Such that absent collaboration, it would be an affront to common sense to suggest that the similarities were due to coincidence
Similar fact evidence may be admissible where it tends to prove identity (Straffen, Arp) through the degree of distinctiveness or uniqueness that exists b/n the commission of the crime and the similar act (Arp)
-may be one distinctive detail (“signature”) or cumulative effect of several similarities
Sraffen:acc charged w murder of little girl. evidence that acc murdered two other little girls in similar circs admissible b/c it tended to prove identity.
Handy: acc charged w sexual assault causing bodily harm, and issue was consent. Similar fact evidence from incidents involving ex-wife deemed inadmissible b/c different circs + Crown failed to show that evidence not tainted by collusion.
Principles from Makin:
Crown may not lead evidence of “similar bad acts” by acc merely to show acc is type of person likely to commit the offence charged BUT
Fact that evidence tends to show commission of other crimes does not render it inadmissible if it is relevant to an issue before the jury
Facts may be relevant if they bear upon whether acts were designed or accidental, or to rebut a defence
If, as a matter of law, there was prima facie evidence that the acc committed the act charged, evidence of similar acts became admissible (R v. Smith – women dead in bathtubs)
This is the only way you can use evidence of acc’s character to prove guilt
Civil Context (Mood Music)- SFE admissible if logically probative, provided
Not oppressive or unfair to other side
Other side had notice and is able to deal with it
Process for Assessing Similar Fact Evidence
Assessing Probative Value of SFE
Identify the non-character issue
Consider purpose for which evidence is proferred this is key to balancing
Relative importance of issue is a consideration in balancing PV and PE
-SFE virtually conclusive of minor issue may still be excluded for PE
Assess cogency of evidence. Factors (Handy):
i. similarity in details, distinctive features, similarity of circs
ii. proximity in time (in Handy, incidents w wife deemed too remote)
v.any other factor tending to support or rebut the unity of past acts and conduct now in question.
Consider potential for collusion
Not incumbent on D to prove collusion
Where air of reality to collusion, Crown must satisfy judge on BoP that SFE not tainted by collusion
If evidence amounts to no more than opportunity to collude, best left with jury
Evaluate the strength of the similar fact evidence
Usually this is left to ToF, but where admissibility dependent on PV, judge must consider credibility of SFE in their role as gatekeeper
Assessing Prejudicial Effect
Two kinds of prejudice:
1) Moral Prejudice – potential stigma of “bad personhood.” Consider:
i. inflammatory nature of similar acts
ii. seriousness of the SFE relative to charge (in Handy incidents w wife more serious)
2) Reasoning Prejudice
i. potential confusion & distraction of jury from actual charge
ii. potential for undue time consumption
iii.revulsion and condemnation might deflect dispassionate analysis
iv.unfairness in trial process where acc denies SFE
Balancing
Starting point: SFE presumptively inadmissible
Crown must establish on BoP that PV outweighs PE
No inverse relationship/common measurement btw PV and PE
What is relative importance of issue?
Can Crown make the point w less prejudicial evidence?\
Jury Charge (Arp) Jury should be directed:
To avoid relying on the prohibited inference
Not to punish past misconduct
On appropriate, non-prohibited use of evidence
Not to use evidence unless they are satisfied that the similar fact incident occurred
On frailties of SFE
Where inference depends on coincidence reasoning, to consider whether the apparent coincidence can be explained away by collaboration or contamination btw witnesses
CLASS PRIVILEGES
Privilege: protects certain info from disclosure in court, even though its relevant and probative
Evidence that meets requirements of privilege inadmissible unless holder waives privilege
Two types of privilege:
Class privilege – eg. solicitor-client, informer, spousal
Presumption of inadmissibility (R v. McClure, quoting R v. Gruenke)
Rationale: overriding policy reasons (R v. McClure quoting R v. Gruenke)
Case-by-case privilege – doc-patient, journalist-informant, religious communications
Solicitor-client privilege: primary form of class privilege to which others compared
Formerly a rule of evidence, now a substantive (but not constitutional) principle of law
Client may waive, but choose to do so knowing they have privilege which can be waived – waiver may be implied “I did it b/c my lawyer told me to” but waiver limited to relevant part
Applies only to communications (written or oral), not objects
Permanent privilege, even after death
You can still defend client who admits guilt to you, just can’t lead evidence known to be false
Note overlay of professional ethical concerns
Policy reasons (Foster Wheeler, SCC):
Preserve relationship of trust btw lawyers and clients
Preserve full and frank communication btw lawyer and client
Preserve existence and effective operation of Canada’s legal system
Pritchard v. Ontario: in-house counsel protected by privilege when acting in capacity as counsel
Exceptions:
Criminal purpose
Communications criminal in themselves or for crim purpose not protected, regardless of whether lawyer acting in good faith (Descoteaux)
Must be something to suggest that the advice facilitated the crime or that the lawyer otherwise became a dupe or a conspirator (Campbell)
Rarely used due to difficult issues of proof
Public safety (very rare): lawyer may warn an identifiable person about a specific threat posed by a client – scope of disclosure determined by the threat itself
Smith v. Jones criteria:
Clarity of risk
Seriousness of risk – bodily harm or death, serious psychological harm
Imminence of risk
Innocence at stake
McClure application: accused must establish each element on BoP
Threshold test. Acc must establish:
Information sought in solicitor-client file not available in any other source
Acc otherwise unable to raise RD of guilt
Substantive test:
Stage 1: acc must establish evidentiary basis on which to conclude there is a communication that could raise a RD difficult b/c you don’t have info to begin with
Stage 2: judge will examine file to determine whether there is something in the solicitor-client communication that is likely to raise a RD
NB: McClure applications difficult and rare (R v. Brown)
Litigation privilege (Blank v. Canada): protects work done by counsel in preparation for litigation
Rationale: ensure efficacy of adversarial process
Protects:
Docs, objects or communications, including communications w 3rd parties
Prepared (gathered, copied, or annotated) by counsel or ppl under counsel’s direction
For dominant purpose of existing, contemplated, or anticipated ligitation
Ends when:
litigation (or related litigation) ends
you want to tender the evidence in court
to get around this, acc may use right to make full answer and defence (lower standard than innocence at stake)
applies to self-represented litigants
obligation to disclose client’s docs is on client – can’t get around this by slipping them in laywer’s file
Settlement Privilege: protects communication btw parties for purpose of settlement – “without prejudice”
Rationale: strong public interest in favour of dispute settlement
The Wigmore Test (Slavutych v. Baker- tenure form sheet) for case-by-case privileges:
The communication must originate in a confidence that it will not be disclosed
Confidentiality must be essential to full & satisfactory maintenance of the relation btw the parties
Relation must be one which in the opinion of the community ought to be sedulously fostered
The injury to the relation by disclosure of the communications must be greater than the benefit thereby gained for the correct disposition of the litigation
Religious Communications (R v. Gruenke)
No CL prima facie privilege for religious communications – religious communications not inextricably linked to justice system as solicitor-client communications are (R v. Gruenke)
Gruenke: woman convicted of murder based on admissions made to church pastor - communications failed first step of Wigmore test. Lack of formal confession not fatal, but strong indication of parties’ expectations.
Psychatrist-Patient Communications (M.(A.) v. Ryan)
Apprehended possibility of disclosure does not necessarily negate privilege (M. (A.)v. Ryan
M.(A.) v. Ryan: woman sexually assaulted by therapist, goes to another therapist. She sues first therapist for damages, and he demands product of second therapists notes. Notes found to meet requirements of case-by-case privilege.
Yes, confidential.
Fear of disclosure did not negate fact that confidentiality essential
Widely accepted that its in interests of victim and society to obtain this kind of help
Interests served by protecting communications:
-injury to ongoing relationship
-effect on others seeking similar treatment
-effect on society of lack of treatment of victims
-privacy interests of person claiming privilege
-inequalities which may be perpetuated by disclosure
BALANCED AGAINST
-need to find the truth
-D’s right to answer P’s case (but less compelling in civil context
-questionable relevance? Other sources?
4. Media/Journalist privilege (R v. National Post)
a. Not a class privilege – a case-by-case analysis informed by Charter freedom of expression right
Considering the Wigmore criteria:
#1: source’s insistence on confidentiality as a condition precedent to disclosure is essential to the privilege
#3: Introduces some flexibility in the court’s evaluation of different sources & different types of “journalists”
#4: does most of the work – need to weigh countervailing public interest
PRIVILEGE AGAINST SELF-INCRIINATION
Privilege Against Self-Incrimination
Charter, s.13 (overtakes other provisions): A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.
Purpose: protect ppl from being indirectly compelled to incriminate themselves (R v. Henry)
Given difficulties of separating out inferences of credibility and guilt, interpret provision so that incriminating evidence not be admissible in other proceeding, as under s.5(2) (Henry)
CEA, s.5(1)&(2): no witness excused from answering Qs that incriminate/establish liability, but if witness objects + would have been excused under CL, then answer not admissible in evidence against him in another crim proceedings except for perjury/contradictory evidence.
NB doesn’t automatically apply, but must be invoked
BCEA, s.4(2)&(3): same as CEA, except evidence not admissible in civil proceeding or proceeding under any Act.
R v. Henry: accused tells a different story at retrial, Crown uses prior inconsistent testimony to impeach credibility, and acc convicted again. Acc invokes s.13. Principles:
Above provisions reflect a Quid pro quo: state gives protection in exchange for testimony (Henry)
If acc does not testify at his trial, Crown cannot lead his testimony from an earlier proceeding (Dubois) against Charter s.11c)
If acc does testify, his testimony as compellable witness at previous proceeding cannot be used against him (overturns Noel which allowed testimony to impeach credibility)
If accused does testify, his testimony as a non-compellable witness (ie. Acc) at previous proceeding can be used to cross-examine him, and ToF may draw inferences not only about credibility but about guilt. (broadens Kuldip, which only allowed evidence to impeach credibility)
Binnie J: to allow acc to tell a diff story seems like a long stretch from important purpose of s.13
Henry gives greater protection for those compelled to testify at previous proceedings, and less protection for acc who has willingly testified at previous proceedings
Charter, s.7: PFJs provide protections against self-incrim, separate from s.13:
Use of immunity (as discussed in Henry)
Derivate use immunity – protects acc from use of evidence gathered on basis of compelled testimony does not apply if evidence otherwise discoverable
Constitutional exemptions – in very limited circs, may allow witness not to answer Q (reversion to CL) – eg. where predominant purpose of calling witness is to incriminate for prosecution
COMMON LAW CONFESSIONS RULE
Statements of Accused (not under oath)
Three areas of concern:
CL confession rule
Accused right to silence (s.7)
Accused right to counsel (s.10) we didn’t cover this)
Common Law Confessions Rule: No statement by acc admissible in evidence against him (either in lead or XE) unless shown by prosecution BRD to have been a voluntary statement, in sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised/held out by PIA (R v. Boudreau, quoting from HL Ibrahim v. Queen)
Rationale:
Historically the main concern was reliability, but broader in post-charter era now seeks to protect acc rights and promote trial fairness (R v. Singh)
protecting rights of acc w/o unduly limiting society’s need to investigate and solve crimes (R v. Oickle)
Two themes: exercise of free will in speaking, preventing unfairness/disrepute of justice system (R v. Singh)
Only applies to statements made to PIA –otherwise Crown need not prove voluntariness (Rothman)
Person in authority: subject test – did acc reasonably believe person to be a PIA? (Rothman)
To be a PIA, must have some power over acc in terms of prosecution
R v. Rothman (pre-Charter): guy makes incriminating remarks to undercover cop in cell. Cop not PIA, so statements inadmissible w/o proof of voluntariness. Dissent: test for voluntariness should include appreciate of circs of making statement. Acc elected not to speak to PIAs.
If voluntariness not conceded, must be a voir dire. Evidence from voir dire cannot be introduced in main trial w/o consent of both parties.
Post-Charter the rule is broader
includes the right to silence (R v. Singh)
The rule is a PFJ (R v. Singh)
Voluntariness Considerations (R v. Oickle- post Charter):
Threats or promises operating as inducements
Voluntariness requires absence of inducements strong enough to raise a RD that will of suspect overborne. Must consider strength of inducement w regard to individual + their circs in overall contextual analysis of voluntariness (Spencer)
Quid pro quo by interrogators is a factor to consider(Oickle), but see above
Fact specific + depends on credibility of acc and PO
Eg. PO say need answers before bail involuntary, PO says getting mad involuntary, PO say better to answer Qs + wouldn’t be good if you’re lying voluntary
Must consider condition of person in determining this (Ward v. The Queen)
Atmosphere of oppression
Factors:
-deprivation of food clothing (R v. Serack), water, sleep, medical attention
-denying access to counsel
-excessively aggressive, intimidating questioning for prolonged period
-fabrication of evidence (but this itself not necessarily improper some trickery allowed)
Lack of operating mind
acc must know what he is saying, and that he is saying it to a PO who can use it to his detriment (R v. Oickle)
Acc need not be capable of making a good/wise choice (R v. Whittle–guy w inner compulsion to confess found to have operating mind)
Appalling police trickery
Distinct inquiry w objective of maintaining integrity of justice system
Confessions induced by PO trickery so appalling that it would shock the community should be excluded
First three parts to be considered as a combined inquiry; last part distinct.
R v. Oickle: confession of arsonist found voluntary – inducements not strong enough, atmosphere not oppressive enough.
R v. Spencer: confession of robber found voluntary. No offer made for leniency to g/f and inducement of visit w g/f not strong enough.
Absent statutory compulsion, everyone has right to remain silent in face of PIA questioning, whether detained or not (R v. Turcotte)
Freedom to choose extent of cooperation w PO – may provide none, some or all info
Voluntary interaction w PO does not constitute waiver of right to silence
No duty to speak to PO, therefore failure to do so irrelevant no PV
Silence rarely admissible as post-offence conduct
Right would be illusory if decision not to speak to police could be used as evidence of guilt
When evidence of silence admitted, jury must be instructed that it cannot be used to support inference of guilt in order to contradict intuitive impulse to conclude silence is incompatible w innocence
Constitutional Right to Silence
R v. Hebert: first recognition of right to silence as s.7 Charter right
S.7 right to silence founded in confessions rule and privilege against self-incriminations. Unifying theme: a person in the power of the state in the course of the criminal process has the right to choose whether to speak to the police or remain silent
Essence is that suspect be given a free choice to speak or refuse to speak to PIA (Hebert)
R v. Hebert: same situation as Rothman, with different result post-Charter
R v. Singh: discusses overlap btw s.7 right to silence and CL confessions rule
Innocent bystander killed by shooting in pub. Acc asserts right to silence 18 times, but identifies photo of himself in face of persistent PO questioning. Acc admits confessions voluntary.
OVERLAP:
s.7 right and voluntariness rule both manifestations of principle against self-incrimination overarching principle of crim justice system
in both cases, focus is on conduct of PO + whether it prevented acc from exercising free will – objective test but consider characteristics of acc
s.7 right to silence and CL confession rule functionally equivalent where person is detained and knows they are speaking to a PIA. In this situation, CL rule more favourable to acc, b/c Crown must prove voluntariness BRD.
Voluntariness determinative of s.7 right to silence and visa versa
DIFFERENCES:
S.7 right to silence applies only upon detention (unlike confessions rule) undercover operations pre-detention not a violation of s.7 (Hebert, Singh)
Onus on Crown to prove voluntariness BRD, whereas onus on acc to prove Charter violation and to prove exclusion warranted on BoP
S.7 violated where acc XEd about why he didn’t give statement to PO
S.7 violated where undercover cop actively elicits statement from acc (but confessions rule doesn’t apply b/c acc does not know it’s a PIA)
If you are not detained but knowingly speaking to PIA, confession rule applies but s.7 doesn’t.
RIGHT TO SILENCE
Right to be silent is not right not to be spoken to PO need some leeway
PO may question & persuade acc after counsel retained
Again, need to strike balance btw acc right to choose when to speak and society’s interest in pursing crim investigations
S.7 right to silence imposes limits on state power over detained acc
Ultimate Q is whether acc exercised free will – persistent questioning in face of repeated assertions of right to silence may show they didn’t but is not determinative
DISSENT
Fish, J: No means no!!
EXCLUSION OF EVIDENCE UNDER SECTION 24(2)
Charter, Section 24(1): anyone whose Charter rights infringed may apply for remedy
Jurisdiction: must apply to court of competent jurisdiction (ie trial court or superior court, not bail or prelim hearing court)
Standing: s.24(2) provides remedies only to those whose own Charter rights have been infringed (Edwards- drugs in g/f’s apt)
Charter, Section 24(2): where court finds that evidence obtained in a manner that infringed Charter rights, evidence will be excluded where established that admission would bring administration of justice into disrepute
Obtained in a manner:
Causal connection not strictly required take generous approach
Key Q: is there a sufficient connection, given temporal, contextual and causal factors for it to be said the evidence has been tainted by the breach?
Eg. strip search for impaired driving considered sufficient connection
Test for bringing admin of justice into disrepute (R v. Grant): Court must consider 3 lines of inquiry:
The seriousness of the Charter-infringing conduct
-about respect for the Charter
-consider pattern of abuse – series of infringements? (Cote)
-if evidence otherwise discoverable, tends to make conduct more serious shows flagrant disregard for Charter
The impact of the breach on Charter-protected interests of accused
-eg. level of privacy violation differs from one search to another
-evidence otherwise discoverable weakens this line of inquiry
Society’s interest in the adjudication of the case on its merits
-is evidence reliable?
-how important to case?
-seriousness of offence? cuts both ways
Court must balance the above assessments to determine whether, considering all the circs, admission of the evidence would bring the administration of justice into disrepute
R v. Grant: firearm not excluded from evidence. Charter infringing conduct not deliberate/egregious, interests significant but not most serious, gun highly reliable and essential to determination on the merits.
Old Test (Collins)
Would admitting the evidence adversely affect trial fairness?
Was the Charter breach a serious one?
Would the exclusion of evidence bring the admin of justice into greater disrepute than admission?
Definitions:
Conscriptive evidence: acc compelled to incriminate himself at behest of state by means of statement, body, or bodily samples
-under Stillman, automatic exclusion of conscriptive evidence
Derivative evidence: acc conscripted against self which then leads to discovery of real evidence
Otherwise discoverable: evidence which could have been discovered by alternative non-conscriptive means or would have inevitably have been discovered
CIVIL vs. CRIMINAL CONTEXTS: KEY DIFFERENCES
Burden of Proof
Jurisdiction
Special protections for accused in criminal context (presumption of innocence, character evidence, involuntary confessions etc)
Discovery – bilateral in civil system, unilateral in crim
Experts – more procedural rules + presumption against oral expert testimony in civil system
Notice – much more stringent requirements in civil sphere
Notice to admit – deemed admissions in civil sphere where party doesn’t answer notice to admit, but not so in crim
Reading in discovery, interrogatories – can read pre-trial transcripts at civil trials
Affidavits – much more frequently used in civil context – used more than leading testimony
