INTRODUCTION: BASIC CONCEPTS
SOURCES AND GOALS OF THE LAW OF EVIDENCE
The Fundamental Rule of the Law of Evidence
“Everything that is relevant to a fact in issue is admissible unless there is a legal reason for excluding it”.
Two considerations determine whether a piece of evidence is relevant:
(1) Factual relevance (“relevance”)
(2) Legal relevance (“materiality)
If a piece of evidence is admitted, it only means that it can be considered by the trier of fact. It may be given very little, or no, persuasive weight.
“Legal reason for excluding it”
The law recognizes many grounds for the exclusion of relevant evidence:
(1) To admit it would distort the fact-finding function of the court.
(2) Its admission would unnecessarily prolong a trial or confuse the issues.
(3) Its admission would undermine some important value other than fact-finding
(4) Manner in which it is acquired, or presented, is inconsistent with the nature of trial process.
(5) Where its “probative value” is outweighed by it “prejudicial effect”.
Note: The Crown’s favourite section of the Criminal Code is s.686(1)(b)(iii) (the “proviso) which allows an appellate court to affirm a conviction even though some improper evidence was introduced if the court is of the opinion that no substantial wrong or miscarriage of justice has occurred.
Summary – to be admissible, a piece of evidence must pass the following tests:
(1) it must be both factually and legally relevant
(2) it must not be inadmissible on any ground of law or policy
(3) its prejudicial effect must not outweigh its probative value
The Sources of the Law of Evidence
There are four sources:
(1) The Constitution
While the Canada Evidence Act does exist, no Canadian jurisdiction has enacted a comprehensive code of evidence. It is not a code as such, it is as ad hoc modification of the common law.
(3) Common law (remains the most important source of evidentiary doctrine.
(4) Aboriginal Law
SCC held that oral histories passed down by elders are a valid sourced of evidence for the determination of aboriginal rights (Delgamuukw).
The Trial Process
With very few exceptions, all facts have to be proved or disproved through the testimony of witnesses. Testimony is elicited through questions put by counsel (or by the parties themselves if they are unrepresented) and, occasionally, by the trial judge.
Examination in chief: the questions asked by the party calling a witness.
Cross examination: the questions asked by other parties.
At the conclusion of cross-examination, the party who called the witness may re-examine the witness to address any matters arising from the cross-examination that were not addressed in the examination in chief.
Every criminal trial begins with a charging document called the indictment, or the information. Before the trial begins, the Crown has a constitutional duty to disclose all relevant and non-privileged information to the defence (R v Stinchcombe), but there is no corresponding disclosure obligation on the defence. The Crown calls its witnesses first (since it’s the Crown’s job to prove facts it alleges beyond a reasonable doubt). Once the Crown’s case is complete, the accused may (but need not) call witnesses. The judge is required to provide reasons for the decision (R v Sheppard).
Voire Dire (to determine conditions precedent to the admission of evidence)
In a trial by jury, it may be necessary to hold a “voir dire” (a trial within a trial) to determine the facts that are a condition precedent to the admissibility of evidence.
The voir dire is held out of the presence of the jury, since knowing that the accused had confessed would be highly prejudicial if the confession is held to be inadmissible.
Appealing on the Basis of Evidence Rulings in Criminal Cases
The accused may appeal from conviction on a question of law, as well as on other grounds, while the Crown may appeal from acquittal only on a question of law. A trial judge’s decision to admit or to exclude evidence is a question of law.
Fresh Evidence on Appeal
An appeal is argued on the basis of the record of evidence at the trial, but in an appropriate case, the appellate court has the power to hear additional evidence (CC, s.683).
Civil proceedings begin with a statement of claim from the plaintiff, a statement of defence from the defendant, and further pleadings from any other parties to the action. Following the exchange of pleadings, the rules of civil procedure provide for pre-trial discovery. The pleadings frame the issues in the action and provide the basis for determining whether evidence is relevant to a material issue. An admission of act in a pleading dispenses with the need to prove that fact at trial. The party’s affidavit on production disclosing documents relevant to the action is often an important source of evidence. The examination for discovery enables the examining party to assess the strengths and weakness of the case. Moreover, if the party changes his or her story at trial, the transcript of the examination for discovery can be used to impeach his or her credibility
(1)Pleadings (2)Discovery of documents (3)Examination for discovery/depositions (4)Trial (5)Judgment
General rule – parties must prove or disprove all facts in issue through the oral (viva voce) evidence of witnesses.
In order to testify – a witness must be competent and must either swear an oath to tell the truth or satisfy one of the statutory substitutes for the oath.
At common law, a spouse is an incompetent witness in criminal proceedings in which the other spouse is accused, except where the charge involves the “person, liberty or health” of the witness spouse (Lord Audley’s Case (1631)). The spouses testimony was deemed to be inherently unreliable.
The Canada Evidence Act now states that spouses are competent witnesses for the defence, but not for the prosecution. The basis for the continuing existence of the rule of spousal incompetency today is the danger to marital harmony or making a spouse a competent witness and the natural repugnance to every fair-minded person to compelling a wife or husband to be the means of the other’s condemnation.
Canada Evidence Act
Accused and Spouse
4. (1) Every person charged with an offence, and, except as otherwise provided in this section, the wife or husband, as the case may be, of the person so charged, is a competent witness for the defence, whether the person so charged is charged solely or jointly with any other person.
Accused and Spouse
(2) The wife or husband of a person charged with an offence under subsection 136(1) of the Youth Criminal Justice Act or with an offence under any of sections 151, 152, 153, 155 or 159, subsection 160(2) or (3), or sections 170 to 173, 179, 212, 215, 218, 271 to 273, 280 to 283, 291 to 294 or 329 of the Criminal Code, or an attempt to commit any such offence, is a competent and compellable witness for the prosecution without the consent of the person charged.
Communications during marriage
(3) No husband is compellable to disclose any communication made to him by his wife during their marriage, and no wife is compellable to disclose any communication made to her by her husband during their marriage.
Offences against young persons
(4) The wife or husband of a person charged with an offence against any of sections 220, 221, 235, 236, 237, 239, 240, 266, 267, 268 or 269 of the Criminal Code where the complainant or victim is under the age of fourteen years is a competent and compellable witness for the prosecution without the consent of the person charged.
(5) Nothing in this section affects a case where the wife or husband of a person charged with an offence may at common law be called as a witness without the consent of that person.
Failure to testify
(6) The failure of the person charged, or of the wife or husband of that person, to testify shall not be made the subject of comment by the judge or by counsel for the prosecution.
Who is a spouse?
R v Salituro (1991) 3 SCR 654 (forging wife’s name on cheque)
PRINCIPLE: an irreconcilably separated spouse is a competent witness for the prosecution (where they became divorced by the time of trial, though not at the time of the offence).
FACTS: The appellant admitted to signing his wife’s name on a cheque payable jointly to her and to him. His defence was that he had her authority, but Mrs. S denied this and the trial judge accepted her evidence over his and convicted him of forgery. Without the testimony of Mrs. S, the appellant would not have been convicted. The trial judge concluded on the basis of the appellant’s testimony that they were separated without any reasonable possibility of reconciliation at the time the appellant forged his wife’s signature.
ISSUE: whether a spouse who is separated from his or her spouse without reasonable possibility of reconciliation can testify as a witness for the prosecution?
HELD: the common law rule making an irreconcilably separated spouse an incompetent witness for the prosecution against the other spouse is inconsistent with the values in the Charter. Society can have no interest in preserving marital harmony where spouses are irreconcilably separated because there is no martial harmony to be preserved. Where spouses are irreconcilably separated, there is no marriage bond to protect and we are faced with a rule which limits the capacity of the individual to testify.
Judges can and should adapt the common law to reflect the changing social, moral and economic fabric of the country. As McLachlin J indicated in Watkins, in a constitutional democracy such as ours it is the legislature and not the courts which has the major responsibility for law reform. The rule making an irreconcilably separated spouse an incompetent witness is inconsistent with the values enshrined in the Charter, and preserving the rule would be contrary to this court’s duty to see that the common law develops in accordance with Charter values. To give paramountcy to the marriage bond over the value of individual choice in cases of irreconcilable separation may have been appropriate in Lord Coke’s time, when a woman’s legal personality was incorporated in that of her husband, but it is inappropriate in the Charter age.
R v Hawkins (1996) 3 SCR 1043 (marriage of partial convenience)
PRINCIPLE: the spousal incompetency rule applies even if one reason to wed was to prevent the spouse from testifying.
FACTS: H, a police officer, was suspected of providing members of motorcycle gangs with confidential information. H’s girlfriend, Graham, testified at the preliminary inquiry but later recanted her testimony. H and G married between the preliminary inquiry and the trial. The trial judge and the CA held G was not a competent witness.
ISSUE: Should the spousal incompetency rule apply to a marriage solemnized after the issuance of an information or indictment or one entered into to insulate a witness from being called by the prosecution?
HELD: Graham was not a competent witness for the Crown, her viva voce evidence could not be admitted at trial. The common law renders a spouse, willing or not, incapable of testifying for the prosecution in relation to events which occurred both before and during the marriage.
Lamer and Iacobucci:
The rule of spousal incompetency renders a spouse incapable of testifying in relation to events which occurred both before and during the marriage (Pedley v Wellesly (1829)).
“A marriage which is motivated by a desire to take advantage of the spousal incompetency rule may nonetheless be a true marriage, deserving of the law’s protection. It has long been recognized at common law that a spouse is entitled to rely on the benefits of spousal incompetency even if one of the purposes of the marriage was to preclude testimony before a court (the rule of spousal incompetency applies “whatever the motive for marrying” – Wigmore).
At the time of this Court’s hearing, the couple were approaching their seventh wedding anniversary. There was no evidence that either of the two partners had failed to fulfil their reciprocal obligations of care and support. Under the circumstances, making Graham compellable by the Crown would threaten the couple’s genuine marital harmony and undermine the purpose of the spousal incompetency rule.
We emphasize that the matter may be different if the evidence clearly established that the only purpose of the marriage was to avoid criminal responsibility by rendering a key witness uncompellable and that the partners had no intention of fulfilling their mutual obligations of care and support. In such circumstances, the marriage would be a “sham”, and the court may be willing to take this into account.
Common law relationships
R v Duvivier (1990) 75 OR (3d) 203 – a common law couple tried to argue the spousal incompetency rule applied to them under s.15.
Held: the witness and the accused were indeed in a “quasi-marital relationship”, but the witness did not belong to an analogous group as required for protection under s.15.
“Johnson is not a spouse. However, it is not just members of a quasi-marital relationship who are compellable. A daughter is compellable against her mother, a father against his son – al no matter whether they live in the same household or not.
R v Thompson (1994) 155 AR 9 (CA) – “a person who chooses not to embrace any meaningful form of matrimony cannot, in the absence of any legal or conscience impediment, claim to be the victim of invidious discrimination when ... he does not receive the benefits society confers upon those that choose matrimony”.
Same sex couples
Since same sex couples can now marry, this is no longer an issue.
Does Spousal Competence Imply Compellability?
At common law, a witness who is competent is also compellable.
Gosselin v The King (1903) – the competent spouse is compellable as well.
BUT, s.4(1) Canada Evidence Act – states that only the witness is competent for the prosecution, and make no reference to compellability.
R v McGinty (1986) 52 CR (3d) 161 (wife hit husband with meat clever)
PRINCIPLE: spouses are both competent and compellable witnesses in cases of violence of one upon the other (under s.4(5) – common law exception).
FACTS: Ms. McGinty and Mr. McKnight were a common law couple with two children. One night the two had an argument which escalated into a wrestling match and Ms. M struck Mr. M with a meat clever. She was charged with assault causing bodily harm. Three weeks before the trial they got married. At the trial, Mr. M was called as a witness but did not wish to testify since they were doing well in counselling. Trial judge ruled he was a compellable witness and she was convicted on his testimony.
ISSUE: what is the common law on the issue of the compellability of spouses in cases of violence against one of them?
HELD: Mr. M was both competent and compellable against his wife. In my opinion, a rule which leaves to the husband or wife the choice of whether he or she will testify against his aggressor-spouse ... leaves the victim-spouse open to further threats and violence aimed at preventing him or her from testifying. It seems to me better to leave the spouse no choice and to extend to married persons the general policy of the law that victims are compellable witnesses against their aggressor. A crime committed against a spouse is as much a crime against a stranger, and should bear the same consequences. I conclude that as a matter of policy, husbands and wives should be competent and compellable witnesses against each other in cases of crimes of violence perpetrated by the one upon the other.
It is agreed that at common law Mr. M could have testified against Ms. M notwithstanding their marriage, since the offence involves violence by Ms. M. Section 4(5) of the Act is applicable, and the common law governs.
“the long-recognized and fundamental principle that a competent witness is a compellable witness”.
R v Curran (1978) (Ont) – a spouse was both competent and compellable in cases of violence against her by her spouse.
Policy – see p.42-43
The Oath and Its Substitutes
In order to testify, a witness must give some formal indication that he or she will be truthful. For many years, the oath had to be a Christian oath. Evidence acts now provide that evidence may be received on oath or solemn affirmation (ss.14 and 15, Canada Evidence Act) or unsworn evidence (s.16, Canada Evidence Act).
What must the party proposing the witness show in order to satisfy the trial judge that the witness is competent to testify?
R v Bannermman (1966), 48 CR 110 (Man. CA) (young boy witness was sexually assaulted)
PRINCIPLE: All that is required when on speaks of an understanding of the “consequences” of an oath (does not apply to affirmation) is an appreciation of assuming a moral obligation, not of undertaking the possibility of supernatural punishment AND the same understanding applies to adults.
FACTS: B was charged with unlawfully having sexual intercourse with a girl under 14 and with gross indecency with her brother. The brother, Frankie Smith, was 12 or 13 at the time of the trial. When swearing his oath, FS stated that it was “bad” to lie, but didn’t state any belief in eternal punishment.
ISSUE: Could FS be sworn even if he did not believe he would go to hell for breaking his oath?
B’s argued: the common law required a belief in supernatural punishment for oath-breaking.
Crown argued: FS understood the nature and consequences of an oath, regardless of whether he believed he would be punished by God for breaking one.
HELD: FS could be sworn even though he did not believe he would go to hell for breaking his oath.
“In my opinion all that is required when one speaks of an understanding of the ‘consequences’ of an oath is that the child appreciates it is assuming a moral obligation”. FS understood that the consequence of taking an oath to be such that it placed him under a moral obligation to tell the truth, a breach of which moral obligation would be “bad” and “wrong”. Undertaking the possibility of supernatural punishment is not required.
R v Flectcher – CA said that for a child to take an oath, all that had to be determined was “whether the child has a sufficient appreciation of the solemnity of the occasion, and the added responsibility to tell the truth, which is involved in taking the oath”
Applies to adults – “All of the cases involved child witnesses. They are nonetheless relevant to adult witnesses as well because they are ultimately concerned with whether the witness, child or adult, understand the nature of an oath”.
The Solemn Affirmation
Canada Evidence Act
Oaths and Solemn Affirmations
14(1) Where a person called or desiring to give evidence objects, on grounds of conscientious scruples, to take an oath, or is objected to as incompetent to take an oath, such person may make the following affirmation:
I solemnly affirm that the evidence to be given by me shall be the truth, the whole truth, and nothing but the truth.
(2) Upon the person making such solemn affirmation, his evidence shall be taken and have the same effect as if taken under oath.
R v Walsh (1978), 45 CCC (2d) 199 (Ont.CA) (Satanist witness)
PRINCIPLE: if a witness is incompetent to take an oath since it would not bind his conscience, he may be competent to take a solemn affirmation (s.14) if he appreciates the penal sanctions of giving false evidence.
FACTS: Walsh was charged with possession of stolen property. The main witness was Harford, a self-professed Satanist. H refuses to take an oath. Sometimes, H says he’ll tell the truth if he feels like it or if it seems like a good idea at the time; other times, he says he will answer the questions truthfully in this case. He knows that he can be punished if he fails to tell the truth but does not feel any obligation to society to tell the truth. The trial judge held that H was not competent to testify and W was acquitted. The Crown appealed to the Ont. CA.
ISSUE: was H competent to testify?
W argued: H was not competent to be sworn and had neither a conscientious objection to swearing nor was incompetent as required to be able to affirm.
Crown argued: although H could not be sworn, he should have been offered an opportunity to affirm.
HELD: H was held to be incompetent to take an oath since it would not bind his conscience, but was not incompetent to testify on affirmation. Moral depravity or a disposition to lie does not render a witness incompetent to testify.
“It will be observed that although the witness acknowledged that in a hypothetical situation he would be prepared to lie if he perceived no benefit to himself in telling the truth, he, none the less, asserted that he would tell the truth in the case before the Court, because he could not live with himself otherwise”.
He never refused to affirm under s.14 and indeed was not given the opportunity to affirm.
The words “is objected to as incompetent” do not refer to mental incompetency but to incompetency to take an oath on the ground that the oath would not bind the conscience of the witness because of an absence of religious belief.
Note: this makes the standard for affirming pretty low.
At common law, children and others who were unable to understand the meaning of an oath were incompetent to testify. Section 16 of the Canada Evidence Act provides for a series of substitutes for the oath in the case of a child or a person whose mental capacity is at issue.
Canada Evidence Act
Oaths and Solemn Affirmations
Witness whose capacity is in question
16. (1) If a proposed witness is a person of fourteen years of age or older whose mental capacity is challenged, the court shall, before permitting the person to give evidence, conduct an inquiry to determine
(a) whether the person understands the nature of an oath or a solemn affirmation; and
(b) whether the person is able to communicate the evidence.
Testimony under oath or solemn affirmation
(2) A person referred to in subsection (1) who understands the nature of an oath or a solemn affirmation and is able to communicate the evidence shall testify under oath or solemn affirmation.
Testimony on promise to tell truth
(3) A person referred to in subsection (1) who does not understand the nature of an oath or a solemn affirmation but is able to communicate the evidence may, notwithstanding any provision of any Aca solemn affirmation, testify on promising to tell the truth.
Inability to testify
(4) A person referred to in subsection (1) who neither understands the nature of an oath or a solemn affirmation nor is able to communicate the evidence shall not testify.
Burden as to capacity of witness
(5) A party who challenges the mental capacity of a proposed witness of fourteen years of age or more has the burden of satisfying the court that there is an issue as to the capacity of the proposed witness to testify under an oath or a solemn affirmation.
R v Khan (1990) 2 SCR 531, 59 CCC (3d) 92 (“birdy in mouth” – competency of child witness)
PRINCIPLE: a child witness, under s.16 CEA, need only understand the duty to speak the truth in everyday social conduct which can be demonstrated through questioning.
FACTS: While T’s mother was changing for an examination, K allegedly sexually assaulted the young girl. She knew what a lie was, but didn’t know what the bible said about it. The trial judge held T was not competent to give unsworn evidence and also refused to admit the evidence of the mother as to her conversation with T on the basis that the statement was not contemporaneous. The appellant was acquitted of the charges.
ISSUE: did the trial judge err in law in holding that the child was incompetent to give unsworn evidence?
Crown argued: did not contend that she was competent to give evidence under oath. It submitted, however, that her unsworn evidence should be received under s.16 CEA because she was able to understand the importance of telling the truth.
K argued: T was not able to understand the duty of speaking the truth.
HELD: A child need not understand the duty to tell the truth or appreciate what happens when a person lies in the courtroom. The child need only understand the duty to speak the truth in terms of ordinary everyday social conduct. This can be demonstrated through a simple line of questioning directed to whether the child understands that it is wrong to lie, understands the necessity of telling the truth, and promises to do so.
The court erroneously applied Bannerman which applied to “oaths” not “unsworn evidence” – “Before a person can give evidence under oath, it must be established that the oath in some way gets a hold on his conscience, that there is an appreciation of the significance of testifying in court under oath. It was wrong to apply this test, which T clearly did not meet, to s.16, where the only two requirement for reception of the evidence are sufficient intelligence and an understanding of the duty to tell the truth.
The trial judge also erred in placing critical weight on the child’s young age. The Act makes no distinction between children of different ages. ... Were the young age a determinative consideration, there would be danger that offences against very young children could never be prosecuted.
R v Marquard (1993) 4 SCR 223 (“My nanna put me on the stove”)
OVERRULED by the new s.16.1, Canada Evidence Act in 2006
FACTS: The complainant Debbie-Ann LeBlanc (DAL), aged 3 years, suffered a severe facial burn. She lived with her grandmother M. Her parents claimed that she had burned herself while playing with a butane lighter. The attending physician did not believe this explanation because the burn was not of the kind expected from a lighter. DAL testified unsworn at trial that “My nanna put me on the stove” and M was convicted.
ISSUE: What does the phrase “conduct an inquiry to determine ... whether the person is able to communicate the evidence” in s.16(1) CEA mean?
Crown argued: a child must simply be able to understand the truth and communicate it to the trier of fact.
M argued: the judge must not simply explore the child’s ability to understand the truth and communicate but must satisfy herself that the child is able to perceive and interpret the events in question, recollect them accurately, and communicate them at trial.
HELD: Under s.16, there must be some inquiry into the ability of the witness to testify to the matters before the court. To testify unsworn, a child must be capable of perceiving events, remembering events and communicating events to the court. The trial judge was correct to conclude DAL was capable of this.
Testimonial competency comprehends: (1) the capacity to observe; (2) the capacity to recollect, and (3) the capacity to communicate. The judge must satisfy himself or herself that the witness possess these capacities.
(1) Observe – Is the witness capable of observing what was happening?
(2) Recollect – Is he or she capable of remembering what he or she observes?
(3) Communicate – Can he or she communicate what he or she remembers?
The goal is not to ensure that the evidence is credible, but only to assure that it meets the minimum threshold of being receivable. The inquiry is into capacity to perceive, recollect and communicate, not whether the witness actually perceived, recollects and can communicate about the events in question. ... Defects in ability to perceive or recollect the particular events at issue are left to be explored in the course of giving the evidence, notably by cross-examination.
The threshold is not a high one. What is required is the basic ability to perceive, remember and communicate. This established, deficiencies of perception, recollection of the events at issue may be dealt with as matters going to the weight of the evidence.
L’heureux-Dube J (dissent): NOW THE LAW
While I share my colleague’s view that DAL’s testimony was properly admitted, I have concerns about the interpretation of s.16 of the Act.
My colleagues has found that, in addition to determining whether the child can communicate the evidence, s.16 requires the trial judge to conduct a general inquiry into the ability of the child to observe and recollect events before the evidence can be received. Such a result would run counter to the clear words of s.16 as well as the trend to do away with presumption of unreliability and to expand the admissibility of children’s evidence and may, in fact, subvert the purpose of legislative reform in this area.
We now recognize that, in general, juries are competent to assess the evidence and credibility of all witnesses, including that of children. Thus, increasingly, the practice is t admit evidence and leave the matter of what it may be worth to be weighed by the jury, absent clear policy reasons for exclusion: R v Seaboyer (1991).
The Law Now:
Prior to 2006, the s.16 inquiry in Marquard was mandatory for all child witnesses under the age of 14. That has now changed. Children, like adults, are presumed to have the capacity to testify (s.16.1(1)). An inquiry will proceed with if the child’s capacity is challenged, in which case the challenger has the burden of satisfying the court that there is an issue as to the child’s capacity (s.16.1(4)).
Canada Evidence Act
Oaths and Solemn Affirmations
Person under fourteen years of age
16.1 (1) A person under fourteen years of age is presumed to have the capacity to testify.
No oath or solemn affirmation
(2) A proposed witness under fourteen years of age shall not take an oath or make a solemn affirmation despite a provision of any Act that requires an oath or a solemn affirmation.
Evidence shall be received
(3) The evidence of a proposed witness under fourteen years of age shall be received if they are able to understand and respond to questions.
Burden as to capacity of witness
(4) A party who challenges the capacity of a proposed witness under fourteen years of age has the burden of satisfying the court that there is an issue as to the capacity of the proposed witness to understand and respond to questions.
(5) If the court is satisfied that there is an issue as to the capacity of a proposed witness under fourteen years of age to understand and respond to questions, it shall, before permitting them to give evidence, conduct an inquiry to determine whether they are able to understand and respond to questions.
Promise to tell truth
(6) The court shall, before permitting a proposed witness under fourteen years of age to give evidence, require them to promise to tell the truth.
Understanding of promise
(7) No proposed witness under fourteen years of age shall be asked any questions regarding their understanding of the nature of the promise to tell the truth for the purpose of determining whether their evidence shall be received by the court.
(8) For greater certainty, if the evidence of a witness under fourteen years of age is received by the court, it shall have the same effect as if it were taken under oath.
Effect of s.16.1, Canada Evidence Act – where does this leave us?
This could be fine. It lets all of the evidence in and then allows the weight given to the evidence to balance it. Thus, now it all goes to weight.
The section may have been a response to too many child witnesses not being heard, evidence being lost or the inquiry was not appropriate which may also result in lost evidence.
Accused’s Failure to Testify
At common law, the accused was incompetent to testify in his own defence. Section 4(6) CEA changed that (this makes it more in line with s.11(c) and (d) of the Charter).
Even though the accused has a constitutional right not to testify, it is often inadvisable for the accused to refrain from doing so. This is because, as a practical matter, where the Crown case calls out for an answer and where common sense suggests that the accused would be able to provide an answer if there was one, juror are apt to consider the failure of the accused to testify to be additional proof of guilt.
Canada Evidence Act
s.4(6) The failure of the person charged, or of the wife or husband of that person, to testify shall not be made the subject of comment by the judge or by counsel for the prosecution.
McConnell and Beer v The Queen (1968) SCR 802 (breaking in at cleaners–judge’s comment)
PRINCIPLE: A reference to the failure of the accused to testify will only be considered a “comment” for the purpose of s.4(6), Canada Evidence Act if, in context, it suggests that the accused’s silence is a cloak of guilt (a statement explaining the section is fine).
FACTS: M and B were found outside of a dry cleaner with housebreaking implements. M gave an unsworn statement to the police that the reason he was under the dry cleaner’s window was that he was relieving himself. Neither accused testified at the trial and the trial judge pointed out to the jury that they did not have to accept the unsworn explanation which M had given to the police. After defence counsel objected that such an instruction might imply that M and B had the onus of proving their innocence, the trial judge explained the accused’s right to silence. M and B appealed to the On.t CA on the grounds that these instructions violated s.4(6) CEA which prohibits any comment being made on the accused’s failure to testify.
ISSUE: Did the trial judge’s comments violate s.4(6) CEA?
Crown argued: s.4(6) was only meant to prohibit ‘adverse’ comments on the accused’s failure to testify.
M and B argued: the section prevented any comments being made about the accused’s failure to testify, whether positive or negative.
HELD: The trial judge’s comments did not violate s.4(6). They were statements explaining the law, not comments regarding the accused’s failure to testify.
Ritchie J (majority):
“Here the language used by the trial judge to which objection is taken was not so much a “comment” on the failure of the persons charged to testify as a statement of their right to refrain from doing so, and it does not appear to me that it should be taken to have been the intention of Parliament in enacting s.4(5) of the Canada Evidence Act to preclude judges from explaining to juries the law with respect to the rights of accused persons in this regard. I am accordingly in agreement with Mr Justice Evans ‘that the remarks of the trial judge viewed in context and on a reasonable interpretation do not amount to a comment in breach of the section’”.
Hall J (dissent):
“What the learned judge said in the instant case was clearly a comment. In my view, in dealing with a case of this kind, it is a case of comment or no comment. If there was a comment as in Bigaouette, an error fatal to the validity of the proceedings has occurred and the remedy is not in trying to speculate whether it had a material or no effect on the jury, but in a new trial.
Canadian Charter of Rights and Freedoms
s.11 Any person charged with an offence has the right
(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal ...
R v Noble (1997) 1 SCR 874 (two men jimmying car in apartment parking lot – neither testified)
PRINCIPLE: the failure to testify cannot be used as a factor to assist in proving the guilt of the accused under s.4(6), Canada Evidence Act because of the right to silence and the presumption of innocence. BUT, two exceptions: alibi and if already beyond reasonable doubt.
FACTS: The manager of an apartment building saw N and another man outside trying to jimmy into a car. He asked them for identification. One said that he had no identification while the other handed over an expired driver’s licence. The manager testified that he thought the licence accurately depicted the man in front of him and turned it in to the RCMP. At trial, the manager could not identify N. In convicting him, the trial judge commented that the failure of N to testify, given his obvious likeness to the photograph, “certainly may add to the weight of the Crown’s case on the issue of identification”. Thus, the trial judge convicted N of breaking and entering based on N’s silence since N did not testify in court.
ISSUE: Was the trial judge entitled to consider N’s silence in reaching a verdict?
Crown argued: nothing prevents the trier of fact from drawing an adverse inference from the accused’s silence.
N argued: convicting him based on his silence would shift part of the burden of proof to him in violation of s.11(d) of the Charter.
HELD: the trial judge was not entitled to consider N’s silence in reaching a verdict. The silence of an accused may not be used against the accused in establishing guilt beyond a reasonable doubt. Silence is neither inculpatory nor exculpatory. But there are alibi and jury exceptions.
“If silence may be used against the accused in establishing guilt, part of the burden of proof is shifted to the accused” (because the accused would then be forced to testify to clear his/her name). Thus, in a trial where the accused doesn’t testify the Crown would not have to prove the case beyond a reasonable doubt as the accused’s silence would push things over the threshold. This offends s.11(d).
“Because of s.4(6) and the absence of reasons, there is no practical way of preventing the jury from drawing an improper inference from silence. The fact that the jury is permitted to do so does not elevate the use of silence to a principle of la which should be extended to all triers of fact”.
Vezeau v R – the trial judge erred in directing a jury that they could not take the failure of the accused to testify into account. Adverse inferences are, as a matter of law, permissible in alibi cases.
Sopinka did not say that the failure to testify could never be considered by the trier of fact. There are two exceptions:
(1) Where an accused is already shown by the evidence to be guilty beyond a reasonable doubt, a trier of fact may use the accused’s failure to testify to conclude that the accused has no explanation that could raise a reasonable doubt. In truth, this permissible inference is rather pointless.
(2) In the case where the defence of alibi is advanced, adverse inferences are permitted to be drawn against the credibility of an alibi if the accused does not testify in support of his alibi.
Judge alone trials
Judges and Crowns are free to comment on the failure of the accused to testify in judge alone trials (R v Binder (1948)), suggesting that the failure to testify must have some relevance
The Examination of Witnesses
The principal difference between examination in chief and cross-examination is in the form of questioning.
Leading question – is one which is structured to drive the witness to a very narrow range of answers, sometimes to one answer only; or, as it is sometimes put, a leading question is one which suggests its own answer.
Examination in chief – leading questions are generally not permitted: the witness is supposed to tell his or her own story without too much prompting from counsel.
Cross-examination – leading questions are not only permitted but are almost always used.
Refreshing and Recording Memory
A witness is entitled to refresh his or her memory before testifying. There is no special rule relating to the device that refreshes the memory; in principle, it can be anything (R v Fliss).
When a witness cannot remember the events in question, he can testify from a record of his past recollections. In R v Meddoui, the court set out the requirements for the admissibility of past recollection recorded:
Present memory refreshed should be distinguished from past recollection recorded. Present memory refreshed is preferred, as it allows for cross-examination.
RELEVANCY, PROBATIVE VALUE, AND PREJUDICIAL EFFECT
Nothing is admissible in evidence unless it is relevant. How should relevance be determined?
The basic principle of relevance is that an item of relevance is relevant to a proposition of fact if the existence of the item of evidence makes it more likely that the proposition of fact is true than would otherwise be the case (so if you add in the piece of evidence, does it make it more likely that the fact is the case than would be the case without it). An item of evidence does not need to prove or establish the fact, it merely needs to affect the probability that the fact is true (because it can effect probability by either enhancing the probability or diminishing the probability). As long as the piece of evidence has some impact on the probability on the fact, then the relationship of evidence is established. There is no degree of probability that needs to be established.
The basic tenent of the law of evidence is that nothing is to be received in evidence that is not logically probative of some matter requiring to be proved. And everything which is probative is to be received unless its exclusion can be justified on some ground recognized by the law. One of the ways evidence can be excluded is on the ‘balancing test’ (also, under the law of hearsay, opinion evidence, bad character evidence or the charter). Only relevant evidence will be admissible.
The party who is attempting to adduce the evidence bears the burden of trying to satisfy the trial judge. The rule is that – this burden must be balanced on the probabilities – convince the court that more than not, it should be adduced.
Probative value: Evidence which is sufficiently useful to prove something important in a trial.
Prejudicial effect: Ways in which the trial process can be undermined.
Probative value VS Prejudicial value:
Probative value of proposed evidence must be weighed against prejudice in the minds of jurors toward the opposing party or criminal defendant.
The trial judge has the power to exclude evidence offered by the Crown where the prejudicial effect of the evidence exceeds its probative value (Morris). Only if the prejudicial effect “substantially” or “clearly outweighs” the probative value, will the trial judge exclude defence evidence (Seaboyer).
Probative value, is probably best understood as the trial judge’s estimate of how important the evidence, used for a legitimate purpose, is likely to be in the jury’s reasoning. Similarly, prejudicial effect is probably best understood as the trial judge’s estimate of how likely it is that the jury, even if properly instructed, will use the evidence for an improper purpose, or as the trial judge’s estimate of the detrimental effect of the evidence on other aspects of the trial process (p.127).
R v Morris (1983) 2 SCR 190 (newspaper clipping on heroin in Pakistan)
PRINCIPLE: as long as the evidence provides a connection to the crime charged, it will be admissible (considering it is not outweighed by any prejudicial effect) AND although probative value may be low, it should not be confused with the weight the trier of fact will give to it.
FACTS: The police had evidence of telephone conversation and meetings between M and persons who were in some way connected to a Hong Kong drug trafficker, Young. On searching M’s apartment, they found a newspaper clipping about importing heroin from Pakistan. M was charged with conspiring to import and traffic heroin. The trial judge admitted the clipping and convicted M.
ISSUE: whether the newspaper clipping was relevant? AND, if so, should it be excluded anyways as being overly prejudicial?
Crown argued: it was relevant – it makes it more likely that M was involved in trafficking and was not overly prejudicial.
M argued: it was not relevant – an article about Pakistan has nothing to do with importing drugs from Hong Kong and was overly prejudicial.
SCC HELD: the clipping was admissible, as there is a connection or nexus between it and the crime charged. The probative value may be low, but admissibility of evidence should not be confused with weight.
There is no threshold for relevancy; as long as there is the slightest ability for the evidence to move the trier of fact in one way or another, it is relevant. There is no threshold: only if the evidence has zero effect is it irrelevant. The clipping does have some (very slight) probative value, so it is relevant. The clipping is similar to a list of burgled premises found on a person accused of robbery.
Lamer (dissent): The evidence was sufficiently prejudicial that it should not be admitted. “Its sole relevancy is through proof of the accused’s disposition, the reasoning being as follows: that, because persons who are traffickers are more likely to keep such information than not, people who keep such information are more likely to be traffickers than people who do not, and that a person who traffics is more likely to have committed the alleged offence than a person who does not”.
Note on Morris – class discussion:
Factors to consider – if it is in the Toronto star, maybe everyone has it. Did he receive the paper from the country? Maybe he collects the articles from the author? Was it cut out, giving it more attention? What is the content of the article? is it instructive on how to trade? Did he collect other similar articles?
R v Terry (1996) 106 CCC (3d) 508 (SCC) (poem and dream referring to killing of roommate)
FACTS: The accused was charged with first degree murder of James, another resident of the rooming house in which he lived. In the days following the killing, the accused described to several friends a dream that he had in which he killed someone. Six days after the killing, he left Canada and went to stay with his girlfriend in California. The police searched his room and found a handwritten poem which could be seen as an admission of guilt or responsibility for the homicide. The trial judge admitted the poem.
ISSUE: whether the poem was relevant? And, if so, to what extent?
SCC HELD: The trial judge did not err in admitting the poem written by the accused referring to the taking of life. While its connection to the crime was said to be ‘tenuous” and its potential prejudice “considerable”, the trial judge’s careful instruction ameliorated the risk that the poem would be misused.
“The probative value of the poem on the ultimate issue was not great, given that its connection to the known events was tenuous, but its prejudicial effect was considerable. It was nevertheless admissible as a link in the chain of inferences tending to establish guilt. Evidence relating to accused's dream too was admissible as part of the narrative of the accused's conduct after the crime. It was never suggested that the jury should treat the dream as an admission of the accused's guilt. Concerns about this evidence were alleviated by the careful instruction the jury received”.
Does it matter that it is a form of artistic expression, does that defeat any claim of relevance to the poem?
The date of the poem – if it was after the homicide, that would support relevance. The tense that the poem was written (it was past tense). If no evidence as to when it was written, it may still be relevant, but less probative.
Stabbing – since the poem says ‘I drained his life away with my knife’ – if the deceased was shot, would this undercut any evidence to the poem? Premeditation argument – he may have planned to do it with a gun, then used a knife.
R v Watson (1996) (Ont. CA) (deceased had a habit of carrying a handgun)
PRINCIPLE: Evidence of habit is relevant considering its probative value outweighs its prejudicial value.
FACTS: The deceased was shot to death in a rental unit in an industrial plaza. The deceased had a habit of carrying his handgun. This unit was used as a recording studio, but also used for after hours parties. Sada was the leaseholder and it was his business. On the day of the homicide, there were three other people with him, and then three other individuals arrived at some point. By the time everything was done, Sada had been shot several times with a handgun. Cain had been shot once with a handgun and everybody else ran away. Cain was injured at the scene, and dropped off at hospital and shortly after arrested and charged. Watson and Headly vanished. Cain was convicted of second degree murder. Watson was arrested in NY. Watson was convicted of manslaughter (both cases together).
ISSUE: whether evidence lead by a witness (Mair) that the deceased (Sada) had a habit of carrying a handgun was relevant and admissible evidence.
Crown’s theory: this was an execution of Cain, Watson and Headley all acting together.
Defence/Watson argued: we just dropped by. I’m in front office, all hell breaks loose in the back. I was an innocent bystander.
Trial judge: the handgun evidence was irrelevant.
CA HELD: Mair’s proposed evidence was relevant and it cannot be said that its potential prejudicial effect substantially outweighed its potential probative value. The habit of carrying the handgun was relevant. It increased the probability that on the day of the shooting, the deceased had the handgun with him. There was no evidence that he had a habit of pulling the trigger. This did not defeat the question of relevance.
R v Corbett – La Forest J (in dissent): “All relevant evidence is admissible, subject to a discretion to exclude matters that may unduly prejudice, mislead or confuse the trier of fact, take up too much time, or that should otherwise be excluded on clear grounds of law or policy”.
R v Morris – La Forest J noted from Morris: the court affirmed that no minimum probative value is required for evidence to be deemed relevant. The court made it clear that relevance does not involve considerations of sufficiency of probative value.
“The fact that a person is in the habit of doing a certain thing in a given situation suggests that on a specific occasion in which those circumstances arose the person acted in accordance with established practice. It makes the conclusion that the person acted in a particular way more likely than it would be without the evidence of habit. Evidence of habit is therefore properly viewed as circumstantial evidence that a person acted in a certain way on the occasion in issue”.
What is “habit”?
McCormick: “the person’s regular practice of responding to a particular kind of situation with a specific type of conduct”.
There is not the same character disposition in a homicide case – You can adduce the bad character of the victim of the crime
“The evidence that the deceased always carried a gun suggested that he was a potentially dangerous person and reflected adversely on his character. Evidence suggesting that an accused is a person of bad character is subject to a specific exclusionary rule to which there are exceptions. There is, however, no such exclusionary rule in criminal cases where otherwise relevant evidence suggests that the deceased (or some other third party) is a person of bad character (R v Arcangioli). Where such evidence is relevant, it will be received unless the trial judge concludes that its potential to prejudice the jury substantially outweighs its probative value”.
Forms of prejudice:
The following list is an addition to five forms of prejudice identified by Rosenberg JA based on R v Clarke (1998), Seaboyer, McCormick and his own experience. Forms of prejudice:
1) The danger that the evidence might invite impermissible inferences (i.e. through character disposition. If only found through this, it will be prejudicial).
2) The danger that the evidence will unduly arouse the jury’s sympathies or emotions of prejudice or hostility (judge may fail to diffuse the emotive side).
3) The evidence creates a side issue that distracts from the issue. Risk of diverting juries attention to the issues that are to be decided.
4) Risk that evidence will consume an ‘undue’ consumption/amount of time. The amount of time given compared to the value of the evidence. Some evidence may be highly probative and the time may be worth it.
5) Unfair surprise to the other side. Could be a basis not to allow the evidence. This will not happen too often in civil cases given the discovery process. Should not happen in criminal due to crown’s disclosure obligations, but can happen when the defence leads surprise evidence.
6) If the evidence has the potential to be misleading or to be given undue weight by the trier of fact. Risk that the trier of fact will ascribe more weight to the evidence than in should. Risk that jury will be inclined to be more probative than it truly is.
7) Where the evidence has an impact of protected interests on the part of witnesses (s.266-7 CC – rape shield provisions).
8) If the evidence is presented that may usurp the function of the jury. Where there is a concern that the jury will simply believe the expert witness.
Probative Value and Prejudicial Effect
As indicated in Morris, at common law a trial judge has the power to exclude evidence offered by the Crown where the prejudicial effect of the evidence exceeds its probative value. In Seaboyer, the SC considered the application of this power to evidence offered by the defence, in the context of a constitutional challenge to an evidentiary statute.
Crown or defence trying to lead evidence:
Crown evidence may be excluded if its prejudicial effect outweighs its probative value.
Defence evidence, on the other hand, is looked at more generously. Only if the prejudicial effect substantially or clearly outweighs the probative value, will the trial judge exclude defence evidence. This is so because of the presumption of innocence, the right to full answer and defence and the obligation on the crown to have the burden to prove guilt. It has to be really bad before the evidence will be excluded (common law) – Seaboyer – the courts will be extremely cautious in restricting the ability of the accused to call evidence. If the balance tips only slightly in favour of the prejudice, it will be excluded, but in the case of evidence the defence is trying to lead, it must be substantially/clearly outweighed by the prejudicial effect.
Issue: Are there legitimate reasons for trying to keep evidence that she is a prostitute away from the jury? (It is incumbent on judge to caution the jury on what inferences can be made).
Her credibility is being challenged because of two different stories. It is not the mere fact of being a prostitute that is challenged (i.e. being a prostitute is being less reliable). The fact that she is a prostitute, may infer certain habit of how she was behaving on the night in question. Thus, it is not that she should not be believed because she is a prostitute, but because her habits would lead to believe that she engaged in this activity for likely.
Statutory regimes designed to limit this common law power – the Rape Shield provisions. Parliament has identified certain chains of reasoning as impermissible on the basis that it reflects outmoded ways of thinking or stereotypes. Those types of inferences will not be permitted.
Twin myths: if you engaged in sexual conduct in the past, you are more likely to do so in the future.
R v Seaboyer (1991) 2 SCR 577 (constitutionality of rape shield provisions)
PRINCIPLE: Before a judge can exclude evidence relevant to the defence, the potential prejudice to the trial process must substantially outweigh the value of the evidence.
FACTS: S and G were charged with sexual assaults. Both wanted to argue defences of consent. T their preliminary inquiries, S and G brought motions for an order declaring ss.276 and 277 CC (rape shield provisions) unconstitutional.
(1) Do s.276 and 277 infringe s.7 and 11(d) of the Charter?
(2) If so, are they saved by s.1?
(3) Does the constitutional exemption doctrine apply?
(4) If the legislation is invalid, what is the law?
Crown argued: both s.276 (which excluded evidence concerning the complainant’s sexual activity) and s.277 (which excluded evidence of the complainant’s sexual reputation for the purpose of challenging her credibility) were constitutional.
S and G argued: the sections violated the right to make full answer and defence by excluding relevant and probative evidence that might help establish a defence of consent or mistaken belief in consent.
SCC HELD: s.276 infringes ss.7 and 11(d) of the Charter and cannot be saved by s.1. s.277 is constitutionally valid. A law which prevents the trier of fact from getting at the truth by excluding relevant evidence in the absence of a clear ground of policy justifying the exclusion, runs afoul of our fundamental conceptions of justice and what constitutes a fair trial. Before a judge can exclude evidence relevant to the defence, the potential prejudice to the trial process must substantially outweigh the value of the evidence.
s.276 has the potential to exclude evidence of critical relevance to the defence that is relevant, probative, and not overly prejudicial; it cannot be said a priori that any and all evidence excluded by s.276 may fairly be excluded. For example, it might prevent the accused from leading evidence:
“A provision which categorically excludes evidence without permitting the trial judge to engage in the exercise of whether the possible prejudicial effect of the evidence outweighs its value to the truth-finding process runs the risk of overbreadth”.
R v Sweitzer (1982) – “admissibility will depend upon the probative effect of the evidence balanced against the prejudice caused to the accused by its admission”.
CC 277 Reputation evidence – In proceedings in respect of an offence under s. 151, ... evidence of sexual reputation, whether general or specific, is not admissible for the purpose of challenging or supporting the credibility of the complainant.
(2) While the legislation addresses a pressing and substantial objective, and there is a rational connection, it is overbroad, there is not minimal impairment, and there is no balance between the objective and the injurious effect.
(3) Rejects constitutional exemption.
(4) Striking down s.276 does not mean the law reverts to the old and inappropriate common law. Instead, s.276 is replaced by a section that prohibits illegitimate uses of evidence, combined with a case-by-case judgment exercised with the aid of guidelines.
Note: Court is essentially telling Parliament that they will not let them determine relevancy. The ability of the judge to determine relevancy can be constrained only in limited circumstances (such as s.277). Parliament subsequently enacted a new version of s.276, which sets out criteria for admissibility of a complainant’s prior sexual activity and ss. 276.1 to 276.5 which set out the procedure for applications under s.276. These provisions were upheld by the SCC in R v Darrach (2000).
Fact or Opinion?
R v K(A): “The opinion rule is a general rule of exclusion. Witnesses testify as to facts and, as a general rule, are not allowed to give any opinion about these facts. Opinion evidence is generally inadmissible ... it is only when the trier of fact is unable to form his or her own conclusions without help that an exception to the opinion rule may be made and expert opinion admitted”.
Witnesses may testify fact, not opinion (it is sometimes hard to draw a distinction between the two). When it is a matter of opinion, witnesses may testify as to opinion in two circumstances:
(1) when it is the subject matter of lay opinion.
(2) when the subject is a matter of expert opinion.
(1) Lay opinion evidence
Rule – First, a witness may testify as to opinion where the witness is in a better off position than the trier of fact is to form the conclusion about which the witness is testifying. It’s a question of vantage point. Secondly, the conclusion which is proposed is offered to the court, is one where ordinary people (no peculiar body of knowledge is drawn upon) can reach a conclusion. The third element of the rule, is that by expressing an opinion the witness is more capable to more accurately express the facts which s/he perceived them (since sometimes the facts as perceived can be difficult to convey orally as the facts were perceived).
R v Gratt (1982) S.C.R.
PRINCIPLE: Lay witnesses can state their testimony in the form of an opinion where by doing so they can more accurately express the facts they perceived.
FACTS: The police observed G’s car weaving while speeding. They pulled him over and observed that he seemed to be intoxicated. G was charged with driving while impaired. At trial, three officers testified that G was too drunk to drive.
ISSUE: whether a court may admit opinion evidence on the question to be decided -- here, whether the appellant's ability to drive had been impaired by alcohol?
Crown argued: the police were simply summarizing their observations of G by giving an opinion that he was too drunk to drive.
Gratt argued: the police testimony was opinion evidence that lay witnesses are not allowed to give.
HELD: The question whether a person's ability to drive was impaired by alcohol is one of fact, not of law, and non-expert witnesses may give evidence as to the degree of a person's impairment. The guidance of an expert is unnecessary. The value of opinion will depend on the view the court takes in all the circumstances. The judges, however, should not consider the opinion of police officers in a preferential way merely because they may have extensive experience with impaired drivers. Here, the non-expert evidence was correctly admitted. The witnesses all had an opportunity for personal observations. They were not deciding a matter for the court to decide as the weight of the evidence is entirely a matter for the judge who could accept all or part or none of their evidence.
Justice Dixon: “I can see no reason in principle or common sense why a lay witness should not be permitted to testify in the form of an opinion if, by doing so, he is able more accurately to express the facts he perceived”.
Gratt gives us the general principle and some criteria which govern the opinion of lay evidence – Lay persons can given opinion about degree of impairment, it does not need to be left to the trier of fact to draw conclusions. It may be that the witness is in a better position to judge than the trier of fact.
Note: you can be impaired and not over the alcohol limit (and vice versa). The police ran out of time to do the alcohol test so they had to rely on the observations made by the police.
For the most part, lay person evidence is uncontroversial.
(2) Expert Opinion Evidence
Area with fundamental changes in the law in the past decades. As a matter of legal history, courts have always been sceptical of expert opinion. The critical use that is made of expert opinion evidence is to assist the trier of fact on the available inferences that can be drawn from established facts. Once again we are dealing with opinion and conclusions drawn, but the subject matter is not capable of being determined by a lay person.
Requirements for Admissibility
The party producing the expert witness must establish the training and experience of the expert in a voir dire if the witness is challenged. The opposing party can seek to have the expert witness prevented from testifying by attacking their credentials – can continue doing so in front of the trier of fact even if the witness is allowed to testify. Witnesses can be qualified by experience as well as by formal training, education and professional qualifications.
Experts can be used to explain the significance of technical or scientific evidence to a jury that would otherwise not understand it. Experts can also draw opinions from facts that are before the jury in a way that lay witnesses cannot. Such opinions are not binding on the trier of fact who retains the ultimate responsibility for drawing such inferences.
Dangers of expert evidence
(1) Opinion will overwhelm the jury
The jury would abdicate its responsibility to the expert. It is the role of the judge or jury to be trier of fact and the concern is that the jury will just accept opinion uncritically. A related concern, is that the evidence is like to be perceived as virtually infalliable or having more weight than it truly deserves (particularly for scientific evidence). These concerns grow the closer it gets to the ultimate issue.
(2) Junk science
The opinion is being offered by someone who appears to have credentials, but a few years later the theory is discredited.
(3) It is often quite resistant to cross-examination
We are dealing with an area that requires expert knowledge and lawyers are not experts in those areas. They can work hard to understand the area, but not close enough to being an expert in the area. Thus, cross examination can be hampered.
(4) Contests between experts
The victory will go to the party with the deepest pockets because they can afford the best experts.
(5) Expert opinions are derived not just from the facts of a given case, but also from academic literature, training, etc. These are all ‘out court’ foundations for the opinion. Just like in the law of hearsay, having an opinion rest on matters out of court is thought to be problematic.
(6) Experts will not be objective
Experts are retained by one side, some may be less objective than others. The idea of a partial witness is thought to be an athema to the trial process.
(7) The calling of experts can be very time consuming and expensive process
It taxes the administration of justice and it taxes the parties as well. Especially if one party calls an expert, the other side also will. This may lead to a contest.
All this leads to the role of a trial judge as gate-keeper. To place limits on the participation of experts so that only opinions that are adequately established are received. Only opinions that don’t encroach on the role of the trier of fact will be perceived so that the trial does not turn into a contest of experts. But, depending on the matter of the proceeding, it may be inevitable that the case will depend on expert evidence. It is up to the trial judge to make sure this is actually the case.
R v Mohan (1994) S.C.R.
Four criteria to determine whether an expert opinion is required - Sopinka:
(1) The opinion must be relevant to an issue to be determined,
a. There must be logical relevancy as well as a finding that the probative value of the evidence outweighs any prejudicial effect – test from R v Melaragni
i. Is the evidence likely to assist the jury in its fact finding mission, or is it likely to confuse and confound the jury?
ii. Is the jury likely to be overwhelmed by the “mystic infallibility” of the evidence, or will the jury be able to keep an open mind and objectively assess the worth of the evidence.
(2) That the opinion is necessary to assist the trier of fact,
(3) That the content of the opinion is not otherwise barred by a rule of exclusion, and
a. Expert evidence cannot be used as a backdoor to get in evidence that would not be otherwise admittable.
(4) That the proposed witness is properly qualified (this is usually obvious and uncontroversial).
a. This is proven in a voir dire.
Thus, (4) is relatively uncontroversial – the absence of an exclusionary rule, i.e. if the opinion is nothing than hearsay, then would have to find an exception to admit it. (3) is relatively uncontroversial – i.e. a mechanic comments on why a carborator breaks down. It is (1) and (2) where issues may arise.
Prof’s case example – Hall case – his client was charged with murder of women. Client and cousin were close friends. Client trained as accountant, never before been in trouble with the law. No indication of any other type of relationship with the deceased and the client. She was found stabbed (wounds on hands indicate defence attempt). A critical piece of evidence relied upon by the crown was an impression of the shoe worn by his client in the blood on the kitchen floor. Eventually, police ceased a pair of shoes from client’s house. Conclusion reached was that the client’s shoe was the shoe at the crime scene. It was a ‘class’ shoe, every shoe of that model has the same print. As well as incidental characteristics (unique imprint), i.e. if the show was worn out in a certain way or if a tack was stepped on in the shoe.
Issue – Is this a suitable subject for expert opinion, where the jury needs to be assisted? What is it about this that requires an expert? Is there anything peculiar that requires an expert?
Prof – could probably count on jury seeing difference between a nike shoe and a Wilson true. But the incidental characteristics are different. Why not put up images on a power point slide? You can’t cross-examine a pp slide. The shoe impression was created under less than perfect conditions, i.e. in blood. There is also the benefit of the expert’s experience.
Trial judge rules – expert cannot give opinion that ‘this was the shoe’ because there was inadequate wear patterns. There was no empirical support for the proposition that wear patterns are unique as fingers prints are unique.
Expert is offering the ultimate opinion – ‘this is the shoe’.
Trial judge did allow him to say ‘here are all the similarities’. The jury was left to draw its own conclusion.
Jury held: convicted.
Other evidence – there was blood droplets of clients. Explanation was that he cut his finger at work, and it was only found in the basement, not where the crime took place.
There was NO blood what-so-ever on the shoe.
Sopinka’s elaboration of (1) Relevance and (2) Necessity in Mohan:
The critical involves a balancing of relevance and reliability against consumption of time or risk of confusion.
Sopinka: “Although prima facie admissible if so related to a fact in issue that it tends to establish it, that does not end the inquiry. This merely determines the logical relevance of the evidence. Other considerations enter into the decision as to admissibility. This further inquiry may be described as a cost-benefit analysis, that is “whether its value is worth what it costs”. Cost in this context is not used in its traditional economic sense but rather in terms of its impact on the trial process. Evidence that is otherwise logically relevant may be excluded on this basis, if its probative value is overborne by its prejudicial effect, if it involves an inordinate amount of time which is not commensurate with its value or if it is misleading in the sense that its effect on the trier of fact, particularly a jury, is out of proportion to its reliability”.
Sopinka: “There is a danger that expert evidence will be misused and will distort the fact finding process. Dressed up in scientific language which the jury does not easily understand and submitted through a witness of impressive antecedents, this evidence is apt to be accepted by the jury as being virtually infallible and as having more weight than it deserves”.
How can we tell when a lay trier of fact requires the assistance of an expert?
Beland v The Queen (1987) S.C.R. (polygraph evidence)
PRINCIPLE: Polygraph evidence is inadmissible because judges and jurors are capable of assessing the credibility of witness.
FACTS: B and Phillips were charged with conspiracy to commit robbery. The robbery never took place but another conspirator Grenier testified that B and P had planned it. B and P claimed that they had not. After all of the evidence was submitted, defence counsel asked to reopen the case and admit polygraph evidence but the trial judge refused.
ISSUE: whether polygraph evidence could be admissible as evidence bearing on the truthfulness of the witness?
HELD: The polygraph evidence should not be admissible (but not based on an examination of their reliability). There is concern it will produce turmoil and waste the court’s time. Opinion about this subject matter is not admitted because it is unnecessary.
“The admission of polygraph evidence would run counter to the well-established rules of evidence which have been referred to [i.e. oath helping]. Second, while there is no reason why the rules of evidence should not be modified where improvements will result, it is my view that the admission of polygraph evidence will serve no purpose which is not already served. It will delay proceedings, cause delays, and lead to numerous complications which will result in no greater degree of certainty in the process than that which already exists.”
The prohibition against oath-helping (adducing evidence solely for the purpose of bolstering a witness’s credibility) is well grounded in authority. The evidence of the polygraph examination had no other purpose and thus cannot be admitted. Polygraph evidence also offends the rule against prior consistent statements as it adds nothing to the earlier statement of the witness which is sought to be supported. The purpose of the operator’s evidence is to bolster the credibility of the accused and, in effect, to show him to be of good character by inviting the inference that he did not lie during the test. Such evidence of specific incidents is not admissible character evidence. The sole issue upon which the polygraph evidence is adduced is the credibility of the accused, an issue well within the experience of judges and juries and one in which no expert evidence is required.
Dissent: “A polygraph operator does not give an opinion on the credibility of the witness. Rather, she interprets the data and gives an opinion as to whether it conforms to that of a person who is telling the truth.” The jury will consider this evidence along with the other evidence going to the issue of credibility in order to reach their final conclusion.
Note: Police use the polygraph as a way of inducing confessions. They will provide an opinion to the subject that is meant to get them to keep talking. It is essentially a tool used by the police where the validity is irrelevant, what matters is what the subject is lead to believe about the validity.
R v D.(D.) (2002) 2 SCR 275 (young boy delayed in reporting sexual abuse)
PRINCIPLE: If the trial judge is able to advise a jury on an issue, then there will be no need for an expert opinion
FACTS: Sexual assault case, the accused was alleged to have invited the complainant to touch his penis on numerous occasions when D was 5 or 6 years of age. No complaint was made for 2 and a half years.
ISSUE: Whether there is any significance of the fact that the complainant delayed to make this disclosure? Was it necessary for an expert to give an opinion on this?
Crown argued: The typical behaviour of young victims of sexual assault in order to show that the delay in disclosure should not raise questions about the reliability of the complainant. No adverse inference should be drawn from this delay.
Trial judge: this did involve knowledge beyond the jury’s experience.
CA Held: what inferences should or should not be drawn from delay was within the knowledge or experience of the jury so the opinion should not have been admitted.
SCC HELD: Agreed with CA. The content was not unique or scientifically puzzling and thus was not necessary. But added an important qualifier, it is something that should be addressed by way of instruction to the jury. Expert evidence is not admissible to counter an inference that the complainant’s delay in reporting a sexual assault indicates that she is fabricating the complaint. As a matter of law the trial judge will instruct the jury that it cannot infer fabrication from the delay.
TEST – is the subject matter one which requires the trier of fact to have assistance and which cannot be satisfied by way of assistance by the trial judge.
Trial judge would say ‘in diagnosing sexual assault cases, the timing of disclosure will depend on a whole variety of circumstances ...”.
Why does the court not just allow in the evidence and let the jury decide the weight?
Because the ‘dangers’ of allowing it in may be greater than not allowing it in.
Necessity (thus far)
Is specially knowledge required to understand complicated matter or to correct erronenous common way of thinking? AND is there a possibility that the judge can give information to clear up the issue?
Necessity can stem from two sources:
(1) Technical nature – requires training or education in order to understand the phenomenon and understand inferences, i.e. chemistry, engineering, and
(2) Common sense / the received wisdom is found on some myth or stereotype or misconception
Necessity criteria is problematic in one way – juries are the trier of fact and they must not simply adopt the opinions of the experts just because they are experts. But the experts are testifying because they are experts and the jury needs their opinion. After all, the expert knows better than they do. The expert evidence should be evaluated the same way as all other evidence – balance it.
R. v. Lavallee  1 S.C.R. 852 (expert was necessary to explain battered women syndrome)
PRINCIPLE: It was ‘necessary’ to bring in an expert to explain to the jury battered wife syndrome.
FACTS: L and her partner Rust had been in a relationship for about 4 years. There was a considerable amount of evidence showing that the relationship was abusive. On the night in question, there was a boisterous party at the end of which Lavallee killed Rust by shooting him in the back of the head as he was leaving the room. L claimed that she acted in self-defence. But, the problem of self-defence, taking at face value is that s.34(2) CC states that “he believes on reasonable and probable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm” (p.284). So the problem for L was how can she have reasonably apprehended death or gbh if the person is walking away from here and leaving her alone? In order to explain her state of mind and to provide a basis for a reasonable apprehension of death or gbh, she wanted to lead evidence of battered women syndrome – that long term abuse can have psychological effect on one’s make up. Since Rust threatened her as he was leaving the room, the immediate danger requirement is suspect, but the psychological effect on her over time lead her to no other conclusion.
Lavalle argued: Counsel wanted to show that the paradigm of two men fighting and one attacking from behind, is different than the battered women syndrome. The opinion would serve to correct how self-defence works.
ISSUE: Whether expert opinion could be brought in to explain the battered wife syndrome?
HELD: court was satisfied that this was an area where an expert was required, it was necessary. Expert evidence was introduced for the corrective function. Fear that Lavalee’s defence may not have been assessed fairly.
Novel scientific evidence
Even in mainstream science things can go wrong. For example, Dr Charles Smith, practicing what appeared to be approved techniques, has impeccable credentials, and yet it turned out he was wrong in a significant amount of cases.
There is no definition of what it is to be a novel scientific hypothesis or technique. It appears to cover expert evidence that is not yet generally accepted in the relevant field of study or in some way deviates from what is generally accepted in that field. For example, a new theory might be ‘recovered memory syndrome’, the hypothesis is posed that an individual can undergo a dramatic experience, suppress it for a long time, then it comes back – this is novel, not universally accepted. If an expert witness was called to speak on this, how is the court to determine the evidence? Will it assist the jury in concluding a matter of fact? Court will ask – was the idea formulated and tested in the scientific method?
Novel techniques can also be the basis for opinion in court
R v Mohan – Sopinka: “expert evidence which advances a novel scientific theory or technique is subjected to special scrutiny to determine whether it meets a basic threshold of reliability”.
Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. (1993) (novel scientific evidence)
PRINCIPLE: Sets out 4 factors judges must satisfy when considering novel scientific evidence.
Facts: Rule 702 of the Federal Rules of Evidence states that “if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” D and Schuller were born with serious birth defects. They and their parents sued M, alleging that the birth defects had been caused by the mothers’ ingestion of Bendectin, a prescription anti-nausea drug marketed by M. M’s expert testified that Bendectin posed no risk of birth defects. D led eight experts who pointed out other evidence that might support a causal link between the drug and birth defects. Their studies, however, had not been published and thus had not been subject to peer review.
ISSUE: Should the testimony of D’s experts be admitted despite their research not having been generally accepted in their field?
M (pharmaceutical company) argued: There was no proof of causation and showed their findings that there was no correlation, let alone causation, between the taking of the medicine and the birth defects.
D argued: There is evidence of causation, experts who gave evidence on the causation
HELD: The evidence should have been admitted. “General acceptance” is not a necessary precondition to the admissibility of scientific evidence under the Federal Rules of Evidence.
SC U.S.: by definition, anything novel will not be generally accepted, but they can be helpful. How do we determine if opinion is sufficiently reliable. Court looks to the scientific method and says if these features are present, they will weigh in the balance of the court’s opinion.
Factors that weigh in the balance in the court’s opinion. What do we look for in assessing the reliability of the technique?
(1) Has it been the subject of scientific testing? Empirical testing that has led to the falsification of evidence? One of the markers of reliable evid- can this be tested against empirical evidence!
(2) Has the hypothesis been subjected to peer review and publication? Expose it to judgment of your peers, informally, conferences, or publication. Not just your opinion but one that has been publicly scrutinized by your peers. If the novel technique has been subjected to this critique and survived that review, then that raises the favour it will be admitted in court, bc will get rid of flaws
(3) The court should ordinarily consider the known or potential rate of error in the technique. How accurate is it at measuring what it is supposed to be measuring? Is there any way of determining the rate at which it is accurate or inaccurate?
(4) General acceptance within scientific community, because will generally be more reliable. Widespread acceptance can be an important factor in ruling particular evidence admissible. Opinions that are generally accepted may be more reliable (although minority opinion may ultimately prevail, so minority opinion is not a reason to bar the evidence).
Canadian test on novel scientific evidence
In Canadian case law, these factors will apply to every form of expert evidence, but it is only in relation to novel evidence would the court have to hold a voir dire (where the trial judge will weigh these factors in determining admissibility). For accepted methodologies, there will be a presumption of admissibility, BUT, where you can challenge the reliability of the science, then the trial judge must turn to the Daubert factors and satisfy them or else the evidence is not admissible.
R v Trochym (2007) SCC (hypnosis is not admissible evidence)
PRINCIPLE: When considering scientific evidence which has already been around, the Daubert criteria still applies.
FACTS: T charged with murder of his girl friend. Critical fact was the time at which she must have been killed. Crown’s theory was that he killed her, left, then went back to apartment to make it look like someone broke in for the purposes of sexually assaulting her (this would distract because he would not have to break in to get into her apartment due to their relationship). A neighbour described seeing T coming back on one particular day, but this did not support crown’s theory. The witness was hypnotised and said, yes, T did come back, but it was a different day (a day that would help support Crown’s theory).
ISSUE: Whether the hypnotically refreshed memory of the witness was admissible?
HELD: The court referred to the Clark guidelines (p.70-71 supplement). Court found that the technique fails. Thus, hypnotic evidence is inadmissible.
Minority: why are we applying the test for novel evidence to accepted evidence?
Majority’s response: the technique always had an element of doubt.
Trochym – affirms the Dauber criteria. Reliability can be evaluated on the basis of four factors:
(1) Whether the ... technique can be and has been tested
(2) Whether the ... technique has been subjected to peer review and publication
(3) The known or potential rate of error
(4) Whether the theory or technique used has been generally accepted
R v J.(J.L.) (2000) 2 SCR (pizmograph results can’t be used to illustrate sexual preference)
PRINCIPLE: Prohibiting evidence to be brought into court because it failed the Daubert criteria is not a violation of an accused’s right to full answer and defence.
FACTS: JLJ charged with sexual assault on children. They were in his care, but not his children. Argued he sodimized them.
Defence argued: the only person who would commit such an offence was a person with a certain psychological profile and he does not fit this criteria.
ISSUE: Whether evidence of a ‘profile’ theory and ‘pizmograph’ test could be admitted?
HELD: The evidence could not be brought into court because it failed the Daubert criteria and not allowing it in does not deny the accused the right to full answer and defence. The right to full answer and defence does not include the right to lead unreliable evidence. A technique that is well established therapeutically, cannot serve the purpose for evidence in identification setting.
Expert Opinion and Hearsay
How opinions based on out of court statements are to be assessed by the trier of fact.
Expert opinion evidence always has a hearsay element to the extent that it is based on expertise derived from study and experience that is out of court. The knowledge and experience the expert has is all based on out of court information. The expert is permitted to rely on that information as true.
· Critical fact in Lavallee was that she was subjected to long term physical abuse, but how can the expert know that? Much of the history of relationship came from herself. How is the jury to find that the abuse actually happened unless admissible evidence is presented to show the abuse happened? A statement made by her is hearsay if it is being considered for the basis of the opinion in court. D cannot rely on prior statements of accused outside of court. The principle source was Lavalle testifying in court, risk is that if she doesn’t testify then much of the source of what she’s saying is lost, in the end there was other sufficient admissible evidence to form a basis for the opinion (police records, friends, statements).
Wilband v. The Queen  S.C.R. 14
PRINCIPLE: Expert evidence, which is not based on material before the jury is admissible. The fact that the material on which certain evaluations were based is not before the court goes to weight, not admissibility.
FACTS: W was charged with committing two indecent assaults on young girls. Two Crown psychiatrists met with W and reviewed his earlier psychological reports. The psychiatrists testified that, in their opinion, W was a dangerous offender.
ISSUE: Whether the expert evidence, based as it was on material not before the jury, admissible?
W argued: the opinions were hearsay and not admissible.
Crown argued: the psychiatrists had conducted their assessment in the usual way and that their opinions were admissible even though the material on which it was based was not before the jury.
HELD: The expert evidence was admissible.
In order to form an opinion according to recognized normal psychiatric procedures, the psychiatrist must consider all possible sources of information, including second-hand source information, the reliability, accuracy and significance of which are within the recognized scope of his professional activities. The fact that the material on which those evaluations were based is not before the court goes to weight, not admissibility. “The value of a psychiatrists opinion may be affected to the extent to which it may rest on second-hand source material; but that goes to the weight and not to the receivability in evidence of the opinion, which opinion is of no evidence of the truth of the information but evidence of the opinion formed on the basis of the information.”
R. v. Abbey  2 S.C.R.
PRINCIPLE: Expert evidence, which is not based on material before the jury is admissible, but it deserves no weight in the eyes of the court because the factual basis was not established by admissible evidence.
Note: This ruling is more strict than Wilband.
FACTS: A arrived at the Vancouver International Airport from Lima, Peru. The customs inspector noticed two bags of white powder in his bag and when questioned, A admitted that they were cocaine. A suffered from hallucinations that made him think he was immune from prosecution and had in fact already astraly travelled from Peru to BC. A did not testify but the defence called his psychiatrist who concluded that he was insane based on an examination of A ten weeks after the incident, conversations with A’s mother, and an examination of A’s psychological records.
ISSUE: What use could be made of the evidence introduced during the testimony of the psychiatrist?
A argued: the psychiatrist could state his opinion and discuss the facts on which they were based.
Crown argued: the trial judge erred in accepting and treating as factual many of the events A had related to his psychiatrist. A didn’t testify (if he did he could have stated this evidence himself).
HELD: The trial judge should not have accepted as facts the events A had related to his psychiatrist. The jury is being asked to accept XYZ as true based solely on the doctor saying that A told him XYZ. While the opinion was found to be admissible, it deserved no weight in the eyes of the court because the factual basis was not established by admissible evidence.
Expert witnesses can state the bases of their opinion and in the process of doing so, discuss the facts on which those opinions are based. The danger, however, of admitting such evidence is that the judge or jury, without more, will accept the evidence as going to the truth of the facts stated in it. Before any weight can be given to an expert’s opinion, the facts upon which the opinion is based must be found to exist. So, all the facts must be proven to give the witness’s testimony any weight. This is a much more difficult hurdle to meet that in Wilband.
Expert evidence, which is not based on material before the jury is admissible, but it deserves no weight in the eyes of the court because the factual basis was not established by admissible evidence.
R. v. Lavallee  1 S.C.R.
PRINCIPLE: Expert evidence, which is not based on material before the jury is admissible and some weight should be given to the opinion even though it was based on statement that were not before the jury. It will go to weight of the opinion.
Note: This ruling relaxes Abbey in the direction of Wilband.
FACTS: Lavellee and her partner Rust had been in a relationship for about 4 years. There was a considerable amount of evidence showing that the relationship was abusive. On the night in question, there was a boisterous party at the end of which Lavallee killed Rust by shooting him in the back of the head. L claimed that she acted in self-defence. Dr. Share, for the defence, relied on many sources in formulating his opinion such as interviews, police reports (including a statement by Lavallee), hospital records (this is all hearsay). Thus, only through all these sources did the expert did the expert understand that the abused occurred, never directly by conversing with L. The problem is that a statement made by L outside court is pure hearsay if it is being considered as the basis for the opinion in court. It is the defence who wants to rely on this. So L is faced with a dilemma. In order for the opinion to have any value, the factual situation must be established through admissible evidence. But she may not want to testify, to go on the stand and discuss the issue. In the end there was sufficient admissible evidence to form the basis of the opinion (other sources), but this opinion is only as valuable as the foundation as it is addressed.
ISSUE: Can the jury give any weight to Dr. Shanes’s (psychiatrist) opinion given that they were based on statements that L had made during his interviews of her (out of court)?
Crown argued: following Abbey, if the facts underlying the opinion were not proven, no weight should be given to the opinion.
L argued: the facts not being proved may reduce the weight to be given to the opinion but should not eliminate it completely.
HELD: Some weight should be given to the opinion even though it was based on statements that were not before the jury. Relaxes Abbey in the direction of Wilband.
As long as there is some admissible evidence to establish the foundation for the expert’s opinion, the trial judge cannot subsequently instruct the jury to completely ignore the testimony. The judge must warn the jury that the more the expert relies on facts not proved in evidence the less weight the jury may attribute to the opinion. Wilson described the ratio of Abbey:
1. An expert opinion is admissible if relevant, even if it is based on second-hand evidence (hearsay).
2. This second-hand evidence (hearsay) is admissible to show the information on which the expert opinion is based, not as evidence going to the existence of the facts on which the opinion is based.
3. Where the psychiatric evidence is composed of hearsay evidence, the problem is the weight to be attributed to the opinion.
4. Before any weight can be given to an expert's opinion, the facts upon which the opinion is based must be found to exist.
Concurring (Sopinka): A practical distinction should be drawn between evidence that an expert obtains and acts upon within the scope of his or her expertise and evidence that an expert obtains from a party to litigation touching a matter directly in issue. “For a court to give no weight to, or to exclude, a professional judgment, arrived at in accordance with sound medical practices, would be to ignore the strong circumstantial guarantees of trustworthiness that surround it.” Where, however, the information upon which an expert forms his or her opinion comes from the mouth of a party to the litigation, or from any other source that is inherently suspect, the court should require independent proof of that information.
SIMILAR FACT EVIDENCE
Over past 100 years law has been trying to figure out what similar evidence is probative. Fortunately, the SCC had helped here.
Three basic scenarios:
(1) Have an accused charged with 2 discreet offences and the issue is whether evidence that is relevant to 1 of those offences can be probative of guilt on the other
a. i.e. two separate murder charges (Arp case – two separate women in BC at a different time, discharged for the murders, then after further investigation he gets charged with another murder and the previous one gets revived) – question – to what degree is evidence probative to his first murder probative on the second murder and vis versa. The usual rule is that each count on the indictment must be assessed only on the relevant account and you can’t bridge across from one to the other unless you come within the similar fact rule.
b. Straffen case – S is charged with a single murder, but crown wants to rely on evidence from other uncharged murders.
(2) Charges that depend on the credibility of the complainant
a. i.e. Bordman case – B charged with 2 separate accounts of sexual assault – question – to what degree the similarities between the accounts can buttress the credibility of the complainant – can that similarity support the credibility of one complainant and vise versa (can they be mutually corroborative?)
(3) a single complainant (Handy case) and the crown wants to bring in another witness to describe the similar acts for the purpose of buttressing credibility of the complainant that is before the jury. So H’s wife was not in any charge, but crown wants to bring in her as evidence to show the similarities. Ordinarily, this would not be allowed, but if the similar fact rule is established, then it can be used.
These scenarios happen all the time.
General rule: evidence of other conduct by the accused, conduct not the subject matter of a charge, is inadmissible. The evidence is simply irrelevant, what you did on one occasion has nothing to do with the current situation. Sometimes, the evidence does seem to be relevant because how you behave on one occasion may be instructive on how you will behave on other occasions. However, it is inadmissible when the prejudicial effect outweighs the probative value.
Handy para 55: “similar fact evidence is presumptively inadmissible. The onus is on the prosecution to satisfy the trial judge on a balance of probabilities that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception.
Two preconditions must be met before similar fact evidence can be adduced:
(1) evidence must be relevant (if one has nothing to do with the other then stop), and
(2) the stringent rules of admissibility are triggered only with misconduct or bad character evidence of the accused, if it’s not that type of evidence then the crown does not need to come within the similar fact rule.
Makin v. Attorney-General for New South Wales  A.C. 57 (P.C.) (dead babies in yard)
PRINCIPLE: The mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it is relevant to an issue before the jury.
FACTS: The M’s were charged with the murder of two infants. The Crown’s theory is that they are baby farmers. Two infant bodies were found in the backyard of their house. They claimed that they had just had the bad luck to move into a house with babies in the backyard. The Crown also had evidence of infant bodies found in three other houses in which they had lived.
ISSUE: Was the evidence of the bodies found at the other houses admissible?
Crown argued: the evidence should be admissible as it goes to identity.
M’s argued: the evidence was inadmissible character evidence.
HELD: The evidence of the other bodies was admissible.
“It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried (GENERAL RULE). On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it is relevant to an issue before the jury. It may be so relevant if it bears upon the question of whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused. The statement of these general principles is easy, but it is obvious that it may often be very difficult to draw the line and to decide whether a particular piece of evidence is on the one side or the other”.
Handy – General Rule – “similar fact evidence is presumptively inadmissible. The onus is on the prosecution to satisfy the trial judge on a balance of probabilities that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception.
R. v. Smith (1915), 11 Cr.App.R. 229 (C.A.)
PRINCIPLE: Evidence of past conduct may be adduced if it appears more probative than prejudicial even if the evidence is based on alleged crimes that were never charged.
FACTS: S was charged with the murder of a woman he had recently married and taken out insurance on. She was found drowned in a bathtub. The Crown had evidence that the same thing had happened to two other women prior.
ISSUE: Should the evidence of the other two deaths have been admitted?
Crown argued: the evidence helped to prove that S was the killer.
S argued: the evidence was inadmissible character evidence.
HELD: The evidence of the other two deaths should have been admitted. Was it more probative or prejudicial, i.e. the women were prone to drowning or he killed them?
The prosecution tendered the evidence on the ground that it tended to show that act charged had been committed by design, rather than being an accident (given these two deaths, it is less likely that the third was an accident). The evidence was properly admitted and the trial judge correctly instructed the jury that they were only deciding whether S committed this murder, not the other two.
Note: S had not been charged of these other two deaths.
R. v. Straffen  2 Q.B. 911 (C.A.) (man escapes from institution and strangles girl)
PRINCIPLE: If the similar fact evidence of past conduct, i.e. past alleged crimes, goes to identity, then it is admissible.
FACTS: S was alleged to have strangled two young girls. He wasn’t convicted because he was admitted to an institution. During four hours when he had escaped, another young girl was killed. In all three cases, young girls were killed by strangulation with no sexual motive, no evidence of a struggle, and no attempt to conceal the bodies. At the trial, he admitted that he had killed the other two girls. The Crown sought to lead this confession as evidence that S was the killer of the third girl. The trial judge admitted the evidence. S was convicted and sentenced to death but appealed to the CA.
ISSUE: Should the details of the previous two murders have been admitted?
S argued: the details were inadmissible character evidence.
Crown argued: that the evidence was admissible as it went to identity.
HELD: The details of the previous two murders should have been admitted. The method was so unusual that they served to identify the accused as the killer.
The evidence “was admitted to show that the person who manually strangled those two little girls also manually strangled [the third] in similar circumstances.” S had an “abnormal propensity to strangle young girls without any apparent motive, without any attempt at sexual interference, and to leave their dead bodies where they can be seen and where presumably their deaths would be rapidly detected. This evidence was admissible because it tends to identify the person who had murdered Linda Bowyer with the person who had confessed in his statements to having murdered in similar circumstances a year before Brenda Goddard and Cicely Batstone”.
Note: These two cases indicate that similar fact evidence was not admissible unless it was relevant to one of a limited set of issues. This approach has now been disapproved in favor of an examination of whether the probative value on some issue to which it is relevant outweighs its inevitable prejudicial effects.
Director of Public Prosecutions v. Boardman  (H.L.) (teacher – buggery with student(s))
FACTS: B was a schoolmaster who was charged with committing buggery with S and inciting H and A to commit buggery. In all three cases, he had asked the boys to bugger him. The Crown wanted to use the evidence concerning S in the charge relating to H and vice versa. The trial judge admitted the evidence as supporting credibility (are they telling the truth?) and B was convicted.
ISSUE: Should one boy’s evidence be admissible in the trial relating to another boy?
Crown argued: the evidence had so much probative value it should be admitted.
B argued: the evidence was inadmissible character evidence.
HELD: Although this case is on the borderline, one boy’s evidence should be admissible in the trial relating to another boy.
Lord Morris: It would be an error to attempt to draw up a closed list of the sorts of cases in which the similar fact exception operates. It was an unusual feature of both boys’ testimony that B, a grown man, asked them to bugger him and that he was their dormitory master. The evidence is thus relevant to corroborating the other boy’s testimony as it is highly unlikely (assuming they didn’t collaborate) that the two boys would both report such an unusual occurrence.
The law NOW:
1. Indicated the end to the categorical effect that had developed since Makin. The evidence here didn’t go to any of the categories.
2. Similar fact evidence is to be assessed on a balance of probative value VS prejudicial effect.
3. In the case of sexual offences, one person’s statements can be used to enhance the credibility of the other.
Prejudice from similar fact evidence
Handy: “The dangers of propensity (inclination) reasoning are well recognized. Not only can people change their ways but they are not robotic. While juries in 14th century England were expected to determine facts based on their personal knowledge of the character of the participants, it is now said to infer guilt from a knowledge of the mere character of the accused is a “forbidden type of reasoning”.
“The policy basis for the exclusion is that while in some cases propensity inferred from similar facts may be relevant, it may also capture the attention of the trier of fact to an unwarranted degree. Its potential for prejudice, distraction and time consumption is very great and these disadvantages will almost always outweigh its probative value”.
“If propensity evidence were routinely admitted, it might encourage the police simply to “round up the usual suspects” instead of making a proper unblinkered investigation of each particular case”.
The two forms of prejudice, thought to form from similar fact evidence:
(1) Moral prejudice – risk that jury will infer guilt from bad personhood of the accused. There is a risk that the jury will simply decide that the accused is a rotten person and infer guilt on that alone no matter what the weight is of other evidence (i.e. jury may think, well he got away with it before, not now). Handy case in particular, provides a good example of moral prejudice – once the jury heard how H treated his ex wife, believed that undue weight was given.
(2) Reasoning prejudice – i.e. expert evidence – risk associated by deflecting jurors with other issues (i.e. past crimes). It may cause undue consumption of time, it may be unfair to the accused where having prepared to meet one set of allegations, he is then faced with other allegations from someone who is not even a complainant. Where similar fact evidence is disputed, this can complicate the case for the jury further because now they have to sort out what really happened between him and his ex wife.
The greatest danger comes from evidence that is similar to the conduct that is charged because it is most tempting to believe guilt from propensity.
The similarities must be explained somehow, either they are incidental or dependent upon one another is some way. They can be dependent on a single person doing the act, or there could be a copy-cat or there can be collaboration between the witnesses. The valuation of this evidence turns on the weighing of the prejudicial effect (moral and reasoning prejudice) against the competing explanations for the similarities/happenings. If the best explanation is that the same perpetrator committed both of the acts or that the two complainants are independently telling the truth then this gives the evidence real probative value.
Sweitzer v. The Queen  1 S.C.R.
PRINCIPLE: There must be a link between the allegedly similar facts and the accused in order to adduce similar fact evidence.
FACTS: S was charged with 15 counts of rape. In each case, the rapist broke into the complainant’s apartment and raped her. There was evidence linking S with three of the rapes but not the other twelve. S successfully moved to sever the counts. The Crown thus withdrew fourteen of the counts but sought to lead evidence of them at the trial of the remaining count. The trial judge accepted the forensic evidence from the other counts and convicted S.
ISSUE: Should the evidence of the twelve counts with no link to S have been admitted? The Crown argued that the evidence of the twelve counts helped to further establish S’s identity as the rapist. S argued that there was no evidence linking him to twelve of the other counts and that there were not sufficient similarities between them to admit the evidence of them.
HELD: The evidence of the twelve counts with no link to S should not have been admitted.
Accepts what was said in Boardman as being good law in Canada. The admissibility of similar fact evidence depends upon the probative effect of the evidence balanced against the prejudice caused to the accused by its admission whatever the purpose of its admission. The categories, while sometimes useful, remain only as illustrations of the application of the general rule. However, before evidence may be admitted as evidence of similar facts, there must be a link between the allegedly similar facts and the accused. In other words there must be some evidence upon which the trier of fact can make a proper finding that the similar facts to be relied upon were in fact the acts of the accused. There was no such link between S and the twelve counts in question; connecting him to the other rapes would cast the net so wide as to make any evidence of a nocturnal rape in Calgary admissible. So, they could have no probative value and thus only had prejudicial effect, and should have been excluded.
R v Arp (1998) SCC
PRINCIPLE: The probative value of similar fact evidence is based on reasoning through probability. The force of the evidence subsists in the proposition that it is unlikely that the accused would be implicated more than once in offences which are unique or markedly similar. It is the unlikelihood of coincidence that gives the evidence its probative force.
Handy – picks up the idea in Arp as well and sets out a number of factors that can be considered:
(1) Proximity in time of the similar facts.
(2) Extent to which the other facts are similar in detail to the charged conduct.
(3) Number of occurrences of the similar acts
(4) Circumstances surrounding or relating to the similar acts
(5) Any distinctive feature(s) unifying the incidents
(6) Intervening events
(7) Any other factor which would tend to support or rebut the underlying unity of the similar acts.
Once all the factors bearing on similarities are construed, that is then balanced against the prejudicial effect – Handy (p.521):
“In DPP v P Lord Mackay suggested that similar fact evidence should be admitted when its probative value is ‘sufficiently great to make it just to admit the evidence’, notwithstanding its prejudicial value. ... Justice is achieved when relevant evidence whose prejudice outweighs any probative value is excluded and where evidence whose probative value exceeds its prejudice is admitted”.
Old case law VS New case law
There must be a striking similarity. This is no longer the general rule, BUT it does still apply when it is used to prove identity, i.e. the hallmark or signature, the red rose left on the body.
There has to be some link between the accused and the allegedly similar acts, the mere fact of similarity is not sufficient. In Straffen, the only link they had was opportunity (breaks from hospital and woman dies). If opportunity was sufficiently narrow (i.e. he breaks out and she dies within that short time) then would be fine.
R v Perrier (2004) SCJ (similar fact evidence to identify gang activity and individual member)
PRINCIPLE: Similar fact evidence of group activities is admissible in order to identify a group or gang responsible for a particular crime. However, where the similar fact evidence is introduced to identify a particular gang member, a sufficient connection between the individual and the crimes of the group must be established. To use evidence of one crime as proof of involvement in others is only appropriate where the similarities are so striking as to preclude coincidence. Also, when it is a group, opposed to a single individual who committed the offence, there must be some basis for concluding that the membership is fixed. The similarities are not probative of guilt unless it could be showed that membership was fixed.
FACTS: The accused was charged with several offences arising from three separate incidents of gang home invasions that occurred in the same area over a four-week period. The method of operation adopted by the gang on each of these occasions was distinctive. The accused was first convicted of robbery and break and enter relating to the third incident. The charges in this case relate only to his alleged involvement in the first two incidents. The issue at trial was his identity. Although the Crown admitted that membership in the gang rotated, the Crown asserted that the accused was involved in all three incidents. The accused's role was also alleged to have varied. The trial judge instructed the jury that "evidence admitted with respect to each of the three incidents is admissible in proving the guilt of each accused on the others". The jury convicted the accused on all counts. The majority of the Court of Appeal upheld the convictions.
HELD: The appeal should be allowed and a new trial ordered. In this case, the similar fact evidence was admissible to attach blame to the gang itself but not to an individual member of the rotating gang.
The trial judge erred in directing the jury that they could consider the evidence from one incident as similar fact evidence with respect to identification, not of the gang but of the accused, for the other incidents. Similar fact evidence of group activities is admissible in order to identify a group or gang responsible for a particular crime. Where several crimes were committed with a unique modus operandi, and the objective improbability of coincidence is high, the trier of fact should be permitted to draw an inference that the same gang committed the acts. However, where evidence of similar offences committed by a gang is being introduced not just to identify the gang itself but to identify a particular member, a sufficient connection between the individual and the crimes of the group must be established. Where, as here, membership in the group is not constant, this additional requirement will be satisfied if (a) the accused's role was sufficiently distinctive that no other member of the group or other person could have performed it; or (b) there is independent evidence linking the accused to each crime. Without this additional link, the required nexus between the similar fact evidence and the acts of a particular accused is absent, and it will not have sufficient probative value to outweigh the prejudice caused.
In this case, the similar fact evidence was admissible to attach blame to the gang itself but not to an individual member of the rotating gang. To use evidence of one crime as proof of involvement in others is only appropriate where the similarities are so striking as to preclude coincidence. The similarities between the incidents demonstrate that it was likely the same gang that committed the offences but do not point to any individual trademark or characteristic that can serve to identify the accused. The independent evidence against him was also insufficient to link him to each of the gang's crimes. There was therefore no basis upon which this similar fact evidence should have been put to the jury for the purposes of identification.
COMMON LAW RIGHT TO SILENCE
Common law principles governing silence before trial
This issue arises mainly in connection with ones interaction with the police as they conduct a criminal investigation. While sometimes cooperating with police can be turned to your advantage, what follows from the decision made by a suspect to stand on his or her rights. We are looking at the decision to remain silent in police questioning and whether there is any evidentiary value.
Governing principle at common law
R v Chambers (1990) 2 SCR
It is now well recognized that there is a right to silence which can properly be exercised by an accused person in the investigative stages of the proceedings. The basis of the right was enunciated by Lamer J., as he then was, in his dissenting reasons in Rothman v. The Queen, (1981) 1 SCR:
“In Canada the right of a suspect not to say anything to the police is not the result of a right of no self-crimination but is merely the exercise by him of the general right enjoyed in this country by anyone to do whatever one pleases, saying what one pleases or choosing not to say certain things, unless obliged to do otherwise by law. It is because no law says that a suspect, save in certain circumstances, must say anything to the police that we say that he has the right to remain silent, which is a positive way of explaining that there is on his part no legal obligation to do otherwise”.
But – what happens if you assert your common law right?
An adverse inference may arise from asserting this right. It may come in two forms:
(1) Credibility – where someone is thought to be less believable because they said nothing when they had the ability.
(2) Guilt – there may be an inference of guilt, instead of on the exculpatory side of the scale.
General rule – no inference may be made from the decision to remain silent in the face of police questioning (no adverse or exculpatory inference). The reason is that they don’t want people to fall in a ‘police trap’.
Chambers – Justice Cory – “It has as well been recognized that since there is a right to silence, it would be a snare and a delusion to caution the accused that he need not say anything in response to a police officer's question but nonetheless put in evidence that the accused clearly exercised his right and remained silent in the face of a question which suggested his guilt”.
R v Eden (1970) (Ont. CA) (3 boys in cruiser, one makes inculpatory statement, another’s silent)
PRINCIPLE: The fact that the appellant failed to contest the statement made in his presence was not evidence from which an inference of his guilt could be drawn.
FACTS: E and some of his friends were joy-riding with a car who left the keys in. When the police pulled the car over, E and his two friends were in car. E’s position was that he had been picked up later on by his friends, had nothing to do with taking the car. When the police informally questioned the three boys in the back of the police car, someone made an admission of taking the car. The officer could not remember who said it. Crown could not pin point who made the inculpatory statement. One person said something that suggests guilt which implies all three were guilty, so if the other two failed to object or protest, then that could be taken as an adoption of what was said in their presence and can be seen as inculpatory. The reasoning is ‘if you were innocent, you would have said something right away’.
HELD: That type of reasoning is inconsistent with the right to silence.
“The right of a trial Court to conclude that an accused adopted an inculpatory statement made in his presence rests upon the assumption that the natural reaction of one falsely accused is promptly to deny or assert his innocence. It follows that before such an assumption can be acted upon the circumstances surrounding the making of the statement must be such that it would be normal conduct for the person involved by the statement to deny it. When the circumstances are such that the failure to protest can be attributed to some circumstances justifying such failure, the probative value of the failure to protest is lessened and may be entirely negative”.
“When the appellant was seated in the back seat of the police cruiser alongside his two co-accused he was undoubtedly under arrest; notwithstanding the fact that the customary warning had not been given to him he was entirely within his rights in remaining silent and no imputation unfavourable to him should be placed upon his exercise of that right. To assume from his silence he had conceded the accuracy of the statement would be in effect to place upon a prisoner under arrest the obligation of making exculpatory statements. For these reasons the fact that the appellant failed to contest the statement made in his presence was not evidence from which an inference of his guilt could be drawn.
Turcotte (2005) 2 SCR (man goes to police station and tells them to go to site ... dead bodies)
PRINCIPLE: under common law, absent statutory compulsion, everyone has the right to be silent in the fact of police questioning, even if not detained or arrested AND a voluntary interaction with the police does not constitute a waiver of the right to silence AND where evidence of silence is admitted, juries must be instructed about the proper purpose for which the evidence was admitted ...
FACTS: T arrived at an RCMP detachment and requested that the police go to the ranch where he was an employee. Naturally the police wanted to know why and asked T that repeatedly, but T refused to tell them why. At this point he is at RCMP detachment, but has not been detained or cautioned in anyway (you have right to remain silent ... do you wish to say anything). Police finally go out to the ranch and find three dead bodies. T was charged with three counts of murder. His position at trial was that when he went to work he found the people dead and that is why he went to the police detachment. But denied have anything to do with homicides.
ISSUE: (1) common law right to silence and (2) post-offence conduct.
HELD: The evidence of the accused's silence was not admissible as post-offence conduct. The right to silence would be illusory if the decision not to speak to the police could be used by the Crown as evidence of guilt. Crown’s analysis of T’s silence was inconsistent with the Chamber’s principle since in this particular circumstance, like most, T was under no obligation to assist the police. His silence, standing on its own could not be probative of guilt. He was under no legal obligation to tell police anything, so his failure to say anything is in no way probative of his guilt.
· Under the traditional common law rules, absent statutory compulsion, everyone has the right to be silent in the face of police questioning, even if he or she is not detained or arrested. The right to silence, which is also protected by the Canadian Charter of Rights and Freedoms, exists at all times against the state, whether or not the person asserting it is within its power or control.
· Furthermore, a voluntary interaction with the police, even one initiated by an individual, does not constitute a waiver of the right to silence. The right to choose whether to speak is retained throughout the interaction.
· Accordingly, the accused in this case did not waive his right to silence by going to the police station and answering some of the police's questions. Conduct after a crime has been committed is admissible as "post-offence conduct" only when it provides circumstantial evidence of guilt.
· Since the law imposes no duty to speak to or cooperate with the police, this fact alone severs any link between silence and guilt. Silence in the face of police questioning will, therefore, rarely be admissible as post-offence conduct because it is rarely probative of guilt. An inference of guilt cannot logically or morally emerge from the exercise of a protected right. Using silence as evidence of guilt artificially creates a duty, despite a right to the contrary, to answer all police questions. Lastly, the accused's silence could not be used as "state of mind" evidence from which guilt could be inferred.
· While not admissible as post-offence conduct or state of mind evidence, the accused's behaviour at the police detachment, including his refusal to answer some of the police's questions, was, arguably, admissible as an inextricable part of the narrative. Where evidence of silence is admitted, juries must be instructed about the proper purpose for which the evidence was admitted, the impermissible inferences which must not be drawn from evidence of silence, the limited probative value of silence, and the dangers of relying on such evidence. The failure to give the jury this limiting instruction, particularly given the circumstantial nature of the Crown's case, was highly prejudicial and a new trial is required.
Common law VS Charter
This distinguishes the common law right from many of the charter rights of silence to state agents. For a charter right to silence to be triggered the person must be either arrested or detained. Under the Common law (as is here) a person does NOT need to be arrested or detained by police in order for the right to silence to be triggered (in this case right to silence was triggered)
Although T is dealing with state authorities, it did not matter that he had not been arrested or detained for the common law right to kick in. This is distinguished from Charter rights were it is the fact of arrest or detention. At common law there is no need for arrest of detention.
Instruction to the jury
There may be some mention of the fact that the accused remained silent when confronted with the police subject to some exceptions. There must be a limiting instruction in such a case to the trier-of-fact.
How persistent may police by with questions? AND Waiver
(1) Police persistence – To what degree the police can continue to question the suspect once he or she asserted the right to silence. Does no mean no? (Singh case – supplementary materials – p.128).
· Police don’t have to take no for an answer. They can continue relentlessly until there will be a breach of the Charter. They can continue even more so before there is a breach of the common law right (which makes less sense since there is no remedy to breach of the common law right unless the statement is found to be involuntary). BUT, could lead to remedy: could lead to either a breach of charter right or will render the statement involuntary.
· Singh – On voir dire to determine admissibility of statements, trial judge was satisfied that statements were voluntary and that breach of accused's right to silence had not been proven — that probative value of statements outweighed any prejudicial effect — Use of legitimate means of persuasion is permitted and is part of critical balance that must be maintained between individual and state interests — Focus is on conduct of police and its effect on accused's ability to exercise his or her free will — Test is objective, although individual characteristics of accused are relevant — Police persistence in continuing interview, despite repeated assertions by accused that he wished to remain silent, may well raise strong argument that subsequently obtained statement was not product of free will — Trial judge was alive to this risk
(2) Waiver of right to silence – Rights can always be waived. You can decide to waive the right to silence and talk to the police. You can consent to the police coming into your house for a search.
· On the facts of Turcotte, did he waive his rights? T told them about the ranch and it was a place where he wanted to go. It’s not a lot of information, but he shared some information which he was not under a legal obligation. Crown argued that he waived his right to remain silent and this could therefore allow an adverse inference. SCC responded – this is not correct.
· Turcotte – para 52 – “Nor do I share the Crown’s view that by attending at the detachment and answering some of the police’s questions, Mr. Turcotte waived any right he might otherwise have had. A willingness to impart some information to the police does not completely submerge an individual’s right not to respond to police questioning. He or she need not be mute to reflect an intention to invoke it. An individual can provide some, none, or all of the information he or she has. A voluntary interaction with the police, even one initiated by an individual, does not constitute a waiver of the right to silence. The right to choose whether to speak is retained throughout the interaction”.
o Thus, merely sharing some information with the police does not constitute a waiver with the police. You have waived the right only with the particular pieces of information you were willing to share.
Exceptions to general rule that the accused has a right to remain silent
Exception – Albi evidence – where at trial, if the accused relies on a defence of alibi, an adverse inference can be drawn from a failure to disclose that alibi in a timely way (because the Crown or police did not have time to investigate this or time to prepare a cross-examination). It is a permissive inference, you don’t have to draw an adverse inference but you are allowed to. And it is not that the info. has to be shared with the police at the earliest opportunity, merely that it is timely (to provide police with time to investigate the alibi). This makes sense because it would be unfair for an accused to get in witness box and say ‘I was not there, ask John and Bill’. To avoid the unfairness, early disclosure of alibi witness is required.
Exception – If the accused testifies that he was very cooperative with the police, he provided them with DNA, gave them the shoes with the blood stains, then all of the evidence can be rebutted. If the accused makes an issue of it (his cooperation), then the crown can make a rebuttal.
Exception – Cut-throat defences against co-accused – i.e. joint trial, and one tries to rely on silence of the co-accused.
In Turcotte para 38 – R v Crawford (1995) – both accused’s pointed the finger at the other for the murder. They had a joint trial. Crawford did not give a statement to the police, but he did testify in his own defence. Creighton, did give a statement to the police, but didn’t testify. Creigton’s lawyer went after Crawford by highlighting how the two of them behaved when first dealing with the police – ‘you didn’t take your first opportunity to tell your side of the story, unlike my client, you instead waited in the weeds until now, in the final hour, you are telling us your story’ – the lawyer was inviting the jury to make an adverse inference. In a joint trial of co-accused, there are real risks. It may work in unfairness to the accused who choose not to speak to the police (after all he does have a right). But it would also permit a problem for the other since it would not allow his lawyer to explore this issue. If the exercise of the right to make full answer and defence on one of them would inevitably cause unfairness to the other, the appropriate remedy is severance (separate trials). But somewhere in the middle, the SCC says that is permissible, as long as the only inference that is being invited is with respect to credibility and not guilt.
Exception – a refusal to cooperate with Crown experts when your defence depends on expert opinion evidence can be the basis for an adverse inference.
R v Sweeney (1977) (Ont. CA) – p.530 – the defence of not criminally responsible for reason of mental disorder (old phrase – insanity). Crown wanted to lead evidence to rebut the defence. One way was through having Crown’s doctor’s interview Sweeney. Lawyer said, sure, but only if my experts first meet with your experts. The crown refused to this meeting. Therefore, Sweeny (claiming to be insane) did not actually meet with the Crown’s experts. In one way, this is an assertion of silence, S is under no obligation to talk to crown’s experts. But because of the particular situation, involving experts, S opened himself up to an adverse inference being drawn by not talking to the experts.
Exception – compelled by statute – As a common law right, it may be limited by statute (there may be instances where you are required to provide information to state authorities).
Fitzpatrick case – a fisherman can be required to provide licence.
White – B.C. Motor Vehicle Act – statute compels you to report an accident (thus, can’t remain silent if it happens)
Consciousness of Guilt
Note: this does not have anything to do with pre-trial silence, but it is dealt with in Turcotte, this is why we are dealing with this area in this section.
Post-offence conduct or after-the-fact conduct (a.k.a. “Consciousness of guilt)
This is a type of admission by conduct. Look at it as circumstantial evidence – an inference from other evidence allows it to be drawn. Examples of post-offence conduct:
All the above might be suggestive of guilt. If you really did nothing wrong, why did you do any of the above?
It is admitted as circumstantial evidence because as a matter of common sense there is some evidence that they way the accused behaved is more consistent with guilt than it is with innocence. From the conduct one draws an inference of awareness of having done something wrong and from this awareness there is the further inference that the accused must have in fact done something wrong (which is why he is aware of it). Thus, there is a series of things to be done to draw this evidence. Jury must be instructed according on it.
Issues/concerns with this type of evidence
What makes this evidence problematic is that it can be powerful, but on the other hand there may be competing explanations for why the accused did what he did. An awareness of having done something wrong may not be the best or the only explanation.
Evidence like this can be problematic. Though it may be powerful, there may be competing explanations for why accused acted in certain way. Awareness that accused did something wrong may not be only or the best explanation of what happened. Danger that jury may fail to take account of alternative explanations for the accused’s behaviour, and may mistakenly leap from such evidence to a conclusion of guilt.
R v White (1998) SCR – p. 544 – para 20 – “Evidence of this kind is often called ‘consciousness of guilt evidence’, since it is introduced to show that the accused was aware of having committed the crime in question and acted for the purpose of evading detection and prosecution. That label is somewhat misleading and its use should be discouraged. ‘Consciousness of guilt’ is simply one inference that may be drawn from the evidence of the accused’s conduct; it is not a special category of evidence in itself. Moreover, the words ‘consciousness of guilt’ suggest a conclusion about the conduct in question which undermines the presumption of innocence and may prejudice the accused in the eyes of the jury. As has been suggested by the Ontario CA, to the extent a general description is necessary, the use of more neutral language such as ‘evidence of post-offence conduct’ or ‘evidence of after-the-fact conduct’ is preferable. Regardless of which phrase is used, however, the focus of the jury should be kept on the specific items of evidence at hand – the act of flight, the false statement, as the case may be – and on the relevance of those items to the ultimate issue of guilt or innocence”.
R v Arcangioli (1994) 1 SCR (man participated in beating another, ran away, but did not stab)
PRINCIPLE: Evidence of ‘consciousness of guilt’, i.e. fleeing scene of crime, is relevant only if it related to a particular offence. In the case of two or more offences, a trial judge should instruct a jury that such evidence has no probative value with respect to any particular offence.
FACTS: A and some of his friends were in a bar in Scarborough, a fight broke out. One guy was being chased by a group, he was chased onto a porch where A admitted to punching and kicking Hefern, but H was stabbed. A was charged with aggravated assault and convicted to 4 years. Part of what the crown relied upon was that A ran away from the scene of the attack. A said, ‘yes, I ran away, but I have nothing to do with stabbing, someone else did this’. There was corroborative evidence of some else wielding the knife.
ISSUE: Is there any probative value of him running away from the scene?
HELD: there was no probative value. Being involved in the beating or stabbing, neither is a compelling explanation of why A ran away since he could have taken flight for either of the two reasons. If neither is a compelling explanation, then it has no value on whether A wielded the knife or not.
As well, the trial judge failed to instruct the jury properly regarding the use that could be made of the evidence of the accused's flight from the scene. To be useful, flight must give rise to an inference of consciousness of guilt in regard to a specific offence. Where an accused's conduct may be equally explained by reference to consciousness of guilt of two or more offences, and where an accused has admitted culpability in respect of one or more of these offences, a trial judge should instruct a jury that such evidence has no probative value with respect to any particular offence. Any inference to be drawn from flight disappears when an explanation for such flight is available. Here, the jury should have been warned against drawing any inference from the fact of flight. The trial judge's direction that even innocent people sometimes flee the scene of a crime was insufficient in light of the fact that the accused admitted that he had committed common assault by punching the victim, and thus had reason to flee. The trial judge should have instructed the jury that because his flight was equally consistent with common assault and with aggravated assault, it could not support an inference of consciousness of guilt with respect to the latter. Since she did not charge the jury in those terms, there is a danger that the jury may have wrongly inferred from the evidence that the accused fled because of his guilt in stabbing the victim.
R v White – to a point cuts back on Arcangioli. The issue remains a live one where the issue of wrong doing has some nexus.
Para 27 – 28 – “As a general rule, it will be for the jury to decide, on the basis of the evidence as a whole, whether the post-offence conduct of the accused is related to the crime before them rather than to some other culpable act. It is also within the province of the jury to consider how much weight, if any, such evidence should be accorded in the final determination of guilt or innocence. For the trial judge to interfere in that process will in most cases constitute a usurpation of the jury's exclusive fact-finding role. Consequently, a "no probative value" instruction like the one required in Arcangioli will be called for only in limited circumstances”.
“Such an instruction is most likely to be warranted where, as in Arcangioli itself, the accused has admitted to committing the actus reus of a criminal act but has denied a specific level of culpability for that act, or has denied committing some related offence arising from the same operative set of facts. In such cases, the participation of the accused in the culpable event is not at issue; the question to be decided is merely the extent or legal significance of that participation”.
STATEMENTS MADE BY THE ACCUSED TO PEOPLE IN AUTHORITY
Common law rule regarding statements made to people in authority. Before this may be admitted into evidence, the crown must show that the statement was made voluntarily. This is a common law rule which is now supplemented by the Charter. This is a very important principle because for over a century it has defined the permissible areas where police may operate in questioning the subject. From the perspective of the interrogator, there is a strong incentive to get a statement because that is usually some of the best and most compelling evidence. On the other hand, and because of those strong incentives, the courts have recognized the need of regulating the police interrogation methods. The courts have set out some limits on how to interrogate, but have also recognized that some latitude must be given to the police, because after all people rarely confess to the police. Positive inducement is one way to get people to confess, i.e. not hurting you is one way to get one to confess (threaten them).
Elements of common law principle of Voluntariness
Statements from accused persons are very powerful type of evidence. If you can elicit a statement from the accused, best being an admission, this is very strong. Because there is an incentive to obtain such a statement, the law has developed some protections.
A key consideration is the reliability of the statement – is it obtained in questionable circumstances that raises questions such as, has it been extorted? Has the suspect been tricked into saying something incuplatory, but false?
The only concern is not reliability or truthfulness of the statement, but also concerned with fair treatment of the suspect. Concerned with the misuse of state power. Not only because it can wield wrong statements, but because it is just wrong in itself.
(1) Must be a person in authority – because the common law requirement of voluntariness is only triggered when the statement is taken by a person in authority (i.e. Eden). And, the suspect knows that he or she is talking to a person in authority (interesting twists with undercover officers)
(2) Requirement of operating mind – what level of awareness is required for a statement to be properly the product of the accused (Whittle case – where W was suffering from serious mental disorders, his statement was found to be operating).
(3) Cannot be the product of threat or inducement – the place of threats of inducements in the analysis of voluntariness – because to be voluntary a statement cannot be obtained through threats or promises.
(4) Cannot be obtained under circumstances of oppression – In addition to the absence of threats or promises, to be voluntary a statement cannot be obtained in circumstances of oppression or oppressive condition.
(5) The way the burden of proof and standard of proof operates – unlike most types of evidence, the crown must prove that a statement made was voluntary beyond a reasonable doubt.
Elements of common law principle of voluntariness (same as above):
(1) Person in authority
(2) Operating mind
(3) Absence of inducements (threat or inducement by police can render statement involuntary)
(4) Absence of bad conditions
(5) Burden of proof
(1) Voluntariness – Person in authority
R v Hodgson (1998) 2 SCR 449 (parents threatened man accused of assaulting daughter)
PRINCIPLE: The question is whether the accused reasonably believes that the person is a person in authority.
Some of the factors to be taken into consideration with regard to principles pertaining to the admission of statement made by the accused to persons in authority – numbered 1-11 on p.565 (below 1-2 are set out).
The requirement that a statement must be voluntary is based on two concepts:
(1) The need to ensure the reliability of the statement. There is a concern that if the wrong inducement is made, the detainee may say something that is false in order to avoid the harm that may ensue and not because the statement is true. It is a concern about false confessions.
(2) The need to ensure fairness to individuals who are held in the control of the state by guarding against the improper use of coercion by the state. Even if the statement turns out to be true, corroborated in every way, that does not matter if it was obtained improperly.
Often concerns about reliability and fairness will line up, but can operate independently.
R v Rothman (1981) 1 SCR 640 (accused confessed to undercover police officer in cell)
PRINCIPLE: If the accused does not know the person, i.e. undercover officer, was a person in authority then the statement will be admissible. Subjective TEST.
NOTE: This is a PRE-CHARTER case – would be decided under the Charter differently today. Since Rothman was under arrest/detention it would attract s.7 Charter right.
FACTS: The accused was charged with possession for the purpose of trafficking and refused to give a statement to police. An undercover cop was put in the same cell and lied about his identity. The accused confessed to the cop. The defence objected to the introduction of this evidence on the basis that it was not made voluntarily.
ISSUE: Was the undercover officer a person in authority? And, consequently, was the statement given voluntarily?
Accused argued: the undercover officer was a person in authority – that way the confession would not have been considered voluntary.
HELD: The accused did not subjectively know the undercover officer was a person in authority and thus the statement was admissible.
Reasons (Martland): The accused did not have subjective knowledge that the person to whom he made his confession was a person in authority. From Admissibilty of Confessions in Criminal Matters, “the true test… is highly subjective: did the accused truly believe, at the time he made the declaration, that the person he dealt with had some power over him?” Thus, an undercover officer is not a person in authority as the accused did not think he was someone who could affect his case and could have had no fear of prejudice or hope of advantage from giving the statement to the person in the cell. The right to remain silent and the right to be protected against self-incrimination does not cover protection from police tactics (only refers to the right not to testify against one-self).
Concurring (Lamer): States the rules regarding the admissibility of statements by an accused to persons in authority:
1. Such a statement is inadmissible unless the judge is satisfied beyond a reasonable doubt that nothing said or done by any person in authority could have induced the accused to make a statement which was or might be untrue.
2. Even if this is satisfied, the court should exclude confessions made in circumstances where its admission would bring the administration of justice into disrepute. However, criminal law enforcement “is not a game to be played by the Marquess of Queensbury rules,” and so it is to be inadmissible only if it is obtained in a way that offends our basic values (such that it “shocks the community”), in a manner which is contrary to the rules of law which we have developed for their protection.
In this case, the lie by the undercover cop did not induce the accused into making a statement that was untrue, and such a tactic is not shocking to the public.
“The principle itself, of course, requires (and this is an absolute requisite) that the statement in fact be made to a person in authority; and if this qualification is not met, then it matters not whether the person is known to the accused to be one in authority. This is because the principle adopted for the protection of the integrity of the administration of justice is founded upon the realization that persons in authority, instrumentalities of the state, must observe certain basic rules. This is so for the practical reason that their very authority might, by promise or threat, express or implied, produce a statement whether or not the accused was truly willing to speak, and on occasion might bring about statements which are, in whole or in part, untrue. It is also necessary to adopt these basic rules if it is to command the respect and support of the community it serves, particularly in a judicial structure which embraces the concept of the jury” (p.552).
R v Hodgson – court declined to extend ‘person of authority’ beyond those considered ‘instrumentality of the state’. So the family of the complainant who confronts the accused, will likely not be considered a person in authority. A person in authority is someone who is engaged in the arrest, detention, interrogation or prosecution of the accused as a representative of the state. The rationale for this more limited definition is drawn from controlling the exercise of state power. Thus, if you are not dealing with state power, then the principal need not apply. This does ensure that only the crown is responsible for true agents of the state. The high standard is because of proving the statement beyond a reasonable doubt.
R v Rothman (undercover officer in cell) – shows one of the ways in which there can be a disconnect between the facts and how the facts were perceived by the accused. R stood on his rights, but once in the cell with an undercover officer, he let his guard down and confessed. Court says that he is not dealing with a person in authority because R did not perceive the person as being a person in authority. The same power or authority is not upon the undercover officer in the eyes of R, thus, the statement was allowed. The statement is considered voluntary since in the perception of the accused, the person he confessed to was not a person in authority.
R v Grandinetti (2005) 1 SCR 27 (police created a gang and pretended to know corrupt officers)
PRINCIPLE: No voir dire on voluntariness is necessary where the accused subjectively believes his statement was made to a person NOT in authority.
FACTS: Significant circumstantial evidence linked the accused to the murder of his aunt. To obtain additional evidence against him, the police began an undercover operation. Several officers, posing as members of a criminal organization, worked at winning the accused's confidence. To encourage him to talk about the murder, they suggested that they could use their corrupt police contacts to steer the murder investigation away from him. The accused eventually confessed his involvement in the murder. At no time was he aware of the true identities of the undercover officers. After a jury trial, the accused was convicted of first degree murder. The trial judge ruled that the accused's inculpatory statements to the undercover officers were admissible, holding that the undercover officers could not be persons in authority and that no voir dire on voluntariness was necessary.
HELD: No voir dire on voluntariness was necessary because the undercover officers were not persons in authority in the eyes of G.
Note: Since he was not detained in any way, the Charter rights are not engaged.
The methodology used here is what was of concern. Has to be an exercise of authority for “non-corrupt” purposes.
When should a voir dire be held to determine voluntariness?
In both Wells and Hodgson, a family member of the complainant confronted the accused and behaved in threatening ways. In both cases there was a lot of discussion of when a trial judge should have a voir dire. If it’s a state agent (officer), a voir dire must be held. But, since it’s a member of the family (civilian), the issue was whether a voir dire should be held.
R v Hodgson (1998) 2 SCR 449 (parents threatened man accused of assaulting daughter)
PRINCIPLE: The question is whether the accused reasonably believes that the person is a person in authority AND the trial judge must give the jury a direction regarding what weight could be placed on the confession.
FACTS: The accused was charged with sexual assault. The parents of the complainant confronted the accused, threaten to kill him, and claim that he admitted to committing the offence. The trial judge admitted the admission without holding a voir dire. The accused appealed, arguing that the parents were ‘persons in authority’ and a voir dire should have been held to determine voluntariness.
ISSUE: Are parents persons of authority?
HELD: No. To demonstrate the need for a voir dire, the evidence must show that the receiver of the statement was closely associated to the authorities prior to obtaining the statement and that there was a close connection between the contact with the authorities and the receipt. The evidence must suggest that the receiver was acting in concert with the authorities, or as their agent, or as part of their team. Even though he was threatening the accused with a knife, the parents were not a person in authority from the accused’s point of view. The confessions rule doesn’t apply, so the Crown doesn’t have to show the confession was voluntary. The question is whether the accused believes reasonably that the person is a person in authority.
“In the meantime I would suggest that in circumstances where a statement of the accused is obtained by a person who is not a person in authority by means of degrading treatment such as violence or threats of violence, a clear direction should be given to the jury as to the dangers of relying upon it. The direction might include words such as these: "A statement obtained as a result of inhuman or degrading treatment or the use of violence or threats of violence may not be the manifestation of the exercise of a free will to confess. Rather, it may result solely from the oppressive treatment or fear of such treatment. If it does, the statement may very well be either unreliable or untrue. Therefore, if you conclude that the statement was obtained by such oppression very little if any weight should be attached to it” (para 30).
R v Wells (1998) 2 SCR 517 (RCMP and father agreed to get accused to confess – threatened)
PRINCIPLE: The trial judge must hold a voir dire where voluntariness is in question if the person whom the statement was made to is not a person in authority, but an ‘agent’ – depends on the fact.
FACTS: The respondent confessed to sexually touching young boys. Two of the victims told their fathers who, in turn, discussed the matter with the RCMP on two occasions and then decided to try to trick the accused into confessing. The father of one boy confronted the accused and, when he denied the allegations, grabbed him by the hair, held a knife to his throat and threatened him. When the accused replied with an inculpatory statement, the father punched him and forced him to apologize to the children. Throughout his statement to the police, the accused kept expressing surprise that it had taken the father three days to have him arrested. At trial, the statements made by the accused to the father and the children were admitted into evidence. Defence counsel raised no objection to the admission of this evidence, but argued to the jury that the statements were patently unreliable in light of the circumstances under which they were made. The accused was convicted. The Court of Appeal allowed his appeal and ordered a new trial.
ISSUE: Whether the trial judge erred in failing to direct a voir dire of his own motion to determine whether the statements made to the father of one of the complainants were given to a person in authority and, if so, whether the statements were made voluntarily.
HELD: The applicable principles and factors to be considered were set out in R. v. Hodgson. The evidence adduced was sufficient to have alerted the trial judge to the need for a voir dire. Significantly, the complainants' parents visited and spoke to the police and, after their second visit, planned to obtain an admission from the respondent by a trick. In light of the evidence, the trial judge should have inquired of defence counsel whether or not he was willing to waive a voir dire in relation to statements against interest made by the accused to the father. There was sufficient evidence before the judge to constitute this one of those "rare cases" where the trial judge in the absence of a request by the accused to hold a voir dire would be required to make an inquiry as to whether there should be a voir dire to determine if the parents were persons in authority for the purposes of the confessions rule. If, on retrial, the respondent's statements to the father were again admitted into evidence, fairness requires that a direction, as suggested in Hodgson, be given regarding these statements.
(2) Voluntariness – Operating mind
The statement made must in some way be the statement of the accused. But this requirement is very limited. The threshold that must be passed by the crown is very low.
Default position – everyone has an operating mind, if there is an air of reality that there was not, the accused must trigger it, and then the burden shifts back to the Crown to disprove it.
Ward v. R.  2 SCR 30 (Officer questioned witness/accused while in state of shock/drunk)
PRINCIPLE: The court must be satisfied that the statement was freely and voluntarily made and it represents the operating mind of the accused.
FACTS: The accused was in a car accident in which his friend died. He was found unconsciousness and was revived. When the police arrived he had regained consciousness and they took a statement from him during which he identified himself as the driver. There was no evidence of any fear of prejudice or hope of advantage, but there was evidence that he was drunk and in shock. The trial judge ruled that it was not voluntary.
ISSUE: Was the statement voluntary?
HELD: No. The operating mind was absent.
It is not sufficient to show that the statement was not given with the hope of advantage or fear of prejudice. The court must also be satisfied that the statement was freely and voluntarily made and it represents the operating mind of the accused. “There is a further investigation of whether the statements were freely and voluntarily made, and if no hope or advantage or fear of prejudice could be found in consideration of the mental condition of the accused at the time he made the statements, to determine whether or not the statements represented the operating mind of the accused.”
R. v. Whittle  2 SCR 914 (man with schizophrenia confess ‘extra’ crimes to police)
PRINCIPLE: The test for an operating mind is low: an awareness of who you are talking to and an awareness of what you are saying.
FACTS: While in custody for a different crime, Whittle made statements to the police that led them to arrest him on charges of murder. He claims he suffers from a mental illness that prevents him from not speaking, and his statement wasn’t voluntary.
ISSUE: Whittle argues that his mental disease prevents him from having an operating mind.
HELD: SCC concluded that he had a sufficient operating mind for these to be his statements for confessing to a murder. He knew he was confessing to a murder and he knew he was speaking to an officer. As long as those congnitive elements are met: an awareness of who you are talking to and an awareness of what you are saying – this is all that is required for an operating mind requirement. It comes down to a form of automatism for the operating mind to be negatived.
(3) Voluntariness – Absence of inducements (threat or inducement by police can render statement involuntary)
What is it that can render a statement involuntary?
Ibrahim v The King (1914) (PC) – “It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope advantage exercised or held out by a person in authority”.
In R v Pager 91972) 1 All ER, the CA considered the meaning of the word “oppression” –
R v Priestley (1965) – “... to my mind, this word in the context of the principles under consideration imports something which tends to sap (undermine), and has sapped, that free will which must exist before a confession is voluntary. ... Whether or not there is oppression in an individual case depends upon many elements. I am not going into all of them. They include such things as the length of time of any individual period of questioning, the length of time intervening between periods of questioning, whether the accused person has been given proper refreshment or not, and the characteristics of the person who makes the statement. What may be oppressive as regards a child, an invalid or an old man or somebody inexperienced in the ways of this world may turn out not to be oppressive when one finds that the accused person is of a tough character and an experienced man of the world”.
Both these strands should be kept separate, but there are situations where they can combine.
Threats or promises
Particularly threats of bodily harm, will easily be considered involuntary.
Not meant to intimidate individual, but framed in positive terms, i.e., there is a benefit from telling us this.
FACTS: S gets arrested and is about to be charged with 18 armed robberies. The police are dangling out there that they may also charge his girlfriend – ‘if you come clean we won’t charge her, but if you don’t, we will’.
HELD: On these fact, this was not considered an ‘inducement’ to render the statement involuntary. HOWEVER, it triggers concerns about voluntariness.
R. v. Oickle  2 SCR 3 (‘it would be better for you psychologically if you confess’ – fine)
PRINCIPLE: Police saying ‘it would be better psychologically if you confess’ or ‘you’ll feel better about yourself’ is not an inducement because there is no quid pro quo – police have no power over you actually feeling better about yourself.
FACTS: A series of eight fires were set in Nova Scotia. Oickle, a volunteer firefighter, was asked to take a polygraph test. He agreed, and was advised of his right to silence, to a lawyer, and to leave at any time. He failed the test, and after questioning admitted to setting one of the fires. He was arrested, and taken to the station for more questioning, after which he confessed and started to cry. The officers allegedly minimized the severity of the crimes, suggested that the accused needed psychiatric help, said it would be “better” if he confessed, said that they might have to polygraph his girlfriend, mislead the accused about the reliability of the polygraph machine, and abused his trust.
ISSUE: What are the common law limits on police interrogation? Did the police improperly induce the accused’s confession?
HELD: The confession was voluntary, and admissible. This is fine, it’s not holding out any quid pro quo benefit being held out by the police. Him feeling better has nothing to do with the police. That kind of inducement is fine.
In general, courts should examine the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession’s voluntariness, taking into account threats or promises, oppression, the operating mind, and police trickery that unfairly denies an accused the right to silence. In this case, the police’s conduct didn’t
Side note: Plea bargain – what’s the difference between inducements and a plea bargain? The inequality is rectified when you’re outside of the interrogation. The accused has its own lawyer, it is a different situation. But, there will still be a problem of false confessions.
Inducements by police are acceptable to a degree
R v Spencer (2007) SCC 11 – Iacobucci comments of Oickle: “In summary, courts must remember that the police may often offer some kind of inducement to the suspect to obtain a confession. Few suspects will spontaneously confess to a crime. In the vast majority of cases, the police will have to somehow convince the suspect that it is in his or her best interests to confess. This becomes improper only when the inducements, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne”.
Side notes: Polygraph results are inadmissible.
The use of a polygraph, depending on how it is conducting, can contribute to oppression. For example, prof’s example of nurse where the technique convinced the nurse that the polygraph works, she failed it, and therefore she began to believe that she was guilty of the murder of the infant.
Prof – the rules governing voluntariness are unsatisfactory.
Thus far we have looked at the common law right to silence.
CHARTER – RIGHT TO SILENCE
Charter – right to silence is read out of s.7
Common law right VS Charter right
Improperly Obtained Evidence
Under the Charter right three requirements must be established:
(1) Is the person in detention? (main difference between Charter and common law)
a. Turcotte (he was not, spoke voluntarily with police)
(2) Is the informer a state agent?
a. Broyles (civilian (cousin) working for the police)
(3) Was the statement elicited?
a. Rothman / Hebert (undercover officers in cell – passive or illicited)
R. v. Hebert  2 SCR 151 (arrested for drugs, undercover officer in cell – Charter applies)
PRINCIPLE: Once an accused invokes his s.7 right to silence, once detained, the police cannot use tricks to elicit information from him. BUT, This only applies if accused is arrested or detained AND police may use purely passive devices to illicit information even once s.7 has been engaged.
FACTS: The accused was arrested, cautioned and charged for possession and trafficking. He says he does not want to talk to the police. An undercover cop is placed in his cell and the accused tells him everything.
ISSUE: Is the confession admissible?
Crown argued: admitted that there was a right to silence under s.7, but argued that the right to silence did not extent to a voluntary statement to a cell mate. Such tricks would thus be allowed. Accused argued: that the right to silence is much more broad than this.
HELD: The confession is NOT admissible and should be excluded under s.24(2). Here, the accused exercised his choice not to speak to the police and the police violated his right to remain silent under s. 7 of the Charter by using a trick to negate his decision. The undercover officer engaged the accused in conversation after he had invoked his right to silence. The right to remain silent is a principle of fundamental justice and is broader than the common law confession rule and the rule against self-incrimination. Once it is determined that a detainee subjectively possesses an operating mind, then the issue is whether the conduct of the authorities, considered on an objective basis, effectively and unfairly deprived the suspect of the right to choose whether to speak to the authorities. Thus, when the police use subterfuge (trick/deception) to interrogate an accused after he has advised them that he does not want to speak to them, they are improperly eliciting information. However, in the absence of eliciting behavior on the part of the police, there is no violation of the accused’s right. This applies only to detainees, and so does not affect the use of undercover police officers prior to detention.
Reasons (McLachlin; Dickson, Lamer, La Forest, LHD, Gonthier, Cory): The right to silence is found under s. 7. The Charter right is broader than the common law confessions rule as it created a positive right to decide whether or not to talk to the authorities. The actions of the police will be judged on an objective standard: did the police actions effectively and unfairly deprive the suspect of the right to make an informed decision of whether to speak to authorities?
“The scope of the right to silence, however, does not go as far as to prohibit police from obtaining confessions in all circumstances. The proposed approach to the s. 7 right to silence retains the objective approach to the confessions rule and would permit the rule to be subject to the following limits:
Concurring (Wilson): Has a wider view of the right. The right to remain silent arises anytime the coercive power of the state is brought to bear on the accused either formally or informally. It must be given a generous rather than legalistic interpretation.
Police permissible evidence gathering
“Waiver, as defined in Clarkson v. The Queen (1986) 1 S.C.R. 383, is a subjective concept dependent, among other things, on the accused's knowing that he is speaking to the authorities. On this approach, all statements made by a person in detention which were not knowingly made to a police officer would be excluded because, absent knowledge that the suspect is speaking to a police officer, the Crown cannot establish waiver. This would include statements made to undercover agents (regardless of whether the officer is merely passive or has elicited the statement) as well as conversations with fellow prisoners overheard by the police and statements overheard through mechanical listening devices on the wall”.
Rothman VS Herbert
Rothman – 1981 case – was not subject to the Charter so the police trick was allowed.
Hebert – 1990 case – was subject to the Charter so the police trick was NOT allowed.
R v Singh (2007) SCC 48 (accused of murder, s.7 silence engaged, police adamantly question)
PRINCIPLE: Police persuasion, short of denying the suspect the right to choose or depriving him of an operating mind, does not breach the right to silence.
FACTS: The accused was arrested with respect to a shooting death of an innocent bystander killed by a stray bullet. The accused was advised of his s. 10(b) right to counsel and consulted counsel privately. During two subsequent interviews with police the accused repeatedly stated he did not want to discuss the incident. He wanted to go back to his cell, but the police subsequently questioned him 18 times. Eventually, they were able to get some incriminatory evidence from Singh. While the accused did not confess to the crime, he made numerous admissions on the issue of identification at trial. On a voir dire, the trial judge determined the admissions, in all the circumstances, were not the result of the police systematically breaking down his operating mind and the accused's right to silence was not undermined. The trial judge held the probative value of the statements outweighed their prejudicial effect and ruled them admissible. The Court of Appeal upheld the trial judge's ruling.
ISSUE: whether the police went too far in their questioning?
HELD: Appeal dismissed. There was no error in law. It is not appropriate to require that police refrain from questioning a detainee who states that they do not wish to speak to police. The trial judge was very much aware of the risk that the persistence by the police in continuing to interview the detainee, despite his repeated assertions that he wished to remain silent, raised a strong argument that the subsequently obtained admissions were not the product of a free will. The trial judge's ruling was supported by the record and is entitled to deference.
Examples of police techniques to elicit information
1st possibility – undercover officer – is permissible, but officer must remain largely passive.
2nd possibility – fellow inmate acting as an agent to the police – the person must go into the relationship with the accused knowing he is an agent of the state in order for s.7 to be engaged.
R. v. Broyles  3 SCR 595 (cousin of accused wearing a wire, but actively elicits info.)
PRINCIPLE: If acting as agent of police, i.e. wearing a wire, same rules apply. Two Questions must be answered: 1) was the informer acting as an agent of the state (did the interaction b/w accused and informer only take place because of the intervention of the state); 2) Did the informer elicit the statement from the accused?
FACTS: The accused was charged with murder. The police approached Ritter (his cousin) and asked him to visit the accused in his cell wearing a wire. During the conversation, the accused made an incriminating statement.
ISSUE: Did the authorities obtain evidence of Broyles’ conversation in a manner than violated his right to silence?
HELD: Yes. Ritter was an agent of the state, elicited the statements from the accused, and, furthermore, undermined the accused’s right to counsel.
The right to remain silent is triggered when the accused is subject to the coercive powers of the state through arrest or detention. The purpose of the right under s.7 is to prevent the use of state power to subvert the right of an accused to choose whether or not to speak to the authorities. The court established a two-prong test for determining whether the conduct of an informer violates the right to silence:
Here, the exchange between the two was materially different because of the state’s intervention, and so Ritter was a state agent. There was also active elicitation. The Crown tried to invoke section 686 and uphold the conviction. It failed in this case, but it is interesting that they tried even though the trial judge’s error was in admitting unconstitutional evidence.
Privilege Against Self-Incrimination
Section 13, Charter
The question is always ‘what is the permissible use of testimony in one proceeding in a subsequent proceeding’? The protection is only engaged in the subsequent proceeding. The question which arises is whether the use of testimony used in the earlier proceeding is permissible in the subsequent proceeding.
Section 13 –
“A witness who testifies in any proceeding has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence”.
s.5, Canada Evidence Act (reflects the same balance that is struck in s.13) –
s.5(1) No witness shall be excused from answering any question on the ground that the answer to the question may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person.
The Canadian protections under s.5 and 13 are quite different from 5th amendment – i.e. can say ‘I refuse to answer that question under the 5th”. The Canadian approach allows for the question to be asked and answered, but you are protected from the use of that answer/statement to harm you later in another proceeding (with narrow exceptions).
Dubois v The Queen (1985) 2 SCR 350 (evidence from 1st trial can’t be used in 2nd trial0
PRINCIPLE: s.13 prohibits statements made by an accused in the first trial to be adduced in the second trial unless the accused tell a different story in second trial.
FACTS: D charged with 2nd degree murder. He had a trial, gave evidence in his own defence, he admitted that he killed the deceased, but also advanced provocation and self-defence. D was convicted, he appealed. His appeal was allowed and a new trial was ordered. At the second trial, the Crown had the idea of taking his transcript from his first case and file it at the re-trial.
HELD: can’t do this. Use of prior testimony to incriminate him in the retrial—impermissible.
The infringement that occurred was the use of D’s prior statement to incriminate him, that is, to help prove the Crown’s case in the new trial. The Crown can’t use D’s own words against him. He does not have to testify at the second trial. But, if he was to testify and tells a different story, then the Crown may be able to bring up past evidence.
FACTS: M was charged with a rape in Edmonton. Shortly after offence was committed, he moved to BC. Crown sought to use this evidence as evidence of conscious of guilt. This depended on a critical fact, the fact being whether M knew the police were looking for him. At the first trial, he testified that he knew the police wanted to talk to him. At second trial, story changed – ‘I knew the police wanted to talk to me, but I thought it was regarding something different’. He was confronted by the crown with his past testimony.
HELD: this was an impermissible use of past testimony. It was used to incriminate him. OVERRULED by SSC in Henry (this is now permissible).
R v Kuldip (1990) 3 SCR 618 (accused left scene of accident, changed reason is 2nd trial)
PRINICPLE: Crown may lead evidence from 1st trial into 2nd trial without infringing s.13 if it is for the purpose of impeaching credibility and NOT to incriminate.
FACTS: K was charged with failure to remain at a scene of an accident. At first trial he testified that he did not remain at the scene, but that he drove to the police station. Crown was able to establish that the constable was not on duty the day he claimed to have made the accident report. He was convicted. At re-trial, his story changed. Instead of saying it was one particular constable, he becomes more vague and says it must have been someone else. Crown confronts him with past testimony in order to impugn his testimony – trying to lead trial judge to not believe his statements by pointing to his inconsistencies.
HELD: This was fine. Distinction between using evidence to attack credibility VS using evidence to incriminate. As long as the prior testimony was being used to impeach credibility, that did not infringe s.13 of the Charter. It was only when you went the next step and tried to incriminate, would it infringe.
Good example of how the distinction simply collapses and you can’t make sense of it:
R v Noel (2002) 3 SCR 433 (two brothers convicted, separate trials, testify in other’s trial)
PRINCIPLE: Cross-examination on prior testimony was permissible ONLY if there was no realistic possibility that it would be used for an incriminating purpose. It can only be used to impeach credibility. If any possibility at all that could be used to incriminating then will be barred by s.13.
FACTS: N and his brother were charged with murder of a 9 year old boy in Quebec. N and his brother were charged separately, which meant that each could be compelled by the Crown to testify at the other’s proceeding. So at Noel’s brother’s trial, Noel could be a witness. Noel did testify at his brother’s trial as he was compelled to do so. He was examined extensively at his own involvement at the murder. At his own trial, N testifies and the Crown was permitted to cross examine him at length on incriminating statements that he made in course of his brother’s trial. Those incriminating statements went largely to the facts of the charge N was facing.
HELD: The Crown had crossed the line between impugning credibility and incriminating him with his prior testimony. The rule emerged that cross examination on prior testimony was permissible only if there was no realistic possibility that it would be sued for an incriminating purpose under s.13.
“I have come to the conclusion that s.13 of the Charter must be interpreted as follows: When an accused testifies at trial, he cannot be cross-examined on the basis of a prior testimony unless the trial judge is satisfied that there is no realistic danger that his prior testimony could be used to incriminate him. The danger of incrimination will vary with the nature of the prior evidence and the circumstances of the case including the efficacy of an adequate instruction to the jury. When, as here, the prior evidence was highly incriminating, no limiting instruction to the jury could overcome the danger of incrimination and the cross-examination should not be permitted”.
Most important case now:
R v Henry (2005) SCC 76 (two tried for murder, claimed intoxication, then one changes story)
PRINCIPLE: as long as the person testifies voluntarily at the first proceedings, it is fair game to use that testimony on a subsequent hearing even if for an incriminating purpose. On the other hand, if the person was served by a subpoena and was required to come to court, that evidence may not be used against them in any way if there is a realistic possibility that it could be used to incriminate.
FACTS: H and Riley were involved in the production of marijuana in BC. There was a disagreement. Mr. L ends up taped to a chair, and he suffocates to death. H and R are charged. There defence is that they were too intoxicated to form the intent of murder. It never occurred to us what taping his mouth would do. They then get a new trial. At new trial, H, continued to advance intoxication defence, but R changed story. Crown wants to confront inconsistencies with what R is saying. These are inconsistencies that go directly to the facts. These could be seen as going to credibility or incriminating himself. Applying Noel, the crown should not have been permitted to cross examine H or R.
HELD: Dubois remains the law. Among the purpose served by s.13 is to prevent the compelled testimony of the accused and that is what would happen if the crown filed its case in chief. Court overruled Mannion.
Critical question in Henry is whether the witness testified voluntarily or under compulsion?
If witness testified voluntarily, then it may be used in a subsequent proceeding in cross examination for the purpose of incriminating that individual in the subsequent proceedings. So the Kuldip rule is overturned where the person testifies voluntarily in the first proceedings. Thus, as long as the person testifies voluntarily at the first proceedings, it is fair game to use that testimony on a subsequent hearing even if for an incriminating purpose. On the other hand, if the person was served by a subpoena and was required to come to court, that evidence may not be used against them in any way if there is a realistic possibility that it could be used to incriminate.
Noel VS Henry
Rationale behind ‘compellability’ in Noel
As long as you are a compellable witness, as long as you could have been subpoenaed, that is good enough to give you the s.13 protection. The rationale behind the rule is quid pro quo (in exchange for requiring you to giving your evidence in the first proceeding, we will give you protection of that evidence in later proceeding). But if no one compelled you to give that evidence, then there was no promise, you gave it freely, you are not entitled to any special protection.
R v Noel – “I have come to the conclusion that s.13 of the Charter must be interpreted as follows: When an accused testifies at trial, he cannot be cross-examined on the basis of a prior testimony unless the trial judge is satisfied that there is no realistic danger that his prior testimony could be used to incriminate him”.
NOW, we find that s.13 has been narrowed (it only applies to compelled witnesses), but it is a very powerful protection.
CHARTER RIGHTS IN THE EVIDENCE GATHERING PROCESS
s.24(2) – confers upon trial courts the authority to exclude evidence from the trial on the basis that it was obtained in a manner that infringed the Charter. This remedial power is a significant step away from the common law which granted trail courts only limited authority to exclude evidence on the basis of how it was obtained.
How is discretion under s.24(2) exercised?
Is it to be open ended or constrained in some way? – constrained by an assessment by whether the administration of justice would be brought into disrepute. The concept has been unpacked in two different ways:
How does one get to a s.24(2) analysis?
To even get to the question whether evidence should be excluded under s.24(2), there must be a Charter breach. The onus rests on the party alleging the breach to establish the breach on a balance of probabilities. So the onus rests on the accused to establish the breach on a balance of probabilities. Also, the onus is on the accused to establish the exclusion of the evidence on the balance of probabilities, i.e. is it more likely than not that the admission would bring the administration of justice into disrepute. Thus, the onus shifts. The accused must have standing to raise the issue. But, there will be cases where state conduct will have an impact on Charter rights of third parties (Edwards).
Three requirements of s.24(2):
(1) Standing (i.e. Edwards)
(2) Evidence must be obtained in a manner that infringed your Charter right (Strachan)
(3) Would it bring the administration of justice into disrepute
(1) First aspect of s.24(2) – Standing
R v Edwards (1996) 1 SCR 128 (drugs found in accused’s girl friend’s apartment)
PRINCIPLE: Section 8 protects only reasonable expectations of privacy AND a claim for relief under s.24(2) can only be made by the person whose Charter rights have been infringed.
FACTS: The police suspected that there might be crack cocaine in Ms. Evers' apartment, but they did not consider that they had sufficient evidence to obtain a search warrant. After taking the appellant into custody, two police officers attended at the apartment. They made a number of statements to Evers, some of which were lies and others half-truths, in order to obtain her cooperation. They advised her: (1) that the appellant had told them there were drugs in the apartment; (2) that if she did not cooperate, a police officer would stay in her apartment until they were able to get a search warrant; (3) that it would be inconvenient for them to get a search warrant because of the paperwork involved; and (4) that one of the officers would be going on vacation the following day and regardless of what they found in her apartment, she along with the appellant would not be charged. E was the accused, he was facing the drug charges. The problem he faced in seeking the exclusion was that the drugs were found in his gf’s apartment, not his. There were problems with how the police entered her apartment. However, it was the gf’s s.8 rights which were infringed, not his. So he was lacking any standing. E was staying at her apartment only as a guest
ISSUE: What rights does an accused person have to challenge the admission of evidence obtained as a result of a search of a third party’s premises?
HELD: Section 8 protects only reasonable expectations of privacy. Thus, if the court concludes that the accused did not have a reasonable expectation of privacy, s. 8 does not apply. A claim for relief under s.24(2) can only be made by the person whose Charter rights have been infringed. A person whose right to privacy has not been infringed can only raise a s. 8 argument if there has been a massive invasion of the public privacy interest.
As a general rule, two distinct inquiries should be made to assert a right under s. 8:
(1) Has the accused a reasonable expectation of privacy? The accused must show that he had a privacy interest in the place searched or the thing seized. Factors to be considered in assessing the totality of the circumstances include:
· presence at the time of the search
· possession of control of the thing searched
· historical use
· ability to regulate access
· subjective expectation of privacy and objective reasonableness of that expectation.
Here, the accused did not have a reasonable expectation of privacy in the apartment as “he was no more than a privileged guest” who lacked the authority to regulate access to the premises. While there may be an argument that he had an expectation of privacy in the drugs themselves, he had claimed previously that they were not his and so cannot now change his story and put forward a fresh argument.
(2) If so, was the search conducted reasonably.
Three zones of privacy s.8 protects
The particular zone at issue here was privacy in relation to property or a territorial zone of privacy. Where E’s claim failed on the standing point was that this was not his property. He did not have to own it, but he did have to have some measure of control over it, some ability to regulate access to the property. At its highest, he was simply a guest. As a guest, he lacked the necessary degree of control and therefore he did not have a reasonable expectation of privacy and so lacked standing. Must establish that it’s your right that is being infringed.
Note: If the gf was charged, she could argue her Charter rights were violated. HOWEVER, a clever person realised it’s best to charge her bf and not her. Thus, unless you can establish standing, no success.
(2) Second aspect of s.24(2) – Evidence must be obtained in a manner that infringed your Charter right
R. v. Strachan  2 SCR 980 (had warrant, refused accused right to counsel, searched)
PRINCIPLE: There must be a causal connection and a temporal connection between a Charter right being denied and the subsequent search.
FACTS: The police obtain a search warrant to enter the accused’s house. As soon as they enter he says he wants to call his lawyer. They told him he could not do so until they had “matters under control” (they had some concerns about weapons), and never get around to letting him call his lawyer. They find drugs.
ISSUE: Is the evidence of drugs admissible?
Accused argued: tried to get the drugs excluded at trial on the basis that his right to counsel was violated.
Crown argued: there was no causal link between the breach and the evidence as the breach didn’t generate any evidence,
HELD: The evidence is admissible. There was no causal connection between the denial of the right to councel and the discovery of the drugs – happened in a causally independent way. As long as there is a sufficient temporal connection between the breach and obtaining of evidence, that can be enough to say it was obtained in a manner that infringed the charter, but this was not the case here.
While the accused’s s.10(b) (right to counsel) rights were violated, s.24(2) is not an automatic exclusionary rule. Considering the circumstances “exclusion of the evidence rather than its admission would tend to bring the administration of justice into disrepute.”
R v Goldhart (1996) 2 SCR 463 (co-accused undergoes religious conversion and confesses)
PRINCIPLE: Breach of a charter right may be independent of other evidence received as a result of the breach of the charter right if the connection is removed.
FACTS: The police conduct an unlawful perimeter search of an abandoned house, they smell marijuana and enter the house. They find drugs. This lead to the arrest of Goldhart and others. Subsequent to the arrest, one of the co-accused, Meyer, becomes religious and decided to cooperate with the Crown. His evidence implicates G.
ISSUE: Whether the viva voce evidence of the co-accused given following an arrest due to an illegal search subject to s.24(2)?
G argued: were it not for the unlawful search, Meyer never would have been arrested, never would have undergone a religious transformation, and thus would never have provided the incriminating evidence. Thus, G argued that it was a series of events starting from the police’s breach of the charter rights which eventually lead to the conversion of the friend and to the incriminating testimony.
HELD: Court rejected this. The individual autonomy explained the friend’s decision to testify and not the charge breach. Thus, the testimony (viva voce evidence) was not obtained in a manner than infringed the charter, only the search was.
Relevant Charter provisions:
s.8 – unreasonable search and seizure
s.9 – arbitrary detention or imprisonment
s.10a – upon arrest for detention must be told the reason for being detained
s.10b – upon arrest or detention must be told the right to counsel/the right to obtain counsel
s.10c – habeas corpus (not related to this course)
s.8 only applies where state action has an impact upon a reasonable expectation of privacy:
Hunter v Southam (1984) 2 SCR 145
PRINCIPLE: In assessing a breach of s.8 an assessment must be made in balancing between the legit expectation that government will not intrude in zones of privacy, and recognition that in some circumstances the government does have a right to intrude in those zones of privacy (goals of law enforcement).
“The guarantee of security from unreasonable search and seizure only protects a reasonable expectation. This limitation on the right guaranteed by s. 8, whether it is expressed negatively as freedom from "unreasonable" search and seizure, or positively as an entitlement to a "reasonable" expectation of privacy, indicates that an assessment must be made as to whether in a particular situation the public's interest in being left alone by government must give way to the government's interest in intruding on the individual's privacy in order to advance its goals, notably those of law enforcement”.
s.8 protects a variety of zones of privacy:
Two critical questions:
Whether the search and seizure was reasonable or not
Collins v. The Queen  1 S.C.R. 265 ( officer seizes by throat – test if search is reasonable)
PRINCIPLE: A search will be reasonable if it is (1) authorized by law, (2) if the law itself is reasonable, and (3) if the manner in which the search was carried out is reasonable.
FACTS: C was seated in a pub when she was suddenly seized by the throat and pulled down to the floor by a man who said to her “police officer.” The police officer, then noticing that she had her hand clenched around an object, instructed her to let go of the object. As it turned out, she had a green balloon containing heroin. The search was purportedly authorized under s. 10(1) of the NCA which allows a peace officer to enter and search any place other than a dwelling-house without a warrant if he reasonably believes there is a narcotic on the premises. During a voir dire held to determine whether the evidence should be excluded under s. 24(2), the Crown attempted to establish the basis for the constable’s suspicion. C’s counsel made an improper hearsay objection and the Crown thus did not establish the basis for the constable’s suspicion.
ISSUE: Should the evidence have been excluded under s. 24(2)?
Crown argued: the search did not violate s. 8 but that even if it did, the evidence should not be excluded under s. 24(2).
C argued: the search violated s. 8 and the evidence should be excluded under s. 24(2).
HELD: If the officer’s search was conducted without reasonable grounds, the search violated s. 8 and the evidence should have been excluded under s. 24(2). However, due to the erroneous hearsay objection a new trial should be ordered to determine whether the search was unreasonable.
“A search will be reasonable if it is authorized by law, if the law itself is reasonable, and if the manner in which the search was carried out is reasonable.” If the officer did not have reasonable grounds to suspect C, the search was not authorized by law and thus was unreasonable. Once the appellant has demonstrated that a search was a warrantless one, there is a presumption of unreasonableness which the Crown must rebut (on a balance of probabilities)”.
Collins – Three ways to challenge a search – A search or seizure will be unreasonable and may be challenged under s.8 on three grounds:
(1) Was it was authorized by law?
a. i.e. there was no statute or common law rule authorizing the search.
b. i.e. common law powers, i.e. the power to search incident to arrest. If there was no common law or statutory provision to allow the search. Or, where you do have a statutory power, but the preconditions are not met, i.e. police apply for search warrant, they get a search warrant, but later it becomes clear that they didn’t have grounds to get the warrant (thus, failed to meet statutory condition to get the DNA sample or wire tap or search warrant).
c. i.e. Prof’s example – a warrant was issued based on odd hydro patterns presuming lights used to grow marijuana. Police were given a warrant based on this, but it turned out they were wrong with calculation, warrant should not have been issued).
(2) Where the law itself is unreasonable.
a. While it was authorized by law, the law authorizing the search was unreasonable (i.e. unconstitutional). So, what looked like a reasonable search when it was carried out was, in fact, unreasonable. See Hunter v. Southam.
(3) The manner in which the search was conducted.
a. Though authorized by a reasonable law, the search was carried out in an unreasonable manner.
b. i.e. police get a search warrant for a day care, but go in with the swat teams and weapons showing. The manner is inconsistent with what one would reasonably suspect. On the other hand, going into Hell’s Angels club would not be unreasonable.
c. i.e. Prof’s example – police raided the Scientology building without looking to see if what they seized was authorized by the warrant. All of these seized documents were excluded as evidence. The manner in which it was searched, even with weapons, it was judged to be unreasonable. There is a power to search incident to arrest (common law) (also, hot pursuit?) – we won’t look at these details in class.
Search warrant frame work:
Prior-judicial authorization based on reasonable grounds to believe that evidence of an offence will be found at the location to be searched (must be done by a judicial official, police can’t decide their self when it comes to a statutory right to search). The authority to search can only be granted on reasonable grounds (not proof beyond a reasonable doubt), i.e. grounds that an offence has been committed or will be committed.
CSIS can apply to federal court judges under the CSIS Act, the threshold here is lower than a ‘reasonable’ basis to grant it. All that is needed is suspicion.
Life, liberty and security of person
s.7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Search or seizure
s.8 Everyone has the right to be secure against unreasonable search or seizure.
Detention or imprisonment
s.9 Everyone has the right not to be arbitrarily detained or imprisoned.
Arrest or detention
s.10 Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay and to be informed of that right; and
(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
s.10(a) requires police to advise you on the reason for detention.
10(b) – both informational and implementation rights that are triggered.
R v Grant (2009) SCC 32 (2 officers stopped a man in street, unclear whether detained, guns)
PRINCIPLE: Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint (thus it was sufficient that Grant believed (psychologically) that he was detained) AND not every interaction with the police will amount to a detention, even when that individual is under investigation for criminal activity. It is possible for police to Q individual without detaining them and thus without triggering all the charter rights…without needing to investigate them under s.9.
When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to:
(1) The seriousness of the Charter‑infringing state conduct,
(2) The impact of the breach on the Charter‑protected interests of the accused, and
(3) Society’s interest in the adjudication of the case on its merits.
FACTS: Three police officers were on patrol for the purposes of monitoring an area near schools with a history of student assaults, robberies, and drug offences. W and F were dressed in plainclothes and driving an unmarked car. G was in uniform and driving a marked police car. The accused, a young black man, was walking down a sidewalk when he came to the attention of W and F. As the two officers drove past, the accused stared at them, while at the same time fidgeting with his coat and pants in a way that aroused their suspicions. W and F suggested to G that he have a chat with the approaching accused to determine if there was any need for concern. G initiated an exchange with the accused, while standing on the sidewalk directly in his intended path. He asked him what was going on, and requested his name and address. At one point, the accused, behaving nervously, adjusted his jacket, which prompted the officer to ask him to keep his hands in front of him. After a brief period observing the exchange from their car, W and F approached the pair on the sidewalk, identified themselves to the accused as police officers by flashing their badges, and took up positions behind G, obstructing the way forward. G then asked the accused whether he had anything he should not have, to which he answered that he had “a small bag of weed” and a firearm. At this point, the officers arrested and searched the accused, seizing the marijuana and a loaded revolver. They advised him of his right to counsel and took him to the police station.
HELD: When all the concerns are weighed, the courts below did not err in concluding that the admission of the gun into evidence would not, on balance, bring the administration of justice into disrepute.
Basically – Once the other two officers came behind the accused, it became a detention and s.9 was invoked. Since the accused was not read his rights or given right to counsel, any evidence obtained after this point was received in breach of the Charter.
Detention under s.9 and 10 – Constraint can be physical or psychological
Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with a restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors: (a) the circumstances giving rise to the encounter as they would reasonably be perceived by the individual; (b) the nature of the police conduct; and (c) the particular characteristics or circumstances of the individual where relevant. To answer the question whether there is a detention involves a realistic appraisal of the entire interaction as it developed, not a minute parsing of words and movements. In those situations where the police may be uncertain whether their conduct is having a coercive effect on the individual, it is open to them to inform the subject in unambiguous terms that he or she is under no obligation to answer questions and is free to go. It is for the trial judge, applying the proper legal principles to the particular facts of the case, to determine whether the line has been crossed between police conduct that respects liberty and the individual’s right to choose, and conduct that does not. Deference is owed to the trial judge’s findings of fact, although application of the law to the facts is a question of law.
In this case, the accused was detained within the meaning of ss. 9 and 10 of the Charter before being asked the questions that led him to disclose his possession of the firearm. The encounter began with G approaching the accused and making general inquiries. Such preliminary questioning is a legitimate exercise of police powers. G then told the accused to keep his hands in front of him. While this act, in isolation, might be insufficient to indicate detention, consideration of the entire context of what transpired from that point forward leads to the conclusion that the accused was detained. Two other officers approached, flashed their badges and took tactical adversarial positions behind G, who began to engage in questioning driven by, and indicative of, focussed suspicion of the accused. The sustained and restrictive tenor of the conduct after the direction to the accused to keep his hands in front of him reasonably supports the conclusion that the officers were putting him under their control and depriving him of his choice as to how to respond. At this point, the accused’s liberty was clearly constrained and he was in need of the Charter protections associated with detention. The encounter took on the character of an interrogation, going from general neighbourhood policing to a situation where the police had effectively taken control over the accused and were attempting to elicit incriminating information. Although G’s questioning was respectful, the encounter was inherently intimidating. The power imbalance was obviously exacerbated by the accused’s youth and inexperience. Because the test is an objective one, the fact that the accused did not testify as to his perceptions of the interaction is not fatal to his argument that there was a detention. The evidence supports his contention that a reasonable person in his position would conclude that his or her right to choose how to act had been removed by the police, given their conduct.
Unlawful detention under s.9
The evidence of the firearm was obtained in a manner that breached the accused’s rights under ss. 9 and 10(b) of the Charter. An unlawful detention is necessarily arbitrary, in violation of s. 9. The officers acknowledged at trial that they did not have legal grounds or a reasonable suspicion to detain the accused prior to his incriminating statements. Therefore, the detention was arbitrary. The police also failed to advise the accused of his right to speak to a lawyer before the questioning that led to the discovery of the firearm. The right to counsel arises immediately upon detention, whether or not the detention is solely for investigative purposes.
Administration of Justice into disrepute
The criteria relevant to determining when, in “all the circumstances”, admission of evidence obtained by a Charter breach “would bring the administration of justice into disrepute” must be clarified. The purpose of s. 24(2), as indicated by its wording, is to maintain the good repute of the administration of justice. Viewed broadly, the term “administration of justice” embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole. The phrase “bring the administration of justice into disrepute” must be understood in the long‑term sense of maintaining the integrity of, and public confidence in, the justice system. While exclusion of evidence resulting in an acquittal may provoke immediate criticism, s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute. Section 24(2)’s focus is not only long‑term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system. Section 24(2)’s focus is also societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns.
When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to:
(1) The seriousness of the Charter‑infringing state conduct,
(2) The impact of the breach on the Charter‑protected interests of the accused, and
(3) Society’s interest in the adjudication of the case on its merits.
Here, the gun was discovered as a result of the accused’s statements taken in breach of the Charter. When the three‑stage inquiry is applied to the facts of this case, a balancing of the factors favours the admission of the derivative evidence. The Charter‑infringing police conduct was neither deliberate nor egregious and there was no suggestion that the accused was the target of racial profiling or other discriminatory police practices. The officers went too far in detaining the accused and asking him questions, but the point at which an encounter becomes a detention is not always clear and the officers’ mistake in this case was an understandable one. Although the impact of the Charter breach on the accused’s protected interests was significant, it was not at the most serious end of the scale. Finally, the gun was highly reliable evidence and was essential to a determination on the merits. The balancing mandated by s. 24(2) is qualitative in nature and therefore not capable of mathematical precision. However, when all these concerns are weighed, the courts below did not err in concluding that the admission of the gun into evidence would not, on balance, bring the administration of justice into disrepute. The significant impact of the breach on the accused’s Charter‑protected rights weighs strongly in favour of excluding the gun, while the public interest in the adjudication of the case on its merits weighs strongly in favour of its admission. However, the police officers were operating in circumstances of considerable legal uncertainty, and this tips the balance in favour of admission.
Confirmed R v Grant:
R v Suberu (2009) SCC 33 (police spoke with accused fraudster, then arrested him)
PRINCIPLE: Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply AND The line between general questioning and focussed interrogation amounting to detention may be difficult to draw in particular cases. It is the task of the trial judge on a Charter application to assess the circumstances and determine whether the line between general questioning and detention has been crossed AND reasonable opportunity to consult council.
FACTS: Constable R responded to a call about a person attempting to use a stolen credit card at a store. He was advised that there were two male suspects. R entered the store and saw a police officer talking to an employee and a male customer. S walked past R and said “He did this, not me, so I guess I can go.” R followed S outside and said “Wait a minute. I need to talk to you before you go anywhere”, while S was getting into the driver’s seat of a minivan. After a brief exchange, R received further information by radio, including the description and licence plate number of the van driven by the men who had used a stolen credit card at another store earlier that day. The description and the licence plate number both matched that of the van in which S was sitting. R also saw shopping bags between and behind the front seats. At this point, R decided that he had reasonable and probable grounds to arrest S for fraud. He advised S of the reason for his arrest and cautioned him as to his right to counsel. S brought an application under s. 24(2) of the Canadian Charter of Rights and Freedoms seeking the exclusion of any statements made by him and of the physical evidence seized at the time of his arrest, on the ground that this evidence had been obtained in a manner that infringed his s. 10(b) right to counsel. S did not testify on the application but argued that he was detained as soon as he was told to “wait” and was engaged in questioning by R. He also argued that R’s failure to inform him of his s. 10(b) right to counsel at that point in time constituted a Charter breach. The trial judge dismissed the application. S was ultimately convicted at trial on several counts. Both the summary conviction appeal court and the Court of Appeal upheld the convictions and the trial judge’s ruling that S’s right to counsel was not violated.
HELD: In the present case, while S was momentarily “delayed” when the police asked to speak to him, he was not subjected to physical or psychological restraint so as to ground a detention within the meaning of the Charter. Thus, S’s s. 10(b) right to counsel was not engaged during this period. It was only later, after the officer received additional information indicating that S was probably involved in the commission of an offence and determined that he could not let him leave, that the detention crystallized and S’s rights under s. 10 were engaged.
NOTE: Suberu did not lead any evidence showing what he thought during his discussion with the officer, i.e. he didn’t say “I thought I had no choice but to speak with officer because I thought I was being detained” – there was no psychological detention (and obviously no physical detention).
Explanation of s.10 – “without delay”
The police duty to inform an individual of his or her s. 10(b) Charter right to retain and instruct counsel is triggered at the outset of an investigative detention. The concerns regarding compelled self‑incrimination and the interference with liberty that s. 10(b) seeks to address are present as soon as a detention is effected. Therefore, from the moment an individual is detained, the police have the obligation to inform the detainee of his or her right to counsel. The phrase “without delay” in s. 10(b) must be interpreted as “immediately”. The immediacy of this obligation is only subject to concerns for officer or public safety, or to reasonable limitations that are prescribed by law and justified under s. 1 of the Charter.  
Not every interaction with police is a “detention”
Not every interaction with the police, however, will amount to a detention for the purposes of the Charter, even when a person is under investigation for criminal activity, is asked questions, or is physically delayed by contact with the police. Section 9 of the Charter does not dictate that police abstain from interacting with members of the public until they have specific grounds to connect the individual to the commission of a crime. Likewise, not every police encounter, even with a suspect, will trigger an individual’s right to counsel under s. 10(b). According to the purposive approach adopted in R. v. Grant, 2009 SCC 32, detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply. The onus is on the applicant to show that, in the circumstances, he or she was effectively deprived of his or her liberty of choice. The test is an objective one and the failure of the applicant to testify as to his or her perceptions of the encounter is not fatal to the application. However, the applicant’s contention that the police by their conduct effected a significant deprivation of his or her liberty must find support in the evidence. The line between general questioning and focussed interrogation amounting to detention may be difficult to draw in particular cases. It is the task of the trial judge on a Charter application to assess the circumstances and determine whether the line between general questioning and detention has been crossed.
In the present case, while S was momentarily “delayed” when the police asked to speak to him, he was not subjected to physical or psychological restraint so as to ground a detention within the meaning of the Charter. S did not testify and the evidence does not support his contention that his freedom to choose whether or not to cooperate with the police was removed during the period of time prior to his arrest. The trial judge’s findings on the facts, supported by the evidence, lead to the view that a reasonable person in the circumstances would have concluded that the initial encounter was preliminary investigative questioning falling short of detention. Thus, S’s s. 10(b) right to counsel was not engaged during this period. It was only later, after the officer received additional information indicating that S was probably involved in the commission of an offence and determined that he could not let him leave, that the detention crystallized and S’s rights under s. 10 were engaged — a moment which, on the facts of this case, coincided with his arrest. Upon arresting S, the police officer promptly and properly informed him of his right to counsel and, therefore, there was no violation of s. 10(b) of the Charter.  
Finally, it has not been demonstrated that a general suspension of the right to counsel during the course of short “investigatory” detentions is necessary and justified under s. 1 of the Charter. Because the definition of detention gives the police leeway to engage members of the public in non‑coercive, exploratory questioning without necessarily triggering their Charter rights relating to detention, s. 1 need not be invoked in order to allow the police to fulfill their investigative duties effectively.
What circumstances would a reasonable person believe they are being detained:
(1) circumstances giving rise to the encounter as they would reasonably be perceived by the encounter.. how did the police come to this individual. Where the police maintaining general order. Or were they singling out someone. (diff b/w encounter as by duties of being police or to focus on a specific individual)
(2) nature of the police conduct. What did the police do? What lang did they use? Did they have physical contact? Where did the encounter take place? Were others present? If police were being aggressive – that may way in favour of detention. If person singled out (like grant walking down the street.. that would way in favour of detention)
(3) circumstances of the indiv in question. Age, physical stature, level of sophistication. Rea person, but one who is similar to the one who is being detained. (if young more prone to being intimidated)
Police presumed to know the limits of their authority. They know if they have the authority to detain or not. Courts suggests it is always open to police to tell the person if they are detained or not. Court expects police not to disguise their authority.
Brownridge v The Queen (1972) 7 CCC (2d) 417 (man refused breathalizer – wanted counsel)
PRINCIPLE: Unless it is apparent that an accused person is not asserting his right to counsel bona fide, but is asserting such right for the purpose of delay or for some other improper reason, the denial of that right affords a "reasonable excuse".
FACTS: The appellant was arrested for impaired driving and, at the police station, was requested to submit to a breath test. He asked for an opportunity to speak to his lawyer and refused to give a breath sample when he was denied that opportunity. Two hours later, having spoken with his lawyer, he asked for an opportunity to give a sample of his breath. That offer was refused.
The appellant was convicted of failing, without reasonable excuse, to provide a sample of his breath for analysis upon a demand made pursuant to s. 223(1) of the Criminal Code. On an appeal by way of stated case, the conviction was set aside on the ground that the denial of the appellant's request to consult counsel afforded him a reasonable excuse to refuse to give a breath sample. On a further appeal by the Crown, the Court of Appeal restored the conviction. The appellant was granted leave to appeal to this Court.
HELD: The refusal of the police constable to permit the appellant to speak to his lawyer, in the circumstances of this case, deprived him of the right to retain and instruct counsel without delay, and constituted a reasonable excuse for his refusal to comply with the demand of the police constable that he take a breath test. Unless it is apparent that an accused person is not asserting his right to counsel bona fide, but is asserting such right for the purpose of delay or for some other improper reason, the denial of that right affords a "reasonable excuse". As the very purpose for which the appellant wished to speak to his counsel was in order to determine whether or not he should comply with the demand, he was deprived of his right to consult a lawyer at a time when he was detained for the purpose of furnishing a sample, the analysis of which, or refusal to furnish which, might be used in evidence against him. It would run contrary to the provisions of the Bill of Rights to hold that denial to a man under arrest of "the right to retain and instruct counsel without delay" was incapable of constituting a reasonable excuse for failing to comply with a demand under s. 223 of the Code.
R v Bartle (1994) 3 SCR 173
HELD: There is a duty to advise detainees of existing duty counsel services. McLachlin J. held that there is a duty to advise of a right to immediate consultation with counsel independent of financial means, even if duty counsel services are not available
R v Manninen (1987) 1 SCR 1233 (police did not offer accused telephone to call lawyer)
Basically: Manninen appealed on the basis that the questions violated his rights to counsel under section 10(b) as they did not provide him with the opportunity to call a lawyer and due to the violation the evidence obtained in violating his right should be excluded under section 24(2).
HELD: Manninen's section 10(b) Charter right was violated and the evidence should be excluded as the inclusion would bring the admin of justice into disrepute.
Lamer identified two duties of the police officer when affecting an arrest.
First, the police must provide the detainee with a reasonable opportunity to exercise the right to retain and instruct counsel without delay".
Second, the police must "cease questioning or otherwise attempting to elicit evidence from the detainee until he has had a reasonable opportunity to retain and instruct counsel."
FACTS: Respondent was arrested for theft and possession of a stolen car and armed robbery. The arresting officer read him his rights from a card twice because of a flippant remark respondent had made following the first reading. Even though respondent then indicated that he was not going to say anything until he saw his lawyer, the officers continued to question him. Respondent did not directly request to use the telephone and the officers did not volunteer the use of it. Respondent did not speak to his lawyer until his lawyer called him at the police station that evening. The trial judge, in convicting the respondent, relied on a statement made by him in reply to a barbed question asked before his lawyer had made contact with him. The trial judge held that, even if the right to counsel had been infringed, the admission of the statements would not bring the administration of justice into disrepute. The Court of Appeal unanimously allowed respondent's appeal, quashed the convictions and ordered a new trial.
HELD: The duty to facilitate contact with counsel under s.10 includes the duty to offer the respondent the use of the telephone. Respondent did not waive his right to counsel by answering the police officer's questions. A person may implicitly waive his rights under s. 10(b), but the standard is very high and was not met here. For the right to counsel to be effective, the detainee must have access to this advice before he is questioned or otherwise required to provide evidence. This aspect of the respondent's right to counsel was clearly infringed, and again, there was no urgency to justify immediate questioning.
Section 10(b) imposes at least two duties on the police in addition to the duty to inform the detainee of his rights. First, the police must provide the detainee with a reasonable opportunity to exercise the right to retain and instruct counsel without delay. The duty to facilitate contact with counsel includes the duty to offer the respondent the use of the telephone. Although circumstances might exist where it is particularly urgent for the police to continue with their investigation before it is possible to facilitate a detainee's communication with counsel, there was no such urgency here. Secondly, the police must cease questioning the detainee until he has had a reasonable opportunity to retain and instruct counsel. The purpose of the right to counsel is to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights. The police officers here correctly informed the respondent of his right to remain silent and the main function of counsel would be to confirm the existence of that right and then to advise him as to how to exercise it. For the right to counsel to be effective, the detainee must have access to this advice before he is questioned or otherwise required to provide evidence. This aspect of the respondent's right to counsel was clearly infringed, and again, there was no urgency to justify immediate questioning.
Respondent did not waive his right to counsel by answering the police officer's questions. A person may implicitly waive his rights under s. 10(b), but the standard is very high and was not met here.
Section 24(2) requires that the evidence must have been "obtained in a manner that infringed" the Charter. A sufficient relationship or connection between the violation and the evidence is made out where, as here, the evidence was obtained as a direct consequence of the violation of the Charter.
Finally, the evidence, to be excluded, must be such that its admission would bring the administration of justice into disrepute. Respondent's right to counsel was very seriously violated. The police officers simply ignored the rights they had read to him and his expressed desire to exercise the right to silence and the right to counsel. Their action was not justified by any urgency. The evidence, too, was self-incriminatory: its use following a denial of the right to counsel will generally go to the very fairness of the trial and thus will generally bring the administration of justice into disrepute. The admission of the evidence, in light of the seriousness of the violation and the effect of the evidence on the fairness of the trial, could not be justified on the ground that the offence involved was serious and that respondent's guilt was clearly established by the statement sought to be excluded.
R v Burlingham (1995) 2 SCR 206 (police offered deal, accused misunderstood, evidence issue)
PRINICPLE: Police can’t get a confession from accused by undermining the use of counsel AND s.10(b) mandates the Crown or police, whenever offering a plea bargain, to tender that offer either to the accused's counsel or to the accused while in the presence of his or her counsel, unless the accused has expressly waived the right to counsel.
Note: The cops in Burlingham,
although now an older authority, went further than the cops in Singh
by saying that the accused's lawyer didn't care about him and they
questioned the suspects trust in his lawyer over his trust in them
(the cops) and they questioned why the suspect would want to pay all
that money for a lawyer that couldn't even be bothered to show up at
the police station (as he was on holiday I believe). I'm pretty sure
that this was seen by the court as affecting his free will to choose
whether or not to speak to the police/use his right to silence whereas
Singh continually denied things after speaking to his lawyer so he
clearly exercised his right to silence. What you have to remember also
is that in Singh, he didn't actually confess to the crime but made
some inculpatory statements as to other pieces of evidence the cops
had - ie I think he identified himself in CCTV photos of someone who
was at the scene etc.
FACTS: The appellant, who had been charged with one murder and was suspected in a second, was subjected to an intensive and often manipulative interrogation by the police. He was systematically questioned notwithstanding his stating repeatedly that he would not speak unless he could consult with his lawyer. The police interrogators also constantly denigrated the integrity of defence counsel. The police offered the appellant a "deal": he would be charged with second degree murder if he provided the police with the location of the gun and other ancillary information related to that murder. When the appellant refused to accept the "deal" without consulting his lawyer, the officers continued to badger him about the reliability of his lawyer and informed him this "one-time" chance would be kept open only for the weekend -- the period when appellant's counsel was unavailable. The appellant eventually agreed, despite his being advised by another lawyer not to talk to the police, and fulfilled his part of the deal by giving police a full confession, bringing them to the murder site, and telling them where the murder weapon had been thrown. The appellant recounted the events of the day and the information he had given to the police to his girlfriend. A misunderstanding arose as to the deal. The appellant understood that he would be allowed to plead not guilty to a charge of second degree murder whereas the Crown insisted that he would have to plead guilty to that charge. The trial judge found as a fact that the police officers had made an honest mistake.
The appellant was charged with first degree murder. At trial, the Crown sought to introduce all of the evidence obtained while the appellant had been under the misunderstanding that he was participating in a valid agreement. The trial judge found that appellant's right to counsel (s. 10(b) of the Canadian Charter of Rights and Freedoms) had been breached and held that appellant's confession, his disclosure of the location of the weapon and his directions and gestures to the police were inadmissible. He admitted the fact of finding the gun, the actual gun, testimony of a witness, testimony identifying the gun and the testimony of his girlfriend regarding the statements appellant made to her. The appellant was convicted of the first degree murder and the Court of Appeal affirmed that decision. At issue here is whether or not appellant was denied his right to counsel guaranteed by s. 10(b) of the Charter, and if so, what was the just and appropriate remedy under s. 24(2) of the Charter.
HELD: The "deal" fundamentally changed the prosecution to involve a different offence and so brought the accused's right to counsel under s. 10(b) of the Charter into play. This right was denied in several ways:
· First, the police refused to hold off and continued to question him despite his repeated statements that he would say nothing without consulting his lawyer.
· Second, s. 10(b) specifically prohibits the police from belittling an accused's lawyer with the express goal or effect of undermining the accused's relationship with defence counsel.
· Third, the police acted improperly when they pressured the accused to accept the "deal" without first giving him the chance to consult his lawyer. Their duties were not discharged, given the seriousness of the offence and the context of general trickery, when they allowed the accused to consult a random lawyer.
Section 10(b) mandates the Crown or police, whenever offering a plea bargain, to tender that offer either to the accused's counsel or to the accused while in the presence of his or her counsel, unless the accused has expressly waived the right to counsel. It is a constitutional infringement to place such an offer directly to an accused, especially when the police coercively leave it open only for the short period of time during which they know defence counsel to be unavailable. Mere expediency or efficiency or the facilitating of the investigatory process was not enough to create an urgency sufficient to permit a s. 10(b) breach. To the extent that the plea bargain is an integral element of the Canadian criminal process, the Crown and its officers engaged in the plea bargaining process must act honourably and forthrightly.
These proceedings should not be stayed; stays should only be limited to the "clearest of cases".
Evidence obtained in a manner that infringes an accused's Charter rights, should be excluded under s. 24(2) if, having regard to all of the circumstances, its admission would bring the administration of justice into disrepute. Under the test in R. v. Collins, three categories of factors are to be considered: (1) those affecting the fairness of the trial; (2) those relating to the seriousness of the violation; and, (3) those relating to the effect on the reputation of the administration of justice of excluding the evidence. The impact of the evidence on the fairness of the trial was determined to be the most important consideration in triggering the Charter's exclusionary effect.
(3) Third aspect of s.24(2) – Would it bring the administration of justice into disrepute
[Note: The Stillman principles are a two-step model that determines trial fairness. The first step is to classify the evidence as “conscriptive” or “non-conscriptive”. These are four elements that characterize conscriptive evidences:
The accused has to be compelled to incriminate himself,
at the demand of the state,
after a Charter violation occurred
by means of a statement, the use of evidence of the body, or the production of body samples
Conscriptive evidence is the result of a process that begins with a Charter violation, is guaranteed by police demand that creates an accused’s compulsion to give a confession or bodily sample. According to the Stillman principles, if evidence is classified as conscriptive and the evidence would not have been discovered without the Charter violation, its admission may render the trail unfair, justifying exclusion.]
Collins /(Stillman) 3 Factors
(1) Effect of admitting on fairness of trial
(1) Seriousness of breach
(2) Effects of excluding on admin of justice
R v Grant
Overview of a Revised Approach to Section 24(2)
 The words of s. 24(2) capture its purpose: to maintain the good repute of the administration of justice. The term “administration of justice” is often used to indicate the processes by which those who break the law are investigated, charged and tried. More broadly, however, the term embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole.
 The phrase “bring the administration of justice into disrepute” must be understood in the long‑term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.
 Section 24(2)’s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system.
 Finally, s. 24(2)’s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.
 A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to:
(1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct),
(2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and
(3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.
These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.
 To review, the three lines of inquiry identified above — the seriousness of the Charter-infringing state conduct, the impact of the breach on the Charter-protected interests of the accused, and the societal interest in an adjudication on the merits — reflect what the s. 24(2) judge must consider in assessing the effect of admission of the evidence on the repute of the administration of justice. Having made these inquiries, which encapsulate consideration of “all the circumstances” of the case, the judge must then determine whether, on balance, the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute.
3 lines of inquiry (factors) that court must engage in when presented with application to exclude evidence under 24(2)
1) Seriousness of charter infringing state of conduct. Seriousness of breach. Where underlying concern in that the admission of unlawfully obtained evid may send message that state condones this conduct. Will turn on the seriousness of the breach. More serious the greater the risk the court will be seen as turning a blind eye.
2) Impact of breach on the charter protected interest, where the underlying concern is the imptortance of protecting rights but recognizing that rights may be infringed to greater or lesser degrees. (strip search more intrusive than a pat down) same interest greater degrees of intrusion into it. This is assessed by the court.
3) Society’s interest in the adjudication of the case on its merits. Presumption that society has a strong interest in having cases adjudicated on their merits. Society is unhappy when people get off on a technicality. But that can also way in favour of the exclusion of evidence.
Having made these inquiries, which encapsulate consideration of “all the circumstances” of the case, the judge must then determine whether, on balance, the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute.
(1) Seriousness of the breach
-whether the violation was of a technical nature or willful.
-technical may be the failure to fulfill all the preconditions of a search warrant application, or opposed to going in with battering round(totally disregarded charter s.8 privacy)
(2) isolated incident, or part of pattern of conduct by police
-if isolated may be less in favour of finding it a breach
-did breach occur in circumstances of urgency/ necessity
-did police act in good faith, or bad faith
-greater the intrusion into the protected interest, the more will way in favour of exclusion (search of one’s home will be more intrusive than car - to protection of one’s interest)
(3) interest of adjudication of case on its merits
-which better serves truth seeking function admission/exclusion?
-even though stem from indiv reliability plays out in diff way
Applied Grant criteria – evidence was obtained in breach:
R v Harrison (2009) SCC 34 (officer mistakenly pulled over car, but found cocaine)
FACTS: The accused and his friend were driving a rented sports utility vehicle from Vancouver to Toronto. In Ontario, a police officer on highway patrol noticed that the vehicle had no front licence plate. Only after activating his roof lights to pull it over did he realize that, because it was registered in Alberta, the vehicle did not require a front licence plate. The officer was informed by radio dispatch that the vehicle had been rented at the Vancouver airport. Even though he had no grounds to believe that any offence was being committed, the officer testified at trial that abandoning the detention might have affected the integrity of the police in the eyes of observers. The officer’s suspicions seem to have been aroused from the beginning of this encounter. He arrested the accused after discovering that his driver’s licence had been suspended. The officer then proceeded to search the vehicle. He found two cardboard boxes containing 35 kg of cocaine. On a voir dire, the trial judge held that the initial detention of the accused was premised on a mere hunch or suspicion rather than reasonable grounds and therefore constituted an arbitrary detention, contrary to s. 9 of the Canadian Charter of Rights and Freedoms. He further held that the warrantless search of the vehicle was unreasonable within the meaning of s. 8 of the Charter. In the analysis pursuant to s. 24(2) of the Charter, the trial judge found that the violations were serious and that the officer’s explanations for stopping the vehicle defied credibility. However, in view of the seriousness of the offence charged and the importance of the evidence to the Crown’s case, he admitted the cocaine into evidence on the grounds that the repute of the administration of justice would suffer more from its exclusion than from its admission. The accused was convicted of trafficking. The Court of Appeal, in a majority decision, upheld the trial judge’s decision to admit the evidence and affirmed the accused’s conviction.
HELD: The Charter breaches in this case are clear, the sole issue being whether the cocaine was properly admitted into evidence. Based on the revised framework set out in Grant, the three lines of inquiry relevant to determining whether the admission of the evidence would bring the administration of justice into disrepute are: (1) the seriousness of the Charter‑infringing state conduct; (2) the impact of the breach on the Charter‑protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits. When the framework is applied to the facts of this case, the balancing of the factors favours exclusion of the evidence. The conduct of the police that led to the Charter breaches represented a blatant disregard for Charter rights, further aggravated by the officer’s misleading testimony at trial. The deprivation of liberty and privacy represented by the unconstitutional detention and search was a significant, although not egregious, intrusion on the accused’s Charter‑protected interests. On the other hand, the drugs seized constituted highly reliable evidence tendered on a very serious charge. However, the seriousness of the offence and the reliability of the evidence, while important, do not in this case outweigh the factors pointing to exclusion. To appear to condone wilful and flagrant Charterbreaches amounting to a significant incursion on the accused’s rights does not enhance, but rather undermines, the long‑term repute of the administration of justice. The trial judge’s reasoning transformed the s. 24(2) analysis into a simple contest between the degree of the police misconduct and the seriousness of the offence. He placed undue emphasis on the third line of inquiry while neglecting the importance of the other two, particularly the need to dissociate the justice system from flagrant breaches of Charter rights. Because the evidence in question was essential to the Crown’s case, the accused should be acquitted. The price paid by society for an acquittal in these circumstances is outweighed by the importance of maintaining Charter standards. Police officers are expected to adhere to higher standards than alleged criminals.
Summary of Harrison
Exclusion of substantial quantity of drugs. Highly reliable evidence. Society would have a clear interest in the adjudication of a charge like that on its merits. Court came down heavily on seriousness of the breach in so far as police had no good reason to stop the vehicle that Harrison and his friend were driving. The police lied about why they stopped the vehicle. If they were honest then would have fallen much closer to the line. Court doesn’t like police lying
THE LAW OF PRIVILEGE
For reasons of public policy, certain types of evidence are barred from the proceeding, for reasons completely independent of probative value. The reason is that there are certain values promoted through the recognition of a privilege and the cost through the adjudicative process is thought to be outweighed by the overall benefit to recognizing a privilege. Where the law chooses to recognize the law of privilege is a matter of public policy choice.
Two questions arise:
(1) what is privilege? (class privilege and case by case privilege), and
(2) when will other interests suffice to overcome a claim of privilege? (what sort of balancing of interests is permitted/required under the law?)
Both types of privileges can function in two ways
Privilege and confidentiality should not be equated
Very often, privileged communication will also be confidential. But not all privileged communications are confidential and vis versa.
“Class privilege” VS “Case by case basis privilege” (a.k.a. “prima facie privilege”)
McClure (2001) 1 SCR 445 – “The parties have tended to distinguish between two categories: a ‘blanket’, prima facie, common law, or ‘class’ privilege on the one hand, and a ‘case-by-case’ privilege on the other. The first four terms are used to refer to a privilege which was recognized at common law and one for which there is a prima facie presumption of inadmissibility (once it has been established that the relationship fits within the class) unless the party urging admission can show why the communications should not be privileged (i.e., why they should be admitted into evidence as an exception to the general rule). Such communications are excluded not because the evidence is not relevant, but rather because, there are overriding policy reasons to exclude this relevant evidence. Solicitor-client communications appear to fall within this first category... .”
Not only communications that can be protected by privilege
Privilege can apply either to communication, but it is not always communications that are covered by privilege. Any sort of information can be privileged.
Where do class privileges come from? Common law and statute
(1) solicitor-client privilege/litigation privilege
(2) informer privilege
(There are others, i.e. the settlement negotiation privilege).
Protection of dispute settlement – It is well recognized that communications made during attempts to settle a litigious matter through negotiation or mediation are not admissible if negotiation or mediation fails and the matter is litigated. Such communications are often labelled “without prejudice” to indicate that the party making them is asserting the privilege, but the “without prejudice” label is not strictly necessary if it is clear from the circumstances that the communication was made with the intent that it not be disclosed in litigation.
s.4(3) Canada Evidence Act – communications between a marriage – communications between a husband and wife during a marriage are privileged. The privilege holder is the individual spouse discretely. One spouse may be able to reveal the privileged information without the other’s consent. Where one party uses the privilege, the other party must also.
s.37 Canada Evidence Act – public interest privilege – covers police investigative methodologies.
s.38 CEA – other public interest – i.e. national security, foreign relations, etc.
s.39 CEA – protects the deliberations of the federal cabinet (probably covered at common law also). Every province has the same provision.
Immigration and Refugee Protection Act – Charquoye – Act had to be amended for grounds of people leaving the country on ground of national security. Act stipulates that the Special Advocate is not in a solicitor-client relationship, thus there is no privilege. But the SA must brief the target. The communication between the SA and the target’s lawyer is to be treated as privileged though. Thus, this extends the solicitor-client privilege to a relationship that is not actually a solicitor-client relationship according to statute.
Why does the law recognize the privileges that it does?
Smith v Jones (1999) 169 DLR – “Clients seeking advice must be able to speak freely to their lawyers secure in the knowledge that what they say will not be divulged without their consent. It cannot be forgotten that the privilege is that of the client, not the lawyer. The privilege is essential if sound legal advice is to be given in every field ... Family secretes, company secrets, personal foibles and indiscretions all must on occasion be revealed to the lawyer by the client. Without this privilege clients could never be candid and furnish all the relevant information that must be provided to lawyers if they are to properly advise their clients”.
Institutions will sometimes have advisory counsel. This advice is also deemed to be privileged: Pritchard v Ontario (Human Rights Commission) (2004) 1 SCR 809
Solicitor-client privilege applies to a broad range of communications between lawyer and client and applies with equal force in the context of advice given to an administrative board by in-house counsel as it does to advice given in the realm of private law. If an in-house lawyer is conveying advice that would be characterized as privileged, the fact that that lawyer is "in-house" does not remove the privilege and does not change its nature. Owing to the nature of the work of in-house counsel, often having both legal and non-legal responsibilities, each situation must be assessed on a case-by-case basis to determine if privilege arose in the circumstances. Here, the communication between the Commission and its in-house counsel was a legal opinion and protected by solicitor-client privilege.
Waiver of solicitor-client privilege
The courts will be very careful before they recognize any type of waiver. So the unsophisticated witness could blunder into revealing communications between himself and counsel. For example, an accused charged with breaching bail might have talked with counsel about what the terms of jail are. The accused could easily accidentally say ‘my lawyer told me that’. This innocent blunder, not fully appreciating the implications of bringing this up will not count as a waiver. On the other hand, the privilege can be expressly waived. In the same way that the right to silence in common law is not on or off, waiver to privilege in some topics may be waived, but not in other topics.
General Accident Assurance Company v Chrusz (1999) 180 DLR (4th) (Ont. CA)
Overtaken by Blank (2006) (Addresses solicitor-client privilege and litigation privilege)
Blank v Canada (Minister of Justice) (2006) 2 S.C.R. 319
PRINCIPLE: Litigation privilege, unlike solicitor-client privilege, is limited in duration.
HELD: The privilege had expired because the file to which the respondent sought access related to penal proceedings that had been terminated. The purpose of litigation privilege was to create a zone of privacy in relation to pending or apprehended litigation. The common law litigation privilege came to an end, absent closely related proceedings, upon the termination of the litigation that gave rise to the privilege. Unlike solicitor-client privilege, it was neither absolute in scope nor permanent in duration.
Litigation privilege VS solicitor-client privilege
Communication will not always be privileged
Not all communications between a solicitor and a client are covered by a privilege. Only communications obtained for a legitimate purpose for obtaining lawful advice.
Descoteaux v Mierzwinski (1982) 1 SCR 860
At issue was a fraudulent application for legal aid. Solicitor client privilege was deemed to apply because he went to lawyer for assistance with form. But the applicant committed an offence but submitting a fraudulent application.
Obvioulsy, past crimes are privileged.
A grey area is where a client comes to you for advice about the potential criminal results of a crime. This is still privileged because they are not relying on the advice for committing the crime.
The law has been resistant in recognizing new class privileges
R. v. Gruenke  3 S.C.R. 263 (confession to a pastor/priest)
PRINCIPLE: There is no “blanket” privilege for religious communications, they must be considered on a case-by-case basis.
FACTS: G and Fosty were accused of the murder of a much older man Barnett. B was a reflexology client of B who had given her many gifts and included her in his will. He had also made unwelcome sexual advances towards her. The Crown’s theory was that G and F had planned to kill B to end the sexual advances and profit from the will. G’s theory was that F killed B in defence of G. Several days after the killing, G went to her church and talked to her pastor and a church counsellor.
ISSUE: Were G’s conversations with the pastor and counselor privileged?
Crown claimed: the conversations were confidential but not privileged and must yield to a subpoena.
G argued: religious communications should be considered privileged.
HELD: G’s conversations with the pastor and counsellor were not privileged. There is no “blanket” privilege for religious communications, they must be considered on a case-by-case basis.
There are two categories of privilege: a “blanket,” prima facie, common law, or “class” privilege for which there is a prima facie presumption of inadmissibility (once it has been established that the relationship falls within the class) unless the party urging admission can show why the communications should not be privileged; and a “case-by-case” privilege for which there is a prima facie assumption that they are not privileged.
The case-by-case analysis has generally involved an application of the “Wigmore test,” which is a set of criteria for determining whether communications should be privileged in particular cases.
The policy reasons which underlay the treatment of solicitor-client communications as a separate class from most other confidential communications are not equally applicable to religious communications. Religious communications, notwithstanding their social importance, are not inextricably linked with the justice system in the way that solicitor-client communications surely are. There is thus no common law, prima facie privilege for religious communications.
Religious communications can, however, be privileged in particular cases where the Wigmore criteria are satisfied. In this case, however, G’s communications did not originate in a confidence that they would not be disclosed and thus are not privileged.
Majority – scepticism of recognizing a new class:
“As I have mentioned, a prima facie privilege for religious communications would constitute an exception to the general principle that all relevant evidence is admissible. Unless it can be said that the policy reasons to support a class privilege for religious communications are as compelling as the policy reasons which underlay the class privilege for solicitor-client communications, there is no basis for departing from the fundamental "first principle" that all relevant evidence is admissible until proven otherwise”.
Dissent – more willing to recognize this particular new class:
“In my view, it is more in line with the rationales identified earlier, the spirit of the Charter and the goal of assuring the certainty of the law, to recognize a pastor-penitent category of privilege in this country. If our society truly wishes to encourage the creation and development of spiritual relationships, individuals must have a certain amount of confidence that their religious confessions, given in confidence and for spiritual relief, will not be disclosed”.
Does it fall in a class privilege? If no, then look at case-by-case privilege.
Involves 4 questions – all of which are necessary conditions:
(1) Expectation of Confidentiality - the communication must originate in a confidence that they will not be disclosed.
(2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.
(3) The relation must be one in which in the opinion of the community out to be sedulously fostered.
(4) The injury that would inure to the relation by the disclosure of the communication must be greater than the benefit thereby gained for the correct disposal of litigation.
Note: When Wigmore was setting out this test, his focus was on types of relationships. He was not looking at this as a way of determining on a case by case basis. But, the SCC held that this is the test. Must be careful in applying these factors because if the cost benefit analysis is applied too narrowly, the privilege may never be allowed.
M.(A.) v Ryan (1997) 1 SCR 157 (sexual relationship with doctor, later new doctor, privilege)
PRINCIPLE: It is open to a judge to conclude that psychiatrist-patient records are privileged in appropriate circumstances (if the Wigmore criteria is established)
FACTS: When the appellant was 17 years old, she underwent psychiatric treatment from the respondent R. In the course of treatment, R had sexual relations with her. He also committed acts of gross indecency in her presence. The appellant asserts that this conduct injured her and has sued R for damages. In order to deal with the difficulties allegedly caused by the sexual assault and gross indecency as well as other problems, the appellant sought psychiatric treatment from the respondent P. The appellant was concerned that communications between her and P should remain confidential, and P assured her that everything possible would be done to ensure that this was the case. At one point, the appellant's concerns led P to refrain from taking her usual notes. At the hearing before the Master of R's motion to obtain disclosure, P agreed to release her reports, but claimed privilege in relation to her notes. Counsel for the appellant was present. He supported P's objections to production, but did not assert a formal claim to privilege on behalf of the appellant. The Master found that P had no privilege in the documents and ordered that they all be produced to R. The British Columbia Supreme Court affirmed that decision. P's appeal to the Court of Appeal was allowed in part. The court ordered disclosure of P's reporting letters and notes recording discussions between her and the appellant. The disclosure ordered was protected by four conditions: that inspection be confined to R's solicitors and expert witnesses, and that R himself could not see them; that any person who saw the documents should not disclose their contents to anyone not entitled to inspect them; that the documents could be used only for the purposes of the litigation; and that only one copy of the notes was to be made by R's solicitors, to be passed on as necessary to R's expert witnesses.
HELD: The common law principles underlying the recognition of privilege from disclosure proceed from the fundamental proposition that everyone owes a general duty to give evidence relevant to the matter before the court, so that the truth may be ascertained. To this fundamental duty, the law permits certain exceptions, known as privileges, where it can be shown that they are required by a public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth. The common law permits privilege in new situations where reason, experience and application of the principles that underlie the traditional privileges so dictate. It follows that the law of privilege may evolve to reflect the social and legal realities of our time, including the Canadian Charter of Rights and Freedoms. The first three conditions for privilege for communications between a psychiatrist and the victim of a sexual assault are met in this case, since the communications were confidential, their confidence is essential to the psychiatrist-patient relationship, and the relationship itself and the treatment it makes possible are of transcendent public importance. The fourth requirement is that the interests served by protecting the communications from disclosure outweigh the interest of pursuing the truth and disposing correctly of the litigation.
If the court considering a claim for privilege determines that a particular document or class of documents must be produced to get at the truth and prevent an unjust result, it must permit production to the extent required to avoid that result. On the other hand, the need to get at the truth and avoid injustice does not automatically negate the possibility of protection from full disclosure. An order for partial privilege will more often be appropriate in civil cases where, as here, the privacy interest is compelling. Disclosure of a limited number of documents, editing by the court to remove non-essential material, and the imposition of conditions on who may see and copy the documents are techniques which may be used to ensure the highest degree of confidentiality and the least damage to the protected relationship, while guarding against the injustice of cloaking the truth. While a test for privilege which permits the court occasionally to reject an otherwise well-founded claim for privilege in the interests of getting at the truth may not offer patients a guarantee that communications with their psychiatrists will never be disclosed, the assurance that disclosure will be ordered only where clearly necessary and then only to the extent necessary is likely to permit many to avail themselves of psychiatric counselling when certain disclosure might make them hesitate or decline.
It is open to a judge to conclude that psychiatrist-patient records are privileged in appropriate circumstances. In order to determine whether privilege should be accorded to a particular document or class of documents and, if so, what conditions should attach, the judge must consider the circumstances of the privilege alleged, the documents, and the case. While it is not essential in a civil case that the judge examine every document, he or she may do so if necessary to the inquiry. A court, in a case such as this, might well consider it best to inspect the records individually to the end of weeding out those which were irrelevant to this defence, but the alternative chosen by the Court of Appeal of refusing to order production of one group of documents and imposing stringent conditions on who could see the others and what use could be made of them cannot be said to be in error and should not be disturbed.
The appellant's alleged failure to assert privilege in the records before the Master does not deprive her of the right to claim it. If the appellant had privilege in the documents, it could be lost only by waiver, and the appellant's conduct does not support a finding of waiver.