Evidence Outline Berger 2008

Evidence Outline – Berger – 2008 1

Key Features of CL - complexity: low degree ordering, process not intuitive - prophylactic: focus on keeping out bad info - dedicated to structure of analysis

Principles Behind CL Features - attempt to make trial shorter - adversarial mode creates scepticism of evidence intro’d - if have lay adjudicators, need rules to keep them impartial

SOURCES, OBJS, TRIAL CONTEXT

Fundamental rules of evidence 1) relevant evidence is presumptively admissible unless subject to some exclusionary rule

2) evidence is relevant if (1) ls logically relevant: makes the fact more or less likely in the trial, and (2) is material (is in issue in the trial) - residual discretion: evidence whose PP>PV is inadmissible - create reasons for excluding otherwise relevant, admissible evidence - admissibility: QofLaw for judge - weight: QofFact for finder of fact (judge or jury)

3) Intrinsic exclusionary rule: - related to the quality of the evidence - when PP > PV, will distort reasoning of the finder of fact

4) Extrinsic exclusionary rule: - nothing to do with the quality of the evidence - related to policy or process - value or social goal to be protected (privilege, reputation of the judiciary, etc.)

Sources of law of evidence 1) CL: in response to issues 2) Statutes: fed and prov 3) Constitution: Charter 4) AB law? Rules of evidence in tension

Direct vs Circumstantial Evidence Direct – witness testifies to fact; accepting evidence leads to accepting conclusion Circumstantial – witness provides info from which you can draw inference that fact is true; accepting evidence can still lead to other concls

Types of Evidence Oral (viva voce) – evidence of live witness Documentary – record or affidavit Real – physical evidence Demonstrative – reconstruction of scene/action Evidence Outline – Berger – 2008 2

MECHANICAL ISSUES OF PROOF

Burdens of Proof: Onus – who must prove Standard – how much proof 1) Evidentiary: sufficient evidence to put point at issue 2) Persuasive: a. BofP in Civil mostly, sometimes higher eg. fraud b. PBRD in Crim  Charge jury (Lifchus) - P: Linked to presumpt of innocence, ā presence or absence of evidence - Always lies w/ Crown - Not frivolous/imaginary doubt - GR: Absolute certainty > PBRD > ∆ probably guilty  after Lifchus, courts retreat in Starr - GR: substantial compliance w/ Lifchus - P: allow some flexibility for judges

Trial Context 1) Motions @ beginning or throughout: voire dire 2) Plf/Crown’s case in chief i) Opening statement ii) Adducing evidence iii) X exam iv) Redirect v) Close 3) Motions for directed verdict i) Directed verdict of acquittal – in crim, no evidence on which jury could convict ii) Insufficient evidence motion – in civil case, if not enough evidence for liability; judge assesses and decides the case 4) Def’s case in chief (same as Plf’s) 5) Rebuttal/reopen by plf/Crown, if something new - right of surrebuttal by def - Close by def 6) Closing statements - Civil: plf then def - Crim: def then Crown, unless def did not intro evidence (s. 651 CC)

WITNESSES - CL trial based on calling witnesses  evidence comes in through witness on stand - GR: everyone is assumed to be competent, if you are competent then you are compellable (R v. McGinty) - QofLaw - Competency: can they testify  P: capacity to observe, capacity to recollect, capacity to underst questions and frame intelligent resp, moral responsibility (Kendall) - Compellability: can you force them to testify - EX: when CL sees them as inherently unreliable - ∆, until 1890’s  s. 4 CEA: all ∆ are competent witnesses for defence, not crown! - Spouses, felons, children - Some not compellable: lords, foreign diplomats, judges  TR: restrict incompetency rules - Rebut w/ privilege: a competent, compellable witness might not be able to testify to smth - Usually if c and c for one side, are for other too Evidence Outline – Berger – 2008 3

Oaths - P: to get a hold of witness’ conscience

Federal – CEA - s. 13: power to take an oath - s. 14: solemn affirmation alternative to oath - s. 15(2): persons taking solemn affirmation can be prosecuted for perjury

Provincial – BCEA - s. 20: solemn affirmation for civil trials - s. 21: no religious belief or diff religious belief does not invalidate oath

Spousal Competency Federal - CEA - applies to married partners, regardless of sex o Jackson: does not apply to CL couples. May be changed? But courts trying to restrict exceptions - CL Ps: - Protect matrimonial harmony - “natural repugnancy” or “indignity” - Sometimes are same person (in Salituro, struck down by Couture) - Spouses interests same, so if one is in compellable, so is other (in Salituro,struck down by Couture) - Now legislated: - GR: s. 4.1: spouses are competent for defence; subject to: - EX: ss. 4.2, 4.4: policy reasons to override on type of charge eg. prostitution, sexual, children - EX: s. 4.5: CL exceptions (Couture) o Salituro: after irreconcilable separation, spouse is competent witness for Crown  show on BofP o P: nothing left to protect o F: what does “irreconcilably separated” mean?  no reas possibility of reconciliation o P: CL must shift to reflect society; but must be incremental changes o Schell: threats against spouse/children makes them competent - EX: s. 4.3: privilege - GR: s. 4.6: cannot comment on spouse’s failure to testify - Couture: can police use spouse’s previous statement? Concern is admissibility vs spousal protection  P: fear of undermining spousal incompetency protection rationales  will not allow if this is the case  P: fear of police institutionalizing practice to get around rule  TEST: from an objective standpoint, would admitting statement be disruptive of matrimonial harmony or give rise to natural repugnance?  GR: no spouse can be forced to testify by prosecution nor can any of their pre-trial statements be introduced where it would give rise to spousal incompetency  Iac: need CH complaint to repeal whole statute  otherwise, court should not be changing legisl

Provincial – BCEA - GR: s. 6: both parties and spouses competent and compellable - S. 7: spouses of parties competent and compellable

Children & Adult Competency Federal - CEA - P of competency that we are concerned about: capacity to observe, recollect, understand & answer q and moral responsibility (Kendall) - at CL, children not competent. now legislated - if under 14: o s. 16.1(6): children may only testify under a promise to tell the truth o s. 16.1(8): testimony under promise has same effect as if given under oath o s. 16.1(2): children shall never take an oath or give solemn affirmation o s. 16.1(1): children presumed to have capacity to testify o s. 16.1(4): party seeking to challenge child’s capacity bears burden that capacity of child to understand and respond to qs is at issue  s. 16.1(5): if judge satisfied is at issue, conducts an inquiry to child’s capacity Evidence Outline – Berger – 2008 4

 s. 16.1(3): TEST: whether child can understand and respond to questions (L’HD dissent in Marquard) - for 14+ (Bill C-2: applies to adults whose mental capacity is challenged):  s. 16(5): competency of adult presumed. Party arguing not competent must demonstrate that there is issue  s. 16(1): Marquard: is witness able to communicate? o GR: McL: need more than bare ability to respond to q’s, includes capacity to observe, recollect, communicate o Diss: L’HD: ability to communicate = ability to respond to qs  this rule is just meant to displace idea that children inherently unreliable o s. 16.4: if cannot communicate, may not testify  Khan: can witness understand nature of oath? o NO: s. 16.3: can give evidence on a promise to tell the truth, but not oath o YES: s. 16.2: Can give evidence under oath or sworn affirmation

Provincial – BCEA - ss. 5(1)-(4) same as old CEA s. 16  no separate provision for children

∆ Competency in Crim Trial - CH s. 7: right to silence = not compellable - GR: Noble: cannot consider non-testimony as any type of evidence  error of Law o P: presump of innocence means cannot let Crown use this to get PBRD - EX: alibis are too easy to concoct o Can use refulsal to testify to knock off alibi - s. 4(6): can’t use non-testimony, but also can’t tell jury that can’t use (Francois)  is this unconstitutional in that prevents proper instruction?

RELEVANCE

- ask: what are the issues, what is the evidence offered to prove? Then, - GR: does the evidence offered, as a matter of logic & human experience, tend to prove or disprove a fact at issue? - Logical relevance: tend to prove or disprove o Watson: not ā question of sufficiency, only ā whether there exists at all a link btw evidence and fact to be proven - materiality: fact at issue o look to CC provisions for elements of offence and indictment filed by Crown o in civil case, look at pleadings - maybe contest relevance according to normative assumptions?

Watson - H: Habit of carrying gun is logically relevant to whether had gun on him on day in q - if he had a gun, theory that engaged in firefight is at least possible = material

Blackman - GR: assessment of logical relevance is ongoing, dynamic process during trial; materiality analysis is contextual - Is low bar for logical evidence

Cloutier - narcotics case. Mom accepts shipment of furniture crate from son full of marijuana. Marijuana never picked up. - Cloutier has manuscript of virtues of MJ. Issue: is manuscript relevant? - H: (maj) no “sufficiently close logical connection”  diss: raising bar? Should tie to character and not fudge relevance

Morris - Overturns Cloutier - Magazine of heroin trade in Pakistan, charged w/ importing from HK - H: evidence is relevant - GR: evidence is logically relevant when there is a connection  no degrees of relevance Evidence Outline – Berger – 2008 5

INTRINSIC EXCLUSIONARY RULES

- AFTER find relevance, go on to PV vs PP rules  always available to judge (Corbett) - If it is def’s evidence, have higher standard: is PV substantially outweighed by PP? (Seaboyer) o F: arouse jury’s emotions of prejudice, hostility, sympathy? o F: create side issue to unduly distract jury? o F: consume an undue amt of time? o F: danger of unfair surprise to the opponent who had no reas ground to anticipate issue & was unprepared to meet it o F: evidence presented in such a form as to usurp the role of the jury (Clark)

CHARACTER EVIDENCE - def’n: feature, trait, past behaviour of person that suggests they will act in certain way - bad character evidence draws inference that person is kind of person likely to have committed the crime  prohibited - character evidence is relevant (Morris) and has PV, but is often outweighed b/c of PP (Rowton) - QofLaw

Pure Character Evidence - Rowton: GR: Crown may not intro evidence whose sole purpose is to debase character of def  PP too great o P: inaccuracy – jury’s reasoning could be faulty by overreliance on character evidence o P: distortion – concern that will pick apart whole life of def - EX: if character evidence is directly relevant to an issue, eg dangerous offender hearing - EX: incidental effect b/c was intro’d for purpose of being relevant to credibility  balanced using residual discretion - EX: similar fact evidence (below) - EX: bad character evidence can be used by Crown if def has put character at issue by intro good character evidence; considered rebuttal evidence o Loggocco: ∆ is entitled to charge jury to use good character evidence to infer that they are not type of person to commit the offence (b/c of pres of innocence)  but is dangerous! o Can get ruling in advance for whether would be considered good character evidence o Still have residual discretion for PV vs PP

McNamara - Crown asks about prior bad act in x exam  def has put in evidence that invited inference that he was not type of person to commit fraud - F: simply denying allegations ≠ character - F: opening statement ≠ character - GR: character is implicitly or explicitly suggesting that that you are not type of person to commit offence  QofLaw

Baker - H: “making honest living for 4 yrs” = good character

Samuel - H: twice returned ppty to police = good character

- good character adduced by: o witness testifying to (1) general rep of character (2) in the community (Rowton) o F: cannot be personal opinion or specific acts (Rowton) o F: what community? Rowton – residential  GR: business community counts. Relevant community is any community that knows the ∆ well (Levasseur)  P: rules of evidence must expand according to exigencies of society o ∆’s own testimony: broad or incl specific good acts (McNamara) o Crown cannot draw out good character just to adduce bad character (Baxter) o Expert evidence: psych can show they are not type of person to commit the offence o GR: Mohan: can be admitted when judge satisfied that psyc can testify that ∆ or perp has distinctive psyc trait which would be of material assistance to compare  then, has to pass expert evidence hurdles (see outline pg 7) o Attacking someone else’s character  see McMillan p 6 Evidence Outline – Berger – 2008 6

- Crown responses (same as good character): o General character evidence  O(D): used specific examples of parenting o X examine o CC s. 666: Crown can give evidence of prior convictions if ∆ has put character in issue o Expert evidence: Crown can intro same evidence as def (Tierney)

Similar Fact Evidence 1. identify non-character issue 2. evaluate PV of SFE  degree of connectedness 3. evaluate PP  moral prejudice and reasoning prejudice 4. balance PV vs PP 5. if admissible, charge jury - def’n: ability of Crown to intro evidence of prior bad acts that has such high probative value - P: PV increases to overcome PP - GR: Arp – if judge allows, must charge jury that can use evidence to infer other components of crime (identity), but cannot to infer that is (bad) type of person to have committed the offence  not really useful charge? - TEST: evidence must be sufficiently compelling on relevant non-character point to overcome substantial PP that attaches to it - Makin: evidence of older murders shows prior bad acts, but shows another element of the crime (intent to kills) o F: is so strikingly similar that strongly suggests a connection btw two - F: “objectively improbably” that occurrences mere coincidence

Handy - GR: evidence of prior bad acts will be admissible if the prosecution satisfies judge on BofP that in context of the particular case, PV of the evidence in relation to a specific issue outweighs its PP :. Justifies use - F: prior bad act = any act, not just conviction (conviction more probative) - F: specific issue, or else is just regular character evidence - F: PV determined by degree of connectedness btw two events o Similarity btw details, distinctive features, circumstances of acts o Proximity in time  more time = more likely coincidence o Number of occurrences of similar acts o Intervening event o Other factors: collusion, fabrication?  would mean there is no unity btw events - F: PP o moral prejudice: general character prejudice (= kind of person likely to commit offence)  risk depends on nature of past acts o reasoning prejudice: jury will become distracted by past events - when balancing, PV doesn’t have to be so high as to decide the issue, but must be level of similarity like calling card - H: pattern of going from consensual sex to v. violent sex not sufficient to get over PV bar o PV: similarity, number past occurrences, proximity of past occurrences << PP: evidence of collusion not rebutted! Inconsistent testimony, prejudice v. high o Notice assumption that assault in marriage ≠ assault outside of marriage

Character of Other Witnesses - P: more relaxed b/c not as concerned with their liberty as with ∆ - often see in context of ∆ raising against 3rd party - when is it used: o 3rd party, eg. identity as to who committed the crime o McMillan: baby killed. ∆ intro’s evidence ā wife’s psyc condition. Crown wants to too.  H: Crown allowed to intro evidence b/c ∆ put their character into issue by comparing it w/ wife’s  F: be relevant = connection by other circumstances eg. wife had opp and didn’t want the child o Scopelliti: if ∆ puts character of others at issue in order to imply that others are more likely to commit the crime than the ∆, ∆ is putting own character at issue o Affirmative Defences: if evidence is relevant b/c goes towards proving an offence eg. provocation, self-defence, duress  still puts ∆’s character into issue o Scopelliti: ∆ claimed victim’s character were type that caused him to act in self-def  ∆ must have known of 3rd P’s character, OR have seen evidence of it for himself Evidence Outline – Berger – 2008 7

- complainants in sexual crimes: o in past, sexual history treated as prior bad acts, relevant to showing consent o Darrach: twin myths no longer relevant to consent or worthiness of belief :. NOT LOGICALLY RELEVANT o s. 276(1) CC: evidence of sexual history not admissible to show (1) higher likelihood of consent or (2) person is less worthy of belief o s. 276(2) CC: evidence may still be admitted if o is of specific instance of sexual hist o is relevant to an issue at trial, AND o significant PV is not substantially < by PP to the proper admin of justice (Seaboyer)  eg, if goes to identity of ∆ o s. 276(3): Fs for s. 276(2) o interest of justice, incl full right to answer and defence o social interest in encouraging reporting of sexual offences o reasonable prospect that evidence will assist in arriving at just determination o need to remove discriminatory belief or bias o risk that evidence may arouse prejudice, sympathy or hostility in jury o PP to complainant’s personal dignity or privacy o Right of complainant to personal security & protection & benefit of law o s. 277: general or specific evidence of sexual rep is not admissible for purposes of challenging/supporting credibility of complainant

Character in Civil Trials - GR: admissible where directly relevant (at issue, eg. defamation) - P: in civil trial, main concern is efficient res of disputes - P: diminish PV for negligent acts (no need to show “badness” to be negl) - P: in order to prevent abuse of system for publicizing ppl’s history - EX: similar fact evidence that shows similar liability in past instances  more relaxed standard o Mood Music: in civil setting, admit if (1) logically probative, (2) provided is not oppressive or unfair, (3) give other side notice

CREDIBILITY - is issue of how much weight to give evidence  QofFact - if do not testify, cred is not in issue

Your Own Witness - GR: no oath-helping b/c P is that all witnesses are presumptively credible, subject to trial processes - P: speedy trial - P: do not want to distract jury - P: is exclusive role of jury to decide issues of cred - Assessing cred: o Demeanour of witness: trier can assess relation btw interviewer and witness to determine to what extent testimony is product of interviewer’s questions (K(GB)) o In context of all evidence: in case of conflict of evidence, test of truth is harmony with preponderance of probabilities that juror would recog as reas in that place in those cond’ns (Norman) o Subjective assessments: ea person must be assessed by criteria appropriate to their mental dev, understanding and ability to communicate (W(R))  applies to mental capacity - EX: re-direct examination – to counter x exam, rehabilitate credibility by asking for more precision/details o Info must still be from pov of your witness  cannot support with info from diff person, or time/occurrence o Cannot lead new witnesses, only address issues from x exam - EX: expert evidence – provide evidence to “equip jury” w/ special info to properly asses cred of witness o GR: expert evidence that draws a concl on witness’ ultimate cred not admissible (=evidence ā cred). Only admissible if:  witness be expert in the field  lead evidence on human conduct etc that are helpful and necessary to jury’s asses (= evidence relevant to cred)  must charge jury if evidence admitted that they are still ultimate judge of cred (Marquard) o P: do not usurp role of jury by having expert offer conclusive judgement o F: is contextual know outside knowledge of jury (Marquard) Evidence Outline – Berger – 2008 8

o Kyselka: evidence of particular accused’s mental state not admissible o Marquard: evidence of how abused ppl act in general (whether they tell lies about abuse at first) is admissible); opinion of specific child’s story not admissible - EX: prior consistent statements – statements give pre-trial not acceptable b/c oath helping o P: doesn’t speak to “truth” of testimony, only consistency o Exceptions: o is to rebut allegation of recent fabrication (Girarldi)  only rebuts re: after time period first stated . Stirling: statements made prior to civil trial only rebut that he had not fabricated for purposes of civil trial, not that he had not fabricated at all . F: Giraldi: timing is significant; case of car crash when immediately had defence hijacking story o Narrative: where necessary and only as much as is necessary for unfolding of story . FJE  does not go to cred, only unfolding of events . Charge jury as to limited use of the evidence o possession of drugs/stolen ppty, ID ∆ or another o s. 275 CC: overrules presumption in use of prior consistent statements in sexual assault cases - EX: res gestae (reputation for general truthtelling) – as concession to accused o Clarke: can ask witness to testify to general reputation in the community for truth-telling  almost never happens b/c puts character at issue

Impeaching Credibility - impeach through x exam, or the same ways as establishing cred - NOTE: if you impeach, does not mean your evidence is true  only goes to weight of other witness - Lyttle: x exam is part of CH s. 7, right to full answer and defence o Limits: relevancy and reasonable assumptions; cannot harass, be too repetitious, misreresent o F: when you have no evidence but genuinely believe line of inquiry to be signif, can inquire  only on “good faith basis,” consistent w/ lawyer’s role as officer of the court o F: duty to x examine? Generally, no. - GR: Brown v Dunn: if you intend to impeach a witness, must direct them to issues through x exam  If you do not, judge must charge jury to consider this when deciding how much weight to give

Collateral Facts Rule - GR: Krause: cannot introduce extrinsic evidence against “mere inconsistencies”  limit to substantive issues or major issues in cred - you are stuck with the answer you get re: mere inconsistency (Raphael) - P: to avoid detracting from main points of case - Hitchcock: 3 kinds of impeachment o If relates to substantive issue AND credibility  not collateral o If does not relate to substantive issue but does relate to cred AND is more than mere contradiction  not collateral o If is relevant to cred AND is mere contradiction  collateral!  NOTE: does not prevent asking questions, only introducing extrinsic evidence

Prior Inconsistent Statement - P: allow witness opp to address issues before impeach - CEA s. 10(1): for recorded statements, direct witness to part of the statement to contradict and give them opp to explain - CEA s. 11: for oral unrecorded statements, same: direct them to and give opp to reply - Goes to weight, not finding of fact unless witness “adopts” prior statement

Expert Evidence (FIRST see Opinion Evidence p 7 for gen admissibility, then here for credibility) - GR: admissible when (1) information jury would otherwise not have know, (2) relevant, not ā cred (Toohey) - P: worry about confusion, that usurping role of jury - Toohey: medical evidence affecting reliability of witness testimony is admissible o F: Where trier is able to asses cred w/o help of witness, testimony is not admissible Evidence Outline – Berger – 2008 9

Prior Conviction - character evidence speaks to cred (bordering on character too) (Corbett) - towards non-∆ witness: o GR: CEA s. 12(1): can question and lead evidence on prior conviction o 12(1).1: collateral facts rule doesn’t apply: if witness refuses to answer, can lead evidence to prove o What counts as conviction: crim offences, offences against other statutes, pardons, prov offences (Green: speeding), offences in foreign countries if same offence could have been convicted here o Witness can soften blow by bringing it up themselves (Boyko) o If impeach, must charge jury that they can use for cred, but not character - use against ∆: o GR: Corbett: maj – allow as much evidence in as possible, but cannot use prior conviction to make character inference o Dissent (adopted by maj) – judge has residual discretion of PV (credibility) vs PP (character) . F: nature of prev conviction – more PV if dishonest, more PP if violent or similar conviction . F: has accused attacked crown witnesses w/ their prior convictions? . F: number of convictions – more = PP . F: how long ago – longer = less PV o Limitations . Only allowed when accused themselves take the stand (cannot lead if accused doesn’t testify) :. Different from s. 666 CC . Not to get into testimony on prior occasions, other prior conduct . “Convictions” strictly construed o ∆ can make Corbett application beforehand to help decide whether should take stand o Judge balances PV vs PP o Can revisit at any time during trial o If admitted, charge jury

Bad Reputation for Veracity - Clarke o GR: Judge has limited ability to prevent counsel from asking: (1) do you know rep of the other witness for truth in the community, and (2) is it good or bad?  cannot be excluded to impeach cred of Crown witness (as concession to accused) o P: does not tend to usurp jury’s function or distract the jury o GR: Rarely should allow question: from the rep, do you believe the witness’s testimony? b/c PP>>PV  does tend to usurp role and distract jury

Impeaching Your Own Witness - GR: witnesses can refresh their memory before trial, can also be asked ā what they did to refresh in x exam - can provide witness with any trigger (present recollection refreshed) or can have them rely on recording (past recollection recorded), then they carry on with testimony (Rathey)  to rely on past recollection recorded, must show that witness does not remember, and is reasonable that they do not,  then, witness calls on notes to aid in testimony. Not evidence in itself - CANNOT lead witness - CL: Can have witness declared hostile and treat them as opposing witness to discredit them (Coffin) - NOW CEA s. 9 overruled: can have witness declared adverse  Wawanesa: witness is adverse when they are unfavourable to your position (v broad, incl silence, inconsistency, reluctance maybe?) o S. 9(1): can have witness declared adverse, then can impeach impeach generally, or get permission to impeach w/ prior inconsistent statement o Get declared in voire dire. Judge considers demeanour, attitude, sense of credibility, alleged inconsistencies o s. 9(2): shortcut where have prior recorded statement by witness  get impeachment on prior inconsistent statement, not generally. But can use this as evidence to impeach generally under s. 9(1) too o prior inconsistent statement can be adopted by witness OR will be considered as hearsay o then, cannot admit for truth of its contents unless passes hearsay dangers (K(GB)) Evidence Outline – Berger – 2008 10

Corroboration - CL rule where some witness’ testimony inherently unreliable & needed corroboration - Now, v little use o s. 274 CC abrogates for many general crimes o s. 274 abrogates for sexual crimes - certain crimes still require to convict o s. 47 CC: treason, high treason o s. 133: perjury o s. 292(2): procuring feigned marriage - certain witnesses o s. 659 no longer requires jury charge for evidence given by children  judge retains discretion to charge (W(R))  B(G): children don’t give great evidence on particulars, so do not be as concerned for small inconsistencies o Unsavoury witnesses - Vetrovec o No more specific types of witnesses who need corroboration, only broad category of “unsavoury” o GR: When judge faced w/ (1) witness plays more than minor role in determining guilt, and there is (2) reas suspicion ā honesty, judge has capacity to issue clear and sharp warning to attract juror’s attn to risks of adopting evidence w/o more o P: to attract juror’s attn to risk, have them look for other support o F: degree of support might vary w/ degree of unsavouriness . Brooks – if witness is “really unsavoury” (eg accomplice, person v. perjury record, jailhouse informant), charge is be mandatory  failure is error of law

HEARSAY

- four compulsions of evidence: o best evidence rule: require first hand evidence [necessity] o oath is useful as good mark of truth o jury needs opp to asses witness on stand o *** ability to x exam [reliability]  are hearsay dangers (KGB) - Subramaniam o Def’n: out of court statement, offered for truth of its contents o GR: not admissible o F: declarant out of court :. Not under oath, no opp for jury to assess, no ability to x exam o F: statement = any assertive statement o F: offered for the truth of its contents = having info we are asked to believe in o F: be alive to implied hearsay o H: where statement was not offered for truth that man was a communist, but that he has asserted that he was, is not hearsay - Wildman: statement that wife called and talked about hatchet did not have to be true, only that witness told ∆ that “wife called and said child killed with hatchet” :. Not hearsay - Wright v. Tatham: statement offered for truth that deceased was of sound mind is hearsay  not really used, mostly just seen as circumstantial evidence - Wysochan: not implied hearsay when jury can draw own inferences on meaning of the statement?? o Utterances used to prove facts not admissible (hearsay), whereas those used to prove state of mind of person are (circumstantial evidence)

Principled Approach - GR: Khan – when hearsay dangers are avoided, evidence will be admitted o McL makes up principled approach b/c categorical exceptions not working! o hearsay concerns boil down to two principles . Necessity: do we need this evidence or is there better evidence? o ask whether is reas necessary: dead or cannot expect to get same evidence of same value (Smith) . Reliability: lack of tools to assess  is threshold q, not absolute (weight to be given by jury) Evidence Outline – Berger – 2008 11

o H: mother’s testimony was necessary b/c daughter found incompetent, no reason to doubt reliability b/c no impending litigation, child is guileless Evidence Outline – Berger – 2008 12

- Smith: affirmed principled appr for adults o H: where girlfriend had lied in past, concern w/ reliability :. Not admitted o F: Reliability to do w/ truthfulness and mistakenness. Can be made out by: 1. circumstantial guarantee of trustworthiness – circumstances mean no real concern re: truth 2. functional substitute for oath, observation, x exam – truth tested by other means o if concern that did not get to x exam, goes to weight o **Judges have residual discretion (PV vs PP)

Relation btw Principled Appr and Exceptions - Starr: o if fits into categories is presumptively admissible: categories are presumed to follow principled appr . can then argue that evidence should be excluded b/c does not in fact follow principled appr  categories cannot let in evidence that is contradictory to principled appr . Can also challenge categories if out of date o If does not fall into categories, just argue based on principled appr alone  in voire dire o Benefits of categories: efficiency, certainty, guidance o Benefits of principled appr: fairness, logic - Mapara restates Starr

EX: Prior Inconsistent Statement - prior inconsistent statements for their truth are hearsay unless adopted by witness - KGB: prior inconsistent statements are admissible for their truth if are both necessary & reliable o Necessary b/c no other way to get at statement o Need indicia for reliability = functional substitute from Starr: . Made under oath or solemn affirmation (voluntary) + warning of importance of telling truth . Statement videotaped in entirety or similar (for suff reliability) . Party can still access witness (so no concern re: fairness to opposed party)

EX: Prior Judicial Proceedings - s. 715(1) CC: admit prior testimony where o previous trial on same charge, or investigation of this case o evidence is otherwise inadmissible (death, absence from country  Hawkins: list is not exhaustive) o EX: unless ∆ proves that did not have full opp to x examine - Potvin: CH s. 7 challenge to s. 715(1)  accused does not have meaningful opp to x exam at prelim b/c would not want to give away case o H: s. 715 is ā opportunity to x exam :. Does not necessarily violate o Judge will have discretion to exclude evidence if . Is unfair: crown knew in advance that witness might not be available and didn’t alert defence . PV>PP o must charge jury if allow evidence, or error at law - in civil context Rule #40(4) ROC: where witness is unavailable for any legit reason, sworn testimony (at prior proceedings) is admissible so long as other side received reas warning

EX: Statements Made in Course of Duty/Business Records - Ares v. Venner: CL rule – records made in course of duty admissible if o Made reas contemporaneously o In ordinary course of duty o By persons w/ knowledge of matters o Who were themselves under duty to make record o Who had no discernable motive to misrep matter - now codified into CEA ss. 29 (financial institutions: in absence of evidence to contrary) & s. 30 (business records: if oral evidence would be admissible, business record is) - F: s. 30(12) broadly defines business  s. 30(10) NOT legal proceedings! - P: for expediency

**EX: Party Admissions** - in crim and civil, if you are party, your evidence is admissible if relevant Evidence Outline – Berger – 2008 13

- P: Evans – party can take stand to explain their statement :. No prejudice against for reason of not being able to x examine - maybe could make argument that is forcing ∆ to take stand :. Unconstitutional? EX: Spontaneous Declarations/ Res Gestae - GR: Clark – admissible if o relates to startling event/cond’n o made at point when under stress or excitement of the event/cond’n  P: if event and declaration are contemporaneous, no concern ā memory  P: under extreme stress, no opp to fabricate - critique: what about mistake?

EX: Physical Condition - GR: statement ā physical cond’n is admissible only to prove person was experiencing that cond’n at that time and for that duration - F: must be natural, not in anticipation of litigation - doesn’t apply to past expressions of phys discomfort, or explanations of why experiencing pain  narrow exception! - Critique: assumes reactions are reliable at time of occurrence

EX: Present Mental State - person explicitly describes present state of mind, broadly inter’d to incl emotion - GR: admissible for truth where relevant, made in natural manner, not under circs of suspicion - P: ppl describe their emotions truthfully - P(R): reasonableness depends on Fs including nature of the plan, proximity in time of plan and execution o H: intent to leave partner admissible as supporting MR for murder by partner; other emotions not reliable, statement of judgment vs partner was bad character evidence

EX: Statements Against Interests - P: law presumed would not make statements to hurt themselves - Pecuniary Interest: admissible for truth if o Declarant not available o Statement made against declarant’s interests o Declarants had personal know of the facts stated - Penal Interest: Demeter o Witness apprehends vulnerability to penal interest o Vulnerability is imminent concern o Look at circumstances as a whole  is statement really against penal interest? . If unclear, consider other circumstances linking declarant w/ crime & parties (ulterior motive?) o declarant is unavailable (refusal not sufficient) - Pelletier: will be considered against penal interests even if have possibility of est’ing a defence  b/c do not know that defence will succeed so still v. vulnerable - Lucier: cannot be used for incriminatory testimony, only exculpatory for ∆ - Critique: assumes ppl do not take fall for others

EX: Dying Declarations - P: if you are dying, will speak truthfully  v. narrow - Woodcock: o Certain expectation of almost immediate death o Statement concerns circumstances of death o Statement would have been admissible if deceased had been able to testify o Offence must be homicide of declarant! - Critique: not reliable cogency-wise, no consequences for declarant, presumes belief in God?

OPINION TESTIMONY

- GR: not admissible, includes expert opinion - P: role of witness is to provide facts. Role of trier of fact is to weigh evidence, make findings, form opinions based on admissible evidence Evidence Outline – Berger – 2008 14

o Concerned w/ (1) deferring to experts and (2) usurping role of jury (anyone) - Ultimate Issue Rule: cannot allow opinion evidence on an issue for finder of fact to decide (Graat)  defunct - Now CL: no strict rule of evidence  if it is helpful to the jury, it can be admitted except: o Judge’s opinion re: domestic law o Jury’s opinion re: credibility Lay Opinion - GR: Graat – lay ppl allowed to express if o F: is helpful in sense that witness was in better place to draw concl than jury  low bar to make sure jury couldn’t have just drawn that concl themselves o F: must be issue on which ord person can form opinion, w/in layperson’s knowledge or experience o F: opinion is abbreviated form of actual observations (compendious statement of facts) o F: any policy reason to exclude? - Police opinion is lay opinion b/c do not want jury to give it excessive weight vs other evidence - Est’d testimonies incl: ID of persons, handwriting, things; age; bodily state incl illness, intox; emotional state; cond’n of things eg new, worn; certain q’s of value; estimates of speed and distance (Graat)

Expert Opinion - when trier of fact does not have necessary tools to form opinion  still, only use when is helpful - experts can give regular testimony too eg. to describe what they saw/did - CEA s. 7: cannot adduce more than 5 experts on ea side w/o leave of court - GR: Mohan – criteria o Expert must be qualified  low bar, just shown to acquire special or particular knowledge through study/experience re: matters ā to testify on  also weighed under CRED to give testimony! o Overcome hearsay dangers: sufficiently relevant, weigh . Time, overwhelming jury (cost) & vs specifically relevance, **reliability (benefit) o evidence must be necessary to assist trier: more than just helpful; info outside experience & knowledge of jury o evidence not caught by other exclusionary rule - **closer evidence is to ultimate evidence, more strictly expert opinion admissions will be applied (must be more necessary, more reliable) - Lavallee: can be used to help asses whether ∆ had reas apprehension of death - D(D): expert testimony NOT admissible to counter inference that delay of reporting = fabrication  not necessary - Novel science: new or unest’d in scientific community OR courts not est’d in practicing or admitting it  techniques used before may come under new scrutiny if new knowledge changes how they were used o J-LJ Fs: . Technique can be, has been tested? . Subject to peer review, publication? . Known/potential rate of error . Generally accepted in the community - apply Mohan strictly b/c will have LOTS competing expert testimony o Mohan: must have sufficient acceptance in expert community to be reliable AND must be essential (v. high necessity) to trier of fact . H: evidence of crime being committed by sexual psychopath did not have not suff acceptance in community o Beland: polygraph does not have suff acceptance in community and is oathhelping o Trochym: post-hypnosis presumptively inadmissible  not accepted by scientific community for forensic purposes

EXTRINSIC EXCLUSIONS

Privilege - P: b/c of policy concerns, set up veil behind which law cannot go  protect valuable relationships, settings, processes, institutions - **v reluctant to recognize new categories - Privilege is a subset of confidential info  law does not care ā confidentiality, only privilege - Privilege is held by individual  only person who holds can waive! - Fs to consider re privilege: rationale behind, how it’s created, scope + duration, who holds, exceptions - Class Privileges are blanket provisions for prima facie exclusion unless shown why should not be excluded (McClure) Evidence Outline – Berger – 2008 15

- Vs individual privileges shown on case-to-case basis

Spousal Privilege - CEA s. 4(3) o Communication to spouse during legal marriage is privileged can listening spouse cannot be compelled to disclose o Charge jury re: legally married witnesses and listening spouse hold privilege ***Solicitor-Client*** - Wheeler: is not just privilege, but substantive component of our legal system - Def’n: Wigmore: o any legal advice sought (seeking, forming, giving) o from a professional legal advisor (lawyer, employees, contractors of lawyer) in their capacity as such (do not have to retain) o intended to be confidential (Solaski)  when cond’ns met, privilege attaches regardless of it claimed (Lavallee) - P: effective access to justice & quality legal advice; open & free communication; existence & efficiency of adversarial process; inherent value of personal auto (Foster Wheeler) - F: privilege is held by client - F: temporal scope: forever  survives death EX for dispute of will b/c lawyer can help give effect to client’s intetn - F: when legisl potentially conflicts w/, legisl should be read narrowly (Descoteaux) o where legisl mandated that “whole of the record” be disclosed, no privilege b/c no expectation of confidentiality (Pritchard) - F: lawyer’s bills are presumptively privileged  onus on party seeking disclosure to show would not violate confidentiality of relationship (Maranda) - F: in house counsel qualifies (Prichard) - Procedure for disclosure (Foster Wheeler) [but, remember: procedural fairness does not require disclosure!] o Onus on opposing party: Opposing party gives specific indication of nature of info sought and show that is not subject to privilege or that law allows disclosure o Must ask precise and limited qs as to info sought . Will take into acct sensitive nature to minimize violations of prof secrecy . Sound judicial policy will severely restrain this line of q - EX: Descoteaux – facilitating a criminal purpose o Whether related to financial means or legal problem itself - EX: public safety – Smith-Jones Fs o Clear risk to identifiable individ or group  long term planning? Specific method of attach? History of violence?  group may be large but must still be ascertainable o Serious bodily harm: incl psyc harm o Imminent: that reas bystander would believe would be carried out - disclosure should be limited as much as possible, to elements necessary for pub safety (Smith-Jones) - EX: innocence at stake – McClure  applied v narrowly, raise @ end of Crown’s case o Threshold: . info is not available from any other source regardless of quality (Brown) . ∆ unable to raise reas doubt as to their guilt (no other defence) o Stage 1: Brown – accused to est on evidentiary basis that communication could raise reas doubt . Since ∆ hasn’t seen evidence, use circumstances to see if there is anything that could raise o Stage 2: Brown – if basis, judge will examine file to determine whether in that communication there is smth likely to raise reas doubt . V high standard  will be exceptional circumstances when successful - only allow so much disclosure to def as is nec to raise reas doubt  crown only gets what def uses

Litigation Privilege - work done by counsel in anticipation of litigation (of non-confidential nature too so long as for purpose of lit) - held by client (Hodgkinson) - P: ensure efficiency of adversarial process – no fear of interference or premature disclosure (Blank) - P: encourage settlement (Middlecamp) - F: No relationship necessary, is zone of privacy - F: ends when litigation ends, unless ongoing proceedings w/ similar parties/issues Evidence Outline – Berger – 2008 16

- To break, show that competing public interest outweighs this privilege

Informer Privilege - applies to police informers (esp anonymous tips), NOT to reporters - P: encourage reporting of crime - P: protect informers from criminals Evidence Outline – Berger – 2008 17

- Leipert Fs: o Both crown and informer hold  both must waive o Scope: . Anything that might ID informer . EX: subject to innocence at stake & material witness, agent provocateur, unreas search (Scott) - TEST to waive: o Accused to show that w/o disclosure innocence at stake o Judge to review evidence to see if info is necessary to show innocence o Judge may edit, unless is anonymous b/c any info may give away informant  if to be disclosed, Crown has option to stay proceedings o Essential info given to ∆

Individual Privileges - where circumstances warrant, but policy considerations only allow consideration on case-by-case basis  want more evidence in, less likely to expand - Wigmore Fs: o Communication originated in confidence that would not be disclosed o Confidence essential to full & satisfactory maintenance of relation o Relation is “sedulously fostered” by community (community = society at large) o **Injury to relationship > than benefit of disclosure balanced  tension: test was developed for class privileges. If relation is so important to society, why not create a class priv? - Slavutych: professor’s written submissions privileged; university community wanted to protect = confusion? - Gruenke: no expectation of privacy for religious communications  make analysis from non-denominational - MA v Ryan: partial disclosure of psych docs best balances injury to relation and benefits of disclosure o No class privilege o In civil proceedings . Limit through: ltd number of documents, editing by court, conditions for who may see & copy . Evolve reflecting social realities . In civil, applicant needs are less weight than ∆’s needs in crim case - Third Party Record Production: o See CHART o Balance privacy rights/expectations vs ∆’s interests - Sexual Crimes: sexual offences legislated over in CC s. 278.2 (= dissent in O’Connor) + Mills o Will info be likely relevance s. 278.5(1)(b) . S. 278.3(4): 11 listed bases are insufficient on their own . (4) Any more of the following assertions by the accused are not sufficient on their own to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify: (a) that the record exists; (b) that the record relates to medical or psychiatric treatment, therapy or counseling that the complainant or witness has received or is receiving (c) that the record relates to the incident that is the subject-matter of the proceedings; (d) that the record may disclose a prior inconsistent statement of the complainant or witness; (e) that the record may relate to the credibility of the complainant or witness; (f) that the record may relate to the reliability of the testimony of the complainant or witness merely because the complainant or witness has received or is receiving psychiatric treatment, therapy or counseling; (g) that the record may reveal allegations of sexual abuse of the complainant by a person other than the accused; (h) that the record relates to the sexual activity of the complainant with any person, including the accused; (i) that the record relates to the presence or absence of a recent complaint; (j) that the record relates to the complainant’s sexual reputation; or (k) that the record was made close in time to a complaint or to the activity that forms the subject-matter of the charge against the accused.  Mills: insuff w/o some evidence . S. 278.5(1)(c): likely relevance not enough  need necessary in interests of justice Evidence Outline – Berger – 2008 18

. Balancing btw 8 factors in 278.5(2) 1. …the judge shall consider the salutary and deleterious effects of the determination on the accused’s right to make a full answer and defence and on the right to privacy and equality of the complainant or witness, as the case may be, and any other person whom the record relates. 2. Factors: (a) the extent to which the record is necessary for the accused to make a full answer and defence; (b) the probative value of the record; (c) the nature and extent of the reasonable expectation of privacy with respect to the record; (d) whether production of the record is based on discriminatory belief or bias; (e) the potential for prejudice to the personal dignity and right to privacy of any person to whom the record relates; (f) society’s interest in encouraging the reporting of sexual offences; (g) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences; and (h) the effect of the determination on the integrity of the trial process.  Mills: if uncertainty, court should err on side of production o Judge looks at info in voire dire, decide production in whole or part . Reconsider 8 factors in 378.5(2)  do not have controlling weight, just have to be considered - Other Crimes: o If Crown already has record, must be disclosed to ∆ (Stinchcombe) o O’Connor . Likely relevance  low burden, no balancing.  Close temporal connection might be sufficient b/c could show unfolding of events, therapy influencing memory, cred factors eg quality of perception, memory  ∆ must show “reasonable possibility that info is logically probative to an issue at the trial or the competence of a witness to testify” . Judge looks at evidence, decides if should be produced in part or whole. Balance:  Nec for full answer & def?  PV of record  Nature & extent of reas expectation of privacy?  Production premised on discriminatory belief or biases?  Potential prejudice to complainant’s dignity, privacy or security of person if production ordered?

Privilege Against Self-Incrim - P: based on CH s.7 PofFJ presumption of innocence and burden of crown to prove guilt BRD; CH s. 11(c) right not to be compelled to testify in one’s own trial - Statements at prior judicial proceedings: concern is that accused under oath but may incriminate themselves o CEA s. 5(1): once you take stand, but answer ALL qs, but s. 5(2) can INVOKE use immunity so crown cannot use against you later o P: trial proceedings can continue o Problem: must invoke before question, line of questions; doesn’t specify what happens w/ derivative use of info o CH s. 13 overruled: no longer require invoking, is backward looking to prev crown from using prior testimony that is self-incriminating  doesn’t apply to perjury or false evidence charge o P: Noel – CH s. 13 protection is based around compulsion  b/c we force you to testify, we won’t use the info to get indirectly what we can’t get directly o F: if have 2 nd trial and DO NOT TESTIFY, Noel applies so that 1st testimony is not admissible (Dubois) o F: if have 2 nd trial and CHOOSE TO TESTIFY, Noel does not apply b/c you were not compelled to testify at either trial (Henry) - Derivative use immunity: SJR – if other evidence would not have been discovered but for testimony, then CH s. 7 applies to protect that info . Accused only to show plausibility of tie btw evidence and testimony . Then Crown must show on BofP that evidence would have been discovered w/o testimony Evidence Outline – Berger – 2008 19

- Statements/Confessions vs Accused o CL: statements made not to persons in autho are just hearsay, admissible under party admissions rule - right to silence at trial: CEA s. 4 accused is competent witness for defence  do not have to testify o s. 4(6) judge and prosecution cannot comment on ∆’s choice to not testify  error of law - right to silence during investigation: GR – Chambers – CH s. 7: PofFJ accused has right to silence extends to investigation o P: Turcott – that silence is rarely probative of guilt o if ∆’s silence during investigation comes up, must charge jury that cannot be used to infer guilt o EX: Noble – alibi defence be used to draw inverse inference if unsupported b/c easily fabricated  still cannot comment on though = problem! o Turcott:: can infer guilt from other “post offence conduct” eg flight, concealment, resisting arrest

CL Protection for Confessions - P: generally concerned w/ reliability (realness of evidence), but fairness creeps in there  not concerned w/ derivative evidence b/c is real 1. confessions to PERSONS IN AUTHORITY - P: to protect from coercive power of the state o GR: person in authority – is person who ∆ subjectively (and reasonably) believed was in position to control or influence the proceedings against them (Hodgson)  if no belief that was person of autho, no subjective apprehension (Rothman) o P: concerned w/ reliability: if you are speaking to someone in autho, more likely to tell truth? 2. then, Crown must prove BRD that was voluntary - development: o GR: Ibrahim, Beaudreau – statement cannot be result of threat, promise or inducement by person in autho o P: concerned w/ reliability o GR: Hobbins – broadens so that in absence of threat, promise or inducement, must still show absence of oppression BRD  is reliability, but also a bit of fairness concern o GR: Ward – operating mind test, or else they were not in position to make free choice (eg. state of shock, babbling) o Hovarth: free will, full consciousness ≠ state of hypnosis - NOW GR: Oickle – voluntariness required must not have been the product of a will overborne by threat, promise or inducement (Ibrahim), oppressive circumstances eg deprivation of food, water, sleep (Hobbins), or lack of operating mind (Ward) o F: conduct of police not offended by subtle pressures/influences o F: prohibits trickery that would “shock conscience of the community” ≠ posing as rasta clergy o F: Spencer – will overborne is when ∆ is reduced to nothing more than tool of the police  based on strength of inducement, not fact of it :. Is high standard  Fish dissent: standard too high! Turns whole test into operating mind test! Should be if statement would not have been made but for TPIs o F: Whittle – voluntariness in context of criminal investigation  must know of contents and underst that evidence can be used against them

CH Protections for Confessions - concerned w/ fairness, reliability moderates - two main diffs: (1) agent of state is obj test, (2) CH must be proven by applicant on BofP - s. 10(b): on arrest or detention, have right to counsel & to be informed of right o Clarkson: until they have reas chance to exercise that right, must cease questioning o Manninnen: need reas and meaningful opp to exercise the right, till then, police must cease o Bridges: have counsel reas available, informed of free legal aid o Tremblay: accused must also make reas attempts to exercise  no rights after seeing counsel - S. 7: o Hebert: includes meaningful choice to speak to police; state must not undermine their meaningful participation o H: undercover cop in jail undermined meaningful ability to stay silent . Limits: police can continue to question after seeing counsel . only applies post-detention, must be in control of state Evidence Outline – Berger – 2008 20

. only applies to “active elicitations” by state :. Doesn’t apply to voluntary statements to cellmates o Singh: in setting when someone is (1) in custody and (2) clearly speaking to person in autho, CL and CH s. 7 protections are same . Statement need only be voluntary, Spencer style (functionality) o Fish J’s dissent: . Should be voluntariness so state cannot frustrate your decisions too!  should facilitate rights being used . CH is about what we expect from state while CL is about reasonableness  shouldn’t merge the two! . CH ought to go further than CL confession rule - s. 24(2): when evidence obtained in violation of CH and admission would bring admission of justice into disrepute  go through after s. 7 and 10 analyses to see if evidence still could be admitted - P: don’t want to encourage bad police conduct or have unfair trail - Collins test: - Step 1: o trial fairness means “continued effects of unfair self-incrimination” (Stillman) o was evidence conscriptive . statement, use of body, bodily sample  is evidence from accused . also derivative evidence: evidence by virtue of above o was it discoverable? Another legally sound source or means of finding it? Inevitable? On BofP . if both conscriptive and non-discoverable, generally excluded - Step 2: if conscriptive and discoverable, look at how serious violation was o Buhay Fs . good faith . Inadvertent or merely technical as opposed to deliberate, wilful, flagrant . Urgent or necessary circumstances? . Obtainable by other means (= gratuitous breach) . Obtrusive search? . Expectation of privacy? . Reasonable grounds to do what police did? - Step 3: exclusion bring disrepute? o F: Seriousness of offence o F: Importance of evidence to Crown’s case  More serious/important, more the exclusion would bring justice to disrepute

Common Law Confessions Rule Charter Protections Who is bound? A “person in authority” determined on An “agent of the state” determined on a subjective test. an objective test.

When is it triggered? Any time a person in authority s.10 only when the suspect is questions a suspect. arrested or detained

Protection against involuntary Yes Yes (s.7) statements? Protection of right to counsel and No Yes (s.10(b)) to be informed of this? Protection of a post-detention No Yes (s.7) “right to silence”? Burden and Standard of Proof Crown, BRD Applicant, BOP

Effect of Breach Automatic Exclusion Must go through s.24(2) analysis

Public Interest Immunities - P: to protect public interest in government processes, public good - CEA s. 37: public official can assert immunity on basis of offending public interest s. 37(1)  in federal or superior court s. 37(2), (3) Evidence Outline – Berger – 2008 21

o Oversight: Judge looks at and balances public good served in disclosure and non-disclosure o Can order: disclosure (s.37(4.1)), qualified disclosure (s.37(5)); or non-disclosure (s.37(6)). o S. 37(3) If is crim case, judge can make any appropriate order including stay of trial - s. 38 National Security eg. defence, internat’l relations o s. 38.01 obligation to disclose to AG : o potentially injurious information – information of a type that if it were disclosed could injure international relations, or national defence or national security o sensitive information – information relating to international relations or national defence or national security that the government is taking steps to safeguard o AG applies for non-disclosure, ex parte, in camera hearing, federal judge weighs pub interests  P: federal judges have expertise, limit ppl who see info, avoid inconsistent judgements, centralised bunker w/ info in Ottawa o s. 38.06 orders full/partial/non-disclosure o S. 38.13: AG can still issue a certificate for non-disclosure after judgement  cannot be appealed or overruled but is public - s. 39 Cabinet Secrecy o at CL, cabinet secrecy operates by same principles other claims of public interest immunity (Carey) o P: those charged w/ resp of governance must be free to discuss w/o fear that what they say will come under public scrutiny  cabinet confidentiality is essential to good gov’t (Babcock) o s. 39(2): broadly includes memos, discussion papers (4 yrs limit), agendas, records, draft legisl (not exhaustive list) o s. 39(1): minister or clerk of privy council can object to disclosure of cabinet secret & issue certificate  NO JUDICIAL HEARING o  cert subject to 20 yrs limit o Babcock: challenge that is absolute priv w/o oversight :. Offends rule of law . SCC: measures are draconian but is w/in parl’s capacity to pass . “balancing” still done by minister or clerk who issues cert . F: must be done by clerk/minister pursuant to bona fide exercise of power (Roncarelli) . F: can’t protect info already disclosed . F: must relate to info in s. 39(2) . Court can only review to ensure (1) falls in scope, (2) in good faith (can sometimes infer bad faith) o selective disclosure to prevent getting at truth not allowed (Roncarelli) o officials may still be x examined on nature of info (RJR MacDonald)