Full Text:Volume 2

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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 CanLII 47 (SCC), [1993] 4 SCR 475, 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]

Admissibility is exclusively the responsibility of the judge while the findings of fact is exclusively the responsibility of the jury.[5]

Duty to Review Evidence

The judge has a duty to exclude all inadmissible evidence, regardless of whether the issue is raised by counsel.[6]

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.[7]

The party seeking to tender evidence must meet the necessary threshold requirements of admissibility before it can be considered.[8]

Requirements Before Acceptance

For a trier-of-fact to receive evidence, the judge must be satisfied that the evidence is:[9]

  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.[10]

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".[11]

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".[12]

Barring "unusual and unforeseen circumstances" any objections to the admission of evidence must be "taken before or when that evidence is tendered, not afterwards".[13] Unusual circumstances "do not include previously known yet unpursued Charter applications or a change in counsel".[14]

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.[15]

Defence Evidence Favoured

The courts should be reluctant to use exclusionary rules to prevent the accused from adducing evidence as it may support the defence.[16]

Appellate Review

The admissibility of evidence is a question of law and is reviewable on a standard of correctness.[17] Admission of irrelevant or otherwise inadmissible evidence may be an error of law.[18]

  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. {{UKCase|Shortland v Hill & Anor| [2017] EW Misc 14 (CC), at para 20[1]
  4. R v Seaboyer; R v Gayme, 1991 CanLII 76 (SCC), [1991] 2 SCR 577, 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. Queen v Dixon (No. 2.), 1897 CanLII 109 (NS SC), 3 CCC 220, per McDonald J
  6. R v D(LE), 1989 CanLII 74 (SCC), [1989] 2 SCR 111, per Sopinka J
    R v Ambrose, 1975 CanLII 1434 (NB CA), 25 CCC (2d) 90 (NBSC, Div. App.), per Limerick JA, aff'd 1976 CanLII 201 (SCC) , [1977] 2 SCR 717, per Spence J
    R v Stewart, 1968 CanLII 804 (BCCA), [1969] 2 CCC 244 see also Canadian Criminal Evidence, 3rd ed.,P.K. McWilliams states in paragraph 3:10410 cited in R v Bourque, 1991 CanLII 2607 (NSCA), per Matthews JA
  7. 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
  8. R v Johnson, 2010 ONCA 646 (CanLII), [2010] OJ No 4153, per Rouleau JA, at para 90
  9. 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), per Sopinka J
    R v Watson, 1996 CanLII 4008 (ONCA), 108 CCC (3d) 310, per Doherty JA
  10. see Zeolkowski, supra
    Watson, ibid.
  11. 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
  12. R v Hamill, 1984 CanLII 39 (BCCA), [1984] 6 WWR 530, per Esson JA
  13. R v Jir, 2010 BCCA 497 (CanLII), per Frankel JA, at para 9
  14. Jir, ibid., at para 9
    R v Kutynec, 1992 CanLII 7751 (ONCA), per Finlayson JA, at p. 294 (CCC)
    R v Bunbury, 2005 YKTC 51 (CanLII), per Ruddy J, at paras 11 to 14
  15. R v WJM, 2018 NSCA 54 (CanLII), per Beveridge JA, at paras 34 to 35
  16. Seaboyer, supra ("Canadian courts, like courts in most common law jurisdictions, have been extremely cautious in restricting the power of the accused to call evidence in his or her defence, a reluctance founded in the fundamental tenet of our judicial system that an innocent person must not be convicted. It follows from this that the prejudice must substantially outweigh the value of the evidence before a judge can exclude evidence relevant to a defence allowed by law. Exclusionary rules of evidence have been established with a purpose in mind. A trial does not benefit from admitting evidence which is not reliable. Such evidence can mislead the trier of fact. Such evidence can negatively impact upon trial fairness and truth-seeking.")
  17. R v Simpson, 1977 CanLII 1142 (ONCA), 35 CCC (2d) 337 (Ont. C.A.), per Martin JA
    R v Starr, 2000 SCC 40 (CanLII), [2000] 2 SCR 144, per Iacobucci J, at para 184
    R v Harper, 1982 CanLII 11 (SCC), per Estey J
  18. R v Mian, 2012 ABCA 302 (CanLII), per curiam, at para 39 appealed on other grounds at 2014 SCC 54 (CanLII)

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.

Logical Relevance

For something to be logically relevant, it is not necessary that the evidence "firmly establish, on any standard, the truth or falsity of a fact in issue".[8] There is no minimum probative value required for evidence to be relevant.[9]

Legal Relevance

Legal relevance is the cost/benefit analysis of the admission of evidence on the basis of: [10]

  • 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.[11]

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.[12]

Appellate Review

The relevance of evidence is a question of law and is reviewable on a standard of correctness.[13]

Constitution

It has been suggested that the admission of irrelevant evidence is contrary to the principles of fundamental justice found in s. 7 of the Charter.[14]

  1. Hollington v Hewthorn & Co. Ltd., [1943] K.B. 587 (CA), at p. 594 (“all evidence that is relevant to an issue is admissible, while all that is irrelevant is excluded”)
    R v R v Cloutier, 1979 CanLII 25 (SCC), 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), per Lamer J, at p. 201
    R v Headley, 2018 ONSC 5818 (CanLII), per Barnes J, at para 6
  3. R v J-LJ, 2000 SCC 51 (CanLII), [2000] 2 SCR 600, 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 CanLII 769 (SCC), [1998] 3 SCR 339, 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, 1994 CanLII 1298 (BCCA), 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), per Sopinka J
  8. R v Arp, 1998 CanLII 769 (SCC), [1998] 3 SCR 339, per Cory J, at para 38
  9. Arp, ibid., at para 38 ("...there is no minimum probative value required for evidence to be relevant.")
  10. Mohan, ibid.
    R v Morris, 1983 CanLII 28 (SCC), per McIntyre J - discusses requirement of "logically probative" evidence
  11. R v Corbett, 1988 CanLII 80 (SCC), [1988] 1 SCR 670, 41 CCC (3d) 385, per Dickson CJ
    Morris, supra
    See also Discretionary Exclusion of Evidence
  12. 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
  13. Mohan, supra, at para 18
  14. R v Hewitt, 1986 CanLII 4716 (MB CA), per Huband JA ("The admission of irrelevant and prejudicial evidence by virtue of s. 317(1) is surely contrary to the principles of fundamental justice. ")
    R v Guyett, 1989 CanLII 7202 (ONCA), per Brooke JA("It is sufficient to say that I agree with the judgment of the majority in Hewitt that s. 317 goes much farther than the general rules of admissibility and that under it, evidence of bad character can be introduced even if it shows nothing more. To this extent, the section violates the principles of fundamental justice and the guarantee in s. 7 of the Charter. In my opinion, this section cannot be read down.")

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 CanLII 6779 (MB CA), (1987) 39 CCC (3d) 506 (MBCA), per Huband JA
    R v Bernardi, 1974 CanLII 1488 (ONCA), , 20 CCC (2d) 523 (ONCA), per Arnup JA
  2. Bernardi, supra, 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 CanLII 6836 (MB CA), (1987) 333 CCC 231, per Philp JA
    R v Hawkes, 1915 CanLII 347 (AB CA), 25 CCC 29 (ABCA), per Stuart J
  2. R v FFB, 1993 CanLII 167 (SCC), [1993] 1 SCR 697, per Lamer CJ and Iacobucci J, at #par136 para 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 (ONCA), per Charron JA, at paras 18 to 19
    R v Cyr, 2012 ONCA 919 (CanLII), per Watt JA, at para 116
    R v Morris, 1983 CanLII 28 (SCC), 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]

  1. Cox, Criminal Evidence Handbook, 2nd edition, at p. 4

See Also

Discretionary Exclusion of Evidence

General Principles

See also: Acceptance of Evidence

Section 24(2) of the Charter of Rights and Freedoms is a remedial power to enforce the breach of other enumerated rights.[1] It states the following:

24

Enforcement

...

Exclusion of evidence bringing administration of justice into disrepute

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

CCRF

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. [2] The discretionary power derives from both the common law and s. 24(1) of the Charter.[3] The common-law power is protected under s. 11(d) of the charter which protects the right to a fair hearing.[4]

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.[5]

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."[6] This will involve considering the prejudicial effect including the misleading effect and time consumption.[7]

Burden of Proof

The onus is upon the party seeking to exclude evidence that has already been established as admissible.[8]

Factors

To weigh probative value against prejudicial effect, it has been proposed to consider: [9]

  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."[10]

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.[11]

Where prejudices exist the judges are capable of self-warning of the risks of the evidence. This will often be considered sufficient precaution.[12] A judge who is satisfied he are not prejudice should be taken at his word.[13]

Procedure

The court should consider the discretion to exclude evidence as follows:[14]

  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.[15] 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.[16]

  1. R v Terry, 1996 CanLII 199 (SCC), [1996] 2 SCR 207, per McLachlin J (9:0), at p. 24 ("... s. 24(2) is not an independent source of Charter rights; it is merely a remedy for their breach.")
  2. R v Cloutier, 1979 CanLII 25 (SCC), [1979] 2 SCR 709, 48 CCC (2d) 1, 12 CR (3d) 10, per Pratte J
    R v Smith, 1992 CanLII 79 (SCC), [1992] 2 SCR 915, 75 CCC (3d) 257, 15 CR (4th) 133, per Lamer CJ
    R v Moose, 2004 MBCA 176 (CanLII), 24 CR (6th) 246, 190 Man. R. (2d) 156, per Huband JA
    R v MF, 2009 ONCA 617 (CanLII), per Simmons JA), at para 25
    R v Mohan, 1994 CanLII 80 (SCC), [1994] 2 SCR 9, per Sopinka J, at pp. 20-21
    R v Harrer, 1995 CanLII 70 (SCC), [1995] 3 SCR 562, per La Forest J, at paras 23 to 24, 41 and 42 - common law permits exclusion of all evidence that renders trial unfair
    R v White, 1999 CanLII 689 (SCC), [1999] 2 SCR 417, per Iacobucci J, at para 86
  3. see R v Spackman, 2009 CanLII 37920 (ONSC), per Trafford J
  4. Harrer, supra, at paras 23 and 24
  5. R v Corbett, 1988 CanLII 80 (SCC), 41 CCC (3d) 385, per Dickson CJ
  6. R v Cyr, 2012 ONCA 919 (CanLII), per Watt JA, at paras 96, 97
    Mohan, supra, at pp. 20-21
  7. Cyr, supra, at para 97
  8. R v Jack, 1992 CanLII 2764 (MB CA), 70 CCC (3d) 67, 15 WCB (2d) 92 (Man. C.A.), per Scott CJ, at p. 86
  9. R v Sand, 2003 MBQB 76 (CanLII), per Menzies J, at para 29
  10. Cyr, supra, at para 98 citing R v Abbey, 2009 ONCA 624 (CanLII), per Doherty JA, at para 89
  11. see e.g. R v Virani, 2012 ABCA 155 (CanLII), per curiam, at paras 13 to 14
    TG v Nova Scotia (Community Services), 2012 NSCA 43 (CanLII), per Fichaud JA, at para 75 leave to SCC denied
  12. see R v Blea, 2012 ABCA 41 (CanLII), per curiam, at para 49
  13. R v O’Brien, 2011 SCC 29 (CanLII), [2011] 2 SCR 485, per Abella J (5:2), at para 18 (“The trial judge was entitled to be taken at his word.”)
  14. R v RP, 1990 CanLII 6921 (ONSC), 58 CCC (3d) 334 (Ont. H.C.), per Sutherland J at 347
  15. R v CRB, 1990 CanLII 142 (SCC), per McLachlin J (5:2), at p. 733
    Cyr, supra, at para 103
    R v DD, 2000 SCC 43 (CanLII), at paras 12 to 13, per Major J
  16. R v Shearing, 2002 SCC 58 (CanLII), per Binnie J (7:2), at para 73

Probative Value

The probative value of evidence will depend on the "context in which it is proffered".[1] A judge should look at the "degree or extent the evidence will prove the fact(s) in issue".[2]

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."[3] It also involves some weighing of evidence".[4] The judge must "identify the issue in question and the strength of the inference sought to be drawn from the evidence, in light of the reliability of the evidence".[5]

Probative value concerns the weight put on evidence and not its admissibility.[6]

Probative value includes considering its reliability.[7]

The reliability factor is particularly important when considering expert evidence.[8]

Post-offence conduct of interference with witnesses will generally be found to be probative of guilt.[9]

  1. R v Araya, 2015 SCC 11 (CanLII), per Rothstein J, at para 31
  2. R v Clyke, 2019 NSSC 137 (CanLII), per Rosinski J, at para 45
    R v Pascoe, 1997 CanLII 1413 (ONCA), 113 CCC (3d) 126 (OCA), per Rosenberg JA, at paras 41 to 45
    R v Farouk, 2019 ONCA 662, per Harvison Young JA, at para 32 ("The probative value of evidence is a function of the extent to which it tends to prove an issue at trial.")
  3. R v Leitch and Jno-Baptiste, 2011 ONSC 2597 (CanLII), per Trafford J citing Pascoe, supra
  4. Farouk, supra, at para 32(" This requires the trial judge to engage in a preliminary weighing of evidence. ")
  5. Farouk, supra, at para 32
  6. R v Morris, 1983 CanLII 28 (SCC), per McIntyre J (4:3), at pp. 99-100 (CCC), at pp. 192-3 (SCR) - cites example of documents of heroine trade found in accused's residence
  7. R v Cyr, 2012 ONCA 919 (CanLII), per Watt JA (3:0), at para 97
  8. Cyr, ibid., at para 97 citing Mohan, supra, at p. 21
  9. R v Tran, 2001 NSCA 2 (CanLII), per Bateman JA (3:0), at para 27
    R v Pillay, 2004 CanLII 9962 (ONSC), per Wein J, 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 (SCC), per McLachlin J (7:2), at p. 390 (CCC)
    R v Collins, 2001 CanLII 24124 (ONCA), 160 CCC (3d) 85, 150 OAC 220 (Ont. C.A.), per Charron JA, at para 19
    R v Tran, 2001 NSCA 2 (CanLII), per Bateman JA (3:0), at para 28 - the fact that the evidence suggests guilt does not make it prejudicial
  2. R v Mohan, 1994 CanLII 80 (SCC), (1994) 29 CR (4th) 243 (SCC), per Sopinka J
  3. R v Cote, 2003 NBCA 38 (CanLII), 176 CCC (3d) 89, per Drapeau CJ
  4. R v Shearing, 2002 SCC 58 (CanLII), per Binnie J (7:2)
    Seaboyer, supra
    R v Clarke, 1998 CanLII 14604 (ONCA), per Rosenberg JA
  5. R v Cyr, 2012 ONCA 919 (CanLII), per Watt JA, at para 99
    R v Corbett, 1988 CanLII 80 (SCC), per Dickson CJ (6:1), at pp. 692-693
  6. R v Jaw, 2009 SCC 42 (CanLII), [2009] 3 SCR 26, per LeBel J (7:2), at para 44, citing R v Jacquard, 1997 CanLII 374 (SCC), per Lamer CJ, at paras 37 to 38
    R v Daley, 2007 SCC 53 (CanLII), [2007] 3 SCR 523, per Bastarache J, at para 58
  7. R v Frimpong, 2013 ONCA 243 (CanLII), per curiam
    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]

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]

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, per La Forest J, at paras 21, 23, 41, and 42
    R v White, 1999 CanLII 689 (SCC), per Iacobucci J, at para 86
  2. Harrer, supra, at paras 23 to 24
  3. R v Al-Shammari, 2016 ONCA 614 (CanLII), per Juriansz JA, 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 SCR 383, per Lamer J, at para 26
  5. Paciocco and Stuesser, The Law of Evidence, Sixth Edition, at p. 118
  6. R v Khan, 2001 SCC 86 (CanLII), per Arbour J
    R v Cai, 2012 ABCA 157 (CanLII), [2002] AJ No 1521 (CA), per Côté JA

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 J R v Drake, 1970 CanLII 577 (SKQB), 1 CCC (2d) 396, per MacPherson J, at 202
  2. Drake, ibid., at p. 202
  3. e.g. R v RL, 2002 CanLII 49356 (ONCA), per curiam

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), per Baltman J, aff’d, 2013 ONCA 719 (CanLII), per Gillese JA, at para 8
  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), per Watt JA, at para 104

Subject-matters of Exclusionary Evidence

Alternate Suspect Evidence and Inadequate Investigation Defence

Similar Fact Evidence

Standard of Proof

General Principles

See also: Actus Reus and Mens Rea

The standard of proof asks how convinced the trier of fact must be in order to make a finding. 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, per Pigeon J
    FH v McDougall, 2008 SCC 53 (CanLII), per Rothstein J, at para 49 - lists only standards of BOP and BARD
  2. Batary v Attorney General of Saskatchewan, 1965 CanLII 102 (SCC), [1965] SCR 465, per Cartwright J, at p. 476
  3. R v Morin, 1988 CanLII 8 (SCC), per Sopinka J

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), per Sopinka J
    R v Mars, 2006 CanLII 3460 (ON CA), per Doherty JA - concerning the weight of fingerprint evidence R v John, 1970 CanLII 1049 (YK CA), 5 CCC 63, 11 CRNS 152 (Y.T.C.A.), per Davey J
    R v Brinson (E.) et al., 1995 CanLII 10555 (NLSCTD), 431 APR 98, per Easton J, 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 the 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 CanLII 769 (SCC), [1998] 3 SCR 339, per Cory J
    R v Bulldog, 2015 ABCA 251 (CanLII), per curiam, at paras 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]

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]

Admissibility Usually on a BOP

In most circumstances the standard of proof required for the admissibility of evidence is on a balance of probabilities.[4] Only in "rare occasions" where the admission of the evidence is determinative of guilt will the court apply a standard beyond a reasonable doubt.[5]

  1. Continental Insurance Co. v Dalton Cartage Co, 1982 CanLII 13 (SCC), [1982] 1 SCR 164, per Laskin CJ - SCC rejected a variable standard, adopting only balance of probabilities
    FH v McDougall, 2008 SCC 53 (CanLII), per Rothstein J, at para 49
  2. R v Evans, 1993 CanLII 86 (SCC), per Sopinka J
  3. R v Arp, 1998 CanLII 769 (SCC), [1998] 3 SCR 339, [1998] SCJ No 82, per Cory J, at paras 70 to 71 ("...the general rule that preliminary findings of fact may be determined on a balance of probabilities is departed from in those certainly rare occasions when admission of the evidence may itself have a conclusive effect with respect to guilt")
  4. R v Carpenter, 2010 BCCA 27 (CanLII), per Hall JA, at para 11 ("Though usually questions of admissibility are determined on a balance of probabilities, there are exceptions where the trial judge must be satisfied of certain pre-conditions to admissibility beyond a reasonable doubt. One such exception is that the voluntariness of a statement must be proven beyond a reasonable doubt before it is placed before a jury. ")
  5. Carpenter, ibid., at para 11
    Arp, supra

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 has no chance of success.

The standard of proof needed before evidence can be put to the jury is "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."[1]

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 evidence, if believed, could reasonably support an inference of guilt."[2]

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.

In all criminal trials the Crown must prove each and every essential element beyond a reasonable doubt.[2]

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". [3]

Purpose and 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".[4] The burden should never shift to the accused.[5]

The presumption of innocence and the criminal standard of proof are mandated given that the accused faces "grave social and personal consequences" arising from conviction.[6]

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."[7]

However, belief that the accused is "probably guilty" is not sufficient and must acquit.[8]

The burden of proof placed upon the Crown lies “much closer to absolute certainty than to a balance of probabilities.”[9] The standard is more "than proof that the accused is probably guilty" in which case the judge must acquit.[10]

To know something with "absolute certainty" is to "know something beyond the possibility of any doubt whatsoever". [11]

Such as standard is "virtually impossible to prove" and "impossibly high" for the Crown to be held to such a standard. [12]

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.”[13]

The standard of BARD only applies to the evaluation of the evidence as a whole and not individual aspects of the evidence.[14] The standard should be applied for the purpose of determining whether individual elements are proven beyond a reasonable doubt.[15]

In cases where there is the uncorroborated testimony of the complainant, the BARD burden is one that has been described as "heavy" and "hard to discharge".[16] The reason for this is to ensure that "innocent people are never convicted".[17]

Inferences and Conjecture

Reasonable doubt must come as a rational conclusion from the evidence available and not as a basis of conjecture.[18]

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.[19]

Jury Instructions

The standard should not be articulated in a way that would likely cause the standard to be applied subjectively.[20]

Assessing Evidence

When applying the BARD standard the judge must apply the same level of scrutiny to the Crown and defence evidence.[21]

Consequence of Reasonable Doubt

The finding of reasonable doubt "is not the same as deciding in any positive way that [the allegations] never happened."[22] 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.[23]

History

The origins of reasonable doubt go back to the English Common law in 1780. The standard arose from a shift away from a standard based on Christian beliefs whereby an improper conviction would result in the juror "pawning" their soul. A pamphlet circulated to jurors at the time stated, "the Juryman who finds any other person guilty, is liable to the Vengeance of God upon his Family and Trade, Body and Soul, in this world and that to come." This religious standard resulted in a wide-spread dread of false convictions. A more secular standard would allow jurors to convict without putting their souls at risk[24]

  1. affirmed under the English common law of England in Woolmington v DPP , [1935] A.C. 462 (HL) (UK) at 481-82
  2. R v Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 SCR 636, per Lamer J
  3. R v Lifchus, 1997 CanLII 319 (SCC), per Cory J (9:0), at para 36
    See also: In R v JMH, 2011 SCC 45 (CanLII), per Cromwell J (9:0), 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.”)
  4. Lifchus, supra, at para 36
  5. Lifchus, supra, at para 36
  6. R v Oakes, 1986 CanLII 46 (SCC), [1986] 1 SCR 103 (SCC), per Dickson CJ ("The presumption of innocence protects the fundamental liberty and human dignity of any and every person accused by the State of criminal conduct. An individual charged with a criminal offence faces grave social and personal consequences, including potential loss of physical liberty, subjection to social stigma and ostracism from the community, as well as other social, psychological and economic harms. In light of the gravity of these consequences, the presumption of innocence is crucial. It ensures that until the State proves an accused's guilt beyond all reasonable doubt, he or she is innocent. This is essential in a society committed to fairness and social justice.")
  7. Lifchus, supra, at para 31, 1fqzt36
  8. Lifchus, supra, at para 36
  9. R v Starr, 2000 SCC 40 (CanLII), per Iacobucci J (5:4), at para 242 ("...an effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolute certainty than to proof on a balance of probabilities. ...a trial judge is required to explain that something less than absolute certainty is required, and that something more than probable guilt is required, in order for the jury to convict. ... The additional instructions to the jury set out in Lifchus as to the meaning and appropriate manner of determining the existence of a reasonable doubt serve to define the space between absolute certainty and proof beyond a reasonable doubt. ")
  10. Lifchus, supra, at para 36
  11. R v Layton, 2008 MBCA 118 (CanLII), 238 CCC (3d) 70, per Hamilton JA (2:1)
  12. Lifchus, supra, at para 39
  13. JMH, supra
  14. R v Stewart, 1976 CanLII 202, [1977] 2 SCR 748, per Pigeon J (6:3) at 759-61
    R v Morin, 1988 CanLII 8, [1988] 2 SCR 345 at 354, 44 CCC (3d) 193, per Sopinka J
    R v White, 1998 CanLII 789, [1998] 2 SCR 72, 125 CCC (3d) 385, per Major J (7:0), at paras 38 to 41
  15. R v McKay, 2017 SKCA 4 (CanLII), 136 WCB (2d) 310, per Whitmore JA (3:0), 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.")
  16. R v Nyznik, 2017 ONSC 4392 (CanLII), 350 CCC (3d) 335, per Molloy J, at para 16 (" In many cases, the only evidence implicating a person accused of sexual assault will be the testimony of the complainant. There will usually be no other eye-witnesses. There will often be no physical or other corroborative evidence. For that reason, a judge is frequently required to scrutinize the testimony of a complainant to determine whether, based on that evidence alone, the guilt of an accused has been proven beyond a reasonable doubt. That is a heavy burden, and one that is hard to discharge on the word of one person") R v Jackson, 2019 NSSC 202 (CanLII), per Brothers J, at para 150
  17. Nyznik, supra, at para 16
  18. R v Wild, 1970 CanLII 148 (SCC), [1971] SCR 101 at 113
  19. R v W(R), 1992 CanLII 56 (SCC), [1992] 2 SCR 122, per McLachlin J (6:0) 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")
  20. R v Stubbs, 2013 ONCA 514 (CanLII), per Watt JA (3:0), at para 99
    R v Bisson, 1998 CanLII 810 (SCC), per Cory J (7:0), at p. 311 (SCR)
  21. R v Johnstone, 2019 ABQB 965 (CanLII), per Renke J, at para 11
    R v Wanihadie, 2019 ABCA 402 (CanLII), at paras 33 to 36, per curiam
    R v Howe, 2005 CanLII 253, 192 CCC (3d) 480; [2005] OJ No 39 (ONCA), per Doherty JA, at paras 59 to 64
    R v Norman, 1993 CanLII 3387, 87 CCC (3d) 153, [1993] OJ No 2802 (ONCA), per Finlayson JA at 24 - 25
    R v Schell, 2013 ABCA 4 (CanLII), per curiam, at para 34
    R v MJB, 2015 ABCA 146 (CanLII), per curiam (2:1), at para 33
    R v McGown, 2016 ONCA 575 (CanLII), per Cronk JA, at para 96
  22. R v Ghomeshi, 2016 ONCJ 155 (CanLII), per Horkins J, at para 140
  23. Ghomeshi, ibid., at paras 140 and 141
  24. James Q. Whitman, The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial, Yale University Press (2008) [2]

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), per McIntyre J (7:0) including p. 416 (SCR)
  2. R v Stubbs, 2013 ONCA 514 (CanLII), 300 CCC (3d) 181, per Watt JA (3:0), at para 98
    R v Bisson, 1998 CanLII 810 (SCC), [1998] 1 SCR 306, per Cory J (7:0), 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 an investigation "can be particularly important where no defence evidence is called."[4]

  1. R v Henderson, 2012 NSCA 53 (CanLII), per Saunders JA (3:0), at para 40
    R v White, 1994 NSCA 77 (NSCA), 89 CCC (3d) 336, per Chipman JA (3:0)
    R v Eastgaard, 2011 ABCA 152 (CanLII), 276 CCC (3d) 432, per curiam (2:1), at para 22, aff’d 2012 SCC 11 (CanLII), per McLachlin CJ (7:0)
  2. R v Tahirsylaj, 2015 BCCA 7 (CanLII), per Bennett JA (3:0), at para 39
    R v Paul, 1975 CanLII 185 (SCC), 27 CCC (2d) 1 (SCC), [1977] 1 SCR 181, 64 DLR (3d) 491 (SCC), per Ritchie J (6:3) at 6 (CCC)
  3. R v Bero, 2000 CanLII 16956 (ONCA), 151 CCC (3d) 545 (Ont.C.A.), per Doherty JA (3:0), at paras 56 to 58
  4. R v Gyimah, 2010 ONSC 4055 (CanLII), per Healey J, at para 20 Bero, supra

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 (SCC), per Dickson J - voluntariness voir dire
    R v C(WB), 2000 CanLII 5659 (ONCA), 142 CCC (3d) 490, per Weiler JA, 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


Note up: 11

This ultimate burden of proof is one that only applies to the total body of evidence, not each separate piece of evidence.[2]

  1. R v Fontaine, 2004 SCC 27 (CanLII), [2004] 1 SCR 702, per Fish J, at para 11 (“ An “evidential burden” is not a burden of proof. It determines whether an issue should be left to the trier of fact, while the “persuasive burden” determines how the issue should be decided.”)
  2. R v Bouvier, 1984 CanLII 3453 (ONCA), at pp. 264-265 (CCC), per Martin JA("The standard of proof beyond a reasonable doubt does not apply to the individual items of evidence, or the separate pieces of evidence which make up the Crown's case, but to the total body of evidence upon which the Crown relies to prove guilt...it applies equally where the case depends upon direct evidence or is made up of both direct and circumstantial evidence. ... a serious misdirection to instruct the jury that they must be satisfied beyond a reasonable doubt with respect to each of the separate pieces of evidence upon which the Crown relies to prove guilt.")
    R v Stewart, 1976 CanLII 202 (SCC), 31 CCC (2d) 497 (SCC), [1977] 2 SCR 748, per Pigeon J
    R v Morin, 1988 CanLII 8 (SCC), [1988] 2 SCR 345(complete citation pending)

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 SCC 27 (CanLII), [2004] 1 SCR 702, per Fish J, at para 11 (“ An “evidential burden” is not a burden of proof. It determines whether an issue should be left to the trier of fact, while the “persuasive burden” determines how the issue should be decided.”)
  2. Fontaine, ibid., at para 12 (“[evidential burden] is a matter of law; the second [persuasive burden], a question of fact. Accordingly, on a trial before judge and jury, the judge decides whether the evidential burden has been met. In answering that question, the judge does not evaluate the quality, weight or reliability of the evidence. The judge simply decides whether there is evidence upon which a properly instructed jury could reasonably decide the issue.”)
  3. Fontaine, ibid., at para 11
  4. R v Evaglok, 2010 NWTCA 12 (CanLII), per Vertes JA, 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), per Vertes JA, at para 25 citing Paciocco, The Law of Evidence (5th ed.), at p. 531
  2. R v Darrach, 2000 SCC 46 (CanLII), [2000] 2 SCR 443, per Gonthier J
  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), per Gillese JA, 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


Note up: 11

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 (UK)
    R v Appleby, 1971 CanLII 4 (SCC), [1972] SCR 303, per Ritchie J
    R v Proudlock, 1978 CanLII 15 (SCC), per Pigeon J, at para 6
    R v Manchuk, 1938 CanLII 6 (SCC), [1938] SCR 341, per Duff CJ, at p. 349
  2. R v Dubois, 1985 CanLII 10 (SCC), [1985] 2 SCR 350, per Lamer J, at pp. 357 to 258
  3. R v Lauer, 2011 PECA 5 (CanLII), per Murphy JA, at para 73 (“ One must keep in mind that, one of the most fundamental tenets in criminal law is that the Crown carries the burden of proving the elements of the offence beyond a reasonable doubt. The accused person is presumed innocent, and there is absolutely no onus or burden on the accused to prove his innocence. That burden remains on the Crown throughout the trial and never shifts. “)
  4. see R v Briand, 2010 NLCA 44 (CanLII), 258 CCC (3d) 416 (NLCA), per Harrington JA
  5. see R v JCH, 2011 NLCA 8 (CanLII), per Rowe JA, 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]

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, 1976 CanLII 8 (SCC), [1977] 2 SCR 1067, 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]

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 R v Atlee, 2010 ONCJ 72 (CanLII), per Thibideau J, at para 14
    see also Watt's Manual of Criminal Evidence ss. 9.01
    R v Campbell, 2001 CanLII 7064 (ONCA), per Weiler JA, at paras 10 and 11
    R v Cinous, 2002 SCC 29 (CanLII), per McLachlin CJ 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), per Charron J, at para 33
    R v Ngo, 2009 BCCA 301 (CanLII), per Rowles JA, at para 53
  3. R v SCB, 1997 CanLII 6319 (ONCA), 104 OAC 81 (CA), per Doherty and Rosenberg JJA, at paras 33 to 36
  4. R v Pilon, 2009 ONCA 248 (CanLII), 243 CCC (3d) 109 (ONCA), per Doherty JA
  5. R v Arp, 1998 CanLII 769 (SCC), [1998] 3 SCR 339, per Cory J, at p. 375
  6. FH v McDougall, 2008 SCC 53 (CanLII), [2008] 3 SCR 41, per Rothstein J, at paras 33 to 40, 47 to 48
    R v Yousif, 2011 ABCA 12 (CanLII), per Slatter JA, at para 5
  7. R v Allen, 2015 BCCA 299 (CanLII), per Donald JA, at para 27
  8. R v John, 1970 CanLII 1049 (YK CA), [1970] 5 CCC 63, aff'd at 1970 CanLII 199 (SCC), [1971] SCR 781, per Ritchie J
  9. R v Torrie, 1967 CanLII 285 (ONCA), [1967] 3 CCC 303 (ONCA), per Evans JA
  10. See R v White, 1996 CanLII 3013 (ONCA), 108 CCC (3d) 1 (Ont.C.A.), per curiam
    R v Uhrig, 2012 ONCA 470 (CanLII), per curiam
  11. R v Stewart, 1976 CanLII 202 (SCC), per Pigeon J
    R v Turlon, 1989 CanLII 7206 (ONCA), 49 CCC (3d) 186 (Ont. C.A.), per Zuber JA
  12. R v Leitch, 2012 ONCA 85 (CanLII), [2010] OJ No 6240 (C.J.), aff’d, per curiam
    R v Sykes, 2014 NSCA 57 (CanLII), per Farrar JA, at para 43
  13. R v Nolet, 2010 SCC 24 (CanLII), per Binnie J, at para 48
    R v Luc, [2007] OJ No 4210 (C.J.)(*no CanLII links) , at paras 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 (ONCA), per Sharpe JA, at para 15
  15. R v Tombran, 2000 CanLII 2688 (ONCA), per Sharpe JA, at p. 392 (CCC)
    R v Fleet, 1997 CanLII 867 (ONCA), OR (3d) 542, 120 CCC (3d) 457 (CA), per curiam
  16. R v Petel, 1994 CanLII 133 (SCC), per Lamer CJ
  17. R v Froese, 1988 CanLII 7088 (MB CA), (1988) 44 CCC (3d) 1 (MBCA), per Huband JA
  18. R v Mars, 2006 CanLII 3460 (ONCA), per Doherty JA, at paras 19 to 24
    R v Pakula, 2017 ABPC 33 (CanLII), per Semenuk J
  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 Must be Reasonable

An inference is a deduction made from the evidence.[4]

It is said that only "reasonable inferences" are permitted. Those inferences can be logically based on the evidence or lack of evidence and are assessed in light of "human experience" and "common sense".[5]

Inferences consistent with innocence do not need to arise from proven facts.[6] To require proven facts wrongly places the burden upon the accused to prove what happened rather than simply raise a doubt.[7]

Alternative inferences must be reasonable. It is not sufficient that they be just "possible".[8]

Cumulative Effect of the Evidence

The Court must look at the cumulative effect of the evidence and not in piecemeal.[9] Considering piecemeal means that evidence can be "reasonably or rationally explained away". However, it avoids the question of whether on the whole does the evidence prove ultimate guilt on a standard of beyond reasonable doubt.[10]

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.[11]

Inference of Guilt is The Only Reasonable One

The judge must make an 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.[12]

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.[13]

Example
Fingerprints

The mere finding of fingerprints on a household item moved during a break and enter can be sufficient to establish guilt.[14]

Inferences Drawn from 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".[15] 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".[16]

It must be kept in mind however that as a rule the "absence of evidence is not evidence of absence".[17]

Jury Instructions

There is no longer any legal requirement for "special instructions" on circumstantial evidence even when relating to the essential element of identity.[18]

  1. R v Yebes, 1987 CanLII 17 (SCC), [1987] 2 SCR 168, per McIntyre J
    R v Griffin; R v Harris, 2009 SCC 28 (CanLII), [2009] SCJ 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, 1977 CanLII 11 (SCC), [1978] 1 SCR 860, per Ritchie J
    Mezzo v The Queen, 1986 CanLII 16, , [1986] 1 SCR 802, per McIntyre J, at para 12
  3. R v Moose, 2015 ABCA 71 (CanLII), per curiam, at para 12
  4. R v Shields, 2014 NSPC 21 (CanLII), per Derrick J, at para 105
    R v Latif, [2004] OJ No 5891 (SCJ)(*no CanLII links) , at para 4
  5. R v Villaroman, 2016 SCC 33 (CanLII), [2016] 1 SCR 1000, per Cromwell J, at para 35
    R v Roberts, 2020 NSCA 20 (CanLII)(complete citation pending), at para 25 ("If reasonable inferences other than guilt can be drawn from circumstantial evidence the Crown has not met the standard of proof beyond a reasonable doubt. Reasonable doubt can be logically based on the evidence or lack of evidence, must be reasonable given that evidence or lack thereof, and assessed logically in light of human experience and common sense.")
  6. R v Khela, 2009 SCC 4 (CanLII), per Fish J, at para 58
    see also R v Defaveri, 2014 BCCA 370 (CanLII), 361 B.C.A.C. 301, per Lowry JA, at para 10
    R v Bui, 2014 ONCA 614 (CanLII), 14 CR (7th) 149, per Simmons JA, at para 28
  7. R v Villaroman, 2016 SCC 33 (CanLII), [2016] 1 SCR 1000, per Cromwell J, at para 35
  8. Villaroman, supra, at para 42 ("…The court stated that “[c]ircumstantial evidence does not have to totally exclude other conceivable inferences”; that the trier of fact should not act on alternative interpretations of the circumstances that it considers to be unreasonable; and that alternative inferences must be reasonable, not just possible.")
    R v Duong, 2019 BCCA 299 (CanLII), at para 65 ("Of fundamental importance is the principle that it is the role of the trier of fact to assess whether alternative inferences are merely possible, or whether they are reasonable.")
  9. Trevor, supra
    R v Smith, 2016 ONCA 25 (CanLII), per Watt JA, at paras 81 to 82
    R v Tahirsylaj, 2015 BCCA 7 (CanLII), at paras 29, 38
  10. Duong, supra, at para 64
  11. Smith, ibid., at para 81
  12. R v Garciacruz, 2015 ONCA 27 (CanLII), per Rouleau JA
    R v Griffin, 2009 SCC 28 (CanLII), [2009] 2 SCR 42, 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. Imparting the necessary message to the jury may be achieved in different ways")
  13. R v Bouzied, 2013 ONCA 276 (CanLII), per curiam
  14. e.g. R v Miller, 2016 BCCA 263 (CanLII), per Lowry JA
  15. Villaroman, supra, at para 37
  16. Villaroman, supra, at paras 37 to 38
  17. R v Piec, 2007 MBCA 138 (CanLII), per Steel JA
  18. 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), Sask.R. 203, [1994] 4 WWR 305, per Vancise JA, at paras 13 to 15
    R v Munro, 2001 SKQB 138 (CanLII), per Baynton J, at paras 13 to 14
    R v Trevor, 2006 BCCA 91 (CanLII), per Low JA, at para 12
    cf. R v Cooper, 1977 CanLII 11 (SCC), [1978] 1 SCR 860, per Ritchie J, at p. 881
  3. R v Mitchell, 1964 CanLII 42 (SCC), [1964] SCR 471, per Spence J
    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 (ONCA), per Sharpe JA, at para 15
  6. see R v McIver, 1965 CanLII 26 (ONCA), [1965] 2 OR 475 (CA), per Porter CJ, at p. 479, aff’d 1966 CanLII 6 (SCC), [1966] SCR 254, per Cartwright J
  7. see R v Robinson, 2017 BCCA 6 (CanLII), per Newbury JA, at para 24
    US: Holland v United States, 348 U.S. 121 (1954)
    UK: McGreevy v DPP, [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), per Charron J (statement of deceased suggests a motive for murder)
  2. R v Lewis, 1979 CanLII 19 (SCC), per Dickson J
  3. R v Ilina, 2003 MBCA 20 (CanLII), per Scott CJ
  4. R v Cloutier, 1939 CanLII 26 (SCC), [1940] SCR 131, per Rinfret J
    R c Bari, 2006 NBCA 119 (CanLII), per Deschênes JA
  5. R v Portillo, 2003 CanLII 5709 (ONCA), per Doherty JA (accused's possession of victim's property establish motive of theft for murder charge)
  6. R v Cooper, 2004 BCCA 540 (CanLII), per Thackray JA, at paras 34 to 35
  7. R v Chapman, 2006 CanLII 1178 (ONCA), 204 CCC (3d) 449 (Ont CA), per Simmons JA, at para 27
    R v Cudjoe, 2009 ONCA 543 (CanLII), per Watt JA, at para 64
    R v Van Osselaer, 2002 BCCA 464 (CanLII), 167 CCC (3d) 225 (BCCA), per Hall JA, at para 23, leave to appeal refused, [2002] SCCA No 444 (SCC)
    R v Batte, 2000 CanLII 5750 (ONCA), 145 CCC (3d) 449 (Ont CA), per Rosenberg JA, 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), per Deschênes JA
  2. R v Woollam, 2012 ONSC 2188 (CanLII), per Durno J, at para 48
    see Murphy and Butt v The Queen, 1976 CanLII 198 (SCC), [1977) 2 SCR 603, per Spence J, at p. 617
    R v Boss, 1988 CanLII 190 (ONCA), 46 CCC (3d) 523, per Cory JA
    R v Varcoe, 2007 ONCA 194 (CanLII), per MacFarland JA, at para 33
    R v Arsenault, 1997 CanLII 1069 (ONCA), [1997] OJ No 3977 (CA), per curiam, at para 9
    R v Clark, 1995 CanLII 1474 (ONCA), [1995] OJ No 4036 (CA), per curiam, 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 (ONCA), 194 CCC (3d) 1 (ONCA), per Rosenberg JA
    R v Kinkead, 2003 CanLII 52177 (ONCA), per Simmons JA
  2. R v Davison, 1974 CanLII 787 , per Martin JA

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), per Watt JA, at 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 (SCC), [1987] 2 SCR 168, per McIntyre J ("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, supra, 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 CanLII 3481 (ONCA), 11 CCC (3d) 318, 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), per Watt JA, 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), per Ritchie J, affirming (1974), 1974 CanLII 42 (ONCA), 21 CCC (2d) 99 (Ont. C.A.), per Schroeder JA.
  2. R v Ferianz (1962), 37 CR 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 (SCC), [1987] 2 SCR 168, per McIntyre J ("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), per Oland JA

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]

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]

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 (ONCA), [2004] OJ No 4010 (CA), per curiam, at para 14
    R v Morales, 2006 CanLII 19930 (ONCA), OR (3d) 161 (CA), per LaForme JA, at paras 12, 14
  2. R v De Rojas, 2012 ONSC 3227 (CanLII), per Hill J, at para 88
  3. e.g. R v Cook, 1978 CanLII 399 (BCCA), B.C.L.R. 84, per McIntyre JA, at p. 86
    R v Lees, 2009 BCCA 240 (CanLII), per Newbury JA, at para 21
    R v Bjornson, 2009 BCSC 1780 (CanLII), per Bennett J, at para 13
    R v Graham, 2013 BCCA 75 (CanLII), per Neilson JA, at para 36 - However there is some inconsistency see para 38
  4. e.g. R v Doan, 2013 BCCA 123 (CanLII), per curiam - 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]

An inference is a deduction of fact based on "inductive reasoning" using logic, reasonability and human experience.[2] In any given case the inferences are generally mandatory and are at the discretion of the judge based on the weighing of the whole of the evidence.[3]

Drawing inferences has been described as requiring two steps. First, there must be findings of fact from which inferences may be drawn. Second, the judge considers whether based on the established facts an inference is "reasonable, rational and logical".[4] This does not mean however that the absence of evidence cannot be used to draw inferences when considered in the context of guilt.[5]

The Court is entitled to apply "common sense" upon the consideration.[6]

Judges should avoid "common sense" assumptions not grounded in evidence or judicial notice.[7]

Evidence Required as Basis

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."[8]

No Conjecture or Speculation

They cannot be conjecture or speculation about potential evidence that has not be submitted before the court.[9]

Inferences that are drawn without evidence is mere speculation.[10]

Drawing Inferences

An inferred fact must be one that is "reasonably and logically drawn from a fact or group of facts established by the evidence."[11] An inference that does not properly flow from the established fact is mere conjecture and speculation.[12] 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".[13] The inference does not need to flow "easily" from those facts.[14]


  1. R v Brodeur, 2014 NBCA 44 (CanLII), per Bell JA (3:0)
  2. R v Munoz, 2006 CanLII 3269 (ONSC), 205 CCC (3d) 70, at paras 23 to 28
    R v Wheyee, 2019 ABQB 548 (CanLII), per Horner J, at para 98 ("There the court describes that drawing of inferences as a product of inductive reasoning which derives conclusions based on the uniformity of prior human experience. An inference is a deduction of fact which may be logically or reasonably drawn from another set of established facts. However, it is a conclusion that may, not must, be drawn, depending on the court’s weighing of the whole of the evidence.")
  3. Wheyee, ibid., at para 98
  4. Wheyee, supra, at para 99 ("Drawing inferences can be described as a two-step process. The first step is to find that the facts from which the inference is to be drawn have been proven in the trial. If not then any inference is of necessity nothing more than speculation. The second step is to make an inference from the proven facts that is reasonable, rational and logical")
    R v Morrissey, 1995 CanLII 3498 (ONCA), , 22 OR (3d) 514 (Ont. CA), per Doherty JA
  5. R v Villaroman, 2016 SCC 33 (CanLII), [2016] 1 SCR 1000, per Cromwell J
  6. R v To, 1992 CanLII 913 (BCCA), per McEachern CJ
    see also RJR-MacDonald Inc v Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 SCR 199, per LaForest J, at paras 84 to 87
  7. R v JC, 2021 ONCA 131 (CanLII), per JA, at para 58 (“judges must avoid speculative reasoning that invokes ‘common‑sense’ assumptions that are not grounded in the evidence or appropriately supported by judicial notice”)
    R. v A.R.D., 2017 ABCA 237 at paras. 6–9, 28, 43–44, 71, aff’d 2018 SCC 6(complete citation pending)
    R. v Paulos, 2018 ABCA 433 at paras. 26–29, 34, 39(complete citation pending)
    R. v C.M.M., 2020 BCCA 56 at paras. 138–139(complete citation pending)
    R. v Kodwat, 2017 YKCA 11 at paras. 27–28, 41(complete citation pending)
  8. R v Latif, [2004] OJ No 5891(*no CanLII links) , at para 4
  9. Caswell v Powell Duffryn Associated Collieries Ltd [1939] 3 All ER 722
  10. Wheyee, supra, at para 99 (" Drawing inferences can be described as a two-step process. The first step is to find that the facts from which the inference is to be drawn have been proven in the trial. If not then any inference is of necessity nothing more than speculation.")
  11. R v Shields, 2014 NSPC 21 (CanLII), per Derrick J, at para 106
    R v Morrissey, 1995 CanLII 3498 (ONCA), [1995] OJ No 639 (CA), per Doherty JA (3:0), at para 52
  12. Morrissey, ibid., at para 52
    R v McIver, 1964 CanLII 248 (ONSC), [1964] OJ No 835, per McRuer J, at para 9
  13. R v Torrie, 1967 CanLII 285 (ONCA), [1967] 3 CCC 303, per Evans JA, 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 BCSC 119 (CanLII), [2001] BCJ No 3000, per Romilly J, at para 19: ("The criminal law requires a very high degree of proof especially for inferences consistent with guilt, but it does not demand certainty.")
  14. R v Katwaru, 2001 CanLII 24112 (ONCA), [2001] OJ No 209, per Moldaver JA (3:0), at para 40

Types of Inferences

Inferences of mens rea

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

Inferences of circumstantial cases

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

Hodge's Rule

Hodge's rule does not apply to determine the mens rea of an offence.[1]

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."[2]

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.[3]

A judge may infer an intention to destroy evidence inconsistent with non-intentional death where the accused is found burning a body.[4]

Inferences of Authorship

The authorship of a communication such as a text message can be inferred circumstantially through various sources, including:[5]

  • source of communication
  • access to account
  • content of communications disclosing info known to select persons
  • nature and character of the exchanges.

When considering inculpatory statements of the accused the analysis should separate the question of identity from the probative value of the statement in support of a conviction.[6]

Equal Alternatives and Juries

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.[7]

Possession

The discovery of a item in a vehicle can create a presumption to infer possession by the driver.[8]

Evidence of Habit

Evidence of habitual or business practice can be sufficient to allow the inference that the events happened according to that practice.[9]

  1. R v Mitchell, 1964 CanLII 42 (SCC), [1964] SCR 471, per Spence J
    R v Cooper, 1977 CanLII 11 (SCC), [1978] 1 SCR 860, per Ritchie J
  2. R v Missions, 2005 NSCA 82 (CanLII), per Roscoe JA (3:0), at para 21
    see also R v Walle, 2012 SCC 41 (CanLII), per Moldaver J (7:0), at para 64 (“a person usually knows what the predictable consequences of his or her actions are, and means to bring them about”")
  3. R v Brodeur, 2014 NBCA 44 (CanLII), per Bell JA (3:0)
  4. R v Calnen, 2019 SCC 6 (CanLII), [2019] 1 SCR 301, per Moldaver J
  5. R v Durocher, 2019 SKCA 97 (CanLII), per Schwann JA, at para 47 ("R v J.V., 2015 ONCJ 837, held that, for the purposes of the Evans test, authorship can be inferred circumstantially through “such things as the source of the information, access to the relevant email or social media address, the disclosure of details known to the purported author and the nature of the exchanges between the parties …” (at para 3).")
  6. R v Evans, 1993 CanLII 86 (SCC), [1993] 3 SCR 653, per Sopinka J ("...in respect of the authenticity of admissions... [i]f there is some evidence to permit the issue to be submitted to the trier of fact, the matter must be considered in two stages. First, 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. 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. While the contents of the statement may only be considered for the limited purpose to which I have referred above in the first stage, in the second stage the contents are evidence of the truth of the assertions contained therein.")
  7. R v White, 1998 CanLII 789 (SCC), per Major J (7:0), at #par28 para 28
    R v Arcangioli, 1994 CanLII 107 (SCC), per Major J (7:0), at pp. 145 and 147
  8. R v Nicholson, 2011 ABCA 218 (CanLII), per curiam, 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”)
    cf. R v Lincoln, 2012 ONCA 542 (CanLII), per curiam (3:0)
  9. R v Shams, 2017 MBCA 116 (CanLII), per Mainella JA (3:0), at para 5
    Thompson, 2001 CanLII 24186 (ONCA), 151 CCC (3d) 339, per Morden JA, at para 9 (Ont CA)
    Gerelus v Lim et al, 2008 MBCA 89 (CanLII), per Hamilton JA, 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 and Post-Offence Conduct

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]

Burden

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

Post-Offence Conduct

Inference of guilt may be drawn from post-offence conduct using logic and common sense.[3] When it is appropriate depends on the circumstances of the case.[4]

  1. R v Griffin, 2009 SCC 28 (CanLII), [2009] 2 SCR 42, per Charron J, at para 33
  2. R v Pryce, 2014 BCCA 370 (CanLII), per Lowry JA (3:0), at para 10
  3. R v Wheyee, 2019 ABQB 548 (CanLII), per Horner J, at para 105
    R v White, 2011 SCC 13 (CanLII), per Rothstein J, at para 22
  4. Wheyee, supra, at para 105

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), per Dawson J, at para 19
  3. R v Bampoe, 2013 ONCJ 355 (CanLII), per Zuker J
  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, per Judson J (5:0) at 123
  6. R v Jenner, 2005 MBCA 44 (CanLII), 195 CCC (3d) 364 (M.C.A.), per Monnin JA
  7. R v Grover, 2007 SCC 51 (CanLII), per curiam, 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), per Watt JA, at para 45
    R v NLP, 2013 ONCA 773 (CanLII), per Lauwers JA (3:0), 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] SCJ No 28, per Binnie J (5:0), at para 27
    R v Lapensee, 2009 ONCA 646 (CanLII), [2009] OJ No 3745, per O'Connor ACJ, at para 41
  3. Ellis, supra, at para 46
  4. Ellis, supra, at para 46
    McCormick on Evidence, 6th ed. (St. Paul: Thomson West, 2006), Vol. 2, at p. 264
  5. Jolivet, supra, at para 26; Wigmore on Evidence (Chadbourn Rev., 1979), Vol. 2, at para 290
  6. Ellis, supra, at para 48
    R v Lapensee, 2009 ONCA 646 (CanLII), , 99 OR (3d) 501, per O'Connor ACJ, at para 42
    R v Rooke, 1988 CanLII 2947 , per Craig JA, 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 CanLII 2964 (ONCA), 54 CCC (2d) 65 (Ont. C.A.), 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 CanLII 51 (SCC), [1983] 1 SCR 357, per Ritchie J
    R v Kowlyk, 1988 CanLII 50 (SCC), [1988] 2 SCR 59, per McIntyre J
  2. R v Gagnon, 2006 MBCA 125 (CanLII), per Hamilton JA
  3. R v Newton, 1976 CanLII 157 (SCC), per Dickson J, at p. 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), 57 CR (3d) 97, per Dickson CJ
  5. see Newton, supra, at p. 405
  6. R v Abernathy, 2002 BCCA 8 (CanLII), per Smith JA
  7. Gagnon, supra, at para 13
  8. Gagnon, supra
  9. R v Killam, 1973 CanLII 1347 (BCCA), [1973] 5 WWR 3, per MacLean JA, at para 45
  10. e.g. R v Rimmer, 2011 BCCA 411 (CanLII), per Hall JA

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, 1972 CanLII 172 (SCC), [1974] SCR 206, per Ritchie J
    R v Nickerson, 1977 CanLII 1914 (NSCA), (1977) 37 CCC (2d) 337 (NSCA), per MacDonald JA
    R v Newton, 1976 CanLII 57 (SCC), [1977] 1 SCR 312, per Ritchie J
    R v L'Heureux, 1985 CanLII 49 (SCC), [1985] 2 SCR 159, per Lamer J
    R v Kowlyk, 1988 CanLII 50 (SCC), [1988] 2 SCR 59, 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. Graham, supra

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), 5 CCC (3d) 193 (Ont. C.A.), per Martin JA
  2. Boyle, ibid.
    R v Proudlock, 1978 CanLII 15 (SCC), [1979] 1 SCR 525, per Estey J
  3. Proudlock, ibid., at p. 30
    R v Nolet (Charette) (1980), 4 MVR 265(*no CanLII links) , per Martin JA, at p. 269
    R v Clarke, 2003 ABPC 26 (CanLII), per Semenuk J, at para 17
  4. R v Tallon, 1992 ABCA 322 (CanLII), , (1992) 135 AR 146, per Kerans JA
    R v Heisler, 1994 ABCA 337 (CanLII), , (1995) MVR (3d) 305, per curiam
    Clarke, supra, at para 17
  5. R v Proudlock, 1978 CanLII 15 (SCC), [1979] 1 SCR 525, per Pigeon J, at p. 28
    R v Dubois, 1990 CanLII 2776 (QC CA), 62 CCC (3d) 90, per Fish JA, at p. 92
    R v Gibson, 1992 CanLII 2750 (SK CA), 72 CCC (3d) 28, per Bayda CJ, at p. 38
    Heisler, supra, at p. 307
    R v Oldhauser, (1998) AJ No 1323(*no CanLII links) , per Berger JA, at paras 3 and 6
  6. Nolet, supra, at p. 269
    R v Campbell, 1974 CanLII 1502, , 17 CCC (2d) 320 (Ont. C.A.), per Martin JA
  7. e.g. R v Downey, 1992 CanLII 109 (SCC), [1992] 2 SCR 10, per Cory J
  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, per Judson J
    R v Appleby, 1971 CanLII 4 (SCC), [1972] SCR 303, per Ritchie J
  2. R v Oakes, 1983 CanLII 1850 (ON CA), 2 CCC (3d) 339 (ONCA), per curiam
  3. See Constitutional Challenges to Legislation
  4. R v Russell, 1983 CanLII 3491 (NSCA), 4 CCC (3d) 460 (NSCA), 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] SCJ No 66, per McIntyre J
    R v Russell, 1983 CanLII 3491 (NSCA), 4 CCC (3d) 460 (NSCA), per Jones JA - presumption does not violate s. 11(d)
  2. R v King, 1962 CanLII 16 (SCC), [1962] SCR 746
  3. R v Luciano, 2011 ONCA 89 (CanLII), per Watt JA

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), per Greenberg J, at paras 15 to 19
  3. R v Molina, 2008 ONCA 212 (CanLII), per Blair JA, at para 12 citing Wigmore
  4. R c LO, 2008 ONCA 830 (CanLII), per curiam, 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, per Kerwin CJ
    R v Smyth, 1940 CanLII 384 (SCC), [1941] SCR 17, per Duff CJ
  2. R v Simpson, 1977 CanLII 1142 (ON CA), 35 CCC (2d) 337, per Martin JA

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 witness that can be cross-examined.[9]

Standard of Appellate Review

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

An error in taking judicial notice is as legal error and may be sufficient by itself to require an appeal to be allowed.[11]

The standard of review for social and legislative facts are the same as the standard applied to any other type of findings of fact, which is the standard of "palpable and overriding error".[12]

  1. R v Daley, 2008 NBQB 21 (CanLII), per Garnett J, at para 15 citing McWilliams Canadian Criminal Evidence
  2. Daley, ibid., at para 15
  3. R v Potts, 1982 CanLII 1751 (ONCA), 66 CCC (2d) 219 (Ont. C.A.), per Thorson JA
    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), per McLachlin CJ, at para 48
    R v Williams, 1998 CanLII 782 (SCC), 124 CCC (3d) 481, per McLachlin J, at p. 489
    R v Spence, 2005 SCC 71 (CanLII), [2005] 3 SCR 458, per Binnie J, at para 53
  4. Find, supra, at para 48
  5. Cambie Surgeries Corporation v British Columbia (Attorney General), 2017 BCSC 860 (CanLII), per Steeves J, at para 51
  6. R v Haines, 1980 CanLII 2884 (BC SC), [1980] 5 WWR 421 at 429, 20 B.C.L.R. 260, 52 CCC (2d) 558, per Perry J ("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, per Pigeon J
  7. R v King, 2013 ABCA 3 (CanLII), per curiam, at para 14
  8. R v Bjornson, 2012 ABCA 230 (CanLII), , 536 AR 1, per curiam (2:1), at para 8
    King, supra, at paras 14 to 22
    R v Sam, 2013 ABCA 174 (CanLII), per curiam
  9. Spence, supra, at para 68
  10. R v Charles, 2013 BCSC 23 (CanLII), per Sigurdson J, at para 36
  11. R v JM, 2021 ONCA 150 (CanLII), per Brown JA, at para 83
  12. Canada (Attorney General) v Bedford, 2013 SCC 72 (CanLII), [2013] 3 SCR 1101, per McLachlin CJ, at paras 48 to 56
    cf. 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. R v Spence, 2005 SCC 71 (CanLII), [2005] 3 SCR 458, per Binnie J, at para 60
    Cambie Surgeries Corporation v British Columbia (Attorney General), 2017 BCSC 860 (CanLII), per Steeves J, at para 52
  2. Spence, ibid.
    see also R v Malmo-Levin, 2003 SCC 74 (CanLII), per Gonthier and Binnie JJ, at para 28
  3. Spence, ibid., at para 65("... 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, supra, at para 53
  5. Cambie, supra, at para 52
  6. Cambie, supra, at to 63 paras 59 to 63{{{3}}}
  7. Cambie, 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]

Language

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 CanLII 506 (ON CA), [1961] 30 CCC 398, per Morden JA
    R v Kuhn, 1970 CanLII 1033 (BC SC), 1 CCC (2d) 132, per Tyrwhitt-Drake J
    R v Thorburn, 2012 BCPC 323 (CanLII), per Challenger J
    R v Purcell, 1975 CanLII 1246 (NSCA), (1975) 24 CCC (2d) 139, (NSCA), per MacKeigan CJ - judge erred in not concluding that "police station" referred to the station in Halifax, NS
  2. R v Hayes, 1924 CanLII 514 (ON CA), 43 CCC 398 (Ont. C.A.), per Mulock CJ, at pp. 400-1
    McCormick v Greater Sudbury Police Service, 2010 ONSC 270 (CanLII), per Hill J, at para 129
  3. McCormick v Greater Sudbury Police Service, ibid., at para 129
    R v Letford, 2000 CanLII 17024 (ONCA), per Goudge JA, at para 22
    R v Ostrowski, 1958 CanLII 102 (ONSC), 122 CCC 196 (Ont. H.C.), per Stewart J at 196-7
  4. R v Khan, 2017 ABPC 101 (CanLII), per Robertson J, 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), per curiam
  6. R v Hamilton, 2011 ONCA 399 (CanLII), 271 CCC (3d) 208, per curiam, at paras 259, 277, and 279
    Any more precise triangulation may require expert opinion, see Hamilton, ibid., at para 280
    Ranger, ibid., at para 17
  7. R v Rennehan, 2005 NSSC 370 (CanLII), per Warner J - a "pickup" means a type of vehicle
    R v MacAulay, 1975 CanLII 1507 (NB CA), (1975), 11 NBR (2d) 44, 25 CCC (2d) 1 (NBSCAD), per Ryan JA, - "O.D'd" means to overdose
    R v O'Brien, 1987 CanLII 1162 (QC CA), per McCarthy JA - "hash" was short for "hashish" which is a name for canabis resin
  8. R v Tysowski, 2008 SKCA 88 (CanLII), per Jackson JA

Internet

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

Independent 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]

The use of reputable websites like google maps must not compromise trial fairness.[5]

In the US, Google Maps is regularly the subject of judicial notice for geography and distances.[6]

  1. R v Balen, 2012 ONSC 2209 (CanLII), per Hill J at 61
  2. R v Calvert2011 ONCA 379(*no CanLII links) at 2-8
  3. Generally: United States of America v Saad, 2004 CanLII 9931 (ON CA), 183 CCC (3d) 97 (Ont. C.A.), per Rosenberg JA, at p. 110 (leave to appeal refused, [2004] SCCA No 232)
    Ardoch Algonquin First Nation v Canada (Attorney General), 2003 FCA 473 (CanLII), [2004] 2 FCR 108, per Rothstein JA, at para 16
    AstraZeneca Canada Ltd. v Apotex Inc, 2003 FCA 487 (CanLII), 30 C.P.R. (4th) 431 (F.C.A.), per' Malone J, at paras 6 to 14
    R v Whittaker, 2001 ABQB 873 (CanLII), 301 AR 136 (Q.B.), per Veit J, at para 25
  4. R v Ghaleenovee, 2015 ONSC 1707 (CanLII), per Goldstein J, at para 1 ("Google Maps is incredibly powerful and useful. Images and maps downloaded from Google Maps are now very common in criminal trials and often accepted as authoritative. In fact, there is nothing wrong with a trial judge using Google Maps or some other indisputably accurate source for the purpose of taking judicial notice of a notorious fact. Google Maps has a function that permits a user to drill down to the actual Street View."), at para 20 ("I see no difficulty, however, with consulting a reputable website that is generally accepted as containing accurate information.")
    R v Robinson, 2010 ONCJ 576 (CanLII), per Bourque J, at para 30 ("I am satisfied that Google Earth has been accepted in the Ontario Court of Appeal and in the Superior Courts to show streets in Ontario as a readily accessible source of indisputable accuracy.")
    Yates v Fedirchuk, 2011 ONSC 5549 (CanLII), per Annis J
    R v Johnson, 2008 CanLII 64410 (ONSC), per Ricchetti J
    R v Johnson, 2009 ONCA 668 (CanLII), per curiam, per curiam - refuses google maps fresh evidence on foreseeability ground, but suggests maps could have been tendered at trial
    R v Hill, [2013] OJ No 3176 (Sup.Ct.)(*no CanLII links) , per Shaughnessy J
    R v Gregory, 2009 BCCA 26 (CanLII), per Chiasson JA
  5. Ghaleenovee, supra
  6. 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.

CEA


Note up: 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


Note up: 18

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) [want of proof of order in council] and the publication thereof shall be judicially noticed.
R.S., c. C-34, s. 715.
[annotation(s) added]

CCC


Note up: 781(1) and (2)

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), per Robertson J, at para 37 - citing Bryant, "Law of Evidence", 3rd Ed. s.19.36 , at p. 1276

Regulations

Any federal regulation that that has been published in the Royal Gazette shall be proven by judicial notice.[1]

The Statutory Instruments Act, RSC 1985, c. S-22 addresses this at s. 16:

Judicial notice

16 (1) A statutory instrument that has been published in the Canada Gazette shall be judicially noticed.

Evidence

(2) In addition to any other manner of proving the existence or contents of a statutory instrument, evidence of the existence or contents of a statutory instrument may be given by the production of a copy of the Canada Gazette purporting to contain the text of the statutory instrument.

Deemed publication in Canada Gazette

(3) For the purposes of this section,

(a) if a regulation is included in a copy of the Consolidated Regulations of Canada, 1978 purporting to be printed by the Queen’s Printer, that regulation is deemed to have been published in the Canada Gazette; and
(b) if a regulation is included in a copy of a revision of regulations purporting to be published by the Queen’s Printer, that regulation is deemed to have been published in the Canada Gazette.

R.S., 1985, c. S-22, s. 16 2000, c. 5, s. 59 2012, c. 19, s. 477.

SIA

For provincial regulations, there may be judicial notice of provincial regulations where the provincial Evidence Act requires it.[2]

  1. R v ‘Evgenia Chandris’, 1976 CanLII 178 (SCC), [1977] 2 SCR 97
    R v Boillard, 1978 CanLII 200 (SCC), [1978] 2 SCR 728, per Pigeon J
  2. R v Webb, 2008 NBPC 51 (CanLII), per Ferguson J

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), per Sigurdson J, at para 33
  2. R v Ostrowski, 1958 CanLII 102 (ONSC), 122 CCC 196 (Ont. H.C.), per Stewart J at 196-7
  3. R v Eagles, 1976 CanLII 1451 (ONSC), , 31 CCC (2d) 417, per Robins J

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


Note up: 655

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]

There is no obligation upon the Crown to accept any admission framed by the accused.[2]

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 permit the "taking of their evidence by admitting what their evidence would be as regards certain facts if those witnesses were called".[3]

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. [4]

An agreed statement of fact should be "clear, unambiguous, precise and unequivocal before acceptance by the court".[5]

Formal admissions cannot be made until there has been an allegation put against them. [6]

Effect of an Agreed 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".[7]

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.[8] The evidence covering the admitted facts and therefore must be excluded as irrelevant.[9]

Once an admission is made, it becomes part of the record. Unless changed by consent, it is "not easily disturbed"[10]

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.[11]

Consequence of Contradictory vica voce Evidence

Where a witness testifies to a matter that appears to contradict the agreement of facts, the Crown would then be required to call evidence on the points in issue.[12]

Withdraw of Admission

Once an admission of fact is made it cannot be withdrawn without leave of the court.[13]

Deviation From Admission

It is an error of law for a trial judge to depart from any formal admission without first notifying counsel and giving them an opportunity to make submissions on the issue.[14]

Subsequent Use of Admission

An admission under s. 655 can be used as an ordinary admission in a subsequent hearing for a mistrial.[15]

Contrast with Admission of Law

An admission of law or mixed fact and law is not binding upon a judge.[16] Such an admission can be withdrawn at any time, including on appeal.[17]

Admission of law includes opinion of whether evidence satisfies the legal requirements of legislative provision.[18]

  1. R v Castellani, 1969 CanLII 57 (SCC), [1970] SCR 910, per Cartwright CJ (9:0), at p. 315
    R v Dearborn, 1991 CanLII 7567 (SKQB), 91 Sask R 112, per Hrabinsky J affirmed, (1992) 97 Sask R 282, 1992 CanLII 8215 (SK CA), per Tallis JA
    R v Curry (1980), 38 NSR (2d) 575 (NSCA)(*no CanLII links) , at para 26
    R v Falconer, 2016 NSCA 22 (CanLII), per Beveridge JA (3:0), 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. Castellani, supra
  3. R v Matheson, 1981 CanLII 202 (SCC), [1981] 2 SCR 214, per Lamer J (7:0), at p. 217
  4. R v Miljevic, 2010 ABCA 115 (CanLII), per curiam (2:1), 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), per Ouellette J, at para 27
    R v Picariello, 1923 CanLII 536 (SCC), [1923] 2 DLR 706, 716 (SCC), 39 CCC 229
    R v Castellani, 1969 CanLII 57 (SCC), [1970] SCR 310, per Cartwright CJ (9:0), at p. 315-17 (SCR)
    R v Park, 1981 CanLII 56 (SCC), per Dickson J (9:0) at 73
    R v Matheson, 1981 CanLII 202 (SCC), per Lamer J (7:0) at 217
    R v Fertal, 1993 ABCA 277 (CanLII), (1993) 145 AR 225, per curiam (3:0), at paras 7 to 9
    R v Proctor, 1992 CanLII 2763 (MB CA), (1992) 5 Man. R. (2d) 217, 69 CCC (3d) 436, 447 (CA), per Twaddle JA
    R v Fong, 1994 ABCA 267 (CanLII), (1994) 157 AR 73 (CA), per curiam (3:0), at paras 6 to 8
    R v Desjardins, 1998 CanLII 6149 (BCCA), (1998) 110 BCAC 33, per Newbury JA (3:0), at para 18
  5. R v Asp, 2011 BCCA 433 (CanLII), per Frankel JA (3:0) , at para 40
  6. Castellani, supra
  7. R v Baksh, 2005 CanLII 24918, 199 CCC (3d) 201 (Ont. SCJ), per Hill J, at para 84 ("An admission validly made in the context of s. 655 of the Code is an acknowledgement that some fact alleged by the prosecution is true. Such an admission dispenses with proof of that fact by testimony or ordinary exhibit and the accused is not entitled to set up competing contradictory evidence in an attempt to disprove the judicial or formal admission. In other words, the formal admission is conclusive of the admitted fact...")
  8. R v Proctor, 1992 CanLII 2763 (MB CA), 69 CCC (3d) 436, per Twaddle JA, 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.”)
  9. R v Handy, 2002 SCC 56 (CanLII), per Binnie J
    R v Clermont, 1986 CanLII 26 (SCC), [1986] 2 SCR 131, per Lamer J (7:0), at p. 136
    R v Bosley, 1992 CanLII 2838 (ONCA), C. R. (4th) 347 (Ont. CA), per Doherty JA, at p. 360
    R v Proctor, 1992 CanLII 2763 (MB CA), 69 CCC (3d) 436 (Man. C. A.), per Twaddle JA, at p. 447
  10. R v Prince, 2017 BCSC 2642 (CanLII), per Ker J, at para 26
  11. Principled Exception to Hearsay
  12. R v Coburn, 1982 CanLII 3715 (ONCA), 66 CCC (2d) 463, per Howland CJ, at para 13 Prince, supra, at paras 20 to 21 R v Randhawa, 2020 BCPC 205 (CanLII), per Rideout J, at para 138
  13. R v RAH, 2017 PECA 5 (CanLII), per Mitchell JA (3:0), at para 51 citing Sopinka, Lederman and Bryan: The Law of Evidence in Canada, 4th Ed. (LexisNexis Canada Inc, at §19.2)
  14. R v Duong, 2019 BCCA 299 (CanLII), at para
  15. Baksh, supra, at para 118
  16. RAH, supra, at para 53
    Serra v Serra, 2009 ONCA 105 (CanLII), per Blair JA (3:0)
  17. RAH, supra, at para 53
    R v Baty, 1958 CanLII 93 (ONCA), per Morden JA (3:0)
    Highly v CPR, 1929 CanLII 410 (ONCA), [1930] 1 DLR 630, per Fisher JA (4:0)
  18. eg. RAH, supra, at paras 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


Note up: 149(1)

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), per Feldman JA (2:1), at para 43 - appealed on other grounds at 2013 SCC 35 (CanLII)
  3. R v Morin, 1988 CanLII 8 (SCC), [1988] 2 SCR 345, per Sopinka J (6:0) ("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 (CA), per Frankel JA (2:1), at para 88
    R v Menow, 2013 MBCA 72 (CanLII), per Cameron JA (3:0)
  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), 149 CCC (3d) 77 (SCC), per Major J (4:1), at para 2
  6. R v DW, 1991 CanLII 93 (SCC), [1991] 1 SCR 742, per Cory J (4:1), at pp. 757-8 (SCR) or 409 (CCC)
    Avetsyan, supra, at paras 18 to 22
    R v JR, 2014 QCCA 869 (CanLII), [2014] Q.J. No 3957 (CA), per Hesler CJ, 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), per Cromwell JA (3:0), at paras 23 to 25
  8. Chittick, ibid., at paras 23 to 25
  9. R v MDR, 2015 ONCA 323 (CanLII), per curiam (3:0)
    R v Fleig, 2014 ABCA 97 (CanLII), per curiam (3:0), 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), per Mainella JA (3:0), (“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]

The determination of guilt must not be determined on the basis of a mere credibility contest or choice of preference between witnesses.[4]

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."[5]

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.[6]

  1. R v DAI, 2012 SCC 5 (CanLII), per McLachlin CJ (6:3), at para 72
    R v Francois, 1994 CanLII 52 (SCC), per McLachlin J (4:3), at p. 837 (or para 14)
    R v BC, 2011 ONCA 604 (CanLII), per curiam (3:0), at para 5 leave refused
    R v MR, 2010 ONCA 285 (CanLII), per curiam (3:0), at para 6
    R v DR, 1996 CanLII 207 (SCC), 107 CCC (3d) 289 (SCC), per L’Heureux-Dube J (dissenting in result), at p. 318
    R v Hunter, 2000 CanLII 16964 (ONCA), [2000] OJ No 4089 (ONCA), per curiam, at para 5
    R v Abdullah, 1997 CanLII 1814 (ONCA), [1997] OJ No 2055 (CA), per Carthy and Goudge JJA, at paras 4 to 5
    R v Mathieu, 1994 CanLII 5561 (QC CA), 90 CCC (3d) 415 (Que CA), per Brossard JA and Fish JA, at para 61 aff’d 1995 CanLII 79 (SCC), [1995] 4 SCR 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 CanLII 6819 (ONCA), 36 CCC (3d) 50, per Cory JA
  3. R v Howe, 2005 CanLII 253 (ONCA), 192 CCC (3d) 480, per Doherty JA (3:0), at para 44 ("A trier of fact is entitled to accept parts of a witness’s evidence and reject other parts. Similarly, the trier of fact can accord different weight to different parts of the evidence that the trier of fact has accepted.")
  4. R v Avetsyan, 2000 SCC 56 (CanLII), [2000] 2 SCR 745, per Major J (4:1), at pp. 85 to 87
  5. R v Mah, 2002 NSCA 99 (CanLII), per Cromwell JA (3:0), at para 41
  6. R v Dubois, 1986 CanLII 4683 (ONCA), 27 CCC (3d) 325 (ONCA), per Morden JA (3:0)

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]

Stereotype and prejudice

The judge may rely on reason, common sense, life experience, and logic in assessing credibility but cannot rely on "stereotypical assumptions and "generalizations lacking in an evidentiary foundation".[4]

  1. R v Campbell, 1995 CanLII 656 (ONCA), 24 OR (3d) 537, per Finlayson JA (3:0)
  2. R v Chan, 1989 ABCA 284 (CanLII), 52 CCC (3d) 184, per curiam (3:0)
    R v CWH, 1991 CanLII 3956 (BC CA), 68 CCC (3d) 146, per Wood JA (3:0)
    R v Miller, 1991 CanLII 2704 (ONCA), 68 CCC (3d) 517, per curiam (3:0)
  3. R v AG, 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 (9:0), at pp. 819-820
  4. R v Pastro, 2021 BCCA 149 (CanLII), per Fitch JA, at para 52

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]

Findings of witness credibility is strictly factual.[2]

An appellate court should not interfere with credibility assessments "except in very particular circumstances".[3]

Where a legal error is made in assessing credibility, there is no deference and may require intervention.[4]

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.[5] The same goes for interpreting the legal effect of a finding of fact.[6]

Finding of fact based on an irrelevant consideration is a question of law and reviewable on a standard of correctness.[7]

  1. R v Burke, 1996 CanLII 229 (SCC), per Sopinka J(7:0), at para 7
  2. R v RP, 2012 SCC 22 (CanLII), per Deschamps J (5:2), at para 10 ("Whereas the question whether a verdict is reasonable is one of law, whether a witness is credible is a question of fact. A court of appeal that reviews a trial court’s assessments of credibility in order to determine, for example, whether the verdict is reasonable cannot interfere with those assessments unless it is established that they “cannot be supported on any reasonable view of the evidence”) [quotation marks removed])
  3. RP, ibid., at para 10
  4. R v Luceno, 2015 ONCA 759 (CanLII), per Weiler JA (3:0), at para 34
  5. R v JMH, 2011 SCC 45 (CanLII), per Cromwell J (9:0), at paras 24 to 32
  6. JMH, ibid., at paras 24 to 32
  7. R v Carrano, 2011 ONSC 7718 (CanLII), per Trotter J, 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), per Blair JA (2:1), at para 69
    R v HC, 2009 ONCA 56 (CanLII), 241 CCC (3d) 45, per Watt JA (3:0), at paras 41 to 44
    R v Slatter, 2019 ONCA 807 (CanLII), 382 CCC (3d) 245, per Pepall JA, at paras 117 to 118 ("...credibility and reliability are different concepts. Credibility deals with a witness's veracity or truthfulness, while reliability addresses the accuracy of a witness's testimony. Accuracy engages consideration of a witness's ability to accurately observe, recall, and recount..."_
  2. R v JVD, 2016 ONSC 4462 (CanLII), per Tzimas J, at para 92
    R v Gostick, 1999 CanLII 3125 (ONCA), [1999] OJ No 2357, per Finlayson JA, at paras 15 and 16
    R v Vickerson, 2005 CanLII 23678 (ONCA), [2005] OJ No 2798, per Weiler JA, at para 28 (ONCA)
    R v SC, 2012 CanLII 33601 (NLSCTD), [2012] NJ No 210, 324 Nfld & PEIR 19, per Stack J
  3. HC, supra, at para 41 ("Credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’s testimony. Accuracy engages consideration of the witness’s ability to accurately [1] observe; [2] recall; and [3] recount events in issue."
  4. HC, supra, at para 41
  5. R v Cunsolo, 2011 ONSC 1349 (CanLII), per Hill J, at paras 228 to 232
    R v Francois, 1994 CanLII 52 (SCC), per McLachlin J (4:3), at para 14
    DR et al. v The Queen, 1996 CanLII 207 (SCC), 107 CCC (3d) 289 (SCC), per L'Heureux-Dubé J dissenting in result, at p. 318
    R v MR, 2010 ONCA 285 (CanLII), per curiam (3:0), at para 6
    R v Hunter, 2000 CanLII 16964 (ONCA), [2000] OJ No 4089 (CA), per curiam (3:0), at para 5
    R v Abdallah, 1997 CanLII 1814 (ONCA), [1997] OJ No 2055 (CA), per Carthy and Goudge JJA, at paras 4, 5
    R v Cook, 2010 ONSC 1188 (CanLII), per Hill J
  6. Cunsolo, supra, at para 228
    R v Howe, 2005 CanLII 253 (ONCA), [2005] OJ No 39 (CA), per Doherty JA (3:0), 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 (ONCA), OR (3d) 514, per Doherty JA, at para 33
    R v NLP, 2013 ONCA 773 (CanLII), per Lauwers JA (3:0), at para 25
  2. R v Woollam, 2012 ONSC 2188 (CanLII), per Durno J, at paras 90 to 111 gives detailed canvassing of use of term "reliability" also referring to see R v Murray, 1997 CanLII 1090 (ONCA), 115 CCC (3d) 225 (Ont.C.A.), per Charron JA (3:0)
    R v Thurston, [1986] OJ No 2011 (Gen. Div.)(*no CanLII links)
    R v KTD, [2001] OJ No 2890 (SCJ)(*no CanLII links)
  3. R v Gagnon, 2006 SCC 17 (CanLII), per Bastarache and Abella J (3:2), at paras 19 to 21
    R v Mesaros, 2014 ONSC 3445 (CanLII), per Campbell J, at para 21
    R v Wadforth, 2009 ONCA 716 (CanLII), per Watt JA (3:0), at paras 66 to 67
  4. R v White, 1947 CanLII 1 (SCC), [1947] SCR 268
    R v SIC, 2011 ABPC 261 (CanLII), per LeGrandeur J, at para 19
  5. R v Lunz, 2013 ABQB 150 (CanLII), per Topolniski J
    White, supra, at paras 8 to 10
  6. R v JFD, 2017 BCCA 162 (CanLII), per Dickson JA (3:0), at para 38
  7. Mesaros, supra, at para 21
    See: R v Gagnon, 2006 SCC 17 (CanLII), per Bastarache and Abella J (3:2), at para 20 (It is not always possible to "articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events:")
    R v Dinardo, 2008 SCC 24 (CanLII), per Charron J (7:0), at para 26
    R v REM, 2008 SCC 51 (CanLII), per McLachlin CJ (7:0), at para 49 ("[A]ssessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization:")
    Wadforth, supra, at para 66
    R v H(W), 2013 SCC 22 (CanLII), [2013] 2 SCR 180, per Cromwell J (7:0), at paras 39 to 40
  8. R v Wylie, 2012 ONSC 1077 (CanLII), [2012] OJ No 1220 (S.C.J), per Hill J
    R v Selles, 1997 CanLII 1150 (ONCA), 101 OAC 193 (CA), per Finlayson JA (3:0), at pp. 207-8
    R v NM, 1994 CanLII 1549 (ONCA), [1994] OJ No 1715 (CA), per curiam (3:0), at para 1
  9. Wylie, supra, at para 84
  10. R v Braich, 2002 SCC 27 (CanLII), per Binnie J (7:0), at para 23
  11. R v Carter, 2005 BCCA 381 (CanLII), per Thackray JA (3:0)
    R v Paris, 2000 CanLII 17031 (ONCA), 150 CCC (3d) 162 (Ont. C.A.), per Doherty JA (3:0)
  12. R v Clark, 2012 CMAC 3 (CanLII), per Watt JA, at para 40}
  13. R v Cameron, 2017 ABQB 217 (CanLII), per Jeffrey J, at para 28
    Faryna v Chorny, 1951 CanLII 252 (BCCA), {{{4}}}, per O'Halloran JA ("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. R v JMH, 2009 ONCA 834 (CanLII), per Watt JA (3:0) – 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), per Bennett JA (3:0), at paras 23 to 32 - no need for instructions on adverse inference on rejected alibi
  2. R v Hibbert, 2002 SCC 39 (CanLII), per Arbour J (7:2), at paras 57 to 58
    R v Coutts, 1998 CanLII 4212 (ONCA), 126 CCC (3d) 545, per Doherty JA (3:0), at paras 15 to 16
    R v O’Connor, 2002 CanLII 3540 (ONCA), OR (3d) 263 (CA), per O'Connor ACJ (3:0), at para 17
  3. R v Nedelcu, 2012 SCC 59 (CanLII), per Moldaver J (6:3), 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), per Watt JA (3:0), at para 78
  6. Cyr, ibid., at para 78
    O'Connor, supra, at para 21
    Coutts, supra, at paras 15 to 16
  7. O'Connor, supra, 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 CanLII 16082 (ONCA), 188 OAC 37, 187 CCC (3d) 213, per Rosenberg JA, 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 paras 24, 26
  10. R v TM, 2014 ONCA 854 (CanLII), 318 CCC (3d) 153, per Laskin JA (3:0), at para 68
    R v JA, 2010 ONCA 491 (CanLII), 261 CCC (3d) 125, per MacPherson JA (2:1), at paras 22 to 23
    R v M, 2017 ONSC 5537 (CanLII), per Roger J, at para 30
  11. R v JS, 2018 ONCA 39 (CanLII), per Roberts JA (3:0), at para 63
    R v Oland, 2016 NBCA 58 (CanLII), per Drapeau CJ (3:0), at paras 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 or other hearings.
    2. External inconsistencies: consider the contradictory and corroborative evidence between witnesses or between testimony and documentary evidence;
  2. Bias and Partiality: assess the partiality of witnesses due to kinship, hostility, self-interest, interest in outcome, or any other motive to favour or injure the accused;
    1. Motive to Deceive
  3. Capacity: consider the capacity of the witness to relate their testimony:
    1. ability and opportunity to observe the factual matters that the are testifying to;
    2. ability to remember the events observed based on emotional importance to the witness of the observation at the time they were made and the ability to refresh based on prior recordings of their recollections. Also consider the timing at which they were asked to record their recollection and the time that they were prompted of the importance of the observation. Consider as well the person's general frailties and capacity for recollection 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 gave evidence that was forthright, candid, straightforward and was responsive to questions. Did the evidence flow in a logical and consistent manner 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 the testimony accords or is in "harmony with the preponderance of probabilities which a practical and informed person would find reasonable given the particular place and conditions". 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.[3]
    1. considering whether a persons' words and actions are explained and whether it matches their emotional state at the time[4]
    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.[5]
    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.[6]
    6. whether the explanation contains an inordinate level of complexity.[7]
  10. Where applicable, was the witness able to give admissions against interest? Or were there signs of self-serving?
  1. e.g. see list in R v Jacquot, 2010 NSPC 13 (CanLII), per Tax J, at para 40
    Bake v Aboud, 2017 NSSC 42 (CanLII), per Fogeron J, at para 13 R v Comer, 2006 NSSC 217 (CanLII), per Cacchione J, at para 96
    R v Snow, 2006 ABPC 92 (CanLII), per Semenuk J, at para 70
    R v McKay, 2011 ABPC 82 (CanLII), per Anderson J, at para 14
    R v Abdirashid, 2012 ABPC 22 (CanLII), [2012] A.J. No 131, per Bascom J, at paras 8 to 11
    Baker-Warren v Denault, 2009 NSSC 59 (CanILI), 882 APR 271, per Forgeron J, at para 19
    Faryna v Chorny, 1951 CanLII 252 (BCCA), [1952] 2 DLR 354 (BCCA), per O'Halloran JA, at paras 9, 10
    R v DFM, 2008 NSSC 312 (CanLII), per Murphy J, at para 11 citing R v Ross2006 NSPC 20(*no CanLII links) , at para 6
  2. e.g. R v McGrath, 2014 NLCA 40 (CanLII), per Rowe JA (3:0), 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. Faryna v Chorny, 1951 CanLII 252 (BCCA), [1952] 2 DLR 354 (BCCA), per O'Halloran JA
  4. A judge is entitled to consider the emotional condition of the accused for consistency with the claimed offence:
    R v Murphy, 1976 CanLII 198 (SCC), [1977] 2 SCR 603, per Spence J, at p. 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 (CA)
    R v Huang, [1989] BCJ No 1296 at 7 (CA)(*no CanLII links) , per Macdonald JA
    R v Dorsey, [1987] OJ No 349(*no CanLII links) , at pp. 4 (CA)
  5. R v Mete, [1998] OJ No 16 (OCJ)(*no CanLII links)
  6. e.g. McGrath, supra, at para 19
  7. e.g. McGrath, supra, at para 19

Inconsistencies

See also: Prior Inconsistent Statements

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

Use on Inconsistencies in Cross-examination

Cross-examining a witness on a prior inconsistent statement may only be used to go to the live issue of credibility.[2] The prior statement cannot be used for the truth of its contents unless the witness adopts the statement.[3]

It is necessary that the judge provide limiting instructions on the use of a prior inconsistent statement.[4]

Evaluation of Seriousness of Inconsistencies

Generally speaking, inconsistencies in a witnesses evidence must be evaluated before the judge can accept it.[5]

Inconsistencies on peripheral matters and not to the "essence" of the charges and so may be excused.[6]

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".[7]

The trial judge does not need to address every inconsistency. [8]

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 effect 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. [9] Such inconsistencies should be considered in the context of the witnesses age at the time of the events.[10]

The courts should be hesitant to devalue a witnesses testimony based on minor or “perceived inconsistencies”.[11] The benefit of the doubt should be given to the witness.[12]

A "series" of "minor inconsistencies" may become "quite significant" such that the trier of fact may create a reasonable doubt on the reliability of the witness.[13]

There is no "rule" that determines when minor inconsistencies collectively amount to reason to find doubt in the witnesses overall credibility.[14]

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".[15]
  • 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.[16]
  • where evidence is "incredible", there must be more undisputed facts to support this claim[17]

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".[18]

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.[19]

Resolving Inconsistencies

The judge is obligated to consider all the evidence as a whole, especially where credibility is at issue.[20] However, inconsistencies of facts that are not necessary to determine the case do not need to be resolved.[21]

  1. R v CH, 1999 CanLII 18939 (NL CA), 182 Nfld. & PEIR 32, 44 WCB (2d) 162 (Nfld. C.A.), per Wells CJ, at para 23
    R v MG, 1994 CanLII 8733 (ONCA), [1994] OJ No 2086, per Galligan JA (2:1), at para 27, appeal discontinued [1994] SCCA No 390, at para 27 ("Probably the most valuable means of assessing the credibility of a crucial witness is to examine the consistency between what the witness said in the witness-box and what the witness said on other occasions, whether on oath or not.")
  2. R v GH, 2020 ONCA 1 (CanLII), at para 32 ("A prior inconsistent statement can be used to cross-examine a witness. It can only be used on the issue of credibility.")
  3. GH, ibid., at para 32
  4. GH, ibid., at para 32
    Deacon v The King, 1947 CanLII 38 (SCC), [1947] SCR 531, per Kerwin J
    McInroy and Rouse v R, 1978 CanLII 175 (SCC), [1979] 1 SCR 588, per Martland J
    R v Mannion, 1986 CanLII 31 (SCC), [1986] 2 SCR 272, per McIntyre J
  5. e.g. R v Wigle, 2009 ONCA 604 (CanLII), per Lang JA (3:0) - conviction overturned because judge failed to explain why complainant's inconsistencies did not affect credibility.
    see also CH, supra, at para 23
  6. R v Broesky, 2014 SKCA 36 (CanLII), per Ryan-Froslie JA (3:0), at para 3
    R v Lindsay, 2012 SKCA 33 (CanLII), per Jackson JA (3:0)
  7. CH, supra, at para 29
    RWB
  8. R v RS, 2014 NSCA 105 (CanLII), per Scanlan JA (3:0), at para 24
  9. ??
  10. R v DLW, 2013 BCSC 1327 (CanLII), per Romilly J, at para 129
  11. R v AF, 2010 ONSC 5824 (CanLII), per Hill J, at para 87
    e.g. DLW, supra, at para 128
  12. R v Tran, 1994 CanLII 56 (SCC), per Lamer CJ (7:0), at p. 248
  13. R v RWB (1993), 24 BCAC 1, 40 WAC 1 (BCCA)(*no CanLII links) at pp. 9-10 , per Rowles JA (" While it is true that minor inconsistencies may not diminish the credibility of a witness unduly, a series of inconsistencies may become quite significant and cause the trier of fact to have a reasonable doubt about the reliability of the witness's evidence. ")
  14. RWB, ibid. ("There is no rule as to when, in the face of inconsistency, such doubt may arise, but at least the trier of fact should look to the totality of the inconsistencies in order to assess whether the witness’s evidence is reliable.")
  15. R v FE, 1999 BCCA 414 (CanLII), BCAC 161, per Hollinrake JA (3:0)
    R v Ross, 2002 BCSC 445 (CanLII), per Taylor J
  16. R v FJU, 1994 CanLII 1085 (ONCA), 90 CCC (3d) 541, per Osborne JA - appealed to 1995 CanLII 74 (CanLII) on different grounds
  17. R v GB, 1990 CanLII 115 (SCC)
  18. R v Smith, 2018 ABQB 199 (CanLII), per Goss J, at para 50
    R v MG, 1994 CanLII 8733 (ONCA), [1994] OJ No 2086, per Galligan JA (2:1), at paras 2327 (" But where the inconsistency involves a material matter about which an honest witness is unlikely to be mistaken, the inconsistency can demonstrate a carelessness with the truth. The trier of fact is then placed in the dilemma of trying to decide whether or not it can rely upon the testimony of a witness who has demonstrated carelessness with the truth.")
    R v AM, 2014 ONCA 769 (CanLII), per curiam (3:0), at para 12
  19. R v SW, 1994 CanLII 7208 (ONCA), OR (3d) 509 (CA), per Finlayson JA (3:0), at p. 517
    R v Oziel, 1997 CanLII 549 (ONCA), [1997] OJ No 1185 (CA), per curiam (3:0), at paras 8, 9
    R v Norman, 1993 CanLII 3387 (ONCA), 87 CCC (3d) 153, per Finlayson JA (3:0), at pp. 172-4
  20. McCabe v British Columbia (Superintendent of Motor Vehicles), 2019 BCCA 77 (CanLII), per Saunders JA
  21. e.g. R v Drydgen, 2021 BCCA 125 (CanLII), {{{3}}}, per Butler JA, at para 40

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] The absence should not be considered the same as an absence of a motive to fabricate.[5] Suggesting that it is true unfairly bolster's the witness's credibility. Corrective jury instructions should be given if such a suggestion is made.[6]

Evidence establishing motive is always admissible, but it should not be mistaken for evidence that merely shows a history of incidents between parties.[7] The Crown may present evidence that suggests an absence of any motive on the part of the complainant to fabricate their story.[8] This can include presenting evidence of the relationship between complainants or between the accused and a single complainant.[9]

Proven absence of motive is "always an important fact in favour of the accused".[10]

Questions that go beyond what the witness would have known and invite speculation as to the motive is improper.[11] This includes asking the accused to explain why the complainant would make allegations against them.[12]

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".[13]

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.[14]

  1. see R v Jackson, 1995 CanLII 3506 (ONCA), [1995] OJ No 2471 (CA), per curiam (3:0)
    R v LeBrocq, 2011 ONCA 405 (CanLII), [2011] OJ No 2323, per curiam (3:0)
    R v Plews, 2010 ONSC 5653 (CanLII), per Hill J, at para 335
    R v KGB, 1993 CanLII 116 (SCC), 79 CCC (3d) 257 (SCC), per Lamer CJ, at p. 300
    R v Greer, 2009 ONCA 505 (CanLII), per curiam (3:0), at para 5
  2. R v Batte, 2000 CanLII 5750 (ONCA), OR (3d) 321 (CA), per Rosenberg JA (3:0), at paras 120 to 124
    R v Krack, 1990 CanLII 10976 (ONCA), 56 CCC (3d) 555, per Lacouriciere JA (3:0), at pp. 561-562 (CCC)
    Plews, supra, at para 335
  3. Batte, supra, at paras 120 to 124
  4. R v LL, 2009 ONCA 413 (CanLII), per Simmons JA (3:0), at paras 40 to 42
  5. LL, ibid., at para 44 ("When dealing with the issue of a complainant’s motive to fabricate, it is important to recognize that the absence of evidence of motive to fabricate is not the same as absence of motive to fabricate. As Rowles J.A. stated in R v B. (R.W.) [citation omitted] at para. 28: “it does not logically follow that because there is no apparent reason for a witness to lie, the witness must be telling the truth.” Put another way, the fact that a complainant has no apparent motive to fabricate does not mean that the complainant has no motive to fabricate")
  6. see LL, ibid., at para 53
  7. R v Barbour, 1938 CanLII 29 (SCC), [1938] SCR 465, per Duff CJ, at p. 5
  8. R v AJS, 1998 CanLII 18004 (NL CA), per Steele JA
    R v TM, 2014 ONCA 854 (CanLII), 318 CCC (3d) 153, per Laskin JA (3:0), at para 40 (In a historical sex assault where credibility is at issue, "[t]he Crown was entitled to try to show the absence of a motive to fabricate, because it is a factor in the assessment of credibility.")
  9. TM, supra ("...questions that explored the nature of the relationship between the appellant and the complainants, or between the complainants themselves, were proper.")
    R v GH, 2020 ONCA 1 (CanLII), per Benotto JA, at para 25
  10. R v Lewis, 1979 CanLII 19 (SCC), [1979] 2 SCR 821, per Dickson J, at pp. 12-14
  11. GH, supra, at para 25
  12. GH, supra, at paras 25 to 28
  13. R v Laboucan, 2010 SCC 12 (CanLII), [2010] 1 SCR 397, per Charron J, at para 22
  14. R v BJT, 2000 SKQB 572 (CanLII), [2000] SJ No 801, per Baynton J, at para 19
    R v Chen, 2016 ABQB 644 (CanLII), per Michalyshyn J, at para 122
    R v JR, 2006 CanLII 22658 (ONSC), per T Ducharme J, 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 (ONSC), [2005] OJ No 2870 (SCJ), per Fuerst J
  2. e.g. R v Crocker, 2015 CanLII 1001 (NLPC), per Gorman J

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

A subjective view of demeanour can be unreliable indicator of accuracy.[3] It should only be considered "with caution".[4]

  1. par113>, retrieved on 2021-04-22

</ref>

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

A judge should not decide matters of credibility on the strength of demeanour evidence alone as it would be too "dangerous".[6]

Demeanour can be affected by factors including "culture of the witness, stereotypical attitudes, and the artificiality of and pressures associated with a courtroom".[7]

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.[8]

A Judge should consider how "unfamiliar and stressful" a courtroom is when testifying which may affect demeanour. It would follow then to consider some sort of "baseline" on how they react in stressful situations.[9]

Decision Exclusively on Demeanour

A decision on credibility based solely or predominantly on demeanour of a witness is an error.[10]

Demeanour evidence alone is not always considered a proper manner of assessing credibility.[11]

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.[12]

Demeanour Outside of Witness Box

A court may only take "modest reliance" on demeanour evidence when the witness is not in the witness box.[13] The use of this demeanour evidence to make significant findings of credibility against the accused is a reverseable error.[14] The risks associated with misinterpreting demeanour is even stronger when they are simply sitting in the courtroom.[15]

  1. R v NS, 2010 ONCA 670 (CanLII), (2010) 102 OR (3d) 161 (CA), per Doherty JA, at paras 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 OR (3d) 1 (CA), per Doherty JA, at para 66
    R v Smith, 2010 ONCA 229 (CanLII), per Sharpe JA (3:0), at para 11
    R v GG, 1997 CanLII 1976 (ONCA), 115 CCC (3d) 1, per Finlayson JA (2:1), at pp. 6-8
    R v P.-P.(S.H.), 2003 NSCA 53 (CanLII), 176 CCC (3d) 281 (NSCA), per Hamilton JA, at paras 28 to 30
    R v Levert, 2001 CanLII 8606 (ONCA), 159 CCC (3d) 71, per Rosenberg JA (3:0), at pp. 80-2
    R v Norman, 1993 CanLII 3387 (ONCA), (1993) 16 OR (3d) 295 (Ont.C.A.), per Finlayson JA, at para 55
  4. R v WJM, 2018 NSCA 54 (CanLII), per Beveridge JA, at para 45
    R v Ramos, 2020 MBCA 111 (CanLII), at para 113 ("...in assessing credibility, caution should be exercised in reliance on demeanour evidence; undue weight should not be placed on it.")
  5. R v Jeng, 2004 BCCA 464 (CanLII), per Ryan JA, at para 54
  6. R v JAA, 2011 SCC 17 (CanLII), per Charron J (5:2), 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.”)
    WJM, supra, at para 45 ("It is not infallible and should not be used as the sole determinant of credibility.")
  7. R v Dyce, 2017 ONCA 123 (CanLII), per Juriansz JA, at para 12
    R v Rhayel, 2015 ONCA 377 (CanLII), per Epstein JA, at para 85 ("It is now acknowledged that demeanour is of limited value because it can be affected by many factors including the culture of the witness, stereotypical attitudes, and the artificiality of and pressures associated with a courtroom. One of the dangers is that sincerity can be and often is misinterpreted as indicating truthfulness.")
  8. R v Shields, 2017 BCPC 395 (CanLII), per Doherty J, at para 74
    R v DTO, 2018 BCPC 120 (CanLII), per MacCarthy J, at para 125
  9. R v TM, 2014 ONCA 854 (CanLII), 318 CCC (3d) 153, per Laskin JA (3:0), per Laskin JA, at para 64
  10. e.g. R v JF, 2003 CanLII 52166 (ONCA), 177 CCC (3d) 1, per Feldman JA, at para 101
    R v Norman, 1993 CanLII 3387 (ONCA), per Finlayson JA (3:0) at 173
    R v Gostick, 1999 CanLII 3125 (ONCA), per Finlayson JA (3:0) at 59-61
    R v KA, 1999 CanLII 3756 (ONCA), 137 CCC (3d) 554, per Rosenberg JA (3:0), at para 44
    R v Bourgeois, 2017 ABCA 32 (CanLII), per curiam (2:1), at para 21 (it is error of law "when a trial judge’s assessment of the witness’s demeanour becomes the sole or dominant basis for determining credibility, and where the trial judge appears to be unaware of the risks associated with over-reliance on demeanour") aff’d 2017 SCC 49 R v Ramos, 2020 MBCA 111 (CanLII), per Mainella JA, at para 113(complete citation pending)
  11. e.g. R v Penney, 2002 NFCA 24 (CanLII), [2002] NJ No 98 (NLCA), per Wells CJ, at para 61
  12. see R v WS, 1994 CanLII 7208 (ONCA), 90 CCC (3d) 242, per Finlayson JA (3:0), at p. 250
    Faryna v Chorny, 1951 CanLII 252 (BCCA), [1952] 2 DLR 354 (BCCA), per O'Halloran JA, 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")
  13. TM, supra, at para 69
  14. R v NM, 1994 CanLII 1549 (ONCA), [1994] OJ No 1715 (CA), per curiam (3:0), at para 58
  15. TM, ibid., at para 64

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]

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, 268 CCC (3d) 135, per Charron J (5:2), 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), per Kirkpatrick JA (3:0), 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), per Healey J, 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 SCC 58 (CanLII), [2002] 3 SCR 33, per Binnie J (7:2)
    R v Burke, 1996 CanLII 229 (SCC), [1996] 1 SCR 474, 105 CCC (3d) 205, per Sopinka J (7:0), at para 45
  2. e.g. R v Almasi, 2016 ONSC 2943 (CanLII), per Goldstein J, 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 J, 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 or Against 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]

There is no rules that says that the trier of fact has to believe or disbelieve any part of a witnesses testimony.[7]

  1. R v Ogden, 2011 NSCA 89 (CanLII), per Saunders JA (3:0), at para 10
    R v WH, 2011 NLCA 59 (CanLII), per Barry JA
  2. R v Jenner, 2005 MBCA 44 (CanLII), 195 CCC (3d), per Monnin JA (3:0), at para 21
  3. R v Costache, 2013 ONSC 4447 (CanLII), per Campbell J, at para 34
  4. Costache, ibid., at para 34
  5. See: R v Gunsch, 2013 ABPC 104 (CanLII), per Rosborough J, at paras 27 to 37
  6. R v Luciano, 2011 ONCA 89 (CanLII), per Watt JA (3:0)
    R v Thain, 2009 ONCA 223 (CanLII), per Sharpe JA (3:0), at para 32
    R v Downey, 2013 NSCA 101 (CanLII), per Farrar JA (3:0), at paras 15 to 20
  7. Novak Estate (Re), 2008 NSSC 283 (CanLII), 860 APR 84, at para 37 ("There is no principle of law that requires a trier of fact to believe or disbelieve a witness’s testimony in its entirety. On the contrary, a trier may believe none, part or all of a witness’s evidence, and may attach different weight to different parts of a witness’s evidence")


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), per Roger J, 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), per Blair JA (3:0), 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), per Larlee JA (3:0)
  2. R v Castelein and Berthelette, 2017 MBQB 173 (CanLII), per Greenberg J, 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), per Blair JA (3:0), 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), per Hill J
    R v Tran, 1994 CanLII 56 (SCC), per Lamer CJ (7:0), 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), per curiam (3:0), at para 13 ("Some confusion …[is] inevitable" and can result in a record that is “is often unclear”)
    R v Zewari, 2005 CanLII 16078 (ONCA), [2005] OJ No 1953 (CA), per curiam (3:0), at para 4 (trial judge properly averted to difficulty in evaluating credibility when an interpreter is required)
    Serrurier v City of Ottawa, 1983 CanLII 1628 (ONCA), , 42 OR (2d) 321 (CA), per Grange JA (3:0), 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), per curiam (3:0), at para 13
    R v Zewari, 2005 CanLII 16078 (ONCA), [2005] OJ No 1953 (CA), per curiam (3:0), 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), per Romilly J, at para 131
  2. DLW, ibid., at para 131
    R v RW, 1992 CanLII 56 (SCC), [1992] 2 SCR 122, per McLachlin J (6:0)
    R v Cuthbert, 1996 CanLII 8341 (BCCA), per Lambert JA (2:1), at para 23
  3. R v Plews, 2010 ONSC 5653 (CanLII), per Hill J, at para 329
    R v Curtis, 2000 BCCA 618 (CanLII), per Hall JA, at 9 paras 8, 9{{{3}}}

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] OJ No 2592, per Fournier J, at para 16
  2. Odgers, ibid., at para 16
  3. Schaeffer v Wood, 2011 ONCA 716 (CanLII), 107 OR (3d) 721, per Sharpe JA (3:0), at paras 69 to 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] OJ 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), per Reinhardt J, at para 53 -- police officer evidence entirely ignored due to poor notes
    R v Odgers, 2009 ONCJ 287 (CanLII), per Fournier J
    R v Machado, 2010 ONSC 277 (CanLII), per Durno J at 120-123
  9. R v Lozanovski, 2005 ONCJ 112 (CanLII), [2005] OCJ 112, per Feldman J, 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 (ONCA), per Morden JA (3:0)
    R v Bennett, 2005 OJ No 4035 (ONCJ) (*no CanLII links)
  13. Khan, supra, at paras 17 to 18
    R v Hayes, 2005 OJ No 5057(*no CanLII links) at 9
    R v McGee, 2012 ONCJ 63 (CanLII), per Grossman J, at para 66
  14. R v Noureddine, 2014 ONCJ 537 (CanLII), [2014] OJ No 1397 (OCJ), per Selkirk J, at paras 12 to 17
  15. R v Bero, 2014 ONCJ 444 (CanLII), per Cooper J

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]

When assessing expert evidence, the jury is entitled to accept or reject any part of the testimony and determine how much waits to be given just as it is permitted for lay witness evidence.[2]

  1. e.g. R v Boswell, 2011 ONCA 283 (CanLII), per Cronk JA (3:0)
  2. R v Smithers, 1977 CanLII 7 (SCC), [1978] 1 SCR 506, per Dickson J at p. 518 (SCR)

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 (ONCA), 15 CCC (2d) 342, per Jessup JA
  2. R v Finnessey, 1906 CanLII 101 (ONCA), 10 CCC 347 (Ont. C.A.), per Osler JA
    R v Lindlau, 1978 CanLII 2366, 40 CCC (2d) 47 (Ont. C.A.), per Martin JA
    Attorney General v Hitchcock , [1847] 1 Ex. 91, 154 E.R. 38 (UK)
    Finnessey, supra at pp. 351-2
    R v S(A), 2002 CanLII 44934 (2002), 159 OAC 89, 165 CCC (3d) 426 (CA), per Feldman JA, at paras 28 to 32
    R v Mohammed, (1991), 72 Man. R. (2d) 39 (Q.B.), aff’d , (1992), 83 Man. R. (2d) 162 (CA)(*no CanLII links)
    R v Anderson v Harding (1985), 3 CPC (2d) 87 (Ont. Dist. Ct.)(*no CanLII links)
    R v R(D), 1996 CanLII 207 (SCC), [1996] 2 SCR 291, per Major J, at para 43
    R v McDonald, 2007 ABCA 53 (CanLII), per curiam
  3. R v Creelman and Tupper (1893) 25 NSR 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 (ONCA), 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], 153.1 [sexual exploitation of disabled] and 155 [incest], subsections 160(2) [compelling 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 with a weapon or causing bodily harm] 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; 2019, c. 25, s. 99.
[annotation(s) added]

CCC


Note up: 275

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, per Cory J (4:1)
  2. R v JHS, 2008 SCC 30 (CanLII), 231 CCC (3d) 302, per Binnie J (7:0), at para 9
  3. R v Van, 2009 SCC 22 (CanLII), [2009] 1 SCR 716, per LeBel J (5:4), at para 23
    W(D), supra, at p. 757
  4. R v CLY, 2008 SCC 2 (CanLII), per Abella J (4:3), at para 8
  5. R v Daley, 2007 SCC 53 (CanLII), per Bastarache J
    R v Smith, 2018 ABQB 199 (CanLII), per Goss J, at para 49
  6. JHS, supra, at para 13

Sufficiency of Analysis

See also: Sufficiency of Reasons

A judge does not need to discuss all the evidence of the accused on a given point. They must only show that they recognized credibility was a live issue and "grappled with the substance of the live issue".[1]

They do not need to "summarize specific findings on credibility" by giving statements on overall credibility.[2]

It is not necessary that the judge reconcile the positive findings of one witness against the negative findings of a contradictory witness.[3]

  1. R v REM, 2008 SCC 51 (CanLII), [2008] 3 SCR 3, per McLachlin CJ, at para 64
  2. REM, ibid. at para 64
  3. REM, ibid. at para 65

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 W(D) 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 W(D), 1991 CanLII 93 (SCC), [1991] 1 SCR 742, per Cory J
    R v Fowler, 1993 CanLII 1907 (BCCA), per Toy JA
    R v CLY, 2008 SCC 2 (CanLII), per Abella J (4:3)
    R v McKenzie (P.N.), 1996 CanLII 4976 (SK CA), 141 Sask R 221 (Sask CA), per Tallis JA, at para 4
    R v Rose (A.), 1992 CanLII 987 (BCCA), (1992), 20 BCAC 7 (BCCA), per curiam
    R v Currie, 2008 ABCA 374 (CanLII), per Côté JA (3:0)
    R v BGS, 2010 SKCA 24 (CanLII), per Ottenbreit JA (3:0)
  2. R v Warren, 2011 CanLII 80607 (NLPC), per Gorman J at 24
  3. R v FEE, 2011 ONCA 783 (CanLII), per Watt JA (3:0), at para 104
  4. R v BD, 2011 ONCA 51 (CanLII), per Blair JA (3:0), at paras 113 to 114
    R v Cyr, 2012 ONCA 919 (CanLII), per Watt JA (3:0), at para 50
  5. See R v Kocovic, 2004 ABPC 190 (CanLII), per Semenuk J
  6. see R v Van, 2009 SCC 22 (CanLII), per LeBel J (5:4), at paras 20 to 23
  7. R v MacIsaac, 2017 ONCA 172 (CanLII), 347 CCC (3d) 37, per Trotter JA (3:0)
    R v St Pierre, 2017 ONCA 241 (CanLII), per curiam (3:0)
    R v Turcotte, 2018 SKCA 16 (CanLII), per Schwann JA, at para 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]

Purpose of W(D) Test

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".[2] It further intends to make clear that the burden never shifts from the Crown to prove every element of the offence.[3]

Formulations of the WD Test

Where the defence calls the accused to give evidence that contradicts the crown evidence, the trier of fact must determine:[4]

  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. 

A more recent formulation with four steps suggests the following:[5]

  1. if you believe the evidence of the accused, obviously you must acquit.
  2. if you do not know whether to believe the accused or a competing witness, you must acquit.
  3. if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit.
  4. even if you are not left in doubt by the evidence of the accused, that is that his or her evidence is rejected, you must ask yourself whether, on the basis of the evidence that you accept you are convinced beyond reasonable doubt by that evidence of the guilt of the accused

Yet another version of the test was phrased as follows:[6]

  1. If you accept as accurate evidence that cannot co-exist with a finding that the accused is guilty, obviously you must acquit;
  2. If you are left unsure whether evidence that cannot co-exist with a finding that the accused is guilty is accurate, then you have not rejected it entirely and you must acquit;
  3. You should not treat mere disbelief of evidence that has been offered by the accused to show his innocence as proof of the guilt of the accused; and
  4. Even where evidence inconsistent with the guilt of the accused is rejected in its entirety, the accused should not be convicted unless the evidence that is given credit proves the accused to be guilty beyond a reasonable doubt.
Application of the WD Test

The order of the steps are not significant but the steps must all be applied separately.[7]

It is wrong when considering conflicting evidence of credibility to "weigh" one story over the other.[8] 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.[9] To prefer one testimony over another has the effect of reversing the onus upon the accused.[10]

There is nothing preventing a judge from believing both the complainant and the accused even where they gave divergent or contradictory evidence[11]

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.[12]

Standard of Appellate Review

Any error in applying the W(D) test must be reviewed as a question of law on a standard of correctness.[13]

In reviewing the reasons given in W(D) analysis, the appellate judge should not "cherry-pick" parts of the reasons but rather look at them as a whole.[14]

Mis-statement of the Test

A mere failure to use the exact words of the W(D) test before a judge or jury is not fatal.[15] Equally, an exact recitation does not protect the decision from review where the principles were applied wrong.[16]

Proposed Reformluation

In Alberta, the test for credibility has been re-written as comprising several stages.[17] At the first stage it should be made clear that:[18]

  1. the [credibility] instruction applies only to exculpatory evidence, that is, to evidence that either negates an element of the offence or establishes a defence (other than a reverse onus defence);
  2. it applies to exculpatory evidence whether presented by the Crown or the accused.

At the second stage analysis should be as follows:[19]

  1. The burden of proof is on the Crown to establish the accused’s guilt beyond a reasonable doubt and that burden remains on the Crown so that the accused person is never required to prove his innocence, or disprove any of the evidence led by the Crown. (Subject to the caveat that this does not apply to defences, such as that found in s 16 of the Criminal Code, where the onus rests with the proponent of the defence.)
  2. In that context, if the jury believes the accused’s evidence denying guilt (or any other exculpatory evidence to that effect), or if they are not confident they can accept the Crown’s version of events, they must acquit. (Subject to defences with additional elements such as an objective component ...).
  3. While the jury should attempt to resolve conflicting evidence bearing on the guilt or innocence of the accused, a trial is not a credibility contest requiring them to decide that one of the conflicting versions is true. If, after careful consideration of all the evidence, the jury is unable to decide whom to believe, they must acquit.
  4. Even if the jury completely rejects the accused’s evidence (or where applicable, other exculpatory evidence), they may not simply assume the Crown’s version of events must be true. Rather, they must carefully assess the evidence they do believe and decide whether that evidence persuades them beyond a reasonable doubt that the accused is guilty. Mere rejection of the accused’s evidence (or where applicable, other exculpatory evidence) cannot be taken as proof of the accused’s guilt.

Finally, it must be understood that where there are multiple charges, it must be understood that "reasonable doubt with regard to one offence will not necessarily entitle the accused to an acquittal on all charges".[20]

  1. R v Newman, 2018 ABPC 143 (CanLII), per Pharo J, at para 18
  2. R v CLY, 2008 SCC 2 (CanLII), per Abella J (4:3), at para 8
    JHS, supra, at para 9 (to “explain what reasonable doubt means in the context of evaluating conflicting testimonial accounts”)
  3. JHS, supra, at para 13
  4. R v W(D), 1991 CanLII 93 (SCC), [1991] 1 SCR 742, per Cory J
    R v PNM, 1996 CanLII 4976 (SKCA), per Tallis JA - frames it as a four step inquiry
    R v Minuskin, 2003 CanLII 11604 (ON CA), 181 CCC (3d) 542, per Rosenberg JA, at p. 550 R v BD, 2011 ONCA 51 (CanLII), per Blair JA, at paras 102 to 114
    R v Turmel, 2004 BCCA 555 (CanLII), [2004] BCJ No. 2265 (CA), per Newbury JA, at paras 9 to 17
    R v Gray, 2012 ABCA 51 (CanLII), per Martin JA (3:0), at para 42
    R v Vuradin, 2013 SCC 38 (CanLII), per Karakatsanis J (5:0), at para 21
    R v Tyers, 2015 BCCA 507 (CanLII), per Stromberg-Stein JA (3:0), at paras 12, 15
    R v Mann, 2010 BCCA 569 (CanLII), per Chiasson JA, at para 31
  5. R v PDB, 2014 NBQB 213 (CanLII), per Ferguson J, at para 67 - this is taking into account the additional formulation from JHS, supra
    R v NM, 2019 NSCA 4 (CanLII), per Bourgeois JA, at para 23
    R v Wheyee, 2019 ABQB 548 (CanLII), per Horner J, at para 72
  6. David Paciocco, "Doubt about Doubt: Coping with R. v W.(D.) and Credibility Assessment", (2017) 22 Can. Crim. L. Rev. 31 at para 72 [3]
  7. R v JHS, 2007 NSCA 12 (CanLII), per Saunders JA - on appeal to SCC
  8. R v BGS, 2010 SKCA 24 (CanLII), per Ottenbreit JA (3:0), at para 9
  9. R v Challice, 1979 CanLII 2969 (ON CA), (1979) 45 CCC (2d) 546 (Ont CA), per Morden JA
    R v Morin, 1988 CanLII 8 (SCC), per Sopinka J
    R v Chan, 1989 ABCA 284 (CanLII), , 52 CCC (3d) 184 (Alta CA), per curiam
    R v Jaura, 2006 ONCJ 385 (CanLII), [2006] O.J. No. 4157, per Duncan J, at paras 12, 13
  10. R v Abdirashid, 2012 ABPC 22 (CanLII), [2012] A.J. No 131, per Bascom J, at para 6
  11. R v Nadeau, 1984 CanLII 28 (SCC), per Lamer J
  12. Canadian Criminal Evidence, Second Edition, by P.R. McWilliams, Q.C., at page 652
    R v Nykiforuk, 1946 CanLII 202 (SK CA), 86 CCC 151 (Sask CA), per MacKenzie JA
  13. R v JAH, 2012 NSCA 121 (CanLII), per Bryson JA, at para 7
    R v NM, 2019 NSCA 4 (CanLII), per Bourgeois JA, at para 25
  14. NM, ibid., at para 25
  15. W(D), supra, at p. 758 [SCR]
    JHS, supra, at para 14
    R v Vuradin, 2013 SCC 38 (CanLII), per Karakatsanis J (5:0), at para 26
  16. R v JP, 2014 NSCA 29 (CanLII), , 342 NSR (2d) 324, per Beveridge JA, at paras 62 to 64, 73, 85
  17. R v Ryon, 2019 ABCA 36 (CanLII), per Martin JA (3:0)
  18. Ryon, ibid., at para 49
  19. Ryon, ibid., at para 51
  20. Ryon, ibid., at para 52

Looking at Evidence as a Whole

The steps of WD are not considered "watertight" compartments. The analysis at each step should take into account the evidence as a whole.[1]

The first two steps in the WD test require the "weighing [of] the accused's evidence together with the conflicting Crown evidence."[2]

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".[3]

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. [4]

  1. R v Berg, 2016 SKPC 55 (CanLII), per Kovatch J - commentary by Kovatch PCJ
  2. R v Humphrey, 2011 ONSC 3024 (CanLII), [2011] O.J. No. 2412 (Sup. Ct.), per Code J, at para 152
    see also R v Newton, 2006 CanLII 7733 (ON CA), per curiam (3:0), at para 5
    R v Hull, 2006 CanLII 26572 (ON CA), per curiam (3:0), at para 5
    R v Snider, 2006 ONCJ 65 (CanLII), [2006] O.J. 879, per MacDonnell J, at para 37
    R v Hoohing, 2007 ONCA 577 (CanLII), per Feldman JA, at para 15
  3. R v Newman, 2018 ABPC 143 (CanLII), per Pharo J, 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.")
  4. R v Lake, 2005 NSCA 162 (CanLII), NSJ No. 506, per Fichaud JA (3:0)

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]

Rejection Where No Obvious Flaw in Exculpatory Testimony

A trier-of-fact may reject the accused's evidence even where there are no obvious flaws to the testimony where the Crown mounts a strong prosecution.[11]

Accused's Access to Disclosure

It is impermissible to use the fact that the accused had access to their disclosure as a reason to discount their testimony.[12]

Effect of Rejection of Evidence

The rejection of the accused's evidence does not amount to evidence in favour of the Crown.[13]

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.[14] Disbelieving the accused because of their self-interest to be acquitted is a reversible error.[15]

The disbelief of the accused evidence cannot be used as "positive proof of guilt by moving directly from disbelief to a finding of guilt."[16]

It is an error of law to infer guilt merely from the fact that the accused's evidence has been disbelieved.[17]

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.[18]

Application of Personal Experience

The judge cannot apply their own specific personal experience, as a form of judicial notice, to make determinations of credibility against the accused.[19]

  1. R v CLY, 2008 SCC 2 (CanLII), per Abella J (4:3)
  2. R v Lake, 2005 NSCA 162 (CanLII), per Fichaud JA (3:0), 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), per Laskin JA (3:0)
  3. R v Stamp, 2007 ABCA 140 (CanLII), per Berger JA, at para 25
    R v CJJ, 2018 ABCA 7 (CanLII), per curiam, at para 35
  4. Lake, supra, at para 21
  5. R v YM, 2004 CanLII 39045 (ON CA), per Laskin JA (3:0), at para 30
  6. R v Surana, 2013 ABPC 164 (CanLII), per Allen J, at para 78
  7. R v TS, 2012 ONCA 289 (CanLII), per Watt JA, 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 JJRD, 2006 CanLII 40088 (ON CA), , [2006] 215 CCC (3d) 252, per Doherty JA, at para 53 ("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), per curiam (3:0), at paras 23 to 25
  10. R v Jaw, 2009 SCC 42 (CanLII), per LeBel J (7:2), at para 39
    R v White, 1998 CanLII 789 (SCC), per Major J (7:0), at para 26
  11. R v CL, 2020 ONCA 258 (CanLII), per Paciocco JA, at para 30 ("In such a case a trier of fact may appropriately find that the incriminating evidence is so compelling that the only appropriate outcome is to reject the exculpatory evidence beyond a reasonable doubt and find guilt beyond a reasonable doubt. There may be exceptional cases where it is appropriate for a trial judge to explain this avenue of conviction to the jury.")
    R v OM, 2014 ONCA 503 (CanLII), 313 CCC (3d) 5, per Cronk JA, at para 40
    R v JJRD, 2006 CanLII 40088 (ON CA), per Doherty JA, at para 53 ("...The trial judge rejected totally the appellant’s denial because stacked beside A.D.’s evidence and the evidence concerning the diary, the appellant’s evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible 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.")
  12. R v Gordon, 2012 ONCA 533 (CanLII), [2012] O.J. No. 4059 (ONCA), per curiam, at para 6 ("Crown counsel…seemed to invite the jury at one point in his closing to draw an inference against the appellant's credibility because the appellant had the benefit of full disclosure and hearing the Crown's case before testifying. At the outset of his charge to the jury, the trial judge emphatically advised the jury that no such inference could be drawn.")
  13. R v Nedelcu, 2012 SCC 59 (CanLII), per Moldaver J (6:3) (“rejection of an accused’s testimony does not create evidence for the Crown”)
  14. R v Drescher, 2010 ABQB 94 (CanLII), per Lee J, at para 30
    R v Murray, 1997 CanLII 1090 (ON CA), 115 CCC (3d) 225 (Ont. CA), per Charron JA (3:0)
    R v BG (2000), O.J. No. 1347 (Ont. C.A.)(*no CanLII links)
    R v Masse, 2000 CanLII 5755 (ON CA), (2000), O.J. No. 2687 (Ont. C.A.), per curiam
    R v MJ, 2002 CanLII 49364 (ON CA), , O.J. No. 1211 (Ont. CA), per curiam (3:0)
  15. R v LB, 1993 CanLII 8508 (ON CA), per Arbour JA (3:0)
  16. R v MQ, 2010 ONSC 61 (CanLII), per Hill J
  17. R v To, 1992 CanLII 913 (BCCA), , 16 B.C.A.C. 223, per McEachern JA (3:0), at paras 24, 28
    R v Moore, 2005 BCCA 85 (CanLII), per Rowles JA (3:0)
    R v Levy, 1991 CanLII 2726 (ON CA), 62 CCC (3d) 97, per Doherty JA at 101
  18. R v JCH, 2011 NLCA 8 (CanLII), per Rowe JA (3:0) , at para 18
  19. R v JM, 2021 ONCA 150 (CanLII), per Brown JA, at paras 49 to 50

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.

It is important to remember that this step does not ask whether the evidence is "possibly true". The step only considers whether the evidence creates a "reasonable possibility of innocence" or that the evidence "might reasonably be true"[4] The phrase "might reasonably be true" must be used with caution and applies mostly to instances relating to the doctrine of recent possession. Its use poses the risk of unintentionally reverse the burden proof.[5]

This step can also be addressed by acquitting if the judge "cannot decide whether the evidence inconsistent with guilt is true".[6]

  1. See WD, supra
  2. WD, supra
  3. R v Morin, 1988 CanLII 8 (SCC), [1988] 2 SCR 345, per Sopinka J (6:0), at p. 357 (SCR)
    R v Thatcher, 1987 CanLII 53 (SCC), [1987] 1 SCR 652, per Dickson CJ (7:0)
  4. R v Graham, 2021 BCCA 163 (CanLII), at para 24
    R. v Roberts (1975), 1975 CanLII 1394 (BC CA), 24 C.C.C. (2d) 539 at 550 (cited with approval in WD)
  5. R v Murray, 2020 BCCA 42 (CanLII) at para. 54(complete citation pending)
  6. R v Graham, 2021 BCCA 163 (CanLII), per Willcock JA, at para 27

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 BCG, 2010 MBCA 88 (CanLII), [2010] MJ No. 290, per Chartier JA (3:0) (“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, per Hamilton JA (3:0), 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), per Martin JA (3:0), at para 40
  3. R v Dore, 2004 CanLII 32078 (ON CA), 189 CCC (3d) 526, per curiam (3:0), at p. 527
    R v SH, 2001 CanLII 24109 (ON CA), , [2001] O.J. No. 118 (CA), per curiam (3:0), at paras 4 to 6
  4. Dore, supra, at p. 527
    SH, supra, at paras 4 to 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 , , 68 CCC (3d) 146, per Wood JA (3:0)
    R v PNM, 1996 CanLII 4976 (SKCA), 106 CCC (3d) 1, per Tallis JA
  2. R v Huff, [2000] O.J. No. 3487(*no CanLII links) leave to appeal to SCC denied [2000] SCCA 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]

Blanket Denials

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]

It should also be acknowledged that a general denial will "necessarily be lacking in detail" and should be considered in that context.[5]

  1. R v Moose, 2004 MBCA 176 (CanLII), 190 CCC (3d) 521, per Huband JA (3:0), at para 20
  2. R v DAM2010 NBQB 80(*no CanLII links) , at paras 53 and 56
    R v Schauman, 2006 ONCJ 304 (CanLII), per Fairgrieve J, at para 6
    R v CYL, 2008 SCC 2 (CanLII), per Abella J (4:3)
    R v Currie, 2008 ABCA 374 (CanLII), [2008] AJ No 1212, per Côté JA (3:0)
  3. R v JJRD, 2006 CanLII 40088 (ON CA), 215 CCC (3d) 252, per Doherty JA, at para 53
    R v REM, 2008 SCC 51 (CanLII), 235 CCC (3d) 290 (SCC), per McLachlin CJ (7:0), at para 66
    R v Thomas, 2012 ONSC 6653 (CanLII), per Code J, at para 26
  4. R v Surana, 2013 ABPC 164 (CanLII), per Allen J, at para 71
  5. R v Freamo, 2021 ONCA 223 (CanLII), per curiam, at paras 9to 10

Credibility and Reliability of Child Witnesses

General Principles

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

The credibility of children is 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 BG, supra and RW, 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.

Suggested guidelines include:[13]

  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.[14] 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.[15]

  1. R v Marquard, 1993 CanLII 37 (SCC), per McLachlin J
  2. R v GB, 1990 CanLII 114 (SCC), per McLachlin J, at para 48
    R v HC, 2009 ONCA 56 (CanLII), 241 CCC (3d) 45, per Watt JA, at para 42
  3. HC, supra, at para 42
  4. GB, supra, at para 48
  5. R v RW, 1992 CanLII 56 (SCC), per McLachlin J
  6. RW, ibid., at para 24
    R v RRD, 2011 NLTD(G) 78(*no CanLII links)
    R v BEM, 2010 BCCA 602 (CanLII), [2010] BCJ No 2787 (CA), per Bennett JA (3:0)
  7. RRD, supra
    BEM, supra
  8. GB, supra, at para 48
    RW, supra, 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.")
    Marquard, supra, at pp. 221-222
    R v WS, 1994 CanLII 7208, 90 CCC (3d) 242 (Ont. C.A.), per Finlayson JA, at p. 251
    R v PB, [2011] OJ No 423 (SCJ)(*no CanLII links)
    R v TP, 2010 CanLII 79501 (NLPC), [2010] NJ No 414 (P.C.), per Brazil J
  9. R v Vetrovec, 1982 CanLII 20 (SCC), per Dickson J ("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, per McLachlin J
  11. R v Betker, 1997 CanLII 1902 (ONCA), per Moldaver JA - adult testifying to abuse as child
  12. R v F(CC), 1997 CanLII 306 (SCC), [1997] 3 SCR 1183, per Cory J, 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 AF, 2007 BCPC 345 (CanLII), per Skilnick J
  14. R v VK, 1991 CanLII 5761 (BCCA), per Wood JA, at paras 18, 33
  15. R v CF, 1996 CanLII 623 (ONCA), per Brooke JA, 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. PC v RC, 1994 CanLII 7501 (ONSC), per Corbett J
    R v ZEB, 2006 NSSC 36 (CanLII), per Gruchy J, at para 42
    see also R v GDD, [1995] NSJ No 529(*no CanLII links)

)

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]

Accomplices

Where more than one accused is tried, confirmatory evidence from an accomplice is only admissible as confirmatory if the evidence is otherwise admissible against the accused.[13]

Appeal

What constitutes corroboration is a question of law and is reviewable on a standard of correctness.[14] Whether corroboration is needed to establish a fact is also a question of law.[15]

  1. R v Aksidan, 2006 BCCA 258 (CanLII), 209 CCC (3d) 423, 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 AW, 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 SCR 109, per McLachlin CJ
  6. e.g. see R v Demeter, 1975 CanLII 50 (ONCA), per curiam
    R v Boyce, 1975 CanLII 569 (ONCA), 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), 181 CCC (3d) 1 (SCC), per Fish J, at pp. 5-6
    R v Betker, 1997 CanLII 1902 (ONCA), 115 CCC (3d) 421 (Ont. C.A.), per Moldaver JA, at p. 429 (leave to appeal refused [1997] SCCA 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 (ONCA), 131 CCC (3d) 380 (Ont. C.A.), per Osborne JA, at p. 409
    R v Linklater, 2009 ONCA 172 (CanLII), [2009] OJ No 771 (CA), per curiam, at paras 11 to 12
    R v Delorme, 2010 NWTCA 2 (CanLII), [2010] N.W.T.J. No 28 (CA), per curiam, at paras 26 to 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), 229 CCC (3d) 187 (BCCA), per Lowry JA, at para 34 (leave to appeal refused [2008] SCCA No 45)
    R v Korski, 2009 MBCA 37 (CanLII), 244 CCC (3d) 452 (Man. C.A.), per Steel JA, at para 146
    R v G(WG), 2002 CanLII 41634 (ONCA), OAC 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 Perciballi (2001), 2001 CanLII 13394 (ONCA), 154 CCC (3d) 481 (Ont. C.A.), aff, 2002 SCC 51 (CanLII), [2002] 2 SCR 761(complete citation pending)
    R v Fairbarn, 2020 ONCA 784 (CanLII), at para 48
  14. R v Parish, 1968 CanLII 120 (SCC), [1968] SCR 466, per Ritchie J
    R v Smith, 2009 ABCA 230 (CanLII), per curiam
  15. R v Hubin, 1927 CanLII 79 (SCC), [1927] SCR 442, per Aniglin CJ
    R v Steele, 1924 CanLII 449 (SCC), 42 CCC 375 (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 [sexual interference], 152 [invitation to sexual touching], 153 [sexual exploitation], 153.1 [sexual exploitation of disabled], 155 [incest], 160 [bestiality], 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 with a weapon or causing bodily harm], 273 [aggravated sexual assault], 286.1 [comm. to obtain sexual services for consideration], 286.2 [material benefit from sexual services provided] or 286.3 [procuring], 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; 2019, c. 25, s. 99.

CCC


Note up: 274

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


Note up: 659

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


Note up: 667(1), (2), (2.1), (3), (4), and (5)


If a witness denies their record, section 12(2) of the Canada Evidence Act 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


Note up: 12(2)

See Also

Proof of Controlled Substance

General Principles

See also: Drug Offences (Crime)

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]

It is permissible to prove the nature of a large volume of substance by the drawing of inferences from a random sampling or random testing of the whole.[6]

  1. R v Grant, 2001 ABCA 252 (CanLII), [2001] AJ No 1257, per McClung JA
  2. R v Khalif, 2014 SKQB 165 (CanLII), per Scherman J, at para 38
  3. Grant, supra, at para 2
  4. R v Nyuon, 2014 ABCA 130 (CanLII), [2014] AJ No 384, per curiam, at paras 20 to 21
  5. R v Douglas, 2017 ONCA 609 (CanLII), per curiam
  6. R v Herman, [1966] O.J. No 188 (CA)(*no CanLII links)
    R v Cripps, 1969 CanLII 1123 (BCCA), 68 WWR (ns) 456, per McFarlane JA
    R v Flett, 1970 CanLII 1175 (BCCA), 73 WWR (ns) 699, per Davey CJ
    R v Malenfant, 2015 BCSC 2206 (CanLII), per Humpheries J

Proof by Certificate of Analysis

Certificate or report of analyst

51 (1) 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 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.

(3) [Repealed, 2017, c. 7, s. 38]

1996, c. 19, s. 51; 2017, c. 7, s. 38.

CDSA


Note up: 51(1) and (2)

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


Note up: 53(1)

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.

CDSA


Note up: 44

Analysis

45 (1) A peace officer, inspector or prescribed person may submit to an analyst for analysis or examination any substance or sample of it taken by the peace officer, inspector or prescribed person.

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.

1996, c. 19, s. 45; 2017, c. 7, s. 29.

CDSA


Note up: 45(1) and (2)

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 or report of analyst

51 (1) 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 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.

(3) [Repealed, 2017, c. 7, s. 38]

1996, c. 19, s. 51; 2017, c. 7, s. 38.

CDSA


Note up: 51(1) and (2)

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 (ONSC), 19 OR (2d) 428, per Van Camp J
  2. R v Dowding, 2004 BCCA 287 (CanLII), per Braidwood JA

Notice to Admit the Certificate

51
[omitted (1) and (2)]
; 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. [Repealed, 2017, c. 7, s. 38]

CDSA


Note up: 51(3)

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


Note up: 51(1) and (2)

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 (BCCA), 65 CCC (3d) 225, per Toy JA, ("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), 50 Alta LR (5th) 329, per Nation J, -- in this case, fax not sufficient
  3. Finlay, supra ("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 to 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, the amount of time passed, the 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
[omitted (1) and (2)]

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. [Repealed, 2017, c. 7, s. 38] 1996, c. 19, s. 51; 2017, c. 7, s. 38.

CDSA


Note up: 51(3)

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


Note up: 52(1) and (2)

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), per curiam
  2. Yonis, ibid.

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), per Scherman J, at para 42
    R v Grunwald, 2008 BCSC 1738 (CanLII), [2008] BCJ No 2464, per Joyce J, aff'd 2010 BCCA 288 (CanLII), 257 CCC (3d) 53, per Bennett JA, at paras 37 to 38
    see also R v Labine, 1975 CanLII 1403 (ON CA), 23 CCC (2d) 567, [1975] OJ No 235 (Ont. C.A.), per Martin JA, at paras 13 to 15
    R c Marin, 2012 QCCA 254 (CanLII), [2012] J.Q. no 905, per Dutil JA, at paras 45 to 46
  2. Khalif, supra, at para 42
    R v Campbell, 1998 CanLII 2698 (ON CA), [1998] OJ No 2332 (Ont. C.A.), per curiam, at paras 7 to 8
  3. e.g. R v Do, 2011 ABQB 135 (CanLII), per Lee J, at paras 44 to 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), per Dechert J, at para 157
    See also Watt, Manual of Criminal Evidence at s. 10.01
  2. Letavine, supra, at para 157
    Watt at s. 10.01
  3. R v Swift, 2005 CanLII 34230 (ONCA), per MacPherson JA, at para 152
  4. R v Penney, 2000 CanLII 28396 (NLSCTD), per Schwartz J, at paras 22 to 29
  5. R v Punia, 2016 ONSC 2990 (CanLII), per Coroza J, at para 28
  6. R v Rowbotham, 1977 CanLII 1913 (ON CJ), 33 CCC (2d) 411 (Ont. Co. Ct), per Borins J - authentication of a audio recording required "prima facie case" R v Sandham, 2009 CanLII 59151 (ONSC), per Heeney J, - authentication of an email
    R v Parsons et al, 1977 CanLII 55 (ON CA), per Dubin JA - authentication of a audio recording requires "some evidence" R v Andalib-Goortani, 2014 ONSC 4690 (CanLII), per Trotter J - affirms "some evidence" standard
  7. R v Avanes et al, 2015 ONCJ 606 (CanLII), per Band J
  8. R v Bulldog, 2015 ABCA 251 (CanLII), per curiam, at para 35
  9. Bulldog, ibid., at para 37
  10. Bulldog, ibid., at para 17
    R v Underwood, 2008 ABCA 263 (CanLII), per curiam, at para 10
  11. Bulldog, supra, at para 17
    R v Redford, 2014 ABCA 336 (CanLII), per Paperny JA (2:1), 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 (NLPC), per Gorman J, at para 40
  3. R v Donald, 1958 CanLII 470 (NB CA), 121 CCC 304, 28 CR 206 (NBCA), per Bridges JA
    see also R v Penney, 2000 CanLII 28396 (NLSCTD), per Schwartz J, 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] OJ No 3931, per curiam
    R v Abdi, 1997 CanLII 4448 (ON CA), [1997] OJ No 2651, 34 OR (3d) 499, per Robins JA

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 DDT, 2009 ONCA 918 (CanLII), per Epstein JA
  3. R v Mars, 2006 CanLII 3460 (ON CA), 205 CCC (3d) 376 (Ont. C.A.), per Doherty JA, 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 CanLII 123 (SCC), [1995] 1 SCR 654, per Sopinka J (3:2)

Computer Forensic Evidence

See also: Electronic Documents and Records

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), per Greene J, 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, 1967 CanLII 711 (NSCA), [1968] 1 CCC 14, per MacQuarrie JA at 22
    R v Schaffner, 1988 CanLII 7108 (NSCA), [1988] NSJ No 334, per Matthews JA, at pp. 509-511
    R v Murphy, 2011 NSCA 54 (CanLII), per Farrar JA, at para 48
    R v Maloney (No. 2)'', 1976 CanLII 1372 (ON CJ), 29 CCC (2d) 431 (Ont. Co. Ct.), per LeSage J
    R v Penney, 2002 NFCA 15 (CanLII), per Welsh JA
    R v JSC, 2013 ABCA 157 (CanLII), [2013] AJ No 455 (CA), per curiam
    R v Adams, 2011 NSCA 54 (CanLII), per Farrar JA
    R v Andalib-Goortani, 2014 ONSC 4690 (CanLII), per Trotter J
    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, 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. Andalib-Goortani, supra
  4. R v Sophonow, 1986 CanLII 104 (MB CA), 25 CCC (3d) 415, per Twaddle JA
  5. R v Blea, 2012 ABCA 41 (CanLII), [2012] AJ No 106, per curiam, 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), per Smart J
    see also R v CLS, 2009 MBQB 130 (CanLII), per Beard J
    R v Hindessa, 2009 CanLII 48837 (ONSC), per Molloy J
    R v JSR, 2008 CanLII 54304 (ONSC), 236 CCC (3d) 486 (SCJ), per Nordheimer J
    R v Sandham, 2008 CanLII 84097 (ONSC), , 2008 CarswellOnt 9312 (SCJ), per Heeney J
    R v Bartkowski, 2004 BCSC 442 (CanLII), per Macaulay J
    R v Kinkead, 1999 CanLII 14909 (ONSC), , 1999 CarswellOnt 1264 (SCJ), per LaForme J
    R v Hill, 2010 ONSC 6321 (CanLII), per Hambly J
    R v Ansari, 2008 BCSC 1415 (CanLII), per McEwan J
  2. Sipes, supra, at para 21
  3. R v CLS et al, 2009 MBQB 130 (CanLII), per Beard J, at para 5
    R v Schaefer, [1993] OJ No 71 (Ont. Ct of Jus. (Gen. Div.))(*no CanLII links) , at para 24
    see also R v Currie, 2000 CanLII 22822 (ONSC), [2000] OJ 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 (ONSC), , 1999 CarswellOnt 1264 (SCJ), per Laforme J
  5. R v Teerhuis-Moar, 2009 MBQB 22 (CanLII), [2009] MJ No 27 (Q.B.), per Joyal J, 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]

Burden of Proof

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), per Cory J ("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 NFCA 15 (CanLII), 163 CCC (3d) 329 (Nfld. & Lab. C.A.), per Welsh JA, at pp. 335 and 342
    R v Andalib-Goortani, 2014 ONSC 4690 (CanLII), per Trotter J
  2. R v Antone, 2015 BCSC 1243 (CanLII), per Bowden J, at para 33
  3. R v Crawford, 2013 BCSC 2402 (CanLII), per Bruce J, at para 49
    see also Browning Harvey Ltd. v NLAPPE Local 7003 and Persons Unknown, 2007 NLTD 10 (CanLII), per Adams J
  4. Doughty, supra
    see also Browning Harvey Ltd. v NLAPPE Local 7003 and Persons Unknown, supra
  5. R v Bulldog, 2015 ABCA 251 (CanLII), per curiam, 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), per Coroza J, at para 29
  8. Punia, ibid., at para 29
  9. R v Caughlin, 1987 CanLII 6771 (BC SC), 40 CCC (3d) 247 (B.C. Co. Ct.), per Godfrey J
    R v Penney, 2000 CanLII 28396 (NLSCTD), per Schwartz J, at para 39
  10. R v Penney, 2000 CanLII 28396 (NLSCTD), per Schwartz J, at para 38
  11. Penney, ibid., at para 40
  12. Penney, ibid., at paras 41 to 43
  13. R v Abdi, 2011 ONCA 446 (CanLII), per Rosenberg JA, at para 6
  14. R v Nikolovski, 1996 CanLII 158 (SCC), per Cory J
    R v Leaney, 1987 ABCA 206 (CanLII), 38 CCC (3d) 263, per Dea JA (2:1)
  15. see Nikolovski, supra
  16. R v Doughty, 2009 ABPC 8 (CanLII), [2009] AJ No 34, per Cummings J
  17. R v Broomfield, 2010 NLTD 202 (CanLII), per Goodridge J
  18. R v Young, 2009 ONCA 891 (CanLII), per curiam, 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), 134 OAC 167, per curiam 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]

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), per George J, at para 1
  2. R v Haimour, 2010 ABQB 7 (CanLII), per Ouellette J considered but not ruled on in R v Haimour, 2011 ABCA 143 (CanLII), per curiam, at para 13
  3. R v Hunt, 2002 ABCA 155 (CanLII), per curiam, at para 16
    R v PM, 2012 ONCA 162 (CanLII), per Rosenberg JA
  4. PM, ibid.
  5. e.g. R v Ahmed, 2012 ONCJ 71 (CanLII), per Forsyth J, 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 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 (ONCA), per curiam, at para 37

Experiments and Re-Enactments

Experimental evidence is a procedure to confirm a hypothesis or demonstrate a known fact.[1] It 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.[2]

Experimental evidence "is often, and at times routinely, admitted at trials".[3]

If the evidence requires inferences using special knowledge, the adducing party will need to admit it as expert evidence.[4]

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.[5] This includes video re-enactment performed by officers.[6]

As a general rule, the relevancy and admissibility will depend on the degree of accuracy the recreation is to the original event.[7]

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.[8]

Anytime that experiments are admitted before a jury, limiting instructions should be given.[9]

  1. R v Violette, [2009] B.C.J. No 1897 (S.C.)(*no CanLII links) , at para. 32 ("a scientific procedure undertaken to make a discovery, test a hypothesis, or demonstrate a known fact").
  2. R v Collins, 2001 CanLII 24124 (ONCA), 160 CCC (3d) 85, per Charron J, at para 21
    R v Cyr, 2012 ONCA 919 (CanLII), per Watt J, at para 119
  3. R v Collins, 2001 CanLII 24124 (ONCA), per Charron JA
  4. Cyr, ibid., at para 119
  5. See R v Howard and Trudel, 1983 CanLII 3507 (ONCA), 3 CCC (3d) 399 (ONCA), per Howland CJ - Judge refused demo
  6. R v MacDonald, 2000 CanLII 16799 (ONCA), 146 CCC (3d) 525 (ONCA), per curiam - video of police re-enacting struggle denied
    R v Nikitin, 2003 CanLII 18062 , per MacPherson JA - video of school bus crossing re-enactment permitted
  7. Cyr, supra, at para 120
    Collins, supra, at para 22
    Nikitin, supra, at para 14
  8. Collins, supra
  9. 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]

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 (BCCA), per curiam
  3. R v Scheel, 1978 CanLII 2414 (ONCA), 42 CCC (2d) 31 (Ont.C.A.), 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


Note up: 652(1), (2) and (3)

For a detailed review of law, see R v Polimac, 2006 CanLII 40110 (ONSC), per Wein J

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] NJ No 294, per Roberts JA
    R v Stacey, 2016 CanLII 89811 (NLSCTD), 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 (NLSCTD), per Handrigan J, at para 3
    R v Bernardo, 1997 CanLII 2240 (ONCA), 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 CanLII 1356 (QC CA), 38 CCC (2d) 455 (Q.C.A.), 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(*no CanLII links) at 340
    cf. Fox v Sleeman, [1897] OJ No 222 (1897), 17 P.R. 492 (Ont. H.C.J.)(*no CanLII links) , per Amour CJ, at para 14 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 CanLII 1925 (ONCA), 37 CCC (2d) 409, per Jessup JA at 410 (ONCA)
  5. R v Sanghi, 1971 CanLII 1275 (NSCA), (1971) 3 NSR 2d 70 (NSCA), per McKinnon CJ
    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 by a material witness.[1]

The standard used to authenticate the document depends on whether the document is submitted as hearsay (where the contents of the letter help establish some fact) or as non-hearsay (where the contents of the document are 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 CanLII 11 (SCC), [1988] 2 SCR 443, per McIntyre J, 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, 1970 CanLII 1087 (NSCA), (1966) 90 ER 301
  3. R v Armstrong, 1969 CanLII 1001 (NSCA), NSR (2d) 204, per McKinnon CJ

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 have 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 are 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 an 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), per Laycraft JA
    Conley v Conley, 1968 CanLII 236 (ONCA), , (1968) 70 DLR (2d) 352 (Ont CA), per McKay JA (2:1)

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 (ONSC), [1972] 3 OR 142, per Wright J
    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


Note up: 19

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


Note up: 20

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


Note up: 21

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


Note up: 22(1) and (2)

  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


Note up: 24

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 CanLII 2984 (BCCA), (1979) 47 CCC (2d) 49 (BCCA), per Carrothers JA
  2. R v Inuvik Coast Airways, 1983 CanLII 3494 (NWT SC), (1984) 10 CCC (3d) 89 (NWTSC), per de Weerdt J

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


Note up: 26(1), (2), (3), and (4)

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


Note up: 25

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), 109 CCC (3d) 385, per Laskin JA
  2. R v William Batisse, 2012 ONSC 6504 (CanLII), per Wilcox J

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


Note up: 23(1) and (2)

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(WB), 2000 CanLII 5659 (ON CA), 142 CCC (3d) 490, per Weiler JA, 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), 51 CCC (3d) 321, per Hetherington JA - affirms common law admissibility of court documents
  2. R v P(A), 1996 CanLII 871 (ON CA), 109 CCC (3d) 385, per Laskin JA
  3. R v Lebreux, [1993] N.W.T.J. No 97(*no CanLII links)
  4. Tatomir, supra
  5. R v Tkachuk, 2009 BCSC 834 (CanLII), per Chamberlist J, at paras 13, 19
  6. R v Truong, 2008 BCSC 1151 (CanLII), per Smart J, at para 60
  7. R v Tysowski, 2008 SKCA 88 (CanLII), per Jackson JA, at para 19
    R v Sinclair, 2007 ABPC 353 (CanLII), per Bridges J
    R v Ouellette, 2005 ABCA 282 (CanLII), per Côté JA
    R v Zinyk, 2010 ABPC 40 (CanLII), per Creagh J
    R v Evaglok, 2010 NWTSC 35 (CanLII), per Charbonneau J
  8. Alan Bryant, Sidney Lederman, and Michelle Fuerst, "The Law of Evidence, (3rd Ed) Markham, Ontario:LexisNexis 2009
  9. Truong, supra, at para 49
  10. R v Jerace, 2016 ABCA 70 (CanLII), per curiam, at para 7
  11. R v C(WB), 2000 CanLII 5659 (ON CA), 142 CCC (3d) 490, per Weiler JA
  12. R v Akpalialuk, 2016 NUCA 1 (CanLII), per curiam

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


Note up: 28(1) and (2)

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 (CanLII), per Wright J

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), per Hetherington JA - admits driving prohibition order
    R v Reid, 2007 ABPC 34 (CanLII), per Semenuk JA
    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), 109 CCC (3d) 385, per Laskin JA at 389-390
    R v C(WB), 2000 CanLII 5659 (ON CA), 142 CCC (3d) 490, per Weiler JA at 29-31
    R v Schellenberg, 2011 MBQB 240 (CanLII), per Oliphant J
    See Hearsay
  3. R v Williams, 2004 ONCJ 80 (CanLII), per Kenkel J, at paras 17-18{{{3}}}
  4. R v Dixon, 2006 NBQB 197 (CanLII), per Clendening J
  5. R v Rowen, 2013 ONSC 789 (CanLII), per Cavarzan J, at para 16

Police Documents

Notice Under S. 258 (Repealed December 13, 2018)

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
[omitted (1), (2), (3), (4), (5) and (6)]

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


Note up: 258(7)

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 (SCC), [1977] 2 SCR 85, per Ritchie J

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


Note up: 52

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


Note up: 53

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


Note up: 54(1) and (2)

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] MJ No 625 (MBPC)(*no CanLII links)
  2. e.g. R v B(L), 2009 BCSC 1194 (CanLII), [2009] BCJ No 1741, per Holmes J, at paras 5 to 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.