Overview of Ontario Criminal Evidence Law
The law of evidence in Ontario criminal proceedings is governed by a combination of common law rules, the Canada Evidence Act, R.S.C. 1985, c. C-5, and the Canadian Charter of Rights and Freedoms. The Supreme Court of Canada has fundamentally reshaped evidence law through the principled approach, replacing rigid categorical rules with flexible cost-benefit analyses. The central theme is reliability and fairness: evidence is admitted where it is sufficiently reliable and its probative value outweighs the risk of prejudice.
The Hearsay Rule and the Principled Approach
Hearsay is an out-of-court statement tendered for the truth of its contents. The hearsay rule excludes such evidence because the declarant is not available to be cross-examined, the statement was not made under oath, and the trier of fact cannot assess the declarant's demeanour.
The traditional categorical approach — with fixed exceptions like dying declarations, admissions of a party, statements in the course of duty, and res gestae — was replaced by the principled approach beginning with R v Khan [1990] 2 SCR 531, and fully articulated in R v Khelawon, 2006 SCC 57.
Necessity and Threshold Reliability
Under the principled approach, hearsay may be admitted where the proponent establishes on a balance of probabilities:
- Necessity: The original basis for requiring necessity is the unavailability of the declarant — death, illness, incapacity, or unwillingness to testify. In R v B (KG) [1993] 1 SCR 740, the Supreme Court expanded necessity to include situations where testimony by the declarant would not be as reliable as the prior recorded statement — a prior inconsistent statement may be admitted for its truth if the principled approach requirements are met.
- Threshold reliability: The statement must bear adequate indicia of reliability. Reliability can be established through:
- Circumstantial guarantees of reliability — the circumstances of the making of the statement (the declarant had personal knowledge, was speaking against interest, made the statement close in time to the events, had no motive to fabricate);
- Corroborating evidence — independent evidence that confirms the truth of the hearsay statement.
The ultimate reliability and weight of hearsay admitted under the principled approach is assessed by the trier of fact. The trial judge conducts a voir dire to assess threshold reliability.
Established Categorical Exceptions
The principled approach does not displace the traditional categorical exceptions — they are presumptively reliable and necessary because of long experience. Established exceptions include:
- Admissions of a party: statements made by the accused are admissible as admissions (an exception to the hearsay rule) where voluntarily made;
- Dying declarations: statements of present sense impression or belief of impending death;
- Excited utterances: spontaneous statements made in the course of a startling event;
- Business records: records made in the ordinary course of business at or near the time of the events.
Similar Fact Evidence
Similar fact evidence — evidence of other discreditable acts by the accused — is presumptively inadmissible because of the danger of propensity reasoning: the jury may reason from bad character to guilt rather than focusing on the specific evidence of the charged offence.
The Handy Test: Probative Value vs Prejudicial Effect
In R v Handy, 2002 SCC 56, the Supreme Court set out the analytical framework for similar fact evidence. The trial judge must weigh the probative value against the prejudicial effect:
Factors increasing probative value:
- High degree of similarity between the prior acts and the charged conduct (the more distinctive or unusual, the higher the probative value);
- Number of prior incidents (greater frequency reduces the likelihood of coincidence);
- Proximity in time between prior acts and the charged offence;
- Whether the prior acts could have been the product of coincidence;
- Whether the accused had the opportunity to commit both sets of acts.
Prejudicial effects include:
- Moral prejudice — the jury may convict on the basis of bad character rather than the evidence;
- Reasoning prejudice — confusion, distraction, and mini-trials on collateral matters.
Where admitted, similar fact evidence may be used to establish identity (distinctive modus operandi), intent (rebutting a defence of accident or mistake), a common plan or system, or knowledge.
Solicitor-Client Privilege
Solicitor-client privilege protects confidential communications between a client and their lawyer for the purpose of obtaining or giving legal advice. InR v Lavallee, Rackel & Heintz, 2002 SCC 61, the Supreme Court confirmed that privilege is a fundamental principle of justice and nearly absolute — courts will not balance it against other interests in the ordinary case.
Privilege may be overridden only in the most extraordinary circumstances:
- Innocence at stake exception: Where an accused faces a genuine risk of wrongful conviction and the privileged communications would establish innocence, the court may override privilege — but only to the extent necessary to prove innocence;
- Public safety exception (Smith v Jones [1999] 1 SCR 455): Where there is a clear, serious, and imminent danger to an identifiable person or group, the lawyer may disclose communications to prevent the harm;
- Crime-fraud exception: Communications made to obtain legal assistance for a crime or fraud are not protected by privilege.
Informer Privilege
Informer privilege is an absolute privilege protecting the identity of persons who have provided information to the police in confidence. In R v Leipert[1997] 1 SCR 281, the Supreme Court held that informer privilege can only be overridden where the accused establishes that the informer was a material witness to the offence and the identity is necessary to establish innocence. The court applies the innocence at stake exception — it will review the information in camera to determine if disclosure is necessary.
Voir Dire
A voir dire is a trial within a trial conducted in the absence of the jury to determine the admissibility of evidence. Common occasions for voir dire include:
- Voluntariness of a statement or confession (s.7 Charter and common law confessions rule);
- Admissibility of hearsay under the principled approach;
- Admissibility of similar fact evidence;
- Admissibility of opinion or expert evidence;
- Exclusion of evidence under s.24(2) of the Charter.
On a voir dire on the voluntariness of a statement, the Crown bears the burden of proving voluntariness beyond a reasonable doubt — the accused does not have to testify in the main trial merely because they testify on the voir dire.
Practice Points for Ontario Criminal Defence Lawyers
- Challenge hearsay on necessity and threshold reliability — the Crown must establish both; the absence of any cross-examination opportunity weighs heavily against admission of an out-of-court statement.
- For similar fact applications, argue low probative value (lack of striking similarity, time gaps, other explanations) and high moral prejudice (jury instruction is insufficient to cure the danger).
- Assert solicitor-client privilege immediately when police seek to intercept or search communications with the accused's lawyer — the privilege is the accused's to assert and cannot be waived by the lawyer.
- In jury trials, request limiting instructions when similar fact or hearsay evidence is admitted — the jury must be told the purpose for which the evidence may (and may not) be used.
- Canada Evidence Act provisions: s.16.1 governs competency of witnesses under 14 years of age; s.30 governs admissibility of business records; s.40 provides that in criminal cases not covered by the Act, the law of evidence of the province applies.