Stuart O'Connell Criminal Law Blog

Hearsay evidence — an out-of-court statement tendered for the truth of its contents — is presumptively inadmissible.  This is because the dangers associated with hearsay evidence may undermine the truth-seeking function of a trial or its fairness.  These dangers typically include an inability to test and assess a declarant’s perception, memory, narration, or sincerity:  R. v. Khelawon , 2006 SCC 57 (CanLII), [2006] 2 S.C.R. 787 , at para. 2 . The law has conventionally favoured the evidence of witnesses who give evidence in court because they can be observed, under oath or affirmation, and their credibility and reliability can be tested by cross-examination.  These elements help the trier of fact assess the credibility of the declarant or witness, the reliability of the evidence, and the degree of probative force it carries.  When these elements are absent, as is the case with a statement made outside of the court, it is more difficult for the trier of f...

As made clear by the Supreme Court in Youvarajah , 2013 SCC 41 (CanLII), [2013] 2 S.C.R. 720 , at paras. 26-30,  the admission of agreed statements of fact for their truth should be consistent with the court’s earlier decisions in K.G.B. and R. v. Khelawon , 2006 SCC 57 (CanLII), [2006] 2 S.C.R. 787 .  That is, when a witness recants, the agreed statement of facts may be admissible for its truth as an out-of-court prior inconsistent statement if threshold reliability can be established by “the presence of adequate substitutes for testing truth and accuracy (procedural reliability)”: Youvarajah , at para. 30. R. v. Alexander , 2015 ONCA 167 (CanLII), at para. 17.

Historically, an out-of-court prior inconsistent statement of a non-accused witness was admissible only to impeach the credibility of the witness.  A prior inconsistent statement — hearsay evidence — was not admissible for the truth of its contents unless the witness adopted the prior statement in court.  Otherwise, the jury was limited to rejecting the viva voce evidence of the recanting witness; the jury could not substitute the contents of the out-of-court statement. This traditional rule excluding prior inconsistent statements was altered in K.G.B. ( R. v. B. (K.G. ) ,  1993 CanLII 116 (SCC),  [1993] 1 S.C.R. 740) to conform with the evolving principled approach to hearsay.  On an exceptional basis, a prior inconsistent statement is admissible for the truth of its contents, provided the threshold criteria of necessity and reliability are established. In K.G.B., at p. 787, Lamer C.J. stated that the focus of the reliability inquiry, when dealin...

Counsel :             “Is it possible that X occurred?” Witness :            “Maybe.” Here, the Witness has not accepted the premise or upshot of the question; as a result, the answer of the witness provides no evidence as to whether or not X occurred . Questions are not evidence. Answers are evidence. Questions can only become evidence where the witness adopts the proposition put to them in the question as true. As the Supreme Court of Canada recognized in R. v. Simpson , a proposition put to a witness during cross-examination does not constitute evidence of the proposition, unless the witness adopts it as true and that a witness’s “inability to reject the suggestions put to him does not shed any light on whether those suggestions are true or not.  Without more, all that his answers convey is that he was not personally aware” of the events in question.  “To rel...

In R. v. Kienapple 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729, the Court articulated, and applied (and arguably expanded) the common law theory of res judicata to preclude multiple convictions for the same criminal wrong. Kienapple provides that where the same transaction gives rise to two or more offences with substantially the same elements and an accused is found guilty of more than one of those offences, that accused should be convicted of only the most serious of the offences. R. v. Kienapple , supra , at p. 540.  The other charges should be conditionally stayed. R. v. P. (D.W.) (1989), 1989 CanLII 71 (SCC), 49 C.C.C. (3d) 417 (S.C.C.) .  Justification for the Rule The rule which is linked to the court’s power to protect against abuses of its process is designed to “protect an individual from an undue exercise by the Crown of its power to prosecute and punish”. Kienapple , at p. 540 When the Rule Operates The Kienapple rule precludes multi...

R. v. Stinchcombe 1991 CanLII 45 (SCC), [1991] 68 C.C.C. (3d) 1 (S.C.C.) is the leading case regarding disclosure obligations on the part of the prosecution.  It establishes that the prosecution shall disclose all relevant evidence within its possession.  The obligation is very broad but not unlimited. In R. v. Collins , when discussing disclosure obligations in the regulatory offense context the court observed that, ... The vast majority of regulatory offences do not rise to this level of complexity, however. Some regulatory offences are so simple, in fact, that they are classified as absolute liability offences. Others, including most 'traffic' violations are minor and routine. When one takes into account all bylaws created by delegated legislative authority to every municipality in the province, it is safe to conclude that the majority of regulatory offences are simple matters requiring effective but also efficient litigation processes. In the case of regul...

The framework for admitting expert evidence In R. v. Abbey, 2009 ONCA 624 (CanLII), Doherty J.A. charted a two-step process for determining the admissibility of expert opinion evidence. Step 1 The four criteria from R. v. Mohan 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 were absorbed under the first step: (i)            relevance, (ii)          necessity in assisting the trier of fact, (iii)         absence of an exclusionary rule (other than the opinion rule), and (iv)           a properly qualified expert. The party proffering the opinion must demonstrate on a balance of probabilities that these preconditions to admissibility exist before proceeding to the second step. Step 2 Provided the applicant satisfies the court as to the existence of the four Mohan criteria, then the court will go o...

There is no right of appeal in criminal matters save as provided by statute. The Criminal Code does not provide for interlocutory appeals. See e.g., R. v. Lehoux , 2006 BCCA 18, leave to appeal ref’d [2006] 1 S.C.R. xi; R. v. Pal , 2007 BCCA 428, 246 B.C.A.C. 83; R. v. Anderson, 2017 BCCA 153. Criminal Code Section 674 No proceedings other than those authorized by this Part and Part XXVI shall be taken by way of appeal in proceedings in respect of indictable offences. In R. v. Mills , 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863 , 26 C.C.C. (3d) 481 , the Supreme Court of Canada said: It has long been a settled principle that all criminal appeals are statutory and that there should be no interlocutory appeals in criminal matters.  This principle has been reinforced in our Criminal Code , prohibiting procedures on appeal beyond those authorised in the Code .  It will be observed that interlocutory appeals are not authorized in the Code .

  While clearly an accused cannot argue that he misinterpreted “no” as meaning “yes” ( R. v. J.A . (2011), 2011 SCC 28 (CanLII), 271 C.C.C. (3d) 1 (S.C.C.), at para. 24; R. v. Ewanchuk , 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at para. 51), where the circumstances called for the accused to take reasonable steps to ascertain the complainant’s consent, and he failed to do so, he is statutorily barred from reliance on the mistake defence.   R. v. Daigle , [1989] 1 S.C.R. 1220 , at para. 3 ; R. v. Potvin , 2012 ONCA 113 (CanLII) , at para. 4 . In R. v. Potvin , the complainant repeatedly said “no” to sex and then appeared to say “yes” by uttering the word “okay”. Viewed in the context of all that preceded it, the complainant’s use of the word “okay” was ambiguous.  In the absence of further inquiry by the accused, a single “okay” after five refusals over a sustained period of time was simply insufficient to ground a reasonable but mistaken belief in consent...

Section 715.1 is a statutory exception to the rule that hearsay is inadmissible.  It permits an out‑of‑court statement to be admitted for the truth of its contents, provided that certain conditions are met.  Specifically, the complainant must be under 18 years of age, the video must have been made within a reasonable time following the alleged offence, the complainant must describe the acts complained of and, while testifying, adopt the contents of the videotape. The Need for a Voir Dire Prior to the introduction of a videotaped statement under s. 715.1, a voir dire must be held in order to review the contents of the tape to ensure that the statements within it conform to the rules of evidence. At this stage, the trial judge may exercise his or her discretion to exclude part or the whole of the videotaped statement if prejudice from its admission would outweigh its probative value. See R. v. L.(D.O.), 1993 CanLII 46 (SCC); R. v. F. (C.C.), [1997] 3 ...

The fact that a witness is available at trial does not preclude her prior statement from being necessary. With respect to the test of necessity, a number of cases have held that this test is met when a witness recants or in some other fashion effectively holds hostage evidence that cannot be obtained from another source. In both K.G.B. and R. v. U. (F.J.) , 1995 CanLII 74 (SCC),[1995] 3 S.C.R. 764, for instance, the majority of the Supreme Court held that the necessity test was met when a witness recanted on an earlier statement.  The earlier statement was necessary evidence because evidence of the same quality could not be obtained at trial.    Where a witness recants, that satisfies the necessity requirement.  R. v. Taylor , 2015 ONCA 448 (CanLII), 325 C.C.C. (3d) 413 , at para. 69 ; R. v. Khelawon , 2006 SCC 57 (CanLII), [2006] 2 S.C.R. 787 , at para. 78 ; and R. v. Youvarajah , 2013 SCC 41 (CanLII), [2013] 2 S.C.R. 720 , at para. 22 .

Hearsay is presumptively inadmissible.    However, under the principled exception to this rule, hearsay evidence may be admitted   if, on a voir dire, the party seeking to admit the evidence establishes, on a balance of probabilities, sufficient indicia of necessity and reliability.   R. v. Khelawon , 2006 SCC 57 (CanLII) , [2006] S.C.J. No. 57, at para. 2. Repetition and Necessity “The criterion of necessity will not operate such as to allow the introduction of evidence which, in itself, may not be necessary because it is merely repetitious of statements already admitted and, for that reason may have little or no probative value, whereas the prejudice to the accused resulting from its admission would be great.” R. v. Meaney (1996), 1996 CanLII 6635 (NL CA), 111 C.C.C. (3d) 55 (Nfld. C.A.) , at para. 42; See also R. v. C. (R.) (2005), 2005 CanLII 27316 (ON CA), 77 O.R. (3d) 364 , at para. 20 . In R. v. Rhayel , the complainant died before tri...

When assessing the credibility of a witness, there are a number of factors to consider. These may include a witness’s reactions to events. It has long been held that post-event demeanour of a sexual assault victim can be used as circumstantial evidence to corroborate the complainant’s version of events. R. v. J.J.A . , 2011 SCC 17, [2011] 1 S.C.R. 628, at paras. 40-41, per Rothstein J. in dissent.   [ The majority decision, written by Charron, J., had ordered a new trial, solely ruling on the admissibility of fresh evidence, and so had not found it necessary to deal with the issue of post-event demeanour of the complainant ].   See also R. v. J.A. , 2010 ONCA 491 (CanLII), at paras. 17 and 18 [renamed R. v. J.J.A  on appeal to the SCC]; R. v. Mugabo , 2017 ONCA 323 at para 25. In R. v. James , [2014] S.C.J. No. 5 , at paragraph 5 , Moldaver, J., speaking for the unanimous Supreme Court of Canada remarked that “…the trial judge failed to consider the compl...

Section 714.1 of the Criminal Code states: 714.1 VIDEO LINKS, ETC—WITNESS IN CANADA -- A court may order that a witness in Canada give evidence by means of technology that permits the witness to testify elsewhere in Canada in the virtual presence of the parties and the court, if the court is of the opinion that it would be appropriate in all the circumstances, including   (a)        the location and personal circumstances of the witness; (b)        the costs that would be incurred if the witness had to be physically present; and   (c)        the nature of the witness’ anticipated evidence. In R. v. Young , 2000 SKQB 419 (CanLII), 201 Sask. R. 158 , at para. 8, the Court—expanding upon the three factors listed under section 714.1—set out a non-exhaustive list of eight factors which should be considered: (1)   will a video appearance by the witness impede or impact negatively on th...

It is settled law that the right to retain and instruct counsel, under s. 10(b) of the Charter , includes a corollary right to consult in private. Without the requisite degree of privacy, the constitutional right to counsel becomes illusory. In theory, a frank exchange between an accused and counsel may require the making of incriminating statements if uttered in the presence of the police. Without privacy, the law presumes that an accused was unable to converse freely, thereby affecting his or her ability to obtain advice and make an informed decision as to what should be said or done. R. v. O'Donnell , 2004 NBCA 26 (CanLII), at para. 6. There is no obligation on the part of the detainee to request or inquire as to the right to consult counsel in private. Failure to advise the accused of their right to instruct counsel in private does not amount to a breach of a right of an accused: R. v. Haudegand (1989), 1989 CanLII 4686 (SK QB), 77 Sask.R. 280 at 280-82 (Q....