Evidence — CA Study Note

01. Overview

The law of evidence in Canada governs the means by which facts are proved before courts and tribunals. It determines what information may be placed before the trier of fact, in what form, and subject to what conditions. Evidence law is not merely procedural in the narrow sense; it reflects deep substantive commitments about reliability, fairness, and the integrity of adjudication.

Canadian evidence law is pluralistic in structure. The Canada Evidence Act, RSC 1985, c C-5 governs federal proceedings; each province has its own evidence legislation for provincial matters. Over and above these statutes, a body of common law rules — substantially developed by the Supreme Court of Canada — shapes admissibility in criminal proceedings in particular. The Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, introduces a constitutional layer through s. 24(2), which empowers courts to exclude evidence obtained in violation of Charter-protected rights.

For examination purposes, the syllabus identifies five clusters of doctrine: (1) relevance and materiality; (2) the principled approach to hearsay, anchored in necessity and reliability; (3) the confessions rule; (4) privilege; and (5) expert evidence, governed by the twin frameworks of R v Mohan and White Burgess Langille Inman v Abbott and Haliburton Co. Each cluster is technically demanding and rich in Supreme Court authority. Mastery requires not only knowing the rules but being able to apply them to novel fact patterns and to articulate the policy tensions each area embodies.

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02. Historical Development

Common law foundations. The law of evidence developed primarily through English common law, adopted into Canadian provinces by reception statutes. The earliest Canadian Supreme Court decisions show the Court applying the inherited English rules largely without modification. Miller v. Robertson (1904), (1904) 35 SCR 80, for instance, illustrates the Court's early engagement with questions of competence and the weight of documentary evidence, reflecting the formalist preoccupations of the era.

Rigid categorical rules and their discontents. For much of the twentieth century, Canadian evidence law operated through categorical exclusionary rules — notably the hearsay rule, the opinion rule, and the rule against self-incrimination. These rules rested on justifications tied to the jury system: lay triers of fact could not be trusted to discount unreliable information. Courts applied exceptions mechanically, asking whether a statement fitted a recognised category (dying declarations, admissions, business records, and so on) rather than asking whether the evidence was in fact reliable and necessary.

The principled revolution. The Supreme Court's decision in R v Khan [1990] 2 SCR 531 — which, although not on the provided list, is universally treated as the catalyst — began dismantling the categorical approach to hearsay. The Court in R v Khelawon (2006), [2006] 2 SCR 787 consolidated the principled approach, making it the governing framework for hearsay admissibility in Canada. The shift from categories to principles mirrors a broader move in Canadian common law toward purposive, contextual analysis.

Constitutionalisation. The Charter of 1982 superimposed constitutional guarantees — notably the right to silence (s. 7), the right against self-incrimination (s. 13), and the right to counsel (s. 10(b)) — on the existing common law and statutory framework. The confessions rule, historically a common law doctrine, now operates alongside these Charter rights, though it retains independent force.

Expert evidence. The admission of expert testimony remained relatively permissive until R v Mohan (1994), [1994] 2 SCR 9, which imposed a four-part threshold test. The subsequent decision in White Burgess Langille Inman v Abbott and Haliburton Co (2015) refined the framework by separating threshold admissibility from weight and by emphasising the expert's duty to the court as an overriding obligation.

Privilege. The development of solicitor-client privilege from a rule of evidence into a quasi-constitutional principle proceeded incrementally through cases such as Smith v. Jones (1999), [1999] 1 SCR 455, which confirmed that the privilege could yield only in the narrowest circumstances — specifically, when the public safety exception applied to a serious and imminent threat.

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03. Core Principles

3.1 Relevance and Materiality

Relevance is the threshold requirement for admissibility. Evidence is relevant if it has a tendency to make a fact in issue more or less probable than it would be without the evidence. Materiality is the further requirement that the fact in issue be one that matters to the outcome of the proceeding. In Canadian usage, the two concepts are often merged under the single term "relevance," but the distinction retains analytical value: irrelevant evidence is excluded absolutely, while relevant but marginally probative evidence may still be excluded if its prejudicial effect substantially outweighs its probative value.

The trial judge's role is that of gatekeeper. Relevance is assessed on a low threshold — a logical connection suffices. The cost-benefit analysis (probative value versus prejudicial effect) is a higher, discretionary hurdle that operates after the relevance threshold is crossed.

3.2 The Principled Approach to Hearsay

Hearsay is an out-of-court statement tendered for the truth of its contents. The rationale for exclusion is the absence of the safeguards of oath, cross-examination, and the opportunity for the trier of fact to observe demeanour. The principled approach, as articulated in R v Khelawon, holds that hearsay evidence is presumptively inadmissible but may be admitted if the proponent establishes, on a balance of probabilities, that the statement is (i) necessary and (ii) sufficiently reliable.

Necessity is established where the original declarant is unavailable (through death, serious illness, or refusal to testify despite a court order) or where requiring the declarant to testify in person would be inappropriate (the child witness scenario that precipitated Khan). Necessity does not require that the evidence be unobtainable by any other means; it requires that it be reasonably impracticable to obtain evidence of the same value from the declarant directly.

Reliability is assessed in two ways. Threshold reliability (required for admissibility) may be established either by demonstrating that the circumstances surrounding the making of the statement provide adequate substitutes for the safeguards of in-court testimony (circumstantial guarantees of reliability), or by demonstrating that, despite the absence of those guarantees, there is no realistic concern that the statement is untrue. Ultimate reliability is a matter of weight, left to the trier of fact.

The Supreme Court in Khelawon confirmed that the analysis of reliability is contextual and functional: the question is always whether the evidence can be adequately tested, not whether it fits a pre-existing categorical exception.

3.3 The Confessions Rule

The common law confessions rule requires that a statement made by an accused to a person in authority be proven by the Crown to have been made voluntarily. Voluntariness is assessed through the lens of four factors identified by the Supreme Court: threats, promises, oppressive conditions, and the operating mind of the accused. The rule is concerned both with reliability (coerced confessions may be false) and with the dignity of the accused.

The confessions rule operates independently of, but alongside, s. 10(b) and s. 7 of the Charter. A statement may be admissible under the confessions rule yet excluded under s. 24(2) if it was obtained in breach of the right to counsel.

3.4 Privilege

Privilege is a rule of exclusion that operates not on grounds of unreliability but on grounds of policy. The two most important heads of privilege in Canadian law are (i) solicitor-client privilege (now often called legal professional privilege) and (ii) litigation privilege.

Solicitor-client privilege protects confidential communications between a lawyer and client made for the purpose of obtaining or giving legal advice. It belongs to the client, is permanent in duration, and is near-absolute in its protection. Smith v. Jones (1999), [1999] 1 SCR 455 confirmed that the privilege could yield to a public safety exception only where the threat of harm is serious, imminent, and the communication of that risk to authorities is the only reasonable means of preventing it.

Litigation privilege is broader in scope (it covers communications with third parties, such as investigators and experts) but narrower in duration (it ends when the litigation ends). It protects the "zone of privacy" in which counsel prepares a case.

Class privilege (covering, for example, informer identity) operates differently: once the class is established, exclusion is presumptive and the judge has no discretion to admit. Litigation-by-litigation privilege is different: the judge engages in a case-by-case balancing of competing interests.

Questions of privilege also arise in administrative proceedings. Law Society of British Columbia v Mangat (2001), 2001 CSC 67 raised intersecting questions about the authority of administrative tribunals and the interpretation of federal legislation, illustrating that privilege-like protections may operate in non-curial contexts.

3.5 Expert Evidence

Expert evidence is admitted as an exception to the opinion rule, which generally excludes witnesses from giving opinions rather than facts. Expert opinion is allowed because, in areas requiring specialised knowledge, lay triers of fact cannot draw the necessary inferences unaided.

The Mohan framework (from R v Mohan (1994), [1994] 2 SCR 9) imposes four conditions: (1) relevance; (2) necessity in assisting the trier of fact; (3) absence of any exclusionary rule; and (4) a properly qualified expert. White Burgess Langille Inman v Abbott and Haliburton Co (2015) added structural clarity by distinguishing the threshold admissibility stage from the discretionary cost-benefit stage, and by insisting that an expert's overriding duty is to the court rather than to the party retaining them.

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04. Statutory Framework

4.1 Canada Evidence Act, RSC 1985, c C-5

The Canada Evidence Act is the primary federal statute. Key provisions include:

• Section 4: Competence and compellability of the accused's spouse in criminal proceedings.
• Section 9: Adverse witnesses — a party who calls a witness may apply to cross-examine that witness if the witness proves adverse.
• Section 30: Business records — admissibility of records made in the ordinary course of business.
• Sections 37–39: Crown privilege and public interest immunity, permitting the Crown to object to the disclosure of information on grounds of specified public interests, including Cabinet confidences (s. 39).

4.2 Provincial Evidence Acts

Each province has enacted its own evidence legislation applying to provincial matters. These statutes generally track the Canada Evidence Act but may differ in their treatment of spousal competence, electronic records, and certain aspects of privilege.

4.3 The Canadian Charter of Rights and Freedoms

• Section 7: Right to life, liberty, and security of the person; includes the right to silence and the principle against self-incrimination.
• Section 10(b): Right to counsel upon detention.
• Section 11(c): Right not to be compelled to be a witness against oneself in criminal proceedings.
• Section 13: Right not to have incriminating testimony used against a witness in other proceedings (use immunity).
• Section 24(2): Exclusion of evidence obtained in violation of Charter rights where admission would bring the administration of justice into disrepute.

4.4 The Criminal Code, RSC 1985, c C-46

Several Criminal Code provisions are evidence-relevant, including the voluntariness requirement for statements (reflected in Part XVII), the right to make full answer and defence, and various provisions governing the admissibility of records in sexual offence cases (ss. 278.1–278.91, the "rape shield" provisions, though these fall outside the present syllabus).

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05. Landmark Cases

R v Khelawon (2006), [2006] 2 SCR 787

Khelawon is the leading Supreme Court authority on the principled approach to hearsay. The accused was charged with assault of elderly residents of a care facility. The Crown sought to admit statements made by a complainant who had since died and by another who was too ill to testify. The trial judge admitted the statements; the Court of Appeal excluded them; the Supreme Court allowed the Crown's appeal in part.

Charron J, writing for the Court, confirmed that the Khan/Starr principled approach is the governing framework for hearsay admissibility. The twin criteria of necessity and reliability govern both the traditional exceptions (which survive as presumptively reliable if their underlying rationale holds) and novel categories. Critically, the Court clarified that threshold reliability need not be established to a balance-of-probabilities standard of truth — the question is whether there is an adequate basis for the trier of fact to assess the evidence, not whether the judge believes it. The Court further held that corroborating evidence may, in limited circumstances, be used at the threshold stage, but with caution, to avoid usurping the jury's role.

R v Mohan (1994), [1994] 2 SCR 9

R v Mohan remains the foundational authority on expert evidence. The accused, a physician, was charged with sexual assault. The defence sought to introduce expert psychiatric evidence that the perpetrator of the offences would have had a particular psychological profile, which the accused did not fit. The Supreme Court, per Sopinka J, held that the evidence was inadmissible.

The Court articulated a four-part test: relevance (including a cost-benefit analysis), necessity in assisting the trier of fact (the "necessity" criterion distinguishing expertise from common knowledge), absence of any applicable exclusionary rule, and a properly qualified expert. The Court emphasised that "necessity" does not mean "helpful" but rather that the subject-matter is outside the ordinary experience of the trier of fact such that the expert's evidence is required to enable a proper verdict.

White Burgess Langille Inman v Abbott and Haliburton Co (2015)

This Supreme Court of Canada decision built on Mohan and directly addressed the expert's duty to the court. The Court held that an expert witness owes an overriding duty to give fair, objective, and non-partisan opinion evidence. Failure to acknowledge and comply with this duty is a threshold admissibility issue, not merely a matter of weight. However, the Court cautioned that exclusion on this ground at the threshold stage should be reserved for clear cases; in most instances, concerns about an expert's impartiality will go to weight rather than admissibility. The two-step framework — threshold admissibility (including the Mohan criteria) followed by a discretionary cost-benefit analysis — was confirmed as the governing structure.

Smith v. Jones (1999), [1999] 1 SCR 455

Smith v. Jones is the leading authority on the public safety exception to solicitor-client privilege. The accused was charged with aggravated sexual assault of a prostitute. A psychiatrist retained by defence counsel to assess the accused concluded that the accused presented a continuing danger and planned further offences. Defence counsel refused to disclose the report; the psychiatrist applied to the court for an order permitting disclosure. The Supreme Court held that solicitor-client privilege can yield to the public safety exception where: (i) there is a clear risk to an identifiable person or group of persons; (ii) the risk is of serious bodily harm or death; and (iii) the danger is imminent.

The case is significant because it confirms the near-absolute nature of the privilege while delineating the narrow circumstance in which the public safety exception overrides it. The Court explicitly declined to extend the exception beyond serious, imminent physical danger.

R v F. (W.J.) (1999), [1999] 3 SCR 569

This case addressed hearsay and the admissibility of prior consistent statements in the context of child witnesses. The Supreme Court confirmed that prior consistent statements are generally inadmissible as proof of truth under the hearsay rule unless they fall within a recognised exception (such as recent fabrication). The decision reinforces the distinction between using a statement for a non-hearsay purpose (e.g., to rebut an allegation of recent fabrication) and using it for the truth of its contents.

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06. Doctrinal Analysis

6.1 The Architecture of the Principled Approach

The principled approach as confirmed in Khelawon operates at two levels. At the first level, it determines whether traditional hearsay exceptions survive. The Court held that the categorical exceptions are preserved where their underlying rationale — providing adequate substitutes for the trial safeguards — remains sound. Where the rationale does not hold on the particular facts, the presumption of reliability may be rebutted and the exception does not apply. At the second level, the principled approach governs genuinely novel hearsay. Here, the proponent must positively demonstrate both necessity and threshold reliability.

The interaction between these levels generates doctrinal complexity. A statement that fits a traditional exception is presumptively admissible but may be excluded if the opponent can show that the underlying rationale fails. Conversely, a statement that does not fit any exception may still be admitted under the residual branch if the two criteria are satisfied. The result is a genuinely flexible framework — but flexibility brings uncertainty, which critics have identified as a central weakness.

6.2 Reliability: Circumstantial vs. Corroborative

The Khelawon Court drew a contested distinction between two routes to threshold reliability. The first — circumstantial guarantees — examines the circumstances surrounding the making of the statement: was the declarant under oath? Was there an opportunity for cross-examination at the time? Was the declarant under no motive to lie? The second — the "no reason to lie" route — is more controversial; it asks whether, on the facts, there is any realistic concern about the truth of the statement, potentially using corroborating evidence.

Critics (notably Paciocco and Stuesser in their leading Canadian evidence text) have argued that allowing corroborating evidence at the threshold stage risks an impermissible conflation of admissibility with ultimate reliability, usurping the jury's fact-finding function. The Khelawon Court acknowledged this concern and advised that corroborating evidence should be used "with caution." The precise scope of permissible corroboration remains a live doctrinal issue.

6.3 Expert Evidence: The Duty to the Court

White Burgess introduced a structural refinement that has proven practically significant. By treating the expert's duty to the court as a component of the threshold admissibility analysis (rather than purely a matter of weight), the Court empowered trial judges to exclude partisan expert evidence at the gatekeeping stage. The practical difficulty is the Court's simultaneous instruction that exclusion should be reserved for "clear cases." Trial judges must calibrate a threshold that is genuine without being so demanding that expert evidence is routinely excluded.

The Mohan framework also interacts with ss. 7 and 11(d) of the Charter in criminal proceedings. The accused's right to make full answer and defence may require that defence expert evidence be admitted on a more generous basis than Crown expert evidence, a tension the post-Mohan jurisprudence has not fully resolved.

6.4 Solicitor-Client Privilege vs. Litigation Privilege

A persistent doctrinal challenge is maintaining a clear distinction between solicitor-client privilege and litigation privilege. The two are often pleaded together but serve different purposes, have different durations, and admit of different exceptions. Solicitor-client privilege is permanent and near-absolute; litigation privilege ends with the litigation and is subject to a broader range of exceptions (including implied waiver through disclosure). The conflation of the two — which appears in some lower court decisions — generates error in both directions: extending the narrower protections of litigation privilege to communications that should attract solicitor-client privilege, or (more dangerously) importing the flexibility of litigation privilege into the near-absolute domain of solicitor-client privilege.

Smith v. Jones is significant partly because it addressed solicitor-client privilege specifically, insisting on its near-absolute character. It does not provide authority for relaxing solicitor-client privilege on grounds less severe than those it identified.

6.5 Confessions Rule: The "Person in Authority" Concept

The confessions rule applies only to statements made to a person in authority — a category that includes police officers but extends to others who the accused reasonably believes are acting on behalf of the state in the investigation or prosecution of the offence. Identifying who qualifies as a person in authority can be fact-specific. The rule is triggered by the subjective belief of the accused (was the accused subjectively aware that the recipient had authority?), assessed objectively (would a reasonable person in the accused's position have so believed?).

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07. Debates & Criticism

7.1 Flexibility vs. Certainty in Hearsay

The most persistent criticism of the principled approach is that it sacrifices predictability for flexibility. Under a categorical regime, practitioners can advise clients with confidence whether a statement will be admitted. Under the principled approach, the outcome depends on a contextual assessment by the trial judge that is difficult to predict or appeal. Paciocco and Stuesser, as well as Sopinka, Lederman, and Bryant (in their authoritative Canadian evidence treatise), have each noted this tension. Defenders of the principled approach respond that the old categorical exceptions were themselves unpredictable at the margins and, more fundamentally, admitted unreliable evidence systematically.

7.2 The Role of the Trial Judge as Gatekeeper

The expansion of the trial judge's gatekeeping role — visible in both the hearsay context (Khelawon) and the expert evidence context (Mohan, White Burgess) — raises concerns about judicialisation of fact-finding and about appellate deference. Where a trial judge's admissibility ruling involves mixed law and fact, the standard of appellate review is one of palpable and overriding error on the factual components and correctness on the legal. The line between these components is not always clear, generating inconsistent appellate outcomes.

7.3 Privilege and the Public Interest

Smith v. Jones illustrates the broader tension between the sanctity of solicitor-client privilege and the public interest in preventing serious harm. Critics argue that the three-part test established in Smith v. Jones is too demanding, particularly the requirement that the danger be "imminent." Mental health professionals and commentators on therapeutic privilege have argued that many serious threats do not present with the immediacy the Court requires. Defenders respond that any relaxation of the standard would chill client candour and undermine the rule of law rationale for the privilege.

7.4 Expert Evidence and the "Hired Gun" Problem

The concern that expert witnesses act as advocates for the party who retained them predated White Burgess and has not been eliminated by it. The structural solution offered by the Court — treating the duty to the court as a threshold issue — has been criticised as insufficient. Some commentators advocate for court-appointed experts, as permitted in civil proceedings in several provinces, as a more systemic remedy.

7.5 Class Privilege vs. Case-by-Case Privilege

The decision whether to treat a category of communications as attracting class privilege (where the court has no discretion to admit) or case-by-case privilege (where the court balances interests) is itself a matter of significant debate. Only a small number of categories attract class privilege in Canada: solicitor-client, informer identity, and (in some jurisdictions) settlement communications. Most others — religious confessors, journalists, and accountants among them — must rely on case-by-case analysis. Whether new classes should be recognised raises foundational questions about the relationship between law, policy, and institutional competence.

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08. Comparative Perspective

Canadian evidence law stands at an intersection of English common law heritage and American constitutional influence. The principled approach to hearsay bears a functional resemblance to Federal Rule of Evidence 807 (the residual hearsay exception in the United States), which also conditions admissibility on necessity and trustworthiness. However, the Canadian approach is judicially developed rather than codified, giving it greater contextual flexibility but less textual certainty.

The English position, following the Civil Evidence Act 1995 and the Criminal Justice Act 2003, has moved toward broad statutory admissibility of hearsay in both civil and criminal proceedings, subject to reliability safeguards. This represents a more radical departure from the exclusionary tradition than the Canadian principled approach, which retains presumptive exclusion.

Australian evidence law, as codified in the Uniform Evidence Acts (adopted federally and in several states), provides a third model — categorical statutory exceptions with a residual discretion. The Australian approach is often cited as striking a better balance between certainty and flexibility, and some Canadian commentators (notably David Paciocco) have advocated for statutory codification of the principled approach to achieve similar benefits.

In civil law systems — including Québec's civil law tradition — the principle is generally one of free admissibility subject to the court's assessment of probative value, with fewer exclusionary rules. The interaction between common law evidence rules and Québec's civil law tradition creates unique complications in mixed proceedings in Canada.

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09. Essay Approach

When writing an examination essay on Canadian evidence law, adopt the following analytical structure:

Step 1 — Identify the evidential issue. Name the rule or doctrine at stake: is this a hearsay question? An expert evidence question? A privilege claim? Accuracy at the identification stage signals analytical control.

Step 2 — State the governing test. Quote or paraphrase the Supreme Court's articulation of the applicable test. For hearsay, deploy Khelawon: necessity and threshold reliability. For expert evidence, deploy Mohan (four criteria) and White Burgess (duty to the court and the two-step structure). For privilege, deploy Smith v. Jones (solicitor-client privilege; public safety exception). Be precise about which Court articulated the test and when.

Step 3 — Apply the test to the facts. Do not state the law and then describe the facts separately. Weave them together. Address each element of the test in turn, stating whether it is satisfied and why.

Step 4 — Address counter-arguments. Evidence law questions frequently have two defensible answers. A strong essay identifies the best argument against the conclusion you have reached and explains why it does not prevail on these facts.

Step 5 — Note the remedy or consequence. In criminal proceedings, if evidence is wrongly admitted or excluded, address s. 24(2) of the Charter or the curative proviso under s. 686(1)(b)(iii) of the Criminal Code as appropriate. In civil proceedings, address costs and the potential for a new trial.

Step 6 — Conclude precisely. One sentence. State the outcome on admissibility and, if relevant, the disposition.

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10. Exam Traps

1. Confusing hearsay with non-hearsay use. A statement is hearsay only if it is tendered for the truth of its contents. A statement offered to show that it was made, or to show its effect on the listener, is not hearsay. Misclassifying the purpose for which a statement is offered is among the most common errors in evidence examinations.

1. Conflating threshold reliability with ultimate reliability. Khelawon is clear: the threshold reliability inquiry at the admissibility stage does not require the judge to conclude that the statement is probably true. Saying that the judge "must be satisfied the statement is reliable" elides this distinction and is incorrect.

1. Treating solicitor-client privilege and litigation privilege as interchangeable. They share a common purpose (facilitating legal representation) but differ in scope, duration, and the strength of protection. Know the difference and state it.

1. Forgetting the "person in authority" requirement for the confessions rule. The rule does not apply to statements made to private citizens who are not acting on behalf of the state. Students regularly apply the confessions rule to undercover police operations or statements to private parties without analysing whether the recipient qualifies.

1. **Applying Mohan only to Crown expert evidence.** The Mohan criteria apply to all expert evidence — Crown and defence alike. The right to make full answer and defence may affect how strictly the necessity criterion is applied to defence experts in criminal proceedings, but the framework itself applies to both sides.

1. **Ignoring the "duty to the court" issue in White Burgess.** After White Burgess, any expert evidence question should include an analysis of whether the expert acknowledged and discharged the duty to be fair, objective, and non-partisan. An expert who is an employee, a close associate, or an advocate for the retaining party raises a White Burgess concern.

1. Treating privilege as absolute without qualification. Solicitor-client privilege is near-absolute, not absolute. Smith v. Jones confirms the public safety exception. Know its three conditions precisely.

1. Overlooking the statutory framework. Examination questions in evidence often test knowledge of the Canada Evidence Act (e.g., s. 9 adverse witnesses, s. 30 business records). Do not analyse a documentary evidence or witness credibility question purely in common law terms without checking whether a statutory provision is engaged.

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11. Q&A

Q1. Marcus is charged with fraud. The Crown seeks to admit a recorded telephone call in which Marcus's deceased business partner, now dead, told an unknown caller that "Marcus handles all the accounts — he knows where every dollar goes." The partner cannot be called. How should the court approach admissibility?

The statement is an out-of-court statement tendered for the truth of its contents (that Marcus controlled the accounts), and is therefore hearsay. Under the principled approach confirmed in R v Khelawon (2006), [2006] 2 SCR 787, the Crown must establish necessity and threshold reliability on a balance of probabilities.

Necessity: The declarant is deceased. There is no possibility of calling the best evidence from the original source. Necessity is established.

Threshold reliability: The court will assess circumstantial guarantees. The call was spontaneous, made in a private context suggesting candour, and corroborated by the business records. However, the identity of the caller is unknown, the statement was not made under oath, and there was no opportunity for cross-examination. The court must determine whether, taken together, the circumstances provide adequate substitutes for the trial safeguards. This is a genuinely borderline case: the spontaneity and informal context support reliability; the complete absence of any testing mechanism counts against it. On the Khelawon framework, the result depends heavily on the strength of the corroborating business records and the overall reliability assessment. The trial judge has a discretion to admit or exclude; either outcome would be defensible on these facts, and the ruling is reviewable only for palpable and overriding error on the factual components.

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Q2. The defence in a criminal trial retains an expert psychiatrist who is a full-time employee of the defendant's legal aid organisation. The expert gives opinion evidence that the accused lacked the mental capacity to form the required intent. The Crown objects. Advise.

The threshold question after White Burgess Langille Inman v Abbott and Haliburton Co (2015) is whether the expert has acknowledged and is able to comply with the overriding duty to give fair, objective, and non-partisan evidence to the court. Employment by the defence organisation does not automatically disqualify the expert, but it is a relevant consideration that must be addressed.

The trial judge should assess whether, on the totality of the evidence, there is a realistic concern that the expert's institutional affiliation has compromised the duty to the court. The Court in White Burgess cautioned that exclusion at threshold should be reserved for clear cases; mere employment by the retaining party does not ordinarily rise to that level. In most instances, the concern will go to weight rather than admissibility.

The Mohan criteria must also be satisfied: the psychiatric opinion must be relevant (it directly addresses the mens rea element), necessary (capacity is outside lay experience), not subject to any exclusionary rule, and the expert must be properly qualified. All four criteria appear satisfied. The likely outcome is admissibility, with the jury directed to weigh the evidence with awareness of the expert's employment context.

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Q3. A client confides in her solicitor that she intends to return to her estranged husband's home and "do something he will regret." The solicitor believes she means to cause serious bodily harm. May the solicitor disclose this to the police?

Under Smith v. Jones (1999), [1999] 1 SCR 455, solicitor-client privilege may yield to the public safety exception where three conditions are met: (i) there is a clear risk to an identifiable person or group; (ii) the risk is of serious bodily harm or death; and (iii) the danger is imminent.

On these facts: (i) the husband is an identifiable person; (ii) the solicitor believes the risk is of serious bodily harm; (iii) the imminence criterion requires careful analysis — the client has expressed an intention to act, but no specific timetable has been stated. Whether imminence is established depends on how "imminent" is defined. The Supreme Court in Smith v. Jones declined to give a rigid definition of imminence, treating it as fact-dependent. A solicitor who reasonably concludes that the threat is about to be carried out would satisfy the test; a solicitor who acts on a generalised future threat that is not impending would not. The solicitor should seek urgent legal advice and, if the three criteria are satisfied, may (but is not required to) disclose the minimum information necessary to prevent the harm.

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12. Further Reading

Treatises and texts

• David M. Paciocco & Lee Stuesser, The Law of Evidence (8th ed, Irwin Law). The standard Canadian evidence text for law students; authoritative, comprehensive, and regularly updated.
• Sopinka, Lederman & Bryant, The Law of Evidence in Canada (5th ed, LexisNexis). The leading practitioner treatise; more detailed on case law; essential for advanced study.

Supreme Court Decisions

• R v Khelawon (2006), [2006] 2 SCR 787 — principled approach to hearsay (consolidating authority).
• R v Mohan (1994), [1994] 2 SCR 9 — expert evidence admissibility.
• White Burgess Langille Inman v Abbott and Haliburton Co (2015) — expert's duty to the court.
• Smith v. Jones (1999), [1999] 1 SCR 455 — public safety exception to solicitor-client privilege.
• R v F. (W.J.) (1999), [1999] 3 SCR 569 — prior consistent statements and hearsay.

Academic Articles

• David Paciocco, "The Principled Approach to Hearsay: A Reconsideration" (various editions of his textbook address the policy debates in chapter form with original argument).
• Lisa Dufraimont, "Regulating Unreliable Evidence: Can Rules of Evidence Guide Juries and Prevent Wrongful Convictions?" (2008) 33:2 Queen's LJ 261 — examines reliability concerns in hearsay and expert evidence with reference to wrongful convictions.

Legislation

• Canada Evidence Act, RSC 1985, c C-5 (especially ss. 4, 9, 30, 37–39).
• Canadian Charter of Rights and Freedoms, ss. 7, 10(b), 11(c), 13, 24(2).