Full Text:Volume 2

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Contents

Volume II: Evidence

Introduction to Evidence

Preface

This text was written as a reference on the law of evidence in criminal law. The audience for this text will be mostly criminal law practitioners, police officers, and law students, who need a convenient way to look up principles and case law. Where possible there are links to cited cases on CanLII for ease of reference.

As of this writing, this text remains a work in progress. Errors and omissions should be expected and so it is always recommended that source materials be consulted to confirm the contents of these materials.

Organization of the Section

This section is set out in three parts. First part covers the basic elements that make up the rules of evidence, such as basis for accepting evidence, burdens and standards of proof, as well as shortcuts to proof.

The second part cover the types of evidence the law recognizes. Specifically, oral, document or real evidence. These chapters cover the requirements for these types of evidence to be accepted into evidence, including competency of witnesses and authentication of certain types of evidence.

The final part covers the many rules that limit or exclude evidence. This includes a variety of principles from opinion evidence, character evidence, hearsay, admissions, and privilege.

The Law of Evidence

The law of evidence in Canada is not fixed nor it is enacted in a vacuum. It will "evolve with time".[1]

  1. R v Levogiannis, [1993] 4 SCR 475, 1993 CanLII 47 (SCC), per L'Heureux‑Dubé J

Basic Principles

Acceptance of Evidence

Introduction

In a criminal hearing, a trier of fact will generally determine facts based solely on admissible evidence given through witnesses, physical exhibits, and admissions by the parties.[1]The adversarial system depends on the production of evidence by parties in order to guarantee "its sufficiency and trustworthiness".[2] It is not for the judges "go looking for evidence" and it is irrelevant that other relevant materials may exist out there that was not adduced.[3]

Evidence provides a means of allowing facts to be proved for the purpose of deciding issues in litigation. The trier of fact may only consider evidence that is admissible, material and relevant. Even then, evidence that creates undue prejudice may nonetheless be ruled inadmissible.

The purpose of the rules of evidence are to permit the trier-of-fact to "get at the truth and properly determine the issues".[4]

Onus
A judge may only base a decision on "evidence presented at trial, except where judicial notice may be taken" or any other findings permitted under the Code.[5]

The party seeking to tender evidence must meet the necessary threshold requirements of admissibility before it can be considered.[6]

Requirements Before Acceptance
For a trier-of-fact to receive evidence, the judge must be satisfied that the evidence is:[7]

  1. relevant,
  2. material,
  3. not barred by rules of admissibility, and
  4. not subject to discretionary exclusion.

Once relevance and materiality is established, the evidence is admissible except where captured by an exclusionary rule.[8]

While the rules of evidence always apply to criminal matters, courts are entitled to be flexible with the evidence rules in order to "prevent miscarriages of justice".[9]

Objection to Acceptance of Evidence
On application to exclude evidence, counsel should be required to "state with reasonable particularity the grounds upon which the application for exclusion is made".[10]

Consent to Admit
The existence of consent between the parties to admit evidence will generally the judge to accept the evidence irrespective of its lawful admissibility unless it impacts trial fairness.[11]


Appellate Review
The admissibility of evidence is a question of law and is reviewable on a standard of correctness.[12]


  1. R v VHM, 2004 NBCA 72 (CanLII), per Ryan JA citing McWilliams, Canadian Criminal Evidence 4th Ed. (Aurora, Ont. Canada Law Book Inc, 2004 at para 23:10)
  2. VHM, ibid.
  3. UK: Shortland v Hill & Anor [2017] EW Misc 14 (CC) at para 20
  4. R v Seaboyer; R v Gayme, [1991] 2 SCR 577, 1991 CanLII 76 (SCC), per McLachlin J ("fundamental to our system of justice that the rules of evidence should permit the judge and jury to get at the truth and properly determine the issues."
  5. R v Bornyk, 2015 BCCA 28 (CanLII), per Saunders JA at para 8 - judge improperly relied on academic articles not in evidence
    see also R v RSM, 1999 BCCA 218 (CanLII), per Finch JA at para 20
    R v Cloutier, 2011 ONCA 484 (CanLII), per Weiler JA
  6. R v Johnson, [2010] OJ No 4153, 2010 ONCA 646 (CanLII), per Rouleau JA, at para 90
  7. R v Candir, 2009 ONCA 915 (CanLII), per Watt JA at para 46 - requires evidence be (1) relevant (2) material (3) admissible
    R v Cyr, 2012 ONCA 919 (CanLII), per Watt JA at para 96 - sets out the four points of admissibility
    see also R v Zeolkowski, 1989 CanLII 72 (SCC), [1989] 1 SCR 1378, per Sopinka J
    R v Watson, 1996 CanLII 4008 (ON CA), 108 CCC (3d) 310, (Ont. C.A.), per Doherty JA
  8. see Zeolkowski, supra
    Watson, ibid.
  9. R v Muise, 2013 NSSC 141 (CanLII), per Rosinski J at para 47 aff'd on other grounds 2015 NSCA 54 (CanLII), per Fichaud JA
    R v Muise, 2013 NSCA 81 (CanLII), per Hamilton JA at para 27
    R v Howe, 2016 NSSC 140 (CanLII), per Rosinski J at para 7
  10. R v Hamill, [1984] 6 WWR 530, 1984 CanLII 39 (BC CA), per Esson JA
  11. R v WJM, 2018 NSCA 54 (CanLII), per Beveridge JA at paras 34 to 35
  12. R v Simpson, 1977 CanLII 1142 (ON CA), (1977), 35 CCC (2d) 337 (Ont. C.A.), per Martin JA
    R v Starr, [2000] 2 SCR 144, 2000 SCC 40 (CanLII), per Iacobucci J, at para 184;
    R v Harper, 1982 CanLII 11 (SCC), [1982] 1 SCR 2, per Estey J

Relevance

Evidence must be relevant before it can be admissible, irrelevant evidence must be excluded. [1] Any relevant evidence will be admissible unless otherwise excludable for legal or policy-based reasons.[2]

Relevancy is evidence that tends, "as a matter of logic and human experience", to make a proposition more likely to be true.[3]

Relevancy requires that there be a nexus between facts. The evidence should permit an inference that if one fact exists the other must as well.[4] Relevance is "assessed in the context of the entire case and the positions of counsel. It requires a determination whether, as a matter of human experience and logic, the existence of a particular fact, directly or indirectly, makes the existence or non-existence of a material fact more probable than it would be otherwise".[5]

Certain evidence does not cease to be relevant or become irrelevant simply because it can support more than one inference. [6]

Relevance is sometimes divided into 1) logical relevance and 2) legal relevance.[7] Logical relevance refers to the connection between two facts. Legal relevance is the cost/benefit analysis of the admission of evidence on the basis of: [8]

  • the probative value outweighing prejudicial effect;
  • the "inordinate amount of time which is not commensurate with its value"; and
  • the evidence's "misleading" effect is "out of proportion to its reliability".

All relevant evidence is admissible exception for the discretionary power of the judge to exclude evidence that is unduly prejudicial, misleading , or confusing.[9]

Multi-count indictments
Where the accused is charged with multiple counts. The admissibility of evidence towards one count does not mean that it is admissible against other counts.[10]

Appellate Review
The relevance of evidence is a question of law and is reviewable on a standard of correctness.[11]

  1. Hollington v Hewthorn & Co. Ltd., [1943] K.B. 587 (C.A.), at p. 594 (“all evidence that is relevant to an issue is admissible, while all that is irrelevant is excluded”)
    R v Cloutier, 1979 CanLII 25 (SCC), (1979), 48 CCC (2d) 1 (SCC), per Pratte J
    R v Zeolkowski, 1989 CanLII 72 (SCC), [1989] 1 SCR 1378, 50 CCC (3d) 566, per Sopinka J
  2. R v Morris, 1983 CanLII 28 (SCC), [1983] 2 SCR 190, per Lamer J at p. 201
    R. v. Headley, 2018 ONSC 5818 (CanLII), per Barnes J, at para 6
  3. R v J.-L.J., [2000] 2 SCR 600, 2000 SCC 51 (CanLII), per Binnie J ("Evidence is relevant “where it has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would appear to be in the absence of that evidence” (D. M. Paciocco and L. Stuesser, The Law of Evidence (1996), at p. 19).")
    R v Arp, [1998] 3 SCR 339, 1998 CanLII 769 (SCC), per Cory J
  4. Cloutier, supra
  5. Cloutier, supra at p. 27 and referenced in Watt's Manual of Criminal Evidence, 2010, (Thomson Carswell: Toronto, 2008) at Section 3.0
    R v Sims (BCCA) 1994 CanLII 1298 (BC CA), (1994), 87 CCC (3d) 402, per Wood JA at pp. 420-27 - relevance determined by the context of the entire case and taking into account Crown and defence
  6. R v Underwood 2002 ABCA 310 (CanLII), per Conrad JA at para 25
  7. R v Mohan, 1994 CanLII 80 (SCC), [1994] 2 SCR 9, per Sopinka J
  8. Mohan, ibid.
    R v Morris, 1983 CanLII 28 (SCC), [1983] 2 SCR 190, per McIntyre J - discusses requirement of "logically probative" evidence
  9. R v Corbett, 1988 CanLII 80 (SCC), [1988] 1 SCR 670, (1988), 41 CCC (3d) 385, per Dickson CJ
    Morris, supra
    See also Discretionary Exclusion of Evidence
  10. R v Headly, 2018 ONSC 5818 (CanLII), per Barnes J at para 6
    R v Brown, 2007 ONCA 71 (CanLII), 216 CCC (3d) 299, per Cronk J at para. 13
    R v F, 2006 NSCA 42 (CanLII), 212 CCC (3d) 134, per Cromwell JA at para. 26
    See also Similar Fact Evidence
  11. Mohan, supra at para 18

Materiality

Evidence must be material to be admissible. Material evidence refers to evidence that contributes to proving a fact that is of consequence to the trial. That is, there must be a relationship between the evidence and a legal issue put to the court.[1] Material evidence can include not only evidence establishing a fact that is necessary to prove an essential element of the case or it can be a fact that refutes or negates an essential element or any other relevant evidence.

This should be treated separately from the question of admissibility and relevance.[2]

As this diagram shows, materiality represents the proximity of a fact to an essential element to be proven as part of the Crown's case. Fact A is material where it supports some Fact B that, if made out, establishes some legal requirement at issue.
Materiality.png

Relevancy Limited by Materiality
Relevancy can be chained together establishing a link between several propositions, but they must always link back to establishing or negating a material issue.

  1. R v Gill (1987) 39 CCC (3d) 506 (MBCA), 1987 CanLII 6779 (MB CA), per Huband JA
  2. R v Bernardi (1974), 20 CCC (2d) 523 (ONCA), 1974 CanLII 1488 (ON CA), per Arnup JA, leave to SCC refused

Rules of Admissibility

Courts must only consider admissible evidence.[1] Where evidence is relevant and material the evidence should be admitted unless their exclusion is justified.[2]

Real evidence that has been proven to be relevant and material are prima facie admissible regardless of whether the investigative conduct to seize the evidence was lawful or not.[3]

Much of the entirety of the rules of evidence concerns the question of what is admissible evidence. As such, admissibility of evidence can be better understood as evidence that is not prohibited by exclusionary rules. Frequently encountered rules of exclusion include:

  1. Witness competence
  2. Hearsay
  3. Opinion
  4. Character
  5. Conduct on occasions separate from the offence
  6. Illegally obtained evidence
  1. See also R v Zeolkowski (1987) 333 CCC 231, 1987 CanLII 6836 (MB CA), per Philp JA
    R v Hawkes (1915) 25 CCC 29 (ABCA), 1915 CanLII 347 (AB CA), per Stuart J
  2. R v FFB, [1993] 1 SCR 697, 1993 CanLII 167 (SCC), per Lamer CJ and Iacobucci J at page 136 ("The basic rule in Canada is that all relevant evidence is admissible unless it is barred by a specific exclusionary rule.")
    R v Collins, 2001 CanLII 24124 (ON CA), per Charron JA at para 18, 19
    R v Cyr, 2012 ONCA 919 (CanLII), per Watt JA at para 116
    R v Morris, 1983 CanLII 28 (SCC), [1983] 2 SCR 190, per McIntyre J - adopting Thayer's approach to the admission of evidence
  3. R v Sadikov, 2014 ONCA 72 (CanLII), per Watt JA at para 34

Discretionary Exclusion of Evidence

See also: Discretionary Exclusion of Evidence

In addition to the application of specific rules exclusionary rules of evidence, there is a residual common law discretion to exclude any evidence where the prejudicial effect of the evidence outweighs the probative value.

Procedure

See also: Voir Dire

Whenever evidence is tendered, a judge may ask counsel for the purpose of tendering the evidence and counsel should give a response.[1]

The judge has a duty to exclude all inadmissible evidence, regardless of whether the issue is raised by counsel.[2]

  1. Cox, Criminal Evidence Handbook, 2nd edition, at p. 4
  2. R v D. (L.E.), 1989 CanLII 74 (SCC), [1989] 2 SCR 111, per Sopinka J
    R v Ambrose (1975), 25 CCC (2d) 90 (NBSC, Div. App.), per Limerick JA, aff'd 1976 CanLII 201 (SCC) , [1977] 2 SCR 717, per Spence J
    see also Canadian Criminal Evidence, 3rd ed.,P.K. McWilliams states in paragraph 3:10410 cited in R v Bourque, 1991 CanLII 2607 (NS CA), per Matthews JA

See Also

Discretionary Exclusion of Evidence

General Principles

Even where evidence is relevant, material, and admissible, the court retains a discretionary ability to exclude evidence where the probative value of the evidence is exceeded by its prejudicial effect or where necessary to ensure trial fairness. [1] The discretionary power derives from both the common law and s. 24(1) of the Charter.[2] The common-law power is protected under s. 11(d) of the charter which protects the right to a fair hearing.[3]

The law is primarily inclusionary and will tend to admit all evidence that is logically probative of some fact in issue, subject to the rules of exclusion and exception. Where it does not fall into an exclusion or exception issues with the evidence only goes to weight.[4]

The discretionary power allows for a cost-benefit analysis to determine if the value of the evidence to determine the case correctly "is worth the cost of its introduction to the litigation process."[5] This will involve considering the prejudicial effect including the misleading effect and time consumption.[6]

Burden of Proof
The onus is upon the party seeking to exclude evidence that has already been established as admissible.[7]

Factors
To weigh probative value against prejudicial effect, it has been proposed to consider: [8]

  1. Probative value:
    1. the strength of the evidence
    2. the extent to which it supports the inferences sought to be made, and;
    3. the extent to which the matters it tends to prove are at issue in the proceedings.
  2. Prejudicial effect:
    1. how discreditable it is;
    2. the extent to which it may support an inference of guilt based solely on bad character;
    3. the extent to which it may confuse issues, and;
    4. the accused’s ability to respond to it.

Jury Setting
In a jury setting, the judge must be scrupulous to only permit evidence that is "worthy of jury consideration" and "not whether the jury should accept and act upon the evidence."[9]

Non-jury Setting
In non-jury settings, the judge need not be as scrupulous. The judge is performing a gate-keeping function and so is capable of distinguishing prejudicial evidence. It is unreasonable that the judge is prejudiced from merely hearing evidence.[10]

Where prejudices exist the judges are capable of self-warning of the risks of the evidence. This will often be considered sufficient precaution.[11] A judge who is satisfied he are not prejudice should be taken at his word.[12]

Procedure
The court should consider the discretion to exclude evidence as follows:[13]

  1. The judge must determine the probative value of the evidence assessing its tendency to prove a fact in issue in the case including the credibility of the witnesses.
  2. The judge must determine the prejudicial effect of the evidence because of its tendency to prove matters which are not in issue... or because of the risk that the jury may use the evidence improperly to prove a fact in issue.
  3. The judge must balance the probative value against the prejudicial effect having regard to the importance of the issues for which the evidence is legitimately offered against the risk that the jury will use it for other improper purposes, taking into account the effectiveness of any limiting instructions.

Appellate Review
The exercise of this discretion requires substantial deference on appeal absent error in principle.[14] The weighing between the probative value and prejudicial effect of evidence is accorded "a good deal of deference" and "absent error in principle", the decision should not be disturbed.[15]


  1. R v Cloutier, 1979 CanLII 25 (SCC), [1979] 2 SCR 709, 48 CCC (2d) 1, 12 C.R. (3d) 10
    R v Smith, 1992 CanLII 79 (SCC), [1992] 2 SCR 915, 75 CCC (3d) 257, 15 C.R. (4th) 133
    R v Moose, 2004 MBCA 176 (CanLII), 24 C.R. (6th) 246, 190 Man. R. (2d) 156
    R v MF, 2009 ONCA 617 (CanLII) at para 25
    R v Mohan, [1994] 2 SCR 9, 1994 CanLII 80 (S.C.C.) at pp. 20-21
    R v Harrer, 1995 CanLII 70 (SCC), [1995] 3 SCR 562 at paras 23, 24, 41 and 42 - common law permits exclusion of all evidence that renders trial unfair
    R v White, [1999] 2 SCR 417, 1999 CanLII 689 (SCC), at para 86
  2. see R v Spackman, 2009 CanLII 37920 (ON SC)
  3. Harrer, supra, at para 23 and 24
  4. R v Corbett, 1988 CanLII 80 (SCC), (1988), 41 CCC (3d) 385
  5. R v Cyr, 2012 ONCA 919 (CanLII) at para 96, 97
    Mohan, supra, at pp. 20-21
  6. Cyr, supra at para 97
  7. R v Jack 1992 CanLII 2764 (MB CA), (1992), 70 CCC (3d) 67, 15 W.C.B. (2d) 92 (Man. C.A.), at p. 86
  8. Sand, 2003 MBQB 76 (CanLII) at para 29
  9. Cyr, supra at para 98 citing R v Abbey, 2009 ONCA 624 (CanLII) at para 89
  10. see e.g. R v Virani, 2012 ABCA 155 (CanLII) at paras 13-14
    TG v Nova Scotia (Community Services), 2012 NSCA 43 (CanLII) at para 75 leave to SCC denied
  11. see R v Blea, 2012 ABCA 41 (CanLII) at para 49
  12. R v O’Brien, 2011 SCC 29 (CanLII) at para 18, [2011] 2 SCR 485 (“The trial judge was entitled to be taken at his word.”)
  13. R v P. (R.) (1990), 58 CCC (3d) 334 (Ont. H.C.), 1990 CanLII 6921 (ON SC) at 347
  14. R v CRB, 1990 CanLII 142 (SCC), [1990] 1 SCR 717, at p. 733
    Cyr, supra at para 103
  15. R v Shearing, 2002 SCC 58 (CanLII) at para 73

Probative Value

Determining the probative value of evidence includes considering the "frailties of the evidence, the inferences that may reasonably be drawn from it and the availability of other evidence to prove the same fact."[1]

Probative value concerns the weight put on evidence and not its admissibility.[2]

Probative value includes considering its reliability.[3]

The reliability factor is particularly important when considering expert evidence.[4]

Post-offence conduct of interference with witnesses will generally be found to be probative of guilt.[5]

  1. R v Leitch and Jno-Baptiste, 2011 ONSC 2597 (CanLII) citing R v Pascoe 1997 CanLII 1413 (ON CA), (1997), 113 CCC (3d) 126 (Ont. C.A.)
  2. R v Morris, 1983 CanLII 28 (SCC), [1983] 2 SCR 190 at pp. 99-100 (CCC) pp.192-3 (SCR) - cites example of documents of heroine trade found in accused's residence
  3. R v Cyr, 2012 ONCA 919 (CanLII) at para 97
  4. Cyr, ibid. at para 97 citing Mohan at p. 21
  5. R v Tran, 2001 NSCA 2 (CanLII) at para 27
    R v Pillay, 2004 CanLII 9962 (ON SC) at para 21

Prejudicial Effect

Although the first rule of evidence is to admit all relevant evidence there are certain types of relevant evidence that should not be admitted as it will have a prejudicial effect on the fairness of the trial. It is said that there are three grounds of excluding evidence on the basis of it prejudice: "moral", "logical", and "time".

Prejudice is not simply evidence that is harmful to the defence case, but rather it is evidence that will create unfairness by misuse, over consumption of time, or distraction/confusion of issues. The impact will effect "fairness and the integrity of the proceedings"[1]

All judges have a discretion to exclude any evidence on the basis that its prejudicial effect will out-weigh the probative value.[2]

Where evidence is relevant to one count but irrelevant and possibly prejudicial to another count, the court may still admit the evidence but provide a limiting instruction to the jury on the limited use of the evidence.[3]

When the evidence is called by the defence the balance between probative value and prejudicial effect is weighed further in the side of admission. A judge should only exclude evidence where the prejudicial effect "substantially outweighs" the probative value.[4]

When dealing with a jury we must presume that limiting instructions and cautions will be followed and the evidence will be "confined within its proper bounds".[5]

In review, the absence of objection will be a factor in considering if the evidence is significantly prejudicial.[6]

The forms of prejudicial evidence that should not be admitted was categorized as follows:[7]

  1. It threatens the fairness of the trial;
  2. It cannot be adequately tested and challenged through cross-examination and the other means available in the adversarial process; or
  3. There is a real risk that the jury will misuse or be unable to properly assess the evidence regardless of the trial judge’s instructions.


  1. R v Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 SCR 577, 66 CCC (3d) 321 (S.C.C.) at 390 (CCC)
    R v Collins, 2001 CanLII 24124 (ON CA), (2001), 160 CCC (3d) 85, 150 O.A.C. 220 (Ont. C.A.), at para 19
    R v Tran, 2001 NSCA 2 (CanLII) at para 28 - the fact that the evidence suggests guilt does not make it prejudicial
  2. R v Mohan 1994 CanLII 80 (S.C.C.), (1994) 29 C.R. (4th) 243 (S.C.C.)
  3. R v Cote, 2003 NBCA 38 (CanLII), (2003) 176 CCC (3d) 89
  4. R v Shearing, 2002 SCC 58 (CanLII), [2002] 3 SCR 33
    Seaboyer, supra
    R v Clarke, 1998 CanLII 14604 (ON CA)
  5. R v Cyr, 2012 ONCA 919 (CanLII) at para 99
    R v Corbett, 1988 CanLII 80 (SCC), [1988] 1 SCR 670, at pp. 692-693
  6. R v Jaw, 2009 SCC 42 (CanLII), [2009] 3 SCR 26 at para 44, citing R v Jacquard, 1997 CanLII 374 (SCC), [1997] 1 SCR 314 at paras 37-38
    R v Daley, 2007 SCC 53 (CanLII), [2007] 3 SCR 523 at para 58
  7. R v Frimpong, 2013 ONCA 243 (CanLII)
    R v Burton, 2017 NSSC 3 (CanLII), per Arnold J, at para 55

Moral and Logical Prejudice

First, there is evidence of moral prejudice which has the potential of creating outrage in the jury and could influence them to make their decision based on emotion. For example, a jury may get the urge to punish an accused for past bad acts even though they are not at issue in the trial. Second, there are logical prejudices that suggest to the jury to make improper inferences, such as relating the accused race with a particular disposition.

In a non-jury setting, concerns of reasoning prejudice and moral prejudice are lessened.[1]

  1. R v DeKock, 2009 ABCA 225 (CanLII) at paras 33-37, 43-45
    R v TB, 2009 ONCA 177 (CanLII) at paras 26-30, 33
    R v Blea, 2012 ABCA 41 (CanLII) at para 48

Time Consumption

Prejudice arises from evidence that consumes too much time and resources. The trier-of-fact should not have their time wasted with minor evidence that will waste their time and confuse them from the real issues.

The time consumption should be commensurate to its value.[1]

  1. R v Cyr, 2012 ONCA 919 (CanLII) at para 97

Trial Fairness

There is common law authority to exclude relevant and material evidence where it would render the proceedings unfair.[1] This power is ingrained in section 11(d) of the Charter.[2] This can involve either excluding the evidence or simply limiting its use.[3]

The conduct of the trial, including the admission of evidence, should "not result in the trial being unfair because the accused has been denied a full opportunity to prepare his case, challenge and answer the Crown’s case." [4]

When considering hearsay tendered by accused the judge may relax the rules of admissibility in order to prevent a miscarriage of justice. This preferred treatment is due to the liberty interests at stake.[5]

An accused is not entitled to a perfect trial, only a fair one.[6]

  1. R v Harrer, 1995 CanLII 70 (SCC), [1995] 3 SCR 562, at paras 21, 23, 41, and 42
    R v White, 1999 CanLII 689 (SCC), [1999] 2 SCR 417, at para 86
  2. Harrer, supra at paras 23-24
  3. Al-Shammari, 2016 ONCA 614 (CanLII) at para 39 - judge limited use of prior statement in cross examination to credibility assessment only and not truth of its contents
  4. R v Albright 1987 CanLII 26 (SCC), [1987] 2 S. C. R. 383 at para 26
  5. Paciocco and Stuesser, The Law of Evidence, Sixth Edition, at page 118
  6. R v Khan, 2001 SCC 86 (CanLII)
    R v Cai, 2012 ABCA 157 (CanLII), [2002] A.J. No. 1521 (C.A.)

Crown Splitting its Case

See also: Trial Process#Reply or Rebuttal

As a general rule, the Crown will not be permitted to "split its case". It must "produce and enter in its own case all the clearly relevant evidence it has, or that it intends to rely upon, to establish its case".[1]

This rule should be applied to evidence that is "clearly relevant-not marginally, minimally or doubtfully relevant".[2]

This will sometimes be raised to prohibit the Crown from cross-examining a defence witness or the accused on a prior statement.[3]


  1. R v Krause, 1986 CanLII 39 (SCC), 29 CCC(3d) 385 per McIntyre R v Drake (1970), 1970 CanLII 577 (SK QB), 1 CCC (2d) 396, at 202
  2. Drake, ibid. at p. 202
  3. e.g. R v RL, 2002 CanLII 49356 (ON CA)

Manner of Excluding Evidence

Editing Recorded Statements

It is not always the case that the entirety of the evidence being admitted will be excluded. Statements—written, audio or video recorded—often include a combination of admissible and excludable evidence. The judge must then edit out the offending portions before it can be admitted into evidence.

It is the judge's discretion whether to edit out portions of a statement as irrelevant or prejudicial against a co-accused.[1]

The judge is permitted to edit out probative evidence where the prejudicial effect is greater.[2]

Editing "must not change the meaning of the statement in a material manner" through removal of an inculpatory or exculpatory evidence.[3]

  1. R v Sidhu, 2011 ONSC 4577 (CanLII), aff’d, 2013 ONCA 719 (CanLII) at para 8 per Baltman SCJ
  2. Sidhu, ibid. at para 8
  3. Sidhu, ibid. at para 8

Other Powers to Exclude Evidence

  1. R v Spackman, 2012 ONCA 905 (CanLII) at para 104 per Watt J

Subject-matters of Exclusionary Evidence

Alternate Suspect Evidence and Inadequate Investigation Defence

Similar Fact Evidence

Standard of Proof

General Principles

The standard of proof asks to how convinced the trier of fact must be of some something. Canadian criminal law has three core standards:[1]

  1. Proof beyond a reasonable doubt which is the standard to be met by the Crown against the accused;
  2. a balance of probabilities or Proof on a preponderance of the evidence which is the burden of proof on the accused when he has to meet a presumption requiring him to establish or to prove a fact or an excuse;
  3. Evidence raising a reasonable doubt which is what is required to overcome any other presumption of fact or of law. Once a prima facie case has been established by the evidence of the crown, there is no need to prove innocence. Rather the accused need only raise a doubt in the evidence.[2]

The US has a fourth standard known as "clear and convincing evidence" which is a middle ground between the two standards, however, this has never been officially adopted in Canada. When a proposition at issue in a case, such as an element of an offence, must be proven, the standard must be reached using the weight of the totality of evidence presented, not on each individual piece of evidence [3].

Standard of Proof.png
  1. R v Proudlock 1978 CanLII 15] (SCC), [1979] 1 SCR 525
    FH v McDougall, 2008 SCC 53 (CanLII) at para 49 - lists only standards of BOP and BARD
  2. Batary v Attorney General of Saskatchewan [1965] SCR 465, 1965 CanLII 102 (SCC), at p. 476
  3. R v Morin 1988 CanLII 8 (SCC), [1988] 2 SCR 345

Totality Principle

When weighing evidence against any standard of proof, the general rule of totality will govern. Each piece of evidence or each fact cannot be considered in isolation to establish a fact. They must be considered in the context as a whole.[1] This principle is central to consideration of Circumstantial Evidence.[2]

  1. R v Morin, 1988 CanLII 8 (SCC), [1988] 2 SCR 345
    R v Mars, 2006 CanLII 3460 (ON CA) - concerning the weight of fingerprint evidence R v John, [1970] 5 CCC 63; 11 C.R.N.S. 152 (Y.T.C.A.), 1970 CanLII 1049 (YK CA), per Davey J
    R v Brinson (E.) et al., 1995 CanLII 10555 (NL SCTD) at para 12
  2. e.g. John, supra
    Brinson, supra

Standards

The standard of proof for establishing a fact in most cases will be on a balance of probabilities. However, there are “certainly rare occasions when admission of the evidence may itself have a conclusive effect with respect to guilt” where a standard of proof beyond a reasonable doubt may be required.[1] Those exceptions that have a "conclusive effect" include confessions and hearsay evidence that satisfies the co-conspirators' exception.[2]

Generally, the standard of proof beyond a reasonable doubt will apply to essential elements of the offence, but not to any other facts.[3]

  1. R v Arp, [1998] 3 SCR 339, 1998 CanLII 769 (SCC)
    R v Bulldog, 2015 ABCA 251 (CanLII), per curiam at para 38, 39
  2. Bulldog, ibid. at para 39
  3. Bulldog, ibid. at para 39 ("The basic rule is that it applies to evidence of the essential elements of the offence, but not to the evidence of other facts, including facts necessary to establish admissibility of evidence")
    R v Murphy, 2011 NSCA 54 (CanLII), per Farrar JA at para 41

"Some Evidence" and "prima facie case"

The standard of "some evidence "prima facie case" are unique standards of proof that apply to certain evidentiary tests.[1]

These two standards are obviously lower than that of balance of probabilities.[2]

  1. e.g. see Documentary Evidence
  2. R v Bulldog, 2015 ABCA 251 (CanLII), per curiam at para 38

Balance of Probabilities

The "balance of probabilities" is described as being "more probable than not", "more likely than not", or more technically, the chance of the proposition being true is more than 50%. This standard is known as the civil standard as it exclusively used in civil trial cases.[1]

Generally, where there are factual questions that are preconditions to the admissibility of evidence should be on a standard of balance of probabilities.[2] This standard should only be increased "in those certainly rare occasions when the admission of the evidence may itself have a conclusive effect with respect to guilt".[3]

  1. Continental Insurance Co. v Dalton Cartage Co., 1982 CanLII 13 (SCC), [1982] 1 SCR 164 - SCC rejected a variable standard, adopting only balance of probabilities
    F.H. v McDougall, 2008 SCC 53 (CanLII) at para 49
  2. R v Evans, 1993 CanLII 86 (SCC), [1993] 3 SCR 653
  3. R v Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, [1998] S.C.J. No. 82, per Cory J.

Beyond a Reasonable Doubt

Sufficiency of Proof

Before any evidence gets to a trier of fact there is often a requirement to discharge an evidential burden for the trier of law (i.e. the judge).

In a preliminary inquiry the Crown must show on the whole that the evidence they will present is sufficient to potentially convict the accused. The purpose of this initial evaluation is to avoid frivolous suiting being brought in that have no chance at success.

The leading case for the standard of proof needed before evidence can be put to the jury is United States of America v Shephard, 1976 CanLII 8 (SCC), [1977] 2 SCR 1067. The Court held that:

[The] which governs a trial Judge in decideing whether the evidence is sufficient to justify him in withdrawing the case from the jury, and this is to be determined according to whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilt.

In a case where some of the evidence the Crown is relying upon is not directly to the issue of the case, the Crown must satisfy the judge that "the evidnece, if believed, could reasonably support an inference of guilt."[1]

  1. R.v. Arcuri, SCC 54 (CanLII), [2001] 2 SCR 828

Legal Proof

Frequently seen standards of proof that are seen include:

  1. "air of reality" / prima facie case
  2. reasonable and probable grounds / reasonably-based probability
  3. reasonable suspicion

Air of Reality Test

Reasonable Suspicion

See also: Reasonable Suspicion

Reasonable Belief

See Reasonable and Probable Grounds

See Also

Beyond a Reasonable Doubt

General Principles

See also: Standard of Proof

The standard of "beyond a reasonable doubt" (BARD) is a common law standard of proof in criminal matters.[1] This standard is exclusively used in criminal or quasi-criminal proceedings. This includes not only adult criminal trials, but also young offender cases, adult sentencing, and certain provincial penal offences.

Standard of Proof.png

The standard of "reasonable doubt" consists of a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence. It is not based on "sympathy or prejudice". [2] Constitutional Foundation
The standard as the ultimate burden of proof is "inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence".[3] The burden should never shift to the accused.[4]


Level of Certainty
Proof beyond a reasonable doubt "it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt."[5]

However, belief that the accused is "probably guilty" is not sufficient and must acquit.[6]

The burden of proof placed upon the Crown lies “much closer to absolute certainty than to a balance of probabilities.”[7] The standard is more "than proof that the accused is probably guilty" in which case the judge must acquit.[8]

To know something with "absolute certainty" is to "know something beyond the possibility of any doubt whatsoever". [9]

Such as standard is "virtually impossible to prove" and "impossibly high" for the Crown to be held to such a standard. [10]

Relationship to Evidence
“[A] reasonable doubt does not need to be based on the evidence; it may arise from an absence of evidence or a simple failure of the evidence to persuade the trier of fact to the requisite level of beyond reasonable doubt.”[11]

The standard of BARD only applies to the evaluation of the evidence as a whole and not individual aspects of the evidence.[12] The standard should be applied for the purpose of determining whether individual elements are proven beyond a reasonable doubt.[13]

Inferences and Conjecture
Reasonable doubt must come as a rational conclusion from the evidence available and not as a basis of conjecture.[14]


Risk of Wrongful Conviction
A verdict of guilt must be considered carefully in order to protect the liberty of the accused and protect against a wrongful conviction.[15]

Jury Instructions
The standard should not be articulated in a way that would likely cause the standard to be applied subjectively.[16]

Consequence of Reasonable Doubt
The finding of reasonable doubt "is not the same as deciding in any positive way that [the allegations] never happened."[17] It is simply a finding that the evidence is not of "sufficient clarity" to allow an acceptance of the essential facts to an "acceptable degree of certainty or comfort" sufficient to displace the presumption of innocence.[18]

  1. affirmed under the English common law of England in Woolmington v D.P.P., [1935] A.C. 462 at 481-82 (H.L.)
  2. R v Lifchus, 1997 CanLII 319 (SCC), [1997] 3 SCR 320 at para 36
    See also: In R v JMH, 2011 SCC 45 (CanLII) at para 39 ( “a reasonable doubt does not need to be based on the evidence; it may arise from an absence of evidence or a simple failure of the evidence to persuade the trier of fact to the requisite level of beyond reasonable doubt.”)
  3. Lifchus, supra at para 36
  4. Lifchus, supra at para 36
  5. Lifchus, supra, at para 31, 36
  6. Lifchus, supra at para 36
  7. R v Starr, 2000 SCC 40 (CanLII) at para 242
  8. Lifchus, supra at 36
  9. R v Layton, 2008 MBCA 118 (CanLII)
  10. Lifchus, supra at para 39
  11. R v JMH, supra
  12. R v Stewart, 1976 CanLII 202, [1977] 2 SCR 748 at 759-61
    R v Morin, 1988 CanLII 8, [1988] 2 SCR 345 at 354, 44 CCC (3d) 193
    R v White, 1998 CanLII 789, [1998] 2 SCR 72, 125 CCC (3d) 385 at paras 38-41
  13. R v McKay, 2017 SKCA 4 (CanLII) at para 18 ("The standard of proof, being beyond a reasonable doubt, is not to be applied to individual pieces of evidence. Rather, it is to be applied to the evidence as a whole for the purpose of determining whether each of the necessary elements of an offence has been established.")
  14. R v Wild 1970 CanLII 148 (SCC), [1971] SCR 101 at 113
  15. R v W(R), 1992 CanLII 56 (SCC), [1992] 2 SCR 122 in context of child witnesses ("Protecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for a verdict of guilt")
  16. R v Stubbs, 2013 ONCA 514 (CanLII) at para 99
    R v Bisson, 1998 CanLII 810 (SCC), [1998] 1 SCR 306 at p. 311 (SCR)
  17. R v Ghomeshi, 2016 ONCJ 155 (CanLII) at para 140
  18. Ghomeshi, ibid. at para 140 and 141

Use of Illustrations in Articulating the Standard

Examples and illustrations are permissible in describing the standard of BARD as long as it does not takeaway the right to reach their own conclusions.[1] However, the use of illustrations or examples in articulating the standard of BARD is "fraught with difficulty".[2] The use of examples tends to lower the standard to that of a balance of probabilities and encourage a subjective standard.[3]

By giving illustrations it risks creating the impression that the decision "can be made on the same basis as would any decision made in the course of their daily routines", which tends to move the standard closer to one of "probability".[4] It also creates excessive subjectivity in interpretation, where consideration will vary based on each person's life experience.[5]

  1. R v Stavroff, 1979 CanLII 52 (SCC), [1980] 1 SCR 411 including p. 416 (SCR)
  2. R v Stubbs, 2013 ONCA 514 (CanLII) at para 98
    R v Bisson, [1998] 1 SCR 306, 1998 CanLII 810 (SCC) at para 6 ("No matter how carefully they may be crafted, examples of what may constitute proof beyond a reasonable doubt can give rise to difficulties")
  3. Stubbs, supra at para 99
  4. Bisson, supra at para 6
  5. Bisson, supra at para 6

Raising a Doubt

See also: Inferences

A reasonable doubt cannot be based on "speculation or conjecture".[1]

The Crown has no burden to "negativing every conjecture to which circumstantial evidence might be consistent with the innocence of the accused."[2]

"Bero" defence
The absence of evidence due to the police's failure to take investigative steps will sometimes be an important consideration in whether the Crown has proven its case beyond a reasonable doubt.[3]

The defence is permitted to elicit evidence from witnesses of potential inadequacies in the investigation. Oversights in investigation "can be particularly important where no defence evidence is called."[4]

  1. R v Henderson, 2012 NSCA 53 (CanLII) at para 40
    R v White, 1994 CanLII 4004 (NS CA)
    R v Eastgaard, 2011 ABCA 152 (CanLII) at para 22, aff’d 2012 SCC 11 (CanLII)
  2. R v Tahirsylaj, 2015 BCCA 7 (CanLII) at para 39
    R v Paul (1975), 1975 CanLII 185 (SCC), 27 CCC (2d) 1 (S.C.C.), at 6, (1975), [1977] 1 SCR 181, 64 DLR (3d) 491 (S.C.C.)
  3. R v Bero 2000 CanLII 16956 (ON CA), (2000), 151 CCC (3d) 545 (Ont.C.A.) at paras 56 to 58
  4. R v Gyimah, 2010 ONSC 4055 (CanLII), at para 20 Bero

See Also

Burden of Proof

General Principles

The burden of proof indicates who has the responsibility or onus to prove something.

Generally, there are three types of burdens. First, there is the "burden of persuasion" (often called a "legal burden", "primary burden", or "major burden"), which is the requirement to prove the case or disprove the defence. Failure to discharge this burden results in the party losing the case. This type of evidence typically is said to impose a "onus of proof". Second, there is the ""evidential burden" (often called the "secondary burden", "burden of going forward", or "minor burden"), which is the requirement of putting an issue before the court using the available evidence. Finally, there is a "tactical burden", which is not a legal standard, but rather is descriptive of the strength of opposing counsel's case and the implication of what is needed to overcome it.

Waiver of Burden for Admissibility
Opposing counsel may waive any requirements of proof that would necessitate a voir dire. There is "[n]o particular words or formula" that need to be utter "to express the waiver and admission. All that is necessary is that the trial Judge be satisfied that counsel understand the matter and has made an informed decision".[1]

  1. R. v Park, 1981 CanLII 56 (SCC), 122 DLR (3d) 1 (S.C.C.) - voluntariness voir dire
    R. v C. (W. B.), 2000 CanLII 5659 (ON CA), at paras 41 to 44

Burden of Persuasion

A "persuasive burden" is a legal question that asks "how the issue should be decided".[1]

Burden Upon the Accused
Section 11(d) of the Charter allocates the burden of persuasion upon the Crown at all times. The section states:

Proceedings in criminal and penal matters
11. Any person charged with an offence has the right
...
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;


CCRF

  1. R v Fontaine, [2004] 1 SCR 702, 2004 SCC 27 (CanLII), per Fish J, at para 11

Evidentiary Burden

An evidential burden is not technically a "burden of proof".[1] Nor is is a legal question. Rather it is a question of fact.[2] It is the burden to determine "whether an issue should be left to the trier of fact".[3]

An evidentiary burden will arise where there is a defence burden to prove that there is an "air of reality" for a particular defence to apply.[4]

It also arises in a question of whether either party can raise automatism or any other mental illness findings.[5]

In determining if the evidential burden is satisfied the judge must not "evaluate the quality, weight or reliability of the evidence".[6]

  1. R v Fontaine [2004] 1 SCR 702, 2004 SCC 27 (CanLII) at para 11
  2. Fontaine, ibid. at para 12
  3. Fontaine, ibid. at para 11
  4. R v Evaglok, 2010 NWTCA 12 (CanLII) at para 25
  5. Fontaine, supra at para 10
  6. Fontaine, supra at para 12

Tactical Burden

A tactical burden is not a term of law, but rather is descriptive of the nature of the opposing counsel's case.[1] A tactical burden exists where the Crown has established a prima facie case such at in order to raise a doubt the defence may need to respond by calling evidence.[2]

This "burden" does not offend the right to a presumption of innocence under s. 11(d) of the Charter.[3]

  1. R v Evaglok, 2010 NWTCA 12 (CanLII) at para 25 citing Paciocco, The Law of Evidence (5th ed.) at p. 531
  2. R v Darrach, [2000] 2 SCR 443, 2000 SCC 46 (CanLII)
  3. Darrach, ibid.

"Might Reasonably Be True" Test

See also: Weighing Testimony of the Accused and Recent Possession

The "might reasonably be true" test arises from the doctrine of recent possession which is based on the premise that the accused risks conviction for certain offences "unless he or she furnishes a plausible explanation".[1]

The "might reasonably be true" test should not be applied in credibility cases "dealing with contradictory evidence...where the presumption of innocence, and none other, applies." The test amounts to "imposing an affirmative obligation on the defence to either introduce evidence disproving guilt...and undermines the presumption of innocence"[2]

  1. R v Rattray, 2007 ONCA 164 (CanLII), at para 14
  2. Rattray, ibid., at para 13

Presumption of Innocence

It is well established at common law that all persons are entitled to the legal presumption of innocence for all charges they are not convicted for.[1]

The Charter also affirms this burden in s. 11(d):

11. Any person charged with an offence has the right...

(d) to be presumed innocent until proven guilty according to the law in a fair and public hearing by an independent and impartial tribunal;


CCRF

An ancillary principle to this right, the Crown must also make out a prima facie case before the accused must respond.[2]

Therefore the Crown has the burden of proving all the elements of the offence.[3] The onus of proving guilt never switches from the Crown to the accused.[4]The “accused bears no burden to explain why his accuser made the allegations against him”[5]

  1. Woolmington v Director of Public Prosecutions, [1935] AC 462
    R v Appleby, [1972] SCR 303, 1971 CanLII 4 (SCC)
    R v Proudlock, 1978 CanLII 15 (SCC), [1979] 1 SCR 525 at para 6
    R v Manchuk, [1938] SCR 341, 1938 CanLII 6 (SCC), at p. 349
  2. R v Dubois, [1985] 2 SCR 350, 1985 CanLII 10 (SCC), at pp. 357 to 258
  3. R v Lauer, 2011 PECA 5 (CanLII) at para 73
  4. see R v Briand, 2010 NLCA 44 (CanLII), (2010), 258 CCC (3d) 416 (N.L.C.A.)
  5. see R v J.C.H., 2011 NLCA 8 (CanLII) at para 18

Proving Facts

Introduction

There are several ways that facts can be established. The predominant manner of establishing fact is through evidence. In fact, almost all manners of proof require some amount of evidence and the real distinction is the proximity of the evidence to the fact at issue.

Facts are established by:

  1. Direct Evidence
  2. Circumstantial Evidence and Inferences
  3. Legal Presumptions
  4. Judicial Notice
  5. Admissions of Fact

Standard of Review

See also: Standard of Appellate Review

Findings of fact are to be reviewable by a higher level on a standard of palpable or overriding error.[1] This standard remains the same even for findings of legislative or social fact.[2]

  1. See Standard of Appellate Review#Question of Fact
  2. Canada (Attorney General) v Bedford, 2013 SCC 72 (CanLII), per curiam at paras 48 to 53

Topics

Related

Direct Evidence

General Principles

Direct evidence is evidence that is put forward to directly establish a fact which resolves a matter at issue. No inferences of fact need to be drawn to resolve the matter at issue. A first-hand eyewitness testifying to seeing a criminal offence take place is the most obvious example of direct evidence.

Direct evidence is evidence, if believed, "resolves a matter in issue".[1] it is testimony on "the precise face which is the subject of the issue in trial".[2]

it is for the trier-of-fact to determine how far the evidence may be believed.[3]

  1. see Watt’s Manual of Criminal Evidence (1998), at par. 8.0 (“[d]irect evidence is evidence which, if believed, resolves a matter in issue”)
    McCormick on Evidence [page840] (5th ed. 1999), at p. 641
  2. J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at par. 2.74 (direct evidence is witness testimony as to “the precise fact which is the subject of the issue on trial”)
  3. see United States of America v Shephard, [1977] 2 SCR 1067, 1976 CanLII 8 (SCC), per Ritchie J, at pp. 1086-87
    R v Arcuri, 2001 SCC 54 (CanLII), per McLachlin CJ at para 22

Examples of Direct Evidence

Finger Prints

See also: Identity

The absence of direct evidence by way of finger prints does not foreclose proof of the offence by way of circumstantial evidence.[1]

  1. R v Ginnish, 2014 NBCA 5 (CanLII), per Green J at paras 29 to 31

Blood Samples

See also: Seizure of Bodily Samples

Circumstantial Evidence

General Principles

See also: Inferences

Circumstantial evidence refers to any evidence from which one or more inferences are to be drawn to establish material facts.[1]

While there is no burden to prove every piece of evidence on a standard of beyond a reasonable doubt, in order to convict on a circumstantial case, a judge must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is one of guilt.[2]

Circumstantial evidence may be used to support the inference of innocence as well as guilt so long as the probative value outweighs prejudicial effect and it is not given undue weight.[3]

Examples of circumstantial evidence:

  • motive (past hostility to victim)
  • opportunity (including exclusive opportunity)
  • means, capacity and skills
  • post-offence conduct (flight, false alibi, destruction of evidence)
  • knowledge and state of mind
  • habit[4]
  • disposition for violence by victim

Inference vs Speculation
Circumstantial evidence is based on reasoning and inference-drawing through probability.[5] The judge must apply logic, common sense and experience to the evidence. They must consider the inherent probabilities and improbabilities, frequently eliminating the possibility of coincidence.[6]

The judge in his or her analysis must "separate inferences from speculation".[7]

Strength of Inferences to Establish a Fact
The rule of circumstantial evidence does not apply to each piece of evidence but rather only the totality of the evidence.[8]

A conclusion cannot be found without evidence, which is to say that it cannot be speculation.[9]

The strength of the inference made from circumstantial evidence depends on the relationship between the circumstantial evidence and the rest of the evidence.[10]

Proof by circumstantial evidence requires consideration of the evidence as a whole and not in part.[11]

The strength of the inference to be drawn from a single piece of circumstantial evidence depends on its context amongst all the other evidence.[12]

The whole of all the evidence may be more compelling than the sum of its parts.[13]

Juries
A judge does not need to give special instructions for circumstantial evidence.[14]

There is also no need to explain circustantial evidence in any sort of formulaic manner. It is sufficient just to use the language of proof beyond a reasonable doubt.[15]

Types of Evidence
Evidence of prior violence by the victim, including threats, can be relevant circumstantial evidence to establish the reasonableness of an apprehension of harm and could not otherwise protect themselves from harm.[16]

Drug paraphernalia found with drugs can be relevant to support the inference of knowledge of the nature of the drugs, participation in drug dealing, and specific plans of dealing.[17]

Fingerprint evidence can infer that the person who the fingerprint matches touched or held the object it was found on. It is other evidence that will determine the time and place that the object was touched or held.[18]

Standard of Appellate Review
The standard of review of any instructions on the drawing of inferences of knowledge in a circumstantial case is "whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence". [19]

  1. see Atlee, 2010 ONCJ 72 (CanLII), at para 14
    see also Watt's Manual of Criminal Evidence ss. 9.01
    R v Campbell, 2001 CanLII 7064 (ON CA), at paras 10 and 11
    R v Cinous, 2002 SCC 29 (CanLII), [2002] 2 S.C.R. 3, by McLachlin C.J.C. and Bastarache J, at para 89 (Circumstantial evidence is "evidence that tends to prove a factual matter by proving other events or circumstances from which the occurrence of the matter at issue can be reasonably inferred")
  2. R v Griffin, 2009 SCC 28 (CanLII) at para 33
    R v Ngo, 2009 BCCA 301 (CanLII) at para 53
  3. R v SCB, 1997 CanLII 6319 (ON CA), (1997), 104 O.A.C. 81 (CA) at para 33 to 36
  4. R v Pilon, 2009 ONCA 248 (CanLII), (2009) 243 CCC (3d) 109 (ONCA)
  5. R v Arp 1998 CanLII 769, [1998] 3 SCR 339 at p. 375
  6. FH v McDougall, 2008 SCC 53 (CanLII), [2008] 3 SCR 41, at paras 33-40, 47-8
    R v Yousif, 2011 ABCA 12 (CanLII), at para 5
  7. R v Allen, 2015 BCCA 299 (CanLII), at para 27, per Donald J.A.
  8. R v John, [1970] 5 CCC 63, aff'd at 1970 CanLII 199 (SCC), [1971] SCR 781
  9. R v Torrie, 1967 CanLII 285 (ON CA), [1967] 3 CCC 303 (ONCA)
  10. See R v White, 1996 CanLII 3013 (ON CA), (1996), 108 CCC (3d) 1 (Ont.C.A.)
    R v Uhrig, 2012 ONCA 470 (CanLII)
  11. R v Stewart, 1976 CanLII 202 (SCC), [1977] 2 SCR 748
    R v Turlon, (1989) 49 CCC (3d) 186 (Ont. C.A.), 1989 CanLII 7206 (ON CA)
  12. R v Leitch, [2010] O.J. No. 6240 (C.J.), aff’d 2012 ONCA 85 (CanLII)
    R v Sykes, 2014 NSCA 57 (CanLII), at para 43
  13. R v Nolet, 2010 SCC 24 (CanLII), at para 48
    R v Luc, [2007] O.J. No. 4210 (C.J.)(*no CanLII links) at para 36-37
    Sykes, supra at para 43
  14. Griffin, supra at para 33 ("We have long departed from any legal requirement for a “special instruction” on circumstantial evidence, even where the issue is one of identification...")
    R v Robert, 2000 CanLII 5129 (ON CA) at para 15
  15. R v Tombran, 2000 CanLII 2688 (ON CA), (2000), 142 CCC (3d) 380 at 392
    R v Fleet, 1997 CanLII 867 (ON CA), (1997), 36 O.R. (3d) 542, 120 CCC (3d) 457 (C.A.)
  16. R v Petel, 1994 CanLII 133 (SCC), [1994] 1 SCR 3
  17. R v Froese (1988) 44 CCC (3d) 1 (MBCA) (*no CanLII links)
  18. R v Mars, 2006 CanLII 3460 (ON CA), (2006), 205 CCC (3d) 376, per Doherty JA, at paras 19 to 24
    R v Pakula, 2017 ABPC 33 (CanLII)
  19. R v Villaroman, 2016 SCC 33 (CanLII), per Cromwell J, at para 55

Inference on an Ultimate Issue Establishing Guilt

It is usually put forward to establish a fact that can be used to suggest facts that, if established, would resolve a matter at issue.

In order for a judge to convict on only circumstantial evidence, the "circumstances must be consistent with guilt and inconsistent with innocence"[1]

The modern rule of circumstantial evidence requires that before a conviction based on circumstantial evidence can be entered the trier-of-fact must be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference from the proven facts.[2]

The reverse of the principle is also true, where "there is exculpatory evidence. One piece of exculpatory evidence might not be sufficient to raise a reasonable doubt but the cumulative effect of a number of pieces of exculpatory evidence may well do so."[3]

Inferences consistent with innocence do not need to arise from proven facts.[4] To require proven facts wrongly places the burden upon the accused to prove what happened rather than simply raise a doubt.[5]

Cumulative Effect of the Evidence
The Court must look at the cumulative effect of the evidence and not in piecemeal.[6]

Some evidence may be explicable without guilt, and it may relate to a necessary chain of proof. However, it must be viewed in the context of all the other evidence.[7]

Inference of Guilt is The Only Reasonable One
The judge must make inquiry into whether an inference of guilt is the only reasonable inference available on the facts, which requires consideration whether there are alternative inferences capable of raising a reasonable doubt.[8]

Inference
An inference is a deduction made from the evidence.[9]

Example: Presence in Vehicle
Evidence putting the accused in a vehicle in which it is established that someone from the vehicle committed an offence is not enough to establish guilt where there is evidence suggesting other persons in the vehicle could be responsible.[10]

Example: Fingerprints
The mere finding of fingerprints on a household item moved during a break and enter can be sufficient to establish guilt.[11]

Inference in Absence of Evidence
The court may consider "other plausible theor[ies]" and "other reasonable possibilities" which are inconsistent with guilt. These possibilities "must be based on logic and experience applied to the evidence or the absence of evidence".[12] This means that the Crown may need to negative "reasonable possibilities", however, this does not extend to require the Crown to "negative every possible conjecture".[13]

It must be kept in mind however that as a rule the "absence of evidence is not evidence of absence".[14]

Jury Instructions
There is no longer any legal requirement for "special instructions" on circumstantial evidence even when relating to the essential element of identity.[15]

  1. R v Yebes, 1987 CanLII 17 (SCC), [1987] 2 SCR 168
    R v Griffin; R. v. Harris, 2009 SCC 28 (CanLII), [2009] S.C.J. No. 28, per Charron J, at para. 33 (The "essential component of an instruction on circumstantial evidence is to instill in the jury that in order to convict, they must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty.")
  2. R v Cooper, [1978] 1 SCR 860, 1977 CanLII 11 (SCC), per Ritchie J
    Mezzo v The Queen, 1986 CanLII 16, [1986] 1 SCR 802 at para 12
  3. R v Moose, 2015 ABCA 71 (CanLII), at para 12
  4. R. v. Khela, 2009 SCC 4 (CanLII), [2009] 1 S.C.R. 104, at para. 58
    see also R. v. Defaveri, 2014 BCCA 370 (CanLII), 361 B.C.A.C. 301, at para. 10
    R. v. Bui, 2014 ONCA 614 (CanLII), 14 C.R. (7th) 149, at para. 28
  5. R. v. Villaroman, [2016] 1 SCR 1000, 2016 SCC 33 (CanLII), at para 35
  6. Trevor, supra
    R v Smith, 2016 ONCA 25 (CanLII), per Watt J.A. at paras 81 to 82
  7. Smith, ibid. at para 81
  8. R v Garciacruz, 2015 ONCA 27 (CanLII)
    R v Griffin, [2009] 2 SCR 42, 2009 SCC 28 (CanLII), at para 33 ("The essential component of an instruction on circumstantial evidence is to instill in the jury that in order to convict, they must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty. Imparting the necessary message to the jury may be achieved in different ways")
  9. R v Shields, 2014 NSPC 21 (CanLII) at para 105
    R v Latif, [2004] OJ No. 5891 (SCJ)(*no CanLII links) at para 4
  10. R v Bouzied, 2013 ONCA 276 (CanLII)
  11. e.g. R v Miller, 2016 BCCA 263 (CanLII)
  12. Villaroman, supra at para 37
  13. Villaroman, supra at para 37 to 38
  14. R v Piec, 2007 MBCA 138 (CanLII)
  15. Griffin, supra at para 33

Hodges Rule

Common Law Hodges' Rule
The Hodge's rule test states that guilt can only be found where the judge is "satisfied that the facts were such as to be inconsistent with any other rational conclusion than that the prisoner was the guilty person".[1]

The original common law requirement of proof for a finding of guilt in circumstantial case is based on the rule in hodge’s case.[2]

Hodge's rule does not apply to determine the mens rea (including the accused's intention) for an offence.[3]

Hodge's rule should not be applied to test the accused's explanation for his acts.[4]

The Hodge's rule is not the "inexorable rule of law in Canada". It is only one manner of phrasing the essential test of proof beyond a reasonable doubt.[5]

Canadian Adoption
The Rule from Hodges was adopted in Canada and characterized as a test that requires that "conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts".[6]

The US and UK Rejection
It should be noted that both the US and the UK have long since abandoned the test from Hodges rule.[7]

  1. Hodge's Case
  2. considered in R v Linn 1994 CanLII 4643 (SK CA), (1994), 116 Sask.R. 203, [1994] 4 W.W.R. 305 at paras 13-15 and R v Munro, 2001 SKQB 138 (CanLII) at paras 13-14
    R v Trevor, 2006 BCCA 91 (CanLII) at para 12
    c.f. R v Cooper, [1978] 1 SCR 860, 1977 CanLII 11 (SCC), per Ritchie J, at p. 881
  3. R v Mitchell, 1964 CanLII 42 (SCC), [1964] SCR 471
    Cooper, supra at p. 881 ("It is enough if it is made plain to the members of the jury that before basing a verdict of guilty on circumstantial evidence they must be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts.')
  4. Robert, supra
  5. R v Robert, 2000 CanLII 5129 (ON CA), at para 15
  6. see R v McIver, 1965 CanLII 26 (ON CA), [1965] 2 O.R. 475 (C.A.), at p. 479, aff’d 1966 CanLII 6 (SCC), [1966] S.C.R. 254
  7. see R v Robinson, 2017 BCCA 6 (CanLII), para 24
    US: Holland v. United States, 348 U.S. 121 (1954)
    UK: McGreevy v. D.P.P. [1973] 1 All E.R. 503 (H.L.)

Motive

Motive is a form of ulterior intent that permits the inferential proof of other essential elements of the offence. Evidence of a motive to commit the offence is circumstantial evidence supporting a conviction.[1] Conversely, evidence of a lack of motive is circumstantial evidence supporting an acquittal. Evidence of a lack of motive is not the same as lack of evidence of a motive.[2]

Evidence that the accused and victim had a good relationship is not evidence of a lack of motive, but a lack of evidence of a motive.[3]

Evidence of motive goes to prove intent as well as the act.[4]

Evidence of insolvency or debt can be admitted to establish motive for an offence of theft, fraud or arson.[5]

Evidence of the accused previously threatening the victim is admissible to establish an animus and motive to harm the victim, an intent to kill, as well as narrative. It is not bad character evidence.[6]

In a murder case, evidence of a prior abuse that establishes an animus or motive to kill is admissible against the accused.[7]

  1. R v Griffin, 2009 SCC 28 (CanLII) -- statement of deceased suggests a motive for murder
  2. R v Lewis, 1979 CanLII 19 (SCC), [1979] 2 SCR 821
  3. R v Ilina, 2003 MBCA 20 (CanLII)
  4. R v Cloutier, 1939 CanLII 26 (SCC), [1940] SCR 131
    R c Bari, 2006 NBCA 119 (CanLII)
  5. R v Portillo, 2003 CanLII 5709 (ON CA) - accused's possession of victim's property establish motive of theft for murder charge
  6. R v Cooper, 2004 BCCA 540 (CanLII) at paras 34, 35
  7. R v Chapman, 2006 CanLII 1178 (ON CA), (2006), 204 CCC (3d) 449 (Ont CA) at para 27
    R v Cudjoe, 2009 ONCA 543 (CanLII) at para 64
    R v Van Osselaer, 2002 BCCA 464 (CanLII), (2002), 167 CCC (3d) 225 (BC CA) at para 23, leave to appeal refused, [2002] SCCA No 444 (SCC)
    R v Batte, 2000 CanLII 5750 (ON CA), (2000), 145 CCC (3d) 449 (Ont CA) at paras 97 and 102

State of Mind

Evidence of an utterance by the deceased victim goes to the state of mind of the victim.[1]

A complainant's post-even demeanour or emotional state is admissible and may be used to support the credibility of the complainant's evidence of a sexual assault.[2]

  1. Bari c. R., 2006 NBCA 119 (CanLII)
  2. R v Woollam, 2012 ONSC 2188 (CanLII) at para 48
    see Murphy and Butt v The Queen, 1976 CanLII 198 (SCC), [1977) 2 SCR 603 at p. 617
    R v Boss, 1988 CanLII 190 (ON CA), (1988), 46 CCC (3d) 523 (Ont. C.A.)
    R v Varcoe, 2007 ONCA 194 (CanLII) at para 33
    R v Arsenault, 1997 CanLII 1069 (ON CA), [1997] O.J. No. 3977 (C.A.) at para 9
    R v Clark, 1995 CanLII 1474 (ON CA), [1995] O.J. No. 4036 (C.A.) at para 7

Means, Capacity and Expertise

Evidence of the accused in possession of the weapon of the offence at a time outside of the offence time is admissible to prove that the accused had the necessary means to commit the offence. Without further details it cannot be put to establish that he had the weapon of the assault or that he be convicted for the offence.[1]

Evidence of tools and gear in possession of the accused consistent with the offence is evidence of expertise.[2]

  1. R v Backhouse, 2005 CanLII 4937 (ON CA), (2005) 194 CCC (3d) 1 (ONCA)
    R v Kinkead, 2003 CanLII 52177 (ON CA)
  2. R v Davison, 1974 CanLII 787 (ON CA), (1974), 20 CCC (2d) 424 (ONCA)

Opportunity

Opportunity evidence is a form of circumstantial evidence.[1] Evidence that tends to show the presence of an accused at or near the location of the offence near in time to its commission is "relevant, material and prima facie admissible", even if it does nothing to suggest exclusive opportunity.[2]

Opportunity alone cannot be sufficient to make the case, even when in combination with motive.[3]

The accused is always permitted to counter evidence of opportunity with evidence of personal capacity, evidence of equivalent or superior capacity.[4]

Last Person Present With Victim
Where the accused is the last person seen with the victim is circumstantial evidence of opportunity.[5]


  1. R v Doodnaught, 2017 ONCA 781 (CanLII), para 67 ("Evidence of opportunity typifies the concomitant use of circumstantial evidence")
  2. Doodnaught, ibid. at para 67
  3. R v Yebes, 1987 CanLII 17, [1987] 2 SCR 168 ("evidence of motive alone would not be sufficient to base a conviction and coupling opportunity with motive in the absence of other evidence would not advance the case unless there were evidence of exclusive opportunity") Doodnaught at para 68
    R v Ferianz, [1962] OWN 40 (CA)(*no CanLII links) , at p. 42
  4. Doodnaught, supra at para 68
  5. R v Stevens (1984), 11 CCC (3d) 318, 1984 CanLII 3481 (ON CA), per Martin JA

Exclusive Opportunity

Evidence that establishes only a single person was present at the time of the offence and was otherwise capable of committing the offence, then it will be sufficient to prove the identity of the culprit and may prove guilt beyond a reasonable doubt.[1] The issue is whether the opportunity is truly "exclusive" and not simply a likely among several potential persons. This will often address factors such as who had access to the location of the offence as well as the timing of events and each person's location during or near that time.

Evidence of opportunity that is not exclusive is akin to evidence of motive. It cannot be used as a form of corroboration.[2] However, where opportunity is coupled with some other form of inculpatory evidence, then it may be sufficient.[3]

  1. R v Doodnaught, 2017 ONCA 781 (CanLII) at para 70 ("Evidence of mere opportunity to commit an offence is one thing, evidence of exclusive opportunity to commit an offence quite another. Indeed, evidence of exclusive opportunity, on its own, may be sufficient to prove the guilt of an accused beyond a reasonable doubt")
    R. v. Imrich, 1977 CanLII 27 (SCC), [1978] 1 S.C.R. 622, affirming (1974), 1974 CanLII 42 (ON CA), 21 CCC (2d) 99 (Ont. C.A.).
  2. R v Ferianz (1962), 37 C.R. 37 (Ont. C.A.) (*no CanLII links) (“Evidence of opportunity, unless it is exclusive opportunity, is on a somewhat similar footing as evidence of motive. Mere opportunity is not accepted as corroboration where corroboration is required or desirable....”)
  3. R v Yebes, 1987 CanLII 17, [1987] 2 SCR 168 ("where evidence of opportunity is accompanied by other inculpatory evidence, something less than exclusive opportunity may suffice."); See R v Johnson 2004 NSCA 91 (CanLII)

Victim's Tendency for Violence

A history of threats by the victim to the accused to admissible for the purpose of establishing the reasonableness of the accused apprehension of harm and the accused's belief in no alternatives to the commission of the criminal acts.[1]

Evidence of tendency is even admissible where self-defence is not an available defence.[2]

  1. R v Petel, 1994 CanLII 133 (SCC), [1994] 1 SCR 3
  2. R v Sims, 1994 CanLII 1298 (BC CA)

Accused's Tendency for Violence

Details on the relationship between the victim and accused can provide "background and context that was essential to an accurate interpretation of the relevant events".[1]

Prior threats made by the accused to the victim is admissible to establish the accused committed the offence and the accused's state of mind.[2]

Evidence of prior bad acts may be admissible to establish motive or animus regardless of how similar it is the allegations.[3]

  1. R v MacDonald, 2002 CanLII 14251 (ON CA) at para 35
  2. R v Fournier, 2000 BCCA 140 (CanLII)
  3. R v Chapman, 2006 CanLII 1178 (ON CA) at para 27

Form of Evidence

Demeanor
Demeanour evidence may constitute circumstantial evidence of guilty knowledge.[1] The judge should consider the nature and context of the observations, such as a person's natural display of nervousness common to interactions with police.[2]

Drug Purchase Calls
In many cases, drug purchase calls were found admissible as circumstantial evidence, a purpose of which it is not for the truth of its contents.[3]

DNA
Expert testimony of DNA evidence found upon an object will typically be considered accurate.

The defence challenge would more regularly be upon the possibility of accidental DNA transfer.[4]

See also Established Fields of Expert Evidence#DNA_Analysis, Continuity

  1. e.g., R v Goulart-Nelson, 2004 CanLII 32077 (ON CA), [2004] O.J. No. 4010 (C.A.) at para 14
    R v Morales, 2006 CanLII 19930 (ON CA), (2006), 81 O.R. (3d) 161 (C.A.), at paras 12, 14
  2. R v De Rojas, 2012 ONSC 3227 (CanLII) at para 88
  3. e.g. R v Cook, 1978 CanLII 399 (BC CA), (1978), 10 B.C.L.R. 84 at 86
    R v Lees, 2009 BCCA 240 (CanLII) at para 21
    R v Bjornson, 2009 BCSC 1780 (CanLII) at para 13
    R v Graham, 2013 BCCA 75 (CanLII) at para 36 - however there is some inconsistency see para 38
  4. e.g. R v Doan, 2013 BCCA 123 (CanLII) - defence argues accidental transfer

See Also

Case Digests

Inferences

General Principles

In the process of determining facts in a case the Judge may make inferences. These inferences must be logical conclusions drawn from the evidence before the judge at trial.[1]

They cannot be conjecture or speculation about potential evidence that has not be submitted before the court.[2]

An inference, like a presumption, is a method of establishing fact without direct evidence. An inference is discretionary on the judge to make, but it must be supported by evidence.

Inferences are frequently used for the purpose of establishing the mens rea of an offence of intent, knowledge, or wilful blindness.

Inferences are necessary in establishing facts by way of circumstantial evidence, including circumstantial evidence doctrines of Recent Possession or similar fact evidence.

Inferences must be drawn from the facts which are proven. The inferred fact or proposition must be "deduced as a logical consequence from other facts...already proved or admitted."[3]

An inferred fact must be one that is "reasonably and logically drawn from a fact or group of facts established by the evidence."[4] An inference that does not properly flow from the established fact is mere conjecture and speculation.[5] Any rational conclusion must be based on evidence. The ability of a judge to make inferences should be limited, otherwise it would leave the crown in the position where they would have to disprove "every possible conjecture, no matter how irrational or fanciful".[6] The inference does not need to flow "easily" from those facts.[7]

Hodge's rule does not apply to determine the mens rea of an offence.[8]

The Court is entitled to apply "common sense" upon the consideration.[9]

Inference of State of Mind
There are generally well known inferences, that a judge will make regularly such as the inference "that one intends the natural consequences of one’s actions [in] any ... human activity, especially in light of the lack of evidence to rebut the inference."[10]

A judge cannot make a finding of improper motive on the part of a peace officer simply based on the officer's training, experience and resources.[11]

Equal Alternatives
Where the accused's post-offence conduct is "equally explained by" or "equally consistent with" two or more offences, there should be a "no probative value" instructions.[12]

Possession
The discovery of a item in a vehicle can create a presumption to infer possession by the driver.[13]

Evidence of Habit
Evidence of habitual or business practice can be sufficient to allow the inference that the events happened according to that practice.[14]

  1. R v Brodeur, 2014 NBCA 44 (CanLII)
  2. Caswell v Powell Duffryn Associated Collieries Ltd [1939] 3 All ER 722
  3. R v Latif, [2004] O.J. No. 5891(*no CanLII links) at para 4
  4. R v Shields, 2014 NSPC 21 (CanLII), per Derrick PCJ, at para 106
    R v Morrissey, 1995 CanLII 3498 (ON CA), [1995] OJ No 639 (CA) at para 52
  5. Morrissey, ibid. at para 52
    R v McIver, 1964 CanLII 248 (ON SC), [1964] O.J. No. 835, at para 9
  6. R v Torrie, 1967 CanLII 285 (ON CA), [1967] 3 CCC 303 Evans J.A. at p. 306 ("I recognize that the onus of proof must rest with the Crown to establish the guilt of the accused beyond a reasonable doubt, but I do not understand this proposition to mean that the Crown must negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused.")
    Caswell v Powell Duffy Associated Collieries Ltd., [1940] A.C. at p. 169 ("...inference must be carefully distinguished from conjecture or speculation and there can be no inferences unless there are objective facts from which to infer other facts which it is sought to establish.")
    R v Lukianchuk, [2001] BCJ No. 3000, 2001 BCSC 119 (CanLII), Romilly J. at paragraph 19: ("The criminal law requires a very high degree of proof especially for inferences consistent with guilt, but it does not demand certainty.")
  7. R v Katwaru, 2001 CanLII 24112 (ON CA), [2001] O.J. No. 209 at para 40
  8. R v Mitchell, 1964 CanLII 42 (SCC), [1964] SCR 471
    R v Cooper, [1978] 1 SCR 860, 1977 CanLII 11 (SCC)
  9. R v To, 1992 CanLII 913 (BCCA)
    see also RJR-MacDonald Inc. v Canada (Attorney General), [1995] 3 SCR 199, 1995 CanLII 64 (SCC) at paras 84 to 87 per LaForest J.
  10. R v Missions, 2005 NSCA 82 (CanLII) at para 21
    see also R v Walle, 2012 SCC 41 (CanLII), [2012] 2 SCR 438 at para 64 (“a person usually knows what the predictable consequences of his or her actions are, and means to bring them about”")
  11. R v Brodeur, 2014 NBCA 44 (CanLII)
  12. R v White, 1998 CanLII 789 (SCC), [1998] 2 SCR 72, at para 28
    R v Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 SCR 129 at pp. 145 and 147
  13. R v Nicholson, 2011 ABCA 218 (CanLII), at para 9 (“the finding of a prohibited item within a motor vehicle owned and operated by an accused is prima facie proof of possession by the accused”)
    c.f. R v Lincoln, 2012 ONCA 542 (CanLII)
  14. R v Shams, 2017 MBCA 116 (CanLII) at para 5
    R v Thompson (2001), 2001 CanLII 24186 (ON CA), 151 CCC (3d) 339, per Morden JA, at para 9 (Ont CA)
    Gerelus v Lim et al, 2008 MBCA 89 (CanLII) at para 64
    R v Ashmore, 2011 BCCA 18 (CanLII), per Frankel JA, at para 61, leave refused
    Hill, Strezos & Tanovich, Canadian Criminal Evidence, 5th ed (Toronto: Thomson Reuters Canada, 2013) (loose-leaf updated 2017, release 2) Part VI at ch 31:60.50 (online: WestlawNextCanada)

Inference of Guilt

See also: Circumstantial Evidence

A circumstantial case against an accused is proven by inference. However, the standard is different than a single factual inference. An inference made establishing the guilt of the accused can only be made where the trier-of-fact is satisfied beyond a reasonable doubt it is the only inference that can be made.[1]

There is never a burden upon the accused to establish facts which are inconsistent with guilt.[2]

  1. R v Griffin, [2009] 2 SCR 42, 2009 SCC 28 (CanLII), per Charron J, at para 33
  2. R v Pryce, 2014 BCCA 370 (CanLII) at para 10

Inference at Preliminary Inquiry

Conjecture and Speculation

The difference between conjecture and inference is not a clear one.[1]

The difference between an inference and mere speculation is considered a fine line to distinguish.[2]

A conjecture is a plausible conclusion that does not have a "compelling evidentiary foundation".[3] It is essentially a "guess".[4]

A court may not use speculative or conjectural conclusions.[5]

In an offence involving possession, a judge cannot reject a finding of possession by "raising a series of 'what-if' questions without providing any foundation in evidence". [6]

It is impermissible to speculate explanations that are "flatly contradicted" by the accused's own evidence.[7]


  1. Jones v Great Western Railway Co. (1930), 47 T.L.R. 39, at 45, 144 L.T. 194, at 202 (H.L.)
  2. See Watt's Manual of Evidence, 2011 (toronto, Carswell, 2011) at p.104 as cited in R v Balendran, 2012 ONSC 4016 (CanLII) at para 19
  3. R v Bampoe, 2013 ONCJ 355 (CanLII)
  4. Jones v Great Western Railway Co
  5. R v Fuller (1971), 1 N.R. 112 at 114(*no CanLII links) , ("[t]he tribunal of fact cannot resort to speculative and conjectural conclusions")
    See also 1973 CanLII 196 (SCC), [1975] 2 SCR 121 at 123
  6. R v Jenner, 2005 MBCA 44 (CanLII), (2005), 195 CCC (3d) 364 (M.C.A.) per Monnin J.A.
  7. R v Grover, 2007 SCC 51 (CanLII), per The Court, at para 3

Statutory Inferences

There are certain provisions within the Code that permit inferences. Those include:

Adverse Inferences

In some instances, an adverse inference may be drawn from a party's failure to call certain witnesses that are in their power to call.[1]

It is essential that the party at issue actually had the power to call the witness.[2]


There are roughly two groups of inferences. First, the adverse inference will often be drawn where a party fails "to produce a witness reasonably assumed to be favourably disposed to that party"[3] Second, the inference may be drawn where the party failing to call has "exclusive" control over the witness.[4]

The party failing to call must be given the right to explain the failure to call the witness.[5]

The inference may only be drawn where there is no other reasonable explanation for the failure to call the witness.[6]

The inference should only be drawn where it is " in respect of an issue on which the evidentiary burden rests on the party".[7]

Given the risk of shifting the onus onto the defence. Such an inference should only be drawn with the "greatest of caution" when dealing with an inference against the defence.[8]

  1. R v Ellis, 2013 ONCA 9 (CanLII) at para 45
    R v N.L.P., 2013 ONCA 773 (CanLII), at para 58 - failure leads to “the most natural inference, that the party fears to do so,” and that the “witness, if brought, would have exposed facts unfavourable to the party”
  2. R v Jolivet, 2000 SCC 29 (CanLII), [2000] S.C.J. No. 28 at para, 27
    R v Lapensee, 2009 ONCA 646 (CanLII), [2009] O.J. No. 3745 at para 41
  3. R v Ellis at para 46
  4. Ellis at para 46
    McCormick on Evidence, 6th ed. (St. Paul: Thomson West, 2006), Vol. 2, at para 264
  5. Jolivet, at para 26; Wigmore on Evidence(Chadbourn Rev., 1979), Vol. 2, at para 290
  6. Ellis at para 48
    R v Lapensee, 2009 ONCA 646 (CanLII), 99 O.R. (3d) 501, at para 42
    R v Rooke 1988 CanLII 2947 (BC CA), (1988), 40 CCC (3d) 484 (BCCA), at pp. 512-513
  7. NLP, supra at para 59
  8. Ellis, supra at para 49
    Lapensee, supra at para 45
    R v Zehr, (1980), 54 CCC (2d) 65 (Ont. C.A.), 1980 CanLII 2964 (ON CA), per Brooke JA, at p. 68

Recent Possession

General Principles

The doctrine of recent possession permits the court to make the inference that the possessor of the property had knowledge that the property was obtained in the commission of the offence, and in certain circumstances was also a party to the initial offence.[1]

Test for Recent Possession
To permit the inference, the Crown must establish 1) that the accused was found in possession of the item and 2) that the item was recently stolen. Where it can be said that the accused was found in recent possession without explanation to trier of fact may, but not necessarily, draw the inference regarding the accused's role in the theft or related offences.[2] When these elements exist, a prima facie case has been made out, which, absent any explanation, may permit the trier-of-fact to make a finding of guilt.[3]

It is not necessary to go beyond the test for recent possession and determine the accused's degree of participation. That is, whether the accused was a principle or accomplice.[4]

A jury must be instructed on the ability to make a finding of guilt on a prima facie case.[5]

Circumstantial Factors
When considering whether to make the inference of recent possession, the trier-of-fact must take into account all the circumstances.[6] This includes common sense factors such as the amount of time that passed between possession and the offence.[7]

Factors to consider whether the possession was "recent" includes:[8]

  1. the nature of the object;
  2. the rareness of the object;
  3. the readiness with which the object can, and is likely to, pass to another; and
  4. the ease of identification.

Timeliness of Possession
Recency is a matter of circumstances such as type and size of the items.[9] In certain cases recency can include periods longer than a month.[10]

  1. see R v Terrence, [1983] 1 SCR 357, 1983 CanLII 51 (SCC)
    R v Kowlyk, [1988] 2 SCR 59, 1988 CanLII 50 (SCC)
  2. R v Gagnon, 2006 MBCA 125 (CanLII)
  3. R v Newton, 1976 CanLII 157 (SCC), [1977] 1 SCR 399, at page 405 ("...where it has been established that the accused was in possession of recently stolen goods and where no explanation whatever has been advanced,... raises a prima facie case upon which [the trier is] entitled to bring in a verdict of guilty.")
  4. R v Thatcher 1987 CanLII 53 (SCC), (1987), 57 C.R. (3d), 97
  5. see Newton, supra at p. 405
  6. R v Abernathy, 2002 BCCA 8 (CanLII)
  7. Gagnon, supra at para 13
  8. Gagnon, supra
  9. R v Killam, [1973] 5 W.W.R. 3, 1973 CanLII 1347 (BC CA) at para 45
  10. e.g. R v Rimmer, 2011 BCCA 411 (CanLII)

Rebutting the Presumption

See also: Burden of Proof#"Might Reasonably Be True" Test

Where the doctrine has been invoked, the Defence can counter the presumption by way of a reasonable explanation.[1]

The presumption may be rebutted by an explanation (either in testimony or prior statement) that "might reasonably be true".[2]

The explanation can be an unsworn statement prior to trial where it is either successfully tendered by the Crown or admitted under res gestae.[3]

  1. R v Graham, [1974] SCR 206, 1972 CanLII 72, per Ritchie J
    R v Nickerson (1977) 37 CCC (2d) 337 (NSCA), 1977 CanLII 1914 (NS CA)
    R v Newton, [1977] 1 SCR 312 1976 CanLII 57, per Ritchie J
    R v L'Heureux, [1985] 2 SCR 159, 1985 CanLII 49, per Lamer J
    R v Kowlyk, [1988] 2 SCR 59, 1988 CanLII 50 (SCC), per McIntyre J
  2. R v McKenzie, 1972 CanLII 173 (SCC), [1974] SCR 233, per Ritchie J at p. 234 (SCR)
    Kowlyk, supra at para 12
  3. R v Graham, 1972 CanLII 172 (SCC), [1974] SCR 206, per Ritchie J

Case Digests

Related

Presumptions

Introduction

A presumption is a reasoning process whereby to some degree, proof of one fact (including the proven absence of a fact) is taken as evidence of another fact. For example, A is an adult, so it is presumed that A is legally competent.

There is a common law presumption of doli incapax, presuming children under the age of 14 are incapable of being criminally liable. This presumption is affirmed within the Youth Criminal Justice Act.

Evidence to the Contrary

See also: Proof of Blood Alcohol Levels#Evidence to the Contrary

Anywhere in the Criminal Code which directs a factual inference unless there is "any evidence to the contrary" (ETTC), is a mandatory presumption.

For example under s. 354(2), an obliterated serial number of a vehicle directs the inference of knowledge that the item was stolen. Where there is no evidence presented to the contrary, the court has no discretion and must conclude knowledge.[1]

Evidence to the contrary "is evidence which is not rejected and which raises a reasonable doubt as to the existence of the presumed fact."[2] However, any evidence that is rejected or disbelieved is not ETTC.[3]

The judge should look at ETTC not as evidence that must be accepted but only as evidence that is capable of raising a doubt.[4]

The ETTC standard does not create any persuasive or ultimate burden on a balance of probabilities.[5]

Accepted evidence that shows an absence of intent on an essential element for impaired driving, is ETTC.[6]

These code provisions will tend to violate s. 11(b) Charter rights by shifting the burden onto the accused. However, can remain in force under s.1 as a reasonable limitation.[7]

Effect of Satisfying ETTC
Where the accused establishes ETTC, the burden then is upon the prosecution to prove the element beyond a reasonable doubt.[8]

Offences with an ETTC Provision
The phrase "evidence to the contrary" is present in several offences:[9]

  1. R v Boyle, 1983 CanLII 1804 (ON CA), (1983), 5 CCC (3d) 193 (Ont. C.A.)
  2. Boyle, ibid.
  3. R v Proudlock, 1978 CanLII 15 (SCC), [1979] 1 S.C.R. 525 at p. 30
    R v Nolet (Charette) (1980), 4 M.V.R. 265(*no CanLII links) at p. 269, per Martin JA
    R v Clarke, 2003 ABPC 26 (CanLII), at para 17
  4. R v Tallon, 1992 ABCA 322 (CanLII), (1992) 135 A.R. 146
    R v Heisler, (1995) M.V.R. (3d) 305, 1994 ABCA 337 (CanLII), per curiam
    Clarke, supra at para 17
  5. R v Proudlock [1979] 1 SCR 525, 1978 CanLII 15 (SCC) per Pigeon, J. at page 28
    R v Dubois, 1990 CanLII 2776 (QC CA), (1990) 62 CCC (3d) 90 per Fish, JA at page 92
    R v Gibson, 1992 CanLII 2750 (SK CA), (1992) 72 CCC (3d) 28 per Bayda, C.J.S. at page 38
    Heisler, supra at page 307
    R v Oldhauser, (1998) A.J. No. 1323(*no CanLII links) per Berger, J.A. at paras 3 and 6
  6. Nolet, supra at p. 269
    R v Campbell (1974), 17 CCC (2d) 320 (Ont. C.A.), 1974 CanLII 1502 (ON CA), per Martin JA
  7. e.g. R v Downey, 1992 CanLII 109 (SCC), [1992] 2 SCR 10
  8. Proudlock, supra
    Campbell, supra
    Nolet, supra
  9. see also Fines

Reverse Onuses

Where a presumption places a reverse onus upon the defence, the burden must always be on a balance of probabilities.[1]

Constitutionality of a Reverse Onus Presumption
A reverse onus is invalid where the presumption (generally statutory) establishes a fact that is not reasonable inferred from the proven facts.[2] However, it may still stand where it is justified under s. 1 of the Charter.[3]

Reverse Onuses that have been upheld:

  • presumption of knowledge when in possession of stolen property[4]
  1. R v Tupper, 1967 CanLII 14 (SCC), [1967] SCR 589
    R v Appleby, 1971 CanLII 4 (SCC), [1972] SCR 303
  2. R v Oakes, 1983 CanLII 1850 (ON CA), (1983) 2 CCC (3d) 339 (ONCA)
  3. See Constitutional Challenges to Legislation
  4. R v Russell (1983), 4 CCC (3d) 460 (NSCA), 1983 CanLII 3491 (NS CA), per Jones JA - presumption does not violate s. 11(d)

Common Law Presumptions

A person who possesses stolen property is presumed to have knowledge of its source.[1]

A person impaired by drugs is presumed to be voluntarily impaired unless evidence establishes otherwise.[2]

There is no legal presumption that those testifying in criminal trials are telling the truth.[3]

  1. R v Kowlyk, 1988 CanLII 50 (SCC), [1988] 2 SCR 59, [1998] S.C.J. No. 66
    R v Russell (1983), 4 CCC (3d) 460 (NSCA), 1983 CanLII 3491 (NS CA), per Jones JA - presumption does not violate s. 11(d)
  2. R v King, [1962] SCR 746, 1962 CanLII 16 (SCC)
  3. R v Luciano, 2011 ONCA 89 (CanLII)

Presumption of Regularity

See also: Rule Against Collateral Attacks on Court Orders

The presumption of regularity (omnia presumuntur rite esse acta) in the legal doctrine that creates a presumption that bypasses proof regarding the accuracy and creation of documents and the correctness of actions of public officials.

The presumption of regularity states that a person who acts in a public role is presumed to be entitled to do so.[1] It also creates a rebuttable presumption that official documents, including court documents or public records, are accurate[2]

For the presumption of regularity to be invoked there should exist the following:[3]

  1. the matter is more or less in the past, and incapable of easily procured evidence;
  2. it involves a mere formality, or detail of required procedure, in the routine of a litigation or of a public officer's action;
  3. it involves to some extent the security of apparently vested rights, so that the presumption will serve to prevent an unwholesome uncertainty;
  4. that the circumstances of the particular case add some element of probability.

The presumption applies to the endorsements on an information.[4]

  1. R v Bowell (1975), 27 CCC (2d) 311(*no CanLII links)
  2. R v Mayan, 2014 MBQB 58 (CanLII) at paras 15 to 19
  3. R v Molina, 2008 ONCA 212 (CanLII) at para 12 citing Wigmore
  4. R c LO, 2008 ONCA 830 (CanLII) at para 5

Statutory Presumptions

With the presumption of sanity, the defence must prove lack of sanity on a balance of probabilities.[1]The same standard applies if raised by the Crown.[2]

  1. R v Hebert, 1954 CanLII 48 (SCC), [1955] SCR 120
    R v Smyth, [1941] SCR 17, 1940 CanLII 384 (SCC)
  2. R v Simpson (1977), 35 CCC (2d) 337, 1977 CanLII 1142 (ON CA)

Constitutional Presumptions

See Also

Judicial Notice

General Principles

Judicial notice is an exception to the rule of formal proof that requires parties to present evidence to establish all facts in a trial.[1] It permits a court to rely upon facts that are not supported by evidence on the court record.[2]

A Judge accept something as fact thereby exempting the requirement to present evidence to establish the fact where:[3]

  1. the fact is so notorious or generally accepted as not to be the subject of debate among reasonable persons; or
  2. the fact is capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy

A judge should be cautious in finding facts based on judicial notice since they are not proven by evidence under oath or tested by cross-examination.[4]

The strictness and scope of judicial notice will "vary according to the nature of the issue under consideration"[5]

Notice to Counsel
Natural justice requires that the judge notify counsel when he is taking judicial notice of fact.[6]

Form of the Evidence
It can be dangerous and potentially unfair to take judicial notice based on written materials only.[7]

Use of Social Science
There are inherent dangers in taking judicial notice of social matters where there is not a sufficient underlying record.[8]

In establishing a basis for judicial notice, social science evidence should be presented through an expert witnesses that can be cross-examined.[9]

Standard of Appellate Review
The improper taking of judicial notice is reviewed as a misapprehension of evidence. [10]

The standard of review for social and legislative facts are are the same as the standard applied to any other type of findings of fact, which is the standard of "palpable and overriding error".[11]

  1. R v Daley, 2008 NBQB 21 (CanLII), at para 15 citing McWilliams Canadian Criminal Evidence
  2. Daley, ibid. at para 15
  3. R v Potts, 1982 CanLII 1751 (ONCA), (1982), 66 CCC (2d) 219 (Ont. C.A.)
    J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 1055
    R v Find, 2001 SCC 32 (CanLII), [2001] 1 SCR 863 at para 48
    R v Williams 1998 CanLII 782, (1998) 124 CCC (3d) 481 at p. 489
    R v Spence, 2005 SCC 71, [2005] 3 SCR 458, at para 53
  4. Find, supra at para 48
  5. Cambie Surgeries Corporation v British Columbia (Attorney General), 2017 BCSC 860 (CanLII), at para 51
  6. R v Haines, [1980] 5 W.W.R. 421 at 429, 20 B.C.L.R. 260, 52 CCC (2d) 558, 1980 CanLII 2884 (BC SC) ("it is clearly contrary to the rules of natural justice for a judge to rely on information obtained after the hearing was completed without disclosing it to the parties and giving them an opportunity to meet it.")
    Pfizer Co. Ltd. v Deputy Minister of National Revenue, 1975 CanLII 194 (SCC), [1977] 1 SCR 456
  7. R v King, 2013 ABCA 3 (CanLII) at para 14
  8. R v Bjornson, 2012 ABCA 230 (CanLII), 536 AR 1, at para 8
    King, supra at paras 14 to 22
    R v Sam, 2013 ABCA 174 (CanLII)
  9. Spence, supra at para 68
  10. R v Charles, 2013 BCSC 23 (CanLII) at para 36
  11. Canada (Attorney General) v. Bedford, [2013] 3 SCR 1101, 2013 SCC 72 (CanLII), at paras 48 to 56
    c.f. RJR-MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 SCR 199

Types of Fact

Social, Legislative and Adjudicative Facts
More stringent proof should be required for "facts that are close to the center of the controversy between the parties (whether social, legislative or adjudicative) as distinguished from background facts at or near the periphery."[1]

Judicial notice of legislative and social fact should be treated as more "elastic" than adjudicative fact.[2] Courts should consider whether the fact would be accepted as not being subject to "reasonable dispute" by "reasonable people who have taken the trouble to inform themselves on the topic", taking into consideration the "purpose for which it is to be used" and "keeping in mind that the need for reliability and trustworthiness" the closer it is to the controversy".[3]

The standard "truth seeking procedures" are "not usually required for legislative facts" except where it is "critical to a judicial determination".[4]

When deciding whether to take judicial notice of legislative fact, the court should consider whether it is "essential to the case, whether they are disputed and whether it would be impossible or costly to prove them by conventional means."[5]

Simply because the Supreme Court of Canada will rely on authorities outside those presented by the parties to the trial judge, does not permit a judge to do the same.[6]

Constitutional Cases
It is well established that there is "some latitude" when considering judicial notice of legislative fact in constitutional cases.[7]

  1. Spence, supra at para 60
    Cambie Surgeries Corporation v British Columbia (Attorney General), 2017 BCSC 860 (CanLII), at para 52
  2. Spence, ibid.
    see also R v Malmo-Levin, 2003 SCC 74 (CanLII) at para 28
  3. ("... a court ought to ask itself whether such “fact” would be accepted by reasonable people who have taken the trouble to inform themselves on the topic as not being the subject of reasonable dispute for the particular purpose for which it is to be used, keeping in mind that the need for reliability and trustworthiness increases directly with the centrality of the “fact” to the disposition of the controversy.")
  4. Cambie Surgeries Corporation v British Columbia (Attorney General), supra at para 53
  5. Cambie Surgeries Corporation v British Columbia (Attorney General), supra at para 52
  6. Cambie Surgeries Corporation v British Columbia (Attorney General), supra at para 59 to 63
  7. Cambie Surgeries Corporation v British Columbia (Attorney General), supra at para 48

Permissible Examples of Judicial Notice

Location of Cities
A judge may take judicial notice of the location of cities for the purpose of establishing the jurisdiction of an offence.[1]

Alcohol
Alcoholic spirits have been acknowledge as being intoxicating.[2] However, notice cannot be taken on the degree of intoxication due to the consumption of certain amounts of alcohol upon certain body types or persons.[3]

Reference Books
Authoritative references books, almanacs, atlases, calendars, charts, textbooks, dictionaries, encyclopedia, historical documents, maps, reference works, scientific tables and the internet, can often be a source of judicial notice.[4]

Cellphone Towers and Cell phones
A judge may take judicial notice that cell phone was within a general vicinity of a cell tower recording a signal from the phone and that a travel route can be estimated based on the records of several towers.[5] The court may also find as fact that a call from a cell phone is likely to register at the tower closest to the caller without taking expert evidence.[6]

Langauge
Notice may be taken of expressions and certain slang.[7]

Prior Orders
A Court may recognize its prior orders through judicial notice without the need to provide a certified copy of the prior order.[8]

  1. e.g. R v Bednarz, [1961] 30 CCC 398, 1961 CanLII 506 (ON CA)
    R v Kuhn, (1970) 1 CCC (2d) 132, 1970 CanLII 1033 (BC SC)
    R v Thorburn, 2012 BCPC 323 (CanLII)
    R v Purcell (1975) 24 CCC (2d) 139, (NSCA), 1975 CanLII 1246 (NS CA) - judge erred in not concluding that "police station" referred to the station in Halifax, NS
  2. R v Hayes (1924), 43 CCC 398 (Ont. C.A.), 1924 CanLII 514 (ON CA) at 400-1
    McCormick v Greater Sudbury Police Service, 2010 ONSC 270 (CanLII) at para 129
  3. McCormick v Greater Sudbury Police Service at para 129
    R v Letford, 2000 CanLII 17024 (ONCA) at para 22
    R v Ostrowski, 1958 CanLII 102 (ON SC), (1958), 122 CCC 196 (Ont. H.C.) at 196-7
  4. R v Khan, 2017 ABPC 101 (CanLII), at para 42 citing McWilliams, Judicial Notice, Indisputable Sources Option, 26:30, 50 pp 26 – 26 – 26 - 29)
  5. R v Ranger 2010 ONCA 759 (CanLII)
  6. R v Hamilton, 2011 ONCA 399 (CanLII), 271 CCC (3d) 208, at paras 259, 277, and 279
    Any more precise triangulation may require expert opinion, see Hamilton, ibid., at para 280; Ranger at para 17
  7. R v Rennehan, 2005 NSSC 370 (CanLII) - a "pickup" means a type of vehicle
    R v MacAulay (1975), 11 N.B.R. (2d) 44. 25 CCC (2d) 1 (NBSCAD), 1975 CanLII 1507 (NB CA), - "O.D'd" means to overdose
    R v O'Brien, 1987 CanLII 1162 (QC CA) - "hash" was short for "hashish" which is a name for canabis resin
  8. R v Tysowski, 2008 SKCA 88 (CanLII)

Internet

Wikipedia or similar sites to not necessarily contain accurate information to take judicial notice fact.[1]

Independepent Internet Research
The judge may access the internet in order to consult with online maps such as Google maps.[2]

Use of the internet by the trial judge to consult commercial information, conduct outside of the courtroom is not appropriate.[3]

Google Maps
Canadian courts have taken judicial notice of Google maps in numerous cases.[4]

In the US, Google Maps is regularly the subject of judicial notice for geography and distances.[5]

  1. R v Balen, 2012 ONSC 2209 (CanLII) at 61
  2. R v Calvert, 2011 ONCA 379(*no CanLII links) at 2-8
  3. Generally: United States of America v Saad 2004 CanLII 9931 (ON CA), (2004), 183 CCC (3d) 97 (Ont. C.A.), at p. 110 (leave to appeal refused, [2004] S.C.C.A. No. 232)
    Ardoch Algonquin First Nation v Canada (Attorney General), 2003 FCA 473 (CanLII), [2004] 2 FCR 108 at para 16
    AstraZeneca Canada Ltd. v Apotex Inc., 2003 FCA 487 (CanLII), (2003), 30 C.P.R. (4th) 431 (F.C.A.), at paras 6-14
    R v Whittaker, 2001 ABQB 873 (CanLII), (2001), 301 A.R. 136 (Q.B.), at para 25
  4. R v Ghaleenovee, 2015 ONSC 1707 (CanLII) per Goldstein J
    R v Robinson, 2010 ONCJ 576 (CanLII)
    Yates v. Fedirchuk, 2011 ONSC 5549 (CanLII)
    R v Johnson, 2008 CanLII 64410 (ON SC),
    R v Hill, [2013] O.J. No. 3176 (Sup.Ct.)(*no CanLII links) Shaughnessy J.
    R. v. Gregory, 2009 BCCA 26 (CanLII)
  5. Rindfleisch v. Gentiva Health Sys., Inc., 752 F. Supp. 2d 246, 259 n.13 (E.D.N.Y. 2010) (“Courts commonly use [I]nternet mapping tools to take judicial notice of distance and geography.”)
    United States v. Brown, 636 F. Supp. 2d 1116, 1124 n.1 (D. Nev. 2009) (“Courts have generally taken judicial notice of facts gleaned from [I]nternet mapping tools such as Google Maps or Mapquest.”)
    McCormack v. Hiedeman, 694 F.3d 1004, 1008 n.1 (9th Cir. 2012) (relying on judicial notice of Google Maps information that “[i]t is about 138 miles from Bannock County, Idaho to Salt Lake City, Utah”)
    United States v. Perea-Rey, 680 F.3d 1179, 1182 n.1 (9th Cir. 2012) (taking judicial notice of “a Google map and satellite image” for “the purpose of determining the general location” of a home that was the subject of a suppression motion)

Legislation

Section 17 and 18 of the Canada Evidence Act requires judicial notice be taken of the laws of Canada, the provinces, the United Kingdom, as well as federal and provincial orders in council.

Judicial Notice
Imperial Acts, etc.
17. Judicial notice shall be taken of all Acts of the Imperial Parliament, of all ordinances made by the Governor in Council, or the lieutenant governor in council of any province or colony that, or some portion of which, now forms or hereafter may form part of Canada, and of all the Acts of the legislature of any such province or colony, whether enacted before or after the passing of the Constitution Act, 1867.
R.S., c. E-10, s. 17.
Acts of Canada
18. Judicial notice shall be taken of all Acts of Parliament, public or private, without being specially pleaded.
R.S., c. E-10, s. 18.


CEA

Similarly, s. 781 of the Code states:

Want of proof of order in council
781. (1) No order, conviction or other proceeding shall be quashed or set aside, and no defendant shall be discharged, by reason only that evidence has not been given

(a) of a proclamation or order of the Governor in Council or the lieutenant governor in council;
(b) of rules, regulations or by-laws made by the Governor in Council under an Act of Parliament or by the lieutenant governor in council under an Act of the legislature of the province; or
(c) of the publication of a proclamation, order, rule, regulation or by-law in the Canada Gazette or in the official gazette for the province.

Judicial notice
(2) Proclamations, orders, rules, regulations and by-laws mentioned in subsection (1) and the publication thereof shall be judicially noticed.
R.S., c. C-34, s. 715.


CCC


In the absence of an express statutory provision an official document or proclamation, including regulations and by-laws, will need to be validated by some means of proof. [1]

  1. R v Khan, 2017 ABPC 101 (CanLII), par. 37 - citing Bryant, "Law of Evidence", 3rd Ed. s.19.36 at p.1276

Impermissible Facts of Judicial Notice

It is impermissible to take judicial notice of the following:

  • A person can "only obtain a drug stronger than Extra Strength Tylenol with a prescription".[1]
  • the effect that a certain amount of alcohol will have on a person;[2]
  • where county boundary lines exist[3]
  1. R v Charles, 2013 BCSC 23 (CanLII) at para 33
  2. R v Ostrowski, 1958 CanLII 102 (ON SC), (1958), 122 CCC 196 (Ont. H.C.) at 196-7
  3. R v Eagles (1976), 31 CCC (2d) 417, 1976 CanLII 1451 (ON SC)

Admissions of Fact

General Principles

Factual admissions are made under s. 655.

Admissions at trial
655. Where an accused is on trial for an indictable offence, he or his counsel may admit any fact alleged against him for the purpose of dispensing with proof thereof.
R.S., c. C-34, s. 582.


CCC

Though the language refers to indictable offences, it is accepted that this applies to summary convictions as well under s. 795.

Making an Admission
When a factual admission is made pursuant to s. 655 it is for the Crown to state the facts. It is not open to the accused to frame the Crown's allegations so as to conform to his own purpose and then require the Crown to admit it. [1]

A factual admission can be made by counsel in court. Counsel can state for example that: “I admit that the accused did X. I admit that when he did that act, he knew Y. I admit that at that time, the accused thought or intended Z.”

The accused can waive "strict compliance" with the rule of evidence that requires sworn testimony. Instead the accused can premit the "taking of their evidence by admitting what their evidence would be as regards certain facts if those witnesses were called".[2]

Form of Admission
This form of admission is “proper and sufficient” for findings of fact by the court under s. 655 and remove the need to adduce evidence on those issues. [3]

An agreed statement of fact should be "clear, unambiguous, precise and unequivocal before acceptance by the court".[4]

Formal admissions cannot be made until there has been an allegation put against them. [5]

Effect of a Agreement Statement of Facts
If the Crown and Defence put forward evidence by submission that constitutes an agreed statement of facts, then it should be accepted by the trial judge as “conclusive of the admitted facts".[6]

If the accused makes an admission of fact, the Crown should not be allowed to refuse to accept it and then lead evidence on the issue. Once admitted, it is no longer a issue at trial.[7] The evidence covering the admitted facts and therefore must be excluded as irrelevant.[8]

The process used to generate an agreed statement of fact does not satisfy threshold reliability to be admissible for the truth of its contents under the principled exception to hearsay.[9]

Withdraw of Admission
Once an admission of fact is made it cannot be withdrawn without leave of the court.[10]

Contrast with Admission of Law
An admission of law or mixed fact and law is not binding upon a judge.[11] Such an admission can be withdrawn at any time, including on appeal.[12]

Admission of law includes opinion of whether evidence satisfies the legal requirements of legislative provision.[13]

  1. R v Castellani, 1969 CanLII 57 (SCC), [1970] SCR 910 at p. 315
    R v Dearborn (1991), 1991 CanLII 7567 (SK QB), 91 Sask. R. 112 affirmed, (1992) 97 Sask. R. 282, 1992 CanLII 8215 (SK CA)
    R v Curry (1980), 38 N.S.R. (2d) 575 (NSCA)(*no CanLII links) at para 26
    R v Falconer, 2016 NSCA 22 (CanLII) at para 45 ("Once tendered, formal admissions under s. 655 of the Criminal Code are conclusive for the trier of fact. Subject to relief being granted from the consequence of the admission, the fact admitted is conclusively established. It is not open to challenge.")
  2. R v Matheson, 1981 CanLII 202 (SCC), [1981] 2 S.C.R. 214 at p. 217
  3. R v Miljevic, 2010 ABCA 115 (CanLII) at para 18
    See also McWilliams’ Canadian Criminal Evidence pp. 22-2 to 22-5, 22-9 to 22-11 (4th ed. 2009); 9 Wigmore, Evidence in Trials at Common Law 822-24 (Chadbourne ed. 1981)
    R v Haimour, 2010 ABQB 7 (CanLII) at para 27
    R v Picariello, [1923] 2 DLR 706, 716 (S.C.C.), (1923), 39 CCC 229, 1923 CanLII 536 (SCC)
    R v Castellani 1969 CanLII 57 (SCC), [1970] SCR 310 at 315-17
    R v Park 1981 CanLII 56 (SCC), [1981] 2 SCR 64 at 73
    R v Matheson, 1981 CanLII 202 (SCC), [1981] 2 SCR 214 at 217
    R v Fertal, 1993 ABCA 277 (CanLII), (1993) 145 A.R. 225 at paras 7-9 (C.A.)
    R v Proctor 1992 CanLII 2763 (MB CA), (1992) 5 Man. R. (2d) 217, 69 CCC (3d) 436, 447 (C.A.)
    MacDonald, supra, at paras 32-33
    R v Fong 1994 ABCA 267 (CanLII), (1994) 157 A.R. 73 (C.A.) at paras 6-8
    R v Desjardins, 1998 CanLII 6149 (BC CA), (1998) 110 BCAC 33 at para 18
  4. R v Asp, 2011 BCCA 433 (CanLII) at para 40
  5. Castellani, supra
  6. R v Baksh 2005 CanLII 24918, (2005), 199 CCC (3d) 201 (Ont. S.C.J.)
  7. R v Proctor, 1992 CanLII 2763 (MB CA), (1992) 69 CCC (3d) 436 at p. 447 (“I do not think that Crown is entitled to refuse acceptance where its purpose in doing so to keep an issue alive artificially ...but if the accused is willing to make them, the Crown should not be allowed to gain entry for prejudicial evidence by refusing to accept the admissions.”)
  8. R v Handy, 2002 SCC 56 (CanLII), [2002] 2 SCR 908
    R v Clermont, 1986 CanLII 26 (SCC), [1986] 2 S. C. R. 131, at p. 136
    R v Bosley, 1992 CanLII 2838 (ON CA), (1992), 18 C. R. (4th) 347 (Ont. C. A.), at p. 360
    R v Proctor, 1992 CanLII 2763 (MB CA), (1992), 69 CCC (3d) 436 (Man. C. A.), at p. 447
  9. Principled Exception to Hearsay
  10. R v RAH, 2017 PECA 5 (CanLII), para at 51 citing Sopinka, Lederman and Bryan: The Law of Evidence in Canada, 4th Ed. (LexisNexis Canada Inc., at §19.2)
  11. RAH, supra at para 53
    Serra v Serra, 2009 ONCA 105 (CanLII)
  12. RAH, supra at para 53
    R v Baty, 1958 CanLII 93 (ONCA)
    Highly v. C.P.R., 1929 CanLII 410 (ON CA), [1930] 1 DLR 630
  13. eg. RAH, supra at para 51 to 53

Youth

Admissions
149 (1) A party to any proceedings under this Act may admit any relevant fact or matter for the purpose of dispensing with proof of it, including any fact or matter the admissibility of which depends on a ruling of law or of mixed law and fact.
Other party may adduce evidence
(2) Nothing in this section precludes a party to a proceeding from adducing evidence to prove a fact or matter admitted by another party.


YCJA

See Also

Analyzing Testimony

Findings of Fact

See also: Admissions of Fact

Only the trier-of-fact (ie. the judge or jury) can make findings of fact unless there is an agreement on facts or an admission under s. 655 of the Code.[1]

Analysis of Testimony

Tools of Analysis
When considering testimony evidence, its value comes down to four factors:[2]

  1. perception,
  2. memory,
  3. narration, and
  4. sincerity

Evidence Not to be Analyzed Separately
Facts should not be examined separately and in isolation to the standard of proof beyond a reasonable doubt.[3]

However, beyond determining whether the evidence on the whole proves guilt beyond a reasonable doubt, "it is for the trier of fact to determine how to proceed".[4]

No Choosing of Stories
When confronted with two contradictory stories, a judge does not need to make a finding of fact as to which story is correct.[5]

An approach that permits choosing of stories would "erode" the presumption of innocence and standard of proof beyond a reasonable doubt.[6] However, it is not an error to make "finding of credibility as between the complainant and the accused" as long as all the steps of further analysis are taken.[7] It is only in error should the judge treat the task as complete once a finding of credibility as between the complainant and accused.[8]

Guilt should not be based a credibility contest or choice between competing evidence.[9]

  1. see Admissions of Fact
  2. Kenneth S. Broun et al., 2 McCormick on Evidence, (6th ed.) (USA: Thomson/West, 2006), §245, at p. 125 and R v Baldree, 2012 ONCA 138 (CanLII) at para 43
  3. R v Morin, 1988 CanLII 8 (SCC), [1988] 2 SCR 345 ("facts are not to be examined separately and in isolation with reference to the criminal standard")
    R v Narwal, 2009 BCCA 410 (CanLII), [2009] BCJ No. 1941 (C.A.), at para 88
    R v Menow, 2013 MBCA 72 (CanLII)
  4. Morin, supra at para 40 ("during the process of deliberation the jury or other trier of fact must consider the evidence as a whole and determine whether guilt is established by the prosecution beyond a reasonable doubt. This of necessity requires that each element of the offence or issue be proved beyond a reasonable doubt. Beyond this injunction, it is for the trier of fact to determine how to proceed")
  5. R v Avetysan, 2000 SCC 56 (CanLII) at p 2
  6. R v DW, 1991 CanLII 93 (SCC), [1991] 1 SCR 742, at pp. 757-8 (SCR) or 409 (CCC)
    R v Avetsyan, 2000 SCC 56 (CanLII), (2000), 149 CCC (3d) 77 (S.C.C.) at paras 18-22
    R v JR, 2014 QCCA 869 (CanLII), [2014] Q.J. No. 3957 (C.A.), at para 38 (the judge “cannot simply choose one over the other. That would in effect lower the prosecution's burden from proof beyond a reasonable doubt to proof on the balance of probabilities”)
  7. R v Chittick, 2004 NSCA 135 (CanLII), at paras 23-25
  8. Chittick, ibid. at para 23-25
  9. R v MDR, 2015 ONCA 323 (CanLII)
    R v Fleig, 2014 ABCA 97 (CanLII), at para 24, ("primary concern of the framework in W(D) is that a trier of fact should not line up the Crown and defence evidence and select one over the other.")
    R v ST, 2015 MBCA 36 (CanLII), (“a trial judge cannot render a verdict in a criminal case by the process of simply deciding which competing narrative of events he or she prefers; that is the so-called ‘credibility contest’ error.”)

Acceptance of Evidence

Selective Acceptance of a Witness' Evidence
Evidence before a judge are not facts. The judge has the power to hear evidence from which factual conclusions may be made. The testimony of a witness is not a fact until the trier finds it as so. It is only for the trier to decide. The trier may accept all, some, or none of what a witness says.[1] If the witness is not believed on an issue, the evidence supporting it must be rejected. [2]

Of the evidence accepted, the trier-of-fact may associate different weights to individual parts of the evidence.[3]

Finding of Facts Limited to Issues of Dispute
It must be remembered that when assessing evidence heard at trial, it is not the court's role to "resolve the broad factual question of what happened". The judge is only obliged to decide "whether the essential elements of the charge have been proven beyond a reasonable doubt."[4]

Editing Statements
The court does have a limited power to edit statements and other forms of evidence as part of its jurisdiction over the trial process. This is usually applied where the evidence is unduly prejudicial.[5]

  1. R v DAI, 2012 SCC 5 (CanLII), [2012] 1 SCR 149, at para 72
    R v Francois, 1994 CanLII 52 (SCC), [1994] 2 SCR 827, at p. 837 or para 14
    R v BC, 2011 ONCA 604 (CanLII), at para 5 leave refused
    R v MR, 2010 ONCA 285 (CanLII), at para 6
    R v DR, 1996 CanLII 207 (SCC), 107 CCC (3d) 289 (S.C.C.) per L’Heureux-Dube J. (dissenting in result), at p.318
    R v Hunter, [2000] O.J. No. 4089 (ONCA), 2000 CanLII 16964 (ON CA), per curiam at para 5
    R v Abdullah, 1997 CanLII 1814 (ON CA), [1997] O.J. No. 2055 (C.A.), per Carthy and Goudge JJA at paras 4 to 5
    R v Mathieu (1994), 1994 CanLII 5561 (QC CA), 90 CCC (3d) 415 (Que. C.A.) at para 61 aff’d 1995 CanLII 79 (SCC), [1995] 4 S.C.R. 46, per Lamer CJ, ("...triers of fact remain free, as they have always been in the past, to accept all, part or none of the evidence of any witness... . The evidence of each witness must be considered in the light of all the other evidence.")
  2. R v Morin, (1987), 36 CCC (3d) 50 per Cory J.A.
  3. R v Howe, 2005 CanLII 253 (ON CA), (2005), 192 CCC (3d) 480 (Ont. C.A.), at para 44
  4. R v Mah, 2002 NSCA 99 (CanLII) at para 41
  5. R v Dubois, (1986), 27 CCC (3d) 325 (ONCA)(*no CanLII links)

Consequence of Findings

Reliance on Evidence
The trier-of-fact may only convict where there has been "acceptable credible evidence" that was found to be factually correct.[1] If there is "contradictory evidence" on an element of the charge the accused must be given the benefit of that doubt even if the accused evidence is rejected.[2]

No Need for Corroboration
In appropriate cases, regardless of the offence, it is reasonable to find guilt based solely on the evidence of a single witness.[3]

  1. R v Campbell, 1995 CanLII 656 (ON C.A.)
  2. R v Chan, 1989 ABCA 284 (CanLII)
    R v CWH, 1991 CanLII 3956 (BC C.A.)
    R v Miller, 1991 CanLII 2704 (ON C.A.)
  3. R v AG, 2000 SCC 17 (CanLII), [2000] 1 SCR 439, at pp. 453-4
    R v Vetrovec, 1982 CanLII 20 (SCC), [1982] 1 SCR 811, at pp. 819-820

Appellate Review

See also: Appeals

On appeal, findings of credibility cannot be interfered with unless the "assessments ... cannot be supported on any reasonable view of the evidence."[1]

An appellate court should not interfere with credibility assessments "except in very particular circumstances".[2]

Where a legal error is made in assessing credibility, there is no deference and may require intervention.[3]

The finding of a fact where there is no evidence to support it is reviewable as a question of law on a standard of correctness.[4] The same goes for interpreting the legal effect of a finding of fact.[5]

Finding of fact based on an irrelevant consideration is a question of law and reviewable on a standard of correctness.[6]

  1. R v Burke, 1996 CanLII 229 (SCC) at para 7
  2. R v RP, 2012 SCC 22 (CanLII) at para 10
  3. R v Luceno, 2015 ONCA 759 (CanLII) at para 34
  4. R v JMH, 2011 SCC 45 (CanLII) at paras 24 to 32
  5. JMH, ibid. at paras 24 to 32
  6. R v Carrano, 2011 ONSC 7718 (CanLII) at para 6

Credibility and Reliability

See also: Credibility and Standard of Appellate Review#Reviewing Findings of Credibility

"Credibility" vs "Reliability"
Credibility refers to the witness's ability to be "honesty or veracity". Reliability refers to a witnesses "accuracy".[1] A discreditable witness cannot be reliable. However, a credible witness may still be make an honest mistake.[2]

Accuracy of a witness considers their ability to (1) observe, (2) recall and (3) recount to events at issue.[3]

A credible witness can give unreliable evidence, but a non-credible witness cannot give reliable evidence.[4]

Findings of a Judge
A judge may believe all, some, or none of a witness's testimony.[5] Whatever is accepted may be allocated different weight to each piece of evidence.[6]

Given that witnesses are not presumed to tel the truth, the trial judge has no obligation to accept any uncontradicted evidence given by the witness.[7] In fact, uncontradicted evidence may be rejected by the judge on the basis of "reason, common sense and rationality".[8]

  1. R v Sanichar, 2012 ONCA 117 (CanLII), at para 69
    R v HC, 2009 ONCA 56 (CanLII), 241 CCC (3d) 45, at paras. 41-44
  2. R v JVD, 2016 ONSC 4462 (CanLII), per Tzimas SCJ, at para 92
    R v Gostick, 1999 CanLII 3125 (ON CA), [1999] O.J. No. 2357, per Finlayson JA, at paras 15 and 16
    R v Vickerson, 2005 CanLII 23678 (ON CA), [2005] O.J. No. 2798, per Weiler JA, at para 28 (ONCA)
    R v SC, 2012 CanLII 33601 (NL SCTD), [2012] N.J. No. 210, 324 Nfld & P.E.I.R. 19
  3. HC, supra at para 41
  4. HC, supra at para 41
  5. R v Cunsolo, 2011 ONSC 1349 (CanLII) at para 228 to 232
    R v Francois, 1994 CanLII 52 (SCC), [1994] 2 SCR 827, at para 14
    D.R. et al. v The Queen, 1996 CanLII 207 (SCC), (1996), 107 CCC (3d) 289 (S.C.C.) per L'Heureux-Dubé J. dissenting in result at p. 318
    R v M.R, 2010 ONCA 285 (CanLII) at para 6
    R v Hunter, 2000 CanLII 16964 (ON CA), [2000] O.J. No. 4089 (C.A.) at para 5
    R v Abdallah, 1997 CanLII 1814 (ON CA), [1997] O.J. No. 2055 (C.A.), Carthy and Goudge JJ.A, at paras 4, 5
    R v Cook, 2010 ONSC 1188 (CanLII)
  6. Cunsolo, supra at para 228
    R v Howe, 2005 CanLII 253 (ON CA), [2005] O.J. No. 39 (C.A.), at para 44
  7. R v Clark, 2012 CMAC 3 (CanLII), per Watt JA, at para 41
  8. Clark, ibid. at para 41

Analysis of Credibility

Evaluating evidence involves the assessment of a witnesses credibility and reliability. These are distinct but related concepts referring to the witness' veracity (the former) and accuracy (the latter).[1] There can be significant overlap. "Testimonial reliability" or "reliability" can often mean or include credibility.[2]

Evaluating credibility is not a scientific or intellectual process.[3]There are no hard and fast rules to apply.[4] It is not simply the application of a set of rules as much as it is "a multifactoral evaluation of the witness that includes factors such as the witness’ intelligence, demeanor, ability and capacity to observe and remember, and the intent of the witness to be truthful or deceive".[5]

It involves a "complex intermingling of impressions" based on observations in the context of "independent evidence" and "preponderance of probabilities" that are recognized as reasonable.[6]

The process can often defy verbalization, particularly where "complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events."[7]

Any case that turns on the issue of credibility between two witnesses, the main question is whether the Crown has proven the case beyond a reasonable doubt.[8] Where significant inconsistencies or contradictions exist in the complainant's evidence, the trier-of-fact must assess the evidence carefully.[9]

A failure to properly articulate the credibility concerns may amount to a reversible error.[10]

A failure to cross-examine a witness on a point that is significant to an important issue can be taken into account when evaluating credibility.[11]

Totality of Evidence
The evidence of a witness must always be assessed "in light of the totality of the evidence adduced in the proceedings".[12]

This involves considering the "whole tapestry" (or the "whole scope and nature") of the evidence.[13]

It is an error of law to evaluate reliability and credibility on the basis of individual pieces of evidence without looking at the totality of the evidence.[14]

  1. R v Morrissey, 1995 CanLII 3498 (ON CA), (1995), 22 O.R. (3d) 514 at para 33 per Doherty J.A.
    R v N.L.P., 2013 ONCA 773 (CanLII) at para 25
  2. R v Woollam, 2012 ONSC 2188 (CanLII) at para 90-111 gives detailed canvassing of use of term "reliability" also referring to see R v Murray 1997 CanLII 1090 (ON CA), (1997), 115 CCC (3d) 225 (Ont.C.A.)
    R v Thurston, [1986] O.J. No. 2011 (Gen. Div.)(*no CanLII links)
    R v KTD, [2001] O.J. No. 2890 (S.C.J.)(*no CanLII links)
  3. R v Gagnon 2006 SCC 17 (CanLII) at para 19 to 21
    R v Mesaros, 2014 ONSC 3445 (CanLII), at para 21
    R v Wadforth, 2009 ONCA 716 (CanLII) at paras 66 to 67
  4. R v White, [1947] SCR 268, 1947 CanLII 1 (SCC)
    R v SIC, 2011 ABPC 261 (CanLII) at para 19
  5. R v Lunz, 2013 ABQB 150 (CanLII)
    R v White, 1947 CanLII 1 (SCC), [1947] SCR 268 at paras 8‑10
  6. R v JFD, 2017 BCCA 162 (CanLII), at para 38
  7. Mesaros, supra at para 21
    See: R v Gagnon, 2006 SCC 17 (CanLII), [2006] 1 SCR 621, at para 20
    R v Dinardo, 2008 SCC 24 (CanLII), [2008] 1 SCR 788, at para 26
    R v REM, 2008 SCC 51 (CanLII), [2008] 3 SCR 3, at para 49
    Wadforth, supra at para 66
    R v H(W), 2013 SCC 22 (CanLII), [2013] 2 SCR 180, at paras 39-40
  8. R v Wylie, 2012 ONSC 1077 (CanLII), [2012] O.J. No. 1220 (S.C.J)
    R v Selles (1997), 1997 CanLII 1150 (ON CA), 101 O.A.C. 193 (C.A.), at pp. 207-8
    R v NM, [1994] O.J. No. 1715 (C.A.), 1994 CanLII 1549 (ON CA) at para 1
  9. Wylie, supra at para 84
  10. R v Braich, 2002 SCC 27 (CanLII) at para 23
  11. R v Carter, 2005 BCCA 381 (CanLII)
    R v Paris, 2000 CanLII 17031 (ON CA), 150 CCC (3d) 162 (Ont. C.A.)
  12. Clark, supra at para 40
  13. R v Cameron, 2017 ABQB 217 (CanLII) at para 28
    Faryna v Chorny, 1951 CanLII 252 (BC CA) ("The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which is a practical and informed person would readily recognize as reasonable in that place and in those conditions.")
  14. JMH, 2009 ONCA 834 (CanLII) – Judge incorrectly acquitted the accused on the basis that a poem of the sexual salt victim referencing doubt amounted to doubt on non-consent

Disbelief vs Fabrication

There is a distinction between the disbelief of a witness and a conclusion of fabrication.

A disbelieved alibi has no evidentiary value.[1] However, an alibi found to be fabricating can be evidence on which an inference of guilt may be made.[2]

Likewise, a disbelieved exculpatory statement has no value while a fabricated statement can be used in evidence.[3] The judge should consider the content of the statement and its connection with the charge.[4]

A finding of fabrication cannot be inferred simply on a finding of disbelief.[5] Fabrication must be found "on evidence that is independent from the evidence that contradicts or discredits the accused’s version of events".[6] The circumstance under which the disbelieved evidence was given is not "independent evidence" permitting an adverse inference.[7]

Direct evidence of fabrication however does not need to be confirmed or independently proven.[8]

This evidence includes the circumstances where an accused made a disbelieved out-of-court statement, such that it suggests the accused's intent to mislead or deflect suspicion and shows a conscious knowledge that he committed an offence.[9]

Rejecting Defence Evidence
A considered and reasoned acceptance of the Crown evidence beyond a reasonable doubt on points of conflicting evidence may be sufficient to constitute an explanation to reject defence evidence.[10]

Jury Instructions
There is a "real danger" that a jury, faced with an argument seeking that they disbelieve the exculpatory explanation of the accused, will infer guilt, especially where the exculpatory version was heard for the first time at trial.[11]

  1. R v Snelson, 2013 BCCA 550 (CanLII), at paras 23 to 32 - no need for instructions on adverse inference on rejected alibi
  2. R v Hibbert, 2002 SCC 39 (CanLII), [2002] 2 SCR 445, at paras 57-58
    R v Coutts 1998 CanLII 4212 (ON CA), (1998), 126 CCC (3d) 545 (Ont. C.A.), at paras 15-16
    R v O’Connor 2002 CanLII 3540 (ON CA), (2002), 62 O.R. (3d) 263 (C.A.), at para 17
  3. R v Nedelcu, 2012 SCC 59 (CanLII) at para 23 ("rejection of an accused's testimony does not create evidence for the Crown")
    Snelson, supra at para 27
  4. O'Connor, supra at para 18
  5. R v Cyr, 2012 ONCA 919 (CanLII) at para 78
  6. Cyr, ibid. at para 78
    O’Connor, supra, at para 21
    Coutts, supra at paras 15-16
  7. O'Connor at para 23 ("...when it is an accused's testimony which is disbelieved, the circumstance in which the accused gave the disbelieved version of events -- as part of the trial process itself -- is not considered to be independent evidence of fabrication permitting an adverse inference against the accused:... Before an adverse inference may be drawn, there must be evidence capable of showing fabrication apart from both the evidence contradicting the accused's testimony and the fact that the accused is found to have testified falsely at the trial.")
  8. R v Pollock (2004), 2004 CanLII 16082 (ON CA), 188 O.A.C. 37, 187 CCC (3d) 213, per Rosenberg J.A. at para. 155, (“[t]here is no requirement, however, that the evidence of fabrication must itself be confirmed or independently proved.”)
  9. Cyr, supra at para 79
    O'Connor, supra at para 24, 26
  10. R v TM, 2014 ONCA 854 (CanLII), 318 CCC (3d) 153, at para. 68
    R v JA, 2010 ONCA 491 (CanLII), 261 CCC (3d) 125, at paras. 22-23
    R v M, 2017 ONSC 5537 (CanLII), at para 30
  11. R v JS, 2018 ONCA 39 (CanLII) at para 63
    R v Oland, 2016 NBCA 58 (CanLII) at para 66 to 69

Factors in Evaluating Credibility and Reliability

There are many tools for assessing the credibility and reliability of a witness' testimony:[1]

  1. Inconsistencies
    1. Internal inconsistencies: consider the inconsistencies with previous statements or testimony at trial.
    2. External inconsistencies: consider the contradictory and corroborative evidence between witnesses;
  2. Bias and Partiality: assess the partiality of witnesses due to kinship, hostility, self-interest, or any other motive to favour or injure the accused;
  3. Capacity: consider the capacity of the witness to relate their testimony:
    1. ability and opportunity to observe,
    2. ability to remember and
    3. ability to communicate the details of their testimony;
  4. Justifiable error: consider whether the witness, because of the turmoil surrounding the event at the time it occurred, have been easily or understandably in error as to detail, or even as to the time of the occurrence;
  5. consider the emotional state of the witness at the time (in a calm state or panicked state, for example);
  6. if recollection was recorded, consider the timing at which notes where made;
  7. consider the demeanor of the witness in the witness box (voice tone, body language, etc)
  8. consider the manner of response, being whether the witness was forthright and responsive to questions or was the witness evasive, non-responsive, argumentative, or hesitant to answer (either at time of testimony or in prior statements);[2]
  9. consider whether
  10. consider whether common sense suggests that the evidence is impossible or highly improbable or whether it was reasonable and consistent with itself and with the uncontradicted facts.
    1. considering whether a persons' words and actions are explained and whether it matches their emotional state at the time[3]
    2. the reasonableness of a person's reaction to events
    3. evidence showing the demeanor of a complainant shortly following the offence can be useful to credibility. A person alleging a sexual assault or common assault may be quite upset when speaking to police, which may lend to credibility.[4]
    4. whether there is any embellishment or minimizing of events. Likewise, an signs of attempts at recasting evidence to suit a particular goal; putting himself in a good light,
    5. whether the witness adjusted their evidence when confronted with new evidence or simply gave different explanations for a single action.[5]
    6. whether the explanation contains an inordinate level of complexity.[6]
  1. e.g. see list in R v Jacquot, 2010 NSPC 13 (CanLII) at para 40
    R v Comer, 2006 NSSC 217 (CanLII) at para 96
    R v Snow, 2006 ABPC 92 (CanLII) at para 70
    R v McKay, 2011 ABPC 82 (CanLII) at para 14
    R v Abdirashid, 2012 ABPC 22 (CanLII), [2012] A.J. No 131 at paras 8 to 11
    Baker-Warren v. Denault, 2009 NSSC 59 (CanLII) at para 19
    Faryna v Chorny, 1951 CanLII 252 (BC CA), [1952] 2 DLR 354 (BCCA) at para 9, 10
    R v DFM, 2008 NSSC 312 (CanLII) at para 11 citing R v Ross, 2006 NSPC 20(*no CanLII links) at para 6
  2. e.g. R v McGraph, 2014 NLCA 40 (CanLII) at para 19 citing trial judge's reasons for disbelieving accused ("Her answers to other questions were often vague and evasive. When confronted by evidence that was contrary to her testimony, the accused would immediately recant and change her testimony to conform.")
  3. A judge is entitled to consider the emotional condition of the accused for consistency with the claimed offence:
    R v Murphy, 1976 CanLII 198, [1977] 2 SCR 603, Spence J. for the majority at 612.
    See also R v Sidhu, 2004 BCCA 59 (CanLII), 183 CCC (3d) 199 at para 51;
    R v Lavallee, [1993] BCJ No. 669(*no CanLII links) at paras 2, 5 and 11 (C.A.)
    R v Huang, [1989] BCJ No 1296 at 7 (C.A.)(*no CanLII links) per Macdonald J.A.; and
    R v Dorsey, [1987] O.J. No. 349(*no CanLII links) at 4-5 (C.A.)
  4. R v Mete, [1998] O.J. No. 16 (OCJ)(*no CanLII links)
  5. e.g. McGrath, supra at para 19
  6. e.g. McGrath, supra at para 19

Inconsistencies

See also: Prior Inconsistent Statements

Consistencies and inconsistencies are an "important aspect" in assessing credibility.[1]

Generally speaking, inconsistencies in a witnesses evidence must be evaluated before the judge can accept it.[2]

Inconsistencies on peripheral matters and not to the "essence" of the charges and so may be excused.[3]

A series of minor inconsistencies "may become quite significant and cause the trier of fact to have a reasonable doubt about the reliability of the witness's evidence". The trier-of-fact should consider the "totality of the inconsistencies in order to assess whether the witness's evidence is reliable".[4]

The trial judge does not need to address every inconsistency. [5]

Minor Inconsistencies
Inconsistencies between witnesses regarding "peripheral matters" such as time, speed and distance, all of which are affected by subjective assessments, will usually have a limited affect on reliability unless glaringly different. Minor differences on details can in fact enhance, rather than detract, from the credibility of the witness as too much similarity will suggest collusion. [6] Such inconsistencies should be considered in the context of the witnesses age at the time of the events.[7]

The courts should be hesitant to devalue a witnesses testimony based on minor or “perceived inconsistencies”.[8] The benefit of the doubt should be given to the witness.[9]

Major Inconsistencies
Where there are two equally credible witnesses there are a number of rules of thumb that can be applied:

  • the testimony must be contrasted with the undisputed facts to see which is the closer "fit".[10]
  • The judge should consider what is reasonably recallable and not recallable by the particular witness.
  • the judge should favour the witness who is in a better position to know a particular fact.[11]
  • where evidence is "incredible", there must be more undisputed facts to support this claim[12]

An inconsistency may or may not be significant depending on whether such errors in detail are "normal" and "to be expected" or, alternatively, are errors that "are "unlikely to be mistaken" and "demonstrate a carelessness with the truth or raise reliability issues".[13]

Where there are major inconsistencies or contradictions with with key crown witnesses, or where there are otherwise conflicting evidence, the trier-of-fact would be "carefully assess" the evidence before.[14]

  1. R v CH, 1999 CanLII 18939 (NL CA), 182 Nfld. & P.E.I.R. 32, 44 W.C.B. (2d) 162 (Nfld. C.A.) at para 23
  2. e.g. R v Wigle, 2009 ONCA 604 (CanLII) - conviction overturned because judge failed to explain why complainant's inconsistencies did not affect credibility.
    see also CH, supra at para 23
  3. R v Broesky, 2014 SKCA 36 (CanLII), at para 3
    R v Lindsay, 2012 SKCA 33 (CanLII)
  4. CH, supra at para 29
  5. R v R.S., 2014 NSCA 105 (CanLII) at para 24
  6. ??
  7. R v DLW, 2013 BCSC 1327 (CanLII) at para 129
  8. R v AF 2010 ONSC 5824 (CanLII), at para 87
    e.g. DLW, supra at para 128
  9. R v Tran 1994 CanLII 56 (SCC) at 248
  10. R v FE, BCCA 414 (CanLII), (1999), 126 BCAC 161
    R v Ross, 2002 BCSC 445 (CanLII)
  11. R v U(FJ), 1994 CanLII 1085 (ON C.A.)
  12. R v B(G), 1990 CanLII 115 (SCC), [1990] 2 SCR 57
  13. R v Smith, 2018 ABQB 199 (CanLII) at para 50
    R v MG (1994), 1994 CanLII 8733 (ON CA), [1994] OJ No 2086 at para 23, appeal discontinued [1994] SCCA No 390
    R v AM, 2014 ONCA 769 (CanLII) at para 12
  14. R v SW, 1994 CanLII 7208 (ON CA), (1994), 18 O.R. (3d) 509 (C.A.), at p. 517
    R v Oziel, 1997 CanLII 549 (ON CA), [1997] O.J. No. 1185 (C.A.), at paras 8, 9
    R v Norman 1993 CanLII 3387 (ON CA), (1993), 87 CCC (3d) 153 (Ont. C.A.), at pp. 172-4

Consistencies and Corroboration

Motive and Bias

See also: Character Evidence

The judge may take into account the existence or absence of evidence of a motive to fabricate the allegation.[1] There is no onus on the accused to establish a motive to lie on the part of the complainant. [2] Do to otherwise, would have the effect of removing the presumption of innocence.

Motive is only one factor to consider when assessing credibility.[3]

The absence of motive to fabricate should not be given undue weight to suggest that the complainant is telling the truth.[4] Suggesting that it is true unfairly bolster's the witness's credibility. Corrective jury instructions should be given if such a suggestion is made.[5]

Evidence establishing motive is always admissible, but it should not be mistaken for evidence that merely shows a history of incidents between parties.[6] The Crown may present evidence that suggests an absence of any motive on the part of the complainant to fabricate their story.[7]

Proven absence of motive is "always an important fact in favour of the accused".[8]

Where the accused theory alleges that a Crown witness lied out of self-interest, the judge may "consider that the [Crown] witness would have had no, or less, reason to be untruthful on particular points of evidence in respect of which [the accused] provided radically inconsistent testimony".[9]

It is permitted for the trial judge to conclude that the evidence of a witness are not based on actual memories but are more likely rationalizations, assumptions or believed on how they would have behaved.[10]

  1. see R v Jackson, 1995 CanLII 3506 (ON CA), [1995] O.J. No. 2471 (C.A.)
    R v LeBrocq, 2011 ONCA 405 (CanLII), [2011] O.J. No. 2323
    R v Plews, 2010 ONSC 5653 (CanLII) at para 335
    R v KGB, 1993 CanLII 116 (SCC), 79 CCC (3d) 257 (S.C.C.) at p.300
    R v Greer, 2009 ONCA 505 (CanLII), at para 5
  2. R v Batte 2000 CanLII 5750 (ON CA), (2000), 49 O.R. (3d) 321 (C.A.) at paras 120-124
    R v Krack, (1990), 56 CCC (3d) 555, 1990 CanLII 10976 (ONCA) at 561-562 (Ont. CA)
    Plews, supra at para 335
  3. Batte, supra at para 120-124
  4. R v LL, 2009 ONCA 413 (CanLII) at para 40 to 42
  5. see LL, ibid. at para 53
  6. R. v Barbour, [1938] SCR 465, 1938 CanLII 29 (SCC) at page 5 per Duff C.J.
  7. R v AJS, 1998 CanLII 18004 (NL CA)
  8. R v Lewis, [1979] 2 SCR 821, 1979 CanLII 19 (SCC) at pages 12-14 per Dickson, J.
  9. R v Laboucan, [2010] 1 SCR 397, 2010 SCC 12 (CanLII), per Charron J, at para 22
  10. R v BJT [2000] SJ No 801, 2000 SKQB 572 (CanLII), per Baynton J, at para 19
    R v Chen, 2016 ABQB 644 (CanLII), at para 122
    R v JR, 2006 CanLII 22658 (ON SC) at paras 21 to 22

Emotional State

Evidence of emotional state "may constitute circumstantial evidence confirming that the offence occurred... including the temporal nexus to the alleged offence and the existence of alternative explanations for the emotional state." [1]

Intoxication
A witnesses level of intoxication will tend to reduce the amount of reliability placed upon the witnesses evidence.[2]

  1. R v Lindsay, 2005 CanLII 24240 (ON SC), [2005] O.J. No. 2870 (S.C.J.)
  2. e.g. R v Crocker, 2015 CanLII 1001 (NL PC)

Demeanour

Credibility may be assessed from demeanour. This can include "non-verbal cues" and "body language, eyes, tone of voice, and the manner" of speaking [1] as well as "their movements, glances, hesitations, trembling, blushing, surprise or bravado".[2]

Reliability of Demeanour
However, a subjective view of demeanour can be unreliable indicator of accuracy.[3]

A judge should not decide on credibility on the strength of demeanour evidence as it would be too "dangerous".[4]

The conduct and behaviour of a witness in court should not be given too much weight.[5]

It should be recognized that witnesses are testifying in a foreign environment and are often nervous and are feeling significant pressure, especially when undergoing prolonged cross-examination.[6]

Decision Exclusively on Demeanour
A decision on credibility based solely on demeanour of a witness is an error.[7]

Demeanour evidence alone is not always considered a proper manner of assessing credibility.[8]

Demeanour by itself cannot be sufficient alone to make a conclusion on credibility or conviction, especially where there are "significant and unexplained inconsistencies in the evidence.[9]

  1. R v N.S. (2010) 102 OR (3d) 161 (CA), 2010 ONCA 670 (CanLII), per Doherty JA, at para 55, 57
  2. Laurentide motels ltd. v Beauport (City), 1989 CanLII 81 (SCC), [1989] 1 SCR 705 per L'Heureux-Dube J.
  3. Law Society of Upper Canada v Neinstein, 2010 ONCA 193 (CanLII), 99 O.R. (3d) 1 (C.A.), at para 66
    R v Smith, 2010 ONCA 229 (CanLII), at para 11
    R v GG 1997 CanLII 1976 (ON CA), (1997), 115 CCC (3d) 1 (Ont. C.A.), at pp. 6-8
    R v P.-P.(S.H.) 2003 NSCA 53 (CanLII), (2003), 176 CCC (3d) 281 (NSCA), at paras 28-30
    R v Levert 2001 CanLII 8606 (ON CA), (2001), 159 CCC (3d) 71 (Ont. C.A.), at pp. 80-2
  4. R v JAA, 2011 SCC 17 (CanLII), [2011] 1 SCR 628 at para 14 (“it would be dangerous for this Court to uphold the convictions and thus resolve the credibility issue in this case on the strength of demeanour evidence, or on the basis that one party’s version was less plausible than the other’s.”)
  5. R v Jeng, 2004 BCCA 464 (CanLII), per Ryan JA, at para 54
  6. R v Shields, 2017 BCPC 395 (CanLII), per Doherty J, at para 74
    R v DTO, 2018 BCPC 120 (CanLII), per MacCarthy PCJ at para 125
  7. e.g. R v JF, 2003 CanLII 52166 (ON CA), (2003), 177 CCC (3d) 1 at para 101
    R v Norman 1993 CanLII 3387 (ON CA), (1993), 87 CCC (3d) 153 at 173
    R v Gostick 1999 CanLII 3125 (ON CA), (1999), 137 CCC (3d) 53 at 59-61
    R v KA, 1999 CanLII 3756 (ON CA), (1999), 137 CCC (3d) 554 (Ont. C.A.), at para 44
  8. e.g. R v Penney, 2002 NFCA 24 (CanLII), [2002] N.J. No. 98 (N.L.C.A.), per Wells CJN, at para 61
  9. see R v WS, 1994 CanLII 7208 (ON CA), (1994), 90 CCC (3d) 242 (Ont. C.A.) at p. 250
    Faryna v Chorny, [1952] 2 DLR 354 (BCCA), 1951 CanLII 252 (BC CA), per O'Halloran J.A. at p. 357 ("The real test of the truth of a story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place in those conditions")

Intuition

There is some support for the proposition that judge may rely upon their intuition to determine the credibility of a witness. A judge will often invoke their appreciation that the witness has a "ring of truth".[1]

  1. R v Mervyn, 2003 YKTC 34 (CanLII)
    R v Roble, 2004 CanLII 23106 (ON CA)

Common Sense and Plausibility

It would be dangerous to uphold a conviction "on the basis that one party's version was less plausible than the other's" alone.[1] That is not to say that common sense and plausibility are not useful tools in evaluating evidence. Triers-of-fact are permitted to reject a witnesses evidence, including that of the accused, on the basis that it does not accord with "collective human understanding of the behaviour" of a person in the shoes of the alleged victim.[2]

It is said that "[h]uman nature, common sense and life's experience are indispensable when assessing credibility".[3]

  1. R v JAA, 2011 SCC 17 (CanLII), [2011] 1 SCR 628 at para 14 (“it would be dangerous for this Court to uphold the convictions and thus resolve the credibility issue in this case on the strength of demeanour evidence, or on the basis that one party’s version was less plausible than the other’s.”)
  2. R v Kontzamanis, 2011 BCCA 184 (CanLII) at para 38
  3. R v DDS, 2006 NSCA 34 (CanLII) per Saunder JA

Observations Made in Court

A judge should not reject the defence evidence based solely on observations of the witness' build to infer his capacity.[1]

  1. R v Gyimah, 2010 ONSC 4055 (CanLII), judge wrongly rejected defence evidence of difficulty in moving a mattress because the accused "looked fit"

Evidence of Collusion or Tainting

Evidence that the witness was influenced by others would be reason to give no weight to their evidence.

Collusion
There is no requirement that the judge must make an actual finding that collusion occurred in order to discount the evidence of a witness. In some circumstances it is open to the judge to rely upon an "opportunity to collude".[1] However, a witness should generally not be entirely discredited merely on the basis of opportunity.[2]

Collusion can be unintentional such as where multiple individuals watch the same news story and are influenced by the single story.[3]

Tainting of Evidence
The independence of a person's recollection can be compromised by being exposed to other persons statements.[4]

A witness who sat in on the preliminary inquiry evidence before giving a statement to police can be reason to find there is no credibility in their evidence.[5]

  1. R v Shearing, [2002] 3 SCR 33, 2002 SCC 58 (CanLII)
    R v Burke, 1996 CanLII 229 (SCC), [1996] 1 S.C.R. 474 at para 45
  2. e.g. Almasi, 2016 ONSC 2943 (CanLII), at paras 47 to 51 - witness evidnece incorrectly dismissed simply because it matched another witness believed to be lying
  3. R v Dorsey, 2012 ONCA 185 (CanLII) per MacPherson JA.
  4. Eg. R v Burton, 2017 NSSC 3 (CanLII), per Arnold J, at para 40
  5. e.g. R v Corbett, 2015 ONSC 1633 (CanLII), per Hambly SCJ, at para 10

Special Types of Testimony

Judge's must be very careful to avoid falling into an analysis which compares the two versions without assessing "the whole evidence to establish proof of guilt beyond a reasonable doubt."[1]

The trier of fact should not place much weight on exculpatory stories in absence of evidence supporting the theory.[2]

A judge must not subject an accused's testimony more scrutiny than that of the complainant.[3] The judge must apply an "even and equal level of careful analysis".[4]

There are special considerations when assessing credibility no a Charter voir dire.[5]

No Presumptions for Truthfulness or Accuracy
There is no legal presumption that those testifying in criminal trials are telling the truth or that they are testifying accurately.[6]

  1. R v Ogden, 2011 NSCA 89 (CanLII) at para 10
    R v WH 2011 NLCA 59 (CanLII)
  2. R v Jenner 2005 MBCA 44 (CanLII), (2005), 195 CCC (3d) at para 21
  3. R v Costache, 2013 ONSC 4447 (CanLII) at para 34
  4. Costache at para 34
  5. See: R v Gunsch, 2013 ABPC 104 (CanLII) at paras 27 ‑ 37
  6. R v Luciano, 2011 ONCA 89 (CanLII)
    R v Thain, 2009 ONCA 223 (CanLII), at para 32
    R v Downey, 2013 NSCA 101 (CanLII) at paras 15-20


Credibility of Accused (The W.D. Test)

The WD Test which concerns analysis of the accused testifying, has application outside of merely the accused testifying but also on any evidence called by the defence that conflicts with the Crown evidence on a "vital" issue.[1]

Assessing An Accused Cautioned Statement to Police
Where the Crown adduces the accused's statement to police as part of it case, the Court must assess that evidence which addresses a "vital issue" in the same manner as if the accused testified himself.[2]

  1. R v M, 2017 ONSC 5537 (CanLII) at para 29 at para 29 ("The W.(D.) analysis applies where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown’s case.")
    R v BD, 2011 ONCA 51 (CanLII), at para 114 ("What I take from a review of all of these authorities is that the principles underlying W.(D.) are not confined merely to cases where an accused testifies and his or her evidence conflicts with that of Crown witnesses. They have a broader sweep. Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown’s case, the trial judge must relate the concept of reasonable doubt to those credibility findings.")
    R v Morningstar, 2017 NBCA 39 (CanLII)
  2. R v Castelein and Berthelette, 2017 MBQB 173 (CanLII), at para 13 ("In deciding whether the Crown has met its burden, I must consider Mr. Berthelette’s exculpatory statement in the same manner as I would had he testified")
    R v BD, 2011 ONCA 51 (CanLII), at para 114 ("What I take from a review of all of these authorities is that the principles underlying W.(D.) are not confined merely to cases where an accused testifies and his or her evidence conflicts with that of Crown witnesses. They have a broader sweep. Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown’s case, the trial judge must relate the concept of reasonable doubt to those credibility findings. ")

Credibility of Persons from Other Cultures

Assessing Interpreter Evidence
Assessing credibility through an interpreter requires careful consideration as it is recognized as a much more difficult endeavour.[1]

Courts should not put too much weight on perceived inconsistencies where evidence is conveyed through a interpreter.[2]

  1. Sopinka, Lederman & Bryant, The Law of Evidence in Canada (2nd ed.) (Toronto: Butterworths, 1999), at s. 16.25
    R v Singh, 2016 ONSC 3688 (CanLII)
    R v Tran, 1994 CanLII 56 (SCC), [1994] 2 SCR 951, at p. 248 (court suggests that testifying through interpreter should have “benefit of the doubt” with respect to inconsistencies)
    R v X(J), 2012 ABCA 69 (CanLII), at para. 13 ("Some confusion …[is] inevitable" and can result in a record that is “is often unclear”)
    R v Zewari, 2005 CanLII 16078 (ON CA), [2005] O.J. No. 1953 (C.A.), at para. 4 (trial judge properly averted to difficulty in evaluating credibility when an interpreter is required)
    Serrurier v. City of Ottawa (1983), 1983 CanLII 1628 (ON CA), 42 O.R. (2d) 321 (C.A.), at pp. 322-23 (“Cross examination becomes more difficult, and often less effective, when each question and answer must be interpreted”)
    J.H. Wigmore, Evidence in Trials at Common Law (Chadbourn Rev.) (Toronto: Little Brown and Co., 1979), Vol. 3, §811 (quoting: “ARTHUR TRAIN, The Prisoner at the Bar 239 (1908) … It is also practically impossible to cross examine through an interpreter, for the whole psychological significance of the answer is destroyed, ample opportunity being given for the witness to collect his wits and carefully to frame his reply”)
  2. Tran, supra at p. 987 ("the courts have cautioned that interpreted evidence should not be examined microscopically for inconsistencies. The benefit of a doubt should be given to the witness")
    R v JX, 2012 ABCA 69 (CanLII) at para 13
    R v Zewari, 2005 CanLII 16078 (ON CA), [2005] O.J. No. 1953 (C.A.)(QL), at para 4
    NAFF v Minister of Immigration (2004), 221 C.L.R. 1 (H.C. Aust.), at para 30
    Sopinka, Lederman & Bryant, The Law of Evidence in Canada (2nd ed.) (Toronto: Butterworths, 1999), at s. 16.25 ("It is much more difficult to assess the credibility of evidence given through an interpreter")

Credibility of Children

Adults Testifying to Events Occurring When a Child

Adults testifying to events that occurred while they were a child should be assessed using standard factors for adult witnesses.[1] However, the evidence should be considered in the context of the age of the witness. Minor inconsistencies should be considered in light of the witnesses age at the time.[2]

Common sense should be applied to the level of "exactitude and detail" which may be missing from a child's world perspective.[3]

  1. R v DLW, 2013 BCSC 1327 (CanLII) at para 131
  2. DLW, ibid. at para 131
    R v W(R), 1992 CanLII 56 (SCC), [1992] 2 SCR 122
    R v Cuthbert, 1996 CanLII 8341 (BC CA) at para 23
  3. R v Plews, 2010 ONSC 5653 (CanLII) at para 329
    R v Curtis, 2000 BCCA 618 (CanLII) at para 8, 9

Credibility of Police Officers

It is not proper for courts to take the evidence of a police officer over that of a civilian by virtue of their position.

Police Notes

See also: Disclosure#Collection of Evidence

Police notes are no longer simply an aide-memoire simply used to refresh an officer's memory. Officers have an "inherent duty" to take notes.[1]

Without notes an officer's credibility can be diminished and his evidence can be discounted.[2]

Police notes must be independent and contemporaneous. [3] This is essential to the reliability and integrity of the officer's notes.[4] Notes are only for the purpose of assisting the officer in testifying at trial.[5] Without notes the evidence of the officer can be "sketchy at best" and will be unreliable. There must be indication that the notes are the officer's independent recollection. An officer should not be using someone else's notes to refresh their memory or else they will simply be reciting hearsay.[6]

As a general rule in an investigation involving multiple officers, notes should not be made after a collective debriefing.[7]

The absence of note taking can go to the reliability of the officer's testimony.[8] Where an officer is experienced they should be in the practice of taking notes of all relevant observations.

An officer is expected to take notes of all significant aspects of their investigation. Proper note taking is an important part of the fact-finding, as evidence should not be left to the whim of memory.[9]

It is not an acceptable excuse to not have notes where the officer “would remember it”.[10] Where notes are not taken the court is allowed to conclude that observation evidence was in fact not observed but a belief created after the investigation.[11] This is not necessarily always the case however and the judge may still accept the evidence.[12]

Memory of a police officer for things that occurred a considerably long time in the past where no notes were taken will has diminished reliability.[13]

The effect of an absence of notes will vary from case-to-case.[14]

Failure to take proper notes on observations of impairment allows a judge to find that there were insufficient evidence to form reasonable and probable grounds.[15]

  1. R v Odgers, 2009 ONCJ 287 (CanLII), [2009] O.J. No. 2592 at para 16
  2. Odgers, ibid. at para 16
  3. Schaeffer v Wood, 2011 ONCA 716 (CanLII), (2011), 107 O.R. (3d) 721 at paras 69-70 on appeal to SCC
  4. Schaeffer v Wood, ibid.
  5. Schaeffer v Wood, ibid.
  6. Schaeffer v Wood, ibid.
  7. R v Thompson, 2013 ONSC 1527 (CanLII), [2013] O.J. No. 1236 (Sup. Ct.), per Hill J, at para 212 ("[W]here multiple officers participate in investigation of an incident, their notes should be made independently and not as a collective and not after a (de)briefing where the incident is discussed as a group.")
  8. R v Tang, 2011 ONCJ 525 (CanLII)at para 53 -- police officer evidence entirely ignored due to poor notes
    R v Odgers, 2009 ONCJ 287 (CanLII)
    R v Machado, 2010 ONSC 277 (CanLII) at 120-123
  9. R v Lozanovski, 2005 ONCJ 112 (CanLII), [2005] O.C.J. 112 at p.3
  10. R v Zack (1999) OJ No 5747 (ONCJ)(*no CanLII links) at p.2
    R v Khan, 2006 OJ 2717(*no CanLII links) at 18
  11. Zack, supra at p. 2
  12. e.g. R v Thompson, 2001 CanLII 24186 (ON CA)
    R v Bennett, 2005 OJ No 4035 (ONCJ) (*no CanLII links)
  13. Khan (2006), O.J. 2717(*no CanLII links) at paras 17 to 18
    R v Hayes, 2005 OJ No 5057(*no CanLII links) at 9
    R v McGee, 2012 ONCJ 63 (CanLII) at para 66
  14. R v Noureddine, [2014] O.J. No. 1397 (OCJ), 2014 ONCJ 537 (CanLII), per Selkirk J, at paras 12 to 17
  15. R v Bero, 2014 ONCJ 444 (CanLII)

Credibility of the Complainant or Victim

Credibility for Other Types of Witnesses

Expert evidence may be admitted to establish the effect that the "code of silence" will have upon a witness including a reluctance to testify or a prior inconsistent statement.[1]

  1. e.g. R v Boswell, 2011 ONCA 283 (CanLII)

Related Topics

See Also

Bias, Interest, and Corruption in Assessing Credibility

General Principles

A witness can be questioned on their truthfulness due to bias or lack of impartiality. This includes questions that show hate, malice, affection or fear.[1] If the witness denies circumstances showing bias, then the party may call evidence to contradict it.[2]

Bias or interest only goes to credibility when the bias or interest can cause a witness to lie or exaggerate the truth to harm an opposing party or benefit their preferred party. Bias alone is not sufficient.[3]

Where a witness denies bias, it is permissible to call contradictory evidence to prove it.[4] However, if the defendant calls evidence to contradict a denial of bias, the crown has the right to call evidence to rehabilitate the witness.[5]

A witness can be asked about their communications with other witnesses before trial to suggest bias or interest.

  1. R v Bencardino, 1973 CanLII 804 (ON CA), (1973), 15 CCC (2d) 342 (Ont. C.A.), per Jessup JA
  2. R v Finnessey (1906), 10 CCC 347 (Ont. C.A.), 1906 CanLII 101 (ON CA), per Osler JA
    R v Lindlau (1978), 40 CCC (2d) 47 (Ont. C.A.), 1978 CanLII 2366 (ON CA), per Martin JA
    Attorney General v Hitchcock, [1847] 1 Ex. 91, 154 E.R. 38
    Finnessey, supra at pp. 351-2
    R v S.(A.) 2002 CanLII 44934, (2002), 159 O.A.C. 89, 165 CCC (3d) 426 (C.A.), per Feldman JA at paras 28-32
    R v Mohammed, (1991), 72 Man. R. (2d) 39 (Q.B.), aff’d , (1992), 83 Man. R. (2d) 162 (C.A.)(*no CanLII links)
    Anderson v Harding (1985), 3 CPC (2d) 87 (Ont. Dist. Ct.)(*no CanLII links)
    R v R. (D.), 1996 CanLII 207 (S.C.C.), [1996] 2 SCR 291, per Major J, at para 43
    R v McDonald, 2007 ABCA 53 (CanLII), per curiam
  3. R v Creelman v Tupper (1893) 25 N.S.R. 334 (CA)(*no CanLII links)
  4. R v McDonald, 1959 CanLII 25 (SCC), [1960] SCR 186, per Martland J
  5. R v Pargelen, 1996 CanLII 420 (ON CA), per Rosenberg JA

Doctrine of Recent Complaints

The common law doctrine of recent complaints permits the judge to make an adverse finding against credibility.

Section 275 removes this doctrine for certain offences sex offences:

Rules respecting recent complaint abrogated
275. The rules relating to evidence of recent complaint are hereby abrogated with respect to offences under sections 151 [ sexual interference ], 152 [ invitation to sexual touching ], 153 [ Sexual Exploitation (Offence) ], 153.1 [ sexual exploitation of a person with disabilities ], 155 [ incest ] and 159 [ anal intercourse ], subsections 160(2) [ Compelling the commission of bestiality ] and (3) [ Bestiality in presence of or by child ] and sections 170 [ Parent or guardian procuring sexual activity ], 171 [ Householder permitting prohibited sexual activity ], 172 [ Corrupting children ], 173 [ Indecent acts ], 271 [ sexual assault ], 272 [ sexual assault causing bodily harm or with a weapon ] and 273 [ aggravated sexual assault ].
R.S., 1985, c. C-46, s. 275; R.S., 1985, c. 19 (3rd Supp.), s. 11; 2002, c. 13, s. 12.
[annotation(s) added]


CCC

Weighing Testimony of the Accused

General Principles

When an accused testifies and their credibility is at issue, the trial judge must apply what is known as the "WD test" to determine what weight to put on their evidence.[1]

Purpose of WD Framework
The WD framework intends to explain "what reasonable doubt means in the context of conflicting testimonial accounts".[2] The WD test is to "ensure that the jury know how to apply the burden of proof to the issue of credibility. The jury must be cautioned that a trial is not a contest of credibility between witnesses, and that they do not have to accept the defence evidence in full in order to acquit." [3]

The purpose of the test is not "based on a choice between the accused's and the Crown's evidence, but on whether, based on the whole of the evidence, [the trier-of-fact] is left with a reasonable doubt".[4]

When it DW Test Applies
The DW analysis is only necessary where credibility is a central or significant issue, usually between the accused and a complainant or eye-witness, and often where there is no significant extrinsic evidence.[5]

Rule Against Shifting Burden
At no time should the trier-of-fact ever shift the burden "from the Crown to prove every element of the offence beyond a reasonable doubt".[6]

  1. R v W(D), 1991 CanLII 93 (SCC), [1991] 1 SCR 742
  2. R v JHS 2008 SCC 30 (CanLII) at para 9
  3. R v Van 2009 SCC 22 (CanLII) at para 23
    W(D) at p. 757
  4. R v CLY, 2008 SCC 2 (CanLII), [2008] 1 SCR 5, at para 8
  5. R v Daley, 2007 SCC 53 (CanLII), per Bastarache J
    R v Smith, 2018 ABQB 199 (CanLII), at para 49
  6. JHS, supra at para 13

Application

Where the accused an a complainant give contradictory evidence, the judge must apply the test from the case of R v D.W.[1]

The test in WD will primarily only apply to cases where the accused gives evidence.[2] However, the principles of DW will apply in any case where a crucial issue turns on creditability.[3]

The WD steps apply not only to the accused's testimony but also to other exculpatory evidence that emerges during a trial that relates to a "vital issue".[4]

In the context of a voir dire, the principles of D.W. do not apply.[5] Guilt or innocence is not at issue and the standard of proof is one of reasonable doubt, thus an accused will be considered in the same manner as any other witness. Thus if the accused's version conflicts with a police officer, for example, then the court must determine who is telling the truth. If the court cannot decide who is telling the truth then the applicant must fail.

Where the accused and another witness testifies for the defence, the W(D) test is applied differently.[6]

Rejection of Evidence Not Evidence of Guilt
A trial judge cannot infer guilt from the fact that the accused's evidence is not worthy of belief. This inference is only permitted where there is independence evidence of fabrication or concoction.[7]

  1. R v DW 1991 CanLII 93 (SCC), [1991] 1 SCR 742
    R v Fowler, 1993 CanLII 1907 (BCCA)
    R v CLY, 2008 SCC 2 (CanLII), [2008] 1 SCR 5
    R v McKenzie (P.N.) 1996 CanLII 4976 (SK CA), (1996), 141 Sask. R. 221 (Sask. C.A.) at para 4
    R v Rose (A.) (1992), 20 BCAC 7 (BCCA), 1992 CanLII 987 (BC CA)
    R v Currie, 2008 ABCA 374 (CanLII)
    R v BGS, 2010 SKCA 24 (CanLII)
  2. R v Warren, 2011 CanLII 80607 (NL PC) at 24
  3. R v FEE, 2011 ONCA 783 (CanLII) at para 104
  4. R v BD, 2011 ONCA 51 (CanLII) at paras 113-114
    R v Cyr, 2012 ONCA 919 (CanLII) at para 50
  5. See R v Kocovic, 2004 ABPC 190 (CanLII)
  6. see R v Van, 2009 SCC 22 (CanLII), [2009] 1 SCR 716 paras 20-23
  7. R v MacIsaac, 2017 ONCA 172 (CanLII), 347 CCC (3d) 37
    R v St. Pierre, 2017 ONCA 241 (CanLII)
    R v Turcotte, 2018 SKCA 16 (CanLII), par. 14

The "W.D." Test

The proper analysis of testimony is designed to ensure that Judges do not engage in any weighing of competing versions of events in absence of consideration of the presumption of innocence or reasonable doubt.[1]

Where the defence calls the accused to give evidence that contradicts the crown evidence, the trier of fact must determine:[2]

  1. If you believe the evidence of the Accused obviously you must acquit.
  2. If you do not believe the testimony of the Accused but you are left in reasonable doubt by it, you must acquit.
  3. Even if you are not left in reasonable doubt by the evidence of the Accused you must ask yourself whether on the basis of the evidence which you do accept you are convinced beyond a reasonable doubt by that evidence of the guilt of the Accused. 

The order of the steps are not significant but the steps must all be applied separately.[3]

It is wrong when considering conflicting evidence of credibility to "weigh" one story over the other.[4] The trier of fact cannot "prefer" one story over the other or consider who is "most" credible. The “either/or” approach, preferring one over the other should be avoided.[5] To prefer one testimony over another has the effect of reversing the onus upon the accused.[6]

There is nothing preventing a judge from believing both the complainant and the accused even where they gave divergent or contradictory evidence[7]

The real issue is not who is telling the truth, but instead, whether, on the entirety of the evidence, the crown has proven the case beyond a reasonable doubt.[8]

The purpose of the WD test is to ensure that the trier of fact "understand that the verdict should not be based on a choice between the accused’s and Crown’s evidence, but on whether, based on the whole of the evidence, they are left with a reasonable doubt as to the accused’s guilt".[9] It further intends to make clear that the burden never shifts from the Crown to prove every element of the offence.[10]

The steps of WD are not considered "watertight" compartments. The analysis at each step should take into account the evidence as a whole.[11]

  1. R v Newman, 2018 ABPC 143 (CanLII), at para 18
  2. R v W(D), 1991 CanLII 93 (SCC), [1991] 1 SCR 742, per Cory J
    R v PNM (1995), 1996 CanLII 4976 (SKCA), per Tallis JA - frames it as a four step inquiry
    R v Minuskin, 2003 CanLII 11604 (ON CA), (2004), 181 CCC (3d) 542 (Ont. C.A.), at p. 550 R v B.D., 2011 ONCA 51 (CanLII), at paras 102-14
    R v Turmel, 2004 BCCA 555 (CanLII), [2004] BCJ No. 2265 (C.A.), at paras 9-17
    R v Gray, 2012 ABCA 51 (CanLII) at para 42
    R v Vuradin, 2013 SCC 38 (CanLII) at para 21
    R v Tyers, 2015 BCCA 507 (CanLII) at paras 12, 15
    R v Mann, 2010 BCCA 569 (CanLII) at para 31
  3. R v JHS, 2007 NSCA 12 (CanLII) - on appeal to SCC
  4. R v B.G.S., 2010 SKCA 24 (CanLII) at para 9
  5. R v Challice (1979) 45 CCC 2d 546 (Ont CA), 1979 CanLII 2969 (ON CA), per Morden JA R v Morin 1988 CanLII 8 (SCC), [1988] 2 SCR 345
    R v Chan (1989) 52 CCC 3d 184 (Alta CA), 1989 ABCA 284 (CanLII), per curiam
    R v Jaura, [2006] O.J. No. 4157, 2006 ONCJ 385 (CanLII) paras 12, 13
  6. R v Abdirashid, 2012 ABPC 22 (CanLII), [2012] A.J. No 131 at para 6
  7. R v Nadeau 1984 CanLII 28 (SCC), [1984] 2 SCR 570
  8. Canadian Criminal Evidence, Second Edition, by P.R. McWilliams, Q.C., at page 652
    R v Nykiforuk (1946), 86 CCC 151 (Sask. C.A.), 1946 CanLII 202 (SK CA), per MacKenzie JA
  9. R v CLY, 2008 SCC 2 (CanLII), [2008] 1 SCR 5 at para 8
  10. JHS, supra at para 13
  11. R v Berg, 2016 SKPC 55 (CanLII) - commentary by Kovatch PCJ

Looking at Evidence as a Whole

The first two steps in the WD test require the "weighing [of] the accused's evidence together with the conflicting Crown evidence."[1]

While it was not specifically stated in the original formulation of the DW test. The judge must analyze the first step in the context of the evidence as a whole".[2]

It is essential that the court not look at any witnesses' evidence in a vacuum and instead look at it in relation to all the evidence presented as a whole. [3]

  1. R v Humphrey, 2011 ONSC 3024 (CanLII), [2011] O.J. No. 2412 (Sup. Ct.), at para 152
    see also R v Newton, 2006 CanLII 7733 (ON CA) at para 5
    R v Hull, 2006 CanLII 26572 (ON CA) at para 5
    R v Snider [2006] O.J. 879, 2006 ONCJ 65 (CanLII), per MacDonnell J at para 37
    R v Hoohing, 2007 ONCA 577 (CanLII) at para 15
  2. R v Newman, 2018 ABPC 143 (CanLII), at para 18 ("Although the phrase “in context of the evidence as a whole” is not repeated in the first step of the formula instructions, it should be read into those instructions.")
  3. R v Lake, 2005 NSCA 162 (CanLII), (2005), NSJ No. 506

First Step: Whether to Reject the Accused's Evidence

The accused's evidence should be the evidence considered first.[1]

Obligation to Give Reasons
It is necessary that in any case that turns on the accused's credibility, the judge's reasons "should disclose whether she believes or disbelieves the accused."[2]

However, where the judge fails to give reasons and the "road to conviction is nonetheless clear" the omission will not be fatal.[3]

When in Conflict with the Complainant's Evidence
It is crucial that the judge not discount the accused's evidence for the reason that the complainant is believed. Otherwise, the defence is completely neutered before even testifying. [4] Simply rejecting the accused's evidence on the basis that it conflicts with the complainant's evidence which has been accepted without explanation shifts the burden of proof unconstitutionally.[5]

There is some support to suggest that "trial judge can reject the evidence of an accused and convict solely on the basis of his acceptance of the evidence of the complainant, provided that he also gives the evidence of the defendant a fair assessment and allows for the possibility of being left in doubt, notwithstanding his acceptance of the complainant's evidence."[6]

It is certainly permissible however to reject the accused's evidence on the basis that when "stacked beside" all the other evidence.[7]

In explaining the reason to reject the accused's evidence it can be sufficient to justify it based on the reasoned acceptance beyond a reasonable doubt of a fact that conflicts with the evidence rejected. [8] This means that The accused evidence can be rejected on the sole basis that it conflicts other evidence that is accepted beyond a reasonable doubt. [9]

Impugning the accused's credibility is a permissible form of post-offence conduct.[10]

Effect of Rejection of Evidence
The rejection of the accused's evidence does not amount to evidence in favour of the Crown.[11]

A trial judge's observations that the accused testimony was "self-serving" can lead to the appearance that the judge suspects the accused testimony was inherently unreliable since it would be advantageous for him to misrepresent events in order to acquit himself.[12] Disbelieving the accused because of their self-interest to be acquitted is a reversible error.[13]

Disbelief of the accused evidence cannot be used as "positive proof of guilt by moving directly from disbelief to a finding of guilt."[14]

Accused Has No Burden to Explain the Allegations
It is not permissible to reject the accused's evidence due to the fact that the accused was unable to explain why the accuser would have made allegations against him.[15]

Effect of Rejecting the Accused's Evidence
It is an error of law to infer guilt merely from the fact that the accused's evidence has been disbelieved.[16]

  1. R v CLY, 2008 SCC 2 (CanLII), [2008] 1 SCR 5
  2. R v Lake, 2005 NSCA 162 (CanLII) at para 14 - however an implied conclusion is sufficient, see para 17
    R v Maharaj, 2004 CanLII 39045 (ON CA), 186 CCC (3d) 247(ONCA)
  3. R v Stamp, 2007 ABCA 140 (CanLII) at para 25
    R v CJJ, 2018 ABCA 7 (CanLII) at para 35
  4. R v Lake, 2005 NSCA 162 (CanLII), [2005] NSJ No 506 at para 21
  5. R v YM, 2004 CanLII 39045 (ON CA) at para 30
  6. R v Surana, 2013 ABPC 164 (CanLII) at para 78
  7. R v TS, 2012 ONCA 289 (CanLII), at para. 79 ("…as a matter of law, reasoned acceptance of a complainant’s evidence is a basis upon which a trial judge can reject the evidence of an accused and find guilt proven beyond a reasonable doubt. A reasoned and considered acceptance of the complainant evidence is as much as explanation for rejecting the contrary evidence of an accused as are problems inherent in an accused’s own testimony.")
  8. R v D. (J.J.R.), 2006 CanLII 40088 (ON CA), [2006] 215 CCC (3d) 252 at para 53 (C.A.) Doherty J. ("An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.")
  9. R v DP., 2017 ONCA 263 (CanLII) at para 23 to 25
  10. R v Jaw, 2009 SCC 42 (CanLII), [2009] 3 SCR 26 at para 39
    R v White, 1998 CanLII 789 (SCC), [1998] 2 SCR 72 at para 26
  11. R v Nedelcu, 2012 SCC 59 (CanLII) (“rejection of an accused’s testimony does not create evidence for the Crown”)
  12. R v Drescher, 2010 ABQB 94 (CanLII) at para 30
    R v Murray (1997), 1997 CanLII 1090 (ON CA), 115 CCC (3d) 225 (Ont. C.A.)
    R v B.G. (2000), O.J. No. 1347 (Ont. C.A.)(*no CanLII links)
    R v Masse (2000), O.J. No. 2687 (Ont. C.A.), 2000 CanLII 5755 (ON CA), per curiam
    R v MJ (2002), 2002 CanLII 49364 (ON CA), O.J. No. 1211 (Ont. C.A.)
  13. R v B.(L.) (1993), 1993 CanLII 8508 (ON CA)
  14. R v MQ, 2010 ONSC 61 (CanLII), per Hill J.
  15. R v J.C.H., 2011 NLCA 8 (CanLII) at para 18
  16. R v To (1992), 1992 CanLII 913 (BC CA), 16 B.C.A.C. 223 at para. 24, 28 W.A.C. 223
    R v Moore, 2005 BCCA 85 (CanLII)
    R. v. Levy (1991), 1991 CanLII 2726 (ON CA), 62 CCC (3d) 97 at 101

Second Step

The second step in WD requires that the trier-of-fact consider, after deciding not to believe the evidence of the accused, whether they "are left in reasonable doubt" by the accused's evidence.[1]

The importance of this step is to avoid the risk of a binary view of credibility analysis, which would be an error of law.[2] The trier may have a "total acceptance, total rejection, or something in between".[3] This means that where there is not a "total acceptance" the trier must consider whether, any part of the accused evidence creates doubt on an essential element of the offence.

  1. See WD, supra
  2. WD, supra
  3. R v Morin, [1988] 2 SCR 345, 1988 CanLII 8 (SCC) at p. 357 (SCR)
    R v Thatcher, [1987] 1 SCR 652

Third Step

The court simply rejecting the accused story is not enough. [1] The purpose of the third part of the test is to convey that "a complete rejection of the [accused's] evidence does not mean that his guilt is established." [2]

It is an error to "use disbelief of the accused’s evidence as positive proof of guilt by moving directly from disbelief to a finding of guilt"[3]

It is an error of law to use the disbelief of the accused's evidence as proof of guilt.[4]

  1. R v B.C.G., 2010 MBCA 88 (CanLII),[2010] M.J. No. 290 (“reasonable doubt is not forgotten” simply because a trial judge rejects “the accused’s version of events.”)
    R v Liberatore, 2010 NSCA 82 (CanLII), [2010] NSJ No. 556, at 15 stated WD prevents “a trier of fact from treating the standard of proof as a simple credibility contest”
  2. R v Gray, 2012 ABCA 51 (CanLII) at para 40
  3. R v Dore 2004 CanLII 32078 (ON CA), (2004), 189 CCC (3d) 526 (Ont. C.A.), at p. 527
    R. v H(S), [2001] O.J. No. 118 (C.A.), 2001 CanLII 24109 (ON CA), per curiam at paras 4-6
  4. R v Dore, 2004 CanLII 32078 (ON CA), (2004), 189 CCC (3d) 526 (Ont. C.A.), at p. 527
    R v H.(S.), at paras 4-6

"Fourth" Step

Several Court's of Appeal recommend an additional element to the D.W. test after the first step directing the judge that "If after careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit".[1]

A judge cannot take into account roadside statements in the assessment of the accused's credibility.[2]

  1. R v CWH 1991 CanLII 3956 (BC CA), (1991), 68 CCC (3d) 146 (BCCA)
    R v PNM (1995), 1996 CanLII 4976 (SKCA)
  2. R v Huff, [2000] O.J. No. 3487(*no CanLII links) leave to appeal to SCC denied [2000] S.C.C.A. No. 562

Other Considerations

It has sometimes been suggested that the proper approach should be to consider the accused's evidence first before looking at the complainant's evidence in order to avoid creating a burden upon the accused.[1] But this approach has had some critics.[2]

A judge may reject the accused evidence on the sole basis that it contradicts the accepted evidence.[3]

An accused's testimony which merely denies the offence and provides no further detail cannot be the basis to dismiss the testimony as unworthy of belief.[4]

  1. R v Moose, 2004 MBCA 176 (CanLII) at para 20
  2. R v D.A.M., 2010 NBQB 80(*no CanLII links) at para 53 and 56
    R v Schauman, 2006 ONCJ 304 (CanLII) at para 6
    R v C.Y.L., 2008 SCC 2 (CanLII)
    R v Currie, 2008 ABCA 374 (CanLII), [2008] A.J. No. 1212
  3. R v D. (J.J.R.) 2006 CanLII 40088 (ON CA), (2006), 215 CCC (3d) 252 (Ont. C.A.), at para 53
    R v M. (R.E.), 2008 SCC 51 (CanLII), (2008) 235 CCC (3d) 290 (S.C.C.), at para 66
    R v Thomas, 2012 ONSC 6653 (CanLII), at para 26
  4. R v Surana, 2013 ABPC 164 (CanLII) at para 71

Credibility and Reliability of Child Witnesses

General Principles

There is no fixed formula for dealing with child witnesses.[1]

Credibility of children are approached generally in the same way as adults. However, the standard of a "reasonable adult" may not be appropriate as a “reasonable child” may differ from that of an adult.[2] "Flaws, such as contradictions, in the testimony of a child may not toll so heavily against credibility and reliability as equivalent flaws in the testimony of an adult."[3] A child should not be held to the same "exacting standards" as an adult.[4] The evidence of a child must be approached on a "common sense" basis, "taking into account the strengths and weaknesses which characterize the evidence". [5]

Children "experience the world differently from adults", as such absence of details such as time and place are understandable and not necessarily fatal.[6]Stereotypes of children should be avoided.[7]

Regardless, the standard of proof for the Crown is always the same and should be examined with the same level of scrutiny.[8]

For details on the appropriate approach to assessing the evidence of children, see R v B.G. 1990 CanLII 114 (SCC), [1990] 2 SCR 30 and R v W. (R.), supra

In certain cases, guilt can be found upon the testimony of a single child witness without corroboration.[9]

Guilt may also be found despite the presence of inconsistencies on material issues, lack of recent complaint, motive to lie and concoct, passage of time, and recovered memory.[10]

The passage of a significant amount of time between the events and the laying of charges does not by itself warrant any caution.[11]

It is recognized that a child "will have a better recollection of events shortly after they occurred" than weeks or months after.[12]

The mere fact of a significant passage of time between the alleged offences and the laying of the charges does not, in itself, mandate such a caution.

Helpful guidelines were suggested in R v A.F. 2007 BCPC 345:

  1. the credibility of child witnesses must be assessed carefully (in this context, “carefully” implies no bias either towards accepting or rejecting that evidence);
  2. the standard to be applied in assessing the credibility of a child witness is not necessarily the same as that applied to a reasonable adult;
  3. allowance must be made for the fact that young children may not be able to recount precise details and may not be able to communicate precisely the “when” and the “where” of an event, but their inability to do so should not lead to the conclusion that they have misperceived what has happened to them or who has done something to them;
  4. there is no assumption or presumption at law that a child’s evidence is less reliable than an adult’s;
  5. a common sense approach must be used in assessing the credibility of a child’s evidence, having regard to the age of the child, the child’s mental development and the child’s ability to communicate;
  6. inconsistencies, particularly concerning peripheral matters such as time or place, should not have the same adverse effect on the credibility of a child as it might in the case of an adult, having regard to the age and mental development of the child and other relevant factors;
  7. the burden of proof (guilt beyond a reasonable doubt) remains unchanged when the Crown case is founded upon the evidence of a child or children. Specifically, the rules pertaining to credibility as set out by the Supreme Court of Canada in R v D.W. do not change just because the Crown’s case is founded upon such evidence.

There can be no assumption that a witness is unreliable simply because of their age.[13] However, where the age is particularly young, such as where a 6 year old is testifying to a time when he was under 2 years old, then special considerations should be made.[14]

  1. R v Marquard, 1993 CanLII 37 (SCC), [1993] 4 SCR 223
  2. R v B (G), 1990 CanLII 114 (SCC), [1990] 2 SCR 30 per McLachlin J. at para 48
    R v H.C. 2009 ONCA 56 (CanLII), (2009), 241 CCC (3d) 45 at para 42
  3. R v H.C. at para 42
  4. R v B (G) at para 48
  5. R v W. (R.), 1992 CanLII 56 (SCC), [1992] 2 SCR 122
  6. R v W. (R.) at para 24
    R v R.R.D., 2011 NLTD(G) 78(*no CanLII links)
    R v B.E.M., [2010] BCJ No. 2787 (C.A.), 2010 BCCA 602 (CanLII)
  7. R.R.D.
    B.E.M.
  8. R v B (G) at para 48
    R v W. (R.) at para 25 (the approach to child evidence does "not mean that the evidence of children should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases.")
    R v Marquard, [1993] 4 SCR 223, 1993 CanLII 37 (SCC), (1993), 85 CCC (3d) 193 (S.C.C.) at pp. 221-222
    R v W.S. (1994), 90 CCC (3d) 242 (Ont. C.A.), 1994 CanLII 7208 (ON CA), per Finlayson JA at p. 251
    R v P.B., [2011] O.J. No. 423 (S.C.J.)(*no CanLII links)
    R v T.P., 2010 CanLII 79501 (NL PC), [2010] N.J. No. 414 (P.C.)
  9. R v Vetrovec, 1982 CanLII 20 (SCC), [1982] 1 SCR 811 ("The common law, rejecting the 'numerical criterion' common to some legal systems, has traditionally held that the testimony of a single witness is a sufficient basis for a criminal conviction.")
  10. R v François, 1994 CanLII 52 (SCC), [1994] 2 SCR 827
  11. R v Betker, 1997 CanLII 1902 (ON CA) - adult testifying to abuse as child
  12. R v F. (C.C.), 1997 CanLII 306 (SCC), [1997] 3 SCR 1183, at para 19 ("It is self‑evident to every observant parent and to all who have worked closely with young people that children, even more than adults, will have a better recollection of events shortly after they occurred than they will some weeks, months or years later.")
  13. R v V. K., 1991 CanLII 5761 (BC CA) at para 18, 33
  14. R v F.(C.), 1996 CanLII 623 (ON CA) at para 18
    Marquard

Recovered Memories

The accuracy of memories of children may be affected adversely by the use of therapy. Prudence must be taken in accepting recovered memories.[1]

  1. P.C. v R.C., 1994 CanLII 7501 (ON SC)
    Z.E.B., 2006 NSSC 36 (CanLII), at para 42
    see also R v G.D.D., [1995] NSJ No 529

)

Corroboration

General Principles

See also: Analyzing Testimony

Corroborative evidence (also called "confirmatory" or "supportive" evidence) refers to evidence that has the effect of "adding of strength or reinforcement from an independent source for the truth and accuracy of the [witness's] evidence".[1]

No Common Law Requirement for Corroboration
There is no common law rule requiring corroboration in order to convict. A judge can reasonably find guilt based soley on the evidence a single witness.[2]

There is no rule requiring that intoxicated complainants must be corroborated to be relied upon for conviction.[3]

Uncontradicted Testimony
Where the testimony of a witness is uncontradicted, the trier-of-fact may rely on this in their assessment of credibility and reliability, however, need not accept the testimony as fact.[4]

Requirement of Independence
For evidence to be corroborative it must be independent.[5] Independent evidence may be circumstantial even where it does not meet the Hodge's Rule.[6] It is the independence of the corroborative evidence that makes the evidence "capable of restoring the trier’s faith in the relevant aspects of the witness’ account".[7]

Analysis of Corroboration
When considering the credibility of a complainant whose evidence may be subject to significant inconsistencies or contradictions, the judge need to look for corroboration implicating the accused. There should simply be evidence that is "capable of restoring the trier's faith in the complainant's account".[8]

Where credibility assessment requires confirmatory evidence of a crown witness, it need only be capable of affirming the trier-of-fact's faith in the complainant's account.[9]

Corroboration of Tainted Witnesses
Suspicious or tainted witnesses can corroborate each other's evidence as long as the Crown disproves collusion.[10]

In analyzing credibility it is not necessary that there be corroborative evidence that specially implicates the accused, but it should have the effect of "restoring the trier’s faith in the witness’s testimony".[11]

Corroboration With Records
Testimony that corroborates records, even those created by the accused, can be an admissible form of evidence.[12]

Appeal
What constitutes corroboration is a question of law and is reviewable on a standard of correctness.[13] Whether corroboration is needed to establish a fact is also a question of law.[14]

  1. R v Aksidan, 2006 BCCA 258 (CanLII), per D Smith JA at para 44 ("[T]he adjectives “corroborative”, “confirmatory”, and “supportive”, which, when applied to evidence, connote the adding of strength or reinforcement from an independent source for the truth and accuracy of the complainant’s evidence")
  2. R v G.(A.), 2000 SCC 17 (CanLII), [2000] 1 SCR 439, per Arbour J, at pp. 453-4
    R v Vetrovec, 1982 CanLII 20 (SCC), [1982] 1 SCR 811, per Dickson J, at pp. 819-820
  3. R v A.W., 2008 NLCA 52 (CanLII), per Rowe JA
  4. R v Prokofiew, 2012 SCC 49 (CanLII), per Moldaver J at para 11
  5. R v B. (G.), 1990 CanLII 113 (SCC), [1990] 2 SCR 3, per Wilson J
    R v Warkentin, 1976 CanLII 190 (SCC), [1977] 2 SCR 355, per de Grandpré J
    R v Dowe, 2007 NSCA 128 (CanLII), per Cromwell JA, at para. 40, 228 CCC (3d) 75, aff’d 2008 SCC 55 (CanLII), [2008] 3 S.C.R. 109, per McLachlin CJ
  6. e.g. see R v Demeter, 1975 CanLII 50 (ON CA), per curiam
    R v Boyce, 1975 CanLII 569 (ON CA), per Martin JA
  7. Dowe, supra at para 40
  8. R v Wylie, 2012 ONSC 1077 (CanLII), per Hill J at para 87
  9. Kehler v The Queen, 2004 SCC 11 (CanLII), (2004), 181 CCC (3d) 1 (S.C.C.), per Fish J, at p. 5-6
    R v Betker, 1997 CanLII 1902 (ON CA), (1997), 115 CCC (3d) 421 (Ont. C.A.), per Moldaver JA at p. 429 (leave to appeal refused [1997] S.C.C.A. No. 461, [1998] 1 SCR vi)
    R v Michaud, 1996 CanLII 211 (SCC), [1996] 2 SCR 458, per Sopinka J, at p. 459
  10. R v Winmill 1999 CanLII 1353 (ON CA), (1999), 131 CCC (3d) 380 (Ont. C.A.), per Osborne JA, at p. 409
    R v Linklater, [2009] O.J. No. 771 (C.A.), 2009 ONCA 172 (CanLII), per curiam, at paras 11-12
    R v Delorme, [2010] N.W.T.J. No. 28 (C.A.), 2010 NWTCA 2 (CanLII), per curiam, at paras 26-30
    R v Potvin, 1989 CanLII 130 (SCC), [1989] 1 SCR 525, per Wilson J at p. 554
    R v Naicker 2007 BCCA 608 (CanLII), (2008), 229 CCC (3d) 187 (BCCA), per Lowry JA at para 34 (leave to appeal refused [2008] S.C.C.A. No 45)
    R v Korski, 2009 MBCA 37 (CanLII), (2009), 244 CCC (3d) 452 (Man. C.A.), per Steel JA at para 146
    R v G.(W.G.), 2002 CanLII 41634 (ON CA), (2002), 158 O.A.C. 305 (Ont. C.A.), per Charron JA at paras 3, 5
  11. R v MC, 2014 ONCA 307 (CanLII), per LaForme JA at para 43
  12. See R v DDS, 2006 NSCA 34 (CanLII), per Saunders JA at para 18
  13. R v Parish, 1968 CanLII 120 (SCC), [1968] SCR 466, per Ritchie J
    R v Smith, 2009 ABCA 230 (CanLII), per curiam
  14. R v Hubin, 1927 CanLII 79 (SCC), [1927] SCR 442, per Aniglin CJ
    R v Steele (1924), 42 CCC 375 (SCC), 1924 CanLII 449 (SCC), per Idington J

Types of Corroboration

Types of corroboration include:

Where Corroboration is Required

When proving the following offence corroboration is required:

Prior versions of the Criminal Code required corroboration for several sexual offences. These have now been abolished by way of s. 274.

Corroboration is also required for "Vetrovec witnesses" (ie. those witnesses that are considered "disreputable").

  1. s. 47(3) "No person shall be convicted of high treason or treason on the evidence of only one witness, unless the evidence of that witness is corroborated in a material particular by evidence that implicates the accused."
  2. 133 ("No person shall be convicted of an offence under section 132 on the evidence of only one witness unless the evidence of that witness is corroborated in a material particular by evidence that implicates the accused.")
  3. s. 292 ("No person shall be convicted of an offence under this section on the evidence of only one witness unless the evidence of that witness is corroborated in a material particular by evidence that implicates the accused.")

When Corroboration is Not Required

Corroboration not required
274. If an accused is charged with an offence under section 151, 152, 153, 153.1, 155, 159, 160, 170, 171, 172, 173, 271, 272, 273, 286.1, 286.2 or 286.3, no corroboration is required for a conviction and the judge shall not instruct the jury that it is unsafe to find the accused guilty in the absence of corroboration.
R.S., 1985, c. C-46, s. 274; R.S., 1985, c. 19 (3rd Supp.), s. 11; 2002, c. 13, s. 12; 2014, c. 25, s. 16.


CCC

The offences list s. 274 consist of:

Similarly, any rules requiring children's evidence to be corroborated has been abolished.

Children’s evidence
659. Any requirement whereby it is mandatory for a court to give the jury a warning about convicting an accused on the evidence of a child is abrogated.
R.S., 1985, c. C-46, s. 659; R.S., 1985, c. 19 (3rd Supp.), s. 15; 1993, c. 45, s. 9.


CCC

See Also

Proof of Previous Conviction

General Principles

Proof of previous conviction
667. (1) In any proceedings,

(a) a certificate setting out with reasonable particularity the conviction or discharge under section 730, the finding of guilt under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, the finding of guilt under the Youth Criminal Justice Act or the conviction and sentence or finding of guilt and sentence in Canada of an offender is, on proof that the accused or defendant is the offender referred to in the certificate, evidence that the accused or defendant was so convicted, so discharged or so convicted and sentenced or found guilty and sentenced, without proof of the signature or the official character of the person appearing to have signed the certificate, if it is signed by
(i) the person who made the conviction, order for the discharge or finding of guilt,
(ii) the clerk of the court in which the conviction, order for the discharge or finding of guilt was made, or
(iii) a fingerprint examiner;
(b) evidence that the fingerprints of the accused or defendant are the same as the fingerprints of the offender whose fingerprints are reproduced in or attached to a certificate issued under subparagraph (a)(iii) is, in the absence of evidence to the contrary, proof that the accused or defendant is the offender referred to in that certificate;
(c) a certificate of a fingerprint examiner stating that he has compared the fingerprints reproduced in or attached to that certificate with the fingerprints reproduced in or attached to a certificate issued under subparagraph (a)(iii) and that they are those of the same person is evidence of the statements contained in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate; and
(d) a certificate under subparagraph (a)(iii) may be in Form 44, and a certificate under paragraph (c) may be in Form 45.

Idem
(2) In any proceedings, a copy of the summary conviction or discharge under section 730 in Canada of an offender, signed by the person who made the conviction or order for the discharge or by the clerk of the court in which the conviction or order for the discharge was made, is, on proof that the accused or defendant is the offender referred to in the copy of the summary conviction, evidence of the conviction or discharge under section 730 of the accused or defendant, without proof of the signature or the official character of the person appearing to have signed it.
Proof of identity
(2.1) In any summary conviction proceedings, where the name of a defendant is similar to the name of an offender referred to in a certificate made under subparagraph (1)(a)(i) or (ii) in respect of a summary conviction or referred to in a copy of a summary conviction mentioned in subsection (2), that similarity of name is, in the absence of evidence to the contrary, evidence that the defendant is the offender referred to in the certificate or the copy of the summary conviction.
Attendance and right to cross-examine
(3) An accused against whom a certificate issued under subparagraph (1)(a)(iii) or paragraph (1)(c) is produced may, with leave of the court, require the attendance of the person who signed the certificate for the purposes of cross-examination.
Notice of intention to produce certificate
(4) No certificate issued under subparagraph (1)(a)(iii) or paragraph (1)(c) shall be received in evidence unless the party intending to produce it has given to the accused reasonable notice of his intention together with a copy of the certificate.
Definition of “fingerprint examiner”
(5) In this section, “fingerprint examiner” means a person designated as such for the purposes of this section by the Minister of Public Safety and Emergency Preparedness.
R.S., 1985, c. C-46, s. 667; R.S., 1985, c. 27 (1st Supp.), s. 136, c. 1 (4th Supp.), s. 18(F); 1995, c. 22, s. 10; 2002, c. 1, s. 181; 2005, c. 10, s. 34; 2008, c. 18, s. 27(F); 2012, c. 1, s. 200.


CCC


If a witness denies their record, section 12(2) addresses the manner of proving it:

s.12...
How conviction proved
(2) A conviction may be proved by producing

(a) a certificate containing the substance and effect only, omitting the formal part, of the indictment and conviction, if it is for an indictable offence, or a copy of the summary conviction, if it is for an offence punishable on summary conviction, purporting to be signed by the clerk of the court or other officer having the custody of the records of the court in which the conviction, if on indictment, was had, or to which the conviction, if summary, was returned; and
(b) proof of identity.

R.S., 1985, c. C-5, s. 12; 1992, c. 47, s. 66.


CEA

See Also

Proof of Controlled Substance

General Principles

Scientific evidence is necessary to establish that a substance is a controlled substance. Mere layperson identification of drugs is not enough.[1]

The usual way of proving the nature of the substance is by a Certificate of Analysis. Under s. 51(1) of the CDSA, the certificate is presumed proof of the nature of the substance.

While a certificate is the most frequent manner of proving the nature of a controlled substance is it not mandatory.[2] Where a certificate is not used the substance can only be proven by the expert testimony of a qualified analysis.[3]

Where several stashes of drugs are found, the court may infer that the drug found in one location matches drugs that were tested and confirmed as being a controlled substance.[4]

Proof of Substance
There is some suggestion that proof of a substance as a controlled substance can in limited situations be possible without a certificate of analysis by means of circumstantial evidence.[5]

  1. R v Grant, 2001 ABCA 252 (CanLII)
  2. R v Khalif, 2014 SKQB 165 (CanLII), at para 38
  3. R v Grant, 2001 ABCA 252 (CanLII) at para 2
  4. R v Nyuon, 2014 ABCA 130 (CanLII) at paras 20 to 21
  5. R v Douglas, 2017 ONCA 609 (CanLII)

Proof by Certificate of Analysis

Certificate of analyst
51. (1) Subject to this section, a certificate or report prepared by an analyst under subsection 45(2) is admissible in evidence in any prosecution for an offence under this Act or the regulations or any other Act of Parliament and, in the absence of evidence to the contrary, is proof of the statements set out in the certificate or report, without proof of the signature or official character of the person appearing to have signed it.
Attendance of analyst
(2) The party against whom a certificate or report of an analyst is produced under subsection (1) may, with leave of the court, require the attendance of the analyst for the purpose of cross-examination.


CDSA

Continuity of possession
53. (1) In any proceeding under this Act or the regulations, continuity of possession of any exhibit tendered as evidence in that proceeding may be proved by the testimony of, or the affidavit or solemn declaration of, the person claiming to have had it in their possession.


CDSA

Certificate of Analysis

Any alleged drugs seized by police are sent to an analyst under s. 45(2) of the CDSA.

Analysis
Designation of analysts
44 The Minister may designate, in accordance with the regulations made pursuant to paragraph 55(1)(o), any person as an analyst for the purposes of this Act and the regulations.
Analysis
45 (1) An inspector or peace officer may submit to an analyst for analysis or examination any substance or sample thereof taken by the inspector or peace officer.
Report
(2) An analyst who has made an analysis or examination under subsection (1) may prepare a certificate or report stating that the analyst has analysed or examined a substance or a sample thereof and setting out the results of the analysis or examination.


CDSA

After the drugs are sent for analysis, a certificate with the results of the analysis of the substance is generated. It may be filed with the court for the truth of its contents with proper notice.

Certificate of analyst
51. (1) Subject to this section, a certificate or report prepared by an analyst under subsection 45(2) is admissible in evidence in any prosecution for an offence under this Act or the regulations or any other Act of Parliament and, in the absence of evidence to the contrary, is proof of the statements set out in the certificate or report, without proof of the signature or official character of the person appearing to have signed it.
Attendance of analyst
(2) The party against whom a certificate or report of an analyst is produced under subsection (1) may, with leave of the court, require the attendance of the analyst for the purpose of cross-examination.
...


CDSA

Where a certificate of analysis has been admitted for the proof of the type of controlled substance that was seized, there is no need to produce the actual drug in court.[1]

Objections to the admissibility of certificates must be made at the time that the certificates are tendered and not after the Crown has closed its case.[2]

Evidence to the Contrary
See "Evidence to the Contrary"

  1. R v Maltese, 1978 CanLII 1695 (ON SC)
  2. R v Dowding, 2004 BCCA 287 (CanLII)

Notice to Admit the Certificate

51.
...
Notice
(3) Unless the court otherwise orders, no certificate or report shall be received in evidence under subsection (1) unless the party intending to produce it has, before its production at trial, given to the party against whom it is intended to be produced reasonable notice of that intention, together with a copy of the certificate or report.


CDSA

Proof of notice
52. (1) For the purposes of this Act and the regulations, the giving of any notice, whether orally or in writing, or the service of any document may be proved by the oral evidence of, or by the affidavit or solemn declaration of, the person claiming to have given that notice or served that document.
Proof of notice
(2) Notwithstanding subsection (1), the court may require the affiant or declarant to appear before it for examination or cross-examination in respect of the giving of notice or proof of service.


CDSA

Service of Notice

Notice upon accused's counsel is sufficient notice.[1]

There is some question of whether service by fax of a certificate of analysis is sufficient, particularly where Rules of Court requires service more than fax.[2]

Service in relation to a proceedings on an information will equally apply to a proceedings on a replacement information.[3]

  1. R v Finlay, 1991 CanLII 1048 (BC CA), ("It has been settled law in this Province for several decades that service of a notice of intention to produce a certificate of analysis and the certificate on an accused's counsel rather than on the accused personally satisfies the requirements of s. 9(3) of the Narcotic Control Act")
  2. R v Phung, 2011 ABQB 427 (CanLII), -- in this case, fax not sufficient
  3. Finlay ("This Court has also held that a notice and certificate served in the course of proceedings on an information that is subsequently withdrawn at the trial and replaced by a second information charging the same offence is valid service and that the certificate of analysis is admissible")

Timing of Notice

There must be "reasonable notice" of the intention to admits the certificate.[1]

Factors to consider whether notice was reasonable include: [2]

  • complexity of the case;
  • time between the arrest and trial date;
  • intervention of holidays and non-work days;
  • accused's access to counsel;
  • the content of the certificate and notice;
  • prejudice created by the timing of notice;
  1. s. 51 of CDSA
  2. MacFarlane, Fraser, and Proulx "Drug Offences in Canada"


Reasonable Notice to Adduce a Certificate of Analysis

The Defence must get "reasonable notice" of the Certificate of Analysis. Reasonableness depends on the complexity of the case, amount of time passed, client's access to counsel, and the degree of prejudice created by the possibly late notice. The Crown must prove that notice was provided with notice of a "true and accurate" copy of the notice.

The Defence can ask for leave to have the Analyst brought into court for examination.

Certificate of analyst
51.
...
Notice
(3) Unless the court otherwise orders, no certificate or report shall be received in evidence under subsection (1) unless the party intending to produce it has, before its production at trial, given to the party against whom it is intended to be produced reasonable notice of that intention, together with a copy of the certificate or report.
Proof of notice
52. (1) For the purposes of this Act and the regulations, the giving of any notice, whether orally or in writing, or the service of any document may be proved by the oral evidence of, or by the affidavit or solemn declaration of, the person claiming to have given that notice or served that document.
Proof of notice
(2) Notwithstanding subsection (1), the court may require the affiant or declarant to appear before it for examination or cross-examination in respect of the giving of notice or proof of service.
...


CDSA

Oral notice accompanied by copies of the certificate served upon a receptionist, or other secretarial staff of the law office should generally not suffice.[1] Service of written notice with a copy of the certificate "may be adequate in certain circumstances".[2]

  1. R v Yonis, 2009 ABCA 336 (CanLII)
  2. Yonis

Proof of Substance by Other Means

Proof of marijuana has in rare cases be establish by "circumstantial evidence surrounding the circumstances of seizure of the substance and evidence relating to the appearance of the substance by a person claiming familiarity with the product".[1] The same has been accepted for proof of cocaine.[2]

However, court caution the use of any "short cuts" to proof that do not require a certificate.[3]

  1. R v Khalif, 2014 SKQB 165 (CanLII), at para 42
    R v Grunwald, 2008 BCSC 1738 (CanLII), [2008] BCJ No. 2464, aff'd 2010 BCCA 288 (CanLII), 257 CCC (3d) 53 at paras 37-38
    see also R v Labine (1975), 23 CCC (2d) 567, [1975] O.J. No. 235 (QL) (Ont. C.A.), 1975 CanLII 1403 (ON CA), per Martin JA at paras 13-15
    R c Marin, QCCA 254 (CanLII), [2012] J.Q. no 905 (QL), at paras 45-46
  2. Khalif, supra at para 42
    R v Campbell, 1998 CanLII 2698 (ON CA), [1998] O.J. No. 2332 (QL) (Ont. C.A.) at paras 7 to 8
  3. e.g. R v Do, 2011 ABQB 135 (CanLII) at paras 44-45
    Khalif, supra

See Also

Forms of Evidence

Real Evidence

General Principles

Real evidence consists of all tangible evidence, physical objects such as, tape recordings, computer printouts or photographs. It is evidence where "the trier of fact uses its own senses to make observations and draw conclusion, rather than being told about the object by a witness".[1] It is evidence that "conveys a relevant first-hand sense impression to the trier of fact".[2]

Real evidence, as with all other evidence, must first be relevant. Secondly, it must be authentic.

Not all physical objects are "real evidence", however. A photo line-up is not real evidence, rather it is "an aide to identification".[3]

There are two theoretical approaches to admitting photographs and videos that have been applied in courts. There is the "silent witness" theory where the images speak for themselves after they have been authenticated. Then there is the "illustrative theory" whereby the images are simply supplemental to the oral testimony of a witness.[4]

Burden
The burden of authenticating real evidence rests on the party seeking to tender the evidence.[5]

Authentication
The standard of proof for the authentication of real evidence should be "prima facie case of authentication" or "some evidence", there is no need to prove a fact on a standard of balance of probability or reasonable doubt.[6]

To be authentic the common law requires that there must be “evidence sufficient to support a finding that the evidence sought to be admitted is what it purports to be.”[7]

Real evidence may be authenticated using circumstantial evidence.[8] For example, a video may be authenticated by any witness who can provide evidence that the "video in question is a substantially accurate and fair depiction of what it purports to depict".[9]

Appeal
The standard for the admission of evidence is a question of law and reviewable on a standard of correctness.[10]

The question of the evidence meeting the standard is reviewable as mixed fact and law and reviewable on a standard of palpable and overriding error.[11]

  1. R v Letavine, 2011 ONCJ 444 (CanLII) at para 157
    See also Watt, Manual of Criminal Evidence at s. 10.01
  2. Letavine at para 157
    Watt at s. 10.01
  3. R v Swift, 2005 CanLII 34230 at para 152
  4. R v Penney, 2000 CanLII 28396 (NL SCTD), at paras 22 to 29
  5. R v Punia, 2016 ONSC 2990 (CanLII) at para 28
  6. R v Rowbotham, (1977) 33 CCC (2d) 411 (Ont. Co. Ct), 1977 CanLII 1913 (ON CJ), per Borins J - authentication of a audio recording required "prima facie case" R v Sandham, 2009 CanLII 59151 (ON SC), - authentication of an email
    R v Parsons et al., 1977 CanLII 55 (ON CA) - authentication of a audio recording requires "some evidence" R v Andalib-Goortani, 2014 ONSC 4690 (CanLII) - affirms "some evidence" standard
  7. R v Avanes et al., 2015 ONCJ 606 (CanLII)
  8. R v Bulldog, 2015 ABCA 251 (CanLII), at para 35
  9. Bulldog, ibid. at para 37
  10. R v Bulldog, 2015 ABCA 251 (CanLII) at para 17
    R v Underwood, 2008 ABCA 263 (CanLII) at para 10
  11. Bulldog at para 17
    R v Redford, 2014 ABCA 336 (CanLII) at para 12

Procedure

There is no fixed formula for submitting real evidence, however, it is recommended that a procedure for submitting evidence be followed such as:[1]

  1. call a witness with personal knowledge of the object;
  2. ask the witness to describe the object before showing it to the witness;
  3. allow the witness to examine and identify it as genuine; and
  4. ask that the object be entered as an exhibit, with the appropriate stamp applied by the clerk.

As a matter of practice, the party adducing copies of evidence, there should be two copies given to the court. One is for the witness and the other for the judge to review.[2]

It has been suggested that there is no need to introduce the real evidence in every case.[3]

  1. "Evidence: Principles and Problems" by Delisle, et al. at p. 299
  2. R v Crocker, 2015 CanLII 1001 (NL PC), at para 40
  3. R. v Donald (1958), 121 CCC 304, 28 C.R. 206 (NBCA), 1958 CanLII 470 (NB CA)
    see also R v Penney, 2000 CanLII 28396 (NL SCTD), at para 45

Demonstrative Evidence

Physical Objects

Handwriting and signatures

The trier-of-fact may make comparisons of handwriting without the need of expert evidence as it is analogous to comparison of video evidence.[1]

  1. R v Malvoisin, 2006 CanLII 33304 (ON CA), [2006] O.J. No. 3931
    R v Abdi, 1997 CanLII 4448 (ON CA), [1997] O.J. No. 2651, 34 O.R. (3d) 499

Fingerprints

Fingerprint evidence is relevant to establish that a print left in a location was from a particular person, most likely the accused, which tends to inculpate the accused. This needs to be established by expert evidence.[1]

A number of facts may be determined from fingerprints:[2]

  • whether the accused touched the object
  • whether anyone else may have touched the object
  • the manner of touch or grip the persons had on the object including the orientation of the hand(s).
  • the recency of the touching based on the cleanliness of the object, the weather, and moisture

Most often all that will be gleaned from the fingerprint is that the object was touched by the accused. It will take other circumstantial evidence to establish that the accused touched the object at the relevant time and place.[3]

This evidence can also be used to infer personal possession within the meaning of s. 4(3). When such an inference can be drawn will depend on the circumstances of the case and all the evidence. Such determination is a question of fact.[4]

  1. See Expert Evidence for details
  2. See discussion in R v D.D.T., 2009 ONCA 918 (CanLII)
  3. R v Mars 2006 CanLII 3460 (ON CA), (2006), 205 CCC (3d) 376 (Ont. C.A.), at para 19
    DDT – Acquittal entered after conviction for break and enter based solely on fingerprint evidence. It was found on reasonable to infer accuse left fingerprint during break in.
  4. R v Lepage, [1995] 1 SCR 654, 1995 CanLII 123 (SCC)

Computer Forensic Evidence

See also: Electronic Documents

Any data found on a computer that was generated by an automated process is considered real evidence.[1]

  1. R v Mondor, 2014 ONCJ 135 (CanLII) at para 17 ("...Information that is gathered and recorded electronically by an automated process, either with or without human intervention, can be introduced as real evidence...)

Photographs

In order to admit photographic evidence in Court, the party submitting the evidence must establish that:[1]

  • they accurately and truly represent the facts,
  • are fairly presented and without any intent to mislead and
  • are verified on oath by a person capable of doing so.

The person testifying to the photographs can be:[2]

  • the photographer
  • a person present when the photograph was taken
  • a person qualified to state that the representation is accurate, or
  • an expert witness

A jury or witness should not look at any images or pictures until the question of authenticity has been resolved.[3]

The age of a person in a photograph is a question of fact for the trier-of-fact, and does not need an expert.

Police sketches based on eye-witness descriptions will be admissible where the sketch artist is available for cross-examination.[4]

Appellate Review
The admissibility of photos is reviewed on the standard of correctness.[5]

  1. R v Creemer and Cormier, [1968] 1 CCC 14, 1967 CanLII 711 (NS CA) per MacQuarrie JA at 22
    R v Schaffner, [1988] NSJ No. 334, 1988 CanLII 7108 (NS CA), per Matthews JA, at pp. 509-511
    R v Murphy, 2011 NSCA 54 (CanLII) at para 48
    R v Maloney (No. 2) (1976), 29 CCC (2d) 431 (Ont. Co. Ct.), 1976 CanLII 1372 (ON CJ)
    R v Penney, 2002 NFCA 15 (CanLII)
    R v J.S.C., 2013 ABCA 157 (CanLII), [2013] A.J. No. 455 (C.A.)
    R v Adams, 2011 NSCA 54 (CanLII)
    R v Andalib-Goortani, 2014 ONSC 4690 (CanLII)
    Sydney N. Lederman, Alan W. Bryant and Michelle K. Fuerst, The Law of Evidence in Canada, 4th edition (Toronto: LexisNexis, 2014), at pp. 44-45 and pp. 1294-1296
    David Watt, Watt’s Manual of Criminal Evidence, 2013 (Toronto: Thomson Reuters, 2014), at p. 88
    David Paciocco, The Law of Evidence, 6th ed. (Toronto: Irwin Law, 2011), at p. 462
  2. Schaffner, supra
  3. R v Andalib-Goortani, 2014 ONSC 4690 (CanLII)
  4. R v Sophonow, 1986 CanLII 104 (MB CA), (1986) 25 CCC (3d) 415
  5. R v Blea, 2012 ABCA 41 (CanLII), [2012] AJ No 106 at para 31

Autopsy and Crime Scene Photographs

Graphic photographs of autopsies or crime scenes should not be admitted where the "inflamatory and prejudicial effect" of the pictures outweigh the probative value.[1]

In jury trials, the judge must be particularly cautious to protect the accused's right to a trial.[2]

The most typical purpose of admitting autopsy photographs themselves include:[3]

  1. to illustrate the facts on which experts base their opinion and to illustrate the steps by which they arrive at their opinions;
  2. to illustrate minutiae of objects described in the testimony of a witness, e.g., to show the nature and the extent of the wounds;
  3. to corroborate testimony and provide a picture of the evidence and to assist the jury in determining its accuracy and weight;
  4. to link the injuries of the deceased to the murder weapon;
  5. to provide assistance as to the issues of intent and whether the murder was planned and deliberate;
  6. to help the jury determine the truth of the theories put forth by the crown or defence, e.g.: as to which accused committed the crime; as to whether the crime was committed in self-defence;

The judge is recommended to evaluate the photographs or videos as follows:[4]

  1. identify the issues to which the photos are relevant;
  2. The judge must determine the probative value of the evidence assessing its tendency to prove a fact in issue in the case including the credibility of the witnesses.
  3. The judge must determine the prejudicial effect of the evidence because of its tendency to prove matters which are not in issue ... or because the risk that the jury may use the evidence improperly to prove a fact in issue.
  4. The judge must balance the probative value against the prejudicial effect having regard to the importance of the issues for which the evidence is legitimately offered against the risk that the jury will use it for other improper purposes, taking into account the effectiveness of any limiting instructions.

The photos must also be "dependably accurate, fair and authentic.[5]

The judge can consider the regularity in which the public are exposed to imagery of brutality and violence when evaluating the prejudice arising from the photographs.[6] Given the growing exposure of the public to graphic violence, there is a growing trend to permit admission of materials so long as the evidence is sufficiently probative.[7]

  1. R v Sipes, 2011 BCSC 920 (CanLII)
    see also R v C.L.S., 2009 MBQB 130 (CanLII)
    R v Hindessa, 2009 CanLII 48837 (ON SC)
    R v J.S.R., 2008 CanLII 54304 (ON SC), 236 CCC (3d) 486 (S.C.J.)
    R v Sandham, 2008 CanLII 84097 (ON SC), 2008 CarswellOnt 9312 (S.C.J.)
    R v Bartkowski, 2004 BCSC 442 (CanLII)
    R v Kinkead, 1999 CanLII 14909 (ON SC), 1999 CarswellOnt 1264 (S.C.J.)
    R v Hill, 2010 ONSC 6321 (CanLII)
    R v Ansari, 2008 BCSC 1415 (CanLII)
  2. Sipes, supra at para 21
  3. R v C.L.S. et al., 2009 MBQB 130 (CanLII), at para 5
    R v Schaefer, [1993] O.J. No. 71 (Ont. Ct of Jus. (Gen. Div.))(*no CanLII links) at para 24
    see also R v Currie, 2000 CanLII 22822 (ON SC), [2000] O.J. No. 392 (Sup. Ct. of Just.), per Dambrot J, at para 6
  4. R v Dupe, 2010 ONSC 6440 (CanLII), per Dambrot J, at para 5
    R v Kinkead, 1999 CanLII 14909 (ON SC), 1999 CarswellOnt 1264 (S.C.J.)
  5. R v Teerhuis-Moar, 2009 MBQB 22 (CanLII), [2009] M.J. No. 27 (Q.B.) at para 66
  6. Kinkead, supra at para 17
  7. e.g. Sipes, supra at para 23 ("we are exposed to more violence in more graphic detail, and are less likely to be swayed by terrible images ...Therefore, there should be few cases where photographs or videotapes are excluded because of their inflammatory prejudice - provided they have probative value to the case making them worth seeing")

Photographs in Lieu of Exhibits

See Proof of Ownership

Audio and Video Recordings

The requirements for admitting video evidence is similar as those of photos. Specifically, in the case of video tape there is the added danger of potential of tape alterations (editing, slow-motion replay, etc.), so the judge must be even more cautious when admitting video evidence. Accordingly, if it "is established that a videotape has not been altered or changed, and it depicts the scene of a crime, then it becomes admissible and relevant evidence."[1]

Onus
The onus is on the Crown to establish that the video is authentic.[2] The necessary standard will vary depending on "the substantial accuracy of the video recording, taking into account the purpose for which the evidence is tendered and the relative need for precision or accuracy in the video recording."[3]

Authentication
Authenticating a video tape does not require expert evidence however should include some details verifying the accuracy of the tape to the recording system, the date of recording, the accuracy of the time stamp, and identify the setup of the system.[4]

There is no obligation to prove that the video was unaltered before it can be authenticated as long as it is "substantially accurate and fair representation".[5] However, if it proven that the tape was not altered or changed and it depicts relevant information than it will be admissible.[6]

Proof of the tape's integrity is not necessary to admission.[7]Nor is proof of the speaker's identity.[8]

Where someone can only authenticate parts of the video and not others, it remains open to the judge to only admit those parts that were authenticated, excluding those segments that were not spoken to.[9]

Gaps in a video tape should generally go to weight.[10] This however should normally be accompanied by some explanation as to the reasons there are gaps.[11]

Best Evidence Rule
The best evidence rule has minimal, if any application, to a copy of a video recording as opposed to the original.[12]

Weight
Sufficiency of quality and clarity of a video is a question of fact. Review is limited.[13]

Corroboration
As long as the video recording is of sufficient quality, the trier-of-fact can identify the accused without corroborating evidence.[14]

The video footage evidence is considered real evidence and so cannot be said to "hearsay".[15]

Excessive editing of a video tape may have created sufficient distortions that would render a video tape inadmissible on the basis of lack of authenticity and reliability.[16]

Video Statement
For a videotape statement to be admissible it must be possible for the trier of fact to "form a fair and reliable assessment of the substance" of what is recorded. Where there may be issues to adequately here and understand the content the judge may require a transcript be made to assist the trier of fact before admitting it.[17]

During an investigation by police, they may audio or video record any part of their interactions with witnesses or accused. There is no requirement that the subject consent to the police's actions but it would be expected that the police put the subject on notice that they are being recorded.[18]

Judge required a transcript before admitting video statement of a complaint in a sex assault case.[19]

A typed transcript however is not part of the legal duty of the crown to disclose relevant evidence.[20]

  1. R v Nikolovski 1996 CanLII 158 (SCC), [1996] 3 SCR 1197 ("Once it is established that a videotape has not been altered or changed, and it depicts the scene of a crime, then it becomes admissible and relevant evidence. Not only is the tape (or photograph) real evidence in the sense that that term has been used in earlier cases, but is to a certain extent, testimonial evidence as well")
    R v Penney (2002), 2002 NFCA 15 (CanLII), 163 CCC (3d) 329 (Nfld. & Lab. C.A.), at pp. 335 and 342
    R v Andalib-Goortani, 2014 ONSC 4690 (CanLII)
  2. R v Antone, 2015 BCSC 1243 (CanLII), at para 33
  3. R v Crawford, 2013 BCSC 2402 (CanLII) at para 49
    see also Browning Harvey Ltd. v NLAPPE Local 7003 and Persons Unknown, 2007 NLTD 10 (CanLII)
  4. Doughty
    see also Browning Harvey Ltd. v NLAPPE Local 7003 and Persons Unknown
  5. R v Bulldog, 2015 ABCA 251 (CanLII) at para 33 ("It follows that the Crown’s failure to establish that this video recording was not altered should not be fatal, so long as the Crown proves that it is a substantially accurate and fair representation of what it purports to show.")
  6. Nikolovski, supra at para 28
  7. R v Punia, 2016 ONSC 2990 (CanLII) at para 29
  8. Punia, ibid. at para 29
  9. R. v Caughlin (1987), 40 CCC (3d) 247 (B.C. Co. Ct.), 1987 CanLII 6771 (BC SC)
    R v Penney, 2000 CanLII 28396 (NL SCTD), at para 39
  10. R v Penney, 2000 CanLII 28396 (NL SCTD), at para 38
  11. Penney at para 40
  12. Penney at paras 41 to 43
  13. R v Abdi, 2011 ONCA 446 (CanLII), at para 6
  14. R v Nikolovski 1996 CanLII 158 (SCC), [1996] 3 SCR 1197
    R v Leaney, 1987 ABCA 206 (CanLII), (1987) 38 CCC (3d) 263
  15. see Nikolovski, supra
  16. R v Doughty, 2009 ABPC 8 (CanLII), [2009] AJ No 34
  17. R v Broomfield, 2010 NLTD 202 (CanLII)
  18. R v Young, 2009 ONCA 891 (CanLII) at para 9
  19. Broomfield, supra
  20. Broomfield, supra

Video re-enactments

Courts should be cautious when dealing with video re-enactments where the accused is not participating. It may have the tenancy to overly influence the jury.[1] Nevertheless, the admissibility turns on whether the prejudicial effect outweighs the probative value.[2]

  1. R v MacDonald 2000 CanLII 16799 (ON CA), (2000), 134 O.A.C. 167 at 36
  2. MacDonald, ibid. at 41

Audio

Audio recording are to be treated in the same manner as witness testimony, but with the added weight provided that it is a more accurate record of past conversations. The use of private recorded conversations in a criminal trial usually requires a voir dire to be held.

A police officer can give evidence of the accused's natural voice at time arrest to establish voice identification as long as their is no trickery used to induce the accused to speak.[1]

A recording of an accused's voice post arrest for the purpose of voice identification does not require a caution or warrant.[2]

  1. R v Lepage, 2008 BCCA 132 (CanLII)
  2. R v Wu, 2010 ABCA 337 (CanLII)

Child Pornographic Images and Video

See also: Child Pornography (Offence)

In practice images and videos are typically admitted by way of the adducing of digital storage media (such as a CD/DVD) accompanied by a printed sample of the materials and/or a written description of the contents of the media.[1]

During a trial, where the accused has formally admitted to the nature of the images or videos being child pornography and so viewing is not essential to the issue before the Court, the Crown can be prevented from leading evidence of the images that must be viewed by the judge. Instead, it is entirely in the discretion of the court to review the exhibits during trial.[2]

Judges are required to accept into evidence and review images of child pornography submitted by the Crown as part of sentencing where the usual exclusionary principles do not apply.[3] This includes reviewing the contents of discs should they be provided to the court.[4]

There does not seem to be a strict requirement to introduce sample images before the court where there is consent of the defence.[5]

  1. e.g. R v Twigg, 2013 ONCJ 96 (CanLII) at para 1
  2. R v Haimour, 2010 ABQB 7 (CanLII) considered but not ruled on in R v Haimour, 2011 ABCA 143 (CanLII) at para 13
  3. R v Hunt, 2002 ABCA 155 (CanLII) at para 16
    R v P.M., 2012 ONCA 162 (CanLII)
  4. R v P.M.
  5. e.g. R v Ahmed, 2012 ONCJ 71 (CanLII) at para 28

See also Disclosure#Disclosing Child Pornographic Materials

See Also

Demonstrative Evidence

General Principles

Demonstrative evidence includes charts, models, and experiments. They are used as tools to assist the judge in their understanding the of case. They are not "real evidence" is the strictest meaning as they are not objects that form part of the incident.

Demonstrative evidence is also called "illustrative evidence"[1]

With demonstrative evidence, there is no need for the formal authentication. Instead, the only standard is that of whether the evidence is relevant and whether it is an accurate representation of what it is supposed to depict. The primary consideration of the court is whether the item can assist the court or whether it warps or distorts the fact-finding process.[2]

Demonstrative evidence is frequently excluded where it has too great a prejudicial effect by creating "emotional responses such as pity, revulsion, or contempt".[3]

  1. McWilliams' Canadian Criminal Evidence (Hill, Tanovich & Strezos) at 23:30.10
  2. Delisle, Stuart, Tanovich, "Evidence: Principles and Problems" 7th Ed. at p. 301
  3. see R v MacDonald, 2000 CanLII 16799 (ON CA), per curiam, at para 37

Experiments and Re-Enactments

Experimental evidence is admissible as demonstrative evidence.

Where the experimental evidence is relevant and materials it will tend to be admitted, unless the discretionary exclusion rule is applied.[1]

If the evidence requires inferences using special knowledge, the adducing party will need to admit it as expert evidence.[2]

The courts generally are very cautious about allowing demonstrative evidence in the form of in-court experiments as the environment of a court does not allow for a good duplication of the events at issue.[3] This includes video re-enactment performed by officers.[4]

As a general rule, the relevancy and admissibility will depend on the degree of accuracy the recreation is to the original event.[5]

Experiments in more controlled situations are more likely to be admitted. A ballistics expert who takes a firearm used in an alleged shooting can be permitted to perform tests on the weapon to determine its accuracy.[6]

Anytime that experiments are admitted before a jury, limiting instructions should be given.[7]

  1. R v Collins, 2001 CanLII 24124 (ON CA), (2001), 160 CCC (3d) 85 (Ont. C.A.), per Charron J at para 21
    R v Cyr, 2012 ONCA 919 (CanLII), per Watt J at para 119
  2. Cyr, ibid. at para 119
  3. See R v Howard and Trudel, (1983) 3 CCC (3d) 399 (ONCA), 1983 CanLII 3507 (ON CA), per Howland CJO - Judge refused demo
  4. R v MacDonald, 2000 CanLII 16799 (ON CA), (2000) 146 CCC 3d 525 (ONCA), per curiam - video of police re-enacting struggle denied
    R v Nikitin, 2003 CanLII 18062 (ON CA), (2003), 176 CCC (3d) 225, per MacPherson JA - video of school bus crossing re-enactment permitted
  5. Cyr, supra at para 120
    Collins, supra at para 22
    R v Nikitin, supra at para 14
  6. Collins, supra
  7. Cyr, supra at para 121
    Nikitin, supra at para 15

Slideshows

A PowerPoint slideshow summarizing text messages is not to be put into evidence. Rather it is a illustrative tool of evidence already in evidence.[1]

Demonstrative aids are not meant to be "tools for advocacy or to paint a picture of one party's position".[2]

  1. R v Pan, 2014 ONSC 6055 (CanLII), per Boswell J
  2. R v Kanagasivam, 2016 ONSC 2250 (CanLII), per Fairburn J at para 49

Summaries and Charts

See also: Traditional Exceptions to Hearsay

Summary of evidence into a chart or table can assist the judge "in understanding the entire picture represented by voluminous documentary evidence".[1]

Where the jury are given a copy of a chart it is important that the judge give instructions that the charts are not evidence and are merely aids.[2]

Summaries should be verified for correctness either by inspection or through cross-examination of the maker.[3]

Generally, summaries should be based on admitted evidence.[4]

  1. R v Moman, 2011 MBCA 34 (CanLII), per M Monnin JA at paras 30 to 32
  2. R v Bengert, 1980 CanLII 321 (BC CA), per curiam
  3. R v Scheel (1978), 42 CCC (2d) 31 (Ont.C.A.), 1978 CanLII 2414 (ON CA), per Martin JA, at pp. 35-36 citing Wigmore
  4. Scheel, ibid.

Animations

Comptuer animations depicting moving objects can be of great assistance. However, since it can overwhelm the testimony that it attempts to assist, it must be treated as "re-enactment" evidence.[1]

  1. R v Suzack, [1995] OJ No 4237 (Ont. Gen. Div.)(*no CanLII links) - animation showing bullet trajectory

Views

A “view” is where the trier-of-fact, be it judge or jury, is permitted to attend the location of an event at issue in trial to better understand the evidence. The view may be requested by either party or on the judge’s motion under s. 652:

View
652. (1) The judge may, where it appears to be in the interests of justice, at any time after the jury has been sworn and before it gives its verdict, direct the jury to have a view of any place, thing or person, and shall give directions respecting the manner in which, and the persons by whom, the place, thing or person shall be shown to the jury, and may for that purpose adjourn the trial.
Directions to prevent communication
(2) Where a view is ordered under subsection (1), the judge shall give any directions that he considers necessary for the purpose of preventing undue communication by any person with members of the jury, but failure to comply with any directions given under this subsection does not affect the validity of the proceedings.
Who shall attend
(3) Where a view is ordered under subsection (1), the accused and the judge shall attend.
R.S., c. C-34, s. 579.


CCC

For a detailed review of law, see R v Polimac, 2006 CanLII 40110 (ON SC)

Some courts have taken the position that a view is not a form of evidence, but is merely an aid to understanding the evidence.[1]

Appellate Review
The decision to allow a view is a discretionary one and should not be interfered with unless it was "unreasonable".[2]

  1. R v Rideout, 1999 CanLII 18942 (NL CA), [1999] N.J. No. 294, per Roberts JA
    R v Stacey, 2016 CanLII 89811 (NL SCTD), per Handrigan J at para 5
  2. R v Qhasimy, 2018 ABCA 228 (CanLII), per curiam, at para 15

"Interests of Justice"

The meaning of the phrase "interests of justice" changes depending on its context within the Code.[1]

The order is made where it “is in the interest of justice”. This requires that the viewing of the location add something to the evidence. While the viewing itself does not amount to evidence, it is intended to be an aid that helps facilitate an understanding of the evidence.[2]

Consequently, the view can be taken even after the close of evidence.[3]

The decision to allow a view is an exercise of discretion.[4]

  1. R v Stacey, 2016 CanLII 89811 (NL SCTD), per Handrigan J at para 3
    R v Bernardo, 1997 CanLII 2240 (ON CA), per Doherty JA at p. 131
  2. R v Nasrallah, 2012 ONSC 2124 (CanLII), per Ray J
  3. R v Welsh, 1997 CanLII 2570 (BCCA), [1997] BCJ No 2343, per Finch JA
  4. R v Paradis (1976), 38 CCC (2d) 455 (Q.C.A.), 1976 CanLII 1356 (QC CA), per Kaufman JA - refused a view while jury deliberating

Documentary Evidence

Introduction

Documentary evidence is any kind of evidence on which relevant information is printed upon. [1]

This generally includes paper records, such as court documents, business records, personal papers, etc.

It can also include electronic documents[2] or materials reducible to writing that is stored on machines, including: [3]

  • tape recordings[4]
  • video tapes
  • microfiche [5]
  • computer records

Documentary evidence in civil matters governed by provincial legislation have a variety of definitions in different jurisdictions.[6]

Under s. 40 of the Evidence Act allows documents to be admissible using provincial rules of evidence that apply.[7]

  1. R v Daye, [1908] 2 KB 333 at 340
    c.f. Fox v Sleeman, [1897], O.J. No. 222 (1897),17 P.R. 492 (Ont. H.C.J.)(*no CanLII links) at para 14 per Amour C.J. citing Digest of the Law of Evidence, Sir J.F. Stephen, describing it as "any matter expressed or described upon any substance by means of letters, figures, or marks, or by more than one of these means, intended to be used, or which may be used, for the purpose of recording that matter."
  2. eg. see s. 30(12) of the CEA
  3. Sopkina, The Law of Evidence in Canada at ss.18.1
  4. R v Swartz, (1977) 37 CCC 2d 409, 1977 CanLII 1925 (ON CA) at 410 (ONCA)
  5. R v Sanghi (1971) 3 NSR 2d 70 (NSCA), 1971 CanLII 1275 (NS CA)
    Canada Evidence Act s.31
  6. Ontario Rules of Civil Procedure r.30.01(1)(a)
    Nova Scotia Civil Procedure Rules
  7. see s. 40 CEA

Authentication

All documents must be authenticated and established as relevant before they can be tendered into evidence. This is done either by oral or affidavit evidence unless one of the statutory or common law exception apply.[1]

The standard used to authenticate the document depends on whether the document is submitted as hearsay (where the contents of the letter helps establish some fact) or as non-hearsay (where the contents of the document is not relevant).

Unless provided by statute, all private documents must be proven to be admissible. It is usually necessary to prove execution before proof of contents.[2] Execution may be proven by inference.[3]

  1. R v Schwartz, [1988] 2 SCR 443, 1988 CanLII 11 (SCC), at para 58 ("Before any document can be admitted into evidence ... It must be authenticated in some way by the party who wishes to rely on it. This authentication requires testimony by some witness; a document cannot simply be placed on the bench in front of the judge.")
  2. R v Culpepper (1966) 90 ER 301(*no CanLII links)
  3. R v Armstrong (1970), 2 NSR (2d) 204, 1970 CanLII 1087 (NS CA)

Non-Hearsay Documents

Documents that are used for non-hearsay purposes are admitted in the same way real evidence is admitted, which is by calling viva voce evidence of the person who can speak to it’s creation, use and the context of the document. The contents of the document need not be accurate, and where the witness cannot speak to the accuracy of the contents of the document, the contents will have little weight.

An example where the contents has no bearing is if a party were to attempt to establish that a letter was simply received by a person, which may have relevance to a case concerning actions prompted by the letter, the letter can be put into evidence by calling the person who received the letter and can confirm that it was the letter that they received and speak to the context of its receipt. By contrast, an example of a non-hearsay document where the contents is attested to as accurate is where a report is being tendered and the authenticating witness is the author of the report.

The document need not be an original, but rather can be authenticated by the witness as a fair and accurate representation of the document received.

Hearsay Documents

Documents that are submitted for the truth of their contents in lieu of oral evidence must generally be authenticated by someone who can speak with personal knowledge of the contents of the document. This can be direct personal knowledge or circumstantially personal knowledge.

The admissibility of documents for the truth of their contents is governed both by the common law and by statute, such as the Canada Evidence Act. The statutory law on documents compliments the common law, making alternative options for admissibility.[1]

There is exception to this requirement under s. 29 (financial institution documents) and s. 30 (business records) of the Canada Evidence Act, as well as several other statutory hearsay exceptions.

  1. R v Monkhouse, 1987 ABCA 227 (CanLII)
    Conley v Conley, 1968 CanLII 236 (ON CA), (1968) 70 DLR (2d) 352 (OntCA)

Best Evidence Rule

Admissibility of Specific Types of Documents

Any document can be admitted without proof where the opposing party consents.[1] Further, under s. 37(6.1) the court has a residual power to"receive into evidence anything that, in the opinion of the court, is reliable and appropriate, even if it would not otherwise be admissible under Canadian law, and may base its decision on that evidence."

There are generally three categories of documents:

  1. public documents
  2. judicial documents
  3. private documents
  1. General Host Corp. v Chemalloy Minerals, 1972 CanLII 418 (ON SC), [1972] 3 OR 142
    See also s. 655

Topics

See Also

Public and Judicial Documents

Public Documents

Legislation and Regulations

Under s. 19, 20, 21, and 22 of the Canada Evidence Act, Acts of Parliament and provincial legislation is admissible without proof.[1] There is no need for certification, and all copies are deemed admissible unless proven otherwise.

Copies by Queen’s Printer
19. Every copy of any Act of Parliament, public or private, published by the Queen’s Printer, is evidence of that Act and of its contents, and every copy purporting to be published by the Queen’s Printer shall be deemed to be so published, unless the contrary is shown.
R.S., 1985, c. C-5, s. 19; 2000, c. 5, s. 52.


CEA

Imperial proclamations, etc.
20. Imperial proclamations, orders in council, treaties, orders, warrants, licences, certificates, rules, regulations or other Imperial official records, Acts or documents may be proved

(a) in the same manner as they may from time to time be provable in any court in England;
(b) by the production of a copy of the Canada Gazette, or a volume of the Acts of Parliament purporting to contain a copy of the same or a notice thereof; or
(c) by the production of a copy of them purporting to be published by the Queen’s Printer.

R.S., 1985, c. C-5, s. 20; 2000, c. 5, s. 53.


CEA

Proclamations, etc., of Governor General
21. Evidence of any proclamation, order, regulation or appointment, made or issued by the Governor General or by the Governor in Council, or by or under the authority of any minister or head of any department of the Government of Canada and evidence of a treaty to which Canada is a party, may be given in all or any of the following ways:

(a) by the production of a copy of the Canada Gazette, or a volume of the Acts of Parliament purporting to contain a copy of the treaty, proclamation, order, regulation or appointment, or a notice thereof;
(b) by the production of a copy of the proclamation, order, regulation or appointment, purporting to be published by the Queen’s Printer;
(c) by the production of a copy of the treaty purporting to be published by the Queen’s Printer;
(d) by the production, in the case of any proclamation, order, regulation or appointment made or issued by the Governor General or by the Governor in Council, of a copy or extract purporting to be certified to be true by the clerk or assistant or acting clerk of the Queen’s Privy Council for Canada; and
(e) by the production, in the case of any order, regulation or appointment made or issued by or under the authority of any minister or head of a department of the Government of Canada, of a copy or extract purporting to be certified to be true by the minister, by his deputy or acting deputy, or by the secretary or acting secretary of the department over which he presides.

R.S., 1985, c. C-5, s. 21; 2000, c. 5, s. 54.


CEA

Proclamations, etc., of lieutenant governor
22. (1) Evidence of any proclamation, order, regulation or appointment made or issued by a lieutenant governor or lieutenant governor in council of any province, or by or under the authority of any member of the executive council, being the head of any department of the government of the province, may be given in all or any of the following ways:

(a) by the production of a copy of the official gazette for the province purporting to contain a copy of the proclamation, order, regulation or appointment, or a notice thereof;
(b) by the production of a copy of the proclamation, order, regulation or appointment purporting to be published by the government or Queen’s Printer for the province; and
(c) by the production of a copy or extract of the proclamation, order, regulation or appointment purporting to be certified to be true by the clerk or assistant or acting clerk of the executive council, by the head of any department of the government of a province, or by his deputy or acting deputy, as the case may be.

Territories
(2) Evidence of any proclamation, order, regulation or appointment made by the Lieutenant Governor or Lieutenant Governor in Council of the Northwest Territories, as constituted prior to September 1, 1905, or by the Legislature of Yukon, of the Northwest Territories or for Nunavut, may be given by the production of a copy of the Canada Gazette purporting to contain a copy of the proclamation, order, regulation or appointment, or a notice of it.
R.S., 1985, c. C-5, s. 22; 1993, c. 28, s. 78; 2000, c. 5, s. 55; 2002, c. 7, s. 96; 2014, c. 2, s. 5.


CEA

  1. Canada Evidence Act s. 19, 20, 21, 22

Official Government Documents

Section 24 states:

Certified copies
24. In every case in which the original record could be admitted in evidence,

(a) a copy of any official or public document of Canada or of any province, purporting to be certified under the hand of the proper officer or person in whose custody the official or public document is placed, or
(b) a copy of a document, by-law, rule, regulation or proceeding, or a copy of any entry in any register or other book of any municipal or other corporation, created by charter or Act of Parliament or the legislature of any province, purporting to be certified under the seal of the corporation, and the hand of the presiding officer, clerk or secretary thereof,

is admissible in evidence without proof of the seal of the corporation, or of the signature or official character of the person or persons appearing to have signed it, and without further proof thereof.
R.S., c. E-10, s. 24.


CEA

Certificates of provincial incorporation can be admitted under s. 24 and 37 of the CEA.[1]

Aeronautical charts produced by the Government of Canada are admissible without notice due to their inherent reliability.[2]

  1. R v John & Murray Motors Ltd (1979) 47 CCC (2d) 49 (BCCA), 1979 CanLII 2984 (BC CA), per Carrothers JA
  2. R v Inuvik Coast Airways (1984) 10 CCC (3d) 89 (NWTSC), 1983 CanLII 3494 (NWT SC)

Federal Government Books

Books kept in offices under Government of Canada
26 (1) A copy of any entry in any book kept in any office or department of the Government of Canada, or in any commission, board or other branch in the federal public administration, shall be admitted as evidence of that entry, and of the matters, transactions and accounts therein recorded, if it is proved by the oath or affidavit of an officer of the office or department, commission, board or other branch in the federal public administration that the book was, at the time of the making of the entry, one of the ordinary books kept in the office, department, commission, board or other branch in the federal public administration, that the entry was made in the usual and ordinary course of business of the office, department, commission, board or other branch in the federal public administration and that the copy is a true copy thereof.
Proof of non-issue of licence or document
(2) Where by any Act of Parliament or regulation made under an Act of Parliament provision is made for the issue by a department, commission, board or other branch in the federal public administration of a licence requisite to the doing or having of any act or thing or for the issue of any other document, an affidavit of an officer of the department, commission, board or other branch in the federal public administration, sworn before any commissioner or other person authorized to take affidavits, setting out that he or she has charge of the appropriate records and that after careful examination and search of those records he or she has been unable to find in any given case that any such licence or other document has been issued, shall be admitted in evidence as proof, in the absence of evidence to the contrary, that in that case no licence or other document has been issued.
Proof of mailing departmental matter
(3) Where by any Act of Parliament or regulation made under an Act of Parliament provision is made for sending by mail any request for information, notice or demand by a department or other branch in the federal public administration, an affidavit of an officer of the department or other branch in the federal public administration, sworn before any commissioner or other person authorized to take affidavits, setting out that he or she has charge of the appropriate records, that he or she has a knowledge of the facts in the particular case, that the request, notice or demand was sent by registered letter on a named date to the person or firm to whom it was addressed (indicating that address) and that he or she identifies as exhibits attached to the affidavit the post office certificate of registration of the letter and a true copy of the request, notice or demand, shall, on production and proof of the post office receipt for the delivery of the registered letter to the addressee, be admitted in evidence as proof, in the absence of evidence to the contrary, of the sending and of the request, notice or demand.
Proof of official character
(4) Where proof is offered by affidavit pursuant to this section, it is not necessary to prove the official character of the person making the affidavit if that information is set out in the body of the affidavit.
R.S., 1985, c. C-5, s. 26; 2003, c. 22, s. 104(E).


CEA

Publicly Accessible Documents under the CEA

Section 25 concerns the admissibility of documents of a "public nature":

Books and documents
25. Where a book or other document is of so public a nature as to be admissible in evidence on its mere production from the proper custody, and no other Act exists that renders its contents provable by means of a copy, a copy thereof or extract therefrom is admissible in evidence in any court of justice or before a person having, by law or by consent of parties, authority to hear, receive and examine evidence, if it is proved that it is a copy or extract purporting to be certified to be true by the officer to whose custody the original has been entrusted.
R.S., c. E-10, s. 25.


CEA

This typically would include books available in a library, newspapers, website printouts, brochures, and other documents that are readily accessible in public.

Public Documents at Common Law

A document is admissible at common law as a public document where the following criteria are satisfied:[1]

  1. the document must have been made by a public official, that is a person on whom a duty has been imposed by the public,
  2. the public official must have made the document in the discharge of a public duty or function,
  3. the document must have been made with the intention that it serve as a permanent record, and
  4. the document must be available for public inspection.

A Pre-sentence report may be considered a public document at common law.[2]

  1. R v P.(A.), 1996 CanLII 871 (ON CA), (1996), 109 CCC (3d) 385 per Laskin JA
  2. R v William Batisse, 2012 ONSC 6504 (CanLII)

Judicial Documents

Judicial Proceedings

Under s. 23, records of judicial proceedings may be entered in as evidence:

Evidence of judicial proceedings, etc.
23 (1) Evidence of any proceeding or record whatever of, in or before any court in Great Britain, the Supreme Court, the Federal Court of Appeal, the Federal Court or the Tax Court of Canada, any court in a province, any court in a British colony or possession or any court of record of the United States, of a state of the United States or of any other foreign country, or before any justice of the peace or coroner in a province, may be given in any action or proceeding by an exemplification or certified copy of the proceeding or record, purporting to be under the seal of the court or under the hand or seal of the justice, coroner or court stenographer, as the case may be, without any proof of the authenticity of the seal or of the signature of the justice, coroner or court stenographer or other proof whatever.
Certificate where court has no seal
(2) Where any court, justice or coroner or court stenographer referred to in subsection (1) has no seal, or so certifies, the evidence may be given by a copy purporting to be certified under the signature of a judge or presiding provincial court judge or of the justice or coroner or court stenographer, without any proof of the authenticity of the signature or other proof whatever.
R.S., 1985, c. C-5, s. 23; R.S., 1985, c. 27 (1st Supp.), s. 203; 1993, c. 34, s. 15; 1997, c. 18, s. 117; 2002, c. 8, s. 118.


CEA

A court transcript admissible as a record of a judicial proceedings (or "public document") without notice under the common law.[1]

  1. R. v C. (W. B.), 2000 CanLII 5659 (ON CA), at paras 29 to 48 citing Tatomir (1989) 51 CCC (3d) 321

Court Documents and Orders

An information and probation order that were not made under seal or signed by a judge of the court (thus not admissible under s. 23 of the CEA re. judicial records) are admissible as a "public document" under the common law.[1] To be admissible it must:

  1. be made by a public official upon whom a public duty had been imposed
  2. made by the public official in the discharge of a public duty or function
  3. intended to serve as a permanent record;
  4. were available for public inspection.[2]

In proving probation order, an original certified copy of the order may be submitted as an exhibit without notice at the common law.[3]. This likewise is the case in proving an order of disqualification from driving.[4]

The court's file on a matter is admissible and must be received by the court if it is relevant to the case.[5]

A judge has a right to review and rely upon the contents of the Court file when in the presence of counsel.[6]

Both a provincial court and superior court "has the authority to examine its own records and take judicial notice of their contents."[7]

A court may "compare the disputed handwriting with admitted or proven handwriting, and act upon its own judgment".[8]

Unclear notations on a court document may require that the clerk of the court be called to explain them.[9]

The records do not need to be certified.[10]

These public documents can also be admitted under the principled exception to hearsay.[11]

Where original copies of a search warrant and report to justice were filed before the end of the Crown case, the judge must accept them under the common law rule.[12]

  1. R v Tatomir, 1989 ABCA 233 (CanLII), (1989) 51 CCC 3d 321 - affirms common law admissibility of court documents
  2. R v P(A), 1996 CanLII 871 (ON CA), (1996) 109 CCC 3d 385
  3. R v Lebreux [1993] N.W.T.J. No. 97(*no CanLII links)
  4. R v Tatomir, 1989 ABCA 233 (CanLII)
  5. R v Tkachuk, 2009 BCSC 834 (CanLII) at paras 13, 19
  6. R v Truong, 2008 BCSC 1151 (CanLII), at para 60
  7. R v Tysowski, 2008 SKCA 88 (CanLII) at para 19
    R v Sinclair, 2007 ABPC 353 (CanLII)
    R v Ouellette, 2005 ABCA 282 (CanLII)
    R v Zinyk, 2010 ABPC 40 (CanLII)
    R v Evaglok, 2010 NWTSC 35 (CanLII)
  8. Alan Bryant, Sidney Lederman, and Michelle Fuerst, "The Law of Evidence, (3rd Ed) Markham, Ontario:LexisNexis 2009
  9. Truong at para 49
  10. R. v Jerace, 2016 ABCA 70 (CanLII), at para 7
  11. R. v C(WB), 2000 CanLII 5659 (ON CA), 142 CCC (3d) 490
  12. R v Akpalialuk, 2016 NUCA 1 (CanLII)

Notice

All documents and records, whether private or public, are addressed under s. 28 of the Canada Evidence Act:

Notice of production of book or document
28. (1) No copy of any book or other document shall be admitted in evidence, under the authority of section 23 [certified judicial documents], 24 [certified govt docs, laws, regs, etc], 25 [certified docs of public nature], 26 [copy of fed govt books with affidavit] or 27 [quebec notarized docs], on any trial, unless the party intending to produce the copy has before the trial given to the party against whom it is intended to be produced reasonable notice of that intention.
Not less than 7 days
(2) The reasonableness of the notice referred to in subsection (1) shall be determined by the court, judge or other person presiding, but the notice shall not in any case be less than seven days.
R.S., c. E-10, s. 28.
[annotation(s) added]


CEA

Section 28 requires notice be provided for documents relying on:

  • s. 23: exemplified or certified document of a judicial proceeding;
  • s. 24: certified copies of provincial or federal documents, by-law, regulations, etc
  • s. 25: certified copy (or authenticated) of a "public nature" document;
  • s. 26: copy of federal government books with affidavit est. reliability; and
  • s. 27: Quebec notarized documents.

While government records are admissible under s. 24, s. 28 still requires that there be at least 7 days notice for their admission.[1] Late notice to produce documents however is not necessarily fatal.[2]

Notice must be given to the accused of intention to admit the recognizance under s. 23, 28. Notice must include information on the offence specified, location of the offence, and accused person.[3]

  1. R v Connor (1990) 98 NSR (2d) 356(*no CanLII links) - certificate of motor vehicle ownership excluded
  2. eg. R v Bourque (1990) 102 NSR (2d) 385 (NSCA)(*no CanLII links) - documents admitted with 11 days notice (only 4 were working days)
  3. R v Verde, 2012 ONCJ 368

Exemplification of Court Documents

At common law, court documents, including court orders, are admissible without notice where the court document is an original or a photocopy under seal.[1] This has been considered available under the hearsay exception for public documents and judicial proceedings.[2] However, it has been said that the court still retains the discretion to exclude these documents where the defence is prejudiced by the lack of notice.[3]

Exemplifications are photocopies of official court documents that have the official seal of the court. It cannot apply to any non-court generated document attached to the court file. Section 28 has no application to exemplified document.

A regular copy of the document is all that is necessary to serve to comply with s.28 of the CEA. There is no requirement that the copy be certified.[4]

This rule applies to court orders including recognizances.[5]

  1. R v Lebreux [1993] N.W.T.J. No. 97(*no CanLII links)
    R v Tatomir, 1989 ABCA 233 (CanLII) - admits driving prohibition order
    R v Reid, 2007 ABPC 34 (CanLII)
    Documentary Evidence in Canada (1984), J. Douglas Ewart Stated, at p. 183 ("At common law, judicial documents must be proved by the production of the original record or an exemplification under the seal of the court to which the record belongs. No notice is required.")
  2. R v P. (A.) 1996 CanLII 871 (ON CA), (1996), 109 CCC (3d) 385 at 389-390
    R v C. (W.B.), 2000 CanLII 5659 (ON CA), (2000), 142 CCC (3d) 490 at 29-31
    R v Schellenberg, 2011 MBQB 240 (CanLII)
    See Hearsay
  3. R v Williams, 2004 ONCJ 80 (CanLII) at paras 17-18
  4. R v Dixon, 2006 NBQB 197 (CanLII)
  5. R v Rowen, 2013 ONSC 789 (CanLII) at para 16

Police Documents

Notice of Intention to produce a certificates of analysis require notice. Where it is a certificate for a breathalyzer test, section 258(7) applies:

258
...
Notice of intention to produce certificate
(7) No certificate shall be received in evidence pursuant to paragraph (1)(e), (f), (g), (h) or (i) unless the party intending to produce it has, before the trial, given to the other party reasonable notice of his intention and a copy of the certificate.
R.S., 1985, c. C-46, s. 258; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 32 (4th Supp.), s. 61; 1992, c. 1, s. 60(F); 1994, c. 44, s. 14(E); 1997, c. 18, s. 10; 2008, c. 6, s. 24.


CCC

This requires that the crown prove that service was made, that it was made in a reasonable time, and that the notice communicated the intention to produce the materials at trial.

Where notice to produce a certificate of analysis is served upon an accused person, there is a rebuttable presumption that the person understand the notice.[1]

  1. R v Hamm, 1976 CanLII 177, [1977] 2 SCR 85

Calculating Notice Periods

NB: this time limited is subject to the "Holiday Rule" that moves the date to the next non-holiday day (see s. 26 of Interpretation Act)

Foreign Public Documents

Part III of the Evidence Act states:

Application of this Part
52. This Part extends to the following classes of persons:

(a) officers of any of Her Majesty’s diplomatic or consular services while performing their functions in any foreign country, including ambassadors, envoys, ministers, charges d’affaires, counsellors, secretaries, attaches, consuls general, consuls, vice-consuls, pro-consuls, consular agents, acting consuls general, acting consuls, acting vice-consuls and acting consular agents;
(b) officers of the Canadian diplomatic, consular and representative services while performing their functions in any foreign country or in any part of the Commonwealth and Dependent Territories other than Canada, including, in addition to the diplomatic and consular officers mentioned in paragraph (a), high commissioners, permanent delegates, acting high commissioners, acting permanent delegates, counsellors and secretaries;
(c) Canadian Government Trade Commissioners and Assistant Canadian Government Trade Commissioners while performing their functions in any foreign country or in any part of the Commonwealth and Dependent Territories other than Canada;
(d) honorary consular officers of Canada while performing their functions in any foreign country or in any part of the Commonwealth and Dependent Territories other than Canada;
(e) judicial officials in a foreign country in respect of oaths, affidavits, solemn affirmations, declarations or similar documents that the official is authorized to administer, take or receive; and
(f) persons locally engaged and designated by the Deputy Minister of Foreign Affairs or any other person authorized by that Deputy Minister while performing their functions in any foreign country or in any part of the Commonwealth and Dependent Territories other than Canada.


R.S., 1985, c. C-5, s. 52; 1994, c. 44, s. 92; 1997, c. 18, s. 118.


CEA

Oaths and Solemn Affirmations
Oaths taken abroad
53. Oaths, affidavits, solemn affirmations or declarations administered, taken or received outside Canada by any person mentioned in section 52 are as valid and effectual and are of the like force and effect to all intents and purposes as if they had been administered, taken or received in Canada by a person authorized to administer, take or receive oaths, affidavits, solemn affirmations or declarations therein that are valid and effectual under this Act.
R.S., c. E-10, s. 50.


CEA

Documentary Evidence
Documents to be admitted in evidence
54. (1) Any document that purports to have affixed, impressed or subscribed on it or to it the signature of any person authorized by any of paragraphs 52(a) to (d) to administer, take or receive oaths, affidavits, solemn affirmations or declarations, together with their seal or with the seal or stamp of their office, or the office to which the person is attached, in testimony of any oath, affidavit, solemn affirmation or declaration being administered, taken or received by the person, shall be admitted in evidence, without proof of the seal or stamp or of the person’s signature or official character.
Status of statements
(2) An affidavit, solemn affirmation, declaration or other similar statement taken or received in a foreign country by an official referred to in paragraph 52(e) shall be admitted in evidence without proof of the signature or official character of the official appearing to have signed the affidavit, solemn affirmation, declaration or other statement.
R.S., 1985, c. C-5, s. 54; 1994, c. 44, s. 93.


CEA

Private Documents

General Principles

Documents that are generated by someone other than a public institution, a court, financial institution, or business are admissible under statute and common law.

Investigation Records

Records that re generated in the course of an investigation cannot fall within business records as they are not being kept within the ordinary course of business.[1]

It is important to distinguish records made from the investigation and those that are simply retrieved during the investigation.[2] Even materials such as the contents of a report that extracts from a larger body of records will be considered pre-existing.[3]

  1. See Digital Evidence in Criminal Law, 2011 at p. 21
    see also R v McWhinney [1992] M.J. No 625 (MBPC)(*no CanLII links)
  2. e.g. R v B.(L.) [2009] BCJ No 1741, 2009 BCSC 1194 (CanLII), per Holmes J, at para 5-8 - production order for records from phone company
  3. Digital Evidence in Criminal Law at p. 21

Assessment Records

See also: Mental Illness and Traditional Exceptions to Hearsay

Any written statements made as part of a Part XX.1 assessment order (fitness to stand trial or NCR) is a "protected statement" and cannot be tendered into evidence without the consent of the accused, except for the purpose of:[1]

  • "determining whether the accused is unfit to stand trial;"
  • "making a disposition or placement decision respecting the accused"
  • "determining whether the balance of the mind of the accused was disturbed at the time of the commission of the alleged offence, whether the accused is a female person charged with an offence arising out of the death of her newly-born child;"
  • "determining whether the accused was, at the time of the commission of an alleged offence, suffering from automatism or a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1), if the accused puts his or her mental capacity for criminal intent into issue, or if the prosecutor raises the issue after verdict;"
  • "challenging the credibility of an accused in any proceeding where the testimony of the accused is inconsistent in a material particular with a protected statement that the accused made previously;" or
  • "establishing the perjury of an accused who is charged with perjury in respect of a statement made in any proceeding."

Notice of Intention to Admit Documents

Notice is usually required for submitting most forms of documentary evidence.

Nevertheless, appellate court have frequently refused to invalidate notices on technicalities of procedure.[1] The purpose of the notice provisions is to "simply the production of evidence" which would reduce the time and cost of criminal prosecutions.[2]

Notice regarding documents and records are addressed under s. 28 of the Canada Evidence Act:

Notice of production of book or document
28. (1) No copy of any book or other document shall be admitted in evidence, under the authority of section 23, 24, 25, 26 or 27, on any trial, unless the party intending to produce the copy has before the trial given to the party against whom it is intended to be produced reasonable notice of that intention.
Not less than 7 days
(2) The reasonableness of the notice referred to in subsection (1) shall be determined by the court, judge or other person presiding, but the notice shall not in any case be less than seven days.


CEA

Section 28 applies to judicial documents under seal (s. 23), business documents under seal (s. 24), copies of publicly-accessible documents and books (s. 25), books possessed by federal government (s. 26), and documents notarized in Quebec (s. 27).

  1. e.g. R v Good et al. 1983 ABCA 141 (CanLII) at para 7
  2. Good at 7

Form of Service

The form of notice is not specific in the legislation and so can be in many forms, including by the admission of the documents in the preliminary inquiry hearing.[1]

  1. R v Cordes (1978), 40 CCC (2d) 442, (ABCA), 1978 ALTASCAD 94 (CanLII), per Prowse JA, aff’d [1979] 1 SCR 1062, 1979 CanLII 206 (SCC), per Martland J

Party to Serve

Service is usually served upon counsel for the party. [1] However, service on an assistant or secretary is also permitted.[2] Service on relatives of the accused is not always sufficient.[3] Service by fax machine to the counsel's address is satisfactory.[4]

Service must be proven by oral evidence and not simply affidavit.[5]

Notice of certificates of analysis of drugs seized must be made to be admissible. Simply providing disclosure does not constitute notice. [6]

  1. R v Fowler, (1982), 2 CCC (3d) 227 (NSCA), 1982 CanLII 3683 (NS CA), per MacKeigan CJNS
    R v Vollman, 1989 CanLII 4798 (SK CA), (1989), 52 CCC (3d) 379 (Sask.C.A.), per Bayda JA
  2. R v Page (1989) 8 W.C.B. 339 - CA009333 (BCCA)(*no CanLII links)
  3. R v Lewis (1972), 6 CCC 189 (Ont.CA)(*no CanLII links)
    R v Godon, 1984 CanLII 2582 (SK CA), (1984), 12 CCC (3d) 446, per Hall JA - found sufficient
  4. R v Dillon, 2005 CanLII 22212 (ON S.C.), per Hill J
  5. R v Veinot (1983), 3 CCC 113 (NSCA)(*no CanLII links)
  6. R v Cardinal, 2010 NWTTC 16 (CanLII),per Schmaltz J

Proof of service

It is not always necessary for a police witness recall the specifics of affecting service of a document. If it is a standard procedure that they can testify that they always follow, and there is no recollection of there being a failure to follow the procedure, the judge may conclude that it was done properly.[1]

  1. R v Lorenz, 2011 SKPC 164 (CanLII), per Kovatch J at para 21

See Also

Business Records

General Principles

There are two methods of admitting business records into evidence:

See Also

Financial Institution Records

General Principles

See also: Business Records

Section 29 of the Canada Evidence Act governs the admissibility of records from financial institutions. The separate regime from business records recognizes the high degree of reliability in business documents from financial institutions by permitting "any book or record kept in a financial institution" to be "prima facie proof of the transaction they record".[1]

Section 29 states:

Copies of entries
29. (1) Subject to this section, a copy of any entry in any book or record kept in any financial institution shall in all legal proceedings be admitted in evidence as proof, in the absence of evidence to the contrary, of the entry and of the matters, transactions and accounts therein recorded.
Admission in evidence
(2) A copy of an entry in the book or record described in subsection (1) shall not be admitted in evidence under this section unless it is first proved that the book or record was, at the time of the making of the entry, one of the ordinary books or records of the financial institution, that the entry was made in the usual and ordinary course of business, that the book or record is in the custody or control of the financial institution and that the copy is a true copy of it, and such proof may be given by any person employed by the financial institution who has knowledge of the book or record or the manager or accountant of the financial institution, and may be given orally or by affidavit sworn before any commissioner or other person authorized to take affidavits.
Cheques, proof of “no account”
(3) Where a cheque has been drawn on any financial institution or branch thereof by any person, an affidavit of the manager or accountant of the financial institution or branch, sworn before any commissioner or other person authorized to take affidavits, setting out that he is the manager or accountant, that he has made a careful examination and search of the books and records for the purpose of ascertaining whether or not that person has an account with the financial institution or branch and that he has been unable to find such an account, shall be admitted in evidence as proof, in the absence of evidence to the contrary, that that person has no account in the financial institution or branch.
...
Computation of time
(8) Holidays shall be excluded from the computation of time under this section.
...
R.S., 1985, c. C-5, s. 29; 1994, c. 44, s. 90; 1995, c. 28, s. 47; 1999, c. 28, s. 149.

CEA

Purpose of Section 29
Both s. 29 and 30 are mean to "reduce the barriers to the admissibility of business and banking records".[2]

It is intended to acknowledge Parliaments "vote of confidence in banking records" and avoid "inconvenienc[ing] bankers".[3]

Relationship with Section 30 of Evidence Act
The notice provisions of s. 30 do not apply for financial records under s. 29.[4]

  1. R v MacMullin, 2013 ABQB 741 (CanLII), par. 112
    R v McMullen (1979), 1979 CanLII 1867 (ON CA), 25 OR (2d) 301, 100 DLR (3d) 671 (Ont CA)
    R v Best (1978), 43 CCC (2d) 236, 2 WCB 489 (BCCA), (1979), 43 CCC (2d) 236, 1978 CanLII 2307 (BC CA)
  2. R v MacMullin, 2013 ABQB 741 (CanLII), at para 115
  3. MacMullin, ibid. at para 116
    Douglas Ewart, Documentary Evidence in Canada (Carswell Legal Publication, 1984 at p. 120
    S.C. Hill, McWilliams’ Canadian Criminal Evidence, 5th ed (Toronto: Canada Law Book, 2013) pp 23-24
  4. Best, supra

Financial Institution

29
...
"financial institution" means the Bank of Canada, the Business Development Bank of Canada and any institution that accepts in Canada deposits of money from its members or the public, and includes a branch, agency or office of any of those Banks or institutions;

...
R.S., 1985, c. C-5, s. 29; 1994, c. 44, s. 90; 1995, c. 28, s. 47; 1999, c. 28, s. 149.

CEA

Affidavit

For documents to be admissible under s. 29 of the CEA, the party seeking to admit the document must show pursuant to s. 29(2) that:

  1. the book or record was, at the time of making of the entry, one of the ordinary books or record of the financial institutions;
  2. that the original book or record is in the custody or control of the financial institution nad
  3. the copy is a "true copy"

All these elements can be proven by way of affidavit usually from the manager or accountant of the institution. However, there is no specific requirement as to whom it must be from.

The affidavit will set out:[1]

  1. that the deponent is an employee of the financial institution;
  2. that the original (or "parent") document is in possession of that institution;
  3. that the deponent certifies that the copy presented to the court is a true copy.

Records
For the purposes of s. 29, "record" can include computer printouts.[2]

Copies
A "true copy" is any copy that can be said to be accurate in all essential particulars, so that no one can be misled as to the effect of the record.[3]

"Entry"
An "entry" is "an ordinary financial or bookkeeping entry" which includes any explanatory words that aim to “identify or clarify the entry”.[4] Accordingly the record keeper may include in his affidavit limited explanatory evidence of the entries. However, where it is either self-explanatory, overly interpretive, or on a contentious matter then it should not be included.[5]

"Financial Institution"
Under s. 29(9) of the CEA, a "financial institution" refers to "the Bank of Canada, the Business Development Bank of Canada and any institution that accepts in Canada deposits of money from its members or the public, and includes a branch, agency or office of any of those Banks or institutions;"


Proof of Official Character

29
...
Proof of official character
(4) Where evidence is offered by affidavit pursuant to this section, it is not necessary to prove the signature or official character of the person making the affidavit if the official character of that person is set out in the body of the affidavit.
...
R.S., 1985, c. C-5, s. 29; 1994, c. 44, s. 90; 1995, c. 28, s. 47; 1999, c. 28, s. 149.

CEA

  1. R v MacMullin, 2013 ABQB 741 (CanLII) at para 119
  2. R v McMullen, 1979 CanLII 1867 (ON CA), (1979) 47 CCC (2d) (Ont.C.A.)
    R v Bell (1982) 65 CCC (2d) 376 (Ont.C.A.)(*no CanLII links)
  3. R v Morash (1982) 17 MVR 34 (SKQB)(*no CanLII links) citing Commercial Credit Co. of Canada v Fulton Brothers, [1923] AC 798 (PC)(*no CanLII links)
  4. M.N.R v Furnasman Ltd., [1973] F.C. 1327 (Fed. Ct. T.D.)(*no CanLII links) per Addy J. at para 19
    R v Bath, 2010 BCSC 1138 (CanLII)
  5. e.g. R v Bath, 2010 BCSC 1138 (CanLII)

Notice

Any records that are admissible under s. 29 do not need notice to produce.[1]

  1. R v Best (1978), 43 CCC (2d) 236(*no CanLII links)

Bank Officials Immunity From Subpoena

Section 30(5) protects bank officials from being subject to subpoenas if the documents or records "sought to be produced can be produced in the manner contemplated by this act".[1]

30
...
Compulsion of production or appearance
(5) A financial institution or officer of a financial institution is not in any legal proceedings to which the financial institution is not a party compellable to produce any book or record, the contents of which can be proved under this section, or to appear as a witness to prove the matters, transactions and accounts therein recorded unless by order of the court made for special cause.
...


CEA

  1. R v MacMullin, 2013 ABQB 741 (CanLII), at para 117

Right of Inspection

29
...
Order to inspect and copy
(6) On the application of any party to a legal proceeding, the court may order that that party be at liberty to inspect and take copies of any entries in the books or records of a financial institution for the purposes of the legal proceeding, and the person whose account is to be inspected shall be notified of the application at least two clear days before the hearing thereof, and if it is shown to the satisfaction of the court that he cannot be notified personally, the notice may be given by addressing it to the financial institution.
...
R.S., 1985, c. C-5, s. 29; 1994, c. 44, s. 90; 1995, c. 28, s. 47; 1999, c. 28, s. 149.

CEA

Execution of Search Warrants Upon Financial Institutions

See also: Execution of Search Warrants

29
...
Warrants to search
(7) Nothing in this section shall be construed as prohibiting any search of the premises of a financial institution under the authority of a warrant to search issued under any other Act of Parliament, but unless the warrant is expressly endorsed by the person under whose hand it is issued as not being limited by this section, the authority conferred by any such warrant to search the premises of a financial institution and to seize and take away anything in it shall, with respect to the books or records of the institution, be construed as limited to the searching of those premises for the purpose of inspecting and taking copies of entries in those books or records, and section 490 of the Criminal Code does not apply in respect of the copies of those books or records obtained under a warrant referred to in this section.
...
R.S., 1985, c. C-5, s. 29; 1994, c. 44, s. 90; 1995, c. 28, s. 47; 1999, c. 28, s. 149.

CEA

Misc Definitions

Definitions
(9) In this section,
"court" means the court, judge, arbitrator or person before whom a legal proceeding is held or taken;

...
"legal proceeding" means any civil or criminal proceeding or inquiry in which evidence is or may be given, and includes an arbitration.
R.S., 1985, c. C-5, s. 29; 1994, c. 44, s. 90; 1995, c. 28, s. 47; 1999, c. 28, s. 149.

CEA

Electronic Documents

Introduction

Electronic documents are governed by s.31.1 to 31.8 of the CEA. The provisions are meant to apply "in conjunction with either some common law general rule of admissibility of documents or some other statutory provision". The sections have the effect of deeming electronically produced documents as "best evidence" (see s.31.1 and 31.2).[1]

In determining the admissibility of electronic documents the court must determine whether the record is authentic and reliable.[2]

Malleabillity of Electronic Records
The fact that records are electronic render them more malleable and so should be considered more closely for authenticity and reliability.[3]

Evidence Act Only Affects Authentication and Best Evidence
These rules, however, are not intended to "not affect any rule of law relating to the admissibility of evidence, except the rules relating to authentication and best evidence."[4]

These provisions are meant to address the fact that "technological change has rendered the former distinction between originals and copies a moot distraction in many areas".[5]

It has been suggested that s. 31 is not designed as an exception to hearsay, instead only provide a process of authentication and admissibility.[6]

In most cases where electronic documents are being tendered as documentary evidence--ie. where the data was inputted by a human--it should be treated as hearsay.[7]

In order to admit electronic documents for the truth of its contents, in the absence of the author, may only be admitted as business records through s. 30 of the CEA or by using one of the hearsay exceptions.[8]

Records of Automated Processes
Records created by an automated process is not hearsay as there is no person behind the records that could potentially be cross-examined on the meaning of the information.[9]

Variable Standard
The admission of electronic documents will vary on the format that the record takes (printout, scanned copy, or native digital format). All cases the documents must be authentic and satisfy the best evidence rule.

Electronic Documents.png
  1. R v Morgan [2002] N.J. No. 15 (QL) (Prov. Ct.)(*no CanLII links) at para 20-21
  2. R v Nde Soh, 2014 NBQB 20 (CanLII), per Lavigne J, at para 22
  3. Soh, ibid. ("electronic documents are much more malleable than ordinary documents. They give rise to specific problems with respect to authenticity and reliability. It is possible to overcome these problems by applying sections 31.1 to 31.8 of the Act.") see also R v Andalib-Goortani, 2014 ONSC 4690 (CanLII), per Trotter J
  4. See s. 31.7 ("31.7 Sections 31.1 to 31.4 do not affect any rule of law relating to the admissibility of evidence, except the rules relating to authentication and best evidence.") 2000, c. 5, s. 56.
  5. R v Hall [1998] BCJ No 2515 (BCSC), 1998 CanLII 3955 (BC SC), per Owen-Flood J at para 52
    See also Desgagne v Yuen et al, 2006 BCSC 955 (CanLII), per Myers J suggesting file copies are sufficient for litigation unless integrity is being challenged
  6. R v Mondor, 2014 ONCJ 135 (CanLII), per Greene J at para 38
  7. Mondor, ibid. at para 18 to 19
    Underwood and Penner, Electronic Evidence in Canada (Toronto: Carwell, 2013) at p. 13, 14
  8. Mondor at para 38
  9. Saturley v CIBC World Markets, 2012 NSSC 226 (CanLII), per Wood J

Receipt of Electronic Documents

Section 842 permits courts to "create, collect, receive, store, transfer, distribute, publish or otherwise deal with electronic documents" in accordance with the Code or rules of court.

Transfer of data

843. (1) Despite anything in this Act, a court may accept the transfer of data by electronic means if the transfer is made in accordance with the laws of the place where the transfer originates or the laws of the place where the data is received.
Time of filing
(2) If a document is required to be filed in a court and the filing is done by transfer of data by electronic means, the filing is complete when the transfer is accepted by the court.
2002, c. 13, s. 84.
Documents in writing
844. A requirement under this Act that a document be made in writing is satisfied by the making of the document in electronic form in accordance with an Act or the rules of court.
2002, c. 13, s. 84.


CCC

Definition of Electronic Documents

Under s. 31.8 of the CEA, "electronic documents" are defined as:

31.8
...
...data that is recorded or stored on any medium in or by a computer system or other similar device and that can be read or perceived by a person or a computer system or other similar device. It includes a display, printout or other output of that data.


CEA

This definition would include emails, all computer files, meta data associated with computer files, content of websites such as Facebook, Twitter, and chat logs found online.[1]

Similarly, s. 841 of the Code defines "data" and "electronic document":

Electronic Documents
Definitions
841 The definitions in this section apply in this section and in sections 842 to 847. data means representations of information or concepts, in any form. (données) electronic document means data that is recorded or stored on any medium in or by a computer system or other similar device and that can be read or perceived by a person or a computer system or other similar device. It includes a display, print-out or other output of the data and any document, record, order, exhibit, notice or form that contains the data. (document électronique)
R.S., 1985, c. C-46, s. 841; R.S., 1985, c. 31 (4th Supp.), s. 97; 2002, c. 13, s. 84.


CCC

  1. R v Nde Soh, 2014 NBQB 20 (CanLII), per Lavigne J at para 21
    Desgagne v Yuen et al, 2006 BCSC 955 (CanLII), per Myers J - suggests definition includes metadata

Elements of Admission

Digital Evidence.png

The requirements for admission of an electronic document are:

  1. Authenticity
  2. Integrity / Reliability
  3. Not Hearsay
  4. Relevant and Material

The first two steps of authenticity and integrity / reliability are governed exclusively by s. 31.1 to 31.3 of the Canada Evidence Act. Establishing the second step includes the requirement that the form of the evidence satsifies the "best evidence rule" in addition to requiring that the evidence itself is sufficiently reliable. Section 31.3 provides a statutory shortcut to proof of integrity through the proof of integrity of the document system, however, even where the short cut fails, the evidence can still be admited through common law proof of reliability.[1]

  1. R v Hamdan, 2017 BCSC 676 (CanLII), per Butler J

Authentication

The burden is upon the party tendering the electronic document to prove its authenticity:

Authentication of electronic documents
31.1 Any person seeking to admit an electronic document as evidence has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic document is that which it is purported to be.
2000, c. 5, s. 56.


CEA

The proof of authentication is as condition precedent to admission of records.[1]

There is "no objective standard to measure sufficiency"[2]

The standard has been described as simply requiring evidence "capable of supporting a finding that the electronic document is as it claims to be". There must be "some evidence of authenticity".[3] This standard is merely a threshold test that permits the evidence to be considered for "ultimate evaluation" and nothing more.[4]

No Proof of Integrity
At the authentication stage, the judge is not to consider the "integrity" of the evidence, which is the focus of analysis on s. 31.2 relating to the "best evidence rule".[5]

There is some suggestion that the party seeking admission of the record has the burden to establish the absence of any tampering.[6] However, it should not be taken too far when it comes to electronic records, including internet sourced records, since all electronic documents have the potential to be manipulated in some way.[7]

Authentication of Identity Evidence
Where the identity of the accused whose communication is found an electronic document is in dispute, the proof of authenticity requires that the Crown adducing the evidence show:[8]

  1. "a preliminary determination must be made as to whether, on the basis of evidence admissible against the accused, the Crown has established on a balance of probabilities that the statement is that of the accused" and
  2. "If this threshold is met, the trier of fact should then consider the contents of the statement along with other evidence to determine the issue of innocence or guilt."

Authentication of cell phone evidence
In relation to the admission of text messages found on a cell phone, the question of who sent the text messages is an issue of authentication and relevance not hearsay.[9] Where the party adducing the evidence cannot prove who sent the message then they are not reliable".[10]


Proof of identity of the sender which is necessary for authentication and reliability should include elements such as:[11]

  • recorded purchaser and subscriber;
  • usage being consistent with the activities of the alleged user;
  • location where the phone was used
  • observational evidence of "exclusive or non-exclusive use" of the cell phone;
  • contents of the cell phone text messages and telephone calls;
  • patterns in cellphone and text message communications including the messages themselves; and
  • evidence from witnesses who received communications from a cell phone and who can identify the source of those communications.

Linking a facebook account to an email address known to be used by the accused can be sufficient to authenticate facebook chat log.[12]

Authentication of Social Media and Web Evidence
Screenshots of a website are not admissible simply as being forms of photograph and must comply with the s. 31.1 to 31.8 of the Evidence Act.[13] However, it will usually be sufficient to have the account owner, or a party to a chat log, authenticate the records as accurate.[14] This is not always necessary, and it can be authenticated by someone other than the person taking the screenshot as long as they have some first-hand familiarity with the contents of the website.[15]

Even a person with limited technological experience and knowledge can authenticate social media.[16]

  1. R v Avanes, 2015 ONCJ 606 (CanLII), per Band J
  2. FH v McDougall, 2008 SCC 53 (CanLII), per Rothstein J
  3. R v Hirsch, 2017 SKCA 14 (CanLII), per Caldwell JA at para 18
    R v CL, 2017 ONSC 3583 (CanLII), per Baltman J, at para 21 ("The common law imposes a relatively low standard for authentication; all that is needed is “some evidence” to support the conclusion that the thing is what the party presenting it claims it to be.")
  4. CL, ibid. at para 21 citing Pacioccco
  5. Hirsch, ibid. at para 18
  6. R v Andalib-Goortani, 2014 ONSC 4690 (CanLII), per Trotter J at paras 28 to 29 - photograph inadmissible due to inability to authenticate it where metadata stripped from the file
  7. R v Clarke, 2016 ONSC 575 (CanLII), per Allen J at para 119
  8. R v Evans, 1993 CanLII 86 (SCC), [1993] 3 S.C.R. 653, per Sopinka J at para 32
    R v Moazami, 2013 BCSC 2398 (CanLII), per Butler J at para 12 - re admission of facebook messages
  9. R v Vader, 2016 ABQB 287 (CanLII), per Thomas J at para 14
    R v Serhungo, 2015 ABCA 189 (CanLII), per O'Ferrall JA at para 77 appealed on other issue at 2016 SCC 2 (CanLII), per Moldaver J
  10. Vader, supra at para 15
    Serhungo, supra at para 86
  11. Vader, supra at para 17
  12. R v Harris, 2010 PESC 32 (CanLII), per Mitchell J
  13. R v Bernard, 2016 NSSC 358 (CanLII), per Gogan J at para 44
    R v Soh, 2014 NBQB 20 (CanLII), per Lavigne J
    R v Moazami, 2013 BCSC 2398 (CanLII), per Butler J
  14. Bernard, supra at para 49
    Hirsch, supra at para 18 ("Quite simply, to authenticate an electronic document, counsel could present it to a witness for identification and, presumably, the witness would articulate some basis for authenticating it as what it purported to be ... That is, while authentication is required, it is not an onerous requirement.")
  15. e.g. Hirsch, supra - complainant authenticated facebook post despite having seen it only through a friend
  16. R v Lowrey, 2016 ABPC 131 (CanLII), per Rosborough J- mother prints out facebook page of child

Best Evidence Rule

See also: Best Evidence Rule

The "best evidence rule" can be satisfied by establishing either:[1]

  • "the integrity of the electronic documents system" that generated the document (s. 31.2(1)(a)) which is presumed (s. 31.3, see "presumption of integrity" below).
  • in the case of printouts, that the "printout has been manifestly or consistently acted on, relied on or used as a record of the information recorded or stored in the printout" (s. 31.2(2))
  • the presumption relating to electronic signatures (see s. 31.4)

Application of best evidence rule — electronic documents
31.2 (1) The best evidence rule in respect of an electronic document is satisfied

(a) on proof of the integrity of the electronic documents system by or in which the electronic document was recorded or stored; or
(b) if an evidentiary presumption established under section 31.4 applies.

Printouts
(2) Despite subsection (1), in the absence of evidence to the contrary, an electronic document in the form of a printout satisfies the best evidence rule if the printout has been manifestly or consistently acted on, relied on or used as a record of the information recorded or stored in the printout.
2000, c. 5, s. 56.


CEA

Social Media Evidence
Given the impermanence of online evidence it can be that screenshots will be found to be the "best evidence" available.[2]

  1. See R v Nde Soh, 2014 NBQB 20 (CanLII), per Lavigne J - admitting facebook chats from testimony of one of the parties to the chat
  2. R v Hirsch, 2017 SKCA 14 (CanLII), per Caldwell JA at para 24

Integrity of Electronic Document System

The authenticity and reliability of electronic documents can be established by "proof of the integrity of the electronic documents system rather than that of the specific electronic document".[1]

Proof of integrity is established by factors including the manner of record, compliance with industry standards, business reliance, and security.[2]

The evidence to show integrity of a records keeping system needs only show that the system was secure and that there was no observable evidence of tampering. There is no need to prove that there was reasonable no way by which records can be tampered with.[3]

Evidence of integrity can be from any source including a third party to the creation of the record.[4]

  1. Nde Soh, 2014 NBQB 20 (CanLII), per Lavigne J at para 25
  2. R v Oler, 2014 ABPC 130 (CanLII), per Lamoureux J at para 7
  3. R v Clarke, 2016 ONSC 575 (CanLII), per Allen J
  4. R v Hirsch, 2017 SKCA 14 (CanLII), per Caldwell JA
    R v Lowrey, 2016 ABPC 131 (CanLII), per Rosborough J - mother printed screenshots of child's social media account

Presumption of Integrity

Under s. 31.3, in "absence of evidence to the contrary", the integrity of electronic documents are presumed where the is evidence of at least one of the following:

  1. "that at all material times the computer system or other similar device used by the electronic documents system was operating properly" (s. 31.3(a));
  2. if the device was not operating properly at all material times, that the malfunction "did not affect the integrity of the electronic document and there are no other reasonable grounds to doubt the integrity of the electronic documents system" (s. 31.3(a));
  3. that "the electronic document was recorded or stored by a party who is adverse in interest to the party seeking to introduce it";(s. 31.3(b)) or
  4. the document "was recorded or stored in the usual and ordinary course of business by a person who is not a party and who did not record or store it under the control of the party seeking to introduce it." (s. 31.3(c))

Presumption of integrity
31.3 For the purposes of subsection 31.2(1), in the absence of evidence to the contrary, the integrity of an electronic documents system by or in which an electronic document is recorded or stored is proven

(a) by evidence capable of supporting a finding that at all material times the computer system or other similar device used by the electronic documents system was operating properly or, if it was not, the fact of its not operating properly did not affect the integrity of the electronic document and there are no other reasonable grounds to doubt the integrity of the electronic documents system;
(b) if it is established that the electronic document was recorded or stored by a party who is adverse in interest to the party seeking to introduce it; or
(c) if it is established that the electronic document was recorded or stored in the usual and ordinary course of business by a person who is not a party and who did not record or store it under the control of the party seeking to introduce it.

2000, c. 5, s. 56.


CEA

Standard of Proof
The presumption can be invoked where the party adducing the electronic evidence can prove on a standard of balance of probabilities that one of the categories in s. 31.3 applies.[1]

Stored or Recorded by Adverse Party
There should be some evidence as to the "origin" of any "screen shots" and "attempt to access" the social media account.[2]

Lay Evidence
If an operator of a computer device can testify that the device was "working properly at the relevant time", and where no contradictory evidence is found, the Crown can rely on the presumption of integrity.[3]

  1. See R v Avanes, 2015 ONCJ 606 (CanLII) at para 63
    R v CL, 2017 ONSC 3583 (CanLII), at para 24 (Integrity of the storage system can be established "...under s. 31.2(1)(a), by proving the “integrity of the electronic document system” in which the document was stored. Direct or circumstantial evidence that demonstrates, on the balance of probabilities, that the electronic record in question is an accurate reproduction of the document stored on the computer is sufficient.")
  2. R v Bernard, 2016 NSSC 358 (CanLII), per Gogan J at para 58
  3. R v KM, 2016 NWTSC 36 (CanLII), per Charbonneau J, at paras. 36-60, per Charbonneau J.
    R v Burton, 2017 NSSC 3 (CanLII), per Arnold J, at paras. 30-32
    R v MJAH, 2016 ONSC 249 (CanLII), per Fregeau J, at paras. 45-48
    R v Colosie, 2015 ONSC 1708(*no CanLII links) , at paras. 12-27
    R v Ghotra, [2015] O.J. No. 7253 (QL)(*no CanLII links) , at paras. 148-9
    R v CL, 2017 ONSC 3583 (CanLII), per Baltman J, at paras 26 to 27

Admissibility of Contents of Records

Once a computer record is authenticated, the records will usually be admissible under one of the following methods of admissibility for the truth of their contents:[1]

Where compilation was carried out by automated means, it may be possible to admit them through the common law business record method.[3]

Evidence that is "automatically recorded by any means, other than by human labour, and the evidence so recorded can be reproduced in any form, intelligible to the human mind, the reproduction is admissible as real evidence." However, "The weight to be attached to such evidence will depend on the accuracy and integrity of the process employed."[4]

Admission of Electronic Records under the Principled Approach

The analysis of reliability should "be assessed by focusing on the circumstances in which information was generated, recorded, stored, and reproduced.".[5]

  1. R v C.M., 2012 ABPC 139 (CanLII), per Franklin J - review methods of admitting electronic documents, re phone records
  2. see R v McCulloch, [1992] BCJ No. 2282 (BCPC)(*no CanLII links) at para 18 regarding real evidence
    see also Saturley v CIBC World Markets Inc., 2012 NSSC 226 (CanLII)Template:PerNNSSC - makes distinction between automated generated record which is real evidence, and human-made records which are documentary evidence
    Animal Welfare International Inc. and W3 International Media Ltd., 2013 BCSC 2125 (CanLII), per Ross J - agrees with Saturley
  3. Eg. R v Sunila, (1986) 26 CCC (3d) 331, 1986 CanLII 4619 (NS SC), per [[Nova Scotia Supreme Court|]]
    R v Rideout, [1996] NJ No 341(*no CanLII links)
    R v Moisan, 1999 ABQB 875 (CanLII), (1999) 141 CCC (3d) 213, per Lee J
    R v Monkhouse, 1987 ABCA 227 (CanLII), per Laycraft CJ
  4. McCulloch, supra at para 18
  5. R v Nardi, 2012 BCPC 318 (CanLII), per Challenger J at para 17

Procedure

Dealing with data in court
842 Despite anything in this Act, a court may create, collect, receive, store, transfer, distribute, publish or otherwise deal with electronic documents if it does so in accordance with an Act or with the rules of court.
2002, c. 13, s. 84.


CCC

Proof by Standard, Procedure, Usage or Practice

Standards may be considered
31.5 For the purpose of determining under any rule of law whether an electronic document is admissible, evidence may be presented in respect of any standard, procedure, usage or practice concerning the manner in which electronic documents are to be recorded or stored, having regard to the type of business, enterprise or endeavour that used, recorded or stored the electronic document and the nature and purpose of the electronic document.
2000, c. 5, s. 56.


CEA

Proof by Affidavit

Proof by affidavit
31.6 (1) The matters referred to in subsection 31.2(2) [print-outs] and sections 31.3 [presumption of integrity] and 31.5 [proof by standard, procedure, usage or practice] and in regulations made under section 31.4 [proof of electronic signatures] may be established by affidavit.
Cross-examination
(2) A party may cross-examine a deponent of an affidavit referred to in subsection (1) that has been introduced in evidence

(a) as of right, if the deponent is an adverse party or is under the control of an adverse party; and
(b) with leave of the court, in the case of any other deponent.

2000, c. 5, s. 56.
[annotated added]


CEA

Expert Evidence for Admissibility

See also: Expert Evidence

Where the authenticity and admissibility is not being disputed there it should not be necessary to call any expert evidence in order to admit any digital evidence such as facebook, email or text messages.[1] The trier of fact can assess weight of the evidence without expert evidence, and account for the possibility of fabrication, editing or deletion, based on the testimony of the parties involved in the communication.[2]

It has been suggested that the admission of certain electronic evidence from "mundane" technology (such as social media websites or cell phone text messages) such that the typical user would be well versed in the functionality of the device and meaning of the contents, can be authenticated without expert evidence.[3]

Proof of authenticity of the record and integrity of the system can be proven either by expert evidence or by circumstantial evidence. [4] Expert evidence is preferred when authenticating the results from an extraction of an electronic device.[5]

  1. Ducharme v Borden, 2014 MBCA 5 (CanLII), per Mainella JA at paras 15 to 17 - re civil proceedings where parties to communication testified, applying The Manitoba Evidence Act
  2. Ducharme v Borden, ibid. at para 17
  3. See Paciocco, "Proof and Progress" Canadian Journal of Law and Technology
    R v Bulldog, 2015 ABCA 251 (CanLII), per curiam
    See also R v Soh, 2014 NBQB 20 (CanLII), per Lavigne J
  4. R v Avanes, 2015 ONCJ 606 (CanLII), per Band J at para 65
  5. Avanes, ibid. at para 65 -- judge suggests expert evidence could be simply admitted through affidavit.

Definitions

Definitions
31.8 The definitions in this section apply in sections 31.1 to 31.6.
...
“computer system” means a device that, or a group of interconnected or related devices one or more of which,

(a) contains computer programs or other data; and
(b) pursuant to computer programs, performs logic and control, and may perform any other function.


...
“data” means representations of information or of concepts, in any form.


...
“electronic document” means data that is recorded or stored on any medium in or by a computer system or other similar device and that can be read or perceived by a person or a computer system or other similar device. It includes a display, printout or other output of that data.


...
“electronic documents system” includes a computer system or other similar device by or in which data is recorded or stored and any procedures related to the recording or storage of electronic documents.


...
“secure electronic signature” means a secure electronic signature as defined in subsection 31(1) of the Personal Information Protection and Electronic Documents Act.
2000, c. 5, s. 56.


CCC


Section 31(1) of the PIPEDA states:

secure electronic signature means an electronic signature that results from the application of a technology or process prescribed by regulations made under subsection 48(1). (signature électronique sécurisée)


PIPEDA

Receipt of Sworn Documents

Oaths
846. If under this Act an information, an affidavit or a solemn declaration or a statement under oath or solemn affirmation is to be made by a person, the court may accept it in the form of an electronic document if

(a) the person states in the electronic document that all matters contained in the information, affidavit, solemn declaration or statement are true to his or her knowledge and belief;
(b) the person before whom it is made or sworn is authorized to take or receive informations, affidavits, solemn declarations or statements and he or she states in the electronic document that the information, affidavit, solemn declaration or statement was made under oath, solemn declaration or solemn affirmation, as the case may be; and
(c) the electronic document was made in accordance with the laws of the place where it was made.

2002, c. 13, s. 84.
Copies
847. Any person who is entitled to obtain a copy of a document from a court is entitled, in the case of a document in electronic form, to obtain a printed copy of the electronic document from the court on payment of a reasonable fee determined in accordance with a tariff of fees fixed or approved by the Attorney General of the relevant province.
2002, c. 13, s. 84.


CCC


Electronic Signatures

Presumptions regarding secure electronic signatures
31.4 The Governor in Council may make regulations establishing evidentiary presumptions in relation to electronic documents signed with secure electronic signatures, including regulations respecting

(a) the association of secure electronic signatures with persons; and
(b) the integrity of information contained in electronic documents signed with secure electronic signatures.

2000, c. 5, s. 56.


CEA

Sections 2 to 5 of the Secure Electronic Signature Regulations, SOR/2005-30 states that:

Technology or Process
2 For the purposes of the definition secure electronic signature in subsection 31(1) of the Act, a secure electronic signature in respect of data contained in an electronic document is a digital signature that results from completion of the following consecutive operations:

(a) application of the hash function to the data to generate a message digest;
(b) application of a private key to encrypt the message digest;
(c) incorporation in, attachment to, or association with the electronic document of the encrypted message digest;
(d) transmission of the electronic document and encrypted message digest together with either
(i) a digital signature certificate, or
(ii) a means of access to a digital signature certificate; and
(e) after receipt of the electronic document, the encrypted message digest and the digital signature certificate or the means of access to the digital signature certificate,
(i) application of the public key contained in the digital signature certificate to decrypt the encrypted message digest and produce the message digest referred to in paragraph (a),
(ii) application of the hash function to the data contained in the electronic document to generate a new message digest,
(iii) verification that, on comparison, the message digests referred to in paragraph (a) and subparagraph (ii) are identical, and
(iv) verification that the digital signature certificate is valid in accordance with section 3.


3 (1) A digital signature certificate is valid if, at the time when the data contained in an electronic document is digitally signed in accordance with section 2, the certificate

(a) is readable or perceivable by any person or entity who is entitled to have access to the digital signature certificate; and
(b) has not expired or been revoked.

(2) In addition to the requirements for validity set out in subsection (1), when the digital signature certificate is supported by other digital signature certificates, in order for the digital signature certificate to be valid, the supporting certificates must also be valid in accordance with that subsection.
4 (1) Before recognizing a person or entity as a certification authority, the President of the Treasury Board must verify that the person or entity has the capacity to issue digital signature certificates in a secure and reliable manner within the context of these Regulations and paragraphs 48(2)(a) to (d) of the Act.
(2) Every person or entity that is recognized as a certification authority by the President of the Treasury Board shall be listed on the website of the Treasury Board Secretariat.
Presumption
5 When the technology or process set out in section 2 is used in respect of data contained in an electronic document, that data is presumed, in the absence of evidence to the contrary, to have been signed by the person who is identified in, or can be identified through, the digital signature certificate.


Regs


Section 845 also states:

Signatures
845 If this Act requires a document to be signed, the court may accept a signature in an electronic document if the signature is made in accordance with an Act or the rules of court.
2002, c. 13, s. 84.


CCC

See Also

Best Evidence Rule

General Principles

Where the contents of a document are material to the case, the traditional common law Best Evidence Rule (or "documentary originals rule") requires that the party submit the original unless the party is unable to do so. The court can accept a secondary copy where it is satisfied that the original was lost, destroyed or otherwise unavailable all in good faith.[1]

The primary role of the BER is merely to be an "adjunct to authenticity" that assures the court that the document is the same as the one inputted into the computer.[2]

This rule arises from a time before the advent of computers and photocopiers when all copying was done by hand. It is sometimes criticized as a rule that has outlived its purpose.[3] There is some suggestion that a lack of original will merely go to weight.[4]

Nevertheless, the best evidence rule is part of the common law. There are a number of statutory enactments that allow for exemption to this rule, such as CEA s. 29 [financial records], 30(3) [business records], 31(2)(c)[government records] [5].

The BER does not normally prevent a party from testifying as to the contents of a lost or non-seized video.[6]

The party objecting to the admissibility of the evidence cannot rely on the BER where that party is in possession of the original copies of the record at issue.[7]

Purpose to the Rule
The rule's original purpose was "simply to avoid fraud and forgery".[8]

  1. See R v Betterest Vinyl Mfg. Ltd, (1989) 52 CCC 3d 441 (BCCA), 1989 CanLII 7251 (BC CA), per Taggart JAbr> See R v Swartz (1977), 37 CCC (2d) 409 (Ont. C.A.), 1977 CanLII 1925 (ON CA), per Jessup JA affirmed 1979 CanLII 38 (SCC), [1979] 2 SCR 256, per Dickson J
  2. R. v CL, 2017 ONSC 3583 (CanLII), per Baltman J at para 23
  3. See R v Donald (1958) 121 CCC 304 (NBCA), 1958 CanLII 470 (NB CA), per Bridges JA at 306
    R v Galarce, 1983 CanLII 2281 (SK QB), (1983) 35 CR 3d 368 (SKQB), per Gerein J
    R v Torres, 2012 ABPC 69 (CanLII), per Shriar J, at para 58 (“Courts across the common law world have long recognized that in many cases the ‘best evidence rule’ is outdated given the ubiquity of...digital record keeping and transmission. It is often hard to know what is an original of a particular document.”)
    R v Papalia, 1977 CanLII 54 (ON CA), per Jessup JA (“any strict interpretation of this principle has long been obsolete”)
  4. Garton v Hunter [1969] 1 All ER 451 at 453 per Denning J.
    see also, R v Cotroni (1977) 37 CCC 2d 409 (ONCA)(*no CanLII links) - audio re-recordings admitted
  5. s.29 CEA
  6. After Dark Enterprises, supra at para 16 ("In our view the best evidence rule does not preclude the admission of viva voce evidence of persons who observed the video... However, the evidence may vary greatly in its weight and reliability.")
  7. After Dark Enterprises, supra
    R v JSC, 2013 ABCA 157 (CanLII), per curiam at para 14
  8. After Dark Enterprises, supra ("The learned trial judge says that the prosecution cannot call any other evidence if real evidence on the same point was available to be seized and was not seized. That extends the best evidence rule far beyond its original purpose, which was simply to avoid fraud and forgery, into a large alteration of practice and procedure in courts today. We do not accept it.")

Modern Approach

The more modern approach tends to say that the rule is not to be applied strictly. It should be used “as a guide for choosing the appropriate method of proof”. This will depend on the particular circumstances of the case and what “the nature of the case will allow”.[1] Greater emphasis instead is placed on the existence of a "proper foundation" for the evidence that establishes it as "authentic and accurate".[2]

The evidence can also be considered in light of "secondary evidence" depending on the discretion of the court.[3]


  1. R v Shayesteh, 1996 CanLII 882 (ON CA), (1996), 31 OR (3d) 161 (ONCA), per Charron JA
    see also R v Ghotra, [2015] OJ No 7253 (ONSC)(*no CanLII links) , per Durno J
    R v Burton, 2017 NSSC 3 (CanLII), per Arnold J at para 26 citing Ghotra
  2. Ghotra, ibid. at para 125 per Durno J.
    US v Knolh, 379 F. 2d. 427 (1967)
  3. Shayesteh, supra
    Burton, supra at para 26

Justifying Use of Secondary Evidence

There is no need to "negate every possibility of the existence of the best evidence", when choosing to rely on secondary (non-best evidence).[1]

It is often only necessary to show that the best evidence was "impossible or highly inconvenient to produce the original".[2]

Generally, there should be no categorical division between primary and secondary evidence as it relates to documentary evidence. The difference in the evidence will normally be a matter of weight.[3]

  1. R v Duncan, 2016 ONSC 1126 (CanLII), per Code J, citing Lederman, Bryant, and Fuerst, The Law of Evidence in Canada
  2. Duncan, ibid.
  3. Duncan, ibid.

History

The BER has its origins in the 1700s and up until the 19th century was seen as a fundamental precondition to admissibility of all evidence.[1] The rule was later limited only to documentary evidence and was often referred to as the "documentary originals rule".[2]

The traditional view is that only the "best proof" should be accepted.[3]

  1. Burton, supra at para 21 citing McWilliams Canadian Criminal Evidence
  2. Burton, ibid. at para 21
  3. Burton, supra at para 26

Use Cases

Video Tape Evidence
The rule does not preclude the admission of viva voce evidence of persons who viewed a video that was not in evidence.[1] there is similarly no prohibition against oral testimony as to the contents of the untendered record.[2]

  1. R v Pires, 2012 ONCJ 713 (CanLII), per Nakatsuru J - police view a surveillance video that was not seizable
    See R v Pham, 1999 BCCA 571 (CanLII), [1999] BCJ 2312 (BCCA)Template:PerBCA at paras 18 – 25
    R v After Dark Enterprises Ltd. 1994 ABCA 360 (CanLII), (1994), 94 CCC (3d) 574 (Alta. C.A.)
    Kajala v Noble (1982), 75 Cr. App. R. 149 (Q.B.D.)(*no CanLII links)
    R v JSC, 2013 ABCA 157 (CanLII), per curiam at paras 14 to 16
  2. R v Duncan, 2016 ONSC 1126 (CanLII), per Code J at para 28

Electronic Records

See also: Electronic Documents

Section 31.2 creates a statutory exemption to the BER in connection with electronic documents on the basis of proof of integrity.[1]

Text messages
As a general rule, the best evidence rule does not require that the Crown admit a certified copy of text messages as they are found in the service providers' databases.[2]

The officer's failure to seize and analyze the accused's phone or seek out service provider records does not normally amount to negligence.[3]

The taking of low quality screen shots of the screen of a witnesses phone, while permitting the owner to delete the text messages afterwards can be problematic, but are not necessarily a bar to the admission of the texts.[4]

  1. see R v Moon, 2016 ABPC 103 (CanLII), per Cummings J
  2. R v Burton, 2017 NSSC 3 (CanLII), per Arnold J citing Ghotra at para 148
  3. R v Burton, supra at para 29
    R v Burns, 2014 NSSC 436 (CanLII), per Rosinski J at paras 112 to 115
  4. Burton, supra at paras 4 and 32

Admissibility of Copies

At common law, there is no requirement that the party seeking admission must provide notice, an affidavit or certificate authenticating that it was made by the person who made the copy.[1]

Copied records from production orders are deemed to be originals under s. 487.0192(5), (6).[2]

  1. R v Clarke, 2016 ONSC 575 (CanLII), per Allen J at para 37
  2. see Production Orders

See Also

Testimonial Evidence

Introduction

The "truth-seeking process of a trial is predicated on the presentation of evidence in court" be it real evidence or testimony.[1]

The trier-of-fact directly hears testimony "so there is no concern that the evidence was recorded inaccurately". Direct evidence also allows for the trier of fact to have "robust tools for testing the truthfulness of evidence and assessing its value".[2] Assessment of truthfulness can be assessed by demeanour.[3] And through cross examination.[4]

Testimonial evidence, also known as viva voce evidence or oral evidence, is evidence given by a witness in the form answers to posed questions.

When a competent witness has taken the stand, he "is required to answer all relevant questions put to him".[5] There exist exceptions for questions invoking privileged information and certain self-incriminatory information. However, as a general rule, even incriminating questions must be answered.[6]

The "involuntary participation of non-involved persons in litigation is a longstanding tradition of the legal system".[7]

Every person "has a duty to testify to that which they have witnessed".[8]

  1. R v Bradshaw, 2017 SCC 35 (CanLII), per Karakatsanis J at para 19
  2. Bradshaw, ibid. at para 19
  3. Bradshaw, ibid. at para 19
  4. Bradshaw, ibid. at para 19
  5. R v Noel, 2002 SCC 67 (CanLII), [2002] 3 SCR 433, per Arbour J at para 25
  6. Section 5(1) of the Canada Evidence Act states "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."
  7. Northland Properties Ltd. v Equitable Trust Co., 1992 CanLII 2360 (BC SC), (1992), 10 C.P.C. (3d) 245 (B.C.S.C.), per Fraser J at 254-5
  8. D.W. Matheson & Son Contracting Ltd. v Canada (Attorney General), 2000 NSCA 44 (CanLII), per Cromwell J at para 83

Purpose of Testimonial Evidence

Testimonial evidence is the best way to ensure the most reliable and credible evidence is available for the trier of fact to consider.

Witnesses are encouraged to be honest, accurate, and complete by requiring them to give evidence under the requirements that:[1]

  1. the witness give an oath or affirmation to their evidence;
  2. their personal presence is necessary;
  3. they will be subject to cross-examination
  1. R v Baldree 2012 ONCA 138 (CanLII), per Feldman JA (2:1) at para 44 appealed to SCC

Calling Witnesses

The usual manner that a witness testify is by oral testimony in court (viva voce evidence) while the accused is present. (CCC s.650(1))

The witnesses' testimony must be relevant, material, and admissible. To see details on the scope of these requirements see Evidence.

Identifying witnesses and Using Pseudonyms
The Court has discretion to allow a witness to testify under a pseudonym only where a failure to do so would interfere with the administration of justice.[1] This includes where the witness has reason to fear for their life.[2]

  1. R v McKinnon, 1982 ABCA 302 (CanLII), (1982), 39 A.R. 283 (Alta. C.A.), per Lieberman JA
      Attorney-General v Leveller Magazine Ltd, [1979] 1 All E.R. 745 (H.L.) (*no CanLII links)
      R v McArthur, (1984) 13 CCC (3d) 152 (Ont. H.C.J.), 1984 CanLII 3478 (ON SC), per Dupont J
  2. R v Gingras, 1992 CanLII 2826 (AB CA), (1992), 120 A.R. 300 (C.A.), per curiam
    R v Mousseau, 2002 ABQB 210 (CanLII), per Moen J

Impermissible Reasons for Calling Witnesses

The Crown may not call a witness whose evidence does not advance their case, but it merely for the purpose of cross-examining to show them not to be credible.[1] Where such a witness is called, the judge should have provided limiting instructions explaining that absence collusion, a jury cannot draw any adverse inferences against the accused due to the negative finding of credibility against the witness.[2]

  1. R v Soobrian (1994), 1994 CanLII 8739 (ON CA), 21 O.R. (3d) 603 (C.A.), per curiam
  2. Soobrian
    R v Dayes, 2013 ONCA 614 (CanLII), per LaForme JA, at para 32

Communicating with Witnesses During Testimony

Communication with Witness After Cross-examination But Before Re-Direct
There is variable positions on whether counsel can talk to a witness between cross-examination and re-examination. Generally leave of the court may be required first. [1]

  1. R v Montgomery, 1998 CanLII 3014 (BC S.C.)

Exclusion of Witnesses

Recalling Witnesses

The judge has discretion to permit that a witness be recalled to be cross-examined further. This can include re-calling the accused to be cross-examined further. However, this discretion should be "exercised very cautiously".[1]

  1. R v RL, 2002 CanLII 49356 (ON CA) at para 6

Choice of Witnesses

Any party is entitled to call a witness who is competent to testify (See Competence and Compellability for details on competency of witnesses).

A party is also permitted call a witness that has already previously been called by the opposing party.[1]

A party cannot call a witness for the sole purpose of discrediting a witness who has made a previous inconsistent statement.[2]

Failure to Call a Witnesss
The failure to call a witness can be used to make an adverse inference where there is no plausible reason not to do so and it is well within the power of the party to do so. However, where the evidence is merely cumulative or inferior en it should not be taken into account.[3]

A failure to call a witness cannot be used to make a negative inference on the credibility of the accused.[4]

Crown Discretion to Call Witnesses
The Crown is under no obligation to subpeona or call witnesses for the benefit of the Defence. The defence are able to subpeona the witnesses themselves.[5]

Failure of Accused to Testify
The failure of an accused to testify cannot be used to infer guilt.[6] A weak prosecution case should not be strengthened in any way through the accuseds' failure to testify.[7]

However, where the Crown sets out a case that "cries out for an explanation", the failure to testify fails to provide any basis to infer anything else but guilt.[8]

  1. R v Cook, (1960), 31 W.W.R. 148 (Alta. S.C.A.D.), 1960 CanLII 449 (AB CA), per Ford CJA
    R v Baiton, 2001 SKQB 264 (CanLII)
    R v Sutton 2002 NBQB 49 (CanLII)
  2. R v Soobrian 1994 CanLII 8739 (ONCA)
    This relates mostly to crowns calling a witness apply under s. 9 CEA to cross examine (see Examinations#Cross-examining a party's own witness (Adverse or Hostile Witnesses)
  3. R v Lapensee, 2009 ONCA 646 (CanLII)
    R v Bruce Power Inc., 2009 ONCA 573 (CanLII) at para 50 ("What I find particularly surprising is that the Inspector did not testify on the motion before the justice of the peace to explain the conduct of the prosecution. The obvious inference to be drawn is that he had no credible explanation.")
  4. See Credibility#Failure to Call Witnesses
  5. Roulette (K.T.), 2015 MBCA 9 (CanLII) at para 123
    R v Caccamo, [1976] 1 SCR 786, 1975 CanLII 11 (SCC) (" At trial Crown counsel has full discretion as to what witnesses should be called for the prosecution and the Court will not interfere with the exercise of that discretion unless it can be shown that the prosecutor has been influenced by some oblique motive")
    See also Role of the Crown
  6. R v Oddleifson (J.N.), 2010 MBCA 44 (CanLII)
    R. v. LePage, [1995] 1 SCR 654, 1995 CanLII 123 (SCC), per Sopinka J, at para. 29
  7. LePage, ibid. at para 29
    R v Johnson (1993), 12 O.R. (3d) 340 (C.A.), 1993 CanLII 3376 (ON CA), per Arbour JA at pp. 347-48 ("A weak prosecution's case cannot be strengthened by the failure of the accused to testify")
  8. Oddleifson

Witnesses Refusing to Testify

See also: Examinations and Compelling Attendance of Witnesses

Procedure where Witness Refuses to Testify
Witness refusing to be examined
545. (1) Where a person, being present at a preliminary inquiry and being required by the justice to give evidence,

(a) refuses to be sworn,
(b) having been sworn, refuses to answer the questions that are put to him,
(c) fails to produce any writings that he is required to produce, or
(d) refuses to sign his deposition,

without offering a reasonable excuse for his failure or refusal, the justice may adjourn the inquiry and may, by warrant in Form 20, commit the person to prison for a period not exceeding eight clear days or for the period during which the inquiry is adjourned, whichever is the lesser period.
Further commitment
(2) Where a person to whom subsection (1) applies is brought before the justice on the resumption of the adjourned inquiry and again refuses to do what is required of him, the justice may again adjourn the inquiry for a period not exceeding eight clear days and commit him to prison for the period of adjournment or any part thereof, and may adjourn the inquiry and commit the person to prison from time to time until the person consents to do what is required of him.
Saving
(3) Nothing in this section shall be deemed to prevent the justice from sending the case for trial on any other sufficient evidence taken by him.
R.S., c. C-34, s. 472.


CCC

Section 545 does not permit a justice to make an order of contempt against a witness who refuses to testify at a preliminary inquiry.[1]

A witness charged with contempt of court for refusing to testify against gang members due to fear to safety can rely on the defence of duress. [2]

  1. R v Bubley, 1976 ALTASCAD 138 (CanLII)
  2. R v CMB, 2010 MBQB 269 (CanLII)
    see also Contempt of Court (Offence) and Duress

Evidence by Commission

See also: Testimonial Aids for Young, Disabled or Vulnerable Witnesses

Topics

See Also

Competence and Compellability

Introduction

Any witness called to testify must have "competence" to testify and, if they are not participating voluntarily they must be "compellable".

The competence of a witness refers to whether a witness is legally permitted to testify and give evidence. The compellability of a witness refers to the power to force a competent witness to testify even if it's against their will.

Topics

Compelling Attendance of Witnesses

General Principles

Part XXII of the Code (s. 697 to 715.2) governs the procuring of attendance for witnesses. Section 697 states:

Application
697 Except where section 527 [Procuring attendance of a prisoner] applies, this Part applies where a person is required to attend to give evidence in a proceeding to which this Act applies.
R.S., c. C-34, s. 625.


CCC

A competent witness is generally a compellable witness.[1] An incompetent witness is generally not compellable.


Historically, witnesses can be compelled to attend court under either a writ subpoena ad testificandum which requires the person to give oral evidence or a writ of subpoena duces tecum which requires the person to bring certain records or documents to the court.

Crown and defence counsel are both compellable witnesses.[2]

Copies of Summons, Warrants or Subpoena
Under s. 708.1, faxed copies of the warrant, subpoena, or summons has the same value as an original.

Electronically transmitted copies
708.1 A copy of a summons, warrant or subpoena transmitted by a means of telecommunication that produces a writing has the same probative force as the original for the purposes of this Act.
1997, c. 18, s. 101.


CCC

Youth Court Justice

Issue of subpoena
144 (1) If a person is required to attend to give evidence before a youth justice court, the subpoena directed to that person may be issued by a youth justice court judge, whether or not the person whose attendance is required is within the same province as the youth justice court.
Service of subpoena
(2) A subpoena issued by a youth justice court and directed to a person who is not within the same province as the youth justice court shall be served personally on the person to whom it is directed.


YCJA

  1. R v Schell, 2004 ABCA 143 (CanLII), (2004) 188 CCC (3d) 254 (ABCA), per Paperny JA
    R v Czipps (1979) 48 CCC (2d) 166 (ONCA), 1979 CanLII 2095 (ON CA), per Morden JA
  2. R v Gervais, 1992 CanLII 3144 (QC CA), (1992), 75 CCC (3D) 61 (QCCA), per curiam

Witness Subpoenas

Section 698 allows the ordering of a subpoena requiring a witness to attend court:

Subpoena
698. (1) Where a person is likely to give material evidence in a proceeding to which this Act applies, a subpoena may be issued in accordance with this Part requiring that person to attend to give evidence.
Warrant in Form 17
(2) Where it is made to appear that a person who is likely to give material evidence

(a) will not attend in response to a subpoena if a subpoena is issued, or
(b) is evading service of a subpoena,

a court, justice or provincial court judge having power to issue a subpoena to require the attendance of that person to give evidence may issue a warrant in Form 17 to cause that person to be arrested and to be brought to give evidence.
Subpoena issued first
(3) Except where paragraph (2)(a) applies, a warrant in Form 17 shall not be issued unless a subpoena has first been issued.
R.S., 1985, c. C-46, s. 698; R.S., 1985, c. 27 (1st Supp.), s. 203.


CCC

The key factor is that the issuing party must be able to establish that the witness would likely or probably have material evidence to give. It is not enough that the witness "may have" material evidence.[1]

Where the subpoena is not valid it may be quashed by a superior court judge.[2]

  1. R v Harris, 1994 CanLII 2986 (ON CA), (1994) 93 CCC (3d) 478 (ONCA), per curiam
  2. R v A, 1990 CanLII 101 (SCC), [1990] 1 SCR 995, per Cory J
    R v Black, [2002] NSJ 71 (NSSC), 2002 NSSC 42 (CanLII), per Murphy J

Application Process

A judge or justice issuing a subpoena must take at least some steps or some "examination" in order "to satisfy himself that the person is likely to give material evidence".[1]There should be "some case-specific inquiry" on the part of the issuer. It should not be “issued for the asking”. Dykstra v Greensword, 2016 ONSC 8211 (CanLII), per Durno J at para 90 </ref> However, in practice judges and justices will regularly issue subpoenas without making inquiry of any evidence.[2]

In most cases, submissions of counsel will be sufficient for the judge to be satisfied with threshold requirements for a subpoena.[3]There should not be a requirement for affidavits or oral evidence. To do otherwise risks bogging down the system.[4]

Discretionary Decision
Whether to issue a subpoena for a witness is an exercise in statutory discretion.[5]

A judge maintains discretion to excuse an expert witness who is under a valid subpoena.[6]

Sealing
It is generally recommended that any material filed on an application for a subpoena should be sealed.[7]

  1. Foley v Gares, 1989 CanLII 5134 (SK CA), (1989), 53 CCC (3d) 82, per Bayda CJ
  2. E.g. R v Regan (1998), 173 NSR (2d) 298, 1998 CanLII 17566 (NS SC), per MacDonald J
  3. Dykstra, supra at para 90
  4. R v Ross (1994), 1994 CanLII 7584 (NS SC), 131 N.S.R. (2d) 258, 371 A.P.R. 258 (N.S.S.C.), per Boudreau J
    R v Glover, 2018 ONSC 3860 (CanLII), per Williams J, para 30
  5. Dykstra, ibid. at para 90
  6. R v Blais, 2008 BCCA 389 (CanLII), per Bauman JA
  7. Dykstra, supra at para 90 ("...where any material is filed on an application for a subpoena whether for a Crown or defence subpoena, it should be sealed, and must not be opened without a court order and kept in the court file..."

Power to Issue Witness Subpoenas

Who may issue
699. (1) If a person is required to attend to give evidence before a superior court of criminal jurisdiction, a court of appeal, an appeal court or a court of criminal jurisdiction other than a provincial court judge acting under Part XIX, a subpoena directed to that person shall be issued out of the court before which the attendance of that person is required.
Order of judge
(2) If a person is required to attend to give evidence before a provincial court judge acting under Part XIX [Indictable Offences-Trial Without a Jury] or a summary conviction court under Part XXVII [summary conviction proceedings] or in proceedings over which a justice has jurisdiction, a subpoena directed to the person shall be issued

(a) by a provincial court judge or a justice, where the person whose attendance is required is within the province in which the proceedings were instituted; or
(b) by a provincial court judge or out of a superior court of criminal jurisdiction of the province in which the proceedings were instituted, where the person whose attendance is required is not within the province.


Order of judge
(3) A subpoena shall not be issued out of a superior court of criminal jurisdiction pursuant to paragraph (2)(b), except pursuant to an order of a judge of the court made on application by a party to the proceedings.
...
R.S., 1985, c. C-46, s. 699; R.S., 1985, c. 27 (1st Supp.), s. 203; 1994, c. 44, s. 69; 1997, c. 30, s. 2; 1999, c. 5, s. 28.


CCC

The court before which the witness may testify will issue has the authority to issue a subpoena.[1]

Where the matter is before a provincial court judge and the person is within the province, a provincial court judge may order their attendance by issuing a subpoena under s.699(2)(a). However, under s. 699(2)(b), where the witness is out of province, either a provincial court a superior court judge may order the subpoena.

Where the matter is before a superior court judge, only that court may issue a subpoena compelling attendance (s. 699(1)).

  1. s. 699(1)

Form of the Subpoena

The subpoena must be under the seal of the court with the signature of either the judge or his clerk.[1] It should also have the signature of the judge.[2] The subpoena should comply with Form 16.[3]

Sexual Offences
Sexual offences referred to s. 278.2(1) [restrictions on disclosure of records for certain sexual offences] must comply with s. 699(5.1). The subpoena should conform to Form 16.1[4]

699.
...
Seal
(4) A subpoena or warrant that is issued by a court under this Part shall be under the seal of the court and shall be signed by a judge of the court or by the clerk of the court.
Signature
(5) A subpoena or warrant that is issued by a justice or provincial court judge under this Part shall be signed by the justice or provincial court judge.
Sexual offences
(5.1) Notwithstanding anything in subsections (1) to (5), in the case of an offence referred to in subsection 278.2(1) [restrictions on disclosure of records for certain sexual offences], a subpoena requiring a witness to bring to the court a record, the production of which is governed by sections 278.1 to 278.91, must be issued and signed by a judge.
Form of subpoena
(6) Subject to subsection (7), a subpoena issued under this Part may be in Form 16.
Form of subpoena in sexual offences
(7) In the case of an offence referred to in subsection 278.2(1) [restrictions on disclosure of records for certain sexual offences], a subpoena requiring a witness to bring anything to the court shall be in Form 16.1.
R.S., 1985, c. C-46, s. 699; R.S., 1985, c. 27 (1st Supp.), s. 203; 1994, c. 44, s. 69; 1997, c. 30, s. 2; 1999, c. 5, s. 28.


CCC

  1. s. 699(4)
  2. s. 699(5)
  3. s. 699(6)
  4. s. 699(7)

Contents

In Person Attendance

Contents of subpoena
700. (1) A subpoena shall require the person to whom it is directed to attend, at a time and place to be stated in the subpoena, to give evidence and, if required, to bring with him anything that he has in his possession or under his control relating to the subject-matter of the proceedings.
Witness to appear and remain
(2) A person who is served with a subpoena issued under this Part shall attend and shall remain in attendance throughout the proceedings unless he is excused by the presiding judge, justice or provincial court judge.
R.S., 1985, c. C-46, s. 700; R.S., 1985, c. 27 (1st Supp.), ss. 148, 203.


CCC


Video Link Attendance

Video links, etc.
700.1 (1) If a person is to give evidence under section 714.1 or 714.3 or under subsection 46(2) of the Canada Evidence Act — or is to give evidence or a statement pursuant to an order made under section 22.2 of the Mutual Legal Assistance in Criminal Matters Act — at a place within the jurisdiction of a court referred to in subsection 699(1) or (2) where the technology is available, a subpoena shall be issued out of the court to order the person to give that evidence at such a place.
Sections of Criminal Code
(2) Sections 699, 700 and 701 to 703.2 apply, with any modifications that the circumstances require, to a subpoena issued under this section.
1999, c. 18, s. 94.


CCC

Service

Service
701. (1) Subject to subsection (2), a subpoena shall be served in a province by a peace officer or any other person who is qualified in that province to serve civil process, in accordance with subsection 509(2), with such modifications as the circumstances require.
Personal service
(2) A subpoena that is issued pursuant to paragraph 699(2)(b) shall be served personally on the person to whom it is directed.
(3) [Repealed, 2008, c. 18, s. 32]
R.S., 1985, c. C-46, s. 701; 1994, c. 44, s. 70; 2008, c. 18, s. 32.


CCC

Service in accordance with provincial laws
701.1 Despite section 701, in any province, service of a document may be made in accordance with the laws of the province relating to offences created by the laws of that province.
1997, c. 18, s. 100; 2008, c. 18, s. 33.


CCC

Subpoena effective throughout Canada
702. (1) A subpoena that is issued by a provincial court judge or out of a superior court of criminal jurisdiction, a court of appeal, an appeal court or a court of criminal jurisdiction has effect anywhere in Canada according to its terms.
Subpoena effective throughout province
(2) A subpoena that is issued by a justice has effect anywhere in the province in which it is issued.
R.S., 1985, c. C-46, s. 702; 1994, c. 44, s. 71.


CCC

Warrant effective throughout Canada
703. (1) Notwithstanding any other provision of this Act, a warrant of arrest or committal that is issued out of a superior court of criminal jurisdiction, a court of appeal, an appeal court within the meaning of section 812 or a court of criminal jurisdiction other than a provincial court judge acting under Part XIX may be executed anywhere in Canada.
Warrant effective in a province
(2) Despite any other provision of this Act but subject to subsections 487.0551(2) and 705(3), a warrant of arrest or committal that is issued by a justice or provincial court judge may be executed anywhere in the province in which it is issued.
R.S., 1985, c. C-46, s. 703; R.S., 1985, c. 27 (1st Supp.), s. 149; 2007, c. 22, s. 22.


CCC

Summons effective throughout Canada
703.1 A summons may be served anywhere in Canada and, if served, is effective notwithstanding the territorial jurisdiction of the authority that issued the summons.
R.S., 1985, c. 27 (1st Supp.), s. 149.


CCC

Service of process on an organization
703.2 Where any summons, notice or other process is required to be or may be served on an organization, and no other method of service is provided, service may be effected by delivery

(a) in the case of a municipality, to the mayor, warden, reeve or other chief officer of the municipality, or to the secretary, treasurer or clerk of the municipality; and
(b) in the case of any other organization, to the manager, secretary or other senior officer of the organization or one of its branches.

R.S., 1985, c. 27 (1st Supp.), s. 149; 2003, c. 21, s. 13.


CCC

Warrant of Arrest

See also: Warrant Arrests

Section 698(2) permits a judge to order a warrant of arrest for a person to attend court as a witness.

The key requirements for a 698(2) warrant consist of:

  1. the person is "likely to give material evidence"
  2. the person "will not attend in response" to an issued subpoena or is evading service of a subpoena."

There is not need for the person to be cooperative with the process server or police officer who is trying to serve them.[1]

A conclusion that the party is evading service must be "adequately support by the facts".[2]

The decision to issue a warrant under s. 698 is at the discretion of the judge and is not reviewable on certiorari.[3]

  1. Credit Foncier Franco-Canadien v McGuire, 1979 CanLII 366 (BC SC), (1979), 14 B.C.L.R. 281 (S.C.), per Van Der Hoop J, at para 8
  2. Credit Foncier Franco-Canadien at para 8
  3. R v Earhart, 2007 BCCA 614 (CanLII), per Rowles JA

Quashing a Subpoena

Jurisdiction
Only a superior court justice has the power to quash a subpoena.[1]

There is some suggestion that a preliminary inquiry judge may be entitled under s. 700(2) to adjudicate whether the witness has relevant testimony and excuse them if the evidence would be immaterial to the hearing.[2]

Calling Opposing Counsel
It is only in "exceptional circumstances that Crown or defence counsel will be permitted to call opposing counsel as a witness".[3]

In order to call opposing counsel there must be an "evidentiary foundation for showing that the counsel's evidence is likely to be relevant and necessary".[4]

The standard is a high one requiring that there is "a real basis for believing that it is likely the witness can give material evidence."[5]

The reason for this standard is to avoid the mischief of trials being interrupted at random for fishing expeditions.[6]

The standard will be the same whether it is Crown or defence.[7]

Crown Counsel
Crown counsel can seek to quash a subpeona on the basis that it amounts to a "fishing expedition".[8]

A subpoena for a Crown counsel may only be permitted where "the evidence cannot be obtained in any other way".[9] The added requirement to subpoena a Crown witness remains the same even once the Crown counsel is not longer counsel on the case.[10]

Subpoena power should be used cautiously to avoid frustrating the role of counsel by making them a witness in a case.[11]

Defence counsel cannot subpoena previous Crown counsel to give evidence on the reason for relying on notice of a prior conviction contrary to policy as it was not "absolutely essential".[12]

  1. R v Ben Aïssa, 2016 QCCQ 2830 (CanLII), per Mascia J at para 24 to 29 - a preliminary inquiry judge has no power to rule on request to quash
    R v Rashwan, 2004 CanLII 41169 (ON SC), per Spiegel J
    R v Primeau, [1995] 2 SCR 60, 1995 CanLII 143 (SCC), per Sopinka and Iacobucci JJ re application for a writ of prohibition and remedy under s. 24(1) of Charter
  2. Ben Aïssa, supra at paras 30 to 33
  3. R v Elliott, 2003 CanLII 24447 (ON CA), per curiam, at para 114
  4. Elliott, ibid. at para 114
  5. Elliott, ibid. at para 114
    Stupp, Winthrope and Manus (1982), 1982 CanLII 1897 (ON SC), 36 O.R. (2d) 206 at 219 (Ont. H.C.J.), per Craig J ("In my opinion, an accused person should not be permitted to call Crown counsel to conduct a fishing expedition or to examine in the hope that something might turn up that would assist him on the issue; but rather counsel must satisfy the judge that there is a real basis for believing that it is likely the witness can give material evidence")
  6. Stupp, ibid. ("If it is otherwise, preliminary hearings and trials can be interrupted at random; and the administration of criminal justice could be seriously impaired.")
  7. Elliott, supra at para 114
  8. R v Harris, 1994 CanLII 2986 (ON CA), per curiam
  9. R v Regan, [1996] NSJ No 625(*no CanLII links)
    Harris, supra
    R v Gervais, 1992 CanLII 3144 (QC CA), (1992) 75 CCC (3d) 61 (QCCA), per curiam
    R v Black, supra
  10. Regan, supra (1996)
  11. R v Sungalia, [1992] OJ No 3718(*no CanLII links)
  12. R v Kim, 2010 ABQB 810 (CanLII), per Manderscheid J

Parliamentary Privilege

See also: Public Interest Privilege

A member of a provincial or federal legislature can be exempt from attending court under subpoena on the basis of parliamentary privilege. The application of the privilege will be subject to an evaluation of necessity.[1]

  1. Samson Indian Nation and Band v Canada, [2004] 1 FCR 556, 2003 FC 975 (CanLII), per Teitelbaum J


Other Protected Parties

Accused and Co-Accused

An accused person is generally assumed competent and compellable for the defence and not competent for the crown.[1]

A co-accused, charged separately, is a competent and compellable witness for both crown and defence. The only exception is if the only purpose in compelling the co-accused is to incriminate them.[2] The same goes for suspects, charged or uncharged.[3]

A co-accused, charged together, is competent but not compellable by the accused. It is the choice of the co-accused to testify.

Where the accused is a corporation, the officers of the corporation are compellable.[4]

  1. R v Amway Corp, 1989 CanLII 107 (SCC), [1989] 1 SCR 21, per Sopinka J (" At common law an accused was neither competent nor compellable as a witness.")
  2. R v Primeau, 1995 CanLII 143 (SCC), [1995] 2 SCR 60, per Sopinka and Iacobucci JJ
  3. R v Jobin 1995 CanLII 144 (SCC), [1995] 2 SCR 78, per Sopinka and Iacobucci JJ
  4. R v N.M. Paterson & Sons Ltd., 1980 CanLII 227 (SCC), [1980] 2 SCR 679, per Chouinard J
    Amway Corp, supra

Lawyers

See also: Compelling Attendance of Witnesses#Witness Subpoenas

A lawyer for an opposing party to an ongoing matter may only be called to testify where the calling party has shown a high degree of materiality and necessity.[1]

There are additional limitations on compelling Crown counsel to testify. It is only permitted where "the evidence cannot be obtained in any other way".[2]

  1. R v 1504413 Ontario Limited, 2008 ONCA 253 (CanLII), per Armstrong JA at para 17
  2. see Compelling Attendance of Witnesses#Quashing a Subpoena

Judges

Missing Witnesses

See also: Warrant Arrests

Warrant for absconding witness
704. (1) Where a person is bound by recognizance to give evidence in any proceedings, a justice who is satisfied on information being made before him in writing and under oath that the person is about to abscond or has absconded may issue his warrant in Form 18 directing a peace officer to arrest that person and to bring him before the court, judge, justice or provincial court judge before whom he is bound to appear.
Endorsement of warrant
(2) Section 528 applies, with such modifications as the circumstances require, to a warrant issued under this section.
Copy of information
(3) A person who is arrested under this section is entitled, on request, to receive a copy of the information on which the warrant for his arrest was issued.
R.S., 1985, c. C-46, s. 704; R.S., 1985, c. 27 (1st Supp.), s. 203.


CCC

Whether to issue a warrant under s. 704 is at the discretion of the judge and cannot be reviewed by certiorari.[1]

  1. R v Earhart, 2007 BCCA 614 (CanLII), per Rowles JA, at paras 32 to 47

Material Witness Warrant

Section 705 gives authority of a court to issue a warrant of arrest for a witness who fails to attend on a subpoena.

Warrant when witness does not attend
705. (1) Where a person who has been served with a subpoena to give evidence in a proceeding does not attend or remain in attendance, the court, judge, justice or provincial court judge before whom that person was required to attend may, if it is established

(a) that the subpoena has been served in accordance with this Part, and
(b) that the person is likely to give material evidence, issue or cause to be issued a warrant in Form 17 for the arrest of that person.

Warrant where witness bound by recognizance
(2) Where a person who has been bound by a recognizance to attend to give evidence in any proceeding does not attend or does not remain in attendance, the court, judge, justice or provincial court judge before whom that person was bound to attend may issue or cause to be issued a warrant in Form 17 for the arrest of that person.
Warrant effective throughout Canada
(3) A warrant that is issued by a justice or provincial court judge pursuant to subsection (1) or (2) may be executed anywhere in Canada.
R.S., 1985, c. C-46, s. 705; R.S., 1985, c. 27 (1st Supp.), s. 203.


CCC

A judge has the inherent authority to order any person present in court to be compelled to testify where:

  1. the person has relevant evidence to give
  2. a party requires that person to testify in the proceeding

Similarly, an inmate witness can also be compelled to testify by way of s. 527.[1]

Where a witness fails to attend, the judge has the discretion to order a witness warrant where he is satisfied that:[2]

  1. proper attempts to serve the witness have been made;
  2. the witness is a material witness.
  1. R v Ayres (1984), 15 CCC (3d) 208 (ONCA), 1984 CanLII 3539 (ON CA), per Goodman JA
  2. R v Scott 1990 CanLII 27 (SCC), [1990] 3 SCR 979, per Cory J

Detaining Missing Witness

Order where witness arrested under warrant
706. Where a person is brought before a court, judge, justice or provincial court judge under a warrant issued pursuant to subsection 698(2) or section 704 or 705, the court, judge, justice or provincial court judge may order that the person

(a) be detained in custody, or
(b) be released on recognizance in Form 32, with or without sureties,

to appear and give evidence when required.

R.S., 1985, c. C-46, s. 706; R.S., 1985, c. 27 (1st Supp.), s. 203.


CCC

Maximum period for detention of witness
707. (1) No person shall be detained in custody under the authority of any provision of this Act, for the purpose only of appearing and giving evidence when required as a witness, for any period exceeding thirty days unless prior to the expiration of those thirty days he has been brought before a judge of a superior court of criminal jurisdiction in the province in which he is being detained.
Application by witness to judge
(2) Where at any time prior to the expiration of the thirty days referred to in subsection (1), a witness being detained in custody as described in that subsection applies to be brought before a judge of a court described therein, the judge before whom the application is brought shall fix a time prior to the expiration of those thirty days for the hearing of the application and shall cause notice of the time so fixed to be given to the witness, the person having custody of the witness and such other persons as the judge may specify, and at the time so fixed for the hearing of the application the person having custody of the witness shall cause the witness to be brought before a judge of the court for that purpose.
Review of detention
(3) If the judge before whom a witness is brought under this section is not satisfied that the continued detention of the witness is justified, he shall order him to be discharged, or to be released on recognizance in Form 32, with or without sureties, to appear and to give evidence when required, but if the judge is satisfied that the continued detention of the witness is justified, he may order his continued detention until the witness does what is required of him pursuant to section 550 or the trial is concluded, or until the witness appears and gives evidence when required, as the case may be, except that the total period of detention of the witness from the time he was first detained in custody shall not in any case exceed ninety days. R.S., c. C-34, s. 635.


CCC

Finding of Contempt

See also: Contempt of Court (Offence)

A person who is required and fails to attend or remain in attendance at court in order to give evidence is guilty of contempt, which is addressed in s. 708 of the Code.

See Also

Oaths and Affirmations

General Principles

See also: Competence and Compellability

Common law requires all witnesses to take an oath to solemnify the evidence given. The purpose of "the law in requiring an oath is to get at the truth relative to the matters in dispute by getting a hold on the conscience of the witness."[1]

Person Administering an Oath

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 who is legally called to give evidence before that court, judge or person.
R.S., c. E-10, s. 13.


CEA

  1. Bannerman v R. (1966), 48 C.R. 110 ( Man. C.A.)(*no CanLII links) , affirmed [1966] S.C.R. v (S.C.C.)(*no CanLII links) at pp. 137 and 138 per Dickson J.A.

Affirmations

The goal of an oath may also be accomplished by allowing people to opt for taking an affirmation of solemnity. This is provided under section 14 of the Canada Evidence Act (CEA) as well as under most provincial evidence acts[1].

Section 14 states:

Solemn affirmation by witness instead of oath
14 (1) A person may, instead of taking an oath, make the following solemn affirmation:

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

Effect
(2) Where a person makes a solemn affirmation in accordance with subsection (1), his evidence 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.


CEA

Persons to Administer Oaths
Under s. 13 of the Evidence Act, all courts and judges may administer oaths. Anyone else may administer oaths where they are empowered to take evidence or where it is by consent of the parties.

Young Accused

For proceedings under the Youth Criminal Justice Act, s. 151 states the requirements before a child or youth can give evidence before a Youth Court justice:

Evidence of a child or young person
151 The evidence of a child or a young person may be taken in proceedings under this Act only after the youth justice court judge or the justice in the proceedings has

(a) if the witness is a child, instructed the child as to the duty to speak the truth and the consequences of failing to do so; and
(b) if the witness is a young person and the judge or justice considers it necessary, instructed the young person as to the duty to speak the truth and the consequences of failing to do so.


YCJA

Administering Oaths and Affirmations for International Audio-Video Link Evidence

See also: Long Distance Testimonial Aids

Oath or affirmation
714.5 The evidence given under section 714.2 or 714.4 shall be given

(a) under oath or affirmation in accordance with Canadian law;
(b) under oath or affirmation in accordance with the law in the place in which the witness is physically present; or
(c) in any other manner that demonstrates that the witness understands that they must tell the truth.

1999, c. 18, s. 95.


CCC

Other laws about witnesses to apply
714.6 When a witness who is outside Canada gives evidence under section 714.2 or 714.4, the evidence is deemed to be given in Canada, and given under oath or affirmation in accordance with Canadian law, for the purposes of the laws relating to evidence, procedure, perjury and contempt of court.
1999, c. 18, s. 95.


CCC

Oaths taken abroad
53. Oaths, affidavits, solemn affirmations or declarations administered, taken or received outside Canada by any person mentioned in section 52 are as valid and effectual and are of the like force and effect to all intents and purposes as if they had been administered, taken or received in Canada by a person authorized to administer, take or receive oaths, affidavits, solemn affirmations or declarations therein that are valid and effectual under this Act.
R.S., c. E-10, s. 50.


CEA

See Also

Competence of Witnesses to Testify

General Principles

See also: Competence and Compellability

Competence refers to the ability of a person to give testimony in an reliable and truthful manner. This is specifically means the witness has:[1]

  1. the capacity to observe (including interpretation);
  2. the capacity to recollect; and
  3. the capacity to communicate.

Presumptions for Capacity and Incapacity
At common law, all individuals are presumed competent to testify so long as their information is relevant barring certain groups of people. Historically, the common law prevented many types of people from testifying. This included convicts, infants, the insane, marriage, and lack of belief in a higher power. Many of these rules have been overturned by statute, for example, the rule against convicts was removed under by section 12 of the Canada Evidence Act. Their record, however, can be used as character evidence.

The three classes of exceptions that remain today are children, people of low mental capacity, and spouses. In each of these it is up to a challenger to establish the incompetence of the witness.

Standard of Proof
The proof of competency or incompetency is on the balance of probabilities.[2] Where competency is challenged, it must be established by a voir dire before the witness can be sworn.[3]

Memory
Competency also includes the ability distinguish between actual memory based on observation and imagination or second hand information.[4]

Truthfulness
A witness who states that they may not tell the truth is still competent to testify. Such issues of truthfulness are factors of credibility for the trier-of-fact.[5]

International Law
A witness is barred by foreign law to testify is still competent.[6]

Competence vs Fitness to Stand Trial
A lack of testimonial competence does not necessarily render a person unfit to stand trial.[7]

  1. R v Marquard, 1993 CanLII 37 (SCC), [1993] 4 SCR 223
  2. R v Ferguson, 1996 CanLII 8409 (BC CA), (1996) 112 CCC (3d) 342 (BCCA)
  3. R v Steinberg, 1931 CanLII 4 (SCC), [1931] SCR 421
  4. R v Farley, 1995 CanLII 3501 (ON CA)
  5. R v Walsh, (1978) 48 CCC (2d) 199 (ONCA), 1978 CanLII 2490 (ON CA), per Martin JA
  6. R v Spencer 1985 CanLII 4 (SCC), [1985] 2 SCR 278
  7. R v Morrissey, 2007 ONCA 770 (CanLII) per Blair J. leave to SCC refused

Material Evidence

Prove of Relevancy of Witness
The burden is upon the party calling a witness to establish that "it is probable that the witness will give material evidence on a fact in issue.[1] It is not sufficient to merely allege that the witness has "material evidence" to provide. The calling party must prove this claim.[2]

No party should be permitted to call a witness in order to engage in a "fishing expedition".[3]

  1. R v Fazekas, 2010 ONSC 6571 (CanLII) at para 11
  2. Fazekas, ibid. at para 11
    R v Elliott, CanLII 24447 (ON CA), [2003] O.J. No. 4694, 181 CCC (3d) 118 (Ont CA) at para. 119
  3. Fazekas, ibid. at para 11
    R v Harris (1994), 1994 CanLII 2986 (ON CA), 93 CCC (3d) 478 (Ont. C.A.)

Competence of Accused

An accused person is not competent to be called as a witness by the crown due to s.11(c).[1]

A person is not rendered incompetent to testify only for the "reason of interest or crime".[2]

A co-accused in a joint trial may be competent as a witness for the crown if they plead guilty part way through the trial.[3]

A corporate entity charged with an offence is not protected by s. 11(c). Its officers are thus competent to be called as witnesses for the Crown.[4]

  1. Section 11 of the Charter states "11. Any person charged with an offence has the right...(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;"
  2. see s. 3 of Canada Evidence Act
  3. R v McKee [1960] O.J. No. 22, 126 CCC 251 (Ont. C.A.), 1960 CanLII 509 (ON CA)
  4. Amway Corp., [1989] 1 SCR 21, 1989 CanLII 107 (SCC)

Competence of Jurors

A juror is a competent witness.[1]A juror however cannot testify to any evidence concerning the deliberations, emotions, or decisions of any of the jury panel.[2]

  1. R v Budai et al., 1999 BCCA 501 (CanLII)
  2. R v Pan; R v Sawyer 2001 SCC 42 (CanLII), [2001] 2 SCR 344

Competence of Children and Witnesses of Diminished Capacity

See Also

Competence of Children and Witnesses of Diminished Capacity

General Principles

There is no minimum age to give testimony.

At common law, evidence given by children was considered "inherently unreliable and therefore to be treated with special caution".[1] Similarly, previous versions of the Criminal Code, Canada Evidence Act, and Young Offenders Act required that a child's evidence be corroborated.[2]

These assumptions have since been recognized as stereotypes.[3]

Section 16 of the Canada Evidence Act outlines the competency requirements for persons 14 years of age or older. In 2005, s. 16.1 was added to outline the competency requirements of persons under 14 years of age.

  1. R v RW, 1992 CanLII 56 (SCC), [1992] 2 SCR 122, per McLachlin J
  2. In 1988, s. 586 of Code requiring corroboration was removed. See comments in R v WR
    See A History of Canadian Sexual Assault Legislation 1900-2000
  3. R v Find, 2001 SCC 32 (CanLII), [2001] 1 SCR 863, per McLachlin CJ at para 102, 103

Challenging Mental Capacity of Children Age 14 and Above

Under s. 16(1) the mental capacity that renders a child age 14 and above competent to testify may be challenged.

Witness whose capacity is in question
16. (1) If a proposed witness is a person of fourteen years of age or older whose mental capacity is challenged, the court shall, before permitting the person to give evidence, conduct an inquiry to determine

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

Testimony under oath or solemn affirmation
(2) A person referred to in subsection (1) who understands the nature of an oath or a solemn affirmation and is able to communicate the evidence shall testify under oath or solemn affirmation.
Testimony on promise to tell truth
(3) A person referred to in subsection (1) who does not understand the nature of an oath 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.
Inability 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.
Burden as to capacity of witness
(5) A party who challenges the mental capacity of a proposed witness of fourteen years of age or more has the burden of satisfying the court that there is an issue as to the 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.


CEA

Where a challenge is made is mandatory that an inquiry be made.[1] The inquiry will seek to determine whether:

  1. the witness "understands the nature of an oath or a solemn affirmation", and
  2. the witness "is able to communicate the evidence."

In the voir dire, "the Crown must decide whether to call the child or not." If the child is not called and a hearsay statement is tendered, "the judge must determine whether the child could not have testified, making it necessary to call substitute evidence."[2]

If the witness does not understand the nature of an oath, then the witness may still be competent under s. 16(3) if it can be established that:[3]

  1. the witness has the ability to promise to tell the truth; and
  2. the witness has the ability to communicate the evidence.

A failure to obtain a promise to tell the truth is a procedural error that may be cured by applying the curative provisio under s. 686(1)(b)(iv).[4]

There is no strict formula for satisfying s. 16, but there must be an undertaking to tell the truth.[5]

An inquiry under s. 16 should take place in front of the jury, but where it may be prejudicial it can be done without the jury.[6]

A child who simply states she understands what it means to tell the truth and says she is capable of telling the truth does not satisfy s. 16(3).[7]

A failure of the part of a preliminary inquiry judge to follow s.16(3) results in a loss of jurisdiction.[8]

The judge cannot make it a prerequisite under s. 16 to determine if the child witness has a recollection of the events at issue before receiving it.[9]


  1. R v Ferguson (L.D.) 1996 CanLII 8409 (BC CA), 112 CCC (3d) 342 (C.A.), , per Finch JA at p. 358 [CCC]
  2. R v Rockey, 1996 CanLII 151 (SCC), [1996] 3 SCR 829, per Sopinka J
  3. Rockey, per McLachlin, J., at p. 493 [CCC]
    R v Farley (A.W.) 1995 CanLII 3501 (ON CA), per Doherty JA
  4. R v Peterson 1996 CanLII 874 (ON CA), per Osborne JA at para 39 to 42
  5. R v Wilson (W.M.), 1995 CanLII 8899 (NS CA), per Freeman JA at para 24
  6. R v RJB, 2000 ABCA 103 (CanLII), per Hetherington JA at para 11
  7. RJB, ibid. at paras 7, 8
  8. R v Nitsiza, 2001 NWTSC 34 (CanLII), per Vertes J at para 10
  9. R v Marquard, 1993 CanLII 37 (SCC), [1993] 4 SCR 223, per McLachlin J ("necessary to determine in advance that the child perceived and recollects the very events at issue in the trial, as a condition of ruling that his or her evidence be received. That is not required of adult witnesses, and should not be required for children.")

Competency of Children Under the Age of 14

In 2006, section 16.1 of the CEA added to create a presumption for child witnesses under 14 "to have the capacity to testify".[1] There is no need for the child to take solemn oath or affirmation. (16.1(2))

There are only two requirements that need to be met before a child witness under 14 may testify:

  1. the child must be able to "understand and respond to questions"[2]
  2. the court shall "require [the child] to promise to tell the truth" [3]

Section 16.1(6) does not require that the judge explicitly ask the child whether he or she promises to tell the truth. It is only necessary that the evidence show that the "witness has clearly committed to tell the truth".[4]

  1. 16.1 (1) A person under fourteen years of age is presumed to have the capacity to testify.
  2. 16.1(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.
  3. 16.1 (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.
  4. R v CCF, 2014 ONCA 327 (CanLII), per curiam

Challenging Mental Capacity

Section 16.1 addresses the competency of a child under the age of 14 to testify.

Person under fourteen years of age

No oath or solemn affirmation
(2) A proposed witness under fourteen years of age shall not take an oath or make a solemn affirmation despite a provision of any Act that requires an oath or a solemn affirmation.
...
Burden as to capacity of witness
(4) A party who challenges the capacity of a proposed witness under fourteen years of age has the burden of satisfying the court that there is an issue as to the capacity of the proposed witness to understand and respond to questions.
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.
...
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.
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.


CEA

A person under the age of 14 is presumed competent to testify (s. 16.1(1)). The burden is on the challenger to prove that the child:

  1. cannot understand and respond to simple questions; or,
  2. cannot promise to tell the truth (16.1(6)).

Credibility and Reliability

See also Analyzing Testimony#Credibility_of_Children

Spousal Immunity

General Principles

See also: Privilege#Spousal Privilege

At common law a spouse of an accused is incompetent to testify except where the charge involves the person, liberty, or health, of the spouse.[1]

Section 4(2) of the Canada Evidence Act overturns the common law by stating that:

4
...
Spouse of accused
(2) No person is incompetent, or uncompellable, to testify for the prosecution by reason only that they are married to the accused.
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.
(4) and (5) [Repealed, 2015, c. 13, s. 52]
...
[(6)]...
R.S., 1985, c. C-5, 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; 2015, c. 13, s. 52.


CEA

There remains, however, an immunity in relation to "any communication" between the two "during their marriage".


Competence for Defence

Accused and spouse
4 (1) Every person charged with an offence, and, except as otherwise provided in this section, the wife or husband, as the case may be, of the person so charged, is a competent witness for the defence, whether the person so charged is charged solely or jointly with any other person.
...
R.S., 1985, c. C-5, 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; 2015, c. 13, s. 52.


CEA

  1. R v Hawkins, 1996 CanLII 154 (SCC), [1996] 3 SCR 1043, per Lamer CJ and Iacobucci J

Pre-July 2015 Legislation

On July 23, 2015, the Victims Bill of Rights came into force, amending the provisions of the Evidence Act on spousal privilege and immunity.[1]

Prior to the amendments, s. 4(2), (4), and (5) stated:

4
...
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 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 329 of the Criminal Code, or an attempt to commit any such offence, is a competent and compellable witness for the prosecution without the consent of the person charged.
...
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.
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.


CEA

The Canada Evidence Act has added exceptions allowing the spouse to be competent and compellable for the Crown and co-accused:[2]

  1. when called by the defence spouse (s 4(1) CEA)
  2. when the accused is charged with a listed offence which implicate the health and security of the spouse(s 4(2) CEA)
  3. when the accused is charged with a listed offence and the victim is under the age of 14 (s 4(4) CEA)
  4. the accused is charged with an offence involving danger to the spouse's "person, liberty, or health", b) when the accused threatened to the spouse's "person, liberty, or health", or c) violence, cruelty or threats are made against the spouse's child. (s 4(5) and the common law)

Offences listed under s. 4(2) consist of:

The section 4(5) exception preserves the common law rule.[3] It can be invoked even where the witness spouse is not the victim but their health or liberty is threatened.[4]

Thus, generally speaking spouse cannot testify on behalf of a co-accused or the crown. In civil trials, provincial evidence acts have removed these presumption, allowing spouses to testify in all circumstances.

The immunity is concern with the state of the relationship at the time of the evidence being given, and not at the time of the incident.[5]

The protection is only only those in a "valid and subsisting" marriage.[6] Thus, the spousal exception does not survive the marriage. "Irreconcilably separated" spouses are not protected where there is no marital harmony to preserve. Thus, spouses with "no reasonable prospect of reconciliation" is exempt from spousal immunity. This is determined objectively and on the balance of probabilities.[7].

A spouse refers only to legally married spouses. Those who are:

  1. common law[8],
  2. separated short of divorce with no hope of reconciliation,
  3. divorced

are not subject to the spousal immunity.

However, there is some authority suggesting that s. 4(1) and 4(3) must be read up to include common law partners anywhere there is reference to "husband" or "wife".[9]

A competent spouse for a party is necessarily a compellable witness.[10]

Even where the witness spouse is competent to testify, this does not necessarily always remove spousal privilege. [11] However, spousal privilege cannot apply where s. 4(2) is applied.[12]

A wife who previously consented to a wiretap of conversations between her and her husband but then refuses to testify at trial may rely on spousal privilege s. 4(3) of the Evidence Act.[13]

  1. see http://news.gc.ca/web/article-en.do?nid=1006529
  2. R v Hawkins, 1996 CanLII 154 (SCC), [1996] 3 SCR 1043, per Lamer CJ and Iacobucci J
  3. see R v MacPherson (1980) 52 CCC (2d) 547 (NSCA), 1980 CanLII 2831 (NS CA), per Macdonald JA
    R v Czipps, 1979 CanLII 2095 (ON CA), (1979) 48 CCC (2d) 166 (ONCA), per Morden JA (2:1)
    R v Sillars (1978) 45 CCC (2d) 283 (BCCA), 1978 CanLII 2433 (BC CA), per Craig JA
  4. R v Schell, 2004 ABCA 143 (CanLII), per Paperny JA
  5. R v Lonsdale, 1973 ALTASCAD 125 (CanLII), (1973) 15 CCC (2d) 201, per Sinclair JA
  6. R v Salituro, 1991 CanLII 17 (SCC), [1991] 3 SCR 654, per Iacobucci J
  7. R v Jeffrey, 1993 ABCA 245 (CanLII), (1993) 84 CCC (3d) 31 (ABCA), per Picard JA
  8. R v Martin, 2009 SKCA 37 (CanLII), per Klebuc CJ
    This rule was found constitutional at R v Thompson (1994) 90 CCC (3d) 519 (ABCA), 1994 ABCA 178 (CanLII), per Harradence JA
  9. R v Masterson, 2009 CanLII 36305 (ON SC), per Hennessy J
  10. R v McGuinty, 1986 CanLII 116 (YK CA), (1986) 27 CCC (3d) 36 (YTCA), per Lambert JA
    This however is not necessarily consistent with UK common law
  11. R v Zylsatra, 1995 CanLII 893 (ON CA), (1995) 99 CCC (3d) 477, per Trotter JA
  12. R v St. Jean (1974) 32 CCC (2d) 438(QCCA), 1976 CanLII 1344 (QC CA), per Kaufman JA
  13. R v St. Denis, 2010 ONSC 1225 (CanLII), per Gordon J

Spousal Privilege

Spousal privilege is a class protection of certain communications between husband and wife. It is a protection that is separate and apart from spousal competency.[1]

A spouse who is found to be competent and compellable may still invoke privilege to protect their communications.[2]

This class of privilege does not exist at common law, but rather was created by way of s. 4(3) of the Evidence Act, which states:

4 (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.


CEA

Third parties may "testify to communications between husband and wife that were overheard, intercepted, or otherwise discovered".[3]

  1. See McWilliams' Canadian Criminal Evidence, 4th ed., vol. 1, looseleaf (Aurora, ON: Canada Law Book, 2010) at para 13:40.10
  2. R v Zylstra, 1995 CanLII 893 (ON CA), per curiam
  3. R v R.R.W. (No. 2), 2010 NLTD 137 (CanLII), per Goodridge J citing McWilliams’ at para 13:40.50

See Also

Refreshing Memory

General Principles

The doctrine of "present memory revived" is the manner in which a witness may refresh their memory.

A witness can use any document to refresh their memory.[1]

The key elements to the use of the doctrine of present memory revived is:[2]

  1. an independent memory of events;
  2. the inability to recall the memory; and
  3. the "thing" is capable of "sparking" or "jogging" the independent memory

In order to prevent the witness from exploiting this rule to "simply regurgitate" their evidence rather than actually refresh their memory, opposing counsel must have access to the item used to refresh memory.[3]

It will not be applicable where the witness simply states something that contradicts something that was made in a prior statement.

Refreshing memory is permitted by the doctrine of "present memory revived" which permits a testifying witness to jog their memory.[4] It is not the aid that becomes the evidence but rather it is only a mechanism to evoke the memory of the witness which produces the evidence.[5]

Traditional doctrine of refreshing memory permits a person to use anything in writing "made or verified by himself concerning and contemporaneously with the facts to which he testifies". Where it was not written by him he reviewed the statement when the facts were fresh in his mind and "he knew the statement to be correct."[6]

More recent views have suggested that a witness "may consult with any document while testifying. As long as the document sparks an actual recollection of the event recorded".[7]Given that the document used to refresh is not evidence and the ability for counsel to cross-examine the witness on their memory, "there is no reason why the document that is used as the memory trigger should have to meet the strict requirements of time, verification and accuracy. In other words, subject to an exclusionary discretion where the document may be inappropriately suggestive, a witness should be entitled to inspect any document in court to see if it triggers an independent recall".[8]

  1. Sopinka, Lederman, and Bryant, The Law of Evidence in Canada, 2d ed. (Toronto and Vancouver: Butterworths, 1999) at para. 16.77
    R v K.G.B. (1998), 1998 CanLII 7125 (ON CA)
    R. v. Bengert et al (No. 5) (1978), [1979] 1 W.W.R. 472, (BCSC), aff’d 1980 CanLII 321 (BC CA), 53 CCC (2d) 481 at 521-24 leave ref'd [1980] 2 S.C.R. v.
    UK: Henry v. Lee (1814), 2 Chitty 124 (H.L.) (...[I]f upon looking at any document he can so far refresh his memory as to recollect a circumstance, it is sufficient; and it makes no difference, that the memorandum was written by himself, for it is not the memorandum that is the evidence but the recollection of the witness. [emphasis in original])
  2. e.g. see Stone v Ellerman, 2009 BCCA 294 (CanLII) at para 53 onward for general discussion per Smith J. in dissent. Majority decided on issue unrelated to rules of memory refresh.
  3. Stone v Ellerman, supra at para 56
  4. eg. R v KGB (1998), 109 O.A.C. 138, 125 CCC (3d) 61, 1998 CanLII 7125 (ON CA) at 18
  5. Cornerstone Co-operative Homes Inc. v Spilchuk, 2004 CanLII 32328 (ON SC), [2004] O.J. No. 4094 at para 13
    See also R v Gadzo, 2009 ONCJ 126 (CanLII)
  6. Fleming v Toronto R.W. Co, [1911] O.J. No. 40(*no CanLII links) , MacLaren J.A., at para 23 ("The law on the subject is, I consider, correctly laid down in Phipson on Evidence, 5th ed., p. 466, as follows: "A witness may refresh his memory by reference to any writing made or verified by himself concerning and contemporaneously with the facts to which he testifies. ... The writing may have been made either by the witness himself, or by others, providing in the latter case that it was read by him when the facts were fresh in his memory, and he knew the statement to be correct.") aff'd at 47 SCR 612, 1913 CanLII 3 (SCC)
  7. Paciocco and Stuesser, The Law of Evidence, Fourth Edition, (2005, Irwin Law Inc.), at page 377
    R v Biondo, 2009 ONCJ 171 (CanLII), at para 16
  8. The Law of Evidence, Fourth Edition, supra. at page 383
    Biondo at para 21

Distinction with Past Recollection Recorded

Present memory revived is the method of "jogging" a memory and bring it back into the witnesses mind. The witness may examine a thing, such as a note, which has the effect of putting a memory into mind. By contrast Past Recollection Recorded permits the admission of a record that is a past memory reduced to record, regardless of the witness's ability to bring the memory back into mind. [1]

Present memory revived is separate and distinct from Past Recollection Recorded which is a form of hearsay. In the latter case, the document is evidence that the judge may rely upon.

  1. R v Wilks, 2005 MBCA 99 (CanLII), at paras 18, 19
    Cornerstone at para 13
    see Mewett, Alan W., Witnesses (Toronto: Carswell, 1997 -- Rel. 2), pp. 13-2 and 13-3 ("one has a record of what was once remembered but is no longer remembered . . . [I]t is only where a present memory is actually revived that it can be said to be 'refreshed'")

Timing of Refresh

There's no need for the documents be contemporaneous with the events it documents.[1]

It does not make a difference how long before trial the refreshing occurs.[2]

  1. Cornerstone Co-operative Homes Inc. v Spilchuk, 2004 CanLII 32328 (ON SC), [2004] O.J. No. 4094 at para 13 R v K.G.B. (1998), 109 O.A.C. 138, 125 CCC (3d) 61, 1998 CanLII 7125 (ON CA) at p. 69 [CCC]
  2. Cornerstone, supra and 13

Opposing View on Memory Refresh

Certain courts have interpreted the requirements of memory refresh as including the additional requirements that:[1]

  • the record be made contemporaneous to the events that it records[2]
  • it was written in the hand of the person who is testifying, unless it was read by the witness when the memory was fresh in their mind;[3]
  • the record has not been subject to any edits since the time that it was made.
  1. e.g. see Phipson on Evidence, 11th ed. (1970), pp. 632-3, art. 1528
    Paciocco and Steusser, "The Law Of Evidence", (2d Ed) at page 256
  2. e.g. R v Gwozdowski, 1972 CanLII 541 (ON CA), citing Phipson ("A witness may refresh his memory by reference to any writing made or verified by himself concerning, and contemporaneously with, the facts to which he testifies; ")
  3. see Gwozdowski, ibid.

Thing to be Used to Refresh Memory

The tool used to jog the memory can be anything (a sound, a picture, a smell, etc). The trigger is not significant.[1]

Any type of document may be used to refresh a witness's memory. It does not have to be a document written by the witness at all.[2]

Even evidence that would not be admissible for reasons including that it was obtained through a Charter violation, may still be used to refresh memory.[3]

Memory can be refreshed by any document. It does not matter weather than witness was the author.[4]

There is nothing necessarily wrong with officers reading the statements of other witnesses as long as no coaching is involved.[5]

Traditionally, counsel can refresh memory of a witness who is forgetful due to the span of time or "timidity".[6]

An officer does not have to maintain possession or control over his notes that he uses to refresh his memory.[7]

Even notes that are not accurate can be used as an aide-memoire.[8]

Timing of the Creation of Document
The document need not have been made contemporaneously with the facts recorded in it.[9]

Requirement to Produce
The record being used to refresh a witness's memory must be produced to the other side.

Where the accused is testifying, any record relied upon by a defence witness that is used as memory refresh must be produced to the Crown.[10] Using interview notes for memory refresh will constitute a waiver of litigation privilege.[11]

  1. eg. R v K.G.B. (1998), 109 O.A.C. 138, 125 CCC (3d) 61, 1998 CanLII 7125 (ON CA) at 18
    R v Colangelo, 2007 ONCJ 489 (CanLII), [2007] O.J. No 4070 at para 29 ("What triggers recollection is not significant")
    c.f. R v Gwozdowski, 1972 CanLII 541 (ON CA) - suggests you cannot use someone else's notes to refresh memory
  2. Cornerstone Co-operative Homes Inc. v Spilchuk, 2004 CanLII 32328 (ON SC), [2004] O.J. No. 4094 at para 13 ("it makes no difference that the memorandum is not written by [the witness], for it is not the memorandum that is the evidence but the recollection of the witness")
    R v B. (K.G.) 1998 CanLII 7125 (ON CA), (1998), 125 CCC (3d) 61, at paras 18 to 19
  3. R v Fliss, 2002 SCC 16 (CanLII), 161 CCC (3d) 225
  4. Cornerstone Co-operative Homes Inc. v Spilchuk, 2004 CanLII 32328 (ON SC), [2004] O.J. No. 4094 at para 13
  5. R v Husbands (1973) 24 CRNS 188(*no CanLII links)
  6. R v Coffin, 1956 CanLII 94 (SCC), [1956] SCR 191 per Kellock J.
    R v Booth, 1984 CanLII 338 (BC CA)
  7. R v Gadzo, 2009 ONCJ 126 (CanLII)
  8. R v Biondo, 2009 ONCJ 171 (CanLII) at para 31 to 32
  9. Cornerstone at para 13
    B(KG) at p. 69(CCC)
    R v Bengert, 1980 CanLII 321 (BC CA) at para 151
  10. R v Mitchell, 2018 BCCA 52 (CanLII) per Fisher JA
  11. Mitchell, ibid.

Privileged Documents

See also: Privilege#Litigation Privilege

While as a general rule the document being used to revive the memory should be disclosed to the other side, this is not necessary in the case of a statement generated by the accused. So a statement made by the defence that is protected by solicitor-client privilege is not disclosable to the crown. If however the statement was purely created as a aide memoire then it may not be privileged. It is normally desirable for defence to make the purpose of the document clear on the document itself.[1]

Privilege in a document will remain in place even at the time that it is used in court to refresh a memory.[2]

Defence witness statements by non-accused persons are not generally protected by solicitor-client privilege.

  1. R v Fast, 2009 BCSC 1671 (CanLII), [2009] BCJ No 2421 (BCSC) at para 29-31
  2. R v Parker [1985] OJ No 175 (CA)(*no CanLII links)

Reliability of Refreshed Memory

The credibility and reliability of refreshed testimony is determined by the trier-of-fact.[1]

Opposing counsel may cross-examine on the timing, reliability of the refreshing process as well as question whether the witness "had a present memory of events about which she testified."[2]

The court must be cautious when a witness is using documents to refresh their memory. Where the witness is relying too much on the notes for their testimony there is a likelihood that they are not testifying to their memory and are simply reciting their notes.[3]

Where officers collaborate on their notes that they refer to decreases the likelihood that the officer is actually refreshing their memory. This will inevitably go to the officer's credibility.[4]

See also: R v Violette, 2009 BCSC 503 (CanLII)

  1. Cornerstone Co-operative Homes Inc. v Spilchuk, 2004 CanLII 32328 (ON SC), [2004] O.J. No. 4094 at para 13 ("from some external source or event, she has a present memory, albeit one that has been refreshed; how reliable and truthful her recollection is, will be determined by the trier of fact")
    B(KG)
  2. Cornerstone at p. 13
    B(KG), ibid. at p. 67 (CCC)
  3. e.g. R v Mattis [1998] O.J. No 4332 (Ont. Prov. Ct.)(*no CanLII links)
  4. Mattis, supra
    R v Green [1998] O.J. No. 3598 (Ont. Gen. Div.)(*no CanLII links) at para 24

Procedure

The procedure to refresh memory in the context of a prior recorded statement reduced to writing is as follows:[1]

  1. on direct examination, counsel should put the statement in the hands of the witness
  2. counsel should direct the witnesses attention to the part which contains the previous answer
  3. the witness should read it to himself
  4. the counsel may put questions to the witness referring to the previous answer. The witness may correct an error, agree or deny the contents of the document

The most important element is to ensure that the evidence is the recollection of the witness and not the past recollection found in the document.[2]

Certain courts found that it is not necessary to exhaust the memory before permitting refreshing it.[3]

It does not matter how long before trial the witness used the document to refresh his memory. Such things can be cross-examined upon and will go to weight.[4]

Generally speaking, statements should not be read in the presence of the any other witness.[5]

The "thing" used to refresh memory should not be put in as an exhibit as it is not evidence.[6]

There is some division on whether the witness only needs to produce his notes when he requires them to be refreshed.[7]

  1. R v Rowe, 2008 NLCA 3 (CanLII)
  2. R v Kemash, 2009 MBCA 15 (CanLII) at para 34
    R v Violette, 2009 BCSC 503 (CanLII) at para 8
  3. Violette at para 9
    R v Burns, [1979] BCJ No. 1547 (Co. Ct.)(*no CanLII links)
  4. Cornerstone Co-operative Homes Inc. v Spilchuk, 2004 CanLII 32328 (ON SC), [2004] O.J. No. 4094 at para 13
  5. R v Husbands (1973) 24 CRNS 188(*no CanLII links)
  6. R v Violette, supra R v Wilks, 2005 MBCA 99 (CanLII) at para 19
    Cornerstone, supra at para 13
  7. Cornerstone, supra at 13
    c.f. R v Kerenko, Cohen and Stewart (1965) 51 W.W.R. 53(*no CanLII links)

Using a Prior Transcript to Refresh Memory (Coffin Application)

Where a witness honestly forgets or cannot remember certain information that has been previously recorded under oath or in a written statement, counsel may show a copy of the previous statement to refresh the witness's memory.[1]

The ability to refresh the witnesses memory is at the discretion of the judge.[2]

A witness should not be permitted to refresh memory from a prior statement where the witnesses is merely being evasive.The preferred route would be through a s.9(2) Milgaard application.[3]

In such circumstances where the questioning on a prior statement is not for the purpose of discrediting or contracting the witness, which would engage s. 9 of the Canada Evidence Act, "the court has a discretion... to relax [the rule when] it is considered necessary in the interest of justice."[4]

  1. R v Booth, 1984 CanLII 338 (BC CA)
  2. Booth, ibid.
  3. Booth, ibid.
    R v Leigh, 1997 CanLII 3239 (BC SC) at para 13
  4. R v Coffin, 1956 CanLII 94 (SCC), [1956] SCR 191 at pp. 22-23

See Also

Testimonial Aids for Young, Disabled or Vulnerable Witnesses

Support Person Assisted Testimony

Support person — witnesses under 18 or who have a disability
486.1 (1) In any proceedings against an accused, the judge or justice shall, on application of the prosecutor in respect of a witness who is under the age of 18 years or who has a mental or physical disability, or on application of such a witness, order that a support person of the witness’ choice be permitted to be present and to be close to the witness while the witness testifies, unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice.
Other witnesses
(2) In any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of a witness, order that a support person of the witness’ choice be permitted to be present and to be close to the witness while the witness testifies if the judge or justice is of the opinion that the order would facilitate the giving of a full and candid account by the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice.
Application
(2.1) An application referred to in subsection (1) or (2) may be made, during the proceedings, to the presiding judge or justice or, before the proceedings begin, to the judge or justice who will preside at the proceedings or, if that judge or justice has not been determined, to any judge or justice having jurisdiction in the judicial district where the proceedings will take place.
Factors to be considered
(3) In determining whether to make an order under subsection (2), the judge or justice shall consider

(a) the age of the witness;
(b) the witness’ mental or physical disabilities, if any;
(c) the nature of the offence;
(d) the nature of any relationship between the witness and the accused;
(e) whether the witness needs the order for their security or to protect them from intimidation or retaliation;
(f) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; and
(g) any other factor that the judge or justice considers relevant.

Witness not to be a support person
(4) The judge or justice shall not permit a witness to be a support person unless the judge or justice is of the opinion that doing so is necessary for the proper administration of justice.
No communication while testifying
(5) The judge or justice may order that the support person and the witness not communicate with each other while the witness testifies.
No adverse inference
(6) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.
2005, c. 32, s. 15; 2015, c. 13, s. 14.


CCC

Underage or Disabled Witnesses
Section 486.1(1) requires that the judge to permit a support person. There is a presumption that a support person can be used unless it is rebutted by the respondent who can establish that it would "interfere with the proper administration of justice".[1]

Vulnerable Witnesses
Section 486.1(2) grants the judge discretion to permit a support person to be "present" and "close" to the witness while he testifies. The application must be made by either the Crown or the witness himself.

History
The 2015 amendments change the standard under s. 486.1(2) for a support person from being "necessary to obtain a full and candid account from the witness of the acts complained of" to simply requiring that the support person "would facilitate" full and candid account of evidence.[2]

  1. R v NHP, 2011 MBQB 31 (CanLII), per Bryk J at para 11 - relating to pre-2015 amendments
  2. see s. 486.1

Witness Screen and Close-Circuit Video Testimony

Section 650 requires that the accused be present for all evidence heard in a trial. An exception can be made under s. 486.2 for evidence to be given where the accused does not have direct contact with the witness due to separation by a screen or closed-circuit television.

There is also a free-standing inherent jurisdiction in the superior court to permit the use of screens where there are concerns for the witnesses safety.[1]

On application by a prosecutor or witness, the judge may order that their testimony be heard either behind a screen or from a different room so that the witness cannot see the accused.

The governing section is 486.2 which states:

Testimony outside court room — witnesses under 18 or who have a disability
486.2 (1) Despite section 650, in any proceedings against an accused, the judge or justice shall, on application of the prosecutor in respect of a witness who is under the age of 18 years or who is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, or on application of such a witness, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused, unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice.
...
Application
(2.1) An application referred to in subsection (1) or (2) may be made, during the proceedings, to the presiding judge or justice or, before the proceedings begin, to the judge or justice who will preside at the proceedings or, if that judge or justice has not been determined, to any judge or justice having jurisdiction in the judicial district where the proceedings will take place.
...
Conditions of exclusion
(5) A witness shall not testify outside the court room in accordance with an order made under subsection (1) or (2) unless arrangements are made for the accused, the judge or justice and the jury to watch the testimony of the witness by means of closed-circuit television or otherwise and the accused is permitted to communicate with counsel while watching the testimony.
No adverse inference
(6) No adverse inference may be drawn from the fact that an order is, or is not, made under subsection (1) or (2).
2005, c. 32, s. 15; 2014, c. 17, s. 12; 2015, c. 13, s. 15, c. 20, s. 38.


CCC

Reasons such as shyness and nervousness have been accepted as valid.[2]

The court may not make any adverse inferences from whether or not an order for a screen or video link is made.[3]

Section 486.2 was added to the Code on January 2, 2006, replacing a provision that was permissive in imposing a screen where necessary to "get a full and candid account" of the acts. This would often make a potentially fragile witness testify to establish grounds. The amendment was added to make it easier for child witnesses to be protected.[4]

Under the new version of 486.2, the Crown no longer needs to adduce any evidence before it is entitled to use an aid. There is an automatic presumption that it can be used once the Crown asks for it.[5] There is no onus on the respondent of an application to establish that the aid would interfere with the administration of justice.[6]

The Court "can only refuse to make an order if it is satisfied the order would interfere with the proper administration of justice".[7]

Anytime that a screen or video is used in a jury trial, the judge must give instructions to the jury that no negative inference should be drawn from its use.