INTRO.—RELEVANCE, PROBATIVE VALUE, PREJUDICIAL EFFECT
R v. Watson (ONCA 1996): no minimum PV required; assess relevance in context of all evidence
R v. Seaboyer (SCC 1991): exclude defence evidence only if PE substantially outweighs PV
TEST: admiss., relev., PV vs. PE
CHARACTER EVIDENCE
A. character evidence to prove propensity of the accused (directly in issue; credibility; circumstantial evidence. why limit use?)
RULES: use of evid. of accused’s character + propensity—Crown can’t lead unless SFE; 3 ways for defence to lead, then Crown can rebut to neutralize
R v. McNamara (ONCA 1981): “businesses should be run legally”; what does accused need to do to put character in issue?
B. methods of proving character: accused persons
(i) reputation witnesses: can testify only about accused’s reputation in the community
R v. Rowton (Eng. 1865): if accused brings reputation witnesses, Crown can rebut with reputation witnesses; reputation only, not particular facts
R v. Levasseur (ABCA 1987): reputation testimony can come from any of the accused’s communities (residential, workplace, etc.)
R v. Profit (ONCA 1992; SCC 1993): reputation testim. can support credib.or unlikelihood of committing offence (but not for crimes done in private)
(ii) specific acts (led by the accused’s own testimony)
R v. McNamara (ONCA 1981): if accused testifies about prior good acts, Crown can cross-ex. on prior bad acts (to rebut and prove that he’s lying)
prior convictions: CEA s. 12 allows Qs only about being convicted; CC s. 666 allows Qs about specifics (b/c accused has already put character in issue)
(iii) psychiatric evidence of disposition
R v. Lupien (SCC 1970): if offence/offender is extraord., expert psych. evidence can identify relevant qualities; helpful to jury when outside normal exp.
R v. Robertson (ONCA 1975): expert psych. evidence inadmiss. if the crime doesn’t require a distinctive perpetrator (e.g., murder 9yo girl)
R v. Mohan (ONCA 1994): rubric for (extra)ord. crime, (extra)ord. person; expert evid. can go to character when outside jury’s exp.; ‘no std. profile’
TEST: admissibility of expert evidence, generally—(i) relevant to mat. issue; (ii) of apprec. assist. to trier of fact; (iii) evid. unavail. to regular layperson
C. methods of proving character of third parties (less concern about prohibited inference)
(i) other suspects
R v. McMillan (ONCA 1975): if third party is suffic’ly connected for her charact. evid. to have PV, can bring it to show she likely committed offence
(ii) victims
R v. Scopelliti (ONCA 1981): for self-defence claim, showing previous violence by deceased is admissible (but conditions, limits on purposes)
TEST: when/howaccused can adduce bad character evidence about third parties (other suspects or victim)
D. accused’s prior bad acts: similar fact evidence
(i) old approach
Makin v. A-G New South Wales (Eng. 1894): can’t use SFE to show propensity, but can use to rebut a defence of accident/mistake, to show intent, etc.
R v. Smith (Eng. 1915): need prima facie evid. that the accused committed the crime charged before SFE becomes admissible; again rebutting accident
R v. Straffen (Eng. 1952): can use SFE to show pattern that will identify the accused (i.e., same person who did SFE did the current crime charged)
(ii) new approach
R v. B(CR) (SCC 1990): abandon the categories for SFE; use PV vs. PE; propensity evidence can be admitted exceptionally (heavy PE, need HIGH PV)
R v. Arp (SCC 1998): evid. on concurrent charges is admiss. as SFE going to identity on each one; need objective improbability of coincidence
R v. Handy (SCC 2002): PV (which issue? how much similarity req’d? is SFE approp’ly connected to facts alleged?); PE (moral, reasoning); weigh.
includes TEST for SFE (+ Klein’s reformulation)
CREDIBILITY
A. supporting credibility: the rule against oath-helping (don’t lead evid. just to show that witness is credible)
4 exceptions: defence can lead evid. of accused’s reputation for truthfulness (limited PV); or after opposing counsel attacks; or (i) or (ii) just below
(i) expert evidence on credibility(if beyond ToF’s ordinary experience, i.e., unusual witness; but can’t say whether they’re likely telling the truth now)
R v. Kyselka (ONCA 1962): general rule against oath-helping; psych. evidence re: complainant’s mental capacity (incapable of lying): inadmiss.
R v. Marquard (SCC 1993): expert evid. on witness credib. is ok if informs ToF about behaviours relevant to certain type of witnesses; stay general
(ii) prior consistent statements(inadmiss. for enhancing witness credib., but 3 exceptions)
support witness’s identification of accused
rebutting allegation of recent fabrication (i.e., been telling the same story since before motive to lie cropped up)
R v. Giraldi (BCCA 1975): suggestion of recent fabric. can arise implicitly; prior consist. statements ok to rebut suggestion of recent fabric.
R v. D(D) (SCC 2000): did not need expert evid. to rebut suggestion of recent fabrication (sexual assault, child complainant, delay in reporting)
R v. Stirling (SCC 2008): the alleged fabrication needn’t be very ‘recent’; when admitted to rebut ‘recent fabric’, can also bolster overall credib.
‘part of the narrative’ (i.e., enable witness to tell story in a natural way; esp. in sex. assault, esp. w/ child witnesses)
R v. Dinardo (SCC 2008): PCSs as narrative evid.: ok to show fact+timing of complaint (bkgrnd info), not for confirming truth of allegations
B. impeaching credibility (can do way more: contrary evid., suggest bias/fabrication, prior inconsist. statements, and (i)-(iii) just below)
(i) witness’s bad reputation for veracity
R v. Clarke (ONCA 1998): when defence wants to attack Crown witness’s credib., can call witnesses and ask re: Crown witness’s reput. for truthfulness
(ii) expert evidence on witness’s abnormal reliability
Toohey v. Metro. Police Commissioner (HL 1965): can use expert evid. to show that witness’s abnormality makes his evid. unreliable; can get specific
(iii) prior convictions
CEA s. 12: bring up prior convictions to undermine credibility; no details, just name of crime, penalty, place of conviction, substance/effect of indictm.
R v. Corbett (SCC 1998): Crown can cross-ex. a testifying accused on his crim. record, only for credib.; trial judge can exclude if PE > PV (4 factors)
C. some aspects of cross-examination (if going to contradict a witness, must cross-examine them first (when possible))
(i) necessary foundation for cross-examination
R v. Lyttle (SCC 2004): can cross-ex. witnesses on matters that don’t need to be proved, so long as good-faith basis: info. avail., belief in accur., purpose
(ii) collateral facts bar (how far can you go in disproving, with independent evidence, tangential statements made by opposing party’s witnesses in cross-ex.?)
A-G v. Hitchcock (Eng. 1847): can’t impugn credib. by adducing evid. only to show that witness is lying about something unrelated to offence/defence
R v. Melnichuk (ONCA 1995): can ask witness about collateral issues (for credib. purposes), but can’t contradict his answers with reply evidence
exceptions: bias, witness’s prior convictions, prior inconsistent statements, medical evid. re: lack of credib., witness reputation for dishonesty
(iii) corroboration
R v. Baskerville (Eng. 1916): accomplice’s uncorroborated evid. is ok, but judge must warn jury that dangerous to convict based on that alone
Vetrovec v. The Queen (SCC 1982): nothing special about ‘accomplices’; make a clear+sharp warning when credib. of any witness testim. is in doubt
OPINION EVIDENCE (lay witnesses s’posed to testify re: facts of which they have personal knowledge—but exceptions below)
A. lay opinion evidence (can communicate perceptions as opinions when matters are (i) within common knowledge; or (ii) based on multiple perceptions best communicated in compendious format)
R v. Graat (SCC 1982): opinion evid. on ultimate facts in issue is ok if the facts on which observation is based are too complicated to narrate sep’ly
B1. expert opinion evidence
R v. Mohan (SCC 1994): [‘necessary’ means beyond experience/knowledge of ToF—something technical]
reformulation in R v. Abbey: expert opinion evid. ok if (i) necess.; (ii) expert’s qualified; (iii) evid. is logically relev. to mat. issue; (iv) no exclus. rule
R v. Lavallee (SCC 1990): expert evid. ok for challenging Q-able assumptions about human nature [here, battered wife synd.]; double hearsay here!
B2.reliability of novel areas of expertise (what extent of acceptance among community of experts is req’d before opinion based on technique/methodol. is ok?)
Daubert v. Merrell Dow Pharma. Inc. (US 1993): don’t need ‘general acceptance’, just reliab. and relevance—4 indicia; assist ToF
Béland v. The Queen (SCC 1987): polygraph evid. adduced only to show credibility—this is the jury’s job (esp. b/c non-technical)
HEARSAY (out-of-court statement tendered for the truth of its contents)
A. what constitutes hearsay + rationale for exceptions (can have high PV, but hard to assign weight without testing reliab. through demeanour/oath/cross-ex.)
Subramanian v. Public Prosecutor (Eng. 1956): not hearsay when purpose of tendering it is just to show the fact that it was made
R v. Wildman (ONCA 1981): “someone put an axe in Tricia’s head”—adduced to show that wife knew circums. of death before body discov’d: ok
B. implied hearsay
Wright v. Tatham (Eng. 1837): implied hearsay—treating mentally disabled guy as fully able, in letters (letter writers all dead)
R v. Wysochan (SCA 1930): “Stanley, I’m cold; bullet in me”—not meant to prove truth, but rather a state of mind (not implied hearsay)
R v. McKinnon (ONCA 1989): wife’s presence when cops discovered body’s location can’t be understood as an assertion/statement/communication
C. principled approach to hearsay (necessary + reliable: if one is very high, the other needn’t be)
R v. Khan (SCC 1990): necessity (“reas’ly necess.”) + reliab. (timing? demeanour? declarant’s intellig./personality? disinterest or reason to fabricate?)
R v. Smith (SCC 1992): even if necess. and reliable, trial judge has residual discretion to exclude when PV is slight and undue PE might inhere
R v. B(KG) (SCC 1993): prior inconsist. statements by witnesses other than accused are admissible for truth of their contents; need suff. guars. of trust.
D. traditional exceptions to rule against hearsay
(i) res gestae (‘part of the transaction’)
excited utterances / spontaneous declarations (mind is so overwhelmed that no time to make anything up in one’s own interest!)
R v. Clark (ONCA 1983): “help! I’ve been murdered/stabbed!”; surprised utterance reflecting sensation/perception, no time to make anything up
statements of present physical condition: must be contemporaneous (“oh, I’m hot in here”; “ow, that hurts”)
statements of present mental state: a third party relating someone saying, “I’m upset,” is the same as third party saying, “she looked upset”
statements of present sense impressions: mind needn’t be overwhelmed, but must be contemporaneous (“wow, fast car!”)
(ii) statements by parties: statement made by a party, offered by an opposing party, is admiss. for its truth (b/c cross-ex. is possible)
(iii) business records
(iv) statements against penal interest
R v. Pelletier (ONCA 1978): 5 factors for determining whether a statement made (by a party who’s not at trial) is one against penal interest
Lucier v. The Queen (SCC 1982): statements against penal interest are admissible only if exculpatory of the accused
(v) statements of intention
R v. P(R) (ON 1990): statements of intent (by a party who’s not at trial) are admiss. as direct evid. of declarant’s state of mind + circum. evid. that she acted in acc. with her intentions
(vi) testimony from prior crim. proceedings
R v. Potvin (SCC 1989): evid. given at prelim. inquiry can be admitted at trial (when witness is no longer avail./willing), if accused had opp. to cross-ex.
E. relationship between the principled approach and the traditional exceptions
R v. Starr (SCC 2000): evid. of state of mind or present intention can’t be made under circums. of suspicion or be used to show someone else’s state of mind or subseq. conduct
reformulation in R v. Mapara
R v. Khelawon (SCC 2006)—TEST; no more distinction between ‘intrinsic’ and ‘extrinsic’ circums. when determ’ing threshold vs. ultimate reliability
PRIVILEGES
A. class privileges
(i) solicitor-client privilege (communic. btw s+c, involving legal advice, intended2Bconfid.) + exceptions(facilit’ing crim. purpose; public safety; innoc.@stake)
Pritchard v. ON (Human Rights Commission) (SCC 2004): opinion from staff counsel is legal opinion; enabling statute doesn’t require full disclosure
Smith v. Jones (SCC 1999): lift s+c priv. if facts raise concerns that identifiable person/group is in imminent danger of death or serious bod./psych. harm
R v. Brown (SCC 2002): innoc. at stake is very narrow exception—see test
(ii) informer privilege (3 exceptions: informer is material witness or agent provoc., or accused wants to show unreasonable search under Charter s. 8)
R v. Liepert (SCC 1997): strongest privilege; if tip is anon., shouldn’t edit+disclose unless accused falls within innocence at stake exception
B. case-by-case privilege
Slavutych v. Baker (SCC 1976): tenure form subject to privilege; Wigmore test
R v. Gruenke (SCC 1991): no class priv. for relig. communications; Wigmore test (here, wasn’t intended to be confidential)
M(A) v. Ryan (SCC 1997): Wigmore test; partial privilege is possible (here, balancing plaintiff’s privacy against defendant’s right to make full defence)
C. privilege against self-incrimination (prevent accused from being conscripted against self)
CEA s. 5; Charter ss. 11(c), 11(d), 13; Charter s. 7. [use immunity, etc.]
Dubois v. The Queen (SCC 1985): if you don’t testify at second trial, (voluntary/accused) testimony from first trial can’t be used against you
R v. Henry (SCC 2005): if you testify at second trial, testimony from first trial (as accused, so voluntary) can be used to impeach your credib. or incrim.
see rubric of Charter s. 13 protection
COMPETENCE AND COMPELLABILITY OF WITNESSES
A. accused’s competence to testify
R v. Noble (SCC 1997): accused’s silence can’t be used against him; problem: judge can’t comment to jury on accused’s silence (but defence can)
B. spousal incompetence (it’s the recipient of the communication who’s the holder, and who can waive)
CEA s. 4 [spouse can be compellable if accused is charged with certain offences; spouse can’t be compelled to disclose communics. made in marriage]
R v. Salituro (SCC 1991): irreconcilably separated spouses can testify against each other; spousal incompet.: marital harmony, block ‘natural repugn.’
R v. Couture (SCC 2007): spousal incompetence also applies to out-of-court statements made by spouse, during marriage, to police
C. general competence of witnesses
CEA s. 16 (witnesses 14 or older—mental capacity); CEA s. 16.1 (witnesses under 14)
R v. Marquard (SCC 1993): maj.: need, at time of trial, capacity to observe/interp., recollect, communicate; diss.: just need to understand/answer Qs