INDEX
Aboriginal Rights, 37
Accomplices, 1070
Accused
character evidence. See under
Character evidence
competence and compellability, 848
confessions. See under Confessions
failure to testify, 910
Adjudicative facts, 779, 799
Administrative tribunals, 34
Admissions
confessions, See Voluntary confes-
sion rule
conspiracy, 430
formal admissions, 767
guilty pleas, 772
implied, 424
joint trials, 420
statements adopted by conduct, 420
statements adopted by silence, 427
statements of employees/agents, 428
statements of person with common
purpose, 428
theories justifying reception, 417
Adversary system, 1, 5
Adverse witnesses, 981, 989, 992
Air of reality test, 123
Applicability of laws of evidence, 34
Authentication, 810
Best evidence rule, 826
Bias, 2, 4, 999
Breathalyzer, 141
Burdens of proof
air of reality test, 123
allocation
civil cases, 44
criminal cases, 50
choosing competing versions, 64
circumstantial evidence, 80, 105
confessions, 510
directed verdict. See Directed verdict
facts within knowledge of accused,
53
inferences, 80
innocence, 8
insanity defence, 51, 145
measure of burden of persuasion, 53
civil cases, 53
criminal cases, 61, 77
measure of evidential burden, 114
absence of evidence to contrary,
140, 147
air of reality, 123
civil cases, 127
directed verdict, 115, 127
extradition, 115, 118
impaired driving, 141
preliminary inquiry, 115
post offence conduct, 86, 93, 105
presumptions
false, 136
innocence, 144
true, 140
racial profiling, 46, 158, 656
reasonable doubt, 61, 63
res ipsa loquitur, 44
reverse onus, 144
rule in Hodge’s case, 104
sentencing, 35
terminology, 41
Business records, 446
1114 INDEX
Character evidence
accused
See Criminal record
assumptions, 225
disposition, 217, 220
evidence of bad character, 231
evidence of good character, 229
previous convictions. See Crim-
inal record
proof, 239
putting character in issue, 234
warnings, 245
civil cases, 226, 283
co-accused, 287
evidence of good character. See
Credibility, supporting
habit, contrasted, 209
impeachment of witnesses, and, 979
material issue, 217
propensity, 217
relevant to fact in issue, 217
similar facts. See Similar fact evi-
dence
third party, 287
victim, 292
legislation to shield complai-
nant, 314, 340
self-defence, 292
sexual asault, 294, 299, 320, 340
warnings, 245
Charter of Rights and Freedoms
balancing Charter values, 732
compellability, 848, 888
demonstrably justified reasonable
limit, 144
insanity defence, 145
presumption of innocence, 144
principle against self-incrimination,
901
rape shield laws, 294, 320, 340
records of third parties, 732, 758
right to silence, 507, 510, 901
self-incrimination. See Self-in-
crimination
trial by jury, 10
Children, evidence of, 854, 859, 868
Circumstancial evidence, 80, 86, 105
Civil actions
burden of proof, 44
character, 226, 283
non-suit, motion for, 127
presumptions, 142
res ipsa loquitur, 44
similar fact evidence, 261
summary judgment, 127
Civility, 18, 22, 25
Codification, 31
Collateral facts rule, 969
Compellability. See Competence and
compellability
Competence and compellability
accused, See also Self-incrimina-
tion, 888
children, 854, 859, 868
immaturity, 854
interest, 885
mental capacity, 877
oath/affirmation, 848
spouses, 887
Confessions, 492, 510
expert opinion, 650
Mr. Big, 523
pre-trial right to silence, 507
recordings, 551
undercover operations, 523
Consciousness of guilt, 105
Conspiracy, 430
 INDEX 1115

Corroboration Demeanour, 1057, 1066

accomplices, 1070
Demonstrative evidence, 835
children, 1081
defined, 1068 Direct evidence, 80, 95, 105
forgery, 1069
Directed verdict
informers, 1078
civil cases, 127
perjury, 1068
test, 115
sex cases, 1081
treason, 1069 Disclosure, 3
Vetrovec warning, 1071 Discretion
Credibility, supporting, 1028 Charter, 171, 194, 200
demeanour, 76, 957, 1057, 1066 generally, 168
exceptions Mr. Big, 523
allegation of recent fabrication, probative value and prejudicial ef-
1038 fect, 179, 181, 186
exculpatory arrest statement, reading in, 171
1047 repute of justice system, 200
narrative, 1043 trial fairness, 174
prior identification, 1042 DNA evidence, 620
recent complaint, 1052
oath-helping, 1028 Documents, 825

Criminal record Dying declarations, 439

Canada Evidence Act, s. 12, 171, Ethics
1016 civility, 18
Corbett applications, 171, 1016 resolute advocacy, 22, 25
Criminal Code, s. 666, 243 role of lawyers, 18
Cross-examination Exceptions to hearsay rule
Brown v. Dunn, 965 911 calls, 466
duty, 965 admissions. See Admissions
good faith, 946 business records, 446
improper Crown, 950 confessions, 423, 476
purpose, 945 declarant available, 459
Crown privilege declarant unavailable, 436
identity of informers, 726 declarations against interest, 436
statutory provisions, 724 declarations as to mental/emo-
tional state, 460
Declarations against interest, 436 declarations as to physical sensa-
Declarations in course of duty, 433 tion, 459
declarations in course of duty, 433
Defences
dying declarations, 439
air of reality, 123
1116 INDEX
excited utterances, 466
former testimony, 454
hospital records, 364
past recollection recorded, 931
present sense impression, 459
res gestae, 466
spontaneous statements, 466
Excited utterances, 466
Excluding evidence. See Confessions
Charter, 171, 194, 200
common law, 179
expediency, 51
Expert witnesses
DNA, 620
drug recognition, 606
exchange of reports, 668
eyewitness, 624
false confessions, 650
hearsay, opinion based on, 660
hypothetical questions, 664
identification, 624
independent, 572
learned treatises, 666
memory, 647
novel science, 596
opinions on credibility, 628, 638
profile, 656
social science, 586
tests, 572, 596, 599
text books, use of, 666
ultimate issue rule, 561
Extradition hearings, 115, 118
Eyewitness identification, 95, 624
Fair trial, 76, 194, 957
Family matters, 35
Formal admissions, 767
Former testimony, 454
Guilty plea, 767
Habit, 209
Hearsay rule
approaches, 364
child’s out-of-court statements, 366
civil cases, 413
corroboration, 342
defined, 350
examples of non-hearsay state-
ments, 350
exceptions. See Exceptions to
hearsay rule
history, 346
identifying hearsay, 350, 356
motive to lie, 399
necessity, 407
principled approach, 364, 366, 381
prior inconsistent statements, 370
reasons for, 349
recanted statements, 370
reliability, 393
reviewing exceptions, 430, 435
Hodge’s case, rule in, 104
Hostile witnesses, 981, 989, 992
Hypothetical questions, 664
Identification, 120
Impeachment of witnesses
accused as witness, 1015
bias, 999
capacity, 1026
character, 1012
experts, 628, 638
impeaching one’s own witnesses,
981
previous convictions, 171, 1016
prior inconsistent statements, 979
self-incrimination, 888
Inferences, 80, 105
 INDEX 1117

Insanity defence, 51, 145 Pre-trial right to silence and interroga-

tion, 507
Interest, compellability and, 886
Present sense impression, 459
Interrogations, videotaped, 551
Presumption
Judge. See Trial judge
absence of evidence to contrary,
Judicial notice 140, 147
adjudicative/legislative facts, 779, care and control, 142
799 conclusive, 136
boundaries of, 775 doctrine of recent possession, 138
Holocaust, 778 false, 136
legislative facts, 779 impaired driving, 141
schools of thought, 779, 787, 791, improper use of term, 136
799 innocence, of, 144
social context, 781 legitimacy, 143
Spence tests, 799 persons intend natural con-
sequences of acts, 137
Labour tribunals, 35
proper use of term, 134
Leading questions, 924 testamentary capacity, 142
Legislative facts, 779 true, 140

Marital communications, 716 Previous consistent statements. See

Credibility, supporting
Materiality, 154. See also Relevance
Prior convictions, 171, 1016
Medical privilege, 673
Prior inconsistent statements, 979
Mental capacity, competence and, 876
Prior testimony, 454
Multiple relevance, 155
Privileges
Non-suit. See Directed verdict balancing Charter values, 732
Oath/affirmation, 848 case-by-case privilege, 731
class privilege, 673, 677, 726
Oath-helping, 1028 confidential communications, 724
Opinion rule, 560. See also Expert wit- Crown privilege. See Crown privi-
nesses lege
marital, 716
Past recollection recorded, 931 police informants, 726
Photographs, 818 records in possession of third par-
ties, 732
Polygraph, 1028 religious communications, 673
Prejudicial, meaning, 179 self-incrimination. See Self-in-
crimination
Preliminary findings of fact, 113 solicitor-client privilege, 677
1118 INDEX
without prejudice communications,
721
Probative value, 171, 179, 186
Questioning of witnesses
collateral facts, 969. See also Im-
peachment of witnesses
cross-examination, 945
leading questions, 924
past recollection recorded, 931
refreshing memory, 931
Race
profiling, 46, 158, 656
Rape. See Sexual offences
Real evidence
authentication, 810
best evidence rule, 826
demonstrative, 835
discretion to exclude. See Discre-
tion
documents, 825
electronic evidence, 828
photographs, 818
videotapes, 813, 846
views, 846
Recent possession, doctrine of, 138
Refreshing memory, 931
Relevance
materiality, 154
multiple, 155
social context, 155
tests, 149, 151
Reliability, 186
Religious communications, 673
Res gestae, 466
Res ispa loquitur, 44
Resolute advocacy, 22
Reverse onus, 144
Right to silence, 507, 510, 901
Role of lawyers, 18, 25
Rule in Hodge’s case, 104
Self-incrimination
Canada Evidence Act, 889
Charter of Rights, 891, 901
comments re: failure to testify, 917
derivative use immunity, 888
history, 888
no inferences from failure to testify,
912
principle against self-incrimination,
888
right to silence, 507, 510, 901
use immunity, 891, 894
Sentence hearings, 35
Sexual offences
corroboration, 1081
cross-examination on medical re-
cords, 732, 758
motive of complainant, 1003
opinions on credibility, 628, 638
rape shield, 294, 320, 340
recent complaint, 1052
records of third parties, 732, 758
Silence. See Right to silence
Similar fact evidence
civil cases, 283
collusion, 261, 276
connection required, 250
general principles, 252, 261
Handy test, 261
identity cases, 257
warning, 279
Solicitor-client privilege, 677
Sources, 28
 INDEX 1119

Spontaneous statements, 466 Videotapes, 841, 871

Spousal communications, 716 Views, 846
Spousal compellability, 28, 30, 887 Voluntary confession rule, 492
person in authority, 483
Statements
pre-trial silence, 510
exculpatory, 476
recording, 551
inculpatory, 476
Without prejudice communications, 721
Sufficiency, 115
Witnesses
Trial judge
adverse/hostile, 981
bias, 2, 4, 76, 158, 957
competence. See Competence and
civility, 18, 22
compellability
comment on evidence, 15
corroboration. See Corroboration
discretion re: cross-examination,
expert. See Expert witnesses
957
impeachment. See Impeachment of
interruptions by, 2, 12, 76, 957
witnesses
Tribunals, 34 questioning. See Questioning of
witnesses
Ultimate issue rule, 560
supporting credibility. See Cred-
ibility, supporting