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THE UNIVERSITY OF BRITISH COLUMBIAFACULTY OF LAW

FINAL EXAMINATION - SPRING 2015

LAW 476.002EVIDENCE

Professor Harris

TOTAL MARKS: 100

TIME ALLOWED: 3 HOURS (and ten minutes of readingtime)

NOTE: 1. This is a closed book examination, butstudents may bring to the exam two double sided, or foursingle sided, letter-sized pieces of paper with notes.

2. THIS EXAMINATION CONSISTS OF 4QUESTIONS. ANSWER ALL 4 QUESTIONS.

LAW 476Page 2/4

Ouestion 1 (40 Marks)

A convenience store was robbed, and the store cashier said that the robber wore a mask andthreatened him with a rifle. There was surveillance video from the parking lot outside of thestore which showed two persons in a car arriving around the time of the robbery. It was notpossible to see any of the features of the persons in the car. The video showed the license plateof the car which was found to be registered to a Saul Sanders. A week later, the police phonedSanders and asked if he had been at the convenience store on the night the robbery occurred.Sanders said he had not, and that a friend had borrowed his car for the night. The police toldSanders that they thought he was lying, and that they had seen video which showed him drivingup to the convenience store. The police told Sanders that they did not think he was the one thatrobbed the store, and that he had to stop covering up for his friends. Sanders then stated to thepolice as follows:

I was in my car with my friend Bill Bobby last night. Bobby and I do a lot of gambling,and lately we have been losing lots of money. Bobby suggested that we rob aconvenience store. I told Bobby that I would drive him to the store, but that there was noway I was going in the store with him. A month ago, Bobby and I were in a restaurantwhich had provided us with bad service, and Bobby pulled out a gun and told themanager to give him a thousand dollars. When the manager had trouble fmding enoughmoney, Bobby started beating the manager in the head. This scared me to death, so Irefused to agree to go inside the convenience store with Bobby. I drove Bobby to thestore, and he put on a mask and went into the store alone.

The police took notes of this statement. They decided not to charge Sanders, and charged BillBobby with the robbery. Bobby’s trial was delayed due to problems with his defence counsel,and his jury trial began four years after the incident. The first Crown witness called wasSanders, and he was asked what he was doing on the night the robbery occurred. Sanderstestifies as follows:

I remember Bobby and I were in a car going somewhere, but I forgetthe details. I remember being interviewed by the police but I cannotremember what happened with Bobby and I that evening.

Crown counsel is very concerned about this testimony, and wishes to get into evidence whatSanders told the police. What steps can the Crown take, and do you think they will besuccessful? Please also comment on any jury instructions which the trial judge may needto provide in regard to Sanders’ evidence if the Crown is successful in having what Sanderstold the police admitted at trial.

LAW 476Page 3/4

Question 2 (40 Marks)

Ben Brick, a salesperson at a mobile phone store, is charged with the murder of Vince Victim.Victim sells drugs and Brick used to buy drugs from him. However, a year ago Brick joined arecovery program for addicts, and he was able to get off drugs. As part of the program, Brickattended meetings with other recovering addicts where they share challenges they are facing inattempting to stay off drugs.

Vince Victim was found shot to death in his apartment in the afternoon of June 17, 2014. Thenext day, the police viewed surveillance footage from outside the apartment building whichshowed Brick entering the building just before the shooting and leaving the building just after theshooting. When the police saw the footage, one of the officers recognized Brick because she hadjust bought a phone from the store where Brick worked. The police officers went to the storeand asked Brick if they could talk to him about a killing that happened yesterday. Brick said hewas busy and asked if they could talk later. The police officers said this was a very importantmatter, and that they should talk outside the store. The police officers and Brick went outside thestore, and the police officers told Brick that it seemed that he was in an apartment building whena killing occurred, and asked what he knew about it. Brick then stated as follows:

I went to the apartment of Vince Victim yesterday. Victim had heard I was off drugs andhe phoned me and asked me to come to his place. I went over and I told him I was in adrug recovery program and it was working very well. I told him the program was basedin a community centre near his apartment, and that he should join it. Victim then seemedto get really upset and he said that I was acting like I was better than him. Victim pulledout a gun. At that point I grabbed the gun from him and Victim ended up getting shot.

After hearing what Brick said, the police arrested him for murder. A couple of days later, thepolice then went to the community centre near Victim’s apartment, and asked to see anyone atthe centre involved with a drug recovery program. Sarah Smith helps coordinate the programand she sits in on the group meetings to facilitate discussion. Smith came to talk to the police.The police told her that they had arrested Brick for a murder which took place on the afternoonof June 17, and that they wanted any information she had about Brick. Smith remembers thatthere was a meeting of the drug recovery program participants on the evening of June 17 whichBrick attended. Smith remembers that Brick was extremely upset that night, was cryingconstantly, and then Brick asked if he could stay at her place for a while. Smith did not tell thisinformation to the police, and said she would rather not speak to them.

1. Do you think the statement by Brick to the police will likely be admissible in hismurder trial? Please explain why or why not.

2. Do you think the Crown will be able to call Smith as a witness to provide herrecollections of Brick at the June 17 meeting? Please explain why or why not.

LAW 476Page 4/4

Question 3 (10 Marks)

Comment on the accuracy of the following statement:

The law of evidence treats the evidence of Vetrovec witnesses and alleged confessionsfrom Mr. Big operations similarly.

Question 4 (10 Marks)

Comment on the accuracy of the following statement:

If a party wants to adduce expert evidence which has some frailties in its reliability, thenit is likely to be inadmissible at trial due to these frailties.

END OF EXAMINATION

‘1

EVIDENCE 476.002COURSE OUTLINE - SPRING 20151

Professor Nikos Harrisnharris@law.ubc.caOffice: 344 Allard Hall

Required MaterialsText: Evidence: Principles and Problems, 10th Edition, CarswellSupplemental Case Book CE-mailed)Canada Evidence Act: http://canlii.calt/7vf5Web cases: Canlii: http://www.canlii.org/enl

Recommended MaterialsPaciocco and Stuesser, The Law of EvidenceHarold Cox, Criminal Evidence HandbookEwaschuk, Criminal Pleadings and Practice in CanadaMcWilliams, Canadian Criminal EvidenceWatt’s Manual of Criminal EvidenceSteward et al. Evidence: A Canadian Casebook

Evaluation100%, 3 Hour Closed Book Examination. Students may only bring tothe exam two double sided sheets of notes. Students will be providedin the exam with the course outline and excerpts from the table ofcontents of the course text.

E-Mails Re Course MaterialShould be in reasonable proximity to the relevant lecture. No e-mails regarding coursematerials after the last lecture.

Lecture RecordingLectures may not be recorded without prior permission from Professor Harris.

Lecture I

Introduction to Evidence

• A Qualified Search for the Truth: pp. 1-14• The Adversarial System of Trial: pp. 1-14

Please watched the PBS Frontline Documentary “Death By Fire” found athttp://www.pbs.orglwgbhlpages/frontline/death-by-fire/

This Course Outline is an approximation of the materials we will be covering, as certain alterations orediting of the Outline may occur during the course.

1

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Lecture II

Critical Contexts for Determining Evidentiary Issues

• Assessing Probative Value and Prejudicial Effect: pp. 157-164, 187-189,192-195; R. v. Arp; R. v. F.F.B.

• The Burden of Proof: pp. 64-76

Lecture III

Types of Evidence

• Direct / Circumstantial: 75-81

• Real Evidence: Objects, Photos, Videos, Documents: pp. 392-404, R. v.Penney; R. v. Kinkead;

• Demonstrative Evidence: pp. 411-422

Lecture IV

Extrinsic Misconduct Evidence: Bad Character of the Accused

• General Inadmissibility: pp. 2 19-236; R. v. Cuadra

• Evidence of Habit and Similar Acts: pp. 211-219, 256-274; 283-284

Lecture V

Post Offence Conduct: White v. The Queen; R. v. Peavoy; R. v. S.B.C.; pp. 8 1-87

Lectures VI, VII

Bad Character of the Witness

• Canada Evidence Act (CEA), Section 12; pp. 623-624; R. p. Cullen

• The Vetrovec Witness: R. v. Murrin; pp. 661-671

Identification Evidence: R. v. Gonsalves

Judicial Notice: R. v. Daley, 2008 NBQB 21 (obtain from web)

2

Lectures VIII-X

Opinion Evidence

• Statutory Rules: pp. 972-977

• Common Knowledge: pp. 87 1-878

• General Rules for Experts: pp. 878-887

• Necessity: pp. 918-922, 941-949

• Ultimate Issue: pp. 953-955; R. v. Llorenz

• Foundation: pp. 955-967

• A New Framework for Admissibility: pp. 899-9 14

Lectures XI-XIII

Witnesses

Ability to Testify

• Competence, Oaths, and Compellability of Witnesses: CEA, Sections 13-16.1,pp. 424-46 1

Order of Witnesses: pp. 577-5 80

Direct Examination

• Leading Questions: pp. 532-539

• Refreshing a Witness’s Memory: pp. 539-548

Lectures XIV

Cross-Examination: CEA, Section 10; pp. 557-571

Re-Examination: R. v. Sipes

Collateral Facts / Rebuttal Evidence: pp. 57 1-576

3

Lectures XV-XVI

Statement Evidence

• Prior Inconsistent Statements: pp. 638-653

• Attacking Credibility of Own Witness: CEA, Section 9(1) and 9(2); pp. 591-

600; R. v. Milgaard; R. v. Mclnroy and Rouse

Lectures XVI-XVIII

Hearsay

• What is Hearsay: pp. 690-695• Non Hearsay Uses: R. v. Baltzer

Traditional Hearsay Exceptions

• Declarations Against Interest, Dying Declarations, Dying Declarations,Declarations in Course of Duty: pp. 779-789

• Spontaneous Declarations: 808-816• State of Mind, Statements of Intent: R. v. Panghali; pp. 804-807

• Oral History in Aboriginal Title Cases: pp. 408-411

The Principled Approach: pp. 709-7 19, 722-746

Statutory Exceptions

• Business Records: CEA, Section 30; R. v. Wilcox• Prior Testimony: pp. 796-80 1

Lectures XIX-XX

Admissions and Confessions

Formal Admissions: pp. 343-348

Informal Admissions

• Probative Value: pp. 190-191, 758-765; R. v. Hart 2014 SCC 52 (obtain fromweb)

• Voluntariness Rule: 831-844• Admissions of Co-Accused: R. v. Grewall

4

Lecture XXI

Exclusion of Evidence Under the Charter

• Section 24(2) of the Charter: R. v. Grant

Lectures XXII-XXIV

Privilege Against Self-Incrimination

• Police Custody: pp. 847-860

• Out of Custody: pp. 507-5 14, 522-524

• Witnesses: pp. 488-499

• Statutory Obligations: pp. 503-507; Application Under Section 83.28 of theCriminal Code

Privilege Based on Confidential Relationships

• Class Privilege - Solicitor-Client: pp. 982-991, Spousal, Section 4, CEA

• Other Confidential Relationships: pp. 978-982

• Exceptions: pp. 1001-1017

5

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TABLE OF CONTENTS

Preface to Tenth Edition.iii

Chapter) INTRODUCTION 1

I. THE ADVERSARY SYSTEM(a) Not a Scientific Inquiry(b) Truth and Justice: Competing Goals? 2

R. v. i4ullins- Johnson 7Lisa Dufrairnont, Evidence Law and the Jury 8

(C) The Role of the Trial Judge 10R. v. Liwes 1

2. LEGAL ETHICS 14R. v. Felderhof 15R. v. Murray 20Cowles v. Balac 25

3. SOURCES 27R. v. Salituro 27

4. CODIFICATION 29Arguments for a Comprehensive Statement 30Arguments Against a Comprehensive Statement 3 1

5. APPLICABILITY OF LAWS OF EVIDENCE 33

Chapi’er 2 BURDENS OF PROOF AND PRESUMPTIONS 41

1. BLJRDENSOFPROOF 41(a) Terminology 41(b) Allocation of Burdens 43

(i) CivilCases 43Fontaine v. insurance Corp. of British ‘olumbia 44Peart v. Peel (Regional Municipality) PoliceServices Board 46

(ii) CriminalCases 51Expediency 52Facts Peculiarly Within Knowledge of Accused 53

(c) Measure of Burden of Persuasion 55(i) Balance of Probabilities Standard for Civil Cases 55

F.H. v. McDougall 55(ii) Reasonable Doubt Standard for Criminal Cases 62

I?. v. Lifchus 62R. v. Starr 64

(iii) Choosing Between Competing Versions 65

vii

viii TABLE OF CONTENTS

P. v. W. (D.) 66P. v. S. (1ff.) 66

PROBLEM 72(iv) Considering Individual Pieces of Evidence 72

P. v. ?vlorin 72(v) Direct and Circumstantial Evidence 75

P. v. &iunoz 76R. v. W1,ite 8 1P. v. Whitman 87P. v. ffanemaaver 92

(vi) Kodge’s Case 96P. v. Tombran 99

(vii) Preliminary Findings of Facts 103P. v. Evans 103P. v.Arp 103

(d) Measure of Evidential Burden 104(i) Criminal Cases 104

U.S.A. v. Sheppard 104Ajonteleone V. P 105P. v. Quercia 106R. v. Arcuri 108United States v. Ferras I 11

PROBLEM 114R. v. Cinous 115

(ii) CivilCases 119canada (A. G.) v. La,ne,nan 119FL Receivables Trust v. Cobrand Foods Ltd 121

PROBLEMS 123

2. PRESUMPTIONS 124(a) Introduction 124(I,) False Presumptions 126

P. v. iVicholl 128PROBLEMS 131(c) True Presumptions 132(d) Presumption of Innocence and Charter 136

P. v. Oakes 137P. v. Chaulk 144P. v. Downev 147P. v. Laba 148P. v. Curtis 152

PROBLEMS 154

TABLEOFCONTENTS ix

Chapter 3 RELEVANCE AND DISCRETION TO EXCLUDE 157

RELEVANCE 157(a) Tests 157

Morris v, R 159(b) Materiality 162Cc) Multiple Relevance 163Cd) Relevance and Social Context 163

R. i,. Lavallee 164R. v. S. (R.D.) 166

2. DISCRETION AND LAW OF EVIDENCE 176(a) Introduction 176(b) Discretion to Exclude 178

(i) Reading in 179Corbeft v. R 179

(ii) Balancing Probative Value and Prejudicial Effect 187R. v. Seabover 187R. v. Hunter 190Anderson v. Maple Ridge (District) 192

(iii) Assessing Trial Fairness 195R. v. Harrer 195R. i,. White 202

(iv) Bringing Administration of Justice into Disrepute (Charter, s.24(2)) 203

PROBLEMS 207

Chapter 4 CHARACTER EVIDENCE AS TEST CASE OFRELEVANCE AND DISCRETION 211

I. HABIT 211Belknap v. Meakes 212R. v. Watson 213Devgan t’. College of Physicians & Surgeons (Ontario) 2 16R. v. B.(L.) 218

2, CHARACTER 219(a) Admissible as Directly Relevant to Material Issue or as

Evidence of Disposition (Propensity) 219R. v. W. (L.) 220R. v. Johnson 221

(b) Underlying Assumptions Grounding Character Evidence 222R. v. Clarke 223

TABLE OFCONTENTS

(C) Character of Parties in Civil Cases 223Rawdah v, Evans 224Robertson v. Edmonton (Cit’,) Police Service 225

(ii) Character of Accused in Criminal Cases 227(i) Good Character Evidence 227

R. v. Profit (Ont. CA.) 228R. v. Profit (S.C C) 229

(ii) Bad Character Evidence 229R. v. Handy 230

(iii) When Does an Accused Put Their Character in 1ssue 232R. v. P. (NA.) 234R.v.A.(W.A.) 236

(iv) How Character May be Proved 237R. v. Levasseur 239R. v. Brown 241

(v) Warnings to Jury 242PROBLEMS 243(e) Similar Facts 244

(i) Need for Connection Between Previous Acts and Accused 248Sweitzer v. R 248R. v. Millar 249

(ii) How are Similar Facts Relevant? 251R. v. B.(C.R.) 251R. v. Arp 256R. v. Handy 262R. v. Blake 274R. v. Titinus 275R. v. Shearing 276

PROBLEMS 281(iii) Civil Cases 283

John.con v. Bugera 283S. (R.C.M.) v. K. (G.M.) 285

PROBLEMS 287(1) Character of Third Party/Co-Accused 288

R. v. Khan 289(g) Character of Victim 292

(i) Self-defence 292(ii) Sexual Assault 294

Common Law 296Charter of Rights 299

R. v. Seaboyer 299New Legislation— Bill C-49 314

R. v. Crosby 316R. v. Darrach 319R. v. Temertzoglou 325

TABLE OF CONTENTS .i

R.v.A.(No.2) 328Michelle Anderson, Time to Reform Rape Shield Laws.. 331

PROBLEMS 339

ChapterS MECHANICS OF PROOF 343

A. Iatters No Requiring Proof 343

I. FORMAL ADMISSIONS OF FACT 343Castellani v. R 343R. v. Proctor 345R. v. G. (D.M.) 349R. v. Baksh 351

2. JUDICIAL NOTICE 354(a) Introduction 354(b) Disputed Boundaries of Judicial Notice 355

Daishowa Inc. v. Friends of the Lubicon 361R. v. Lavallee 363R. v, 1ialott 366Moge v. iWoge 369Crank v. C’anadian General Insurance Co 373

(c) Spence: Revised Standards 377R. v. Spence 377CTV Television v. The Queen 385

PROBLEMS 387(d) Judicial Notice of Law 388

R. v. Smith 390

B. Real Evidence 392

I. AUTHENTICATION 392PROBLEMS 395

2. PHOTOGRAPHS AND VIDEOTAPES 396R. v. Scha[fner 396R. v. iVikolovski 398

PROBLEM 402

3. DOCUMENTS 402

4. BEST EVIDENCE RULE 403R. v. Cotroni 404R. v. Morgan 406

ii TABLE OF CONTENTS

5. ABORIGINAL RIGHTS 408Delgamuukw v. British Columbia 408Mitchell v. canada (M.N.R.) 409

6. DEMONSTRATIVE EVIDENCE 411R. v. Macdonald 412McCutcheon v. Chiysler canada Ltd 417R. v. Collins 420

7. VIEWS 422

C. Witnesses 424

I. COMPETENCE AND COMPELLABILITY 424(a) Introduction 424(b) Oath 424

R. v. Kalever 426R. v. Wiebe 428

(c) Age 430R. v. W. (R.) 431Nick Bala et al, Bill C-2: A New Law for Canada’s ChildWitnesses 434R. v. Levogiannis 444

(d) Mental Capacity 447Canada Evidence Act, s. 16 447R. v. Parrott 447R.v.L(D.) 450

(e) Interest 466Evidence Acts 467

(f) Spousal Competence and Compellability 468(i) General Rule 468

R. v. C’outure 468(ii) Common Law Exception 471

R. v. McGinty 472R. v. Moore 475

(iii) Who Es a Spouse 477R. v. Salituro 477R. v. Hawkins 481R. v. Martin 483

(iv) Reform 485R. v. Couture 487

(g) Compellability of Accused 488(i) History of Privilege Against Self-incrimination 488(ii) Canada Evidence Act 490(iii) Sections 11(c) and 13 of Charter 491

TABLE OF CONTENTS xiii

R. v. iVedelcu 493PROBLEMS 499

Knutson v. Registered Nurses Assn. (Sask.) 499(iv) Pre-trial Right to Silence: Charter, s. 7 500

Hehert 500(v) Principle Against Self-incrimination: Charter, s. 7 503(vi) No Adverse Inference from Pre-crial Silence 507

R. v. Turcotte 507(vii) No Adverse Inference from Trial Silence 513

R. v. Noble 514(viii) Comments on Accused’s Failure to Testify 519

R. v. Prokoflew 522PROBLEMS 526

(ix) Reform 527(h) Compeflability of Corporate Officers 530

R. v. Arnway Corp 530

2. MANNER OF QUESTIONING 531(a) Leading Questions 532

R. v. Rose 535(b) Refreshing Memory/Past Recollection Recorded 539

R. v. Wilks 539R.v.B.(K.G.) 544R. v. Mauls 546

PROBLEMS 548(c) Videotaped Statements by Children 549

R.v.L.(D.O,) 550R. v. F. (C. C.) 551

(d) Adoption 554R. v. McCarroll 554

(e) Cross-examination 557R. v. Lyule 559R. v. I?. (A.J.) 562

(f) Duty to Cross-examine (Rule in Browne v. Dunn) 566R. v. McNeill 566

(g) Collateral Facts Rule 571R. v. Krause 572R. v. Cassibo 575

PROBLEMS 576(h) Examination by Court and Order of Witnesses 577

R. v. P.(T.L.) 579

3. IMPEACHMENT 580(a) Prior Inconsistent Statements 581

Canada Evidence Act, ss. 10, 11 581(i) Impeaching One’s Own Witness 583

iv TABLE OF CONTENTS

Anderson v. Flying Saucer Driver — In Ltd 584R. v. Malik 586R. v. Osae 589

(ii) Canada Evidence Act, s. 9(I) 591R, v. Figliola 591

(iii) Canada Evidence Act, s. 9(2) 593R.v.S.(C’.L.) 594

PROBLEM 600(b) Bias 600

R. v. Chorvel 602(i) Motives of Accused and Complainants 604

R. v. Jackson 604R. v. Ellard 605R. v. Laboucan 606

(c) Character of Witness 611(i) Extrinsic Evidence 611

R. v. Clarke 612(ii) Evidence Elicited on Cross-examination 615(iii) Accusedas Witness 615

R.v.Jones 617Canada Evidence Act, s. 12 619R. v. McFadyen 623Hutton v. Way 624Ontario Evidence Act, s. 22 626R. v. Under’,vood 626

(d) Defects in Capacity of Witness 628

4. SUPPORTING CREDLBLLITY 630(a) General Rule Prohibiting 630

R. c. Beland 631(b) Exceptions 638

(I) To Rebut Allegation of Recent Fabrication 638R. v. Stirling 638R. v. Ellard 641

(ii) Prior Identification 642R. v. Tat 642

(iii) Part of Narrative 643R. c. Dinardo 643R. v. Curto 645

(iv) Exculpatory Arrest Statement 647R. v. Edgar 647

(v) Recent Complaint 651R. v. O’Connor 653

5. DEMEANOUR AS GUIDE TO CREDIBILITY 656R. v. Norman 657

T,\BLE OF CONTENTS xv

PROBLEMS 659

6. CORROBORATION 661(a) When Required9 661

(i) Treason 662(ii) Forgery 663(iii) Accomplices 663

Vetrovec v. R 664R. v. Khe!a 667

(iv) Informers 671R. v. Brooks 671

(v) Primary Witnesses in Sex Cases 674R.v.S.(F.) 676

(vi) Unsworn Evidence of Children 676R.v.S.(W.) 677R. v. 0. (A.) 680

(vii) Miscellaneous Provisions 681(b) What is Corroboration? 682

R.v.B.(G.) 682

Chapter 6 EXCLUSIONARY RULES 685

A. Character 685

B. Hearsay 685

I. THE RULE 685(a) History 685(b) Reason for Rule 689(c) Identifying Hearsay 690

R. v. Khelawon 693R. v. Baidree 695R. v. Tat 701R. v, Starr 702

PROBLEMS 705(d) Approaches to Hearsay 706

R. v. K/ian 709R. v. Smith 714R. v. Kharsekin 719R. v. Cassidy 721R. v. B. (K.G.) 722R. v. U. (F.J.) 7301?. v. Khelawon 733R. v. Blackman 744R. v. Devine 747

xvi TABLE OF CONTENTS

(e) Establishing Necessity 749R. v. Parrott 749Dodge v. Kaneff Hwnes Inc 755

2. EXCEPTIONS 758(a) Admissions 759

(i) Generally 759R. v. Phillips 760R. v. Srreu 762

(ii) Confessions 765(iii) Implied Admissions 766(iv) Statements Authorized by Party 767

R. v. Strand Electric Ltd 767(v) Statements of Person with Common Purpose 771

R. v. Maparci 773(b) Exceptions where Declarant or Testimony Unavailable 779

(i) Declarations Against Interest 779R. v. Deineter 780R. v. Lacier 781

(ii) Dying Declarations 782R. v. Aziga 783

(iii) Declarations in Course of Duty 786General 786

R. v. Larson 787Business Records 789

R. v. Martin 791R. v. L.(C.) 794

(iv) Former Testimony 796R. v. Potvin 797

PROBLEM $01(c) Exceptions Not Dependent on Availability of Declarant 801

(i) Declarations as to Physical Sensation 801(ii) Declarations as to Mental or Emotional State $02

R. v. Starr $04PROBLEM $08

(iii) Spontaneous Statements (Excited Utterances) $08R. v. Bedingfield 809R. v. Clark 809

C. Voluntary Confession Rule 816

I. COMMON LAW PRE-O!CKLE 816R. v. Sweeney $22R. v. Hodgson 823

2. REVISED APPROACH IN R. v. O!CKLE 831

TABLE OF CONTENTS .vii

R. v Oickle 83 1

3. THE PRE-TRIAL RIGHT TO SILENCE AND INTERROGATION 844R. v. Osnicr 844R. v. Singh 847

PROBLEMS 860

4. VIDEOTAPING OF INTERROGATIONS 862Should Confessions be Videotaped? $62

R. v. Moore-McFarlane 862R. v. Wilson 865

5. MIXED INCULPATORY AND EXCULPATORY STATEMENTS 869R. v. Rojas 869

D. Opinion Evidence and Experts 871

I. OPINION RULE 871Graatv.R 874

2. EXPERT EVIDENCE 878(a) Tests $80

R. v. Mohan 880R. v. J. (fL.) 885R. v. Trochyn 888R. v. Abbey 899

(b) Examples 914R. v. Terceira 914R. v. Mcintosh 918R. v. Olscarnp 922R. v. Marquard 925R. v. D. (D.) 927R. v. Thibat 935R. v. G.(P.) 938R. v. Di,nitrov 940R. v. Klyrnchuk 941R. v. Perleft 943R. v. Osmar 945R. v. Melaragni 949Nassiah v. Peel Regional Police Services Board 950

3. ULTIMATE ISSUE RULE 953R. v. Bryan 954

xviii TABLE OF CONTENTS

4. EXPERT OPINION BASED ON HEARSAY 955R. v. Jordan 956I?. v. Lava/lee 958R. v. Worrall 966Mizi v. Debartok 967

5. EXAMINING EXPERT 968(a) Hypothetical Questions 968(b) Use of’ Textbooks 969

R. v. Marquard 969

6. APPOINTMENT OF COURT EXPERTS 972

7. EXCHANGE OF EXPERTS’ REPORTS 975

E. Privilege 978

I. PRIVILEGED COMMUNICATIONS 978(a) Introduction 978

R. v. Gruenke 978(b) Solicitor-Client Privilege 982

(i) Generally 982Descoteaux v. Mierzwinski 983(‘anada (Privacy Commissioner) v. Blood TribeDepartment of Health 989Goodis v. Ontario (Ministry of correctional Services) 991Minister of National Revenue v. Newport PacificFinancial Group SA 993Blank v. canida (Minister of Justice) 994

(ii) Exceptions lootAirst v. Airsi toolStnith v. Jones 1004R. v. Mcclure 1010R. v. Shirose and campbell 1015Pritchard v. Ontario (Human Rights commission) 1017

(c) Marital Communications 1020R. v. Zyistra 1024

(d) Privilege for Without Prejudice Communications 1025Middelkanip v. Fraser Valley Real Estate Board 1025R. v. Paba,zi 1029R. v. Lake 1030

TABLE OF CONTENTS ix

2. PUBLIC INTEREST IMMUNITY 1033(a) Statutory Provisions 1033

(i) Section 38 — International Relations, National Defenceor National Security 1034

Canada (A.G.) v. Ribic 1034(ii) Section 39—Confidential Cabinet Materials 1045

Babcock v. Canada (Attorney General) 1045(b) Identity of Informers 1054

R. v. Leipert 1054Named Person v. Vancouver Sun 1061

3. CASE-BY-CASE PRIVILEGE 1066

4. BALANCING CHARTER VALUES 1068R. v. Mills 1071R. v. Shearing 10841l. (A.) v. Ryan 1094

Table of Cases 1103Index 1133

Canada Evidence Act

R.S.C., 1985, c. C-5

An Act respecting witnesses and evidence

SHORT TITLE

Marginal note:Short title

1. This Act may be cited as the Canada Evidence Act.

• R.S.,c.E-IOs.1.

PART

APPLICATION

Marginal note:Application

2. This Part applies to all criminal proceedings and to all civil proceedings and othermatters whatever respecting which Parliament has jurisdiction.

• R.S.,c.E-1O,s.2.

WITNESSES

Marginal note:lnterest or crime

3. A person is not incompetent to give evidence by reason of interest or crime.

• R.S., c. E-1O, s. 3.

Marginal note:Accused and spouse

4. (1) Every person charged with an offence, and, except as otherwise providedin this section, the wife or husband, as the case may be, of the person so charged, is acompetent witness for the defence, whether the person so charged is charged solely orjointly with any other person.

Marginal note:Accused and spouse

(2) The wife or husband of a person charged with an offence under subsection 136(1)of the Youth Criminal Justice Act or with an offence under any of sections 151, 152,153, 155 or 159, subsection 160(2) or (3) or 162.1(1), or sections 170 to 173, 179,215, 218, 271 to 273, 279.01 to 279.03, 280 to 283, 286.1 to 286.3, 291 to 294 or 329of the Criminal rode, or an attempt to commit any such offence, is a competent andcompellable witness for the prosecution without the consent of the person charged.

• Marginal note:Communications during marriage

(3) No husband is compellable to disclose any communication made to him by his

wife during their marriage, and no wife is compellable to disclose any communication

made to her by her husband during their marriage.

Marginal note:Offences against young persons

(4) The wife or husband of a person charged with an offence against any of sections

220, 221, 235, 236, 237, 239, 240, 266, 267, 268 or 269 of the Criminal Code where

the complainant or victim is under the age of fourteen years is a competent and

compellable witness for the prosecution without the consent of the person charged.

• Marginal note:Saving

(5) Nothing in this section affects a case where the wife or husband of a person

charged with an offence may at common law be called as a witness without the

consent of that person.

• Marginal note:Failure to testify

(6) The failure of the person charged, or of the wife or husband of that person, to

testify shall not be made the subject of comment by the judge or by counsel for the

prosecution.

• R.S., 1985, c. C-S. ,s. 4;

• R.S., 1985, c. 19(3rd Supp,). s. 17;

• 2002, c. 1, s. 166;

• 2014, c. 25, s. 34, c. 31, s. 27.

Previous Version

Jlarginal note:lncrlminating questions

5. (1) No witness shall be excused from answering any question on the ground

that the answer to the question may tend to criminate him, or may tend to establish his

liability to a civil proceeding at the instance of the Crown or of any person.

• Marginal note:Answer not admissible against witness

(2) Where with respect to any question a witness objects to answer on the ground that

his answer may tend to criminate him, or may tend to establish his liability to a civil

proceeding at the instance of the Crown or of any person, and if but for this Act, or the

Act of any provincial legislature, the witness would therefore have been excused from

answering the question, then although the witness is by reason of this Act or the

provincial Act compelled to answer, the answer so given shall not be used or

admissible in evidence against him in any criminal trial or other criminal proceeding

against him thereafter taking place, other than a prosecution for perjury in the giving

of that evidence or for the giving of contradictory evidence.

• R.S., 1985, c. C-5, s. 5;

• 1997,c. 18,s. 116.

Marginal note: Evidence of person with physical disability

• 6. (1) If a witness has difficulty communicating by reason of a physicaldisability, the court may order that the witness be permitted to give evidence by anymeans that enables the evidence to be intelligible.

• Marginal note:Evldence of person with mental disability

(2) If a witness with a mental disability is determined under section 16 to have the

capacity to give evidence and has difficulty communicating by reason of a disability,

the court may order that the witness be permitted to give evidence by any means that

enables the evidence to be intelligible.

• Marginal note:lnquiry

(3) The court may conduct an inquiry to determine if the means by which a witness

may be permitted to give evidence under subsection (1) or (2) is necessary andreliable.

• R.S., 1985, c. C-S. s. 6;

• 1998,c.9,s. 1.

Marginal note:ldentification of accused

6.1 For greater certainty, a witness may give evidence as to the identity of an accused

whom the witness is able to identify visually or in any other sensory manner.

• 1998,c.9,s. I.

Marginal note:Expert witnesses

7. Where, in any trial or other proceeding, criminal or civil, it is intended by theprosecution or the defence, or by any party, to examine as witnesses professional or other

experts entitled according to the law or practice to give opinion evidence, not more than five

of such witnesses may be called on either side without the leave of the court or judge orperson presiding.

• R.S., c. E-lO, s. 7.

Marginal note:Handwriting comparison

8. Comparison of a disputed writing with any writing proved to the satisfaction of thecourt to be genuine shall be permitted to be made by witnesses, and such writings, and the

evidence of witnesses respecting those writings, may be submitted to the court and jury asproof of the genuineness or otherwise of the writing in dispute.

• R.S.. c. E-1O, s. 8.

Marginal note:Adverse witnesses

• 9. (1) A party producing a witness shall not be allowed to impeach his credit bygeneral evidence of bad character, but if the witness, in the opinion of the court,proves adverse, the party may contradict him by other evidence, or, by leave of thecourt, may prove that the witness made at other times a statement inconsistent with hispresent testimony, but before the last mentioned proof can be given the circumstances

of the supposed statement, sufficient to designate the particular occasion, shall bementioned to the witness, and he shall be asked whether or not he did make thestatement.

Marginal note:Previous statements by witness not proved adverse

(2) Where the party producing a witness alleges that the witness made at other times astatement in writing, reduced to writing, or recorded on audio tape or video tape orotherwise, inconsistent with the witness’ present testimony, the court may, withoutproof that the witness is adverse, grant leave to that party to cross-examine the witnessas to the statement and the court may consider the cross-examination in determiningwhether in the opinion of the court the witness is adverse.

• R.S,, 1985, c. C-5, s. 9;

• 1994, c, 44, s. 85.

Marginal note: Cross-examination as to previous statements

• 10. (1) On any trial a witness may be cross-examined as to previous statementsthat the witness made in writing, or that have been reduced to writing, or recorded onaudio tape or video tape or otherwise, relative to the subject-matter of the case,without the writing being shown to the witness or the witness being given theopportunity to listen to the audio tape or view the video tape or otherwise takecognizance of the statements, but, if it is intended to contradict the witness, thewitness’ attention must, before the contradictory proof can be given, be called to thoseparts of the statement that are to be used for the purpose of so contradicting thewitness, and the judge, at any time during the trial, may require the production of thewriting or tape or other medium for inspection, and thereupon make such use of it forthe purposes of the trial as the judge thinks fit.

• Marginal note: Deposition of witness in criminal Investigation

(2) A deposition of a witness, purporting to have been taken before a justice on theinvestigation of a criminal charge and to be signed by the witness and the justice,returned to and produced from the custody of the proper officer shall be presumed, inthe absence of evidence to the contrary, to have been signed by the witness.

• R.S., 1985, c. C-5, s. 10;

• 1994, c. 44, s. 86.

.iarginal note:Cross-examination as to previous oral statements

11. Where a witness, on cross-examination as to a former statement made by him relative

to the subject-matter of the case and inconsistent with his present testimony, does not

distinctly admit that he did make the statement, proof may be given that he did in fact make it,but before that proof can be given the circumstances of the supposed statement, sufficient todesignate the particular occasion, shall be mentioned to the witness, and he shall be askedwhether or not he did make the statement.

• R.S.,c.E-lO,s, U.

Marginal note: Examination as to previous convictions

12. (1) A witness may be questioned as to whether the witness has beenconvicted of any offence, excluding any offence designated as a contravention underthe Contraventions Act, but including such an offence where the conviction wasentered after a trial on an indictment.

• Marginal note:Proof of previous convictions

(1.1) If the witness either denies the fact or refuses to answer, the opposite party mayprove the conviction.

• Marginal note: How conviction proved

(2) A conviction may be proved by producing

o (a) a certificate containing the substance and effect only, omitting the formalpart, of the indictment and conviction, if it is for an indictable offence, or acopy of the summary conviction, if it is for an offence punishable onsummary conviction, purporting to be signed by the clerk of the court orother officer having the custody of the records of the court in which theconviction, if on indictment, was had, or to which the conviction, ifsummary, was returned; and

o (b) proof of identity.

• R.S., 1985, c. C-5, s. 12;

• 1992, c. 47, s. 66.

OATHS AND SOLEMN AFFiRMATiONS

iarginal note:Who may administer oaths

13. Every court and judge, and every person having, by law or consent of parties,authority to hear and receive evidence, has power to administer an oath to every witness whois legally called to give evidence before that court, judge or person.

• R.S., c. E-1O, s. 13.

Jlarginal note:Solemn affirmation by witness instead of oath

• 14. (1) A person may, instead of taking an oath, make the following solemnaffirmation:

I solemnly affirm that the evidence to be given by me shall be the truth, the whole truth and nothing but the truth.

Marginal note: Effect

(2) Where a person makes a solemn affirmation in accordance with subsection (1), hisevidence shall be taken and have the same effect as if taken under oath.

• R.S., 1985, c. C-5. s. 14;

• 1994, c. 44,s, 87.

Marginal note:Solemn affirmation by deponent

15. (1) Where a person who is required or who desires to make an affidavit ordeposition in a proceeding or on an occasion on which or concerning a matterrespecting which an oath is required or is lawful, whether on the taking of office orotherwise, does not wish to take an oath, the court or judge, or other officer or personqualified to take affidavits or depositions, shall permit the person to make a solemnaffirmation in the words following, namely, “I, , do solemnly affirm, etc.”, and thatsolemn affirmation has the same force and effect as if that person had taken an oath.

• Marginal note: Effect

(2) Any witness whose evidence is admitted or who makes a solemn affirmation underthis section or section 14 is liable to indictment and punishment for perjury in allrespects as if he had been sworn.

• RS., 1985, c. C-5, s. 15;

• 1994, c. 44, s. 88.

Marginal note:Witness whose capacity is in question

16. (1) If a proposed witness is a person of fourteen years of age or older whosemental capacity is challenged, the court shall, before permitting the person to giveevidence, conduct an inquiry to determine

o (a) whether the person understands the nature of an oath or a solemnaffirmation; and

o (b) whether the person is able to communicate the evidence.

• Marginal note:Testimony under oath or solemn affirmation

(2) A person referred to in subsection (1) who understands the nature of an oath or asolemn affirmation and is able to communicate the evidence shall testify under oath orsolemn affirmation.

• Marginal note:Testimony on promise to tell truth

(3) A person referred to in subsection (1) who does not understand the nature of anoath or a solemn affirmation but is able to communicate the evidence may,

notwithstanding any provision of any Act requiring an oath or a solemn affirmation,

testify on promising to tell the truth.

• Marginal note:lnability to testify

(4) A person referred to in subsection (1) who neither understands the nature of an

oath or a solemn affirmation nor is able to communicate the evidence shall not testify.

• MargInal note:Burden as to capacity of witness

(5) A party who challenges the mental capacity of a proposed witness of fourteenyears of age or more has the burden of satisfying the court that there is an issue as tothe capacity of the proposed witness to testify under an oath or a solemn affirmation.

• R.S., 1985, c. C-5. s. 16;

• R.S., 1985, c. 19(3rd Supp.), s. 18;

• 1994, c. 44, s. 89;

• 2005. c. 32, s. 26.

Previous Version

Marginal note: Person under fourteen years of age

16.1 (1) A person under fourteen years of age is presumed to have the capacityto testify.

• Marginal note:No oath or solemn affirmation

(2) A proposed witness under fourteen years of age shall not take an oath or make asolemn affirmation despite a provision of any Act that requires an oath or a solemnaffirmation.

• Marginal note:Evldence shall be received

(3) The evidence of a proposed witness under fourteen years of age shall be received if

they are able to understand and respond to questions.

• Marginal note:Burden as to capacity of wItness

(4) A party who challenges the capacity of a proposed witness under fourteen years ofage has the burden of satisfying the court that there is an issue as to the capacity of theproposed witness to understand and respond to questions.

• Marginal note:Court inquiry

(5) If the court is satisfied that there is an issue as to the capacity of a proposed

witness under fourteen years of age to understand and respond to questions, it shall,

before permitting them to give evidence, conduct an inquiry to determine whether they

are able to understand and respond to questions.

• Marginal note:Promise to tell truth

(6) The court shall, before permitting a proposed witness under fourteen years of age

to give evidence, require them to promise to tell the truth.

• Marginal note:Understanding of promise

(7) No proposed witness under fourteen years of age shall be asked any questions

regarding their understanding of the nature of the promise to tell the truth for the

purpose of determining whether their evidence shall be received by the court.

• Marginal note:Effect

(8) For greater certainty, if the evidence of a witness under fourteen years of age is

received by the court, it shall have the same effect as if it were taken under oath.

• 2005,c.32,s.27.

Marginal note:Buslness records to be admitted in evidence

30. (1) Where oral evidence in respect of a matter would be admissible in a legal

proceeding, a record made in the usual and ordinary course of business that contains

information in respect of that matter is admissible in evidence under this section in the

legal proceeding on production of the record.

• Marginal note:lnference where information not in business record

(2) Where a record made in the usual and ordinary course of business does not contain

information in respect of a matter the occurrence or existence of which might

reasonably be expected to be recorded in that record, the court may on production of

the record admit the record for the purpose of establishing that fact and may draw the

inference that the matter did not occur or exist.

- Marginal note:Copy of records

(3) Where it is not possible or reasonably practicable to produce any record described

in subsection (1) or (2), a copy of the record accompanied by two documents, one that

is made by a person who states why it is not possible or reasonably practicable to

produce the record and one that sets out the source from which the copy was made,

that attests to the copy’s authenticity and that is made by the person who made the

copy, is admissible in evidence under this section in the same manner as if it were the

original of the record if each document is

o (a) an affidavit of each of those persons sworn before a commissioner or

other person authorized to take affidavits; or

o (b) a certificate or other statement pertaining to the record in which the

person attests that the certificate or statement is made in conformity with the

laws of a foreign state, whether or not the certificate or statement is in the

form of an affidavit attested to before an official of the foreign state.

• Marginal note: Where record kept in form requiring explanation

(4) Where production of any record or of a copy of any record described in subsection

(1) or (2) would not convey to the court the information contained in the record by

reason of its having been kept in a form that requires explanation, a transcript of the

explanation of the record or copy prepared by a person qualified to make the

explanation is admissible in evidence under this section in the same manner as if it

were the original of the record if it is accompanied by a document that sets out the

person’s qualifications to make the explanation, attests to the accuracy of the

explanation, and is

o (a) an affidavit of that person sworn before a commissioner or other person

authorized to take affidavits; or

o (b) a certificate or other statement pertaining to the record in which the

person attests that the certificate or statement is made in conformity with the

laws of a foreign state, whether or not the certificate or statement is in the

form of an affidavit attested to before an official of the foreign state.

• Marginal note:Court may order other part of record to be produced

(5) Where part only of a record is produced under this section by any party, the court

may examine any other part of the record and direct that, together with the part of the

record previously so produced, the whole or any part of the other part thereof be

produced by that party as the record produced by him.

• Marginal note:Court may examine record and hear evidence

(6) For the purpose of determining whether any provision of this section applies, or for

the purpose of determining the probative value, if any, to be given to information

contained in any record admitted in evidence under this section, the court may, on

production of any record, examine the record, admit any evidence in respect thereof

given orally or by affidavit including evidence as to the circumstances in which the

information contained in the record was written, recorded, stored or reproduced, and

draw any reasonable inference from the form or content of the record.

• Marginal note:Notice of intention to produce record or affidavit

(7) Unless the court orders otherwise, no record or affidavit shall be admitted in

evidence under this section unless the party producing the record or affidavit has, at

least seven days before its production, given notice of his intention to produce it to

each other party to the legal proceeding and has, within five days after receiving any

notice in that behalf given by any such party, produced it for inspection by that party.

• Marginal note:Not necessary to prove signature and official character

(8) Where evidence is offered by affidavit under this section, it is not necessary toprove the signature or official character of the person making the affidavit if theofficial character of that person is set out in the body of the affidavit.

• Marginal note: Examination on record with leave of court

(9) Subject to section 4, any person who has or may reasonably be expected to haveknowledge of the making or contents of any record produced or received in evidenceunder this section may, with leave of the court, be examined or cross-examinedthereon by any party to the legal proceeding.

• Marginal note:Evidence inadmissible under this section

(10) Nothing in this section renders admissible in evidence in any legal proceeding

o (a) such part of any record as is proved to be

• (1) a record made in the course of an investigation or inquiry,

a (ii) a record made in the course of obtaining or giving legaladvice or in contemplation of a legal proceeding,

• (iii) a record in respect of the production of which any privilegeexists and is claimed, or

a (iv) a record of or alluding to a statement made by a person whois not, or if he were living and of sound mind would not be,competent and compellable to disclose in the legal proceeding amatter disclosed in the record;

o (b) any record the production of which would be contrary to public policy;or

o (c) any transcript or recording of evidence taken in the course of anotherlegal proceeding.

a Marginal note:Construction of this section

(11) The provisions of this section shall be deemed to be in addition to and not inderogation of

o (a) any other provision of this or any other Act of Parliament respecting theadmissibility in evidence of any record or the proof of any matter; or

o (b) any existing rule of law under which any record is admissible in evidenceor any matter may be proved.

• Marginal note: Definitions

(12) In this section,

“business”affaires

“business” means any business, profession, trade, calling, manufacture or undertaking ofany kind carried on in Canada or elsewhere whether for profit or otherwise,including any activity or operation carried on or performed in Canada or elsewhere

by any government, by any department, branch, board, commission or agency of anygovernment, by any court or other tribunal or by any other body or authorityperforming a function of government;

“copy” and “photographic film”copie)) et pellicule photographique

“copy”, in relation to any record, includes a print, whether enlarged or not, from aphotographic film of the record, and”photographic film” includes a photographicplate, microphotographic film or photostatic negative;

“court”tribunal

“court” means the court, judge, arbitrator or person before whom a legal proceeding isheld or taken;

“legal proceeding”c procédurejudiciaire

“legal proceeding” means any civil or criminal proceeding or inquiry in which evidenceis or may be given, and includes an arbitration;

“record”pièce

“record” includes the whole or any part of any book, document, paper, card, tape orother thing on or in which information is written, recorded, stored or reproduced,and, except for the purposes of subsections (3) and (4), any copy or transcriptadmitted in evidence under this section pursuant to subsection (3) or (4).

• R.S., 1985, c. C-5, s. 30;

• 1994,c.44,s.91.

Jlarginal note:Definltions