LSO Barrister Evidence Law — Questions and Answers
Question 1: What is the 'hearsay rule' in Canadian evidence law and what is its rationale?
- All out-of-court statements are automatically admissible
- An out-of-court statement tendered for the truth of its contents is presumptively inadmissible because it was not made under oath, the declarant was not subject to cross-examination, and the trier of fact could not observe demeanour (Correct answer)
- The hearsay rule only applies to written statements
- Hearsay is always admissible if it is relevant
Correct answer: An out-of-court statement tendered for the truth of its contents is presumptively inadmissible because it was not made under oath, the declarant was not subject to cross-examination, and the trier of fact could not observe demeanour
The hearsay rule excludes out-of-court statements offered to prove the truth of their contents. The rationale rests on three concerns: (1) the declarant did not make the statement under oath; (2) the opposing party had no opportunity to cross-examine the declarant; (3) the trier of fact cannot assess the declarant's demeanour and credibility. However, numerous traditional and principled exceptions exist (R v Khan, R v Khelawon).
Question 2: What is the 'principled approach' to hearsay exceptions established in R v Khan and R v Khelawon?
- All hearsay is admissible if the judge considers it reliable
- Hearsay evidence may be admitted if the proponent demonstrates it is both 'necessary' (the declarant is unavailable or there is no adequate substitute) and 'reliable' (there is a sufficient basis for the trier of fact to assess its truth) (Correct answer)
- The principled approach abolished all traditional hearsay exceptions
- The principled approach only applies to children's statements
Correct answer: Hearsay evidence may be admitted if the proponent demonstrates it is both 'necessary' (the declarant is unavailable or there is no adequate substitute) and 'reliable' (there is a sufficient basis for the trier of fact to assess its truth)
The principled approach (R v Khan, 1990; refined in R v Khelawon, 2006) allows hearsay admission based on two criteria: (1) Necessity — the declarant is unavailable (death, illness, incompetence) or there is no adequate alternative to the hearsay; (2) Reliability — threshold reliability is established either through the circumstances of the statement or through adequate substitutes for testing (e.g., the declarant can be cross-examined at trial). This approach supplements, but does not replace, the traditional exceptions.
Question 3: What is 'solicitor-client privilege' and how does it differ from 'litigation privilege' in Ontario?
- They are the same privilege
- Solicitor-client privilege protects confidential communications between lawyer and client for the purpose of seeking or giving legal advice (permanent), while litigation privilege protects documents and communications prepared for the dominant purpose of litigation (ends when litigation concludes) (Correct answer)
- Both privileges are permanent
- Neither privilege can be claimed in Ontario courts
Correct answer: Solicitor-client privilege protects confidential communications between lawyer and client for the purpose of seeking or giving legal advice (permanent), while litigation privilege protects documents and communications prepared for the dominant purpose of litigation (ends when litigation concludes)
Solicitor-client privilege is a substantive right (near-absolute protection) covering confidential communications between lawyer and client for legal advice. It is permanent and survives the relationship's end and the client's death. Litigation privilege protects documents and communications created for the dominant purpose of existing or contemplated litigation. It is temporary — it ends when the litigation concludes. Both are fundamental to the administration of justice but serve different purposes.
Question 4: What is the 'best evidence rule' and how has it evolved in Canadian law?
- Only the best quality evidence is admissible
- The original document (or a reliable copy) must be produced when the contents of a document are at issue, though the rule has been significantly relaxed by statute (e.g., the Canada Evidence Act allows copies) and modern case law (Correct answer)
- Only eyewitness testimony is admissible — documents are never acceptable
- The rule requires experts to testify on all technical matters
Correct answer: The original document (or a reliable copy) must be produced when the contents of a document are at issue, though the rule has been significantly relaxed by statute (e.g., the Canada Evidence Act allows copies) and modern case law
The best evidence rule traditionally required production of the original document when its contents were in issue (secondary evidence, such as copies, was presumptively inadmissible). The rule has been substantially relaxed: the Canada Evidence Act and Ontario Evidence Act allow copies where originals are unavailable, and modern courts focus on the reliability and authenticity of the evidence rather than strict adherence to the original document requirement.
Question 5: What is the test for the admissibility of 'similar fact evidence' in Canadian law?
- Similar fact evidence is always admissible
- Similar fact evidence is admissible when its probative value in relation to a specific issue outweighs its prejudicial effect, as established in R v Handy — the court must identify the specific issue, assess the connection, and weigh probative value against moral and reasoning prejudice (Correct answer)
- It is only admissible in sexual offence cases
- Similar fact evidence is never admissible in Canada
Correct answer: Similar fact evidence is admissible when its probative value in relation to a specific issue outweighs its prejudicial effect, as established in R v Handy — the court must identify the specific issue, assess the connection, and weigh probative value against moral and reasoning prejudice
R v Handy (2002) established that similar fact evidence (evidence of prior misconduct) is admissible when its probative value on a specific issue substantially outweighs its prejudicial effect. The court considers: (1) the specific issue to which the evidence is relevant; (2) the degree of similarity between the acts; (3) the number of similar acts; (4) proximity in time; (5) circumstances surrounding each act; and (6) any intervening events. The onus is on the party seeking to admit it.
Question 6: What is 'opinion evidence' and when are lay witnesses versus expert witnesses permitted to give opinion testimony?
- Only experts can ever give opinion evidence
- Lay witnesses can give opinions on matters of common experience (e.g., speed, sobriety, age, identity, handwriting), while expert witnesses can give opinions on matters requiring specialized knowledge, subject to the Mohan criteria for admissibility (Correct answer)
- Anyone can give opinion evidence on any topic
- Opinion evidence is never admissible in Canadian courts
Correct answer: Lay witnesses can give opinions on matters of common experience (e.g., speed, sobriety, age, identity, handwriting), while expert witnesses can give opinions on matters requiring specialized knowledge, subject to the Mohan criteria for admissibility
Generally, witnesses testify about facts, not opinions. Lay witnesses can give opinions on everyday matters within common experience. Expert opinion requires meeting the Mohan criteria (R v Mohan, 1994): (1) relevance; (2) necessity to assist the trier of fact; (3) no exclusionary rule; (4) the witness must be properly qualified. White Burgess (2015) added that the expert must be willing and able to provide impartial testimony. Gatekeeping prevents unreliable or biased expert evidence.
LSO Barrister Evidence Law
What is the 'hearsay rule' in Canadian evidence law and what is its rationale?