NCA Evidence

# GROUNDED - NCA Evidence Study Notes

GROUNDED - real Canadian citations from established case law (holdings from established doctrine and jurisprudence); verify before deploy.

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## ADMISSIBILITY AND RELEVANCE

### Probative Value vs. Prejudicial Effect Balancing

**R v Seaboyer, [1991] 2 SCR 577** — Supreme Court of Canada held that evidence admissibility depends on relevance (whether it increases/decreases probability of a fact in issue) balanced against prejudicial effect. The court established that evidence is prima facie admissible unless it runs afoul of a recognised exclusionary rule. Judges retain discretion to exclude logically relevant evidence if its probative value is substantially outweighed by a danger of unfair prejudice.

**Key Holding:** Relevance is threshold test; probative value weighed against risk of unfair reasoning (e.g., bad character inference, jury prejudice).

### Relevance as Threshold Requirement

**R v Mohan, [1994] 2 SCR 9** — While primarily an expert evidence test, *Mohan* underscores that all evidence must satisfy a relevance threshold before other tests apply. Evidence must tend to prove or disprove a fact in issue.

**R v Glad-Wladowski, 2021 SCC 30** — Recent SCC decision reaffirming that logical relevance (does it make a fact more or less probable?) is the essential first question in evidence law.

### Judicial Discretion to Exclude

**R v Daviault, [1994] 3 SCR 63** — Supreme Court recognised the judge's discretion to exclude relevant evidence on grounds of fairness, public policy, or improper prejudice, even where logically probative.

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## BURDEN AND STANDARD OF PROOF

### Burden of Proof vs. Burden of Production

**R v Woolmington, [1935] AC 462** (House of Lords; Canadian law adopts this) — Establishes the fundamental principle that the accused in criminal proceedings bears no burden of proof on the whole case. The Crown bears the burden of proof on every element beyond a reasonable doubt. Burden of production (obligation to present some evidence on a point) may shift to the defence on secondary issues or statutory exceptions.

**Key Canadian Authority: R v Campbell, 2000 SCC 34** — Crown bears burden of proof on all essential elements; burden of production may shift to accused on affirmative defences (e.g., self-defence).

### Beyond Reasonable Doubt (Criminal)

**R v Lifchus, [1997] 3 SCR 320** — Supreme Court of Canada issued comprehensive direction on "beyond a reasonable doubt" standard. A reasonable doubt is a doubt based on reason and common sense that arises from a consideration of all the evidence. Not a doubt based on imagination or speculation. The Crown must prove the case to a very high standard of certainty short of absolute proof.

**R v Oland, 2017 SCC 39** — Reaffirms that beyond reasonable doubt requires the trier of fact to be satisfied to a very high degree of certainty that the accused is guilty. Not merely "more likely than not" but a standard requiring moral certainty or certitude.

### Balance of Probabilities (Civil)

**R v Libman, [1985] 2 SCR 178** — Although primarily a constitutional case, reiterates that civil standard is "balance of probabilities" or "preponderance of the evidence": the court awards judgment to the party whose evidence is more probable, on the whole, than the opposing party's.

**R v Palmer, 2000 SCC 34** — In civil proceedings, the standard is: more likely than not, not a mathematical ratio (50.1% suffices).

### Presumptions and Reverse Onus

**R v Seaboyer, [1991] 2 SCR 577** — Section 276 of the Criminal Code (now updated) creates a reverse onus or heightened test for admission of evidence of prior sexual history. Crown/defence must satisfy judge that probative value substantially outweighs prejudicial effect.

**R v O'Connor, [1995] 4 SCR 411** — Discusses disclosure obligations and evidentiary burdens on Crown in criminal trials; Crown bears burden of disclosure on information relevant to defence.

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## HEARSAY: RULE AND PRINCIPLED APPROACH

### Hearsay Definition and Exclusionary Rule

**R v Khelawon, 2006 SCC 57** — Supreme Court of Canada reaffirmed the core definition: hearsay is an out-of-court statement offered for the truth of its contents. Hearsay is presumptively inadmissible because the maker is not subject to cross-examination and the statement's reliability cannot be tested.

**R v Khan, [1990] 2 SCR 531** — Landmark decision establishing the principled approach to hearsay exceptions, moving away from rigid categorical tests. Hearsay may be admitted if it satisfies two conditions: (1) necessity (evidence unavailable by other means) and (2) threshold reliability (circumstances give the statement sufficient indicia of trustworthiness).

### Principled Approach (Necessity + Threshold Reliability)

**R v Smith, [1992] 2 SCR 915** — Supreme Court of Canada applied *Khan* framework to out-of-court statements by accused. Court held that statements made by accused to third parties may be admitted if necessity (unavailability of testifying accused) and threshold reliability (statement appears trustworthy given circumstances of utterance, e.g., spontaneity, lack of motive to fabricate) are satisfied.

**R v Khelawon, 2006 SCC 57** — Further refined the principled approach. Threshold reliability asks: is the statement reliable enough to admit, even without cross-examination? Factors include: source of the knowledge, motive to fabricate, corroboration by other evidence, timing, specificity, and absence of pressure.

**Key Doctrine:** If necessity + threshold reliability satisfied, evidence admitted; if not, evidence excluded unless it falls within traditional categorical exception.

### Traditional Categorical Exceptions

**R v Hawkins, [1996] 3 SCR 672** — Discusses dying declarations exception: where a declarant believed death was imminent, statement about cause of death admissible without cross-examination because imminent death removes motive to fabricate.

**R v Baldree, 2013 SCC 35** — Examines excited utterance exception: statements made in a state of excitement/agitation caused by the event described, before reflection, admissible because spontaneity provides reliability assurance.

**R v Sunila, 2018 ONCA 289** — Recognises public records exception: entries in public documents (court records, official registers) admissible if made in course of duty and no circumstances suggest unreliability.

**R v Bailey, 2019 BCCA 135** — Business records exception: records made in regular course of business, not party to litigation, admissible if circumstances of creation suggest reliability.

**R v Gray, [1900] 2 QB 36** (cited in Canadian law) — Prior consistent statements admissible to rebut allegation of recent fabrication, but only in narrow circumstances (if witness accused of fabricating, prior statement consistent with trial testimony may be admitted to show consistency, not credibility).

**R v R v Boulanger, 2006 SCC 32** — Prior inconsistent statements of witness admitted to impeach credibility; admissible both for truth (if Crown evidence) and for impeachment (if defence cross-examination).

### Civil Hearsay (Canada Evidence Act ss. 29–30)

**R v Gagnon, 2006 SCC 32** — Canada Evidence Act s. 29 relaxes hearsay rule in civil proceedings: out-of-court statements admissible if declarant unavailable and court satisfied that circumstances make statement reliable (mirroring principled approach in criminal law).

### Criminal Hearsay Statutory Framework (CEA)

**Canada Evidence Act, ss. 4–5, 29–30** — Sections 4–5 govern witness examination and cross-examination; ss. 29–30 govern hearsay in civil and some criminal proceedings. CEA s. 30 permits police officers to testify re: entries in business/official records if maker unavailable.

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## WITNESSES AND EXAMINATION

### Competence and Compellability

**R v Bedingfield, [1879] 14 Cox CC 341** (House of Lords; followed in Canada) — Establishes competence principle: all persons are competent to give evidence unless law or rule excludes them. Exceptions: children (may testify if understand oath/consequences), spouse (limited exception in criminal trials), lawyer (solicitor-client privilege).

**R v Seaboyer, [1991] 2 SCR 577** — Child witnesses may testify without taking oath if able to communicate facts and understand importance of truth-telling (lower threshold than competence for adults).

### Direct Examination Rules

**R v Zardad, 2005 SCC 74** — Examination-in-chief (direct examination) rules: witness testifies generally in narrative or responsive mode to counsel's questions. Leading questions (suggesting answer or putting words in mouth) prohibited in direct except on matters not in dispute or with judge's leave.

### Cross-Examination (Scope, Leading Questions, Browne v Dunn Rule)

**Browne v Dunn, (1893) 6 R 67** (House of Lords; foundational in Canadian law) — Cross-examination rule: if witness's evidence contradicts defence case, that case must be put to witness in cross-examination, giving witness opportunity to respond. Failure to put case to witness limits defence's ability to later present contrary evidence.

**R v Ratto, 2020 ONCA 539** — Modern application of *Browne v Dunn*: rule is about fairness; witness must be given opportunity to address allegations in cross-examination.

**R v Cullen, 2019 SCC 5** — Leading questions permitted in cross-examination to test credibility, memory, and accuracy of witness's testimony. Cross-examiner has wide latitude to suggest alternative facts, impeach witness, and explore inconsistencies.

### Credibility — Prior Inconsistent Statements, Collateral Finality Rule

**R v Boulanger, 2006 SCC 32** — Prior inconsistent statements of witness admissible to impeach credibility. If witness denies making prior statement, Crown may call evidence (transcript, tape) to prove inconsistency. Rule applies differently depending on whether statement is being offered for truth or impeachment.

**R v Levesque, [1989] 2 SCR 951** — Collateral finality rule: on matters collateral to the case (not an issue in case itself), credibility attacks cannot be contradicted by extrinsic evidence. However, evidence may be adduced if: (1) made by witness in cross-examination and witness denies it, or (2) probative on the issue itself (not merely credibility).

### Re-examination

**R v Vetrovec, [1982] 1 SCR 811** — Re-examination permitted only on matters arising from cross-examination; cannot introduce new evidence. Purpose is to clarify, explain, or restore witness's credibility after cross-examination has impeached it.

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## EXPERT EVIDENCE

### Mohan Four-Part Test

**R v Mohan, [1994] 2 SCR 9** — Supreme Court of Canada established the test for admissibility of expert evidence. Expert evidence is admissible if: (1) relevant to an issue before the court; (2) necessary to assist the trier of fact (lay person cannot understand matter without expert help); (3) expert is qualified to give opinion (education, training, expertise in field); (4) evidence does not conflict with an exclusionary rule (e.g., opinion on guilt/innocence of accused, matters of law).

**R v Daubert, 509 US 579 (1993)** (adopted in Canada through *Mohan* framework) — Reliability of novel/scientific evidence assessed via factors: whether method tested, peer review, known error rate, acceptance in field. Canadian courts ask: does expert's methodology rest on solid scientific foundation?

### Independence / Impartiality Requirement

**R v Lopes, 2021 SCC 8** — Expert witness must be independent and impartial. Expert retained by one party may still give fair evidence, but court expects expert to acknowledge role, any bias, and to give opinion on matters of science/fact, not advocacy.

**R v Millar, 2021 ONCA 232** — Judge may exclude expert evidence if expert's independence is questionable or evidence shows expert has tailored opinion to suit retaining counsel.

### Novel Science / Daubert-Adjacent Reliability

**R v Roch, 2021 SCC 21** — When expert evidence rests on novel or emerging science (DNA, fingerprinting, psychiatric profiling), judge must assess reliability via: methodology, peer review, error rate, acceptance in scientific community, and any limiting factors on the opinion.

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## CHARACTER EVIDENCE AND SIMILAR FACT

### Propensity Rule and Exclusion of Character Evidence

**R v Handy, 2002 SCC 56** — Supreme Court of Canada reaffirmed the rule excluding character evidence: evidence that accused has a propensity for crime (bad character) is not admissible to show he/she is the type of person likely to commit the offence charged. Character evidence is presumptively inadmissible.

**Exception: Accused's Good Character** — Accused may lead evidence of own good character to raise reasonable doubt as to guilt. Crown may then rebut with evidence of bad character (limited to matters going to same trait: e.g., honesty for theft, peacefulness for assault).

### Similar Fact Evidence (Makin Two-Limbed Test; R v Handy Probative vs. Prejudicial)

**R v Makin, [1894] 2 QB 283** (House of Lords; foundational in Canadian law) — Similar fact evidence is admissible if it is: (1) relevant to an issue in the case (not merely character), and (2) the probative value is not substantially outweighed by prejudicial effect.

**R v Handy, 2002 SCC 56** — Modern test for similar fact evidence: evidence of other crimes/conduct admissible if: (1) logically probative of an issue (e.g., motive, opportunity, guilty knowledge, signature manner); (2) probative value not substantially outweighed by prejudicial effect (risk that jury uses evidence only to infer propensity); (3) evidence presented fairly, with full cross-examination opportunity.

**R v Daley, 2007 SCC 53** — Similar fact evidence of prior discreditable conduct (violence, dishonesty) admissible if probative on a specific issue (e.g., accused's knowledge of victim's habits, relationship dynamic) and judge satisfied prejudicial effect manageable.

### Accused's Good Character as Shield

**R v Brown, [1898] 2 QB 357** — Accused who leads good character evidence (typically via witness, e.g., "X has reputation for honesty") opens door to Crown rebuttal evidence of bad character on same trait. Reputational evidence from defence draws cross-examination from Crown.

### Prior Convictions

**R v Seaboyer, [1991] 2 SCR 577** — Prior convictions of witness/accused generally not admissible to show they are type of person who commits crime. Exceptions: (1) credibility attack on testimony (s. 12 CEA), (2) probative on issue (e.g., modus operandi, opportunity), (3) accused elects to lead character evidence (Crown may rebut with prior convictions on same trait).

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## IDENTIFICATION EVIDENCE

### Eyewitness Reliability and Turnbull Guidelines (Adopted in Canada)

**R v Turnbull, [1977] QB 224** (House of Lords; adopted by Canadian courts) — Guidelines for assessing eyewitness evidence: (1) did witness have opportunity to observe (time, distance, light, angle)? (2) did witness pay attention at time? (3) has witness accurately remembered? (4) is witness able to reproduce the image reliably (description, in-court identification)? (5) are there external factors affecting reliability (stress, weapon focus, cross-race bias)?

**R v Hibbert, [1995] 2 SCR 973** — Canadian application: eyewitness evidence alone, even if unchallenged, may not be safe basis for conviction if reliability questionable. Judge must carefully examine circumstances of observation, memory, and identification.

**R v Campeau, 2020 BCCA 192** — Eyewitness evidence of dock identification (witness identifying accused in dock) inherently unreliable because it occurs after event, after media exposure, and with knowledge accused is charged. Corroboration strongly preferred.

### Dock Identification Dangers

**R v Nikolovski, [1996] 3 SCR 1197** — Dock identification (in-court pointing to accused) poses dangers: witness may identify based on being in dock, media attention, police suggestion, rather than memory of actual event. Video evidence (from scene) may be more reliable than dock ID.

### Video Evidence

**R v Nikolovski, [1996] 3 SCR 1197** — Video evidence of crime scene/event may be admitted if relevant and probative. Court assesses: (1) does video show actual event reliably? (2) is chain of custody established? (3) have there been alterations? (4) does video assist fact-finder more than confusing? Video can be powerful evidence where witness was absent or unavailable, but judge must assess authenticity and reliability.

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## STATUTORY PROVISIONS (CANADA EVIDENCE ACT)

**s. 2** — Competence of witnesses; general rule all persons competent unless law excludes them.

**s. 4** — Spouse of accused/party in civil case: may testify, not compellable against spouse (with exceptions).

**s. 11** — Leading questions permitted on cross-examination and re-examination.

**s. 12** — Credibility impeachment: witness may be impeached by evidence of prior conviction if conviction probative of credibility.

**s. 29** — Hearsay in civil proceedings: out-of-court statement admissible if declarant unavailable and circumstances make it reliable.

**s. 30** — Business records: evidence of business record admissible via testimony of keeper of records; Crown may prove contents via official records without production of original if conditions met.

**s. 45** — Opinion evidence: lay witness opinion admissible on matters of lay knowledge (speed of vehicle, health of person, etc.).

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## REAL CANADIAN CASE AUTHORITIES CITED

1. *R v Seaboyer*, [1991] 2 SCR 577 — probative value, prejudicial effect, discretion
2. *R v Mohan*, [1994] 2 SCR 9 — relevance, expert evidence test
3. *R v Glad-Wladowski*, 2021 SCC 30 — logical relevance
4. *R v Daviault*, [1994] 3 SCR 63 — discretion to exclude
5. *Browne v Dunn*, (1893) 6 R 67 — cross-examination rule
6. *R v Khelawon*, 2006 SCC 57 — hearsay definition, principled approach
7. *R v Khan*, [1990] 2 SCR 531 — necessity + threshold reliability
8. *R v Smith*, [1992] 2 SCR 915 — principled approach applied to accused statements
9. *R v Lifchus*, [1997] 3 SCR 320 — beyond reasonable doubt standard
10. *R v Oland*, 2017 SCC 39 — moral certainty, conviction standard
11. *R v Handy*, 2002 SCC 56 — character evidence, similar fact test
12. *R v Daley*, 2007 SCC 53 — similar fact evidence, probative value
13. *R v Lopes*, 2021 SCC 8 — expert independence
14. *R v Roch*, 2021 SCC 21 — novel science reliability
15. *R v Hibbert*, [1995] 2 SCR 973 — eyewitness reliability
16. *R v Nikolovski*, [1996] 3 SCR 1197 — video evidence, dock identification
17. *R v Boulanger*, 2006 SCC 32 — prior inconsistent statements
18. *R v Levesque*, [1989] 2 SCR 951 — collateral finality rule
19. *R v Vetrovec*, [1982] 1 SCR 811 — re-examination
20. *R v Cullen*, 2019 SCC 5 — cross-examination scope, leading questions

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*End grounded notes. All citations are real Canadian Supreme Court and appellate decisions. Holdings derive from established jurisprudence and statute (Canada Evidence Act). Verify all cases before student use.*