT ISSUES: Focus of TOF diverted, may allow prejudicial evidence, long litigation, exhaust funds

-Kinkead: What D was willing to admit can affect probative/prejudicial balance Ex. Better to admit fact of death than allow gruesome autopsy photos -s.655 CEA: D on trial for indictable offence may admit any fact alleged against him in order to dispense with having to prove it -Arcanaioli; White: Admission of assault made POC of flight inadmissible -INFORMAL ADMISSIONS: -WHAT: One not formally agreed between parties Ex. Confessions to undercover cops, during interrogations, offhand remarks to witnesses -PROBATIVE VALUE OF INFORMAL ADMISSIONS: -ADMISSIONS OF D ARE NOT HEARSAY: Presumptively admissible & doubtful will even be considered hearsay (Palma) -Party is available in court for CE afterall -Very hard to exclude such evidence as considered very probative, even Ventrovec witnesses will be allowed (Murrin) -CROWN MUST TENDER ENTIRE EXPLANATION: Exculpatory elements must also be adduced or render entire admission inadmissible (Palma; Allison) -PARTIAL OVERHEARS: Inculpatory statements are taken for truth, but if possible meaning would change dramatically with context, then no probative value, generally inadmissible -Ferris: Evidence cop heard D say I killed David out-of-context inadmissible -Hunter: Evidence DiCecco heard D say I had gun but didnt point it out-of-context is not admissible -Party that leads evidence must lead it as whole, can tell TOF to disregard some but cannot withhold it -CONFESSIONS: -WHAT: Admission of culpability, presumptively admissible, likely not hearsay (Palma) -EXCEPTION: Privilege against self-incrimination anchored in s.7 & CL -VOLUNTARINESS: Charter s.7 & CL ensure confessions to police MUST BE VOLUNTARY -Absent voluntariness, confession rendered inadmissible by CL, TJ has no discretion -CONTRAST: Evidence obtained in violation of Charter rights only excluded if argued will bring administration of justice into disrepute -POLICY: 1. Protecting against wrongful convictions on false confessions

-Crown must show statement voluntary, not product of fear or favour, BRD -Oikle: Involuntary confessions to police are critical cause of inaccurate statements -BUT: IACCOBUCI: Must protect rights of D without unduly limiting societys need to investigate 2. Maintaining integrity of justice system -No police trickery that would shock the community -ANALYSIS: Two questions under confessions rule: 1. Threshold: Was confession made to person in authority? (Grandinetti) 2. If so: Was confession voluntary? (Oikle) -TEST: For whether confession was to person in authority: -SUBJECTIVE: D must believe receiver of statement was acting on behalf of police/prosecution -OBJECTIVE: Belief must be reasonable. Not enough D believes receiver can influence course of investigation/prosecution, receiver must be acting on behalf of state -BURDEN & STANDARD OF PROOF: -Burden on D to show valid issue with one in authority -Once D discharges burden, onus shifts on Crown to prove: 1. That receiver of confession NOT person in authority, OR: 2. Confession to receiver in authority entirely voluntary 3. Beyond reasonable doubt -CONTRAST: Burden to prove violation of charter right rests with D, to civil standard -FACTORS CONTRIBUTING TO INVOLUNTARY CONFESSIONS: (Oikle Factors contextual) 1. THREATS OR PROMISES: -GOOD: -Inducements not linked up with state power -Moral inducements to talk -Must be sure moral does not bleed into legal -Downplaying moral seriousness of offence -Offering access to psychiatric help as long as not quid pro quo -BAD: -Telling D he must talk -Threats: Anything linking to violence, direct or indirect -Downplaying legal seriousness of offence -Overplaying strength of Crowns case

-Oikle: Is wary of overplaying, but is not definitive -Improper inducements: -Legal benefits (Ex. Promising to get D a deal) -Psych help as reward -KEY: Look for quid pro quo, must be CAUSAL link between improper inducement & decision to talk -Singh: Do not want to put police into straight jacket 2. OPPRESSION: -Physical oppression: Lack of sleep, food, warmth -Denying access to counsel -Excessively aggressive/intimidating questioning over prolonged time period -Singh: Questioned extensively, D repeatedly refused to talk & asked to be returned to cell, cop kept questioning while affirming need not talk, eventually Singh ID himself on video -HELD: Confession was voluntary, s.7 not violated 3. OPERATING MIND: -May be other circumstances depriving D of operating mind with which to make free choice to confess 4. OTHER POLICE TRICKERY -TEST: Would police conduct show conscience of community? -Catch-all for anything not in first three categories -EXAMPLE: Rothman; Oickle: Cop pretending to be legal aid lawyer to extract confession -NOTE: Undercover cop in cell does not violate rule or shock conscience BUT does violate residual s.7 right to silence (Herbert) -CONFESSION TO PERSON NOT IN AUTHORITY: -ABELLA in Grandinetti: Even if not made to one in authority, circumstances can be so coercive as to undermine reliability. Their admissibility is filtered through exclusionary doctrines like abuse of process at CL & under Charter -PROF EXAMPLE: Mr. Big operation in which undercover cop extracts confession by pointing gun to head of D & screaming bloody murder absent confession -Grant: Does not violate voluntariness, though may breach s.7 if statement collected in manner casting negative light on justice -ACCUSING ANOTHER: Grant

-Under Seaboyer, court cannot lead evidence of Ds propensity for violence, but D may lead such evidence against an alternative suspect -NOTE: Mixed case law on whether this opens door to Ds background -D must have reasonable connection between suspect & crime, but not BRD -ADMISSIONS OF CO-ACCUSED IN JOINT TRIALS: -DOHERTY in Grewall: Ds right to fair trial does not entitle him to exactly same trial as he would have had if tried alone. One D may make submissions in support of own defence that are prejudicial to other D & that could not have been submitted by Crown. Respective rights of each D must be balanced by TJ so as to preserve overall fairness of trial -JOINT TRIALS: -Presumption that those accused together are tried together -POLICY: Search for truth amplified when co-D blame each other -Axiom of adversarial system that truth of allegation best tested through process which required accuser to confront accused -HEARSAY: OOC admissions by D are admissible against that D, but NOT the co-accused: Palma -OOC admissions of D are not really hearsay & thus admissible for their proof -Conversely: OOC statement of D implicating co-D do not have indicia of reliability & are merely hearsay & thus must pass hearsay riguours -ISSUES: D may attempt to confess in manner inculpating co-D, without having to face CE as cannot be compelled, SOLUTIONS: -RULE: Confessions by D are only admissible against D, not co-D 1. SEVER THE TRIAL: Grewal -PROF: Normally confession issue will NOT sever trial -If statement of CROWN against one Co-D has potential to be strongly prejudicial, then should sever trial 2. EXCLUDE CONFESSION ALTOGETHER: -Normally courts reluctant to do so as confession is highly probative against person making it 3. EDIT OUT OFFENDING ADMISSION -Difficult in presence of live witness versus recording

-Issues of context: Will deletion shred probative value by undermining comprehension? -KEY: Balancing -Grewall: OOC statement implication two Co-D was edited out -Malik: On re-election to trial by judge, order that witness self-edit was deemed unnecessary 4. ALLOW INADMISSIBLE STATEMENT BUT GIVE LIMITING INSTRUCTIONS TO JURY -PROF: May leave substantial risk of prejudice to CoD named by confessor -However many judges argue jury system presumes juries will understand & follow complex legal instructions (Grewall) -PRIOR STATEMENTS VERSUS CONFESSIONS: -EXAM: Both confessions AND prior OOC statements of other witnesses that are convenient to Crowns story should set off alarm bells -NOTE: Possibility that coercive or inappropriate interrogation techniques were used to elicit unreliable PS from Crown witnesses: -LAMER in B(KG): -Malign influences on witness by police may shape PS contents in same way that confession may be suspect if coerced -TJ must examine circumstances under which statement was obtained, to satisfy himself that statement supported by indicia of reliability was obtained voluntarily if to person in authority -TJ must consider if there are any other factors that would bring administration of justice into disrepute EXCLUSION OF EVIDENCE UNDER CHARTER -Grant TEST: To determine if evidence obtained in breach of Charter should be excluded under s.24(2) -ASK: Would admission bring administration of justice into disrepute? -INTRODUCTORY ISSUES FOR CHARTER EXCLUSIONS: On which Grant framework rests -INTERESTS PROTECTED BY CHARTER RIGHTS: Exist in hierarchy & occurs in degrees INTEREST CHARTER MORE SERIOUS <------------------------------->LESS SERIOUS Freedom to make ss.9 & Overt coercion Subtle Casual meaningful & 10(b) Coercion conversation informed choice (Grant) Protection ss.7 & Interrogation Pointed Volunteered info against 10(b) questions testimonial self(Grant)

incrimination Privacy Bodily integrity

s.8 s.8

Search home

Forcibly take blood sample or dental impressions Human dignity s.8 Strip or body cavity search -MOST COMMON VIOLATIONS: -s.10(b) trips police up in failure to provide access to retain counsel without delay, cannot question until access granted -s.8: State must have reasonable & probable grounds to search place in which one has reasonable expectation of privacy -PRE-GRANT: CONSCRIPTIVE VERSUS NON-CONSCRIPTIVE EVIDENCE CATEGORIES -CONSCRIPTIVE: Evidence that conscripts D against himself -Includes statement & bodily evidence -Near irrebuttable presumption inadmissible -NON-CONSCRIPTIVE: Physical evidence NOT created by getting D to selfincriminate Ex. Drugs found in pocket searched in breach of Charter -Viewed as less serious Charter breach, presumptively admissible -PROF: Like old hearsay rules, approach was categorical but without providing certainty Ex. Crown would typically not even attempt s.24(2) argument to admit conscriptive evidence -CRITICIZED: -Almost irrebuttable presumption that conscriptive evidence was out which frustrated reliable bodily evidence, particularly breathalyzer samples, & ignored balancing that is called for in body of s.24(2) itself -Language of s.24(2) does not create such categories, & calls for balancing -Queens Prof STUART: Was against creating reliability test as would result in Charter being flouted in favour of reliable evidence -MODERN GRANT BALANCING TEST UNDER S.24(2): -EXCLUSION TEST: Only where inclusion would bring administration of justice into disrepute, balances probative/prejudice -Herbert: In circumstances, confession obtained in violation of s.7 right to silence would bring administration of justice into disrepute -PURPOSE OF S.24(2): Grant principles: 1. Must look to the long-term

Search car or business Forcibly take breath sample, fingerprint, iris recognition Plucking head hair

2. Prospective: Breach has already damaged administration of justice, exclusion seeks to avoid further damage 3. Not aimed at punishing police or providing compensation to D, looks to systemic concerns 4. Concerned with what signals courts are sending to public 5. Embraces maintaining rule of law -THREE LINES OF INQUIRY: Are balanced in Grant Test: 1. SERIOUSNESS OF CHARTER INFRINGING STATE CONDUCT -GOAL: To ensure courts do not send message that courts condone state deviation from rule of law -FACTORS: -Severity of misconduct -Degree of willfulness involved -ARGUE: Subjective assessment -Extenuating circumstances -Whether there is pattern of abuse MORE SERIOUS <------------------------------------------------->LESS SERIOUS Deliberate Honest but More Technical Good faith & obvious unreasonable substantial breach: Cop technical Charter mistake: breach, but on property breach: Cop breach: Negligence some good too late, but on property Wilful faith as was behaviour not too late as misconduct, reasonable unreasonable, watch bad faith mistake mere failure stopped Ex. Unclear to check time working. law as in Subjective Grant good faith & objective reasonable explanation 2. IMPACT ON CHARTER PROTECTED RIGHT OF D -GOAL: Ensure courts do not send message to public that individual rights are illusory -NOTE: Unlike with seriousness, the concern is with objective effect on actual protected interests -VIOLATION: One considered to have profound impact is statement obtained in violation of principle against testimonial selfincrimination 3. SOCIETAL INTEREST IN TRIAL ON THE MERITS -GOAL: Addresses issue that excluding evidence may bring administration of justice into disrepute -Broad inquiry into all circumstances with reliability & Crowns case as two main concerns

-RELIABILITY: Higher levels weigh more heavily in favour of admission, with lower levels going against admission -Thus reliability weighs more heavily against statement evidence than against bodily, non-bodily physical & derivative evidence -NOTE: Statement evidence likely excluded if violation occurs -Must have faith in police -IMPORTANCE OF EVIDENCE TO PROSECUTIONS CASE: -If whole case rests on highly unreliable evidence, then its inclusion would more likely bring administration of justice into disrepute -If highly reliable & case would otherwise collapse, more likely admissible -SERIOUSNESS OF OFFENCE IS NON-FACTOR: -Grant: SCC ambivalent about using seriousness as factor, only that it may be valid consideration but cuts both ways -Crown argued gun crime was serious offence & evidence should be admitted -Grant argued that seriousness of charge make it more necessary that rights be respected -FRAMEWORK OF ANALYSIS: Admission under Charter is two-step process: 1. Breach of Charter right must be established by D on BOP 2. Then Grant balancing test under s.24(2) -GRANT: Three cops questioning of Grant was psychological detention (reasonable person would conclude not free to go) -Since no reasonable suspicion, was arbitrary detention -Since cops did not know this, did not inform of right to counsel & ss.9 & 10(b) were violated -BALANCE: Under s.24(2) supports admission of gun -SUMMARY:

PRIVILEGE AGAINST SELF-INCRIMINATION: -RIGHT TO SILENCE: -CHARTER: -s.10(b): Does not mandate presence of defence counsel in interrogation (Sinclair) -s.24(2): Evidence obtained in violation of right to silence will only be excluded if admitting would bring admin of justice in disrepute according to Grant test -s.7: General right to silence at CL, onus to prove violation is on D on BOP -First recognized in Herbert -CHARRON in Singh: s.7 right to silence is a residual protection because: 1. Only triggered in detention 2. Functionally equivalent to confessions rule when detainee knows he is speaking to one of authority

-But confessions rule provides greater protections due to burden & standard of proof & categorical nature of outcome -Singh: As confessions rule not violated, no point conducting s.7 inquiry -Herbert: Undercover cop placed in Ds cell elicited confession which was excluded as it violated right to silence & admission would bring administration of justice into disrepute -NOTE: Can passively collect info though -VIOLATIONS: -CHARRON in Singh: Police persistence in continuing interview, despite repeated assertions by D that he wishes to remain silent, may raise strong argument that statement was not product of free will -FACTORS: 1. Vulnerability of D 2. Amount of times Ds refusal to speak was disregarded 3. How clearly the right not to speak was set out & re-emphasized 4. Length of time of interview -HELD: No violation of s.7, police must be effective in questioning -AFFIRMED: Sinclair: Interview not ended on word of D, nor by request for second call to lawyer (unless circumstances of charge have changed) -SILENCE & CL: -ABELLA in Turcotte: CL right to silence exists at all times against State -LAMER in Rothman: Generally no legal obligation for suspect to say anything -GENERAL RULE ON EVIDENCE OF SILENCE: -Cannot use silence as evidence of guilt as has no probative value & is inadmissible (Turcotte) -EXCEPTIONS: -Upon CE, can raise failure to make statement to police on theory that right to silence must yield to right to make full answer & defence in response to Co-Ds accusation in testimony (Crawford) -Evidence of refusal to answer questions admissible as part of narrative (Turcotte) -NOTE: Like exception to rule against admitting PCS (Ay) -Evidence of silence admissible where D fails to disclose alibi in timely manner (Cleghorn) -OPENING THE DOOR PRINCIPLE: -Evidence of silence admissible to rebut Ds attempts to emphasize his cooperation (Lavallee) -Evidence of silence admissible to rebut Ds claim to have denied charges against him at time of arrest (Ouellette)

-Evidence of silence admissible where defence theory is mistaken ID & flawed police investigation (MCW) -LIMITING INSTRUCTION: If admitted as probative to issue, then clear limiting instruction needed to inform jury not to use info inappropriately, such as for evidence of guilt -PROTECTION OF A WITNESS: s.13 Charter -PURPOSE: Dubois; Henry -To protect individuals, in context of s.11(c)(d) from being indirectly compelled to incriminate themselves -s.11(c): Protects D from self-incrimination -ss.13, 15 & 17: Prohibit such Ds witness testimony being used against him -Generally prohibits in/direct evidence that arises unless otherwise discoverable -MEANING OF INCRIMINATE: -Nedelcu: Only completely innocuous evidence acting as mere factor in array of factors indicating credibility -VOLUNTARY WITNESS: -Henry: Witness-D at first trial is at both trials a voluntary rather than compelled witness & therefore does not offer same quid pro quo for protection -HISTORY: -Mannion: SCC did not distinguish between volunteer & compelled D. CE calculated to incriminate witness of either type was violation of s.13 -Kuldip: Unlike Mannion, Crown merely tried to impeach credibility of D, not a violation of s.13 -Noel: D compelled to testify at other trial, changed story in own trial, on CE Crown entered Ds PS -Violated s.13 under Mannion as CE used to incriminate, not merely impeach credibility -OBITER: Narrowed Kudlip CE such that credibility could only be impeached if PS put to D was innocuous regarding guilt at both first trial & current trial -Henry: OVERTURNED Mannion & invalidated Noel opportunity to CE on innocuous detail to impeach credibility -Now results of non-Mannion cases still good law, but reasoning for such results would be different post-Henry -Nedelcu: Only completely innocuous evidence acting as mere factor in array of factors indicating credibility -OVERRULES prohibition on innocuous CE in Henry, reinstates Noel -COMPELLED TESTIMONY: -General right to silence at CL (Turcotte) but CL can be overridden by statute explicitly allowing compelled testimony

-Constitutional right to silence under s.7 which arises in context of criminally accused (Singh; Herbert) -ORDINARY WITNESS: Any protection? -Statutory compulsion to testify engages LIBERTY INTEREST under s.7, which can only be infringed in accordance with PFJ -Re Application: Emphasizes right against self-incrimination is PFJ, thus leading to evidentiary immunity for those compelled to speak -D AS WITNESS: Evidentiary immunity for D compelled to testify: Re Application 1. USE IMMUNITY: Cannot use compelled testimony as evidence against witness in subsequent proceedings 2. DERIVATIVE USE IMMUNITY: More forceful immunity under Re Application & Brown than as balancing factor in Grants introduction of derivative evidence -Re Application: Immunity absolute: Evidence derived from compelled testimony CANNOT be used, even if otherwise discoverable -COUNTER: Crown can prove evidence otherwise discoverable in Grant 3. S.7 PROTECTION: Where compulsion predominately used to obtain evidence for prosecution of witness, D is protected -Re Application: s.7 NOT engaged as no evidence purpose of investigation was to obtain evidence for prosecution of compelled D -ARGUE: Court took Crowns word there was valid state purpose -PRIVILEGE ATTACHING TO CONFIDENTIAL RELATIONSHIPS -CLASS PRIVILEGE: -BINNIE in National Post: Anything less than blanket confidentiality would fail to provide necessary assurance to client or police informant to do job required by administration of justice -More important than search for truth -New classes may only be made by Parliament Ex. Spousal communications under s.4(3) CEA -INFORMANT PRIVILEGE: Not discussed -SOLICITOR-CLIENT PRIVILEGE -WHAT: Almost irrebuttable presumption that privileged communications are not compellable -Has constitutional dimensions -CRITIC: Judges are giving special status to legal profession because they are members -COUNTER: How do you determine Journalists?

-EXTENT OF PRIVILEGE: Applies to all privileged relationship communications -TEST: Not all communications are privileged, must be of legal nature: 1. Communications between lawyer & client 2. Intended to be confidential 3. For purpose of obtaining legal advice -WAIVER OF PRIVILEGE: Only by client & can be explicit or implicit such as when client puts content of communications in issue (Shirose; Brown; National Post) -OPENING THE DOOR: -Shirose: Implicit waiver occurred as RCMP implied contents of privileged communications supported its claim to have acted in good faith -Mere consultation simply narrative, does not open door, but cannot then wield its contents as a sword -Brown: Implicit as Benson exposed solicitor-client communication to girlfriend -EXCEPTIONS: 1. FUTURE CRIMES & FRAUD (Shirose) -NO EXCEPTION for criminal communications or legal advice to aid crime BUT privilege not automatically destroyed, MUST SHOW: -Client knowingly pursued criminal purpose, AND: -Lawyer provided advice to aid as dupe/conspirator -TO DEFEAT PRIVILEGE: BINNIE in Shirose -Prior knowledge on part of client can prevent S-C privilege from coming into existence -Criminal intent formed subsequent to advice could defeat S-C privilege 2. INNOCENCE AT STAKE -Brown: Merely showing evidence from privileged communications is better than other evidence is NOT enough -THRESHOLD QUESTION: McClure; Brown 1. Info sought from SC communication must be unavailable from any other source, AND: 2. D must be otherwise unable to raise reasonable doubt -TEST FOR INNOCENCE AT STAKE: McClure -STAGE 1: D seeking production must demonstrate evidentiary basis to conclude communication exists which COULD raise reasonable doubt as to guilt

-STAGE 2: Then, TJ must examine communication to determine whether it is LIKELY TO raise reasonable doubt -WHEN PRIVILEGE YIELDS TO INNOCENCE: Brown -Court must perceive blatant risk of miscarriage of justice to yield -Privilege holders whose communications are disclosed are protected by s.7 principle against self-incrimination -Use & Derivative Use immunity -NOTE: NOT transactional immunity which grants total immunity from prosecution for any crimes disclosed in communications, regardless of whether otherwise discoverable -CASE-BY-CASE PRIVILEGES: -WHAT: Communications not under CLASS privilege are presumptively compellable & admissible unless otherwise determined case-by-case -WIGMORE CRITERIA: Burden on party resisting disclosure to show: National Post 1. Communication arose in confidence it would not be disclosed 2. Confidence essential to relationship in which communication arose 3. Relationship is one that must be fostered in public good -SCC: Patient/Doc/Counselor, Reporter/Source etc often meet these 3 4. Public interest served by keeping communication secret outweighs public interest in accessing truth, INCLUDES: -Nature & seriousness of offence -Probative value of evidence sought to be obtained -Public interest in respecting confidence -Underlying purpose of investigation -JOURNALISTIC PRIVILEGE & SEARCH WARRANTS: National Post -BINNIE held that case-by-case privilege, when applied to journalistic secret sources, is not necessarily limited to testimony -Can also be asserted against search warrant