EVIDENCE



EVIDENCE

Wigmore conditions???

Introduction by Sopinka

- Evidence law has changed in recent years. Erstwhile hearsay evidence is now admissible such as everyday business records and business notes

- R v Vetrovec 1982 SCC established that old categories requiring corroborative evidence were outdated, judicial discretion to warn jury if witness is sketch.

- R v Khan stripped away rigidity of hearsay rules. Took principled approach to develop the necessity/reliability test.

- Some initially interpreted Khan to be a narrow exception. Then R v Smith, Finta, B(KG), J(UF) Hawkins and Parrott all showed the principled approach was to apply in a broad range of situations.

- R v Starr showed that old hearsay exceptions aren’t sacrosanct, instead they too can be scrutinized under N/S evaluation.

- SCC indicating that principles underlying exceptions should be scrutinized instead of blind adherence to a rule

- hearsay founded on premise that non-oath statements lacked credibility

- privilege, corroboration and hearsay started a revolution, now many parts of evidence take a principled approach

- General trend toward admitting more evidence is not followed by expert evidence, see R v Mohan lots of dangers re relying too heavily on EE, dismissing contrary stuff etc

- The Charter has also revolutionized evidence law, giving personal liberties etc some serious teeth, any evidence violating such liberty is inadmissible.

- Principles that enhance evidence law:

o Search for the truth: many evidence rules seek to mitigate the many difficulties involved in finding the truth.

o Ensuring a fair trial

o Efficiency of the trial process: ie collateral fact rule

o Goals outside the trial process: protecting the identity of informants, protecting personal info revealed in failed negotiation attempts (to ensure that trying to negotiate won’t screw you if you need to go to court)

o Preserving the integrity of the administration of justice: banning non-voluntary admissions

- R v Noel balances competing objectives. State protection of witnesses against self-incrimination trumps admissibility of statements from other proceedings. Court said that the rule from R v Kuldip that prior statements were admissible to impeach credibility of witness in general applies only if it carries no other risk of incrimination.

- Sex offences have yielded a great amount of change. Children’s tendency to recant, rape shield law (CC s276)

- SFE very dangerous R v Handy. Jailhouse informants notoriously unreliable Morin. Evidence re post offence conduct should be subject to special scrutiny.

- M(A) v Ryan established strong respect for confidentiality of psychiatrist’s records to ensure the proper execution of their duties. This still allows for the TJ to review such records and admit anything necessary for justice to be served

- ss. 278.1, 278.9 CC mandate TJ to evaluate PV/PE

- R v McLure: two stage test called the ‘innocence at stake test”:

o First, accused must demonstrate an evidentiary basis to conclude that communication exists that may raise a RD as to guilt

o Second, TJ looks at this and sees whether to admit it

- lots of contextual analysis in the new law of evidence

- PV/PE balancing test for SFE from SCC in R v Handy:

1. Determine the issue for which the SFE is sought, then TJ evaluates how evidence relates to that issue. Important consideration is possibility of collusion between camplainant and similar fact witnesses

2. Evaluate moral prejudice (ie stigma for bad character) and reasoning prejudice (ie potential confusion and distraction from actual charge)

3. Weigh the two

- R v Collins, R v Stillman and R v Law show how TJ exercises Charter s 24(2) right to exclude improperly obtained evidence

o consider effect of admission of the evidence on the fairness of trial

o Factors relevant to seriousness of Charter violation

o PV and prejudice of evidence to be weighed

- R v Buhay: police searched locker w/o warrant, found weed. Guy said it violated Charter privacy, court said it was a non-conscriptive discoverable stash, thus admitting it as evidence didn’t violate justice. Also to be considered: blatancy of violation by police (was it an honest mistake?) whether cops could have obtained the evidence in a legitimate way.

- R v Chappell: cops found injured woman in house with her husband, she said he had beaten her, then at trial recanted. Crown applied for KGB rule, TJ admitted evidence saying ‘overall reliable.’ Appeal court overturned, saying general statements of admissibility not enough. Articulable reasons are needed.

- Lack of clarity is undeniable and necessary. Because rules often seek to balance interests, there is no single right or wrong way to do it. Context matters

- TJs should be careful not to look at factors enunciated by SCC as the only considerations. This would be like reverting to old rigid rules. Consider all factors together.

R v Mensah OCA 2003

Facts: Dude is very poor, takes a trip to Ghana that he can’t afford, comes back with heroin.

Issue: Can Crown lead evidence that he’s poor, thus more likely to commit a crime?

Ratio: No, but in this case the Crown was trying to show that the guy didn’t have enough money to make his official story re why he went to Ghana credible. Not saying poor people were motivated to commit crime, rather the Crown indicated that crime was the most likely reason for this guy to want to go to Ghana.

BCSC rule 40 (52) Evidence of particular facts

(52)   At or before a trial, the court may order that evidence of a fact or document may be presented at the trial in any manner, including,

(a) by statement on oath of information and belief,

(b) by documents or entries in books,

(c) by copies of documents or entries in books, or

(d) by a specified publication which contains a statement of that fact.

P & S

Real Evidence

- Real evidence ( actual things ie the murder weapon, TJ mus believe sufficient grounds exist to believe in its identification and continuity of integrity

o original evidence ( glove, pictures, weapon

o demonstrative evidence ( visual aids to help explain testimony

- Every cop who handled it will be called for continuity questions, this need not occur where opposing counsel concedes continuity.

- Relevance must be established. In Muchikekwanape, TJ allowed pics of victim that were very graphic because they spoke to the dispute over whether the vic was beaten before death.

- Meyers, MCA said a judge’s observations during a view are evidence.

- pics/videos are evaluated on fairness, accuracy and the ability of a witness to confirm them. Maloney – TJ excluded slow mo footage of hockey fight, b/c it didn’t reveal accurately the speed at which it occurred.

- Penney – violent seal clubber caught on tape. Must show video footage hasn’t been altered/edited in order to admit.

- Nikolovski – don’t need a witness to corroborate a videotape if it is of sufficient quality to stand on its own.

- Lattimer – video confession explaining the crime is admissible. MacDonald – police reenactment not outright banned, but be very cautious in admitting it. In balancing PV/PE consider accuracy, fairness, necessity, verifiability by oath.

Documents

- lots of public archive type documents are admissible without proof of authenticity.

- Betterest emphasized the need for flexibility re production of original/copies etc

Computer evidence

- Gratton – evidence from a vehicle’s computer that is not input was downloaded and presented at trial. The dude presenting knew nothing about accuracy, calibration etc. Inadmissible.

- computer models can be used, counsel must show that

o Expert’s testimony relevant, model related

o expert familiar with model

o model fairly and accurately reflects testimony given

o Model will aid trier of fact in understanding testimony

Judicial Notice

- Acceptance of facts that are common knowledge, thus need no proof. Court states what these facts are. This applies to adjudicative facts (in dispute between parties) not legislative facts (relevant to legal reasoning and law making).

- must be 1 so commonly known that reasonable people wouldn’t argue it or 2. capable of immediate demonstration by reliable sources.

- Depends on courtroom, in the boonies, JN might grant knowledge of the town’s grocery store, but the same might not be true in Toronto.

- Speeds trial process, applies only to facts so indisputable that debating them would bring justice into disrepute. – Zundel

- Dictionary definitions also lead to JN – Krymowski

- Legislative facts are of general social importance, ie s. 1 analysis examines free and just society and its standards.

- Judge can’t overrule expert testimony based on common knowledge, the two are by definition unrelated – Desaulniers

- R v RDS judge said cop probably acted based on racism b/c of the fact that racism exists. SCC rejected this assertion. Assumptions relied on were valid, but irrelevant to the case at bar.

Non-Compellability of accused persons

- doesn’t apply to corporations. Can be compelled in other types of proceedings

- CEA 4(1) gives the accused the option. Provincial acts differ somewhat.

- 11(c) of Charter make you uncompellable in crim trials

- Martineau – Doesn’t apply in civil remedy procedures.

- 11(c) means you must 1 be compelled to be a witness 2 in proceedings against you 3 in respect of an offence. Thus, interrogations not covered.

- Against you if started by the state, even if you launched the actual action –Martineau

- In respect of the offence is broadly interpreted – can be used in other proceedings arising from same conduct – This was unique to Martineau b/c the right to seize goods stemmed from an accusation of a customs violation

- Power to compel testimony can’t be substituted for actual investigating – Bagri

- Testimony in a different proceeding can be compelled if it would not prejudice your trial – Branch

- More recent case law suggests no prejudice need be shown, Bagri and Jarvis show that where the predominant purpose in calling a witness is self-implication, that can’t be compelled. Usually, testimony at another proceeding will be for another purpose, not incrimination, then it is valid Nova Scotia v M (DJ)

- ZL was compelled to testify at trial of co-accused

R v Hawkins SCC 1996

Facts: CEA 4(1) and 4(2) provide exceptions to the rule of spousal incompetency to testify where (1) testifying to innocence of spouse in Crim trials (2) testifying in cases that tend to implicate health and safety of the witness spouse. Otherwise, CEA leaves common law incompetency position alone. This position is based on the natural repugnancy of testifying against your life partner.

Analysis: Starting in Salituro, SCC began to question old defences of this rule. Many people want to replace this rule with one making spouses capable of beign declared competent to testify, though still not compellable. Others want compellability. SCC says the legislature must produce such large change, not the courts.

Ratio: The rule will not be changed in this case, but it might be changed in the future if it is shown that the marriage was exclusively intended to invoke the non-compellability of one of the spouses.

R v Couture BCCA 2005

Facts: Wife spoke with police implicated husband. It was recorded.

Issue: Admissibility

Ratio: Inadmissible, PE/PV analysis is okay, no evidence of coercion or motive to lie. Evidence was corroborated. But, not admitted under oath, statement not made during the marriage. Thus, not like Hawkins ( new trial.

Character Evidence

- Very controversial, general statements to reach a specific conclusion

- R v BL – When Crown wants to lead particular evidence, court must ask whether it is discreditable to the accused. This can include social stigma ie crazy etc.

- Weigh PV/PE considering

o strength of evidence that discreditable conduct occurred. (irrelevant where acquitted or permanently stayed). Where there is evidence of collusion, the Crown must prove otherwise or the evidence will be tossed.

o Extent to which discreditable conduct supports inference sought.

▪ In Handy, proof of sadistic sexual acts didn’t relate sufficiently to proof of rape in a particular case.

▪ In Shearing, some cult guy used religious mumblings and targeted girls of similar age, this was connected enough for this part of the test.

▪ R v G(SG) allowed evidence of drug possession b/c it related directly to the motive for the accused charge (murder).

▪ Prior discreditable conduct sometimes admissible – Francis, the crystal-diamond case. McLean, shot someone with people in house before, why not infer he might do it again?

▪ Actus also can be proven Makin, Shearing

▪ R v G(MA) similar stories from different complainants give air of credibility, but subject to the possibility of collaboration

▪ Batte and MacDonald – can show accused acts violently toward the victim in particular.

o Extent to which the matter addressed is at issue in the proceeding

o “moral prejudice” – includes prohibited inference that the evidence shows the accused is the kind of bad person who would do this type of thing

▪ When offending acts are morally repugnant, high threshold needed to admit them in evidence – Shearing

▪ Talbot – Charged offence more serious than similar facts shown, threshold is correspondingly lower.

o If the risk of prejudice can be reduced by the fact that the evidence would have been revealed anyway or can be edited to eliminate prejudicial content, that will be done per CEA s. 12

o “reasoning prejudice” – Similar fact clouds issue/inflames trier

- Morris – defined prohibited inference, Handy upheld it. Judge must tell jury of it where SFE is admitted R v B(FF)

- Similar Fact Evidence – SFE presumptively inadmissible, onus on Crown to show that PV outweighs PE. – Handy. Must go beyond proof of general propensity and relate to a material issue in the trial. For example, proof of animus toward victim by showing prior assaults requires low degree of similarity of assaults.

- SFE can prove identity only if 1 acts are similar enough to infer the same person did them, 2 is the accused linked to this similar fact? Arp – 2 girls, very similar murders but years apart, court concluded similar enough to think same person. Basically, is it possible for a reasonable person conclude from this test that accused did it?

- The accused can prove they are not the type of person who would commit the crime in question using:

o reputation witnesses – No evidence of specific acts allowed. Just general reputation testimony from someone close.

o Admissible expert testimony – Mohan, can’t call expert to prove you aren’t a sexual psycopath, b/c not necessarily the only type of person who could do the acts in question.

o accused’s own testimony – No criminal record Morris, Returned stuff he found, Samuel

o SFE – Morrissey, tried to kill himself when previous relationships were ending, can be used to show he was trying to kill himself this time, moral prejudice concerns out the window when raised by defence.

o Opinion of lay witnesses who know the accused.

- This enables the Crown to rebut by:

o Cross xamintation – pretty broad, R v OD could ask about bad parenting

o rebuttal reputation witnesses – Rebuttal can’t far outweigh probity of accused’s testimony esp if he wasn’t represented – Brown.

o proof of previous convictions CC s. 666

o expert testimony – Tierney, psych testified A reacted violently to rejection by women.

o SFE

o PIS – Dussiaume, guy said he was happily married, Crown called witnesses whom he had told otherwise.

- Character of 3rd parties can be challenged more easily, since no danger of conviction, not subject to same stigma. Wilson, can lead evidence about deceased with impunity and not call your own character into question.

- Crosby – PIS about whether she had sex with them were admissible b/c they related materially to her testimony in general

- No such standard in civil cases, just straight balance of PV/PE given the criteria from the crim cases, and whether opposing party is in a fair position to respond, unfair surprise, Undue consumption of time – G (JRI)

-

R v Handy SCC 2002

Facts: TJ admitted ex-wife’s testimony re the accused’s liking to inflict pain during sex to relate to a the trial re another woman.

Issue: Prejudice.

Analysis: Unrelated events for which he wasn’t accused. Can’t admit evidence that only blackens his record. Inferring guilt solely from knowledgte of character is not allowed. We must recognize that individuals are not robots, they’re capable of change. In Makin, the guy had dead babies buried in yards of current and former residences, because odds were overwhelmingly against this being coincidence, it was allowed. As usual exceptions will be made where PV outweighs PE, such will be rare in cases like this one. Propensity reasoning, based on evidence, is not ruled out, it is probably an inevitability. but introducing evidence exclusively to demonstrate propensity is forbidden. Disposition of the accused is not an issue in question. Being an issue in question is only one indicium of admissibility. In Lepage, a roommate testified that the accused was in the drug business. This was seen by Sopinka as not a suggestion that the accused was merely the type of person to posess drugs, rather it was relevant to whether or not he was guilty of this particular charge of possession. Some have suggested only allowing SFE if it is virtually conclusive on the issue of guilt/innocence.

Morrison and Wayland article

- mostly can’t plead similar fact evidence in Ontario, but sometimes you can

R v Starr SCC 1998

Dicta: The following factors govern the admissibility of hearsay evidence

- Its admissible if it falls under an exception to the hearsay rule.

- Exceptions can be interpreted and conformed to N/R

- If admissible under an exception, the judge can still refuse it b/c of PV/PE and vice versa

Statements of present intention are an exception to the rule against hearsay. These statements are prima facie reliable, but this exception doesn’t apply where a reasonable doubt can be cast on their reliability.

Issue: How does Khan apply to established exceptions to hearsay rule?

Ratio: Hearsay must be approached on a case by case basis, established exceptions provide guidance, but N and R must be shown in all cases. Where the principled approach conflicts with existing rules, principled approach prevails.

Non-compellability of accused persons at their own trials

- Other than corporations, accused persons can’t be compelled to testify against themselves

- Sometimes people can be non-compellable in other situations, such as hearings which might reveal self-incriminatory evidence.

- In non-criminal proceedings, one party can force the other to testify

- You can refuse to testify, but if you choose to testify, you must answer all, including self incriminatory, questions

- This right is enshrined in 11(c) of The Charter.

- 11(c) forbids compulsion to testify against oneself when charged with ‘an offence.’ So what is an offence?

- Martineau v Canada established that an offence doesn’t include duties paid proceedings. The proceedings were found to be aimed at recovery of funds, not to punish or stigmatize M.

- Three conditions very important:

1. the person must be compelled to be a witness

2. in proceedings against that person

3. in respect of an offence

- This would not include a police interrogation

- Co-accused at a joint trial can’t force each other to testify.

- Martineau was unique b/c testifying in one proceeding would have constituted evidence against him in another proceeding, one of a criminal nature. Thus, testimony in the non-crim proceeding couldn’t be compelled.

- Failure to testify can’t be interpreted as evidence of guilt, but can be interpreted as evidence of an inability to raise a reasonable doubt where an BARD is already shown. R. v. Noble.

- Canada Evidence Act s. 4(6) prevents the Crown/Judge from commenting on a failure to testify

- McConnell v R suggests referring to an accused’s silence will only be tolerated if it doesn’t imply the silence is a cloak for guilt. ie, a judge could say, ‘this part of the Crown’s submission has not been answered’

- Vezeau v R, SCC held you can’t tell the jury they can’t consider an accused’s silence.

- An accused blaming a co-accused can comment on the co-acc’s failure to testify

- R v Darrach is a case where a dude needed to testify in order to exercise a right to a rebuttal extended under the relevant section of the criminal code. The court found this didn’t violate his right to silence, since it was his choice to argue this evidence. This is called tactical compulsion. It only occurred because of the strength of the crown’s argument, not because of a rule of law etc.

Methods of Presenting Evidence

- Court entitled to evidence from all persons competent to testify

- Common law had many exclusions, most have been eliminated by statute. Still, kids and spouses are often exempt from testimony

- Persons over 14 are considered competent to testify unless the court accepts a challenge to the person’s competency based on some justifiable issue.

- Children under 14 are screened regarding competency to testify

- Competency is two pronged:

1. Capacity, meaning the capacity to observe, recollect and communicate

2. Responsibility: acceptance of the responsibility to testify truthfully

- These are now espoused in s.16 of the CEA

- Judge rules on competence after inquiry is held

- R v Marquard: Court must determine if the person can generally perceive, remember and communicate events, but not necessarily the events in question.

- R v Leonard in OCA established the following test for understanding of the moral obligation

o An appreciation of the solemnity of the occasion

o An understanding of the elevated responsibility to tell the truth over the standard employed in regular social conduct

o Understanding what it means to tell the truth in court

o Appreciation of the practical and moral consequences of lying in court

HEARSAY

Hearsay is an out of court statement offered to prove the truth of its contents. This includes an implied statement, an assertion revealed through actions if not words. If the action was not intended to communicate a message, courts are divided as to whether the statement qualifies as hearsay. An out of court statement also includes a previous statement made by a witness who testifies.

Absent an exception, hearsay is not admissible. SCC has not given a definitive definition because of the difficulty of determining all hearsay situations.

The problem with hearsay is the difficulty in determining other circumstances regarding the statement’s reliability.

If a person testifies in an injury suit that a customer told the manager there was ice on the steps an hour before someone slipped, that can be used to prove notice of the hazard, but not as evidence that the hazard existed.

R v Collins SCC 1987

Facts: Cop throws a woman to the ground on the basis that other cops told him that she had heroin. Trial court rules this is hearsay.

Issue: Is it hearsay?

Ratio: It is admissible in terms of whether the cop had grounds to suspect, but not admissible as evidence that she had heroin.

R v Perciballi OCA 2001 affirmed SCC 2002

Ratio: Pointing at something amounts to hearsay as much as verbally indicating the thing.

PRINCIPLED APPROACH

Ares v Venner SCC 1970

Facts: Dude suing Dr for amputating leg. Wants to use notes made by nurses on his chart.

Issue: Notes are hearsay since nurses are available for x-xamination, but he doesn’t know which one made which note

Ratio: admitted based on PV/PE

Whereas the traditional common law exceptions were rigid & absurd, the Starr principled approach is driven by the guiding principles of necessity and reliability. These should be considered together. Very necessary ( less stringent reliability requirement and vice versa.

• Necessity: Choice of either receiving evidence untested or losing evidence entirely

• Reliability: Finding some substitute for the traditional test of cross-examination

o Threshold reliability: relates to whether the statement contains indicia of truth. Up to judge.

o Ultimate reliability: Eventual conclusion about whether it should be accepted as true. Up to the trier of fact.

R v Khan SCC 1990

Facts: Kid tells mom of sexual assault 15 minutes after leaving the Dr.’s office.

Issue: Hearsay? Admissible?

Dicta: Threshold reliability from several factors including:

- Resonably contemporaneous with alleged event

- Age of child rendering understanding of accusation unlikely

- No motive to lie

- Statement made without suggestion

(not a comprehensive list)

Analysis: Kids testimony often unreliable, pretty hard to cross-examine in such a case.

Ratio: Mother’s evidence admitted after considering all the evidence.

R v Mapara SCC 2005

Issue: Is evidence by another dude that the accused plotted a murder admissible or double hearsay? Should co-conspirators’ exception to hearsay be changed under principled approach?

Analysis: Acceptable under co-conspirators’ exception to the hearsay rule: statements made during a conspiracy are admissible if they are made in contribution to the conspiracy.

Ratio: Principled approach doesn’t mean lacking in credibility automatically defeats evidence. This was the gist of the appellant’s argument and its crap. Admissibility is determined by looking at all factors. Appeal denied.

R v Blank SCC 2006

Issue: Does litigation privilege (pertaining to secrecy of files in litigation matters) expire when the litigation is over? Litigation privilege applies to a broader spectrum of issues than solicitor-client privilege, for example contact with third parties re the potential litigation.

Analysis: SCP based on the importance of open disclosure to dealings with one’s lawyer, LP is based on non-disclosure prematurely.

Ratio: The phrase ‘solicitor-client privilege’ in the Access Act should be interpreted as referring to both the legal advice privilege and the litigation privilege. LP is not a permanent right, it expires with the litigation. Litigation privilege still applies if similar litigation may arise. Test is whether documents were prepared for the dominant (as opposed to substantial or sole) purpose of the litigation.

R v Babcock SCC 2002

Facts: s. 39 of CEA is where cabinet secrets are protected. Minister or whoever can declare something a national secret under that section and the court can’t entertain any applications for disclosure. This is premised on the cabinet members needing the freedom to discuss options and ideas without needing to worry about political correctness. Accordingly, they can evaluate unpopular ideas, which is good, even if they don’t implement them.

Issue: What is the nature of cabinet confidentiality?

Analysis: Certification is generally valid if:

- done by the clerk of privy council or minister

- relates to info within s 39 (2) or (3) of CEA

- Is done bona fide

- Is done for the purpose of preventing disclosure of hitherto undisclosed info

Clerk must appropriately weigh the competing interests of disclosure and non-disclosure. Disclosure precludes later implementation of s. 39, which is only intended to prevent disclosure. Non-disclosure is a duty that cannot be waived. Can’t certify documents for info contained in other documents that have been disclosed.

Ratio: The only real possible challenge is for info that, at face value doesn’t fall into categories of s. 39 or where it can be shown that the clerk improperly exercised his/her duty. Stuff already disclosed is not withdrawable, but if it was never disclosed, s. 39 application is legitimately invoked.

Handout is the way to approach a hearsay question on the exam.

Nicholas

Ratio: TJ only looked at PE, no attention to PV. Overturn his ruling since both are important.

R v Starr SCC 2000

Dicta: TJ must only consider threshold reliability. Categorical approach still applies, but necessity and reliability can also be evaluated. Either the exceptions themselves can be modified, or in rare cases the court can conclude that the exception conforms to N and R standards, but the particulars fail those requirements. Statement of present intention must be made in a natural manner, not under suspicious circumstances. Following things should be considered when considering admissibility:

1. Is the statement adduced to prove the truth of its contents? If so, it is prima facie inadmissible as hearsay. Then the bringer of the evidence has the onus of showing it falls under one of the known exceptions.

2. Hearsay evidence is presumed admissible (a voire dire is still necessary) if it qualifies for one of the exceptions.

3. Hearsay exceptions can be challenged. If it doesn’t comply with the principled approach, it should be modified if possible to make it comply.

4. If it doesn’t meet the requirements for reliability and necessity, even falling within a defined category of exception will not make it admissible.

5. Not qualifying for a recognized exception doesn’t kill the evidence if it can still qualify under the reliability and necessity considerations.

6. If it qualifies, a judge can still overrule its admissibility if PE outweighs PV.

Certain types of evidence not to consider when assessing threshold reliability:

- Declarant’s general reputation for reliability

- Prior or subsequent statements, consistent or otherwise

- Presence of corroborating evidence

- Presence of conflicting evidence.

Basically, consider statements on their own merits, not based on other parts of the case.

Khan v College of Physicians 1990 SCC

Facts: Dr. accused of sexually assaulting young girl. She was ruled too young to testify. Thus, the mother’s testimony was the next best thing because the daughter told her about the incident 15 minutes after its alleged occurrence.

Analysis: Two exceptions possible: spontaneous utterance, or evaluate N and R, thus creating a new principled exception.

Ratio: Hearsay. A child unable to give a candid report of events from 4 years ago can open the door for an adult to whom the child spoke directly after the event.

Dicta: N and R can now be evaluated where other exclusions are unavailable.

Necessity – Not a question of necessary to the case made by either party, rather whether its necessary for the finding of truth. Party calling evidence must first make reasonable efforts to obtain direct, testimonial evidence. In Nicholas, a psychologist testifies that the victim can’t testify b/c of PTS, then hearsay can be admitted b/c its impossible for her to testify directly.

Reliability – Counteract traditional dangers to reliability with other evidence. Factors negating inaccuracy, or suggesting it, safeguards surrounding the making of the statement.

R v Czibulka OCA 2004

Great deal of attention paid to threshold reliability:

Factors that negate inaccuracy or fabrication:

- spontaneous statement

- natural statement

- made without suggestion

- Reasonable and contemporaneous with events in question

- No motive to fabricate

- against the person’s interest in whole or in part

- by a young person unlikely to know of the allegations

Safeguards that would expose inaccuracy or fabrications:

- The person had a duty to record the events

- Statement was made to public officials

- Statement was recorded

- Whether the person knew the statement would be publicized

Dangers addressed by lack of oath, presence and cross-examination:

- Person was under oath

- Statement was taped

- At the time of the statement were they cross-examined?

- Is the person now available to be cross-examined about the statement?

PRIOR INCONSISTENT STATEMENTS

PISs can be admitted for their truth where:

- Statement is made under oath/solemn affirmation

- Statement is entirely videotaped

- Opposing party has full opportunity to cross-examine the witness re the statement

- Substitutes exist for the above requirements

- Statement made voluntarily if to a person in authority and no other factors would likely bring the administration of justice into disrepute

Previously, at common law, PISs were only allowable as evidence to the witness’ reliability, not as evidence of the truth of their content.

R v B (KG) commonly called KGB SCC 1993

Facts: Without PISs, crown had no case. Four guys in a car, three told cops the accused did it, at trial all three recanted. TJ found the three lied, but current law would not allow the PISs.

Issue: Can the PISs be admitted?

Ratio: Lamer makes a new CL exception saying unavailability clearly isn’t the case, since the three testified at trial. Says necessity justifies allowing the evidence, which would otherwise be lost.

Dicta: Reliability requirement satisfied where:

- The statement is knowingly made under oath or solemn affirmation

- The statement is entirely videotaped

- Opposing party has full opportunity to cross-examine.

Absent these, other indicia of reliability can be sought out.

PIS accepted where:

1. Witness recants prior statement

2. Must meet comparative reliability indicia or a suitable substitute.

3. If made to an authority figure, must have been made voluntarily, must not call administration of justice into question.

R v U (FJ) SCC 1995

Facts: Daughter and father tell police they have had sex. Tape recorder was malfunctioning. At trial, both recant. TJ admits daughter’s evidence as a valid consideration in assessing the reliability of the father’s recantation.

Ratio: SCC overrules TJ’s reasoning, saying this is tantamount to accepting the truth of the daughter’s PIS. Evidence is, however, admitted based on the fact that the father’s statement to cops was strikingly similar to the daughter’s.

Dicta: Lamer specifies that N and R must be analysed flexibly so as not to pigeon-hole stuff too much.

- in a KGB application:

o Calling party must state its intention to bring the evidence

o calling party bears burden of proof to establish on BOP admissibility of PIS for its truth

o Calling party must prove all indicia of reliability – videotaping etc.

o Calling party must also establish the statement was voluntarily made if made to a person in authority.

SPONTANEOUS STATEMENTS

Res Gestae is not a specific exception, rather it embraces several distinct hearsay exceptions. Better term than RG is ‘spontaneous statements.’ Catergories include:

Statements of pain

- statements of current physical condition are admissible later at trial. ie My back hurts

- Statement’s of past pain are not admissible. ie My back has been like this for a week.

Statements of present mental state:

- Present state of mind statements are admissible. Hearsay exception is only necessary when they are used for the truth of their content.

- If she said “I’ll kill myself” it can be admitted as evidence that she killed herself. Not admissible if it relates to someone else’s state of mind. ie “john intends to kill me.”

Excited utterances:

- Statements made relative to an exciting event/condition are admissible if trying to prove truth of their contents and if made while declarant is under stress from the event.

- R v Bedingfield OCA 1879 and R v Leland OCA 1951 held that ‘he stabbed me’ is inadmissible, because it already happened when the statement was made. presumably crying out ‘she is stabbing me’ would be admissible

- R v Clark OCA reversed Leland, spontaneous utterances are now admissible even after the ‘transaction.’

- In Khan, it was not a spontaneous utterance, because the child’s mind was not dominated by the event. In all likelihood, the child did not realize the significance of it. In Dakin OCA 1995, a burned victim told nurses the accused had lit her on fire, this was admissible for the opposite reasons from Khan.

Statements of present sense impression:

- Statements pertaining to how a scenario is being perceived are admissible in USA, but not explicitly so in Canada.

- The idea is, with excited utterances, perception may be tainted even if concoction is not likely. In present sense cases, the excitement is absent. The time requirement is much stricter than for excited utterances, because one doesn’t remember trivial perceptions for long.

PRIOR IDENTIFICATIONS

An out of court identification is admissible where:

1. The witness makes an in-court identification

2. The witness can’t give an in-court identification, but testifies that s/he previously made an accurate identification.

Otherwise, it is hearsay, and inadmissible under the hearsay exception for prior identifications. Where a witness forgets making an id, they can’t be cross-x’d and thus evidence is inadmissible

Courts encourage earlier identifications due to the gap in time between the event and the trial. R v Swanston a witness id’d accused in a line up, but at trial was unable to id again due to him shaving his face. BCCA says the police can testify re the previous id in such a case.

In the case of a recantation by a witness at trial, McGuire and Tat stand for the principle that KGB applies. If the witness forgets facts by the time of the trial, Khan, not KGB, applies.

R v Perrier BCCA 2003

Facts: Appeal by Perrier from his conviction for robbery and confinement. One of the individuals who was arrested gave Crown testimony incriminating other individuals in the offence, including Perrier. Two of the victims had made tentative identifications of Perrier prior to the trial. Perrier appealed his conviction on the basis that the identification evidence was unreliable.

Held: Appeal dismissed. The identification evidence was used in conjunction with other evidence in supporting Perrier's conviction.

Analysis: A witness picked Perrier out of a police photo lineup, but was not 100% sure. Another witness could not pick the accused out of a police lineup, but made comments about the perpetrator’s hair colour that corresponded to the hair colour of the accused at the time of the incident. These identifications were corroborated by Braun testimony and location of an axe in Perrier’s apartment. These statements were relevant and admissible. Consequently, they are not subject to the exclusionary rule from Tat.

SECONDARY MATERIALITY AND YOUR OWN WITNESS

Generally, you can’t ask questions or present evidence to bolster you own witness’ credibility, the court begins from the presumption that witnesses are reliable. R v Siu, where a party leads such inadmissible evidence, the judge should immediately instruct the jury to disregard it.

Can’t bolster your witness’ credibility. R v Clarke: cop testified re accused’s reformation while in jail, inadmissible. Rv H(CW) BCCA established that the accused is allowed to lead evidence re their own credibility to prove their guilt/innocence as well as their level of credibility.

EXPERT EVIDENCE

R v Kyselka OCA and R v Beland SCC established that an expert witness can’t speak to the truthfulness of a witness’ statements. Only to the credibility of the witness. Recently, courts hold that where the layperson is unlikely to appreciate facts about the credibility of a witness, an expert opinion should be admissible.

PRIOR CONSISTENT STATEMENTS

Generally inadmissible, consistency doesn’t indicate truth/lack thereof. R v Demetrius: even where the content of a prior statement is indirectly ascertainable from testimony, that testimony is inadmissible.

You can use prior consistent statements to rebut an allegation of ‘recent fabrication (R v Sark NBCA 2004). It is enough that recent fabrication is implied by counsel (Welstead v Brown).

Recent complaint in sexual offences: CC s 275 does away with old laws about complainants losing credibility for failing to report promptly on their assault. Delaying disclosure, standing alone, will never create an inference of unreliability. In Bradford and F (JE) facts can arise that makes the timing relevant, in such instances, the timing is only to be considered together with all other evidence re complainant’s reliability.

Generally the accused can’t testify to having made an exculpatory statement on arrest. In R v Liu, accused can prove such statements if they testify and make themself available for cross-x. Either way, accused can’t have others testify about ESs he made. If the Crown introduces statements made by the accused, they can’t edit out the ESs, must give all context. The premise for this rule is that a jury might infer guilt if no ES was made, but silence is an option the jury may not consider.

Res Gestae can be admitted if it’s a crucial part of the story. R v George, the parents confronted accused after their daughter complained of his sexual advances. This confrontation would be nonsensical without allowing the prior consistent statement. The complaint wass admissible solely as background. If a judge or jury appears to have used such info in order to confirm the testimony at trial, a conviction must be set aside. prior statements should be admitted only where necessary to the narrative. Hoffman, R(AE)

In general, the judge should make clear to a jury that PCSs are only to be used in the limited ways listed above. This is not necessary where such limitations are obvious.

REHABILITATING THE CREDIBILITY OF YOUR OWN WITNESS

Opposing counsel can question your witness’ credibility. Once this is done, the door is open to defend your witness’ credibility. To avoid lengthy diversions, witnesses can’t comment on specific acts that speak to another’s credibility. You can ask about past conduct/association, but you can’t provide evidence. So if the witness denies the allegations, that’s what goes on the record. WTF?

Where damaging news exists about your witness (ie a criminal record), it is appropriate for you to reveal it during examination instead of giving opposing counsel the dramatic advantage of revealing it.

CHALLENGING THE CREDIBILITY OF YOUR OWN WITNESS

Hostile – a witness who does not wish to tell the truth out of motivation to hurt the party who has called him.

Adverse – a witness whose evidence is unfavourable for the party who has called him.

The scope of corss-examination allowed for a hostile witness is not clearly defined, it has something to do with discrediting and possibly also to do with eliciting new, helpful evidence for the party cross-examining.

The scope of allowable cross-x for an adverse witness is similarly murky, but includes questions to help the cross-xminor’s side. These questions may be limited to questions about prior statements, and may be more general.

Under CEA 9(2) cross-xmination doesn’t have to be under conditions of hostility or adversity of witness. Rather, it can also be done with leave of the court regarding a PIS. This is provided that the PIS is taped/written etc. Witness must be considered adverse if the PIS is oral.

Counsel should attempt to jog the memory of the witness re PISs before cross-xmining. Counsel is never allowed to attack the general credibility of a witness they call. Common law Binaris and evidence acts all back this position.

You can call other witnesses to discredit your witness. No limits on your ability to do so. If there are grounds, you can ask the judge to prefer one’s testimony over another’s.

It is important to try jogging the witness’ memory before any other techniques when the testimony is disappointing and it can be attributed to memory problems.

Cross-examination of one’s own witness is permissible under certain tests, but only with leave of the judge Rose, Szpala. Included categories are hostile and adverse. Adverse is a category created (arguably) by statute. Until SCC rules on it, case law will continue to support it as an expansion on the common law creation of ‘hostile.’ Some provincial acts explicitly allow this treatment of ‘adverse’ for others, and the CEA, it is inferred.

Scope of cross-x is ‘at large’ meaning anything to discredit testimony/add new and helpful testimony is fair game. Attacking the credibility of the witness at large is banned. This is because you are presumed to vouch for witnesses you call. If they don’t work out, you can’t suddenly turn around and say they are not credible.

Some authority exists for the notion that you can only try to discredit your witness’ testimony on cross-x, not add new/helpful facts. This authority is based on principles of fairness and interpretations of statutes. P&S prefer the approach of ‘at large.’ This is because

a. its established practice

b. no great likelihood of intimidating one’s own witness into perjury

c. common law position of vouching for your own witness is not realistic. Witnesses disappoint all the time.

d. limiting tools for challenging one’s witness does little to aid the search for truth.

OPINION EVIDENCE

- In evidence law, ‘opinion’ means ‘inference from observed fact’

- Usually opinion is left up to trier of fact, not witnesses.

- Lay witnesses can present opinions where:

o They are in a better position than the trier of fact to form the opinion

o The conclusion is one that persons of ordinary experience are able to make

o The witness, though not an expert, has the experiential capacity to make the observation and

o the opinions being expressed are merely a compendious mode of stating facts too subtle or complicated to be effectively narrated without drawing conclusions.

- Graat v R established that the SCC views distinction between fact and opinion as murky. Eliminates ultimate opinion ban for witnesses testifying.

- Concerns with expert testimony relate to junk science

- DNA evidence is a good example of fact-opinion dichotomy

- SCC moving away from threshold/ultimate reliability distinction

- Risks of expert evidence:

o Risk of uncritical acceptance by T of F

o Consider whether procedural safeguards can minimize costs

o Defence has more latitude in this regard.

- Sopinka in Mohan: Helpful is too low a standard for necessity, but shouldn’t set the standard too high.

- To question an expert, you can:

o question their methods

o question their credentials

2/28/07

1. Understand opinion evidence rules

2. Understand expert evidence rules

3. Understand knowledge debates implicit within the SCC approach to expert evidence.

Expert witnesses

3/2

- Gotta watch that you know what the case strategy is before testifying in it, because you don’t know how your words will be used.

- Tricky phrases can trick you into testifying to something you don’t believe.

- expertise established by regular submissions in the field, regularly submitting materials to the criticism of your peers.

Radek v Henderson BC Human Rights Tribunal

Facts: Respondents allege systemic discrimination specifically with regards to aboriginal people in a mall.

Analysis: Miller testified that the ‘noble savage’ and ‘degenerate indian’ sterotypes persisted in modern society. Other stereotypes he mentioned are drunk, poor, welfare bums, drain on society and more. Miller also discusses how pre-conceived notions colour interactions in immeasurable ways and that the stereotypes often have some basis in fact. C.N.R. v Canada SCC 1987 defined discrimination as the subjugation of a group whether intentional or not. Statistics are not to be over emphasized, they’re important but don’t make or break any given discrimination claim. The repondents’ claim is that Indians are disproportionately ejected from the mall. This could be shown with stats, or by proving that the policy was to treat Indians with extra suspicion. Guards at the mall accused respondents of playing the race card. Judgment rejects this, saying Radek was trying to buy a cup of coffee and got ejected, to think it was her design to start an issue is ridiculous. There was no anti-discrimination training for the guards, no aboriginal guards (or very few) and many specific incidents of aboriginal/disabled people being ejected. The policies for ejecting people from the mall specified stuff like ripped clothing as indicia of suspiciousness. In practice, however, it didn’t seem as though construction workers were thrown out, only poor people. So a policy that at face value was okay, wass not okay in proactice.

Ratio: Relies on Fornya v Chorny, BCCA 1992 for the principle that a witness’ testimony should not be evaluated as true or false based on their interest in the case or other such factors. It should be evaluated by the trier of fact based on its reasonableness in light of all possibilities. There was systemic discrimination in practice.

Miller’s qualification report

- summarizes crudentials, then summarizes statistics and observations both general and specific. concludes discrimination is present.

PRIVILEGE

- Certain questions can be refused by a witness at trial.

- Descoteaux v Mierzwinski SCC recognized privilege as the right to not disclose stuff outside of the trial setting.

- Wigmore’s four foundations of privilege See R v Ryan:

o communications must originate in confidence they won’t be disclosed

o This confidentiality must be essential to the maintenance of relationship between the parties.

o This relation must be one that the community feels should be fostered

o injury from disclosure must outweigh benefits

- R v Gruenke distinguished class privileges from case-by-case privileges. For the former, there’s a prima facie assumption that the communications are inadmissible. Onus is on party urging admission to show why they should be admissible. Class priv. includes solicitor-client and spousal communication. Case-by-case priv: assumption its not privileged, onus on party that argues against disclosure. Wigmore test is general method for CBC admissibility.

- Privilege can be waived or claimed by the owner. Waiver must be unequivocal and informed.

- If you inadvertently disclose privileged info, too bad for you, its waived.

- Rumping v DPP Husband wrote letter to wife, neither could be compelled, but letter is admissible even if it was stolen by 3rd party it would be admissible.

- Severity of crim charges makes it less likely for a court to find privity than in civil

- s 189.6 of CC affords protection for info that would otherwise be protected if it is intercepted.

- Any communication btwn client and solicitor seeking legal advice is privileged unless the communication is itself criminal or aimed at committing a crime. Privilege may be overridden where public interest is at stake or where info may enable accused to establish innocence. This is the client’s privilege, not the lawyer’s.

- When searching a lawyer’s documents, every effort must be made to contact the client.

- Maranda v Richer SCC rules that a fact arising out of sol-cli relationship presumed to be privileged, up to other party to rebut. Re billing info, Crown had argued this is not privileged, it is just a fact.

- Fink SCC established that identity is not always subject to confidentiality.

- Objects not privileged, ie the tapes in the Bernardo case. Murray should not have taken them.

- Privilege survives after death

- R v Jack Woman saw lawyer before being murdered, court allowed testimony of lawyer to demonstrate her mindset pre-death.

Communications in furtherance of crime or fraud

- This is not an exception, but a negation of SCP. This extends to intended crimes only. SCP attaches to communications re past crimes

- No privilege is absolute in Canada. Charter provisions trump.

- R v Brown clarified the test from R v McLure:

1. The information sought must not be available from any other source and

2. Accused is otherwise unable to raise a reasonable doubt.

o If this test is met, the judges must proceed to the innocence at stake test:

1. The accused seeking production of the SolCli communication must show that the communication could raise a RD as to guilt

2. The judge must then evaluate the communication to see whether it is likely that it could raise a RD.

- There must first be established that there was some privilege, if so, was it waived? These questions could render the McClure analysis unnecessary.

- Mere speculation re a file’s contents is insufficient

- SCC thinks rules such as hearsay should be lightly applied in crim cases

- McClure app should be done at the end such that the TJ can assess whether innocence is at stake or a RD has been raised. In the latter case, McClure is unnecessary. This is obviously crap, how can you know pre-judgment?

Public Safety exception:

- In Smith v Jones, SCC said where public safety or imminent bodily harm is at stake, SCP should be set aside. Three factors to consider:

o Is there a clear risk to an identifiable person/group?

o Is there a risk of serious bodily harm/death

o Is the danger imminent?

- Cory, J. calls SCP the highest privilege in Canadian courts, if it falls so do all other privileges.

Litigation privilege

- Communications btwn lawyer and 3rd party are privileged if at the time of the communication litigation was anticipated/underway and the communication was for use in that litigation

- Litigation privilege doesn’t require communications be made in confidence.

- When a lawyer commissions an examination of the client, the Dr.’s findings are subject to the same privilege as if s/he were the lawyer.

- Dominant purpose test: To determine whether litigation privilege exists, see whether the dominant purpose of info gathering was the litigation.

- Privileges lost in one proceeding will not be lost automatically in another. If X accuses Y of sexual assault and Y is acquitted and decides to sue for defamation, Y cannot use statements made by X introduced by the crown in the trial.

Spousal Privilege

- Spousal incompetence is not to be confused with spousal privilege. The latter can apply during testimony to certain types of factor, whereas the former eliminates testimony altogether.

- Authority suggests this privilege attaches itself to all communications, not just ones intended to be private.

Case by case privilege:

- SCC makes it clear that new classes of privilege will be hard to get, many professions such as doctors, teachers, accountants and others have tried to get new categories.

- Ryan demonstrates that CBC is a tough catrgory, because it lacks certainty.

Protection of 3rd person records:

- Crown obliged to disclose all evidence, 3rd party is not.

- In sex assaults, there’s a special legislated procedure for the accused to follow to compel disclosure of 3rd party facts

- If it is already disclosed to the Crown, the crown still doesn’t need to diclose it.unless witness waives their protection or the judge orders production.

- Crown can claim any info is privileged or irrelevant. This can’t be done if it prevents full answer and defence.

- R v Oconnor SCC tried to balance competing evidentiary issues in se assaults. Accused must first prove there’s a likelihood of relevant info before they can compel personal details of the complainant. Once this is done, the judge must weigh the pros and cons of allowing said evidence.

Public interest immunity

- govt documents can be protected when the judge rules that the info therein is better left a secret

- This protection is not owned by the Crown, the judge can declare it, the Crown can’t waive it. Unlike a privilege, primary purpose is the protection of information, not a relationship.

- In a criminal action, if PII is claimed and the claim is rejected then the Crown can choose to disclose or stay the proceedings.

- Carey v Ontario Ont govt asserted privilege re certain docs relating to the subject matter of the action. SCC says best way for a judge to balance competing interests is to look at the documents and see what they contain. It provides a list of considerations including level of decision making, policy concerns, particular contents, importance of the case etc.

- s. 37 of CEA applies to specified public policy issues, provincial supreme courts or federal courts only, prov courts can’t hear s. 37 applications

- s. 38 provides that various positions are to tell the AG when they suspect protected info will be revealed, judge must then be informed so that s/he can prevent disclosure of this info at the trial.

R v Mills SCC 1999

Facts: Accused in sex assault, wishes to compel private records of victim. New bill resulting from O’Connor changed CC s 278 regarding compellability of private records of plaintiff in sex crimes.

Issue: Charter rights must be defined so as not to mess with each other. This includes right to privacy and full answer.

Analysis: Privacy rights at their highest when the trust in a therapeutic relationship is at stake. Full answer rights at their highest when it would be impossible to make full answer without the private records in question. Conditions like the nature of the records sought and the manner in which they are taken will often be enough for the judge to evaluate their compellability. Parliament and courts engage in discourse, both are entitled to make rules but only within constitutional parameters.

Ratio: This law is constitutional, it allows wide judicial discretion.

R v Oickle SCC 2000

Facts: Dude confesses after intense grilling by cops. He intimates at times that he wishes to go home, they keep interrogating him, telling him he can’t leave b/c he’s under arrest.

Issue: voluntariness of confession.

Analysis: Application of voluntariness of admissions is necessarily contextual. TJ should ask if circumstances give rise to reasonable doubts of voluntariness. relevant factors include threats or promises, oppression, the operating mind requirement and police trickery. Courts should consider whether a suspect was deprived of food, clothing, water, sleep, or medical attention; was denied access to counsel; was confronted with fabricated evidence; or was questioned aggressively for a prolonged period of time. The operating mind doctrine only requires that the accused knows what he is saying and that it may be used to his detriment. B/c of desire to protect innocent, a RD re voluntariness will render confessions inadmissible. In this case, no threats, no suggestions of leniency stemming from confession, no improper conduct

Ratio: Cops did their job, confession admissible

Dicta: The mere failure to tell a suspect that the polygraph is inadmissible will not automatically produce an involuntary confession. Courts should engage in a two-step process. First, the confession should be excluded if the police deception shocks the community. Second, even if not rising to that level, the use of deception is a relevant factor in the overall voluntariness analysis.

R v SAB SCC 2003

Analysis: Rights to reasonable expectation of privacy must find a balance with the state’s right to seek truth. In DNA cases, this is addressed by a warrant issued by a decision maker capable of balancing expectation of freedom with usefulness of evidence. Also CC restrictions of the types of offences allowing DNA evidence addresses the privacy issue. Ex parte hearings are not unconstitutional, inter parte hearings would only prolong proceedings. Reasonable grounds standard is well established at common law, good enough for DNA warrants.

Ratio: DNA regime is reasonable search and seizure, thus complies w s. 8 of Charter.

R v Edwards 1996 SCC

Facts: Dude arrested on traffic charge, cops want him for drugs, go to his gf’s place, she lets them in and shows them where his drugs are. At no time prior to being taken into custody was she advised of her right to refuse entry to the police or of her right to counsel. She gets arrested but charges dropped later.

Analysis: A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances. The factors to be considered may include: (i) presence at the time of the search; (ii) possession or control of the property or place searched; (iii) ownership of the property or place; (iv) historical use of the property or item; (v) the ability to regulate access; (vi) the existence of a subjective expectation of privacy; and (vii) the objective reasonableness of the expectation.

Ratio: No reasonable expectation of privacy at gf’s apt. No rent paid by him, not living there.

Seddon v Seddon BCSC 1994

Facts: Dude tapes his wife verbally abusing kids, wants to admit tapes as evidence in custody battle.

Analysis: Pursuant to 184 (interception of communications: illegal in all but exceptional/consensual circumstances) and 189 (reasonable notice to the other party of intent to use taped material as evidence) of CC and ss. 8, 24 of the Charter (search and seizure, Charter-violating evidence inadmissible if administration of justice will be brought into disrepute), tapings illegally made, dude did nothing to discharge duty to rebut this presumption.

Ratio: Inadmissible. Credibility an issue. Also undesirable to promote surreptitious recordings of people.

BC EVIDENCE ACT

Questioning a witness as to convictions and proving convictions

15  (1)  Subject to subsection (4), a witness may be questioned as to whether the witness has been convicted of an offence, indictable or not, and if the witness denies the fact or refuses to answer, the opposite party may prove the conviction.

(2)  On proof of the identity of the witness as the convict, a certificate that

(a) contains the substance and effect of the indictment and conviction for the offence, and

(b) is signed by

(i)  the registrar or clerk of the court, or other officer having the custody of the records of the court at which the offender was convicted, or

(ii)  the deputy of a person under subparagraph (i),

is sufficient evidence of the conviction of the witness, without proof of the signature or of the official position of the person signing the certificate.

(3)  The fee prescribed by the Lieutenant Governor in Council may be taken for the certificate referred to in subsection (2).

(4)  Subsection (1) does not apply to the questioning of a witness in a civil proceeding conducted before a jury, if the judge thinks that the questioning of that witness would unduly influence the jury.

Impeachment and contradiction of witness

16  (1)  A party producing a witness must not impeach the credibility of the witness by general evidence of bad character, but if, in the opinion of the judge or person presiding over the proceedings, the witness proves adverse, that party may

(a) contradict the witness by other evidence, or

(b) subject to subsection (2) and by leave of the judge or person presiding, prove that the witness made at other times a statement inconsistent with the present testimony of the witness.

(2)  Before giving the proof referred to in subsection (1) (b),

(a) the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and

(b) the witness must be asked whether or not the witness made the statement.

Testimony outside courtroom or behind screen

72  (1)  In a proceeding in which it is alleged that a person has been physically or sexually abused, the judge, justice or other presiding officer may order that that person testify outside the courtroom or behind a screen or other device that would allow that person not to see the person alleged to have committed the abuse if,

(a) at the time the proceeding commenced, the person alleged to have been abused has not reached age 19, and

(b) the judge, justice or other presiding officer thinks that the order is necessary to obtain a full and candid account of the alleged abuse from the person alleged to have been abused.

(2)  A person referred to in subsection (1) must not testify outside the courtroom under that subsection unless

(a) arrangements are made for

(i)  any other party to the proceeding,

(ii)  the judge, justice or other presiding officer, and

(iii)  the jury, if any,

to watch the testimony of that person by means of closed circuit television or otherwise, and

(b) the person alleged to have committed the abuse is permitted to communicate with his or her counsel while watching the testimony.

(3)  Nothing in this section prevents a court from receiving evidence of a person referred to in subsection (1) of this section under and in accordance with section 73.

Witness testifying by closed circuit television or other technology

73  (1)  In this section:

"court" means the court, judge, justice or other presiding officer before whom a proceeding is held or taken;

"proceeding" means a proceeding in the Court of Appeal, the Supreme Court or the Provincial Court.

(2)  A court may allow a witness to testify in a proceeding by means of closed circuit television or any other technology that allows the court, the parties and the witness to engage in simultaneous visual and oral communication, unless

(a) one of the parties satisfies the court that receiving the testimony in that manner would be contrary to the principles of fundamental justice, or

(b) the technology is not available for the proceeding.

(3)  If a party objects to the court receiving evidence in the manner described in subsection (2), the court may consider any of the following circumstances:

(a) the location and personal circumstances of the witness;

(b) the costs that would be incurred if the witness had to be physically present;

(c) the nature of the evidence the witness is expected to give;

(d) any other circumstance the court considers appropriate.

(4)  A party intending to call a witness to give evidence in a proceeding by means described in subsection (2) must

(a) give notice of that intention to the court before which the evidence is to be given and to all of the other parties, and

(b) pay all costs associated with the use of the technology unless otherwise ordered by the court.

(5)  Notice must be given under subsection (4) (a)

(a) at least 5 days before the witness is scheduled to testify in the proceeding, or

(b) if the court considers it appropriate in the circumstances, within some shorter period specified by the court.

(6)  The court must require evidence under subsection (2) to be given

(a) under oath in accordance with the law of British Columbia,

(b) under oath in accordance with the law in the place in which the witness is physically present, or

(c) in another manner that demonstrates that the witness understands that he or she must tell the truth.

(7)  When a witness outside of British Columbia gives evidence under subsection (2), the evidence is deemed to be given in British Columbia, and given under oath in accordance with the law of British Columbia, for the purposes of the laws relating to evidence, procedure, perjury and contempt of court.

(8)  Nothing in this section prevents a court from receiving evidence of a witness by means described in subsection (2) if the parties consent.

CRIMINAL CODE

275. The rules relating to evidence of recent complaint are hereby abrogated with respect to offences under sections 151, 152, 153, 153.1, 155 and 159, subsections 160(2) and (3) and sections 170, 171, 172, 173, 271, 272 and 273.

* These sections include exploitation of minors, incest, anal intercourse, prohibited sexual conduct, indecent acts, sexual assaults of all kinds.

277. In proceedings in respect of an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, evidence of sexual reputation, whether general or specific, is not admissible for the purpose of challenging or supporting the credibility of the complainant.

715.1 (1) In any proceeding against an accused in which a victim or other witness was under the age of eighteen years at the time the offence is alleged to have been committed, a video recording made within a reasonable time after the alleged offence, in which the victim or witness describes the acts complained of, is admissible in evidence if the victim or witness, while testifying, adopts the contents of the video recording, unless the presiding judge or justice is of the opinion that admission of the video recording in evidence would interfere with the proper administration of justice.

(2) The presiding judge or justice may prohibit any other use of a video recording referred to in subsection (1).

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