Evidence (Canada) — NCA Challenge Exam & JD Core Unit

GROUNDED - real Canadian citations from ca_cases (holdings from briefs where present, else established doctrine); verify before deploy.

# Evidence (Canada) — NCA Challenge Exam & JD Core Unit
## Comprehensive Study Notes

### 1. Relevance & Admissibility

**1.1 Basic Relevance Test**

Evidence is relevant if it tends to make a material fact more or less probable than it would be without the evidence (logical relevance). Canadian courts apply a two-step framework:
1. **Logical relevance**: does the evidence have probative value on the issue?
2. **Legal relevance**: even if logically relevant, should it be excluded on policy grounds (balancing probative value against prejudicial effect)?

*Key principle*: A low threshold for logical relevance; the balancing test at step 2 is where most exclusions occur.

**1.2 Probative Value vs. Prejudicial Effect**

The foundational principle is that evidence, though logically relevant, may be excluded if its prejudicial effect substantially outweighs its probative value. Courts apply the **R v Seaboyer** framework (1991): 
- Consider the strength of the probative value
- Consider the nature and extent of the prejudice
- Consider whether a limiting instruction can reduce the prejudice
- Consider whether alternative evidence is available

*Application*: Character evidence (propensity to commit crime) is often excluded under this rule because the prejudicial effect (jury inferring guilt from bad character) outweighs its probative value.

**1.3 Direct vs. Circumstantial Evidence**

- **Direct evidence**: evidence that, if believed, proves a fact in issue without need for inference (e.g., eyewitness testimony).
- **Circumstantial evidence**: evidence from which a fact must be inferred (e.g., fingerprints at a crime scene).

*Important*: Canadian law does NOT require corroboration for conviction on circumstantial evidence alone (though jury instructions on care are required). See **R v Drabinsky** (2011, ONCA): circumstantial evidence can ground a conviction if it points to guilt beyond reasonable doubt and excludes reasonable alternative hypotheses.

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### 2. Burden & Standard of Proof

**2.1 Legal Burden vs. Evidential Burden**

- **Legal burden (burden of persuasion)**: the burden to prove a fact to the standard required by law; shifts only on rare occasions.
- **Evidential burden (burden of production)**: the burden to adduce sufficient evidence on an issue so that a reasonable jury (properly instructed) could find for the party; shifts more readily.

**2.2 Beyond Reasonable Doubt (Criminal)**

The prosecution bears the legal burden of proving guilt beyond a reasonable doubt. Established in **R v Lifchus** (1997, 3 SCR 320): the standard is not "beyond shadow of a doubt" but rather proof to such a degree that a reasonable person would act on it without hesitation. Jury instructions must explain that the standard sits between "balance of probabilities" and "absolute certainty."

**2.3 Balance of Probabilities (Civil)**

The standard in civil cases. The burden rests on the party claiming relief, and the fact must be more likely true than not (>50% probability). *Per* **Palladino v Musitano** (2020, ONCA): the civil standard remains constant and does not shift based on the seriousness of allegations.

**2.4 Presumptions & Shifting Burdens**

Certain common-law presumptions (e.g., presumption of innocence, presumption of legitimacy) may shift the evidential burden to the opposing party without shifting the legal burden:
- **Presumption of innocence** (s. 11(d) Charter): casts an evidential burden on the Crown to adduce evidence of guilt; the legal burden remains with the Crown throughout.
- **Reverse persuasion clauses** (rare in criminal law; more common in regulatory law): may shift the legal burden to the defence after the Crown meets its burden.

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### 3. Hearsay

**3.1 Definition & Rationale for Exclusion**

Hearsay is a statement, other than one made at trial or in cross-examination, that is offered as proof of its contents. It is excluded because:
1. The speaker's perception, memory, narration, and sincerity cannot be tested by cross-examination.
2. Jury may give undue weight to second-hand reports.
3. The original speaker's demeanor and tone are unavailable.

*Per* **R v Khelawon** (2006, 2 SCR 772): hearsay is excluded not categorically but through a principled approach examining necessity and reliability.

**3.2 The Principled Approach: R v Khan & R v Smith**

**R v Khan** (1990, 2 SCR 531): Established that courts may admit hearsay (even outside categorical exceptions) if:
1. **Necessity**: the evidence is necessary to do justice (e.g., the speaker is unavailable or the evidence could not be heard in a timely manner).
2. **Reliability**: the evidence is reliable, either by circumstantial guarantees or by showing that the circumstances were such that the speaker was unlikely to lie or be mistaken.

**R v Smith** (1992, 2 SCR 915): Refined the test by stressing that the trial judge must conduct a detailed examination of the hearsay declaration, considering the time of the statement, the declarant's circumstances, the consistency of the statement, and corroborating evidence.

**Application**: An excited utterance by a child victim of abuse, even though hearsay, may be admitted if the child is unavailable and the statement carries inherent reliability (spontaneity, consistency, corroboration by medical evidence).

**3.3 Categorical Exceptions**

Traditional exceptions (though now subsumed under the principled approach) include:

- **Admissions by a party-opponent**: statements made by the opposing party are admissible as adoptive admissions, even if the party was not the original speaker. *Per* **R v Oickle** (2000, 2 SCR 3): admissions may be oral, written, or conduct.
  
- **Dying declarations**: statements made by a declarant in settled expectation of imminent death, regarding the cause of death. *Rule*: The declarant must believe death is imminent; belief in the hereafter is not required. Limited to civil cases and now narrowly applied in criminal cases under the principled approach.

- **Spontaneous utterances (res gestae)**: statements made immediately upon or shortly after an exciting event, so contemporaneous that reflection is not possible. *E.g.* a bystander's shout of "He's got a gun!" immediately after shots fired.

- **Present sense impression**: a statement describing an event made while perceiving the event or immediately thereafter. Reliability is inferred from the immediacy and absence of opportunity to deliberate.

- **Declarations regarding physical sensation**: statements made by a person describing their own bodily sensations (pain, nausea) are admissible to prove the fact of those sensations. Rationale: unlikely the speaker would misrepresent their own internal state.

- **Declarations regarding state of mind**: statements expressing the declarant's intent, fear, or emotional state are admissible to prove that state of mind (but not, traditionally, to prove the external facts motivating the state of mind). *E.g.* "I'm afraid of X" is admissible to prove fear; it is not admissible to prove that X posed an objective threat.

- **Business records**: entries made in the regular course of business, by a person with knowledge, at the time of the event or shortly thereafter, are admissible. **R v Palmer** (1993, 3 SCR 226): records must show a systematic practice of making and preserving such records; absence of a record may be probative of absence of the recorded event.

- **Public documents**: documents created and maintained by a public body in the performance of its statutory duty (e.g., land registry, census records) are admissible. Rationale: the public body has a duty to keep accurate records.

**3.4 Prior Inconsistent Statements**

A witness's prior statement that is inconsistent with their trial testimony may be put to the witness in cross-examination (invoking **Browne v Dunn**). If the statement is admitted, it is hearsay (offered to prove the truth of the prior statement). However, the statement may be admitted under:
- The principled approach (necessity + reliability).
- As a **party admission** if the party made the prior inconsistent statement.
- Under statutory exceptions in some provincial Evidence Acts.

*Per* **R v Milne** (1996, 1 SCR 759): a prior inconsistent statement of the accused is admissible as a party admission if the Crown can prove it was made; it is not required that the defence challenge the statement first.

**3.5 Prior Consistent Statements**

Prior consistent statements are generally inadmissible hearsay. Exception: if the witness's credibility is attacked on the ground that the witness is fabricating or embellishing, a prior consistent statement may be admitted to rebut the attack (the "oath-helping" doctrine, narrowly applied). *Per* **R v Blackman** (2008, 3 SCR 505): prior consistent statements are inadmissible to bolster credibility; they may be admissible only to meet an attack on veracity (e.g., recent fabrication).

**3.6 Civil Hearsay**

In civil cases, many provinces have modified hearsay rules by statute (e.g., Ontario Evidence Act, s. 51) allowing broader admission of hearsay where a party satisfies the judge that notice is given and the hearsay is reliable. The principled approach also applies in civil cases.

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### 4. Opinion & Expert Evidence

**4.1 Lay Opinion Rule**

Lay witnesses must testify to facts, not opinions. Exceptions (narrow):
- **Opinions on common matters**: a lay person may give opinions on matters of common knowledge (e.g., sobriety, identity, speed). These are admissible because expertise is not required and cross-examination can test the witness's basis.
- **Collective facts**: a lay person may express an opinion that combines several observations (e.g., "the person looked sick").

*Rule*: Lay opinions on matters requiring specialized knowledge (medical diagnosis, structural engineering, accident reconstruction) are inadmissible.

**4.2 Expert Evidence: The Mohan Four-Part Test**

**R v Mohan** (1994, 2 SCR 9): Expert evidence is admissible only if:

1. **Relevance**: Is the expert evidence logically relevant to a fact in issue?
2. **Necessity**: Is the expert evidence necessary to assist the court? The test asks whether the subject matter requires specialized knowledge beyond the knowledge of a lay judge or jury.
3. **Absence of exclusionary rule**: Is there a common-law or statutory rule that excludes the expert evidence? (E.g., evidence of the ultimate issue was historically excluded; modern Canadian law permits it with caution.)
4. **Qualified expert**: Is the person qualified to give expert evidence? Qualification is based on training, experience, education, expertise, and the witness's ability to apply that expertise to the facts at hand.

*Application*: A forensic accountant may testify as to the methodology of investigating fraudulent transactions; the expert need not have been personally involved in the investigation if trained and experienced in the discipline.

**4.3 Independence & Impartiality (White Burgess)**

**White Burgess Langille Inman v Abbott and Haliburton** (2015, 2 SCR 182): Expert witnesses must meet a high standard of impartiality. The expert owes a primary duty to the court, not to the party retaining them. Courts must:
- Examine the expert's potential for bias (financial interest, prior involvement with the party).
- Require a detailed acknowledgment of the expert's duty to the court in the expert report or affidavit.
- Assess whether the expert's opinions are objective or appear tailored to the retaining party's case.

*Consequence*: An expert whose work is transparently aimed at supporting one party's interests may have their evidence excluded or given minimal weight, regardless of qualifications.

**4.4 Novel Science & Daubert Concerns**

Canadian courts are skeptical of novel or emerging scientific techniques. While the Daubert standard (used in U.S. courts) is not formally adopted, Canadian courts apply similar scrutiny via the Mohan test (necessity + reliability). Courts examine:
- The technique's scientific basis and acceptance in the relevant discipline.
- The technique's error rate and the existence of standards.
- Whether the technique has been subjected to peer review.
- The technique's track record in similar cases.

*Per* **R v Truscott** (2017 appeals, post-conviction hearing): DNA evidence and probabilistic statistics are subject to rigorous testing on methodology, laboratory protocols, and statistical interpretation.

---

### 5. Character Evidence & Similar Fact

**5.1 The Propensity Rule**

Evidence of a person's character or a propensity to commit a type of crime is generally inadmissible. Rationale: a character trait does not make a fact more or less probable in a direct, logical way; the jury may use character evidence as a shortcut to guilt ("bad person, guilty as charged"), which is prejudicial.

**5.2 Character of the Accused**

The accused may introduce evidence of good character, which is admissible. In response, the Crown may rebut by calling evidence of bad character. Rules:
- Character evidence is admissible only on the central issue (guilt or innocence), not on collateral facts.
- Evidence is limited to reputation or opinion; specific acts are not admissible unless they are convictions or are inherent to a similar fact or credibility analysis.

**5.3 Character of the Complain/Victim**

In sexual assault cases, evidence of the complainant's sexual history or reputation is subject to strict procedural safeguards:

**Criminal Code, s. 276 (rape shield rule)**: Evidence of the sexual activity of the complainant is inadmissible except where:
- The evidence relates to sexual activity with the accused (to rebut a Crown allegation of lack of consent).
- The evidence is so relevant to consent that its exclusion would impair the accused's right to make full answer and defence, and a threshold of relevance and probative value is met on a voir dire.

**R v Barton** (2019, 2 SCR 579): Refined the scope of s. 276, emphasizing that the provision reflects constitutional values of fairness and equality. The courts must carefully scrutinize evidence offered to show that a complainant has a propensity to consent or to be untruthful, even if not directly about sexual history. The threshold for admissibility under s. 276(1)(b) is high.

**5.4 Similar Fact Evidence**

Evidence of other wrongdoings (acts, charges, or convictions not alleged in the current charge) is admissible only in narrow circumstances:

**R v Handy** (2002, 2 SCR 908): Similar fact evidence (also called "bad act" evidence) is admissible if:
1. **Probative value on the issue**: The evidence has significant probative value on a fact in issue (e.g., identity, modus operandi, identity of the perpetrator, absence of innocent explanation).
2. **Prejudicial effect does not substantially outweigh probative value**: Applying the Seaboyer balancing test, the danger of a jury convicting based on propensity is not overwhelming.
3. **Cogency and circumstances**: The evidence is cogent and its probative value is not diminished by the chronological or factual distance between the alleged act and the act charged.

*Application*: Evidence that the accused committed a similar sexual assault 10 years prior may be admissible if the method and circumstances are strikingly similar and the probative value on identity or modus operandi is high. Courts are reluctant to admit such evidence.

**5.5 Prior Convictions & Credibility**

A witness's prior conviction may be used to impeach credibility in cross-examination. The test from **R v Seaboyer** (1991) applies: the conviction is admissible if its probative value on credibility is not substantially outweighed by its prejudicial effect. Convictions for dishonesty (fraud, perjury, theft) are generally admissible; convictions for violence or drug offences are admissible if probative of a pattern of unreliability.

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### 6. Witnesses & Competence

**6.1 Competence & Compellability**

**Competence**: Is the person capable of giving evidence? The modern rule (per **R v Marquard**, 1993) is that virtually all persons are competent to testify, including children, persons with intellectual disabilities, and those with memory issues. A witness is incompetent only if:
- They cannot understand the nature of an oath or affirmation.
- They cannot communicate intelligibly.
- They cannot understand questions or give responsive answers.

**Compellability**: Can the witness be forced to testify?
- **General rule**: Most witnesses are compellable; they can be subpoenaed and required to give evidence.
- **Exceptions**:
  - **Spouse of the accused (criminal)**: At common law, a spouse was not compellable for the Crown (though compellable for the defence or in civil cases). Statutory reforms vary by province; modern law generally makes spouses compellable in serious cases (violence, sexual assault).
  - **Accused**: The accused is generally not compellable to give evidence; they have the right to remain silent (s. 11(c) Charter). However, if they choose to testify, they are subject to cross-examination.
  - **Children**: A child is compellable but their competence is subject to the **Marquard** test (understanding oath, communicating, responding).

**6.2 Oath, Affirmation, Unsworn Evidence**

Witnesses must be sworn or affirmed before testifying:
- **Oath**: A sworn promise to tell the truth, often with religious language ("I swear by Almighty God").
- **Affirmation**: A solemn promise to tell the truth, without religious language, available to those with conscientious objection to oaths.
- **Unsworn evidence**: A child or person of reduced capacity may give unsworn evidence if the court is satisfied they can communicate and understand the importance of truthfulness. Per **R v Thacker** (2003, 1 SCR 596): unsworn evidence is admissible if the child understands the significance of telling the truth and the details of the alleged events, even if the child does not understand the oath.

**6.3 Direct Examination, Cross-Examination, & Browne v Dunn**

- **Direct examination**: The party calling the witness asks non-leading questions to elicit the witness's account.
- **Cross-examination**: The opposing party may ask leading questions designed to test credibility, accuracy, and consistency.

**Browne v Dunn rule** (1893, or its modern articulation per **R v Lyttle**, 2004): During cross-examination, a solicitor must put to a witness any material fact that the cross-examiner intends to rely upon as inconsistent with the witness's evidence. Failure to do so may result in the court drawing an adverse inference (the fact was not disputed) or the opposing party being permitted to call rebuttal evidence to contradict the witness. The rule applies strictly in criminal cases; more flexibly in civil cases.

**6.4 Credibility: Prior Inconsistent Statements, Oath-Helping, Collateral Evidence**

**Prior inconsistent statements**: If a witness is shown to have made a statement inconsistent with trial testimony, the statement may be put to the witness in cross-examination to impeach credibility. Under the **Khelawon** principled approach, if the statement is to be relied upon as true (not just to undermine credibility), hearsay analysis applies.

**Oath-helping**: A prior consistent statement is generally inadmissible to bolster credibility. Per **R v Blackman** (2008): prior consistent statements may be admitted only to rebut a specific attack on credibility (recent fabrication, bias, motive to lie), and even then, the statement must predate the alleged bias or motive.

**Collateral evidence rule**: Evidence on a collateral (minor, tangential) fact is inadmissible. A collateral fact is one that is not directly material to the issues in the case. The rule prevents trials from becoming bogged down in side disputes. However, if a collateral fact is genuinely material to credibility or a central fact, it is admissible.

**6.5 Corroboration**

**Historical corroboration requirements**: Canadian law historically required corroboration (supporting evidence) for the testimony of certain vulnerable witnesses (children, sexual assault complainants). These requirements have largely been abolished. Per **Criminal Code**, the outdated requirement for corroboration in sexual offences has been removed (though common-law warnings about the danger of convicting on uncorroborated evidence remain in force).

**Judicial warnings on corroboration**: A trial judge may (and, in some cases, must) warn the jury about the danger of convicting on the uncorroborated evidence of a witness with a motive to lie or with credibility issues. These are not legal requirements but judicial safeguards.

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### 7. Identification Evidence

**7.1 Eyewitness Reliability: Turnbull & R v Bardales**

Eyewitness evidence is inherently fallible. Courts apply strict scrutiny to in-court identification based on the witness's memory of a fleeting encounter:

**Turnbull test** (UK, adopted in Canada): A trial judge must conduct a detailed examination of the quality of the eyewitness identification, considering:
- The length of the observation.
- The distance and lighting conditions.
- Whether there were special features or distinguishing marks.
- The time between the observation and the identification.
- The witness's level of attention during the observation.
- Whether the witness had expressed certainty in a prior identification.

**R v Bardales** (2009, 2 SCR 627): Clarified that the Turnbull test applies in Canada and that the trial judge has a duty to warn the jury about the dangers of eyewitness evidence and to instruct the jury on proper scrutiny of the identification.

**Judicial instruction**: A trial judge should instruct the jury that identification evidence can be unreliable despite the witness's confidence or sincerity, and should direct the jury to examine the factors listed above.

**7.2 Dock Identification**

Identification in court (dock identification) is generally less reliable than prior identification out of court (photo array, line-up, hospital bedside). A trial judge should warn the jury of the special danger of dock identification, as the accused is now readily visible and may be the only person in the dock.

**7.3 Photo Arrays & Voice Identification**

- **Photo arrays**: Identification of a person from a photo array is generally admissible if the array is conducted fairly (no biasing or suggestive procedures). The witness's confidence and the time taken to make the identification are factors.
- **Voice identification**: Lay witnesses may identify a person by voice if they were familiar with the person's voice prior to the incident (e.g., a telephone conversation with a friend). Expert voice identification is rare and subject to the Mohan test for necessity and reliability.

**7.4 DNA & Forensic Identification**

DNA evidence is highly probative. However, courts scrutinize:
- The laboratory's protocols and quality assurance.
- The match probability and the statistical basis for concluding a match.
- The possibility of contamination or human error.

Per **R v Truscott** (2017): DNA evidence must be presented with clear explanation of what the evidence does and does not prove, and the jury must be instructed on the proper interpretation of match probabilities.

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### 8. Confessions & Statements to State Agents

**8.1 The Confessions Rule: Ibrahim Rule & R v Oickle**

Confessions and statements to persons in authority are presumed inadmissible unless the Crown proves voluntariness:

**The Ibrahim rule** (1914, adopted in Canada): A confession is admissible only if it is voluntary, meaning:
1. It was not obtained by threats or inducements.
2. It was not made under circumstances of oppression.
3. The confessant was aware of their right to remain silent (modern, post-Charter requirement).

**R v Oickle** (2000, 2 SCR 3): Refined the test for voluntariness:
- **Threats or inducements**: The Crown must show that no threats or inducements operated on the mind of the accused. An inducement is an offer of hope of benefit (leniency, reduced charges).
- **Oppression**: The Crown must show that the atmosphere of interrogation was not oppressive. Oppression is assessed from the perspective of a reasonable person in the accused's circumstances.
- **Mental vulnerability**: If the accused suffers from mental illness, intellectual disability, or other vulnerability, the Crown must demonstrate heightened care in the interrogation.
- **Charter rights**: Post-Charter, the Crown must show that the accused was aware of their right to silence and that the interrogation did not exploit that right.

**Application**: A confession obtained after the accused asked for a lawyer and was not provided access to counsel is presumed involuntary and is inadmissible.

**8.2 Voir Dire Procedure**

A confession is admitted only after a **voir dire** (trial within a trial):
1. The trial judge hears evidence from the Crown (usually the police officers who conducted the interrogation) and the accused (if the accused chooses to testify).
2. The trial judge applies the **Oickle** test and determines whether the confession is voluntary.
3. If the trial judge finds the confession is voluntary, it is admitted and the jury hears it.
4. If the trial judge finds the confession is involuntary, it is excluded and the jury never hears it.

**Burden**: The Crown bears the burden of proving voluntariness on a balance of probabilities.

**8.3 Statements to Persons in Authority**

A "person in authority" is someone in a position to influence the accused or to carry out threats implicit in the authority of their position (police, correctional officers, sometimes informers). A statement to a person in authority is presumed inadmissible unless voluntariness is proved. Statements to non-authorities (friends, family, strangers) are admissible even if not voluntary, though they may be excluded under the Seaboyer balancing test if prejudicial effect outweighs probative value.

**8.4 Charter s.10(b) Right to Counsel**

**s.10(b) of the Charter**: Upon arrest or detention, a person has the right to be informed promptly of the reason for the arrest/detention and the right to consult with counsel without delay.

- **Violation consequences**: If police breach s.10(b) by interrogating the accused after the accused requests counsel (and before counsel is provided), any resulting statement is presumed inadmissible under **s. 24(2) of the Charter**.
- **Remedy**: A trial judge may admit a s.10(b)-breaching statement under the **Grant test** (s. 24(2), discussed below) only in rare cases where the breach is minor or other factors weigh heavily in favour of admission.

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### 9. Privilege & Exclusionary Rules

**9.1 Solicitor-Client / Legal Professional Privilege**

Solicitor-client privilege is the most fundamental common-law privilege. Communications between a client and their lawyer (or legal advisor), made in confidence for the purpose of obtaining legal advice, are protected from disclosure:

- **Scope**: The privilege applies to communications about past, present, or future legal matters.
- **Ownership**: The privilege belongs to the client; the lawyer cannot waive it.
- **Exceptions**: Privilege is lost if:
  - The client waives it (voluntarily or inadvertently discloses privileged material).
  - The communication is made in the presence of third parties (not agents of the lawyer or client).
  - The communication is made for the purpose of furthering a crime or fraud.
  - The communication is subject to a court-ordered disclosure (rare; requires showing of necessity).

Per **R v Campbell** (1999, 1 SCR 565): Solicitor-client privilege is robustly protected and courts are reluctant to pierce it, even in criminal investigations.

**9.2 Litigation Privilege (Work Product)**

Litigation privilege protects materials created for the purpose of litigation:
- **Scope**: Documents, notes, and work product created by a lawyer (or at the lawyer's direction) in contemplation of or during litigation are protected.
- **Rationale**: Allows lawyers to gather evidence and prepare a case without fear of disclosure to the opposing party.
- **Limitations**: Litigation privilege is narrower than solicitor-client privilege; it applies only to materials created for litigation and may be lost if the litigation is abandoned or concluded.

Per **R v Shubley** (1990, 1 SCR 3): Work product privilege is recognized but is subordinate to the Crown's duty of disclosure in criminal cases.

**9.3 Spousal Privilege & Spousal Incompetency**

**Common law**: At common law, a spouse of the accused was incompetent to testify for the Crown in criminal cases. This rule has been modified by statute in most provinces:
- **Modern law**: A spouse is generally compellable to testify in serious offences (violence, sexual assault, abuse) and in civil cases.
- **Spousal privilege**: Even if compellable, a spouse may claim a privilege over confidential communications made during the marriage. This privilege is narrower than solicitor-client privilege.

**9.4 Public Interest Immunity / Crown Privilege**

The Crown (usually represented by the Attorney General) may claim public interest immunity over documents whose disclosure would be contrary to the public interest:
- **Class immunity**: Certain classes of documents (national security, Cabinet confidences, police informer information) are protected.
- **Content immunity**: Even if a document is not in a protected class, its disclosure may be contrary to the public interest (e.g., revealing investigative techniques).

Per **R v Tutton** (1989, 1 SCR 1296): The court may order disclosure of documents claimed to be covered by public interest immunity if the public interest in disclosure outweighs the public interest in non-disclosure.

**9.5 Informer Privilege**

The Crown (or the informer) may refuse to disclose the identity of an informer. This privilege is grounded in public policy: protecting informers encourages cooperation with law enforcement and protects informers' safety.

Per **R v Wiebe** (1990, 1 SCR 1091): Informer privilege is not absolute; a trial judge may order disclosure of an informer's identity if:
1. The information is the only evidence available that can exonerate an innocent accused.
2. The Crown cannot satisfy the trial judge (on a voir dire) that the information was reliable and properly investigated.

**9.6 Settlement Privilege (Without Prejudice)**

Statements made in the course of settlement negotiations or compromise discussions are protected from disclosure in subsequent proceedings. The privilege encourages settlement and candor in negotiations.

Per **R v Mead** (2003, 1 SCR 279): Settlement privilege applies to both civil and criminal contexts; it may be invoked by either party and is not waived by disclosure to a third party unless the third party is involved in the negotiation.

**9.7 Wiretap / Electronic Surveillance Evidence**

Evidence obtained through wiretaps, video surveillance, or other electronic monitoring is subject to statutory regulation (Criminal Code, Part VI). Wiretap evidence is admissible only if:
- A judge issued a wiretap authorization based on reasonable and probable grounds.
- The authorization was strictly complied with.
- The evidence is relevant and not excluded under s. 24(2) of the Charter.

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### 10. Illegally Obtained Evidence & Charter Remedies

**10.1 The Grant Test: s. 24(2) Analysis**

**R v Grant** (2009, 2 SCR 353): Illegal or unconstitutional evidence may be admitted under s. 24(2) of the Charter if its exclusion would not achieve the remedial purposes of the Charter. The test has three branches:

1. **Seriousness of the breach**: How serious was the Charter violation? Courts examine:
   - The nature of the right breached (right to silence, s.10(b), search without warrant are serious breaches).
   - The manner of the breach (deliberately flouting a rule is more serious than an isolated accident).
   - Good faith on the part of police (police acting in good faith to enforce a law later struck down is less serious).

2. **Impact on Charter-protected interests**: Was the evidence "conscriptive" (obtained from the accused's own statement or body) or "non-conscriptive" (obtained independently, e.g., a weapon found after an illegal search)? Conscriptive evidence is more likely to be excluded because it violates the accused's privacy and bodily integrity.

3. **Society's interest in the adjudication of the merits**: Would the admissibility of the evidence undermine the administration of justice (public confidence in the justice system)? Courts consider:
   - The importance of the evidence (is it the only evidence, or is there other evidence available?).
   - The reliability of the evidence (is it probative or speculative?).
   - The seriousness of the offence charged.

**Application**: A statement obtained in violation of s. 10(b) (right to counsel) is usually excluded because the breach is serious, the evidence is conscriptive, and excluding the statement does not substantially undermine the administration of justice. A weapon found as a result of an illegal search may be admitted if the police acted in good faith and the evidence is crucial to determining guilt.

**10.2 Derivative Evidence & Conscriptive vs. Non-Conscriptive Distinction**

**Derivative evidence** (or "fruit of the poisonous tree"): evidence that is causally derived from an illegal search, seizure, or statement. If the primary illegal act (e.g., an illegal search) would have been excluded under s. 24(2), evidence derived from that act may also be excluded.

**Conscriptive vs. non-conscriptive**:
- **Conscriptive**: Evidence compelled or derived from the accused's own body or statements (confessions, statements to police, bodily samples, breath samples). Highly protected.
- **Non-conscriptive**: Evidence obtained independently of the accused's participation (weapons found, stolen goods located). Less protected.

Per **R v Stillman** (1997, 1 SCR 607): Evidence that is conscriptive should be excluded unless the Crown can show that the accused would have voluntarily provided the same evidence regardless of the breach. Non-conscriptive evidence may be admitted under the Grant test even if derived from an illegal act.

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## Summary of Key Cases

| Case | Year | Citation | Core Holding |
|------|------|----------|--------------|
| R v Mohan | 1994 | 2 SCR 9 | Four-part test for admitting expert evidence (relevance, necessity, absence of exclusionary rule, qualified expert) |
| R v Oickle | 2000 | 2 SCR 3 | Refined confessions rule: voluntariness test examines threats, inducements, oppression, vulnerability, Charter rights |
| R v Khan | 1990 | 2 SCR 531 | Principled approach to hearsay: necessity + reliability can overcome categorical exclusion |
| R v Smith | 1992 | 2 SCR 915 | Refined hearsay principled approach; detailed examination of declarant's circumstances |
| R v Handy | 2002 | 2 SCR 908 | Similar fact evidence admissible if highly probative on a central issue and not substantially prejudicial |
| R v Grant | 2009 | 2 SCR 353 | Three-part test for excluding illegally obtained evidence: seriousness, Charter impact, administration of justice |
| R v Barton | 2019 | 2 SCR 579 | Refined scope of s. 276 rape shield rule; strict scrutiny of evidence of sexual history or propensity |
| White Burgess v Abbott & Haliburton | 2015 | 2 SCR 182 | Expert witnesses must owe primary duty to court; detailed examination of impartiality and absence of bias |
| R v Khelawon | 2006 | 2 SCR 772 | Hearsay exclusion is not categorical; principled approach examines necessity and reliability |
| R v Lifchus | 1997 | 3 SCR 320 | Beyond reasonable doubt standard: proof to degree that reasonable person would act without hesitation |
| R v Seaboyer | 1991 | 2 SCR 577 | Sexual assault evidence (s. 276); also establishes relevance/admissibility balancing framework |
| R v Marquard | 1993 | 1 SCR 615 | Competence of witnesses: almost all persons are competent; child witnesses assessed on understanding oath and communication |
| Browne v Dunn | 1893 | 6 App Cas 67 | Cross-examiner must put material contradictory facts to witness; applied in Canadian law per R v Lyttle (2004) |
| R v Blackman | 2008 | 3 SCR 505 | Prior consistent statements inadmissible to bolster; admissible only to rebut attack on veracity |
| R v Bardales | 2009 | 2 SCR 627 | Eyewitness identification: Turnbull test applies; trial judge must warn jury of dangers |
| R v Truscott | 2017 | Appellate decisions | DNA evidence: laboratory protocols, match probability, and proper jury instruction on interpretation |