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 2015Ð1 MCWILLIAMS' CANADIAN CRIMINAL EVIDENCE ADMISSIONS Ð 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 Ð continued Lyttle case Ð 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 2015Ð2 MCWILLIAMS' CANADIAN CRIMINAL EVIDENCE APPEALS Ð 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 Ð continued evidentiary requirements for release (CC s. 518(1)) Ð continued ``other relevant evidence'', 35:30.30.10 bad character evidence, 35:30.30.10 Gladue principles, 35:30.30.10 (The next page is IN-5) IN-4.1 2013Ð1 INDEX BAIL HEARINGS Ð continued evidentiary requirements for release (CC s. 518(1)) Ð continued ``other relevant evidence'' Ð 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 2015Ð5 MCWILLIAMS' CANADIAN CRIMINAL EVIDENCE CHARACTER EVIDENCE Ð 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