ACCOMPLICES Competence and Compellability Of, 20:30.10 Corroboration Warning, 34:50, 34:70.20 ACCUSED Admissions by As Hearsay Exception, See HEARSAY RULE Appeals By

INDEX

ACCOMPLICES competence and compellability of, 20:30.10 corroboration warning, 34:50, 34:70.20 ACCUSED admissions by as hearsay exception, See HEARSAY RULE appeals by. See APPEALS character of. See CHARACTER EVIDENCE compellability of. See COMPETENCE AND COMPELLABILITY; SELF- INCRIMINATION, PRIVILEGE AGAINST competence of. See COMPETENCE AND COMPELLABILITY confessions by. See CONFESSIONS court interpreter, right to. See COURT INTERPRETERS cross-examination of. See CROSS-EXAMINATION evidential burden on, 27:30 failure to testify. See ADVERSE INFERENCES innocence. See INNOCENCE persuasive burden on, 28:30 previous convictions of. See PREVIOUS CONVICTIONS prior consistent statements by. See PRIOR CONSISTENT STATEMENTS statements to sureties, 35:40.20 ADMISSIBILITY OF EVIDENCE, see also EXCLUSION OF EVIDENCE bail hearings, at, 35:10, 35:30.30.30, 35:40 circumstantial evidence. See CIRCUMSTANTIAL EVIDENCE confession. See CONFESSIONS confidential communications. See PRIVILEGE documentary evidence. See DOCUMENTARY EVIDENCE exculpatory statements, 11:40.40.20 expert opinion evidence. See EXPERT OPINION EVIDENCE lay witness opinion evidence, 12:20.10 relevance and, 4:40 Supreme Court of Canada (SCC) approach to. See SUPREME COURT OF CANADA, evidentiary reforms testimony in prior proceedings, 7:120.20 ADMISSIONS by accused. See HEARSAY RULE formal. See FORMAL AND INFORMAL ADMISSIONS

IN-1 2015—1 MCWILLIAMS’ CANADIAN CRIMINAL EVIDENCE

ADMISSIONS — continued informal. See FORMAL AND INFORMAL ADMISSIONS remand, 35:10 ADVERSE INFERENCES accused’s failure to act, from, 33:10.10 accused’s failure to testify, from, 33:10.10 accused’ silence, from, 33:10.10 alibi defence, re failure to testify, 33:10.10 late disclosure, 33:10.10 alternatives to alternative language for instructions, 33:20.20.10 Crown’s case, 33:20.20.20 defence case, 33:20.20.10 generally, 33:20 instruction as last resort, 33:20.20.10 issue preclusion, 33:20.10 reasonable doubt instruction, 33:20.20.20 removing defence from jury, 33:20.20.10 best evidence principle and, 33:20 Brown v. Dunn, rule in, 33:10.40 Canada Evidence Act, s. 4(6) prohibition, 33:10.10 comments respecting by Crown and trial judge, 33:10.10, 33:20.20.10 confession, failure to record or investigate, from, 33:10.20, 33:20.20.20 Criminal Code, s. 258(3), under, 33:10.10 dangers of, 33:20.10 defence witnesses, 33:10.50 exculpatory evidence, 33:10.60 failure to confront witness with contradictory evidence, 33:10.40, 33:20.20.10 failure to preserve or investigate evidence, from Charter s. 7 rights and, 33:10.20 confession, 33:10.20 electronic evidence, history of, 33:20 inadequate investigation, and, 33:20.20.10, 33:20.20.20 jury instructions re failure to confront witness, 33:10.40, 33:20.20.10 failure to preserve or investigate evidence, 33:10.20 missing witness, 33:10.30, 33:20.20.10 reasonable doubt, 33:20.20.20 ‘‘special’’ instruction, 33:10.40, 33:20.20.10 limited use of to assess credibility, 33:10.10, 33:20.20.10 Lyttle case, 33:10.40, 33:20, 21:30.40.50.50 application to cross-examination of defence witness, 21:30.40.50.50

IN-2 INDEX

ADVERSE INFERENCES — continued Lyttle case — continued ‘‘good faith’’ requirement, 33:20, 21:30.40.50.50 mandatory inference, 33:20 mental disorder defence, re refusal to be examined, 33:10.10 nature of, 33:20 permissive, inference, 33:10.30, 33:20 prohibited Cleghorn exception, 33:10.10 generally, 33:10.10 Marcoux exception, 33:10.10 Noble exception, 33:10.10, 33:20.20.10 Sweeney exception, 33:10.10 purpose of, 33:20 right to silence and, 33:10.10 reverse onus danger, 33:20.10 sexual assault cases delayed disclosure, 33:10.60 ADVERSE WITNESS, 21:20.30.60 ALIBI disbelief of. See CIRCUMSTANTIAL EVIDENCE disproof of, 21:50.90.20 failure of accused to give proper notice of, 33:10.10 failure of accused to testify in support of, 33:10.10 APPEALS appellate court, role of, 37:20 common law basis, 37:10 corroboration warning. See CORROBORATION evidentiary issues first raised on appeal, 37:110 balance of interests approach, 37:110 discretion to consider, 37:110 failure to object, 37:110 state of law, 37:110 strength of submission factor, 37:110 evidentiary record, applications to expand, 37:40 credibility issue, 37:40.20 Crown applications, 37:40.50 decisive issue requirement, 37:40.10 due diligence requirement, 37:40.40 effect on result requirement, 37:40.30 factors considered, 37:40 Palmer test, 37:40 evidentiary rulings, deference re, 37:100 factual errors, 37:90

IN-3 2015—2 MCWILLIAMS’ CANADIAN CRIMINAL EVIDENCE

APPEALS — continued fresh evidence, admission of, 37:30 application, re, 37:30.50 competing interests of justice, as factor, 37:30.10 criteria, 37:30.60 Crown applications, 37:40.50 Crown disclosure obligations, 37:30.30, 37:50 ‘‘interests of justice’’ factor, 37:30.10 other forums and references, 37:40.60 powers of appellate court, 37:30.20 sentencing appeals. See sentencing appeals, fresh evidence in third party records, 37:30.40 validity of trial process. See trial validity, fresh evidence re history of appellate review, 37:10 misapprehension of evidence by trial judge, 37:90 sentencing appeals, fresh evidence in, 37:70 Crown sentence appeals, 37:70.30 post-sentence good conduct, 37:70.10 social context evidence, 37:70.20 statutory right, 37:10 trial validity, fresh evidence re, 37:60 ineffective assistance of counsel, 37:60.10 undisclosed evidence, 37:50 fair trial analysis, 37:50 ‘‘reasonable possibility’’ criteria, 37:50 verdict reliability factor, 37:50 verdicts, unreasonable, 37:50, 37:80 appellate court powers, 37:80.10 grounds, articulation of, 37:80.10 inconsistent verdicts, 37:80.40 nature of findings in issue, 37:80.20 reasons for judgment, reasonableness of, 37:80.30 test, re, 37:80.10 ARREST confessions on. See CONFESSIONS AUDIO-VISUAL RECORDINGS. See REAL EVIDENCE BAIL HEARINGS admissibility of evidence issues, 35:10 Charter bail rights s. 11(e), 35:10, 35:30.10.10 evidence on review, 35:60 evidentiary requirements for release (CC s. 518(1)), 35:30 constitutional requirements, 35:30.10.10 deemed admissible evidence, 35:30.30.30 ‘‘evidence’’, nature of (s. 518(1)(e)), 35:30.10 jurisdictional limits of inquiry (s. 518(1)(a)), 35:30.20

IN-4 INDEX

BAIL HEARINGS — continued evidentiary requirements for release (CC s. 518(1)) — continued ‘‘other relevant evidence’’, 35:30.30.10 bad character evidence, 35:30.30.10 Gladue principles, 35:30.30.10

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IN-4.1 2013—1 INDEX

BAIL HEARINGS — continued evidentiary requirements for release (CC s. 518(1)) — continued ‘‘other relevant evidence’’ — continued plan for release, evidence of, 35:30.30.10 ‘‘public confidence’’, 35:30.30.10 public fear and concern, evidence of, 35:30.30.10 s. 515(10)(c) analysis, importance of four factors, 35:30.30.10 spousal or partner violence, 35:30.30.10 pre-trial delay, 35:30.30.40 nature of evidentiary inquiry contemplated by s. 525, 35:30.30.40 pre-trial detention conditions, 35:30.30.20 sworn evidence, 35:30.10 wiretap evidence (CC s. 518(d.2)), 35:30.40 generally, 35:10 inadmissible evidence, 35:40 circumstances of offence (CC s. 515(1)(b)), 35:40.10 prior acquittals, 35:40.30 statements made by accused to sureties, 35:40.20 Charter s. 7 principle against self-incrimination, 35:40.20 irrelevance, collateral fact issues and policy concerns, 35:40.20 questioning of surety as unfair use of court process, 35:40.20 onus of proof, 35:20 reasons, duty to give, 35:50 bail hearing, reasons for judgment in, 35:50.20 general principles, 35:50.10 remand admissions, 35:10 standard of proof, 35:20> BANKING RECORDS, 24:80 BURDEN OF PROOF. See EVIDENTIAL BURDEN; PERSUASIVE BURDEN BUSINESS RECORDS, 24:70 CHARACTER EVIDENCE bad character. See character; exclusionary rule, exceptions to; statutory exceptions to exclusionary rule character, defined, 9:20.10 habit vs, 9:20.40 relevance of, 9:20.20 subjective, assessment of as, 9:20.30 complainant in sexual offences. See SEXUAL OFFENCES credibility and character, 9:30.20 credibility, relevance to, 9:10.10 credibility vs. conduct, 9:20.30 Crown, limitation on, 9:10.20 defined, 9:20.40

IN-5 2015—5 MCWILLIAMS’ CANADIAN CRIMINAL EVIDENCE

CHARACTER EVIDENCE — continued exclusionary rule, exceptions to, see also statutory exceptions to exclusionary rule accused puts character in issue, 9:30.20.10.20 character of other suspects, 9:30.20.10.20 conduct of defence, 9:30.20.10.20 Scopelletti defences, 9:30.20.10.20 administration of justice issue, 9:30.20.10.10 conduct, proof of, 9:30.10 credibility, 9:30.20 drug offences, 9:30.20.10.10 inadequate police investigations, allegations re, 9:30.20.10.10 incidental to proper cross-examination, 9:30.20.10.30 lifestyle establishing involvement/means/opportunity, 9:30.20.10.10 motive, and evidence of intent, 9:30.20.10.10 narrative, context and background, 9:30.20.10.10 probative vs. prejudicial value, 9:30.20.10 prosecution’s theory of liability, direct relevance, 9:30.20.10.10 relevance to issue, 9:30.20.10.10 state of mind/conduct of witness, 9:30.20.10.10 generally, 9:10 good character of accused, 9:40 admissibility rules, 9:40.10 expert opinion evidence, 9:40.40 relevance, 9:40.40.10. limitation of, 9:40.30.30 proof, manner of, 9:40.30 accused, testimony of, 9:40.30.20 extrinsic proof, 9:40.30.10 reputation rule, 9:40.30.10 putting character in issue, 9:40.10 examples, 9:40.20.10 rebuttal by prosecution, 9:40.50 cross-examination by, 9:40.50.10 extrinsic evidence, 9:40.50.20 timing and mode, 9:40.20 improper cross-examination, examples of, 9:30.20 issue in question, 9:10.10 limiting and use jury instructions, 9:60 bad character of accused, 9:60.10 character re conduct, 9:60.30 co-accused, 9:60.30.20 third party suspects, 9:60.30.10 criminal record of accused, 9:60.10.20 good character of accused, 9:60.20 others, character of, 9:50 co-accused, 9:50.30.10

IN-6 INDEX

CHARACTER EVIDENCE — continued good character of accused — continued timing and mode — continued limiting and use jury instructions — continued others, character of — continued credibility, to assess/attack, 9:50.10 peaceable disposition, for establishing, 9:50.20.20 relevant conduct, for establishing, 9:50.20 suspects, other, 9:50.30 veracity, reputation for, 9:50.10.10 violent disposition, for establishing, 9:50.20.10 proof, methods of, 9:10.30 reform re, 9:10 Rowton rule, 9:10.30 statutory exceptions to exclusionary rule, 9:30.20.20 CC s. 666, 9:30.20.20.10 Canada Evidence Act, s. 12, 9:30.20.20.20 Corbett applications, 9:30.20.20.20 examples, successes and failures, 9:30.20.20.20 factors re weight of prejudicial effect, 9:30.20.20.20 scope of examination prmitted, 9:30.20.20.10 scope of provision, 9:30.20.20.20 target of, 9:10.40 types of, 9:10.30 sentencing considerations, 36:30.20 CHARTER OF RIGHTS AND FREEDOMS appeal, right of, 37:10 bail rights, 35:10, 35:30.10.10 confessions and. See CONFESSIONS court interpreter, right to, 22:10.40 effect on law of evidence, 2:30 exclusion of evidence under s. 24. See EXCLUSION OF EVIDENCE fair trial, right to. See TRIAL FAIRNESS non-compellability of accused, 15:20.10 presumptions and. See PRESUMPTIONS privilege and, 13:10.60, 13:20.50.30, 13:60.20 right to privacy. See PRIVACY, RIGHT TO right to silence under. See SILENCE, RIGHT TO rights and values, 5:30.30 self-incrimination. See SELF-INCRIMINATION, PRIVILEGE AGAINST CHILD collateral fact rule, credibility prohibition, 6:70 competence of, 20:20.30 corroboration warning, 34:30.20.20, 34:70.50 videotaped statements of, 7:120.30

IN-7 2015—2 MCWILLIAMS’ CANADIAN CRIMINAL EVIDENCE

CIRCUMSTANTIAL EVIDENCE admissibility stage, 31:110 after-the-fact conduct, 31:160.20 appeals, 31:150 association, 31:160.30 burden(s) of proof, 31:90.30 charge to jury – assistance, more, case for, 31:140.40 Bayes theorem, re, 31:60.40 discretion, judicial, 31:140.20 generally, 31:140 specimen instructions, 31:140.30 common sense approach, 31:70 consciousness of guilt, 31:160.20 consciousness of innocence, 31:160.20 dangers – competing inferences not considered, 31:100.50 competing interpretations not considered, 31:100.50 a contextual assessment, 31:100.30 inference not grounded in proven facts, 31:100.20 inference not reasonable, 31:100.40 primary facts are wrong, 31:100.10 defining, 31:30 deliberation process, 31:90.30 demeanour evidence, 31:160.40 direct evidence, distinguished from, 31:20 discreditable conduct, other, evidence of, 31:160.80 DNA evidence – after-the-fact conduct, 31:160.20 Adams litigation, 31:60.40 inference vs. speculation, 31:80 R. v. T, 31:60.50 trace evidence, 31:160.100 documents, possession of, 31:160.90 evaluation – cumulative, 31:90.20 individual fact, 31:90.20, 31:90.30 recent possession, evidence of, 31:160.90 experiential approach, 31:70 generally, 31:10, 31:160.10 habit evidence, 31:160.50 Hodge’s Case – American position, 31:40.30 Australian position, 31:40.30 British position, 31:40.30 Cooper decision, 31:40.30 Griffin and Harris decision, 31:40.30

IN-8 INDEX

CIRCUMSTANTIAL EVIDENCE — continued Hodge’s Case – — continued Lewin report, 31:40.10 rule in, 31:40.20 summary of case, 31:40.10 survival of, 31:40.30 Wills report, 31:40.10 ineligible, 31:160.120 inference – competing, 31:100.50 drawing, process of, 31:40.30, 31:80, 31:90 analogies for, 31:90 burden(s) of proof, 31:90.30 cumulative evaluation preferred, 31:90.20 ‘‘proven/proved facts’’, 31:90.30 Morin case, 31:90.30 strength of, 31:90.40 ungrounded, 31:100.20 unreasonable, 31:100.40 vs. speculation, 31:80 inferential chain, 31:90.40 intermediate facts, 31:90.30 knowledge, specialized – as proof of identity, 31:160.110 logic and, 31:70 mathematical approaches – Adams litigation, 31:60.40 alternatives to, 31:60.60 Bayes theorem, 31:60.10 Cella case, 31:60.30 Collins case, 31:60.10 generally, 31:60.10 likelihood ratios, 31:60.50 other examples, 31:60.70 R. v. Nicholson, 31:60.60 R. v. T, 31:60.50 means evidence, 31:160.110 motive evidence, 31:160.60 opportunity evidence, 31:160.70 physical characteristic as proof of identity, 31:160.110 possession, to prove, 31:160.90 constructive possession, 31:160.90 permissive presumption, 31:160.90 weight of evidence, 31:160.90 post-offence conduct, 31:90.30, 31:160.20 preliminary inquiry committal, 31:120

IN-9 2015—2 MCWILLIAMS’ CANADIAN CRIMINAL EVIDENCE

CIRCUMSTANTIAL EVIDENCE — continued presumption of innocence and, 31:40.20, 31:90.30, 31:160.20, 31:160.60 ‘‘proven/proved facts’’, 31:90.30 recent possession, evidence of, 31:160.90 skill, specialized as proof of identity, 31:160.110 speculation, mere, 31:80 standard of proof Australian jurisprudence, 31:90.30 Morin case, 31:90.30 White case, 31:90.30 trace evidence, 31:160.100 translations, 31:90.30 verdict and – directed verdict, 31:120 final, arriving at, 31:130 voice identification evidence, 31:90.30, 32:80 CO-ACCUSED character of, 9:60.30.20 competence and compellability of, 15:20.20, 20:30.10 joint trial, cross-examination of, 21:30.80 similar acts of, 10:60 CO-CONSPIRATOR. See HEARSAY RULE COLLATERAL FACT RULE case-splitting prohibition and, 6:60 fair trial issues and, 6:60 test re, 6:60 ‘‘collateral fact’’, meaning of, 6:10 credibility prohibition and, 6:70 child sexual assault cases, in, 6:70 credibility as ultimate collateral issue, 6:70 cross-examination and, 6:40 scope of, 6:40 curative proviso, application of, 6:100 essential issue and contradictory evidence, 6:50 exceptions to, 6:80 American, 6:80.110 bias, 6:80.20 corruption, 6:80.20 general reputation for untruthfulness, 6:80.50 generally, 6:80.10 good character evidence of accused, rebuttal of, 6:80.90 mental disorder, medical evidence re, 6:80.60 partiality, 6:80.20 physical deficit of witness, medical evidence re, 6:80.70 prior conviction, proof of, 6:80.30

IN-10 INDEX

COLLATERAL FACT RULE — continued exceptions to — continued prior inconsistent statement, proof of, 6:80.40 proven pattern of false allegations, 6:80.80 Wigmore list re, 6:80.100 witness interest, 6:80.20 flexible approach to, 6:110 generally, 6:10 judge’s discretion re, 6:30 appellate deference to, 6:30 liberal approach to rule, 6:110 prosecution rebuttal and, 6:60 surrebuttal, role of, 6:90 traditional rule, 6:20 application of, 6:20 exclusionary rule, as, 6:20 policy rationale, 6:20 COMMISSION EVIDENCE, 7:120.40 COMPELLABILITY. See COMPETENCE AND COMPELLABILITY COMPETENCE AND COMPELLABILITY, see also SELF-INCRIMINATION, PRIVILEGE AGAINST; SILENCE, RIGHT TO compellability, 20:30 accused, of, 20:30.10 complainants, of, 20:30.30 corporate officers, 20:30.40 defined, 20:10.10 generally, 20:30 history of, 20:10.20 judges, of, 20:30.50 jurors, of, 20:30.60 lawyers, of, 20:30.70 spouses, of, 20:30.20 marital communications, 20:30.20.30 witness for defence, as, 20:30.20.10 witness for prosecution, as, 20:30.20.20 CEA, s. 4(2), 20:30.20.20.10 competence, 20:20 accused, of, 20:20.10 children and witnesses under 14, of, 20:20.30 presumption of competence, 20:20.30.10 defined, 20:10.10 history of, 20:10.20 mental incapacity, 20:20.40 nature and scope of inquiry, 20:20.40.20 ability to communicate evidence, 20:20.40.20.20

IN-11 2015—3 MCWILLIAMS’ CANADIAN CRIMINAL EVIDENCE

COMPETENCE AND COMPELLABILITY — continued competence — continued mental incapacity — continued nature and scope of inquiry — continued promise to tell truth, 20:20.40.20.30 relevance of capacity test of person under 14, 20:20.40.20.40 understanding oath/affirmation, 20:20.40.20.10 procedure for challenge, 20:20.40.10 spouses, of, 20:20.20 CEA s. 4(1) exception: witness for defence, 20:20.20.20 CEA ss. 4(2) exception: witness for prosecution, 20:20.20.20 general rule re, 20:20.20.10 statutory exceptions re, 20:20.20.20 oath, 20:40 solemn affirmation, 20:50 COMPLAINANT character evidence and. See CHARACTER EVIDENCE compellability of, 20:30.30 medical, psychiatric and counselling communications, 13:60.30.20 therapeutic records, production of. See SEXUAL OFFENCES, therapeutic records (CC. s. 278.2) COMPUTER EVIDENCE, 24:90 CONFESSIONS Aboriginal interrogations, 8:50.30 common law voluntary confessions rule, 8:10 Charter of Rights — applications, use on, 8:10.50 practical impact of, 8:10.30 elements of, 8:10.10 rationale for, 8:10.20 rule in St. Lawrence, 8:10.20.10 expert evidence and false confessions, 8:50.50 jury instructions, 8:50.60 Hodgson statements, 8:50.60.20 mixed statements, 8:50.60.10 Mr. Big, 8:50.10 person in authority, 8:20 legal test for, 8:20.10

IN-12 INDEX

CONFESSIONS — continued person in authority — continued legal test for — continued examples, 8:20.10.20 onus, 8:20.10.10 voir dire requirement, 8:20.10.30 record, sufficiency of, 8:30 audiotaping, 8:30.20 videotaping, 8:30.20 weight or admissibility, 8:30.10 Reid technique of interrogation, 8:50.40 voluntariness, 8:40 derived confessions rule, 8:40.30 irrelevant factors, 8:40.20.60 consular access, 8:40.20.60 truth of statement, 8:40.20.60 principled approach, 8:40.10 relevant factors, 8:40.20 operating mind, 8:40.20.30 oppression, 8:40.20.20 deprivation, 8:40.20.20 police trickery, 8:40.20.20 polygraph use, 8:40.20.20 physical harm, 8:40.20.10 police caution and right to silence, 8:40.20.50 police trickery, 8:40.20.40 promises, 8:40.20.10 threats, 8:40.20.10 young persons, 8:50.20 CONFIDENTIAL COMMUNICATIONS. See PRIVILEGE CONFIRMATION. See CORROBORATION CONVICTIONS. See PREVIOUS CONVICTIONS CORROBORATION accomplices, 34:50, 34:70.20 appeals, 34:100 basis of, 34:100.10 curative proviso of Code, 34:100.40 defence failure to request warning, 34:100.30 deference to trial judge, scope of, 34:100.20 bias, 34:70.40 CC s. 274 requirements, 34:80.50 child witnesses, 34:30.20.20, 34:70.50 common law, at, see also modern rule, issues re accomplices, modern rule re, 34:50

IN-13 2014—4 MCWILLIAMS’ CANADIAN CRIMINAL EVIDENCE

CORROBORATION — continued common law, at — continued Baskerville rule, 34:40 18th century rule re, 1:30.20.10 history of, 34:20 Vetrovec, effect of, 34:50 contradictory statements, 34:70.60 criminal history, 34:70.70 Crown, favourable witness relationship with, 34:70.90 defence evidence, need to corroborate, 34:80.30 disreputable/unsavoury witnesses, 34:70.80 general rule re, 34:10 immunity agreements, 34:70.90 improper bolstering, 34:80.40 indicia of unreliability, list of, 34:70.100 jailhouse informants, 34:70.100 jury instructions, 34:90 content warning, discretionary nature of, 34:90.20 general considerations, 34:90.10 model instructions, 34:90.30 modern rule, issues re, 34:60 common sense, application of, 34:60.20 confirmation, nature and scope, 34:60.50 confirmatory evidence, requisite qualities, 34:60.70 types of, 34:60.70 discretion to warn obligatory circumstances, 34:60.30 scope of, 34:60.10 independence from suspect’s witness’s testimony, 34:60.40 judicial experience, application of, 34:60.20 prejudice to accused’s case, 34:60.60 multiple accused, 34:80.20 mutual corroboration, 34:80.10 perjurers, 34:30.30, 34:70.30 psychiatric history, 34:70.120 resentencing, witness subject to, 34:70.140 statutorily required corroboration, 34:30 abrogation initiatives, 34:30.20 child witnesses, 34:30.20.20 generally, 34:30.10 perjury, 34:30.30 sexual offence cases, complainants in, 34:30.20.10 treason, 34:30.40 suspect witnesses, categories of, 34:70.10 unsentenced witness, 34:70.130 Vetrovec warning, 34:50, 34:60, 34:70

IN-14 INDEX

COURT INTERPRETERS appeals and review, 22:50 establishing actual unreliability, 22:50.30 failure to make timely objection re: interpretation, 22:50.10 misinterpretation fallacy, 22:50.20 remedy, 22:50.40 bilingual trier-of-fact, 22:10.60 constitutional framework, 22:10.40 forms of interpretation, 22:10.20 interpreted evidence - admissibility of, 22:10.50 credibility of, 22:10.70 reliability of, 22:30 constitutional assurance of, 22:30.10 competence, precision and completeness, 22:30.10.40 impartiality, 22:30.10.50 minimum standards, 22:30.10.10 qualified interpreter, 22:30.10.20 requirements beyond bilingualism, 22:30.10.30 impediments to securing and monitoring of, 22:30.20 continuity, lack of, 22:30.20.70 fatigue of interpreter, 22:30.20.60 frailties, generally, 22:30.20.10 judicial failure to control process, 22:30.20.90 oath or affirmation, failure to administer, 22:30.20.50 shortage of qualified interpreters, 22:30.20.20 simultaneous vs. consecutive interpretation, 22:30.20.40 source language interpretation, no record of, 22:30.20.80 uncertified or unqualified interpreters, use of, 22:30.20.30 working conditions of interpreter, 22:30.20.60 qualification voir dire, 22:30.30 judicial instructions re, 22:40 means to make evidence intelligible, 22:10.10 need for, assessing, 22:20 adverse inference, 22:20.50 in-trial notice of interpretation issues, 22:20.60 limited proficiency in target language, 22:20.20 standby interpreter model, 22:20.40 threshold question, 22:20.10 waiver, 22:20.30 CREDIBILITY collateral fact rule and. See COLLATERAL FACT RULE cross-examination re. See CROSS-EXAMINATION interpreted evidence, of, 22:10.70 lay witness opinion of, 12:20.20.80 prior consistent statements. See PRIOR CONSISTENT STATEMENTS

IN-15 2018—1 MCWILLIAMS’ CANADIAN CRIMINAL EVIDENCE

CREDIBILITY — continued SCC reforms re assessments, 3:20.50 unreasonable verdict and, 37:50, 37:80 CREDIBILITY ASSESSMENT credibility, meaning, 30:10 methodology of assessment, 30:20 common law approach, 30:20.20 soft science, 30:20.10 particular concerns, 30:30 defence evidence, scrutiny standard, 30:30.40 demeanour, 30:30.10 disbelieved testimony, prior trial, 30:30.70 evidence, scrutiny standard, 30:30.40 interest in outcome, 30:30.60 motive to lie, 30:30.50 reasonable doubt application, 28:20.60, 30:30.80 belief, focus on, 30:30.80 disbelieved testimony use, 30:30.80 social context, 30:30.30 stereotypes, 30:30.20 children, evidence, 30:30.20.10 women, evidence, 30:30.20.10 racialized witnesses, 30:30.20.20 trial judge, personal opinion, 30:30.100 CRIMINAL EVIDENCE, RULES OF boundaries of, 1:50 CEA, provisions of, 2:20 Charter, effect of, 2:30 common law exclusionary rule, 2:30 disclosure and production, 2:30 evidence gathering, 2:30 proof, burden of, 2:30 self-incrimination, principle against, 2:30 silence, right to, 2:30 witnesses, examination of, 2:30 codification, 1:70 common law origins of, 2:10 ethical rules, 2:40 ‘‘evidence’’ defined, 1:20 generally, 1:10 history of, 1:30 18th century common law rules, 1:30.20 corroboration rule, 1:30.20.10 voluntary confession rule, 1:30.20.20 19th century common law rules, 1:30.30 common law origins, 1:30.10

IN-16 INDEX

CRIMINAL EVIDENCE, RULES OF — continued history of — continued exclusionary rules, development of, 1:30.10 judge-made, as, 2:10 judges – normative and technical expertise of, 2:10 reform by, 2:10 trial judges, role of, 1:60.20 rationalist approach, 1:60.10 scholarship re – American, 1:40.20 Bentham, Jeremy, 1:40.10 Boyle, MacCrimmon and Martin, 1:40.30 Canadian, 1:40.30 Cross, Sir Rupert, 1:40.10 Delisle, R.J., 1:40.30 England, in, 1:40.10 generally, 1:10 Gilbert, Lord Chief Baron, 1:40.10 Greenleaf, Simon, 1:40.20 MacRae, D.A., 1:40.30 McCormick, Charles, 1:40.20 McWilliams, P.K., 1:40.30 Paciocco and Stuesser, 1:40.30 Popple, A.E., 1:40.30 Sopinka, Lederman and Bryant, 1:40.30 Starkie, Thomas, 1:40.10 Stephen, Sir James Fitzjames, 1:40.10 SCC citations, 2:40 Thayer, James, 1:40.20 Wigmore, John Henry, 1:40.20 statutory background, 2:20 theoretical underpinnings, 1:60 CRIMINAL RECORD character evidence and. See CHARACTER EVIDENCE cross-examination of witness on, 21:30.50.20.10 CRIMINAL TRIAL adversarial process of, 3:10 fair process vs. search for truth, 3:10 purpose of, 3:10 qualified search for truth, as, 3:10 ‘‘truth’’ defined, 3:10 CROSS-EXAMINATION accused, of, 21:30.70 abusive, 21:30.70.10

IN-17 2017—5 MCWILLIAMS’ CANADIAN CRIMINAL EVIDENCE

CROSS-EXAMINATION — continued accused, of — continued ability to fabricate evidence having heard other witnesses testify, on, 21:30.70.50 bad character evidence including prior convictions, 21:30.70.130 Crown witness’s veracity or motive to lie, 21:30.70.20 defence theory of case, on, 21:30.70.100 excluded or prima facie inadmissible evidence, 21:30.70.70 exercise of right to silence, 21:30.70.40 exception to general prohibition, 21:30.70.40.10 failure to disclose pertinent facts to third parties, 21:30.70.40.20 late disclosure of alibi, 21:30.70.40.20 failure to put questions to Crown witnesses, 21:30.70.80 opposition to admissibility of evidence, 21:30.70.60 prior compelled statements, 21:30.70.120 receipt or review of disclosure, 21:30.70.30 view re matters of law, 21:30.70.110 why other defence witnesses not called, 21:30.70.90 adverse witness, of, 21:20.30.60.40, 21:20.30.70 confrontation principle, 21:30.60 breach of, consequences of, 21:30.60.30 affording evidence more or less weight, 21:30.60.30.40 possible future trends re, 21:30.60.30.50 importance and timing of objection to breach, 21:30.60.30.60 limiting offending party’s closing submissions, 21:30.60.30.20 precluding offending party from calling contradictory evidence, 21:30.60.30.10 recalling witness, 21:30.60.30.30 breach of, factors indicating, 21:30.60.20 significance of matter, 21:30.60.20.10 whether attack on witness’s credibility plainly evident, 21:30.60.20.20 justification for, 21:30.60.10 failure to conduct. See confrontation principle, supra hostile witness, of, 21:20.30.50 impeaching credibility through, 21:30.50 no evidence elicited from witness in chief, 21:30.50.40 partiality, 21:30.50.30 prior inconsistent statements, 21:30.50.10 common law and CEA ss. 10 and 11, current relationship between, 21:30.50.10.30 common law and origins of CEA ss. 10 and 11, 21:30.50.10.20 cross-examination on, 21:30.50.10.40 production of statement, 21:30.50.10.40.60 proof of inconsistency not a precondition, 21:30.50.10.40.10 statements made by counsel for witness, 21:30.50.10.40.50 witness entitled to explain alleged inconsistency, 21:30.50.10.40.40 written statement, format for putting to witness, 21:30.50.10.40.30

IN-18 INDEX

CROSS-EXAMINATION — continued impeaching credibility through — continued prior inconsistent statements — continued cross-examination on — continued written statement generally need not be shown to witness, 21:30.50.10.40.20 Crown compliance with CEA ss. 10 and 11, 21:30.50.10.60

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IN-18.1 2017—5 INDEX

CROSS-EXAMINATION — continued impeaching credibility through — continued prior inconsistent statements — continued exhibits, trial judge’s discretion to make, 21:30.50.10.90 general principles, 21:30.50.10.10 limited use of, 21:30.50.10.100 non-compliance with CEA ss. 10 and 11, 21:30.50.10.70 notice requirement vs. rule in Brown v. Dunne, 21:30.50.10.80 proving, 21:30.50.10.50 extrinsic evidence, 21:30.50.10.50.10 notice requirement, 21:30.50.10.50.30 statement must be inconsistent, 21:30.50.10.50.20 statement must be relative to subject matter of case, 21:30.50.10.50.40 prior misconduct, 21:30.50.20 bad acts not resulting in conviction, 21:30.50.20.20 previous convictions, 21:30.50.20.10 discretion to prevent cross-examination on convictions falling within CEA s. 12, 21:30.50.20.10.30 offences falling within CEA s. 12, 21:30.50.20.10.10 scope of cross-examination under CEA s. 12, 21:30.50.20.10.20 use of evidence by fact finder, 21:30.50.20.10.20 importance of, 21:30.10 incomplete, 21:30.90 accused, of, 21:30.90.30 discretion of trial judge re remedy, 21:30.90.20 available ameliorative remedies, 21:30.90.20.30 extent of prejudice, 21:30.90.20.20 reasons for incomplete cross-examination, 21:30.90.20.10 when remedy should be addressed, 21:30.90.10 joint trials, at, 21:30.80 of co-accused’s witness by accused, 21:30.80.20 of Crown witnesses by multiple accused, 21:30.80.10 leading questions generally permitted on, 21:30.20 limits on, 21:30.40 abusive, harassing, insulting, prolix or repetitive, 21:30.40.20 Charter s. 13, Crown cross-examination of defence witness as to knowledge of, 21:30.40.80 credibility of another witness, inviting comment on, 21:30.40.60 good faith basis requirement, 21:30.40.50 applicability to cross-examination of defence witnesses, 21:30.40.50.50 assessing, 21:30.40.50.30 conflict in law: Bencardino and Howard decisions, 21:30.40.50.10 counsel’s knowledge that witness will deny suggestion, 21:30.40.50.40 Crown counsel, application to, 21:30.40.50.50 jury instruction where counsel’s suggestion denied by witness, 21:30.40.50.60 test in R. v. Lyttle, 21:30.40.50.20 inadmissible evidence elicited, 21:30.40.30

IN-19 2016—4 MCWILLIAMS’ CANADIAN CRIMINAL EVIDENCE

CROSS-EXAMINATION — continued limits on — continued irrelevant matters, 21:30.40.10 rape shield legislation, 21:30.40.90 restricting witness’s answers, 21:30.40.40 unrelated matter, cross-examination on witness’s testimony or allegation in, 21:30.40.70 rebuttal evidence. See REPLY EVIDENCE re-cross-examination, 21:40.50 reply evidence. See REPLY EVIDENCE rule in Browne v. Dunn. See confrontation principle, supra scope of not restricted to matters touched upon in chief, 21:30.30 CROWN appeal by. See APPEALS compellability, of, 20:30.70 discretion to call witnesses, 21:80 evidential burden on, 27:20 failure to call witnesses, 33:10.30, 33:20.20.20 informer privilege, assertion of by. See INFORMER PRIVILEGE persuasive burden on, 28:20 privilege. See PUBLIC INTEREST IMMUNITY AND RELATED PRIVILEGES DECLARATIONS AGAINST INTEREST. See HEARSAY RULE DEFENCE cross-examination. See CROSS-EXAMINATION disclosure obligations re expert witness, 12:30.40.30 evidence, approach to, 3:20.60 failure of accused to testify, 33:10.10 failure to call witnesses, 33:10.30, 33:20.20.10 failure to retain expert, 12:30.40.10 putting character in issue, 9:50.20 spousal witness, 20:20.20.20, 20:30.20.10 DEFENCES alibi. See ALIBI full answer and defence. See FULL ANSWER AND DEFENCE not criminally responsible. See MENTAL CONDITION persuasive burden re, 28:30.50 raising, evidentiary burden on defence, 27:30 DEMONSTRATIVE EVIDENCE assisting trier of fact, 23:30.10 charts, 23:30.70 demonstrations, 23:30.30 experiments, 23:30.20 generally, 23:10 other jury aids, 23:30.80 re-enactments, 23:30.40

IN-20 INDEX

DEMONSTRATIVE EVIDENCE — continued schedules, 23:30.70 summaries, 23:30.70 views, 23:30.60 DERIVATIVE USE IMMUNITY, 15:20.50 DISCLOSURE AND PRODUCTION Charter effect on, 2:30 complainant’s therapeutic records. See SEXUAL OFFENCES, therapeutic records (CC s. 278.2) confidential communications and. See PRIVILEGE expert opinion evidence and. See EXPERT OPINION EVIDENCE prior consistent statements and, 11:40.60 third party records. See THIRD PARTY RECORDS DISCREDITABLE CONDUCT. See SIMILAR FACT RULE DOCUMENTARY EVIDENCE banking records, 24:80 authentication of, 24:80.20 scope of, 24:80.10 business records, 24:70 CEA, s. 30(1) and inherent reliability, 24:70.10 CEA, s. 30(3) and authentication of, 24:70.30 definition of, 24:70.20 exclusions, 24:70.40 definition of ‘‘document’’ , 24:20 electronic evidence, 24:90 authentication and best evidence rule, 24:90.20 generally, 24:90.10 secure electronic signatures regulation, 24:90.30 generally, 24:10 judicial documents, 24:60 alternative means of proof, 24:60.20 definition and authentication, 24:60.10 proving documents, 24:40 authentication, 24:40.10 copies, 24:40.30 documentary originals rule, 24:40.20 historical context of, 24:40.20.10 modern day relevance of, 24:40.20.20 notice requirements, 24:40.40 public documents, 24:50 generally, 24:50.10 government documents, 24:50.20 CEA, s. 24 and certified copies, 24:50.20.10 CEA, s. 25, relevance of, 24:50.20.20

IN-21 2016—4 MCWILLIAMS’ CANADIAN CRIMINAL EVIDENCE

DOCUMENTARY EVIDENCE — continued public documents — continued government documents — continued CEA, s. 26 and government books, 24:50.20.30 statutory instruments, 24:50.30 relevance of, 24:30 document in possession doctrine, 24:30.20 purpose of document, 24:30.10 DYING DECLARATIONS, 7:110 EVIDENTIAL BURDEN accused, on, 27:30 affirmative defences, 27:30.10 air of reality threshold, 27:30.10.10 reverse onus defences, 27:30.10.20 burdens and standards of proof distinguished, 27:10 Crown, on, 27:20 procedures for review, 27:20.10 scope of review, 27:20.20 circumstantial evidence, 27:20.20.20 direct evidence, 27:20.20.10 extradition hearings, 27:20.30 EXAMINATION-IN-CHIEF. See EXAMINATION OF WITNESSES EXAMINATION OF WITNESSES, see also CROSS-EXAMINATION; RE- EXAMINATION cross-examination. See CROSS-EXAMINATION examination-in-chief, 21:20 leading questions, 21:20.10 general prohibition on, 21:20.10 exceptions to, 21:20.10.20 rationale for, 21:20.10.10 objections to by opposing counsel, 21:20.10.30 weight of evidence, impact on, 21:20.10.40 memory problems, 21:20.20 materials obtained by unconstitutional means, use of, 21:20.20.60 past recollection recorded, admissibility of, 21:20.20.50 entering record’s contents into evidence, 21:20.20.50.80 exhibit, as, 21:20.20.50.80 reading aloud, 21:20.20.50.80 evidence must be otherwise admissible, 21:20.20.50.70 hearsay exception, as, 21:20.20.50.10 jury instructions, 21:20.20.50.90 memory must be exhausted, 21:20.20.50.30 preconditions for, 21:20.20.50.20 recollection must be recorded in reliable way, 21:20.20.50.40 timing of making of record, 21:20.20.50.50

IN-22 INDEX

EXAMINATION OF WITNESSES — continued examination-in-chief — continued memory problems — continued past recollection recorded, admissibility of — continued witness must assert that record accurately represented knowledge and recollection at time, 21:20.20.50.60 present memory revived vs. past recollection recorded, 21:20.20.10 refreshing memory at trial, 21:20.20.40 impeaching credibility, 21:20.20.40.40 material that can be used, 21:20.20.40.10 cross-examination on, 21:20.20.40.50 disclosure of, 21:20.20.40.50 jury instructions, 21:20.20.40.70 material does not ordinarily become exhibit, 21:20.20.40.60 material that cannot be used, 21:20.20.40.20 materials obtained by unconstitutional means, 21:20.20.60 procedure for, 21:20.20.40.30 refreshing memory prior to trial, 21:20.20.20 hypnosis, by, 21:20.20.30 generally, 21:10 evidence elicited by questions by counsel for each party, 21:10.10 questions are not evidence, 21:10.20 three phases of questioning, 21:10.30 jury, by, 21:100.20 re-examination. See RE-EXAMINATION trial judge, by, 21:100.10 unfavourable witnesses, 21:20.30 adverse witness (CEA s. 9(1)), 21:20.30.60 ‘‘adverse’’, definition of, 21:20.30.60.30 calling evidence that contradicts own witness, 21:20.30.60.20 cross-examination of, 21:20.30.60.40 impeaching by general evidence of bad character, prohibition against, 21:20.30.60.10 prior inconsistent statement, proof of, 21:20.30.60.30 procedure on application, 21:20.30.60.50 discretion of trial judge to refuse leave under CEA s. 9, 21:20.30.80 CEA s. 9(1), 21:20.30.80.20 CEA s. 9(2), 21:20.30.80.10 hearsay rule, relationship between CEA s. 9 and principled exception to, 21:20.30.110 hostile witness, 21:20.30.50 cross-examination of at common law, 21:20.30.50 future of common law exception re, 21:20.30.50.30 ‘‘hostile’’, definition of and manner of proof, 21:20.30.50.10 scope of cross-examination of, 21:20.30.50.20 impeaching own witness, rule against, 21:20.30.10 calling other evidence that contradicts own witness, 21:20.30.30

IN-23 2014—4 MCWILLIAMS’ CANADIAN CRIMINAL EVIDENCE

EXAMINATION OF WITNESSES — continued unfavourable witnesses — continued impeaching own witness, rule against — continued eliciting own witness’s criminal record, 21:20.30.20 exceptions to rule against impeachment, 21:20.30.40 leave to cross-examine required, 21:20.30.40.10 refreshing memory, 21:20.30.40.20 prior inconsistent statement, permissible uses of, 21:20.30.100 prior inconsistent statement, cross-examination on (CEA s. 9(2)), 21:20.30.70 in front of jury, 21:20.30.70.10 procedure on application, 21:20.30.70.50 proving statement on voir dire and before jury, 21:20.30.70.20 statement must be in specified format, 21:20.30.70.30 statement must be inconsistent, 21:20.30.70.40 re-examination of, 21:20.30.90 EXCLUSION OF EVIDENCE, see also PREJUDICIAL EFFECT; TRIAL FAIRNESS appellate review, 19:50 decisions under s. 24(1), 19:50.10 decisions under s. 24(2), 19:50.20 applying section on appeal, 19:50.20.20 standard of review, 19:50.20.10 decision to admit or exclude, 19:50.20.10.30 factual circumstances, 19:50.20.10.10 underlying breach, 19:50.20.10.20 where appeal not necessary, 19:50.20.30 applying under s. 24, 19:20 onus of proof, 19:20.40 procedural considerations, 19:20.50 standing, 19:20.10 state and state agents, 19:20.20 total or partial, 19:20.60 Charter effect on, 2:30 collateral fact rule, 6:20 common law discretion, 19:10.20 court of competent jurisdiction, 19:20.30 administrative tribunals, 19:20.30.30 criminal, 19:20.30.10 provincial offences, 19:20.30.20 expert opinion evidence. See EXPERT OPINION EVIDENCE fresh evidence on appeal, 37:30 generally, 19:10 hearsay. See HEARSAY RULE history of, 1:30.10, 19:10.10 enactment of s. 24 of Charter, 19:10.10.20 pre-Charter, common law approach, 19:10.10.10

IN-24 INDEX

EXCLUSION OF EVIDENCE — continued opinion evidence, 12:10 onus of proof, 19:20.40 policies and principles, 19:10.30 prior consistent statements. See PRIOR CONSISTENT STATEMENTS procedural considerations, 19:20.50 s. 24(1) of Charter, 19:30 Bjelland test, critique of, 19:30.30 exclusion under, 19:30.20 summary of Bjelland Approach, 19:30.20.30 where admission would result in unfair trial, 19:30.20.10 where necessary to protect integrity of justice system, 19:30.20.20 generally, 19:30.10 s. 24(2) of Charter, 19:40 bringing administration of justice into disrepute, considerations, 19:40.20 different types of evidence, application to, 19:40.60 bodily evidence, 19:40.60.20 derivative evidence, 19:40.60.40 non-bodily physical evidence, 19:40.60.10 statements, 19:40.60.30 history of, 19:40.30 Collins/Stillman test, 19:40.30.10 judicial and academic critique of, 19:40.30.20 threshold question, 19:40.10 R. v. Grant, 19:40.40, 19:40.70 discussion of s. 24(2) under, 19:40.70 conscriptive/non-conscriptive distinction, abandoning, 19:40.70.10 discoverability, 19:40.70.50 protection against self-incrimination, 19:40.70.30 seriousness of offence, 19:40.70.40 inquiry, three lines of, 19:40.50 balancing the factors, 19:40.50.40 hierarchical analysis, comparison to, 19:40.70.20 impact of breach on protected interests, 19:40.50.20 seriousness of infringing state conduct, 19:40.50.10 society’s interest in adjudication on merits, 19:40.50.30 similar facts. See SIMILAR FACT RULE standard of review, 19:50.20.10 decision to admit or exclude, 19:50.20.10.30 factual circumstances, 19:50.20.10.10 underlying breach, 19:50.20.10.20 EXCULPATORY STATEMENTS post arrest, 11:40.40.10 EXPERT OPINION EVIDENCE admissibility of, confirmed, see also provisional admissibility criteria Abbey/Lavallee debate, 12:30.30.20

IN-25 2018—1 MCWILLIAMS’ CANADIAN CRIMINAL EVIDENCE

EXPERT OPINION EVIDENCE — continued admissibility of, confirmed — continued fact-based requirement, 12:30.30.10 foundation criterion, 12:30.30.10 generally, 12:30.10 hearsay issues, 12:30.30.20, 12:30.30.30 hypothetical question, 12:30.30.40 Mohan admissibility criteria, 12:30.10, 12:30.30.10 second-hand information/sources, 12:30.30.30 appeals, 12:30.60 fresh evidence on appeal, 12:30.60.20 scope of review re admissibility, 12:30.60.10 assessing need for, 12:30.20.40 Australian guidelines re, 12:30.10 character evidence, 9:10.10 dangers of, 12:30.10 disclosure obligations, 12:30.40.30 CC s. 657.3(3)-(7) requirements, 12:30.40.30 defence, of, 12:30.40.30 instructions to expert, 12:30.40.30 pre-trial consultations, 12:30.40.30 prosecution, of, 12:30.40.30 exclusion of, residual discretion re, 12:30.20.70 ability to respond, 12:30.20.70 alternatives to exclusion, 12:30.20.70 benefits of admission, 12:30.20.70 confusion, risk of, 12:30.20.70 costs, danger of, 12:30.20.70 generally, 12:30.20.70 inaccessibility, 12:30.20.70 overwhelming of triers, 12:30.20.70 threat to right to silence, 12:30.20.70 undue time consumption, 12:30.20.70 expert report, contents of, 12:30.40.20 expert witness – costs against prosecution expert, 12:30.40.110 court-appointed, 12:30.40.100 defence failure to retain, 12:30.40.10 examination of, 12:30.40.80 cross-examination, 12:30.40.80 in-chief, 12:30.40.80 re-examination, 12:30.40.80 exclusion from courtroom, 12:30.40.70 qualification, 12:30.20.50 subpeona for, 12:30.40.40 handwriting, 32:90.10 judge’s gatekeeper function, 12:30.10

IN-26 INDEX

EXPERT OPINION EVIDENCE — continued judicial notice and, 26:10, 26:40.20 jury instructions, 12:30.50 burden of proof, 12:30.60.30 de-specializing expert evidence, 12:30.60.10 limiting instructions, 12:30.60.50 review of expert testimony, 12:30.60.40 weighing expert evidence, 12:30.60.20 number of experts, 12:30.40.50 probative value and, 5:20.50.20 proliferation of, 12:30.10 provisional admissibility criteria, 12:30.20 Bayes Rule Theorem, use of, 12:30.20.20 exclusion discretion, 12:30.20.70 exclusionary rule and, 12:30.20.60 expertise qualification, 12:30.20.50 logical relevance, 12:30.20.20 Mohan factors, 12:30.20.10 necessity, 12:30.20.40 reliability factor. See reliability factor, infra qualification of expert, 12:30.20.50 expertise qualification, 12:30.20.50 impartiality/independence qualification, 12:30.20.50 reliability factor, 12:30.20.10 additional factors re, 12:30.20.30 behavioural/social science, 12:30.20.30 error rate/existence of standards, 12:30.20.30 general acceptance, 12:30.20.30 generally, 12:30.20.30 J.(J.L.)/Daubert approach, 12:30.20.30 mental health professionals, 12:30.20.30 novel science, 12:30.20.30 peer review/publication, 12:30.20.30 reliability inquiry, 12:30.20.30 scientific opinion process, 12:30.20.30 testability, 12:30.20.30 reply evidence, 12:30.40.90 sentencing hearing, 36:20 test re admissibility, 12:30.10 U.S. Federal Rules of Evidence re, 12:30.10, 12:30.20.20, 12:30.20.70 U.S. position re, 12:30.10 voice identification, re, 32:80.20 voir dire determination of admissibility, 12:30.40.60 EXPERT WITNESS, see also EXPERT OPINION EVIDENCE cross-examination of, 12:30.40.80 false confessions, 8:50.50

IN-27 2015—3 MCWILLIAMS’ CANADIAN CRIMINAL EVIDENCE

EXTRADITION HEARINGS evidential burden and, 27:20.30 hearsay rule and, 7:10.10.30 reliability of evidence and, 5:20.50.30.50 FAILURE TO TESTIFY circumstantial evidence, ineligible, 31:160.120 generally. See ADVERSE INFERENCES self-incrimination and. See SELF-INCRIMINATION, PRIVILEGE AGAINST FAIRNESS. See TRIAL FAIRNESS FORMAL AND INFORMAL ADMISSIONS conclusivity of, 25:30 distinction between, 25:30 generally, 25:10 judicial admissions, 25:30 jury instructions re, 7:160.70, 25:90 law, admissions of, 25:80 medium for factual admission, 25:20 procedural issues re, 25:50 statute, admissions by, 25:40 survivorship of, 25:70 withdrawal of, 25:60 FULL ANSWER AND DEFENCE complainant’s therapeutic records. See SEXUAL OFFENCES, therapeutic records (CC s. 278.2) silence, right to. See SILENCE, RIGHT TO solicitor-client privilege vs., 13:20.50, 13:20.50.30 GUILT consciousness of. See CIRCUMSTANTIAL EVIDENCE third party, evidence of, 31:160.70 GUILTY PLEA. See FORMAL AND INFORMAL ADMISSIONS HEARSAY RULE admissions. See categorical exceptions age, 7:210.10 analyzing hearsay, 7:40 methodology. See methodology principle vs. pragmatism, 7:40.10 categorical exceptions admissions, 7:160 adoption of statement by others, 7:160.50 agents, statements by, 7:160.60 basis of knowledge, 7:160.20 completeness of statement, 7:160.40 context, 7:160.40

IN-28 INDEX

HEARSAY RULE — continued categorical exceptions — continued admissions — continued generally, 7:160.10 jury instruction, 7:160.70 operating mind, 7:160.30 vicarious statements, 7:160.60 co-conspirators, 7:170 admissions, 7:170.10 agency, 7:170.10 Carter process, 7:170.30, 7:170.40 co-venturers vs., 7:170.40.10 ‘‘failsafe’’ exclusion, 7:170.40.20 functional approach, 7:170.10 jury direction, 7:170.30 non-hearsay uses, 7:170.40.20 operation of rule, 7:170.20, 7:170.40.20 proof of conspiracy, 7:170.20.20 proof of involvement, 7:170.20.30 three-stage analysis, 7:170.20.10 use of acts/declarations ‘‘in furtherance’’, 7:170.20.40 practical considerations, 7:170.10.10 principled approach analysis, 7:170.50 res gestae, 7:170.10 scope of rule re, 7:170.10 common enterprise rule. See co-conspirators declarations made outside present proceedings, 7:140 past recollections, 7:140.30 recorded past recollections, 21:20.20.50 post-Starr analysis, 7:140.30.20 revived past recollections, 7:140.30.30, 21:20.20 prior inconsistent statements, 7:140.20 application of K.G.B. exception, 7:140.20.40 debate re, 7:140.20.10 K.G.B. statements exception, 7:140.20.20 ‘‘orthodox rule’’, 7:140.20.10 preconditions to admissibility, 7:140.20.30 prior statements, generally, 7:140.10 dying declarations, 7:110 assessment of rule re, 7:110.20 common law rule re, 7:110.10 excited/spontaneous statements, 7:120.20 contemporaneity, 7:120.20.10 duration of event, 7:120.20.20 limitations on relaxed rule, 7:120.20.40 overpowering nature of event, 7:120.30 person making statement, 7:120.20.50

IN-29 2015—3 MCWILLIAMS’ CANADIAN CRIMINAL EVIDENCE

HEARSAY RULE — continued categorical exceptions — continued excited/spontaneous statements — continued preconditions to admission, 7:120.20 principled approach and, 7:120.20.60 generally, 7:100 historical/ancient events, 7:180 perception/emotion/intent, statements re current, 7:120.40 bodily sensations, 7:120.40.20 present intention, 7:120.40.30 state of mind, 7:120.40.10 prior testimony. See testimony given not in presence of trier of fact records, 7:130 business records, 7:130.20 Canada Evidence Act rules, 7:130.20.30 common law re, 7:130.20.10 oral statements made in course of business, 7:130.20.20 principled analysis re, 7:130.20.40 statutory provisions, 7:130.20.30 use of, 7:130.20.50 public documents, 7:130.10 statements made pursuant to duty. See business records res gestae, 7:120 conduct. See verbal acts excited/spontaneous statements. See excited/spontaneous statements generally, 7:120.10 perception/emotion/intent. See perception/emotion/intent, statements re current statements by accused. See admissions testimony given not in presence of trier of fact, 7:150 CC s. 715 provision, 7:150.10 discretion element, 7:150.20.40 instruction to jury, 7:150.20.50 necessity requirement, 7:150.20.20 preconditions to admissibility, 7:150.20 reliability requirement, 7:150.20.30 testimony, types of, 7:150.20.10 commission evidence, 7:150.40 depositions, 7:150.50 videotaped statement of children/vulnerable witnesses (CC ss. 715.1, 715.2), 7:150.30 preconditions to admission, 7:150.30.20 purpose of provisions, 7:150.30.10 verbal acts, 7:120.30 co-conspirators. See categorical exceptions declarations against interest, 7:200

IN-30 INDEX

HEARSAY RULE — continued declarations against interest — continued pecuniary interest, 7:200.10 development and operation of exception, 7:200.10.10 post-Starr analysis, 7:200.10.20 penal interest, 7:200.20 dead declarant, where, 7:200.20.30 English cases, 7:200.20.10 modern Canadian approach, 7:200.20.20 post-Starr, 7:200.20.40 definition of hearsay, 7:30.10 dying declarations. See categorical exceptions exceptions to. See categorical exceptions expert opinion evidence and, 7:190 extradition proceedings and, 7:10.10.30 fair trial considerations, 7:70 family history, 7:210.20 general principles necessity. See necessity principle reliability. See reliability principle generally, 7:10 historical/ancient events, 7:180 jury instructions, 7:80 marriage, 7:210.20 methodology, 7:40.20 categorical exception inability to find, where, 7:40.20.40 modifying, 7:40.20.20 searching for, 7:40.20.10 evidence of necessity and reliability, 7:40.20.40 fail-safe provision, 7:40.20.30 pigeon holes, no new, 7:40.20.40 ‘‘rare case’’ approach, 7:40.20.30 voir dire, procedure on, 7:40.20.40 necessity principle, 7:50 children, 7:50.70 co-accused, 7:50.60 cost/benefit analysis, 7:50.120 contempt, 7:50.90 deceased declarant, 7:50.10 illness, 7:50.50 incapacity, 7:50.40 incompetence, 7:50.30 inconvenience of producing declarant, 7:50.120 memory, lack of, 7:50.80 mental disability, 7:50.70 multiple hearsay statements, use of, 7:50.110

IN-31 2014—3 MCWILLIAMS’ CANADIAN CRIMINAL EVIDENCE

HEARSAY RULE — continued necessity principle — continued out-of-court evidence as superior evidence, 7:50.100 recanted prior statement, 7:50.80 refusal to testify, 7:50.90 unavailability of witness, 7:50.20 origins of, 7:20 past recollections. See categorical exceptions, declarations made outside present proceedings pedigree, 7:210.20 preliminary inquiries, at, 7:10.10.10 prior inconsistent statements. See categorical exceptions, declarations made outside present proceedings public rights, 7:210.40 reasons for, 7:20 jury distrust, 7:20.20 reliability, inability to test, 7:20.10 trial fairness, 7:20.30 reasons for admitting/excluding evidence, 7:90 records. See categorical exceptions reliability principle, 7:60 factors, 7:60.20 framework for assessing reliability, 7:60.10 memory, 7:60.20 narration, 7:60.20 perception, 7:60.20 sincerity, 7:60.20 res gestae. See categorical exceptions scope of, 7:30 conduct intended to be communicative, 7:30.40 functional approach to identifying hearsay, 7:30.20 cross-examination, absence of contemporaneous opportunity re, 7:30.20.20 statement adduced for truth of content, 7:30.20.10 ‘‘implied assertions’’ problem, 7:30.30.10 implied vs. unintended assertions, 7:30.30.10 non-assertive conduct, 7:30.30.20 non-hearsay uses of evidence. See original evidence situations original evidence situations, 7:30.50 contract/conspiracy/consent, 7:30.50.20 investigative hearsay, 7:30.50.40 knowledge, 7:30.50.10 narrative, 7:30.50.30 reluctance to define hearsay, 7:30.10 self-identification, 7:210.30 testimony, prior. See categorical exceptions videotaped statements. See categorical exceptions sentencing hearings, at, 7:10.10.20

IN-32 INDEX

HOSTILE WITNESS, 21:20.30.50 IDENTIFICATION EVIDENCE admissibility, 32:30 classification debate, hearsay or not, 32:30.20 current law, 32:30.30 generally, 32:30.10 appellate review of, 32:100 errors of law, 32:100.20 factors to consider, 32:100.50 standard of review under s. 686(1)(a)(i), 32:100.40 sufficiency of charge, 32:100.20 factors to consider, 32:100.30 unreasonableness under s. 686, 32:100.30 factors to consider, 32:100.30 cognitive science, lessons of, 32:40.20 generally, 32:40.20.10 memory, 32:40.20.20 system variables, factors affecting reliability, 32:40.20.30 blind administration, 32:40.20.30.10 composites, 32:40.20.30.50 cross-racial identifications, 32:40.20.30.70 estimator variables, 32:40.20.30.60 feedback, 32:40.20.30.40 line-up construction, 32:40.20.30.30 pre-identification instructions, 32:40.20.30.20 show-ups, 32:40.20.30.50 stress, 32:40.20.30.80 successive arrays, 32:40.20.30.50 witness attention, 32:40.20.30.90 defined, 32:20 discretion to exclude, 32:60 Canada, 32:60.20 probative value/prejudicial effect assessment, 32:60 United States, 32:60.10 exculpatory evidence, presence of, 32:30.60 expert evidence, 32:50 handwriting, 32:90.10 voice identification, 32:80.20 eyewitness identity opinion – assessment of, 32:40 defined, 32:20 generally, 32:10 handwriting, 32:90 analytical approach, 32:90.40 assessment of, 32:90.30 by the trier, 32:90.20

IN-33 2014—3 MCWILLIAMS’ CANADIAN CRIMINAL EVIDENCE

IDENTIFICATION EVIDENCE — continued handwriting — continued expert evidence, 32:90.10 judicially developed factors, 32:40.10 jury instructions, 32:70 Mezzo/Buric rule and, 5:20.50.30.20 out of court identifications re-consideration of prior, 32:30.40 use of, 32:30.20 recognition evidence, 32:30.70 resemblance evidence, Chartier rule, 32:30.50 voice identification, 32:80 assessment of, 32:80.40 Australia, in, 32:80.60 cognitive psychology, 32:80.70 expert evidence tendered to prove, 32:80.20 general principles, 32:80.10 jury instructions, 32:80.50 lay opinion evidence, 32:80.30 United States, in, 32:80.60 INFERENCES. See ADVERSE INFERENCES; CIRCUMSTANTIAL EVIDENCE INFORMER PRIVILEGE described, 14:50.10 importance of, 14:50.10 innocence at stake exception to, 13:20.50.30, 14:50.10.30 invocation and waiver of, 14:50.10.10 scope of, 14:50.10.20 INNOCENCE consciousness of, 11:40.40.40, 31:160.20 innocence at stake, 13:20.50.30 presumption of. See CIRCUMSTANTIAL EVIDENCE; PERSUASIVE BURDEN; PRESUMPTIONS ISSUE ESTOPPEL abuse of process, relationship with, 18:60 burden of proof, 18:50 definition, 18:10 onus, 18:50 origin, 18:10 prerequisites, 18:20 earlier decision final, 18:20.20 issue previously decided, 18:20.10 mutuality, 18:20.30 procedural issues, 18:40 similar act evidence, and, 18:30

IN-34 INDEX

ISSUE ESTOPPEL — continued special pleas, relationship with, 18:60 ISSUE IN QUESTION identification of, 5:20.50.10 similar fact probative value analysis, 10:40.40 JUDGES competency and compellability, 20:30.50 criminal evidence rules, as authors of, 2:10 discretion re – collateral fact rule, 6:30 re-examination, 21:40.20 reply evidence, 21:50.40 subpeona for expert witness, issuance of, 12:30.40.40 examintion of witnesses by, 21:100.10 expert opinion evidence, function re, 12:30.10 failure to call witnesses, comment by defence, 33:10.30 informer privilege, assertion of. See INFORMER PRIVILEGE jury instruction by – duty. See APPEALS generally. See JURY INSTRUCTION power to call witnesses, 21:90 role of trial judge, 1:60.20 sentencing role, 36:40 unfavourable witnesses, re, 21:20.30.80 JUDICIAL NOTICE authoritative sources, 26:30.50 business/commerce, of, 26:30.90.10 common knowledge, 26:20.20, 26:30.40.10 common sense, 26:20.20 conclusivity of fact judicially noticed, 26:30.80 contextual facts, 26:40 contextual law vs., 26:40.60 directions to jurors re, 26:40.60 expert evidence and, 26:40.20 generally, 26:40.10 Hamilton/Mason cases, 26:40.50 judicial activism and, 26:40.40 legislative vs. adjudicative facts, 26:40.10 nature of proceeding and, 26:40.30 notice obligation and, 26:40.40 sentencing hearing, 26:40.30 social framework analysis, 26:40.20 crime, of, 26:30.90.20 custom, of, 26:30.90.30 definition of, 26:10

IN-35 2013 MCWILLIAMS’ CANADIAN CRIMINAL EVIDENCE

JUDICIAL NOTICE — continued drugs, of, 26:30.90.40 examples, 26:30.90 experience, 26:20.20 expert evidence vs., 26:10 express notice of facts, 26:30 common law concept of, 26:30.30 scope of, 26:30.10 generally, 26:10 geography, of, 26:30.90.50 historical facts, of, 26:30.90.60 human behaviour, of, 26:30.90.70 indisputable sources option, 26:30.50 informal notice of facts, 26:20 judges and, 26:20.40 jurors and, 26:20.30 judicial role, 26:30.60 jury – charging, 26:30.110 directions to, 26:40.60 informal notice of facts, 26:30.20 law, of, 26:50 common law, 26:50.10 domestic legislation, 26:50.20 foreign law, 26:50.30 legal community facts, of, 26:30.90.80 miscarriage, risk of, 26:20.50 miscellaneous facts, of, 26:30.90.90 notice, 26:30.70, 26:40.40 notoriety/indisputable approach, 26:30.40 character of notoriety, 26:30.40.10 indisputability element, 26:30.40.20 personal knowledge prohibition, 26:20.10 physiology, of, 26:30.90.110 publicity, of, 26:30.90.120 racism, of, 26:30.90.140 rejection, examples of, 26:30.100 science, physical/natural, 26:30.90.100 social context theory. See contextual facts, supra statute-authorized, 26:30.20 technology, of, 26:30.90.140 JURY compellability of jurors, 20:30.60 distrust for as rationale for hearsay rule, 7:20.20 examination of witnesses by, 21:100.20 exclusion of jury deliberation, 14:50.30

IN-36 INDEX

JURY — continued failure of accused to testify, adverse conclusions by, 33:10.10 judicial notice and. See JUDICIAL NOTICE prejudice and jury’s emotions, 5:20.60.20 real evidence, delivery to. See REAL EVIDENCE undue evidence given by, 5:20.60.20 unreasonable verdict by, 37:50, 37:80 JURY INSTRUCTION admissions. See FORMAL AND INFORMAL ADMISSIONS adverse inferences, re. See ADVERSE INFERENCES character evidence. See CHARACTER EVIDENCE, limiting and use jury instructions circumstantial evidence – assistance, more, case for, 31:140.40 Bayes theorem, re, 31:60.40 discretion, judicial, 31:140.20 generally, 31:140 specimen instructions, 31:140.30 co-accused, similar acts of, 10:60.10 co-conspirators, rule re, 7:140.30 comment on failure of accused to testify, 8:50.60, 15:20.30 comment on failure to call witness, 33:10.30, 33:20.20.10 confession, 8:50.60 corroboration warning. See CORROBORATION court interpreter, re, 22:40 expert opinion evidence. See EXPERT OPINION EVIDENCE Hodge’s case, rule in, 31:40.20 identification evidence, re, 32:70 voice, re, 32:80.50 lay witness opinion evidence, 12:20.40 material used to refresh witness’s memory, 21:20.20.40.70 reasonable doubt, 28:20.30 similar facts. See SIMILAR FACT RULE testimony in prior proceedings, 7:120.20.50 JUSTICE, RIGHT TO. See TRIAL FAIRNESS LAWYERS competency and compellability, 20:30.70 solicitor-client privilege. See SOLICITOR-CLIENT PRIVILEGE LEADING QUESTIONS. See CROSS-EXAMINATION; EXAMINATION OF WITNESSES; RE-EXAMINATION MEMORY refreshing generally. See EXAMINATION OF WITNESSES reliability, 7:20.10

IN-37 2014—4 MCWILLIAMS’ CANADIAN CRIMINAL EVIDENCE

MENTAL CONDITION lay opinion witness re mental condition, 12:20.20.40 mental disorder, medical evidence re, 6:80.60 mental health professionals, 12:30.20.30 mental incapacity and competence, 20:20.40 operating mind, 8:40.20.30 MR. BIG CONFESSIONS. See CONFESSIONS OATH-HELPING. See PRIOR CONSISTENT STATEMENTS OATHS generally, 20:40 understanding, 20:20.40.20.10 ONUS OF PROOF. See EVIDENTIAL BURDEN; PERSUASIVE BURDEN OPINION EVIDENCE exclusionary rule, 12:10 expert. See EXPERT OPINION EVIDENCE historical perspective, 12:10 lay witness opinion evidence, 12:20 admissibility rules, 12:20.10 age, re, 12:20.20.50 credibility of another witness, 12:20.20.80 handwriting, re, 12:20.20.20 historical perspective, 12:20.10 impairment, re, 12:20.20.30 impermissible, 12:20.30 jury instructions re, 12:20.40 mental, physical emotional condition, re, 12:20.20.40 modern statement re, 12:20.10 persons, places things, identity of, 12:20.20.10 physical properties, re, 12:20.20.70 shoeprints, re, 12:20.20.60 speed, distance, etc., re, 12:20.20.70 subject matter of, 12:20.20 substance intake, re, 12:20.20.30 voice identification, re, 32:80.30 weather, re, 12:20.20.90 ‘‘opinion’’ defined, 12:10 opinion vs. fact, 12:10, 12:20.10 OPPRESSION. See CONFESSIONS PERSON IN AUTHORITY. See CONFESSIONS PERSUASIVE BURDEN balance of probabilities, 28:30 Crown’s case, application to, 28:30.40

IN-38 INDEX

PERSUASIVE BURDEN — continued balance of probabilities — continued defences, 28:30.50 automatism, 28:30.50.20 due diligence, 28:30.50.30 entrapment, 28:30.50.10 exceptions, exemptions, excuses, 28:30.50.40 extreme intoxication, 28:30.50.20 mental disorder, 28:30.50.20 officially induced error, 28:30.50.10 generally, 28:30.10 meaning of, 28:30.30 policy considerations, 28:30.20 generally, 28:10 preliminary findings of fact, 28:30.60 proof beyond a reasonable doubt, 28:20 adversarial context, 28:20.10 circumstantial evidence, 28:20.40, 31:40 constitutional imperative, 28:20.20 credibility, assessment of, 28:20.60 W.(D.) and S.(W.D.), 28:20.60.10 application to assessments of objective liability, 28:20.60.10.20 application to defence evidence, 28:20.60.10.10 application to reverse onus defences, 28:20.60.10.20 W.(D.), lower court application of, 28:20.60.30 ‘‘acceptance’’ and ‘‘rejection’’ of evidence, 28:20.60.40.60 additional instruction: acquittal follows if unable to decide whom to believe, 28:20.60.40.10 application to judge alone trials, 28:20.60.20 comparing evidence of accused with that of complainant, 28:20.60.40.70 consequence of belief in both accused and complainant, 28:20.60.40.50 corroboration and sexual assault cases, 28:20.60.40.80 improper isolation of accused’s testimony, 28:20.60.40.30 leaping from belief in Crown witness to guilt, 28:20.60.40.40 process recommendation: order of assessment of evidence, 28:20.60.40.20 W.D’s Supreme Court progeny, 28:20.60.30 individual items of evidence, 28:20.50 jury charge on, 28:20.30 R. v. Lifchus, 28:20.30.10 R. v. Starr, 28:20.30.20 substantial compliance, 28:20.30.30 meaning of, 28:20.30 ‘‘might reasonably be true’’ test, avoiding, 28:20.70 presumption of innocence, 28:20.20 POLICE interrogation by on arrest. See CONFESSIONS

IN-39 2015—2 MCWILLIAMS’ CANADIAN CRIMINAL EVIDENCE

POLICE — continued investigative techniques, 14:50.20 solicitor-client privilege between Crown and, 13:20.20 POLICE INFORMER PRIVILEGE. See INFORMER PRIVILEGE POSSESSION documents, of, 24:30.20 generally. See CIRCUMSTANTIAL EVIDENCE PREJUDICIAL EFFECT, see also HEARSAY RULE judicial discretion to exclude relevant evidence – historical roots, 5:20.10 Wray formula, 5:20.10 prior consistent statements, 11:30, 11:40.40.20 Seaboyer case, 5:20 balancing approach, 5:20 defence evidence, principled approach to, 5:20.30 prior sexual history and, 5:20.40 cumulative evidence, 5:20.70 prejudice, meaning of, 5:20.60 creating distracting side issue, 5:20.60.20 distorting truth-seeking, 5:20.60.20 fairness to witness, 5:20.60.40 moral prejudice, 5:20.60.10 reasoning prejudice, 5:20.60.20 undue consumption of time, 5:20.60.20 unduly arousing jury’s emotions, 5:20.60.20 unfair surprise, 5:20.60.50 usurping jury function, 5:20.60.20 probative value, meaning of, 5:20.50 expert opinion evidence and, 5:20.50.20 ‘‘issue in question’’, identification of, 5:20.50.10 reliability of evidence, 5:20.50.30 extradition cases, 5:20.50.30.50 identification cases, 5:20.50.30.20 R. v. Hart decision, 5:20.50.30.40 Mezzo/Buric rule, 5:20.50.30.10 retreat from Mezzo/Buric rule, 5:20.50.30.30 strength of inference, 5:20.50.20 Sweitzer formulation, 5:20.20 threshold test, 5:20.20 similar facts and. See SIMILAR FACT RULE PRELIMINARY INQUIRY evidential burden and, 27:20.10 hearsay rule and, 7:10.10.10

IN-40 INDEX

PRESUMPTIONS analytical checklist, 29:30 case law analysis, 29:20 defined, not true, 29:10.30 ‘‘irrebuttable presumption of law’’, 29:10.50 permissive inferences, 29:10.40 ‘‘presumptions of fact’’, 29:10.40 rule of substantive law, 29:10.50 true, usual structure of, 29:10.60 with basic and presumed facts, 29:10.60.20 without basic facts, 29:10.60.10, 29:20.20.10 evidentiary burden, 29:10.60.20, 29:10.70, 29:20.30 free and democratic society, justifying in, 29:20.40 minimal impairment, 29:20.40.30 pressing and substantial objective, 29:20.40.10 proportionality, 29:20.40.40 rational connection, 29:20.40.20 generally, 29:10 innocence, of, 28:20.20, 29:10.60.10, see also mandatory, reverse onus, infra circumstantial evidence and. See CIRCUMSTANTIAL EVIDENCE key concepts, 29:10.20 mandatory, evidentiary burden, 29:20.30 with and without basic facts, 29:20.20 rationale for, 29:10.90 recent possession, re, 31:160.90 reverse onus, 29:10.60.20, 29:10.80, 29:20.10, 29:20.20, 29:20.40 sanity, 29:10.60.10, 29:20.20.10 standards of proof, 29:20.10 strict liability offences , 29:20.20.20 terminology, 29:10.10 voluntariness, 29:20.20.10 PRETRIAL DETENTION, 35:30.30.20, 35:30.30.40 PREVIOUS CONVICTIONS, 6:80.30, 9:60.10.20, 21:20.30.40, 21:30.50.20.10.30 PRIOR CONSISTENT STATEMENTS accused, testimony of, 11:20.20 admission of, see also exceptions to exclusionary rule limiting instructions requirement, 11:50 absence of instruction, when fatal, 11:50.10 absence of instruction, when not fatal, 11:50.20 declarant, testimony of, 11:20.20 exceptions to exclusionary rule, 7:110.20, 11:40 disclosure narrative, 11:40.60

IN-41 2015—2 MCWILLIAMS’ CANADIAN CRIMINAL EVIDENCE

PRIOR CONSISTENT STATEMENTS — continued exceptions to exclusionary rule — continued exculpatory post-arrest statement, 11:40.40.10 admissibility of contents, 11:40.40.20 consciousness of innocence, 11:40.40.40 fact made, 11:40.40.10 probative value vs. prejudicial effect, 11:40.40.20 recent fabrication, 11:40.40.20 tailoring of evidence, 11:40.40.20 recent complaint, 11:40.30 common law approach, 11:40.30.10 CC provision re, 11:40.30.20 human nature assumption, 11:40.30 summary of principles re, 11:40.30.20 recent fabrication, 11:40.10 invocation of, 11:40.10 recent complaint vs., 11:40.10.30 ‘‘recent’’, meaning of, 11:40.10.10 summary of application, 11:40.10.40 triggering of exception, 11:40.10.20 res gestae statements, 11:40.50 statements/conduct of accused not tendered by Crown, 11:40.40 exclusionary rule discussed, 11:10 fabrication principle, 11:20.30 generally, 11:10 hearsay principle, 11:20.20 irrelevance principle, 11:20.10 oath-helping, rule against, 11:20.50 scope of prohibition, 11:20.50.10 pigeonhole approach, 11:30.10 principled approach to, 11:30 fairness, 11:30.40 probative vs. prejudicial balance, 11:30 rational decision-making, 11:30.20 simplicity, 11:30.10 truth-finding, enhancement of, 11:30.30 principled reasons for exclusion, 11:20 purposes of exclusion, 11:10, 11:20 self-serving evidence, as, 11:20.30 trial efficiency principle, 11:20.40 PRIOR INCONSISTENT STATEMENT generally. See CROSS-EXAMINATION; EXAMINATION OF WITNESSES proof of, 6:80.40

IN-42 INDEX

PRIVACY, RIGHT TO complainant’s therapeutic records in sex assault cases. See SEXUAL OFFENCES, therapeutic records (CCS. 278.2)

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IN-42.1 2015—2 INDEX

PRIVACY, RIGHT TO — continued confidential communications and. See PRIVILEGE rape shield provisions. See SEXUAL OFFENCES, prior sexual history evidence third party records, disclosure of. See THIRD PARTY RECORDS PRIVILEGE Charter and, 13:10.60, 13:20.50.30, 13:60.20 case-by-case, 13:10.30, 13:60 application to various settings, 13:60.30 criteria and process for establishing,13:60.20 journalist-informant communications, 13:60.30.30 medical, psychiatric and counselling communications, 13:60.30.20 nature and rationale, 13:60.10 other claims, 13:60.30.40 religious communications, 13:60.30.10 class privileges, 13:10.30 competency and compellability vs., 13:10.20 confidences non-privileged, 13:10.40 privileges vs., 13:10.20 confidential communications. See case-by-case and confidences Crown. See PUBLIC INTEREST IMMUNITY AND RELATED PRIVILEGES enjoyment, 13:10.50 forms of, 13:10.30 future directions in law of, 13:10.70 general principles of, 13:10 investigative technique, 14:50.20 invocation, 13:10.50 litigation, 13:30 conditions precedent, 13:30.20 duration, 13:30.30 enjoyment, 13:30.20 exceptions, loss and waiver, 13:30.50 nature and rational, 13:30.10 scope, informational, 13:30.40 solicitor-client vs., 13:30.10 jury deliberations, 14:50.30 public interest privileges, 14:50 purpose of privileges, 13:10.10 self-incrimination. See SELF-INCRIMINATION, PRIVILEGE AGAINST settlement negotiation, 13:50 application to criminal law setting, 13:50.30 conditions precedent, 13:50.20 exceptions, 13:50.20 nature and rationale, 13:50.10 scope, 13:50.20 solicitor-client. See SOLICITOR-CLIENT PRIVILEGE

IN-43 2014—4 MCWILLIAMS’ CANADIAN CRIMINAL EVIDENCE

PRIVILEGE — continued spousal, 13:40 competency rule, vs., 13:40.10 conditions precedent, 13:40.20 duration, 13:40.30 enjoyment, 13:40.20 exceptions, loss and waiver, 13:40.50 invocation, 13:40.20 modern source, CEA s. 4(3), 13:40.10 nature and rationale, 13:40.10 same-sex, common-law spouses, application to, 13:40.20 scope, informational, 13:40.40 wiretap interception, and, 13:40.50 surveillance-post, 14:50.20 waiver, 13:10.50 wiretap interception, and, 13:10.50, 13:40.50 work product. See litigation PROBATIVE VALUE. See PREJUDICIAL EFFECT PROOF burden of. See EVIDENTIAL BURDEN; PERSUASIVE BURDEN character trait, 9:10.30 conspiracy, of, 7:140.20.20 criminal record, of. See CHARACTER EVIDENCE documentary evidence. See DOCUMENTARY EVIDENCE onus of. See EVIDENTIAL BURDEN; PERSUASIVE BURDEN previous convictions, 6:80.30, 9:60.10.20 prior inconsistent statement, 6:80.40 standards of. See EVIDENTIAL BURDEN; PERSUASIVE BURDEN PSYCHIATRIC EVIDENCE bad character, re, 9:40.10 complainant’s therapeutic records. See SEXUAL OFFENCES, therapeutic records (CC 278.2) confidential communications. See PRIVILEGE good character, re, 9:40 PUBLIC INTEREST IMMUNITY AND RELATED PRIVILEGES. See also PRIVILEGE common law of public interest immunity, 14:20 continued relevance of, 14:20.30 current state of, 14:20.20 test and process, 14:20.20.10 types of claim, 14:20.20.20 inspection of documents by court, 14:20.20.30 extent and effects of disclosure, 14:20.20.40 historically ‘‘absolute’’ privilege, 14:20.10

IN-44 INDEX

PUBLIC INTEREST IMMUNITY AND RELATED PRIVILEGES — continued confidences related to public interest. See privileges related to public interest, infra federal statutory protections, 14:30 Canada Evidence Act, s. 37 re general claims, 14:30.10 appellate review, 14:30.10.30 general operation of, 14:30.10.20 jurisdiction, 14:30.10.10 Canada Evidence Act, s. 38 re international relations, national defence and national security, 14:30.20 appellate review, 14:30.20.30 Attorney General’s override, 14:30.20.50 general operation of, 14:30.20.20 jurisdiction, 14:30.20.10 secrecy provisions, 14:30.20.40 Canada Evidence Act, s. 39 re cabinet secrecy, 14:30.30 cabinet confidentiality, effect of, 14:30.30.30 general operation of, 14:30.30.20 scope of material covered, 14:30.30.10 Canadian Security Intelligence Service, s. 18.1 re human source privilege, 14:30.40 generally, 14:10 law of privilege, relationship to, 14:10 privileges related to public interest, 14:50 informer privilege. See INFORMER PRIVILEGE investigative technique privilege, 14:50.20 jury deliberations, 14:50.30 constitutionality of, 14:50.30.50 Criminal Code, s. 649, 14:50.30.30 relationship between common law rule and, 14:50.30.40 scope of common law rule re, 14:50.30.20 rationale for, 14:50.30.10 surveillance-post privilege, 14:50.20 provincial and territorial statutory protections, 14:40 QUESTIONING OF DETAINED PERSONS. See CONFESSIONS RAPE SHIELD PROVISIONS. See SEXUAL OFFENCES REAL EVIDENCE accused as, 23:20.80 authentication, 23:20.30 general rule, 23:20.30.10 manner of, 23:20.30.30 computers, internet, evidence originating from, 23:20.30.30.20 crime scene video tapes, 23:20.30.30.10 standard of proof, 23:20.30.20 defined, 23:20.10 exclusion of discretion of court, 23:20.40

IN-45 2018—2 MCWILLIAMS’ CANADIAN CRIMINAL EVIDENCE

REAL EVIDENCE — continued exhibits – editing/altering, 23:20.60 handling/processing of, 23:20.70 interpreting, 23:20.90 generally, 23:10 juryroom, 23:20.100 prosecution disclosure/preservation, 23:20.20 testing of, 23:20.50 witness as, 23:20.80 REASONABLE DOUBT. See PERSUASIVE BURDEN REASONS FOR JUDGMENT appeals, on, 37:80.30 bail hearing, reasons for judgment in, 35:50.20 general principles, 35:50.10 REBUTTAL EVIDENCE. See REPLY EVIDENCE RECORDINGS. See REAL EVIDENCE RECORDS hearsay rule and. See HEARSAY RULE medical, psychiatric or counselling communications, 13:60.30.20 public, 24:50 refreshing memory from written records, 21:20.20 therapeutic, applications for and disclosure of, 17:10 RE-EXAMINATION discretion to permit, 21:40.20 generally, 21:40 inadmissible matters, on, 21:40.40 leading questions, general prohibition against, 21:40.30 parameters of, 21:40.10 re-cross-examination in response to new matters arising in, 21:40.50 RELEVANCE admissibility and, 4:40 context, importance of, 4:20 determining, 4:20 equivocal statements, 4:10 legal principles as determinant of, 4:20 logic and experience as determinant of, 4:20, 4:30.10 materiality, relationship to, 4:10.20 meaning of, 4:10.10 similar facts and. See SIMILAR FACT RULE social context and, 4:30 common sense and experience, dangers of, 4:30.10 need for, 4:30.20 race-based stereotypes, 4:30.10 threshold re, 4:10

IN-46 INDEX

RE-OPENING Crown case, 21:60 application to reply, comparison to, 21:60.40 application to re-open brought at first or second stage, 21:60.40.10 application to re-open brought at third stage, 21:60.40.20 when closed but defence has not elected, 21:60.20 when defence has elected, 21:60.30 ex improviso test no longer valid, 21:60.30.30 examples of when Crown allowed to re-open, 21:60.30.20 prejudice not alleviated by allowing defence to re-open or recall Crown witnesses, 21:60.30.40 rationale for severely restricting Crown’s ability to re-open, 21:60.30.10 whether defence would have been different not relevant factor, 21:60.30.50 when not yet closed, 21:60.10 defence case, 21:70 after conviction, 21:70.20 before conviction, 21:70.10 REPLY EVIDENCE case-splitting, rule against – Aalders decision does not change law re, 21:50.50 general parameters of, 21:50.10 other rules governing admissibility of reply evidence and, 21:50.20 rationale for, 21:50.10 refining, 21:50.30 countering prospective defences, 21:50.60 discretion of trial judge to allow, 21:50.40 irrelevant whether elicited from defence witness in chief or cross-examination, 21:50.70 lately discovered evidence, 21:50.80 permissible - examples of, 21:50.90 character evidence, 21:50.90.30 disproving alibi, 21:50.90.20 expert evidence, 21:50.90.10 NCRMD defence, 21:50.90.40 prior inconsistent statements, 21:50.90.50 surreply, 21:50.100 REPUTATION character and, 9:40.30.10 untruthfulness, for, 6:80.50 RES GESTAE hearsay exception, as. See HEARSAY RULE SELF-INCRIMINATION, PRIVILEGE AGAINST. See also SILENCE, RIGHT TO generally, 15:10

IN-47 2017—4 MCWILLIAMS’ CANADIAN CRIMINAL EVIDENCE

SELF-INCRIMINATION, PRIVILEGE AGAINST — continued non-testimonial compulsion: s. 7 of Charter, 15:30 linguistic evidence, 15:30.10 non-linguistic evidence, 15:30.20 testimonial compulsion, 15:20 accused’s non-compellability, 15:20.10 adverse inferences from accused failing to testify, 15:20.30 constitutional exemption from testifying: s. 7 of Charter, 15:20.60 contemporary rule, 15:20.60.20 history of, 15:20.60.10 timing of application re, 15:20.60.30 Charter s. 11(c), application of, 15:20.20 administrative proceedings, 15:20.20 corporate defendants, 15:20.20 extradition proceedings, 15:20.20 forfeiture proceedings under Customs Act, 15:20.20 post-conviction proceedings, 15:20.20 derivative use immunity: s. 7 of Charter,15:20.50 proving that evidence is derivative, 15:20.50.20 rationale for, 15:20.50.10 transactional immunity, 15:20.50 use immunity: s. 13 of Charter, 15:20.40 contemporary rule: R. v. Henry and R. v. Nedelcu, 15:20.40.20 cross-examination on knowledge of protection, 15:20.40.30 history of, 15:20.40.10 SENTENCING CC provisions, 36:10 character evidence, 36:30.20 community impact statements, 36:70 dangerous offender hearings, 36:30.80 discretion to exclude evidence, 36:20 distinctive evidentiary contexts, 36:10 extrinsic criminal conduct, 36:30.30 factual findings, 36:30.40 fresh evidence, 36:30.80 hearsay evidence, 36:30.60 judge judicial role re Gladue requirements, 36:40.10 role in adducing evidence, 36:40 minimal reliability threshold, 36:30.10 offender statements, 36:80 pre-sentence reports, 36:50 sentencing circles, factual differences, 36:30.50 trial evidence, use of, 36:30.70 victim impact statements, 36:60

IN-48 INDEX

SEXUAL OFFENCES evidentiary rules re, generally, 16:10 historical offences, 16:20.70.40, 17:10.40.10 prior sexual history evidence (CC s. 276), 16:20 categories of relevance (CC s. 276(2)), 16:20.50 consent defence, 16:20.50.20 credibility of complainant, 16:20.50.50 motive to fabricate, 16:20.50.50 prior inconsistent statements, 16:20.50.50 reliability, 16:20.50.50 generally, 16:20.50.10 mistaken belief in consent defence, 16:20.50.30 narrative or context, 16:20.50.60 characterization as circumstantial not character evidence, 16:20.10 factors to be balanced with probative value (CC s. 276(3)), 16:20.60 general principles, 16:20.30 Crown, application of provision to, 16:20.30.40 exclusionary rule, 16:20.30.30 purpose of rape shied provision: preventing discrimination, 16:20.30.20 test for admissibility, 16:20.30.10 history of rape shield provision, 16:20.20 HIV non-disclosure, 16:20.50.40 procedure, 16:20.70 affidavit, 16:20.70.10 historical offences, 16:20.70.40 timing of application, 16:20.70.30 voir dire, 16:20.70.20 sexual activity, meaning of, 16:20.40 childhood sexual exploration, 16:20.40.30 post-allegation consensual sexual activity, 16:20.40.40 prior non-consensual acts, 16:20.40.50 virginity, 16:20.40.20 sexual reputation evidence (CC s. 277), 16:30 therapeutic records (CC s. 278.2), 17:10 constitutional considerations, 17:10.10 insufficient grounds for production (CC s. 278.3(4)), 17:10.50 likely relevance threshold, 17:10.70 behavioural issues, 17:10.70.50 credibility and prior inconsistent statements, 17:10.70.20 diaries, 17:10.70.10 disclosure of abuse in therapy, 17:10.70.40 false allegations, 17:10.70.70 false memory syndrome, 17:10.70.90 lack of complaint in record, 17:10.70.30 mental health diagnosis, 17:10.70.60 narrative or context, 17:10.70.80 procedure, 17:10.40

IN-49 2017—4 MCWILLIAMS’ CANADIAN CRIMINAL EVIDENCE

SEXUAL OFFENCES — continued therapeutic records (CC s. 278.2) — continued procedure — continued notice, 17:10.40.30 preliminary inquiry, 17:10.40.20 service, 17:10.40.30 production to court and accused (CC ss. 278.4 and 278.5), 17:10.60 provisions governing production, 17:10.20 two-stage procedure, 17:10.20.10 records falling under CC s. 278.2, 17:10.30 information in hands of police, 17:10.30.30 joint sessions with complainant and accused, 17:10.30.40 reasonable expectation of privacy, 17:10.30.20 ‘‘record’’, definition of (CC s. 278.1), 17:10.30.10 SILENCE, RIGHT TO, see also SELF-INCRIMINATION, PRIVILEGE AGAINST inferences from pre-trial silence, 15:40.20 alibi, failure to give timely and sufficient notice of, 15:40.20.30 permissible adverse inferences, 15:40.20.20 permissible uses of silence, 15:40.20.20 Hebert rule, 15:40.10 active elicitation requirement, 15:40.10.40 right applies only during detention, 15:40.10.20 state agency requirement, 15:40.10.30 statements to persons in authority not included, 15:40.10.10 SIMILAR FACT RULE admission of similar fact evidence, standard of proof, 10:50 appellate review, 10:90 Canada, in, 10:30 development of rule, 10:30.30 English authority, adoption of, 10:30.20 generally, 10:30.10 Makin v. New South Wales, influence of, 10:30.20.10 principled approach. See principled approach, infra relevance analysis. See relevance, infra co-accused, similar acts of, 10:60 jury instructions, 10:60.10 rules re, 10:60 English common law, development of rule in, 10:20 category approach, demise of, 10:20.30 disputed allegations of similar acts, 10:20.20 gatekeeper function, 10:20.30, 10:20.40 generally, 10:20.60 homosexual offences, 10:20.20 ‘‘improbability of similar lies’’ analysis, 10:20.20 juries, faith in, 10:20.40.10

IN-50 INDEX

SIMILAR FACT RULE — continued English common law — continued miscarriages of justice, 10:20.50 propensity reasoning, prohibition of, 10:20.10 relaxation of rule, 10:20.50 similar facts vs. similar allegations, 10:20.10 specific propensity, 10:20.10 exclusionary rule, see also principled approach, infra policy rationale for, 10:10.10 investigative procedures issue, 10:10.10 trial fairness issue, 10:10.10 statement of, 10:10 group identification evidence, 10:70 conclusiveness test, re, 10:70 rotating gang, 10:70 static gang, 10:70 improbability of coincidence analysis, 10:30.30.20, 10:40.20.20 issues in question, 10:40.10 jury instructions, limiting, 10:80 generally, 10:80 negative instruction, 10:80.20 positive instruction, 10:80.10 multiple count indictments, 10:100 evidence on each count, 10:100.10 multi-count indictments, cross-admissibility, 10:100.20 need to sever counts, 10:100.30 prejudicial effect, 10:40.30 moral prejudice, 10:40.30.10 reasoning prejudice, 10:40.30.20 whether probative value exceeds, 10:40.40 principled approach, see also probative value, infra current rule stated, 10:40 prejudicial effect. See prejudicial effect, supra probative value. See probative value, infra threshold issues, 10:40.10 satisfaction of, 10:40.10 whether evidence caught by exclusionary rule, 10:40.10.20 conduct framing subject-matter of charge, evidence of, 10:40.10.20(a) conduct/narrative/relationship, evidence tendered re, 10:40.10.20(c) context exception, 10:40.10.20(c) habit and physical state, evidence of, 10:40.10.20(b) motive/animus and post-offence conduct, evidence, 10:40.10.20(c) other purposes, evidence tendered for, 10:40.10.20(c) prior discreditable conduct evidence, 10:40.10.20(c) whether evidence discreditable, 10:40.10.10 whether evidence linked to accused, 10:40.10.30 probative value, 10:10.20, 10:30.30, 10:30.30.20, 10:40.20, 10:40.40

IN-51 2014—3 MCWILLIAMS’ CANADIAN CRIMINAL EVIDENCE

SIMILAR FACT RULE — continued probative value — continued assessment, 10:40.20.20 factors informing inquiry, 10:40.20.20.20 context/circumstances, 10:40.20.20.20 detail, similarities in, 10:40.20.20.20 intervening events, 10:40.20.20.20 number of occurrences, 10:40.20.20.20 proximity in time, 10:40.20.20.20 similarities and dissimilarities, 10:40.20.20.20 strength of evidence that similar acts occurred, 10:40.20.20.20 unifying distinctive features, 10:40.20.20.20 general to specific propensity, 10:40.20.20.10 improbability of coincidence, probative value and, 10:40.20.20.10 propensity reasoning, 10:40.20.20.10 issue to which evidence directed, 10:40.20.10 actus reus, to prove, 10:40.20.10.10 credibility, to support, 10:40.20.10.10 identity, to prove, 10:40.20.10.10 mens rea, to prove, 10:40.20.10.10 identity proof of, 10:40.20.10.10, 10:40.20.30 preliminary inquiries, 10:40.20.30.10 whether probative value exceeds, 10:40.40 procedural considerations, 10:110 propensity reasoning, 10:20.10, 10:30.30.20 specific propensity reasoning, 10:20.10, 10:30.30.20 relevance, 10:30.30.10 behavioural science, 10:30.30.10 situationalism, 10:30.30.10 trait theory, 10:30.30.10 standard of proof, 10:50 SOCIAL CONTEXT EVIDENCE Aboriginal offenders and, 3:20.50 generally. See RELEVANCE SCC approach to, 3:20.40, 3:20.50 SOLEMN AFFIRMATION generally, 20:50 understanding, 20:20.40.20.10 SOLICITOR-CLIENT PRIVILEGE conditions precedent, 13:20.20 Crown and police, between, 13:20.20 deceased client, 13:20.30 duration, 13:20.30 enjoyment, 13:20.20

IN-52 INDEX

SOLICITOR-CLIENT PRIVILEGE — continued exceptions, 13:20.50 furtherance of crime/unlawful conduct, communications in, 13:20.50.10

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IN-52.1 2013—2 INDEX

SOLICITOR-CLIENT PRIVILEGE — continued exceptions — continued innocence at stake, 13:20.50.30 public safety, 13:20.50.20 freedom of information legislation, relationship to, 13:20.70.30 identity of client, 13:20.40 joint consultation, 13:20.20 lawyer’s fees, 13:20.40 lawyers’ offices, search of, 13:20.70.10 lawyers, in-house, salaried, government, 13:20.20 legislative incursions, 13:20.70 legislative obligations to produce documents and information, 13:20.70.20 loss, 13:20.60 McClure application, 13:20.50.30 nature and rationale, 13:20.10 scope, informational, 13:20.40 special issues, 13:20.70 third party, privy to, 13:20.20 waiver, 13:20.60 SPOUSAL COMMUNICATIONS compellability, 20:30.20.30 privilege and, 13:40 SPOUSE competence and compellability. See COMPETENCE AND COMPELLABILITY failure to testify. See ADVERSE INFERENCES STANDARDS OF PROOF. See EVIDENTIAL BURDEN; PERSUASIVE BURDEN; PRESUMPTIONS STATEMENTS, see also HEARSAY RULE confessions. See CONFESSIONS exculpatory statements. See EXCULPATORY STATEMENTS prior consistent statements. See PRIOR CONSISTENT STATEMENTS prior inconsistent statements. See PRIOR INCONSISTENT STATEMENT sureties, to, 35:40.20 victim, 36:60 videotaped statements of, 7:120.30 STRICT LIABILITY, 28:30.50.30 SUPREME COURT OF CANADA evidentiary reforms of, 3:20 Aboriginal offenders, social context evidence re, 3:20.50 admissibility – defence hearsay, 3:20.60 principled approach to, 3:20.30 constitutionalizing adversarial process, 2:30, 3:20.20

IN-53 2016—3 MCWILLIAMS’ CANADIAN CRIMINAL EVIDENCE

SUPREME COURT OF CANADA — continued evidentiary reforms of — continued defence evidence, approach to, 3:20.60 fairness in evidence-gathering process, 3:20.10 gender and age-based stereotypes, elimination of, 3:20.40 social context approach, 3:20.40, 3:20.50 credibility assessments and, 3:20.50 stereotypes, sensitivity to, – gender and age-based, 3:20.40 racial, 3:20.50 systemic racism, factoring in, 3:20.50 wrongful convictions, protection against, 3:20.60 SURREPLY EVIDENCE, 21:50.100 TAPE RECORDINGS. See REAL EVIDENCE TESTIMONY, see also CROSS-EXAMINATION; EXAMINATION OF WITNESSES; FAILURE TO TESTIFY; FORMAL AND INFORMAL ADMISSIONS co-accused, of, 20:30.10 declarant, of, 11:20.20 in prior proceedings, 7:120 prior proceedings, in, 7:120.20 spousal, 20:20.20, 20:30.20 THIRD PARTY RECORDS. See also SEXUAL OFFENCES disclosure vs. production, 17:20.20 general principles, 17:20.10 alternatives to production, 17:20.10.30 balancing relevant factors, 17:20.10.10 credibility, 17:20.10.20 likely relevance, 17:20.10.10 reasonable expectation of privacy, 17:20.10.20 jurisdiction, 17:20.30 procedure, 17:20.40 notice, 17:20.40.10 service, 17:20.40.10 timing, 17:20.40.30 voir dire, 17:20.40.20 TRIAL. See CRIMINAL TRIAL TRIAL FAIRNESS administration of justice, bringing into disrepute, 5:30.10, 5:30.20.20 case-splitting, 6:60 Charter rights and values and, 5:30.30 ‘‘fairness’’, concept of, 5:30.20.10 Harrer case, 5:30 application of, 5:30.50

IN-54 INDEX

TRIAL FAIRNESS — continued Harrer case — continued Seaboyer vs., 5:30.40 hearsay rules and, 7:20.30 historical roots, 5:30.10 jurisdiction: Harrer case vs. Seaboyer case, 5:30.40 similar fact rule, 10:10.10 threshold test, 5:30.20 assessing trial fairness, 5:30.20.10 repute of administration of justice, protecting, 5:30.20.20 VERDICT directed. See EVIDENTIAL BURDEN unreasonable. See APPEALS VICTIM character of. See CHARACTER EVIDENCE statements, 36:60 VIDEOTAPE. See REAL EVIDENCE VOIR DIRE confession, re. See CONFESSIONS expert opinion evidence, re, 12:30.40.60 rape shield provisions and, 16:20.70.20 third party records, re, 17:20.40.20 VOLUNTARINESS. See CONFESSIONS WITNESSES accused as. See ACCUSED adverse, 21:20.30.60 child. See CHILD compellability. See COMPETENCE AND COMPELLABILITY competency. See COMPETENCE AND COMPELLABILITY corroboration. See CORROBORATION credibility of. See CREDIBILITY cross-examination of. See CROSS-EXAMINATION Crown discretion to call witnesses, 21:80 examination of in-chief. See EXAMINATION OF WITNESSES expert. See EXPERT OPINION EVIDENCE failure to call, 33:10.30, 33:20.20.10 hostile, 21:20.30.50 impeaching. See ADVERSE INFERENCES; EXAMINATION OF WITNESSES; CROSS-EXAMINATION; PRIOR INCONSISTENT STATEMENT interpreter for. See COURT INTERPRETERS lay witnesses. See OPINION EVIDENCE opinion evidence of. See OPINION EVIDENCE spouse as. See SPOUSE

IN-55 2014—4 MCWILLIAMS’ CANADIAN CRIMINAL EVIDENCE

WITNESSES — continued trial judge’s power to call, 21:90 unfavourable. See EXAMINATION OF WITNESSES, unfavourable witnesses YOUNG PERSONS confessions of, 8:50.20

IN-56