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REPORT

THE LAW OF EVIDENCE

ONTARIO LAW REFORM COMMISSION

Ontario

Ministry of the 1976

Attorney

General

Digitized by the Internet Archive

in 2011 with funding from

Osgoode Hall Law School and Law Comnnission of Ontario

http://www.archive.org/details/reportonlawofeviOOonta

REPORT

THE LAW OF EVIDENCE

ONTARIO LAW REFORM COMMISSION

Ontario

Ministry of the 1976

Attorney

General

Tlhe Ontario Law Reform Commission was established by section 1
of The Ontario Law Reform Commission Act, 1964, for the purpose of
promoting the reform of the law and legal institutions. The Commissioners
are:

H. Allan Leal, Q.C, LL.M., LL.D., Chairman

Honourable James C. McRuer, O.C, LL.D., D.C.L.

Honourable Richard A. Bell, P.C, Q.C. .

W. Gibson Gray, Q.C.

William R. Poole, Q.C.

Lyle S. Fairbairn, LL.B., is Counsel to the Commission. The Secre-
tary of the Commission is Miss A. F. Chute, and its offices are located on
the Sixteenth Floor at 18 King Street East, Toronto, Ontario, Canada.

TABLE OF CONTENTS

Page

Letter of Transmittal ix

Introduction xi

Chapter 1 Hearsay Evidence 1

1. The Rule 1

2. Continental Jurisdictions 3

3. Some Approaches to Reform 6

(a) England 6

(b) United States 9

4. Proposals for Reform 11,

5. Recommendation 16

Chapter 2 Res Gestae 19

1. Categories of Res Gestae 20

(a) Words Creating a Right or Liability 20

(b) Statements Relevant to Facts in Issue 20

(d) Statements Linked by Time, Place or Circumstance

with a Fact in Issue or Relevant Fact 22

(e) Spontaneous Statements Relating to an Event in Issue
made by Participants and Observers 22

(f ) Words Relating to the Declarant's Physical or Mental

State 23

2. Application of the Doctrine 23

3. Developments in the United States 2S

(a) Verbal Acts 29

(i ) Utterances forming a part of the issue 29

(ii) Utterances forming a verbal part of an act 30

(iii) Utterances used as circumstantial evidence 30

(b) Spontaneous Exclamations 31

[iii]

Page

4. Alternative Approaches to Reform 35

5. Conclusions 38

6. Recommendation 38

Chapter 3 Previous Statements 39

1. Previous Inconsistent Statements 39

2. Previous Consistent Statements 43

3. Reforms Proposed in Other Jurisdictions 47

(a) United States 47

(b) England 51

4. Recommendations 53

Chapter 4 Illegally Obtained Evidence 57

1. Introduction 57

2. Theoretical Basis for Exclusion 58

3. The Exclusionary Rule in Criminal Trials and its Effect

on the Civil Law 59

(a) The Law in Canada 59

(b) The Law in England 63

(d) The Law in the United States 67

4. Policy Considerations 67

(a) Deterrence 67

(b) The "Clean Hands" Arguments 69

(d) Procedural Arguments 69

5. Conclusion 69

6. Recommendations 72

Chapter 5 Evidence Procured by Methods Repugnant to

THE Fair Administration of Justice 73

L Introduction 73

2. Evidence Procured Through an Involuntary Confession:

The Wray Case 73

(a) The Facts 74

Page

(b) The Interrogation of Wray 74

(d) Excerpts from the Trial Record 87

(e) The Result 90

3. Conclusion 94

4. Recommendations 94

Chapter 6 The Rule in Hollington v. Hewthorn 95

1. The Rule 95

2. Recommendations 102

Chapter 7 Competence and Compellability 105

1. Competence 105

(a) Status 105

(b) Mental Capacity 107

2. Compellability 109

(a) Discussion 109

(b) Recommendation Ill

Chapter 8 The Oath 113

1. Introduction 113

2. English Legislation 115

3. The Canada Evidence Act 116

4. The Ontario Evidence Act 117

5. Evidence of Children of Tender Years 122

6. Conclusions 129

7. Recommendation 130

Chapter 9 Private Privilege 133

1. Introduction 133

2. Marital Privilege 133

(a) Holder of the Privilege 134

(b) Requisite Relationship 135

Page

(d) Proof of Privileged Communication 138

(e) Alternative Approaches to Reform 139

(f) Recommendation 141

(g) Comment and dissent of H. Allan Leal, Q.C 141

3. Questions Concerning Sexual Intercourse 142

(a) Discussion 142

(b) Recommendation 144

4. Proceedings in Consequence of Adultery 144

5. Professional Privilege 144

(a) Solicitor and Client Privilege 144

(b) Other Relationships 145

6. Privilege Concerning Voting 146

(a) Discussion 146

(b) Recommendation 147

7. Evidence Admissible to Prove Privileged Communications 147

(a) Discussion 147

(b) Recommendation 148

Chapter 10 Opinion Evidence 149

1. Introduction 149

2. Non-Expert Opinion 150

(a) Discussion 150

(b) Recommendation 153

3. The Ultimate Issue Rule 153

(a) Discussion 153

(b) Recommendation 158

4. Appointment of Court Experts 158

(a) Discussion 158

(b) Recommendation 164

5. Exchange of Reports of Experts 165

(a) Discussion 165

(b) Recommendation 171

Vll

Page

6. Summary of Recommendations Dealing with Opinion

Evidence 171

Chapter 11 Use of Notes and Past Records 173

1. Introduction 173

2. Use of Notes or Things to Revive Memory 173

(a) Discussion 173

(b) Recommendation 177

3. Past Recollection Recorded 177

(a) Discussion 177

(b) Recommendation 179

4. Records Made in the Course of Duty 1 79

(a) Business Records 179

(i) Discussion 179

(ii) Recommendation 186

(b) Records Kept by a Computer 188

(i) Discussion 188

(ii) Recommendation 192

Chapter 12 Credibility and Character 193

1. Introduction 193

2. Previous Convictions 193

(a) The Ontario Law 193

(b) Other Jurisdictions 194

(i) England 194

(ii) United States of America 195

(iii) Australia and New Zealand 197

(d) Recommendation 199

3. Reputation for Untruthfulness 200

4. Impeaching One's Own Witness 201

(a) Discussion 201

(b) Recommendation 205

VIU

Page

Chapter 13 Admissions 207

1. Introduction 207

2. Admissions by Conduct 210

3. Adoptive Admissions 211

4. Admissions in Judicial Proceedings 212

5. Admissions made in a Representative Capacity 214

6. Vicarious Admissions 216

7. Admissions by Solicitors and Counsel 219

8. Recommendations 220

Chapter 14 Executive Privilege 221

1. Introduction 221

2. The Case Law 222

(a) English Case Law 222

(b) Canadian Case Law 227

3. Legislation 229

4. Conclusions 232

5. Recommendation 232

Chapter 15 Formal Proof of Governmental Documents . 235

1. Discussion 235

2. Recommendation 236

Chapter 16 The Enforcement of Interprovincial

Subpoenas 239

Appendix The Interprovincial Subpoena Act 243

Chapter 17 Application of Section 37 of the Canada
Evidence Act to the Provisions of the
Ontario Evidence Act 249

Conclusion 251

Appendix A Draft Bill: The Evidence Act 253

Appendix B List of Differences Between Draft Bill

AND Present Act 273

Ontario

ONTARIO LAW REFORM COMMISSION

Sixteenth Floor,
18 King Street East,
Toronto, Ontario,
M5C 1C5

To The Honourable R. Roy McMurtry, Q.C.,
Attorney General for Ontario.

Dear Mr. Attorney:

Pursuant to the provisions of section 2(l)(a) of The Ontario Law
Reform Commission Act, 1964, the Commission authorized a research
project on the law of evidence concerning those matters over which the
Legislature has jurisdiotion. The function of the project was to examine
the present law of evidence within the province and to suggest reforms
which would preserve the sound and established principles of the law of
evidence, yet adapt that law where necessary to cope with the changing
conditions of modern society. The project required a critical examination
of the rules of evidence in civil proceedings, in prosecutions for provincial
offences, and, to the extent that such proceedings are not governed by the
provisions of other Acts, of the rules of evidence in proceedings before
tribunals or investigatory bodies acting under statutory authority.

Professor Alan W. Mewett of the Faculty of Law of the University
of Toronto was engaged to direct and supervise a research team on the
law of evidence. In the early stages of the project, we received assistance
from a Consultative Committee, composed of members of the Bench and
Bar, who gave us their comments on suggestions made to us concerning
areas of the law of evidence in need of reform.

The major portion of our recommendations are contained in a new
Draft Evidence Act, attached as an Appendix to this Report. This Draft
Act contains many new provisions, which seem to us desirable, as well
as much that is taken, sometimes in a redrafted form, from the existing
provincial statute The Evidence Act. Our Report can be seen as an analysis
and commentary on this Draft Act.

After giving careful consideration to the research papers prepared by
the Research Team, to the helpful comments of the Consultative Commit-
tee and after much additional research, the Commission now submits its
Report on the Law of Evidence.

INTRODUCTION

In the day to day business of the law, few things are more important
yet as httle understood, as the laws of evidence. Since they control the
facts that may be used in judicial investigations the laws of evidence form
a vitally important part of the judicial process in the search for truth. The
rules of evidence have been built up over the centuries, originally within
the common law as principles of law built up from case to case, increas-
ingly supplemented by statutory provisions reforming or consolidating the
common law. In most areas, the basic principles underlying the present
law are sound, but some of the rules of evidence, especially the common
law rules, are obscure; others have been rendered obsolete by the in-
creasing complexity of modern life, and in particular by modern methods
of communication and recording events.

We remain convinced that the common law approach to evidence is
basically sound, and that it would be unwise to reform the law in radically
new directions, aUen to the tradition of the common law, for example by
leaving the admissibility of evidence solely to the judgment of individuals
presiding in particular cases. There must be guidelines which control the
admissibiUty of evidence, but the guidelines must be such that they will not
defeat the tribunal in its search for truth.

Often the law has shown itself out of touch with modern life, indeed
at times out of touch with common sense. For example, in Myers v.
D.P.RA records of automobile engine numbers systematically recorded
on the assembly line were held to be inadmissible in evidence at common
law. It was held that such a record was hearsay evidence. In Goody v.
Odhams Press Ltd.,'^ an action for defamation based on a newspaper
article in which a convicted person was referred to as a robber, it was held
that proof of the robbery conviction was no evidence that he was a robber.
Such examples show that some of the rules of evidence do not commend
themselves to the wisdom of the layman.

In this report we recommend a number of specific amendments, both
to the common law and to statute law. We have prepared a new Draft
Evidence Act, patterned upon The Evidence Act currently in force; our
Draft Act contains the major portion of our recommendations together
with many sound provisions from the present Act. We have thought it
desirable to codify some of the common law, but we do not think it
would be wise to attempt to prepare an exhaustive and comprehensive
code of evidence. In our view, this would give rise to a whole new course
of judicial interpretation creating much uncertainty about the precise
meaning of words and phrases used in such a code, a development which
could seriously disrupt the administration of justice. The better course,
as we see it, is to codify and consolidate where necessary and desirable,
but to leave ample room for the organic growth of the common law to

i[1965] A.C. 1001.
2[1967] 1 Q.B. 333.

meet future conditions which cannot be foreseen. We support the view
that good rules of evidence are essential to the conduct of a fair hearing.

We have endeavoured to prepare a concise statute that is sufficiently
comprehensive to meet most daily requirements in the administration of
justice and to (rationalize the rules of evidence with modern concepts of
proof. We seek to reduce as far as possible forensic debate on what is,
or is not, admissible in the average cases over which the Legislature has
constitutional jurisdiction. There will be some unusual cases that will
arise from time to time that will require extensive research and debate,
but we trust that these will be unusual indeed.

CHAPTER 1

HEARSAY EVIDENCE

1. The Rule

In general, the law seeks to admit evidence that is relevant to the
matters in issue in a proceeding. However certain types of evidence have
been regarded as so inherently untrustworthy as to merit exclusion. One
major example of potentially valuable evidence which is excluded because
it may be inaccurate is hearsay evidence. An exact formulation of the rule
has never been achieved by the courts, and there is no agreement among
writers on the subject. Speaking broadly it may be said that a statement^
is hearsay when it is made by a person who is not testifying and is intro-
duced as truth of the matters stated.

The following statement by the Judicial Committee of the Privy
Council is generally accepted as reflecting the law in Ontario:

Evidence of a statement made to a witness by a person who is not
himself called as a witness may or may not be hearsay. It is hearsay
and inadmissible when the object of the evidence is to establish the
truth of what is contained in the statement. It is not hearsay and is
admissible when it is proposed to establish by the evidence, not the
truth of the statement, but the fact that it was made.^

There are many exceptions to the rule against the admission of
hearsay evidence, both under the common law and by statute. Most
authors set out 31 or 32 specific exceptions, but there is no general con-
sensus among them as to what are exceptions. The leading American
writer on evidence, Wigmore, lists only 14 and devotes over 800' pages to
discussing them.^ Statements contained in pubhc documents and made by
public officers in the discharge of their duties are but one example of
evidence which may be admissible as an exception to the hearsay rule.

iThe rule against hearsay applies to oral and written statements as well as

to gestures: Cross, Evidence (4th Ed. 1974), at p. 401.
'2-Subramaniam v. Public Prosecutor, [1956] 1 W.L.R. 965, 970, quoted with

approval by Schroeder, J. A. in R. v. Rosik, [1971] 2 O.R. 47, 70.
3The 14 exceptions are:

1. dying declarations,

2. statements of fact against interest,

3. declarations about family history,

4. attestation of a subscribing witness,

5. regular entries in the course of business,

6. sundry statements of deceased persons,

7. reputation,

8. official statements and public documents,

9. learned treatises,

10. sundry commercial documents,

11. affidavits,

12. voter's declarations as to qualifications, domicile, or bribery,

13. declarations of a mental or physical condition,

14. spontaneous exclamations.

The Evidence Act ( Ontario ),'^ and the Canada Evidence Act,^ also provide
for some statutory exceptions to the hearsay rule as in the case, for
example, of certain business records.

In practice, the hearsay rule has been applied as a general exclu-
sionary rule unless the evidence tendered comes within, or is forced into,
one of the exceptions. Various reasons have been advanced for excluding
hearsay evidence. Many of these reasons advanced to justify the rule tend
to go to the weight to be given to the evidence rather than to a rationale
for its exclusion. It is sometimes contended that the absence of the oath
and the lack of an opportunity to verify the statement by cross-examining
the declarant impairs its reliability. There is, in addition, the risk of in-
correct transmission, though if the statement is contained in a written docu-
ment the last objection loses much of its force.

The rule is sometimes justified on the ground that the courts should
receive only the best evidence that is available; if this is so, however,
hearsay evidence would not be received where direct testimony is avail-
able and would be admitted in cases where no other evidence is available.
However, the exceptions to the rule indicate that the courts are prepared
to accept hearsay evidence in certain clearly defined areas even where
the "best evidence" is available. In some cases hearsay may be admitted
on the ground that it is the only method of proving certain issues, such
as bodily or mental feelings; the cause of those feelings is a different matter
and must be established without resort to hearsay evidence.^

As the common law developed, the courts appear to have isolated
certain arbitrary areas where hearsay evidence will be admitted, while
denying it in certain other areas; a development based more on convenience
than on principle. Sometimes the admission appears to depend not only
on the circumstances of the making of the statement but also on the relief
claimed at the trial. For example, in a trial for murder or manslaughter a
dying declaration, made by the person whose death is the subject of the
charge, which satisfies certain tests, will be admitted, but such a declaration
is not admissible in any other type of proceedings.'^

The approach taken by the courts to exclude generally all hearsay
evidence with defined exceptions, has tended to obscure the fact that it
is not possible to treat all hearsay in the same manner. The rules con-
cerning some types of hearsay may not be appropriately applied to other
types. Hearsay may take many forms. For example, the statement may be
an informal oral one not meant to be overheard, a formal oral statement,
an informal written statement, a statement written in pursuance of some
duty, a sworn statement, a statement in a previous judicial proceeding,
conduct intended as an assertion, a drawing, chart, or photograph.

4R.S.O. 1970, c. 151, s. 36.

5R.S.C. 1970, c. E-10, s. 30.

(>Youlden v. London Guarantee & Accident Co. (1912), 26 O.L.R. 75, 4 D.L.R.
721, affirmed (1913), 28 O.L.R. 161, 12 D.L.R. 433; Home v. Corbeil, [1955]
O.W.N. 842, [1955] 4 D.L.R. 750, affirmed [1956] O.W.N. 391, 2 D.L.R.
(2d) 543.

7/?. V. Jurtyn, [1958] O.W.N. 355; R. v. Buck, [1940] O.R. 444.

Considerable dissatisfaction with the hearsay rule has been expressed
over the last hundred years. In 1876, for example, Mellish, LJ., stated:

If I was asked what I think it would be desirable should be evidence,
I have not the least hesitation in saying that I think it would be a
highly desirable improvement in the law if the rule was that all
statements made by persons who are dead respecting matters of which
they had a personal knowledge, and made ante litem motam, should
be admissible. There is no doubt that by rejecting such evidence we
do reject a most valuable source of evidence.^

It is quite apparent that by the application of the hearsay rule
evidence essential to the proper determination of an issue may be excluded.
The essential question is whether the rationale for the rule justifies the
consequences. To answer this question it is useful to consider first how
the laws of evidence in other jurisdictions deal with the problem.

2. Continental Jurisdictions

Since the introduction of the continental codes following the French
Code Civil of 1804, the old system of conclusive and binding rules
governing the weight and value of proof has been superseded by a system
which permits the tribunal to receive any offer of direct or indirect proof
and to weigh the evidence submitted in its sole discretion.^ The fundamental
principle applied is that, subject to certain exceptions, the civil codes will
not determine, restrict or interfere with the assessment of the persuasive
value of any evidence. ^^ The court is not fettered by any formal rules of
evidence, as would be a court within the common law tradition, but can
evaluate the evidence produced by the parties in its own free and reason-
able discretion.il In French criminal procedure, for example, the judge
can admit all evidence which is reasonably probative, so that hearsay
statements may be given as much weight as they merit;'- in general, how-
ever the inferiority of derivative evidence is well recognized. ^^

The admissibility and value of hearsay evidence is thus not explicitly
dealt with in the civil law jurisdictions; rather it is determined by the
relevance of the particular evidence in question in any particular case.
Hammelmann, in considering this point, divides verbal hearsay evidence
into two groups: first, common rumours of indeterminate origin whose
evidentiary value is so slight that they are usually considered irrelevant;
secondly, what is referred to as testimonial hearsay evidence of the second
degree, where the witness affirms a fact of his personal perception. For
example if a witness heard a certain person make a statement, the judge
may refuse to admit that witness' statement as evidence if the statement is
considered logically irrelevant to the issue. Should the statement have
some bearing on the issue, the court may accept the witness as one who is

^Sugden v. Lord St. Leonards (1876), 1 P.D. 154, 250.

^David and de Vries, The French Legal System (1958), at p. 76.
lOHammelmann, "Hearsay Evidence, a Comparison" (1951), 67 L.Q.R. 67, 71.
l^Cohn, Manual of German Law (1971), vol. 2, at p. 179.
l^Vouin, "The Protection of the Accused in French Criminal Procedure" (1956),

5 I.C.L.Q. ], at p. 15.
13Hammelmann, footnote 10 supra, at p. 71.

reporting, not hearsay, but circumstantial evidence from his own per-
ception. ^"^

The pattern of civil proceedings in civil law countries also involves
extensive interlocutory procedures which provide additional opportunities
for rejecting irrelevant testimony. Before the French preliminary inquiry,
the enquete, the parties must state in writing the facts they wish to estab-
lish through witnesses' testimony; the tribunal will not issue the inter-
locutory order leading to an enquete until it has considered both the rele-
vance of the proposed facts, and the admissibility of the instruments of
proof rehed upon by the parties. ^^

In the enquete itself, the judge conducts the interrogation on the
basis of questions prepared by the parties. As a result of this process,
evidence may be admitted which would, under our common law rules of
evidence, be viewed as hearsay. Dalloz summarizes the matter:

The tribunal assesses freely the weight of the testimony. . . .
Obviously more importance must be attached to the testimony of a
witness who has personally seen or heard the fact which he describes
than to the testimony of witnesses who have gained their knowledge
from another person. Nevertheless, depositions in the enquete are
not without value merely because the witness had only indirect knowl-
edge of the facts to which he testified, gained from hearsay; in this
respect the law relies on the intelligence and prudence of the judges. ^^

In French criminal proceedings, the presiding judge conducts the
examination of witnesses at the final hearing. Although documents or
written declarations which have come from persons who have died or who
are unable to appear, may be admitted at the discretion of the judge, written
evidence will be excluded if the witness is in court or could have been
called. Such evidence is, however, received only "en titre de renseigne-
menf\ or, to paraphrase, only for information. If a witness refers to vague
rumours or hearsay and cannot be more specific, the judge must, under
article 270 of the Code d'instruction criminelle, interrupt and reject all
evidence that tends to prolong the hearing without assisting in the search
for truth. On the other hand, however, if some relevance can be shown,
hearsay may be admitted in situations where it would clearly be excluded
in Ontario. The discretionary powers of the trial judge, rather than any
complex formulation of exclusionary rules, are what control hearsay in
French courts.

In Itahan law, testimony is limited to statements of third persons
made in court;^'^ testimony is not subject to any formal exclusionary rules.

^Hbid., at pp. 72-73.

^^Ibid., at p. 73; Wright, "French and English Civil Procedure: A Parallel"

(1926), 42 L.Q.R. 327, 342; Freed, "Comparative Study of Hearsay Evidence

Abroad: France" (1969), 4 International Lawyer 159.
i6Dfl//oz, Repertoire Pratique, vol. IX, at p. 389 as quoted in Hammelmann at

p. 73.
i^Written or oral statements made out of court are admissible, but not as

testimony.

such as the hearsay rule.^^ However certain rules^^ do seem to have
emerged from a body of decisions in the Corte di Cassazione: first, that
hearsay testimony which amounts to a self-serving statement of a party
is not normally entitled to any probative weight.^o Secondly, that hearsay
testimony standing alone and uncorroborated has no probative value
whatsoever.21 Lastly, that hearsay testimony may only acquire probative
value and be used to support a judicial finding of fact when there is
some corroborative evidence from another source. ^^

Hence, although the Italian judge has, like his French and German
counterparts, a discretion to evaluate and admit all evidence,^^ this dis-
cretion is subject to these well-defined rules. Hearsay testimony is admis-
sible to provide additional evidence to assist the court, but its role is
purely supplementary and it is not accorded probative value equal to that
of direct testimony based on first-hand knowledge. Italian civil procedure,
in addition, restricts the inquisitorial role of the judge. Ordinarily the
examining judge may neither call a witness on his own motion, nor extend
his questioning of a witness beyond the matters specified in the written
fists of questions submitted by the parties. The parties in the dispute are
specifically forbidden from examining or cross-examining witnesses. ^^^

For all these reasons, the potential role of hearsay evidence in Italian
civil proceedings is very different from its role in other civil law systems;
it would be inaccurate to characterize the Italian system as one which
freely allows hearsay testimony. The absence of the comprehensive exclu-
sionary rule which we know in the common law is mitigated and balanced
by definite judicial limitations.

In Switzerland, civil procedure is governed, not by federal law,^^ but
by the twenty-five difi'erent laws of the individual cantons, which often
have very different fundamental principles underlying their procedure. ^^
Some cantons regularly admit hearsay evidence in legal proceedings where
it forms relevant circumstantial evidence.^^ For instance, the Code of Civil
Procedure of the Canton of St. Gall provides that "hearsay testimony
can, according to the trustworthiness of its source, be accepted in certain
circumstances as circumstantial evidence''.^^

l^Cappelletti and Perillo, Civil Procedure in Italy (1965), at p. 216.

i9Rules taken from Rava, "Comparative Study of Hearsay Evidence Abroad:

Italy" (1969), 4 International Lawyer 156, 158.
20Cass. 8/10/1966 N. 2171, Torsiello v. Fallimento Malanga (from Rava, supra).
2iCass. 7/6/1966 N. 1770, Esposito v. Esposito (from Rava, footnote 19 supra).
22Cass. 1/24/1962 N. 121, Beruini v. Gasperoni. Cass 3/9/1966 N. 662, Fei v.

Delia Casa (from Rava, footnote 19 supra).
-^Codice di Procedura Civile art. 116, para. 1: "The court must evaluate the

evidence in accordance with its prudent judgment, except as otherwise provided

by law."
24Cappelletti and Perillo, Civil Procedure in Italy (1965), at p. 224.
25 Article 64 of the Federal Constitution of the Swiss Confederation 1874 provides:

"the organization and procedure of the courts and the administration of

justice remain with the Cantons as in the past".
26Arminjon, Nolde & Wolff, Traite de Droit Compare (1950), Tome II, p. 394.
27Hammelmann, footnote 10 supra, at p. 76.
28ln article 158, as quoted in Hammelmann, footnote 10 supra, at p. 76.

Within the German legal system the principle of free appreciation
of evidence (Prinzip der freien Beweiswurdigung) governs the court in
considering the facts before it.^^ It means that the court is not fettered by
any formal exclusionary rules of evidence, but can evaluate the evidence
produced in its own free and reasonable discretion.^^ For this reason,
German law is much less rigorous with regard to controlling the admis-
sibihty of evidence than is the common law; in principle any evidence,
even hearsay, is admissible, and it is the court's task to decide what value
to attach to it. Although the dangers of relying on hearsay evidence do
seem to be recognized, there have been some notable miscarriages of
justice resulting from its inclusion. ^^ Cohn agrees that there can be no
doubt that much of the dissatisfaction, expressed by common law lawyers
observing German procedure in action, is fully justified. ^2

As can be seen, it is difficult to draw any general conclusions con-
cerning evidence and procedure from the civil law systems. The conduct
of trial and proof in all these countries do tend to be more dominated
by the judge than procedures in common law countries, and this has led
to civil law trials being designated, erroneously, as inquisitorial in nature. ^^
Although questioning by counsel is sometimes permitted,^^ in general the
judicial interrogation of witnesses reduces the need for extensive cross-
examination. Similarly the jury plays a much less important part in civil
law proceedings than in the common law systems, and thus there is less
need for elaborate rules of evidence to control the admissibility of testi-
mony in court. 35 The legal systems themselves, although in principle admit-
ting virtually all evidence, do contain safeguards to minimize the harm
that may be caused by unreliable testimony in general, and hearsay in
particular. Arguments, based on continental experience, for the total
abolition of the hearsay rule, or for a system of free weighing of evidence,
are unconvincing if they fail to recognize the significant differences between
civil and common law systems. Although most civil law jurisdictions do
not exclude hearsay as such, they do possess compensating features which
remove some of the basis of concern about the trustworthiness of hearsay.
In recommending any reform of the law of hearsay in Ontario, therefore,
the recent experience of civil law jurisdictions is only marginally relevant.

3. Some Approaches to Reform

(a) England

In England there has been considerable legislative reform of the
law concerning hearsay. The first major reform took place in 1938.

29Kunert, "Some Observations on the Origin and Structure of Evidence Rules
under the Common Law System and the Civil Law System of 'Free Proof in
the German Code of Civil Procedure" (1966), 16 Buff. L.R. 122, 142.

30Cohn, Manual of German Law (1971), vol. 2, p. 179.

3iCohn, supra, at p. 224 refers to the "Bullerjahn case", during the Nazi era.

32/ft/U, at p. 225.

33Weber, On Law in Economy and Society (1954), at pp. 46-47; Hamson, "The
Protection of the Accused — English and French Legal Methods", [1955] Crim.
L.R. 272, 276.

34In Germany the judge must, under section 397 of the Zivilprozessordnung,
permit counsel to ask questions themselves.

35Merryman, The Civil Law Tradition (1969), at p. 125.

Sections 1 and 2 of the Evidence Act, 1938,^6 provided, in substance,
that documentary evidence was admissible in civil proceedings as evidence
of the facts stated therein on the following conditions:

(i) subject to certain exceptions, that the maker of the statement
had personal knowledge of the facts stated;

(ii) that if the maker of the statement was alive and could be called
as a witness he must be called except in exceptional circum-
stances;

(iii) that the statement was made ante litem motam;^'^ and

(iv) that the statement was written and signed by the maker of the
document, or at least otherwise recognized by him.

The Civil Evidence Act 1968,^^ extended the provisions of the
Evidence Act, 1938. The effect of the later Act^^ is to make virtually all
"first-hand" hearsay, oral as well as documentary, admissible, provided
that certain conditions and procedural requirements set out in the Rules
of Court made pursuant to section 8 of the Act are satisfied.'^o Under the
Rules, a party who v^shes to introduce a hearsay statement into evidence
must give notice of his intention to do so to every party to the proceedings.
The notice must contain particulars of the time, place and circumstances

361938, 1 & 2 Geo. VI, c. 28. The English legislation of 1938 has been followed
in both Australia and New Zealand: Evidence Act 1898-1973 (N.S.W.) ss. 14 A-
14C (added 1954); Evidence and Discovery Acts, 1867-1973 (Qld.) ss. 42 A-
42C (added 1962); Evidence Act 1929-1972 (S.A.) ss. 34C-34D (added 1949);
Evidence Act 1906-1971 (W.A.) ss. 79B-79D (added 1967); Evidence Act
1910-1970 (Tas.) ss. 78-79 (added 1943); but see Evidence Act 1958-1973
(Vic.) s. 55 (added 1971) and Evidence Ordinance 1971 (A.C.T.), No. 4,
part VI. For New Zealand see Evidence Amendment Act 1945. In New
Zealand the Torts and General Law Reform Committee reported on the subject
of Hearsay Evidence in July 1967. They recommended against the admission
in evidence of oral hearsay generally. The case for reform in both Australia
and New Zealand has, however, continued to be strenuously argued: see
Campbell, "Recent and Suggested Reforms in the Law of Evidence" (1967),
8 U. of W. Aust. L. Rev. 61; Harding, "Modification of the Hearsay Rule"
(1971), 45 A.L.J. 531; Rt. Hon. Sir A. Turner, "Reforms in the Law of
Evidence", [1969] N.Z.L.L 211.
37That is, at a time when the declarant had no motive to distort the truth, as in

the case of a statement made before the controversy arose.
381968, c. 64. The Act was based on the Thirteenth Report of the Law Reform

Committee, Hearsay Evidence in Civil Proceedings, Cmnd. 2964, (1966).
39Cross has summarized the effect of the English Act as follows:

Subject to possible problems relating to implied assertions and negative
hearsay, the effect of s. 2 of the Civil Evidence Act 1968, read together
with the rules of court made under s. 8, is to abolish altogether the rule
against hearsay in civil proceedings so far as 'first-hand' hearsay is con-
cerned, provided one of the reasons mentioned in s. 8 for not calling the
maker of the narrated statements exists, and provided the prescribed
procedure for establishing this fact has been followed; in civil cases to
which these provisos do not apply, the court has a discretion to admit
first-hand hearsay as evidence of the facts stated. By 'first-hand' hearsay is
meant a statement proved by the production of a document or else by
the evidence of a witness who heard or otherwise perceived it being made:
Cross, Evidence (Supp. to 3rd. Ed. 1969), at p. 18.
40C/vz7 Evidence Act 1968, c. 64, ss. 2, 8.
28ln article 158, as quoted in Hammelmann, footnote 10 supra, at p. 76.

in which the statement was made, the substance of the statement, and
the persons by and to whom the statement was made. If the person wishes
to allege that the declarant cannot or should not be produced, the notice
must also specify this fact, and the reason relied on.^i The opposite party
may, by filing a counter notice, require any person of whom particulars
were given with the notice to be called as a witness in the proceeding,
unless one of the reasons for not calling the declarant set out in section
8(2) (b) of the Act exist.'^^ If, however, the notice has stated that the
person sought to be called as a witness cannot or should not be called,
the counter notice must contain a statement that the person can or should
be called.43 The question whether the person sought to be called should
be called as a witness may then be resolved by the court on an interlocu-
tory application. "^4

It is possible, therefore, under the English legislation, to introduce
hearsay evidence where one of the reasons for not calling the declarant
set out in the Act exists, and, also, where a party has served the appropri-
ate notice and has not been served with a counter notice requiring him
to call the declarant.

Assuming that the requisite conditions and procedure have been
complied with, there is no discretion in the court to refuse to admit first-
hand hearsay unless the statement was made in earlier legal proceedings. "^^
There is, however, power in the trial judge to admit hearsay evidence
notwithstanding that the procedural requirements have not been met."^^
This Rule is based upon the principle that non-compliance with the pro-
cedural requirements should not, by itself, result in the exclusion of
material hearsay evidence otherwise admissible, but that the court should
be able to do what is just in the circumstances.

Second-hand hearsay is generally inadmissible,'^'^ except insofar as it
may be admitted under the several common law exceptions to the hearsay
rule retained by virtue of section 9 of the Civil Evidence Act 1968^^

4iThe Supreme Court Practice 1973, O. 38, R. 22(3).

42These reasons are that the declarant is "dead or beyond the seas or unfit by
reason of his bodily or mental condition to attend as a witness, or cannot with
reasonable diligence be identified or found, or cannot reasonably be expected
(having regard to the time which has elapsed since he was connected or con-
cerned as aforesaid and to all the circumstances) to have any recollection of
matters relevant to the accuracy or otherwise of the statement": Civil Evidence
Act 1968, s. 8(2) (b).

43The Supreme Court Practice 1973, O. 38, R. 26.

44/Z,/rf., R. 27.

45Section 8(3) (b) of the Civil Evidence Act 1968, and the Supreme Court
Practice 1973, O. 38, R. 28.

46The Supreme Court Practice 1973, O. 38, R. 29.

47C/V// Evidence Act 1968, s. 2(3).

48The Act deals with other matters of concern to this Commission and discussed
later in this Report: See infra. Chapters 3 and 6. For example, a witness'
previous statement, whether consistent or inconsistent, is, subject to certain
conditions, admisssible in evidence not only as proof of the fact that the
statement was made, but also of the truth of the statement: ss. 2 and 3. Also
the rule in Hollington v. Hewthorn ([19431 K.B. 587) is reversed so as to make
a conviction admissible in evidence in subsequent civil proceedings for the
purpose of proving that the person so convicted committed the offence in
question: section 11.

(b) United States

Because the changes made were probably the earhest and broadest
it is convenient to mention first those made in Massachusetts in 1898^^
(subsequently followed by Rhode Island^^). The rule was:

A declaration of a deceased person shall not be inadmissible in
evidence as hearsay if the court finds that it was made in good faith
before the commencement of the action and upon the personal
knowledge of the declarant.^ ^

By a subsequent amendment to the legislation this rule has been
extended to encompass "any action or other civil proceeding", and
extended by rendering admissible private conversations between husband
and wife and removing the requirement that the statement be made ante
litem motam.^^

A voir dire^^ is required to ascertain whether the prerequisites have
been met before the evidence is admitted. It is to be observed that such
evidence is not Hmited to written statements, but is confined to state-
ments where the declarant is dead.

Under the Model Code of Evidence proposed by the American Law
Institute, hearsay evidence would be generally inadmissible, except in
certain elaborately codified circumstances. ^^^ We draw attention in parti-
cular to the following exception:

Evidence of a hearsay declaration is admissible if the judge finds
that the declarant

(a) is unavailable as a witness, or

(b) is present and subject to cross-examination. ^^

Under the Code, hearsay upon hearsay, that is, second-hand hearsay is
generally excluded.^^ In addition, the court would have a discretion to
exclude evidence, hearsay or otherwise, whenever its value is outweighed
by the likelihood of waste of time, prejudice, confusion or unfair surprise. ^"^

49Mass. Acts, 1898, c. 535, enacted at the instance of Professor James Bradley

Thayer,
50R.I. Gen. Laws §9-19-11 (1970), as cited in 5 Wigmore, Evidence, §1576

(Chadbourn Rev. 1974).
5iAs set out in Mass. Gen. Laws (Ter. Ed) c. 233, s. 65.

52Now Mass. G.L.A., c. 233, §65; an additional subsection (65(a)) was added
in 1973:

If a party to an action or suit who has filed answers to interrogatories
under any applicable statute or any rule of the Massachusetts Rules of
Civil Procedure dies, so much of such answers as the court finds have been
made upon the personal knowledge of the deceased shall not be inadmissible
as hearsay or self-serving if offered in evidence in said action or suit by a
representative of the deceased party; (added by Mass. Act 1973, c. 1114,
s. 215).
53A procedure for ascertaining whether the testimony of a particular witness would

be admissible in evidence.
-'54American Law Institute, Model Code of Evidence (1942), Rule 502.
^^Ibid., Rule 503.
^^Ibid., Rule 530.
^ilbid.. Rule 303.

It does not appear that the proposals of the American Law Institute
have met with favour. They were considered at the time to be too sweep-
ing in nature, because the effect of the wide range of exceptions would
be to make hearsay generally admissible. ^^ Subsequent proposals and
legislation have retrenched from this first, extreme, position.

The California Evidence Code^^ provides "except as provided by
law, hearsay evidence is inadmissible". The exceptions listed^^ proceed
along traditional common law lines, but extend their scope.

The Commissioners on Uniform State Laws considered these matters
in their Uniform Rules of Evidence in 1953,^^ rejected the extreme posi-
tion taken by the American Law Institute, but proposed changes that are
wider than those adopted in some jurisdictions. Hearsay would be
generally inadmissible, with thirty codified exceptions, some more widely
phrased than the common law rules. A further exception not based upon
the common law was proposed:

(i) A statement previously made by a person who is present at the
hearing and available for cross-examination with respect to the
statement and its subject matter, provided the statement would
be admissible if made by the declarant while testifying as a
witness.^^

In their comments, the Commissioners point out that none of the
exceptions to the rule are based solely on necessity, that is, the unavail-
abihty of a witness. The Model Code theory that any relevant hearsay
has probative value, is rejected in favour of the traditional policy that the
value of hearsay depends primarily upon the circumstances in which the
statement was made.

The United States Federal Rules of Evidence^^ retain the exclusionary
principle,^"^ but list 24 exceptions to the hearsay rule which operate in
circumstances in which the declarant is not required to be a witness, even
though he is available, and which synthesize common law exceptions to
the hearsay rule.^^ ^hQ Rules also provide for a further five exceptions to
the exclusionary principle, which operate when the declarant is unavail-
able as a witness,^^ and which reflect common law exceptions based on
unavailability. In addition, some admissions offered against a party are
stated to be "not hearsay", as are certain prior statements of a witness

58See Maguire, Evidence — Common Sense and Common Law, at p. 153 as cited
in Murray, "The Hearsay Maze: A Glimpse at Some Possible Exits" (1972),
50 Can. Bar Rev. 1, at p. 4.

59Ca]. Evidence Code, §1200 (West, 1968).

^Olbid., §§1220-1341.

6iNow superseded by the Uniform Rules of Evidence, 1974. The new Uniform
Rules of Evidence are almost identical to the Federal Rules of Evidence, 28
U.S.C.A., enacted by Pub. Law 93-595, effective July 1, 1975.

62National Conference of Commissioners on Uniform State Laws, Uniform Rules
of Evidence (1953), Rule 63.

63Federal Rules of Evidence, 28 U.S.C.A., enacted by Pub. Law 93-595, effective
July 1, 1975.

64/6iW., Rule 802.

65Ibid., Rule 803.

^^Ibid., Rule 804.

when the declarant testifies at the trial or hearing and is subject to cross-
examination on the statement.^"^

The Federal Rules provide for a residual flexibility and offer an
opportunity for development in the law by permitting the court to admit
into evidence hearsay statements not specifically covered by the listed
exceptions, but having equivalent circumstantial guarantees of trust-
worthiness "if the court determines that (A) the statement is offered as
evidence of a material fact; (B) the statement is more probative on the
point for which it is offered than any other evidence which the proponent
can procure through reasonable efforts; and (C) the general purposes of
these rules and the interests of justice will best be served by admission of
the statement into evidence. However, a statement may not be admitted
under this exception unless the proponent of it makes known to the
adverse party sufficiently in advance of the trial or hearing to provide the
adverse party with a fair opportunity to prepare to meet it, his intention
to offer the statement and the particulars of it, including the name and
address of the declarant".^^

Proposals for reform in the law concerning hearsay evidence appear
to have followed generally along three alternative lines :

( 1 ) the preservation of a general exclusionary hearsay rule and the
codification of existing common law exceptions either modified
or enlarged, subject to a discretion to refuse such evidence
where prolix, unnecessary or unfair;

(2) the abolition of the general exclusionary hearsay rule and the
making of first-hand hearsay admissible with certain exceptions;

(3) the preservation of the general exclusionary hearsay rule with
specified exceptions in addition to those provided at common
law.

4. Proposals for Reform

In considering possible reforms for the law of evidence in Ontario,
we can usefully start with the broad principles set out in the Thirteenth
Report of the English Law Reform Committee :

The purpose of 'evidence' is to enable the court at the trial
to ascertain what in fact happened in the past and sometimes what
are likely to be its consequences in the future, so that the court
may determine whether what did happen entitles the plaintiff to any,
and, if so, what, legal reparation from the defendant. Prima facie
any material which is logically probative of a fact in issue, i.e., which
tends to show that a particular thing relevant to the cause of action
or to the defence happened or did not happen or is likely or unlikely
to happen, is capable of assisting the court in its task and should
be capable of being tendered in evidence, unless there are other
reasons for refusing to admit it. We are not concerned here with

^Vbid., Rule 801(d)(1) and (2).
68/^W., Rules 803(24) and 804(5).

rules which prohibit a party from proving a particular fact at all, but
only with rules which exclude the use of a particular kind of material
to prove a fact which a party is permitted to prove in some other
way. Such rules should have a rational basis. It should be possible
to point to some disadvantage flowing from the admission of the
particular kind of material as evidence of a fact which would out-
weigh the value of any assistance which the court would derive from
the material in ascertaining what in fact happened.^^

In applying these principles, it is important to remember that their
relevance depends on the type of tribunal by which the facts are to be
determined and the nature of the issue with which the tribunal is con-
cerned. In Ontario, the tribunal may be a judge of the High Court sitting
with or without a jury, a judge of a County or District Court sitting with
or without a jury, a Small Claims Court judge or a provincial judge sitting
either in the Criminal Division or the Family Division of the Provincial
Courts. In addition, it may be an investigatory body such as a Royal
Commission or one of a great number of tribunals acting under statutory
authority and deciding grave issues or very simple matters in the regula-
tion of community living, many of which could not be decided either in
practice or in justice without the admission of hearsay evidence.

The most commonly advanced arguments against admitting hearsay
statements in evidence are that they are unreliable because :

( 1 ) they are not made under oath;

(2) they are not subject to testing by cross-examination;

(3) they may not be the "best" evidence;

(4) they may lead to unnecessary proliferation of evidence;

(5) as statements are repeated, their accuracy tends to deteriorate.

There is some foundation for each of these objections when they are
applied generally, but the objections are not all valid for all types of
hearsay evidence. We have come to the conclusion that some changes
are necessary.

The present exceptions to the exclusionary rule have been built up
in a piece-meal fashion and, although in Canada'^^ the categories do not
appear to be closed, the process of judicial reform of the hearsay rule
and the creation of further exceptions to the rule is, at best, slow and
uncertain. Unquestionably, relevant and useful evidence is excluded in
many cases because of the rule, where no harm would be done by admit-
ting it. A real issue is whether the objections to hearsay evidence go to
its admissibility or to the weight that a trier of fact should give to it. If
the dangers inherent in admitting hearsay are such that a trier of fact is
likely to give such improper weight to the evidence as to lead to a wrong
conclusion, the rule should be an exclusionary one with the exceptions
confined within narrow definable limits. If, on the other hand, the trier
of fact is likely to weigh hearsay statements in the light of all the

^^ Supra footnote 38, at p. 4.

'^^Ares V. Venner, [1970] S.C.R. 608; however in England the opposite conclu-
sion was reached in Myers v. D.P.P., [1965] A.C. 1001.

circumstances and give them the weight that those circumstances warrant,
there should not be a general exclusionary rule.

Unfortunately, little is known about the psychological processes by
which weight is given to evidence, or how inferences are drawn. No
scientific studies are available to assist us in determining whether the
ordinary juryman would or would not attach the same importance to
direct testimony as he would to hearsay evidence, or whether he is
capable of distinguishing between the two and attaching the appropriate
weight to hearsay evidence. We have grave doubts whether this can be
determined by scientific research.

The value of a hearsay statement depends upon the circumstances
in which it was made, recorded or overheard, and subsequently narrated.
Hearsay evidence may consist, as it did in Myers v. D.P.P.,'^^ of indisput-
able and reliable contemporaneous records, or a vague rumour repeated
second or third hand. The former may have greater value in the decision-
making process than evidence given under oath, while the latter has little
value whatever. If evidence is of little or no value, the inherent dangers
of its admission outweigh whatever value it might have, but if hearsay
evidence has great value means must be found for its admission.

We have come to the conclusion that further limited provision should
be made for the admission of hearsay evidence in civil cases. However, we
think that the following proposals should not apply to criminal or provincial
offences. As to tribunals, the law is satisfactorily dealt with in section 15
of The Statutory Powers Procedure ActJ^ The provisions of the statute

'^^Supra, footnote 70. In that case the records consisted of serial numbers im-
pressed on engines of motor vehicles during their manufacture.
72S.O. 1971,vol. 2, c. 47, s. 15:

15. — (1) Subject to subsections 2 and 3, a tribunal may admit as evidence
at a hearing, whether or not given or proven under oath or affirmation or
admissible as evidence in a court,
{a) any oral testimony; and
{b) any document or other thing,
relevant to the subject matter of the proceedings and may act on such
evidence, but the tribunal may exclude anything unduly repetitious.

(2) Nothing is admissible in evidence at a hearing,

(a) that would be inadmissible in a court by reason of any privilege

under the law of evidence; or
{b) that is inadmissible by the statute under which the proceedings

arise or any other statute

(3) Nothing in subsection 1 overrides the provisions of any Act
expressly limiting the extent to or purposes for which any oral testimony,
document or other thing may be admitted as evidence at a hearing.

(4) Where a tribunal is satisfied as to their authenticity, a copy of a
document or other thing may be admitted as evidence at a hearing.

(5) Where a document has been filed in evidence at a hearing, the
tribunal may, or the person producing it or entitled to it may with the leave
of the tribunal, cause the document to be photocopied and the tribunal may
authorize the photocopy to be filed in evidence in the place of the document
filed and release the document filed, or may furnish to the person producing
it or the person entitled to it a photocopy of the document filed certified by
a member of the tribunal.

(6) A document purporting to be a copy of a document filed in
evidence at a hearing, certified to be a true copy thereof by a member of
the tribunal, is admissible in evidence in proceedings in which the docu-
ment is admissible as evidence of the document.

do not apply to investigatory bodies where the parties affected are not
entitled to a hearing; but it is, nevertheless, a safe guide to be followed.
A somewhat similar provision, differently worded, was included in The
Coroners Act, 1972 P^ Accordingly, our recommendations in this chapter
apply only to civil proceedings.

In devising a formula to guide the courts as to the admissibility of
hearsay evidence, one must first determine whether the rule should be
exclusionary or inclusionary. It is hard to contend that all hearsay evidence
can be questioned on the ground of its weight. As indicated, certain
hearsay evidence such as the record of a serial number impressed on an
automobile engine during manufacture should be deserving of great
weight. The reliability of certain hearsay evidence has been acknowledged
by the statutory exceptions that have already been made, for example,
copies of entries in a book or record kept by a bank.'^'*

The object of reform should be to devise a rule that will provide
for the admissibility of hearsay in proper cases while at the same time
providing proper safeguards against the dangers inherent in its use. The
effect of the American Model Code of Evidence with its broad exceptions
would be to make hearsay generally admissible. We do not believe that
adequate legal safeguards have been there provided. In our opinion, too
much discretion has been left to the judge, and there is a serious danger
of confusion and disparity in its application.

The American codes, and in particular the Federal Rules of Evidence,
represent an attempt to rationalize, codify and liberalize the traditional
exceptions to the hearsay rule. Generally speaking, however, codification
tends to inhibit the growth and development of the common law, a defect
which the Federal Rules sought to cure by the inclusion of a residual
exception providing for the admissibility, in certain circumstances, of hear-
say statements not specifically covered by the codified exceptions, but
having "equivalent circumstantial guarantees of trustworthiness". In our
view such a residual exception would introduce too much uncertainty into
the law of evidence. "^^ For these reasons we reject the approach of codifying
the exceptions to the hearsay rule.

Nor do we think that the English approach should be adopted. In
England, where the hearsay rule was effectively reversed by statute, notices
and counter-notices by the parties are required whenever it is proposed to
use hearsay evidence. This would, under our practice, tend to confuse and
would certainly delay trials. It may be satisfactory in England where liti-
gation is carried on by a highly specialized bar, but we do not think it
would be satisfactory in Ontario. Under the Civil Evidence Act 1968,

73S.O. 1972, c. 98, s. 36.

74R.S.O. 1970, c. 151, s. 34.

^SThe House Committee on the Judiciary would have deleted the residual excep-
tions contained in Rules 803(24) and 804(b)(5) as injecting too much un-
certainty into the law and impairing the ability of practitioners to prepare for
trial: see Hearings on Proposed Rules of Evidence Before the Subcommittee on
Criminal Justice of the House Committee on the Judiciary, 93rd Congress, 1st.
Sess., series 2 (1973) cited in Tribe, "Triangulating Hearsay" (1974), 87 Harv.
L.R. 957, 973.

it is possible to introduce first-hand hearsay of any kind where a party
is not required by counter-notice to call the declarant. In this case the
judge does not appear to have sufficient authority to exclude hearsay
evidence where in his opinion the probative value would be outweighed
by the prejudice and confusion it would create. In addition, we consider
that the judge has too broad a discretion to admit evidence when the
procedural safeguards have not been met.

In our view, the general exclusionary rule now in effect should be
retained, together with the existing common law exceptions. The hearsay
rule should, however, be relaxed by way of further, codified, exceptions. "^^

If a hearsay statement is to be admitted, the first requirement is
that the facts contained in the statement should be within the personal
knowledge of the declarant. Hearsay upon hearsay, that is, second-hand
hearsay, should certainly be excluded except in those cases where it is now
admissible at common law, for the obvious reason that efforts to test its
rehability would not only confuse trials but also distort issues.

Subject to this we think a good case is made out for the admission of
hearsay evidence based on necessity. If the declarant is available to give
evidence there is no reason why hearsay evidence should be admitted
except where specific statutory provision is made. On the other hand,
if the declarant is dead or for some reason is unable to attend to give
evidence, a real need arises which we think outweighs the frailties of hear-
say evidence in the search for truth.

A further question arises. Should the rules for admission be broader
than this? Should the court have power to admit hearsay evidence in other
circumstances which, in the opinion of the court, would justify its admis-
sion? Under the Federal Rules certain hearsay statements are admissible,
after assurances of their accuracy, even though the declarant is available.
As we have noted, this is a wider departure from common law principles
than we think should be made. ^

We recommend that a first-hand hearsay statement should be ad-
missible in evidence, (a) where all parties agree to its admission with or
without the admission of the truth of the facts stated therein, or (b) if
the maker of the statement has died or is too ill to testify or cannot with
reasonable diligence be identified, or found, and direct oral evidence of
the maker of the statement would be admissible.

We must also consider what inquiry should be made into the
circumstances under which the hearsay statement was made, the opportuni-
ties the declarant had for observing the facts that he purported to state and
the credibility of the declarant. The English Civil Evidence Act 1968'^'^
has dealt with these matters in this way:

76In Chapter 11, in order to adapt the law to current technological developments,
we recommend a further specific exception to the hearsay rule relating to the
admission of computer records.

771968, c. 64, s. 7. See also the safeguards contained in section 6 of the Act.

7. (1) Subject to rules of court, where in any civil proceedings a
statement made by a person who is not called as a witness in those
proceedings is given in evidence by virtue of section 2 of this Act —

(a) any evidence which, if that person had been so called,
would be admissible f^r the purpose of destroying or sup-
porting his credibility as witness shall be admissible for
that purpose in those proceedings; and

(b) evidence tending to prove that, whether before or after he
made that statement, that person made (whether orally or
in a document or otherwise) another st^tpTrippt inconsistent
therewith shall be admissible for the purpose of showing
that that person had contradicted himself:

Provided that nothing in this subsection shall enable evidence
to be given of any matter of which, if the person in question had
been called as a witness and had denied that matter in cross-examina-
tion, evidence could not have been adduced by the cross-examining
party.

(2) Subsection (1) above shall apply in relation to a statement
given in evidence by virtue of section 4 of this Act [records compiled]
as it applies in relation to a statement given in evidence by virtue of
section 2 of this Act [hearsay statements], except that references to
the person who made the statement and to his making the statement
shall be construed respectively as references to the person who
originally supplied the information from which the record containing
the statement was compiled and to his supplying that information.

(3) Section 3(1) [concerning previous statements] of this
Act shall apply to any statement proved by virtue of subsec-
section (l)(b) above as it applies to a previous inconsistent or
contradictory statement made by a person called as a witness which
is proved as mentioned in paragraph (a) of the said section 3(1).

A provision of this sort may tend to give rise to a proliferation of
issues; we must consider what limitations there should be in Ontario. The
matter is further complicated by the mode of trial as distinct from the
issues to be tried. Some civil actions are tried by a jury and others by a
judge alone.

Whatever method is employed to relax the hearsay rule, some oppor-
tunity for an inquiry is necessary to determine the credibility of the
declarant whose statement is admitted, his opportunity to know the facts
related and the circumstances under which they were related. Provisions,
similar to those contained in the English Civil Evidence Act 1968, are
essential, with adequate safeguards against a proliferation of issues and
confusion at trial. We think that the law should be concise, and should
give the court scope for a wise and fair application.

5. Recommendation

We recommend that The Evidence Act be amended to include the
following provision:

(1) In this section "statement" means any representation of fact,
whether in words or otherwise, made to a witness called to give evidence.

(2) In a civil proceeding a statement that would otherwise be in-
admissible as hearsay is nevertheless admissible as evidence of any fact
stated therein of which direct evidence would be admissible,

(a) if the parties to the proceeding agree to its admission with or
without admission of the truth of facts; or

(b) if the maker of the statement could have testified from personal
knowledge and

(i) he has died, or
(ii) he is too ill to testify, or
(iii) he cannot with reasonable diligence be identified or found.

(3) Notice of intention to introduce evidence under clause b of
subsection 2 shall be given by the party intending to do so to other parties
to the proceeding in accordance with such rules as the Rules Committee
may make.

(4) Where corroboration is required by law, a statement admit-
ted under this section shall not be taken to be corroborative of the evi-
dence of a witness called to prove the statement.

(5) Where a statement is tendered in evidence under this section,
the circumstances under which it was made may be investigated by the
court, and, where it is admitted, the credibility of the maker of the
statement may be impeached to the same extent and in the same manner
as if he had been a witness in the proceeding except as to the right to
cross-examine him.

(6) Nothing in this section is to be taken to affect the admission of
evidence that would otherwise be admissible under this Act or any other
Act or at common law or to make admissible any evidence that would
be inadmissible on any ground of privilege under this Act or any other
Act or at common law. [Draft Act, Section 22].

CHAPTER 2

RES GESTAE

It has been generally acknowledged that the phrase res gestae is a
vague, all-embracing description for several types of reported statements,
some of which are received as original evidence, others by way of excep-
tion to the hearsay rule. The phrase itself means simply "thefact^", or
*'the transaction"; a statement is said to be part of the res gestae when it
forms "a part of the story"- Central to the doctrine is the notion that a
statement may be admissible, either because it is a fact in issue, or a fact
relevant to the issue, or because it is so closely associated in time and
circumstance with the event in question that, whether technically hearsay
or not, it has a high degree of relevance.^

It has been said:

The marvellous capacity of a Latin phrase to serve as a substitute
for reasoning, and the confusion of thought inevitably accompanying
the use of inaccurate terminology, are nowhere better illustrated than
in the decisions dealing with the admissibility of evidence as "res
gestae'''?

The term ''res gestae'' is often referred to as an exception to the
hearsay rule, though in fact it applies to evidence that is not really hearsay
at all. The phrase ''res gestae'^ appeared as early as the year 1794 during
the trial of Home Tooke for high treason. ^ Garrow, who appeared for the
government, wished to have a certain letter admitted as evidence and
claimed that it should be admitted as part of the ''res gestae". It has been
said, "from such a humble beginning the rule flourished throughout the
course of the nineteenth century, used by judges and lawyers and text-
writers to fit every conceivable legal situation".'^

Today, if a transaction is in issue, "all facts, whether they be acts
or omissions or declarations, which either are part of the transaction or
accompany and explain it, are admissible and are usually called the res
gestae. Sometimes, ... it is the central transaction itself which is called the
res gestae, when the constituent or accompanying facts are described as
parts of the res gestd\^

'See Hoffmann, South African Low of Evidence (1963), at p. 283.

^Morgan, "A Suggested Classification of Utterances Admissible as Res Gestae''

(1922), 31 Yale L.J. 229.
3i?. V. Tooke (1794), 25 State Tr. 1, 440. Wigmore traces it to the Ship Money

Case, R. v. Hampden (1637), 3 State Tr. 826, 988: 6 Wigmore, Evidence, §1767

(3rd Ed. 1940).
4Slough, "Res Gestae" (1953), 2 U. of Kan. L. Rev. 41.
SElliott, Phipson's Manual of the Law of Evidence (10th Ed. 1972), at p. 28.

1. Categories of Res Gestae

Because the problems connected with the use of the term are "so
shrouded in doubt and confusion"^ it has been considered necessary to
classify res gestae into categories; but classification is not without its
difficulties. Authors do not agree on the number of categories, and dif-
ferent classifications frequently overlap. However, it is useful to attempt
some summary of the classifications that have been made although this
will involve some repetition.

(a) Words Creating a Right or Liability

V(c\r^9. creating a ri^ht or a liability'^ form the first classification.
They are the facts in issue: for example, an oral offer or acceptance, or
words alleged to be slanderous. The fact in issue may be complex as
to time, as it may involve inquiry not merely into one event which occur-
red at one instant but a number of events that occurred over a period of
time. The fact in issue may be complex as to persons and it may involve
the conduct of third parties.^

The term as used in this context does not describe an exception to
the hearsay rule. These statements are not admitted as proof of the
truth of the facts asserted in them, but are admitted as proof that the
statements were made. Their evidentiary value lies in the inferences to be
drawn from the fact that they were made.

(b ) Statements Relevant to Facts in Issue

The second category of cases to which the res gestae doctrine has
been applied, consists of facts or statements which are relevant to the
facts in issue. For example, if the question is whether an assault by B
upon A was provoked, the fact that, j^yf^^ ^o tlir ^^''^^^l^ ^ had made an
igsulting gesture or had called A a liar, would be admissible in evidence
as relevant to the issue of provocation.^

Stone contends that the use of the term res gestae here adds nothing
to the simple question of relevance, as he feels that the statement is
admitted because it is relevant, not because it is part of the res gestae}^
Thus any inquiry as to contemporaneity or who was the actor or the utterer
is not only unnecessary but entirely misleading. ^^ Relying on the cases of
Rouch V. G. W. Ry^'^ and Rawson v. Haigh,^^ Stone argues that where the
statement made has independent relevance, the requirement of contempo-
raneity has no application. Declarations may be admissible whether they
are prior or subsequent to the act to which they are relevant. ^"^

6Stone, ''Res Gestae Reagitata'' (1939), 55 L.Q.R. 66.
7Nokes, "Res Gestae as Hearsay" (1954), 70 L.Q.R. 370, 371.
^Stone, footnote 6 supra, at p. 70.
^Ibid., at p. 71.
^Olbid.

^^Ibid., at p. 72.

12(1841) 1 Q.B. 51, 113 E.R. 1049.
13(1825), 2 Bing. 99, 130 E.R. 242.
i^Stone, footnote 6 supra, at pp. 72-73.

It may well be doubted that this type of statement is, in most cases,
hearsay evidence at all. It is unnecessary to categorize it as res gestae
unless what is sought to be proved is the truth of any facts contained in
the statement as opposed to the mere fact that the statement was made.
In most cases where it is sought to admit evidence under this category, it
is merely the latter that is relevant.

The third general category, and one difficult to distinguish from the
first two, may be described as verbal parts of facts in issue or of relevant
facts. ^5 Such words, though not in themselves facts in issue or relevant
facts, constitute a verbal part of facts in issue or of relevant facts.

Cross categorizes such words as "Statements Accompanying and
Explaining Relevant Acts,"^^ and says, "[T]he raison d'etre of this excep-
tion ... is that the statement throws light on the nature of a relevant act
j)ecause of its proximity to j^t. and, in the absence of such proximity, the
statement would lack connection with the act and become a mere hearsay
assertion about it.''^"^

Nokes classifies these statements as words relevant to the legal
nature of a transaction, and says.

These explain an action or omission which is in issue, though the
words do not constitute a part of the issue; as when repayment of a
loan is disputed, and proof is given of the payment and of the
borrower's statement appropriating the money to the loan. This type
of statement is sometimes called a verbal part of a fact or a verbal
act. 18

Certain requirements must be met before statements may be properly
included within this category. ^^

(a) The conduct of which the utterance forms a part must in itself
be a fact in issue or a relevant fact.

(b) The conduct of which the utterance forms part must in itself
be incomplete as a legal act. The act taken alone must leave it
in doubt whether it operates in one way or another, as, for
example, whether money is handed over as a gift or a loan.

(c) The utterance must render definite what is otherwise ambiguous.
It must complete the act, but must still be only part of the fact
to be proved.

(d) The utterance must be contemporaneous with the act of which
it forms a part, because words cannot be part of the act unless

15/6/^., at p. 74.

l6Cross, Evidence (4th Ed. 1974), at pp. 503-505.

17/ft/W., at p. 504. See also Hyde v. Palmer (1863), 3 B. & S. 657, 122 E.R. 246;

and Wright v. Doe dem Sandford Tatham (1837), Ad. & El. 313, 112 E.R. 488.
iSNokes, footnote 7 supra, at p. 371.
i^Stone, footnote 6 supra, at pp. 74-80; see also Cross, Evidence (4th Ed. 1974),

at pp. 503-505.

they accompany it. Unless they are a part of it they are not ad-
missible, since their relevance would then depend on the truth of
what is asserted, and they would be hearsay. However, if th^
am^big^uous conduct in issue is continuous, explanatory words
during the pntirp. continuance ^re. ffln^f^por^^j^^^

(e) The utterance must be by some person whose conduct constitutes
the legal act involved.

Again, this category cannot be properly termed hearsay.^^ The state-
ment is admitted as evidence of the act, not as evidence of the truth of
what is contained in the statement. The statement is part of the event that
took place and so evidence of the statement is evidence of the event. We
agree with Professor Stone that it is inappropriate to apply the term
'res gestae' to this class of statements.

(d) Statements Linked by Time, Place or Circumstance with a Fact
in Issue or Relevant Fact

A fourth and important category of "res gestae" is one in which state-
ments are admitted because they are.^osely.Jinked by time, place and
9ircumstance with some f^^t jpjggng pr rf-y(-\7^r\f^j^i The problem here is
that "It is at all times a dangerous thing to admit a portion only of a
conversation in evidence, because one part taken by itself may bear a very
different construction, and have a very different tendency to what would be
produced if the whole were heard".2i xhus, "intimate proximity, in time,
place or circumstance, of fact A to fact B, fact B being in issue or
relevant, makes fact A admissible as part of the res gestae (stricto sensu)
of fact B, without any affirmative showing of the independent relevance of
fact A".22

(e) Spontaneous Statements relating to an Event in Issue made by
Participants and Observers

A fifth category of res gestae is that of spontaneous statements relat-
ing to an event in issue made by participants or observers, or as Nokes
put it "words relevant to a state of fact".^^ This category is a topic of
great debate; some writers refuse to accept it as an exception to the
hearsay rule.24 Lord Atkinson, for example, stated that it is to be remem-
bered that statements admissible under this head "are not, as against the
accused, affirmative evidence of the facts stated, but only of the knowl-
edge of, or the belief in, those facts by the person who makes the state-
ments, or of his intention in respect of them."^^

However, others have treated this category of res gestae as an excep-
tion to the hearsay rule. Cross has demonstrated that the majority of the

20For a contrary view, see Sopinka and Lederman, Evidence in Civil Cases

(1974), at pp. 123-124.
^^Thomson v. Austen (1823), 2 R. & R. 26 as quoted in Stone, footnote 6 supra,

at p. 81.
22Stone, footnote 6 supra, at pp. 81-82.
23Nokes, footnote 7 supra, at pp. 371-372.
24See Phipson, Evidence (11th Ed. 1970), paras. 193 and 645.
25/^. V. Christie, [1914] A.C. 545, 553.

dicta and decisions of the courts justify the view that statements described
as part of the res gestae are treated sometimes as hearsay and sometimes
as original evidence.^^ The res gestae doctrine appears to rest ultimately
on two propositions: "that human utterance is both a fact and a means
of communication, and that human action may be so interwoven with
words that the significance of the action cannot be understood without
the correlative words, and the dissociation of the words from the action
would impede the discovery of truth". ^"^

The justification for this exception to the hearsay rule, if indeed it
is an exception, is the probability that the statement is true because it was
made before the declarant had time to think of his self-interest and make
up a story which would be to his own advantage. Thus the statements
must be made contemporaneously with the event in issue and they must
directly concern it, with contemporaneity being a matter of degree.

(f ) Words Relating to the Declarant's Physical or Mental State

Words relating to the speakei!^ physical sensation, such as pain or
illness, and words relating to a speaker's mental state have also been
categorized as admissible in evidence as part of the res gestae,^'^ although
it is suggested that these categories are exceptions to the hearsay rule in
their own right and need no help from the "res gestae" doctrine.

2. Application of The Doctrine

In application, the doctrine has had the effect of rendering admissible
statements that would otherwise be excluded. For example, not only might
they be caught by the hearsay rule, but they might also otherwise be
caught by the rule against self-serving statements,^^ opinion evidence^Q
or previous inconsistent statements.^^

For the purposes of this Report, it is useful to consider in particular
the fifth classification of statements to which the doctrine of res gestae
has been applied, that is, spontaneous statements made by participants or
observers in relation to an event in issue.

Prior to the decision of the Judicial Committee of the Privy Council
in Ratten v. The Queen,^^ the courts, in considering whether such state-
ments were admissible in evidence, were concerned primarily with whether
the statement was strictly contemporaneous with the event in issue. Em-
phasis was placed on the questions whether a statement could be said to
be part of a transaction or event, and when a particular transaction began
and ended.

The detection of a sufficient association in time, place, or circum-
stance between words and accompanying actions or events raises questions

26Cross, Evidence (3rd Ed. 1967), at pp. 465, 467.
\ 27Lord Normand in Teper v. R., [1952] A.C. 480, 486.

28Nokes, footnote 7 supra, at p. 372; Stone, footnote 6 supra, at p. 84.
29Gooderson, ''Res Gesta in Criminal Cases", [1957] Camb. L.J. 55, 67-68.
^^Ibid., at pp. 55-56.

^^^hid ntrr ^^ TQ
32[1972] A.C. 378.^

(^[19

of degree, and there is great debate and much disagreement as to the
degree of contemporaneity that is required. In both R. v. Foster^^ and R.
V. Lunny^^ statements made after the event were admitted, in the former
case on the basis that it was the best possible testimony. However, in R. v.
BedingfieldJ^ Cockburn, C.J. came to a different conclusion. In that case,
the accused was charged with murder by cutting a women's throat and
his defence was that she committed suicide. The deceased emerged from
t^ie room in which the prisoner was subsequently found with her throat cut.
and immediately cried. "Oh dear. Aunt, see what Bedingfield has done
to me". She was evidently seeking assistance, but died before it could be
given. Cockburn, C.J., would not admit her statement in evidence because
"It was something stated by her after it was all over, whatever it was, and
after the act had been completed".^^ He stated further:

. . . statements made by the complaining party, aft^r all anfi^n rm
the part of the wrongdoer^ actual or constrnetivt^, >»a<^ rf^c^s^P'A^ througli
the completion of the principal act or other determination of it by
its prevention or its abandonment by the wrongdoer ... do not form
part of the res gestae, and should be excluded. ^"^

This view has been supported by other cases. In R. v. Goddard}^
Hawkins, J., rejected a complaint made ten mim^tes after a mortal
jnjury. In R. v. Christie^^ a statement made after an alleged assault was
rejected. In Teper v. R.^^ Lord Normand followed the Bedingfield case,
and stated "[I]t is essential that the words sought to be proved by hearsay
should be, if not absolutely contemporaneous with the action or event, at
least so clearly associated with it, in time, place and circumstances, that
they are part of the thing being done, and so an item or part^oflreaT
evidence and not merelv a reported statement. ' "^ ^

The decision in the Bedingfield case has, however, been the subject
of criticism. Thayer was of the opinion that the statement in Bedingfield
should have been admissible as it was "qnough that the declaration be
substantially rnnfempnrQnpoiiRr ^jt i^eed not he literally so".^^ Professor
Gooderson concurred with Thayer's view that there should be a little more
elasticity in the admission of evidence, and suggested reliance could be
placed on the discretion of the court to exclude evidence which, though
admissible, has a far greater prejudicial than evidentiary effect. He con-
sidered Chief Justice Cockbum's position too strict, especially where death
has been caused by an indirect means such as poisoning.^^

33(1834), 6 Car. & P. 325, 172 E.R. 1261.
34(1854), 6CoxC.C. 477.
35(1879) 14COXC.C. 341.
36Cross, Evidence (4th Ed. 1974), at p. 506.

37 As cited by Armour, C.J., in /?. v. McMahon et al. (1889), 18 O.R. 502, 517.
38(1882), 15 CoxC.C. 7.
39[1914] A.C. 545, 556.
40[1952] A.C. 480.
41/Zj/cf., at p. 487.

42Thayer, "Bedingfield's Case" (1881), 15 Am. L. Rev. 71, 107.
43Gooderson, "Res Gesta in Criminal Cases", [1956] Camb. L.J., 199, at
pp. 208, 211.

^/j-l^fjfj^^-

As a result of the criticism of John Pitt Taylor,'^'* Chief Justice
Cockburn wrote an extensive letter to the Law JournaF^ defending his
decision. He said in part:

Whatever act, or series of acts, constitute, or in point of time
immediately accompany and terminate in, the principal act charged
as an offence against the accused, from its inception to its consum-
mation or final completion, or its prevention or abandonment,
— whether on the part of the agent or wrong-doer in order to its
performance, or on that of the patient or party wronged, in order
to its prevention, — and whatever may be said by either of the parties,
during the continuance of the transaction, with reference to it, includ-
ing herein what may be said by the suffering party, though in the
absence of the accused, during the continuance of the action of the
latter, actual or constructive, — as e.g., in the case of flight or applica-
tions for assistance, — form part of the' principal transaction, and may
be given in evidence as part of the res gestae, or particulars of it.

This correspondence was relied on in argument and quoted by the
Supreme Court of Canada.^^

The reason for the rule requiring contemporaneity is that spontaneous
declarations are more likely to be true because they are made before
there is time to devise or contrive anything for one's own advantage. "In-
sistence that the statement should be nearly contemporaneous v^th the
act is some compensation for the absence of the safeguards against false
testimony in court — for the lack of cross-examination of the originator of
the statement, of an oath, of publicity, and of opportunity to judge the
speaker's demeanour" ."^"^

In Ratten v. The Queen,^^ a decision of the Privy Council, Lord
Wilberforce considered the Bedingfield case, and stated that the relevant
test to be applied in determining the admissibility of evidence under this
category of res gestae is not whether the making of the statement was
part of the transaction or event, but, rather, the risk of concoction c^r
fabrication of evidence bv the declarant. Nowhere have we found the
subject we are here concerned with discussed with more clarity and pre-
cision than in the following extract from the judgment:

The expression "res gestae", like many Latin phrases, is often
used to cover situations insufficiently analyzed in clear English terms.
In the context of the law of evidence it may be used in at least three
different ways:

1. When a situation of fact (e.g. a killing) is being considered,
the question may arise when does the situation begin and when does
it end. It may be arbitrary and artificial to confine the evidence to
the firing of the gun or the insertion of the knife, without knowing

44In The Times, November 17, 1879.

45Law Journal, January 3, 1880, at pp. 16-17.

46Quoted in Gilbert v. The King (1907), 38 S.C.R. 284, 298.

47Nokes, footnote 7 supra, at p. 379.

48[1972] A.C. 378.

in a broader sense, what was happening. Thus in O'Leary v. The
King (1946), 73 C.L.R. 566 gyidence was admitted of assaults.
mor to a killing, committed by the accused during what was said
to be a continuous orgy. As Dixon, J. said at p. 577:

Without evidence of what, during that time, was done by
those men who took any significant part in the matter and
especially evidence of the behaviour of the prisoner, the trans-
action of which the alleged murder formed an integral part
could not be truly understood and, isolated from it, could only
be presented as an unreal and not very intelligible event.

2. The evidence may be concerned with spoken words as such
(apart from the truth of what they convey). The words are then
themselves the res gestae or part of the res gestae, i.e., are the
relevant facts or part of them.

3. 4 ^^^arsav statement is made elthei^by the victim of an
attack or by a bvstander — indicating directly or indirectly the identity
of the attacker. The admissibility of the statement is then saidlo
depend on whether it was made as part of the res gestae. A classical
instance of this is the much debated case of Reg. v. Bedingfield
(1879) 14 Cox C.C. 341, and there are other instances of its
apphcation in reported cases. These tend to apply different standards,
and some of them carry less than conviction. The reason, why this
is so, is that concentration tends to be focused upon the opaque or
at least imprecise Latin phrase rather than upon the basic reason
for excluding the type of evidence which this group of cases is
concerned with. There is no doubt what this reason is: it is two-
fold. The first is that there may be uncertainty as to the exact words
used because of their transmission through the evidence of another
person than the speaker. The second is because of ^ the risk of con-
coction of false evidence by persons who have been victims of assault
or accident. The first matter goes to weight. The person testifying to
the words used is liable to cross-examination: the accused person
(as he could not at the time when earlier reported cases were decided)
can give his own account if different. There is no such difference in
kind or substance between evidence of what was said and evidence
of what was done (for example between evidence of what the victim
said as to an attack and evidence that he (or she) was seen in a
terrified state or was heard to shriek) as to require a total rejection
of one and admission of the other.

The possibility of CQflCQCtion. or fabrication, where it exist<;^ k
^on the other hand an entirely valid r^asnti for eYr1i]<;inn and is
probably the real test which judges in fact apply. In their Lordships'
opinion this should be recognized and applied directly as the relevant
test: the test should be not the uncertain one whether the making of
the statement was in some sense part of the event or transaction.
This may often be difficult to estabUsh: such external matters as the
time which elapses between the events and the speaking of the words
(or vice versa), and differences in location being relevant factors

but not, taken by themselves, decisive criteria. As regards state-
ments made after the event it must be for the judge, by preliminary
ruling, to satisfy himself that the statement was so clearly made in

dr^nmSt^"^^*^ ^^ SP'^ntan^jty nr invr>1vpmpnt fp ^^^ ^"^^t that the

possibility of f'nn^-Q^tjon rnn_bg Hi^r^^^^H Conversely, if he con-
siders that the statement was made by way of narrative of a detached
prior event so that the speaker was so disengaged from it as to be
able to construct or adapt his account, he should exclude it.

After reviewing the authorities Lord Wilberforce concluded :

These authorities show that there is ample support for the
principle that hearsay evidence may be admitted if the statement
providing it is made in such conditions r always being those of approxi-
mate but not exact contemporaneity) of involvement or pressure as
to exclude the tK>ssibilitv of concoction or distortion to the advantage
of the maker or the disadvantage of the accused."^^

In Canada the res gestae rule has received a narrower interpretatign
than in Englanjd. as may be seen in the tollowmg case comments.

In R. v. Cohen,^^ the accused was charged with assault. A disturb-
ance occurred in a hotel room, and statements were made by the victim
of the assault in the presence of the accused to people who came to the
door of the room. These statements were held admissible as part of the
res gestae because "The dispute, the fight, the disturbance, whatever one
may call it, which was the cause of this charge, was still in progress when
these things were said. The girl was seeking refuge from attacks which
obviously had been made upon her and the appellant was still pursuing
her and continued to do so for some little time".^^

In R. V. McMahon^^ statements made by the deceased were held
not admissible as part of the res gestae as "they were made after all action
on the part of the wrongdoer had ceased", as the principal act had been
completed and all pursuit or danger had ended. Armour, C.J., held that
the Goddard and Bedingfield cases should be followed. ^^

In Gilbert v. The King,^"^ evidence of statements made by the
deceased immediately after a shooting but while still in fear of further
attacks from the accused and requesting assistance and protection were
held admissible as part of the res sesti^e, even tHough the accused was
absent at the time the statements were made.

In R. V. Wilkinson,^^ the deceased fled to a neighbour's house after
an argument with the accused, and was there killed by a shot that came
through the window. However, before she was shot, she had told the
neighbour that the accused had tried to kill her and was likely to shoot

49//7/V/., at pp. 388-389, 391.

50[1947] O.W.N. 336 (Ont. C.A.).

^Ubid., at pp. 339-340.

52(1889), 18 O.R. 502 (Q.B.D.).

53/6/U, at p. 517.

^^Gilbert v. The Kinfy (No. 2) (1907), 38 S.C.R. 284.

55[1934] 3 D.L.R. 50, 62 C.C.C. 63 (N.S.C.A.).

through the window. This statement was held admissible. Hall, J., stated
". . . tb^. effort to murder was a continuous transaction from the attack
in the bedroom till consummated by the fatal shot. During the entire
period [the deceased] was actuated by most intense fear. . . .She had no
opportunity for fabrication and her statements were not mere narration of
events but were part of the transaction itself and [were] admissible on
this ground. "56 The deceased made her statements during the continuation
of the murderous assault.

In R. V. Leland^'' the Court of Appeal discussed the subject of res
gestae at length. The deceased and the husband of the accused were
engaged in a fight in the bathroom of the house occupied by the deceased,
his wife, the accused and her husband. The accused was seen moving
along the hall. The lights went out. Shortly after they came on again, the
deceased was heard to call from the head of the stairs "Rose, she stabbed
me!" Rose was the name of the wife of the deceased. Evidence was
given by a witness that she saw blood in front of the bathroom door and
heard the deceased fall down stairs. The accused was heard to say "What
will I do now?" The Crown sought to introduce the deceased's statement
as proof of the truth of the assertion. While the rationale of the decision
is confusing, the Court appears to have been of the view that the state-
ment of the deceased did not form part of the res gestae, stating, ". . .
the fighting had ceased. No one was pursuing the dereased or seeking to
contmue the struggleT . . . Our rules of evidence do not seem to extend
to cover a case of spontaneous exclamations, in the broad terms stated
by Wigmore."^^

In civil cases, the courts have tended not to require the same degree
of strict contemporaneity between the statement and the event in issue
as is required in criminal cases.^^

The law on this subject in Ontario is, at best, unclear, and should be
clarified by legislation. It is not realistic to require trial judges to explore
scholarly discussions of law to determine the admissibility of and the
evidentiary value to be given to statements made under the circumstances
we have been discussing.

3. Developments in the United States

In considering what changes should be made in our law, it is useful
to consider developments in the United States, although this may require
some repetition of matters we have discussed concerning the classification
of categories of res gestae. In the United States the law governing res
gestae has been greatly influenced by the work of Professor J. H. Wig-

56/fezW., at p. 70.

57[1951] O.R. 12 (C.A.).

5^1 bid., at p. 30. The decision of the Supreme Court of Canada in the Gilbert

case is referred to but not discussed. Nor is the Bedingfield case considered, or

the criticism of the judgment of Cockburn, C.J.
59See, for example, Sitkoff v. Toronto Railway Co. (1916), 36 O.L.R. 97; Cassels

V. T.T.C., [1938] O.R. 155, [1938] 1 D.L.R. 746; and Rodych et al. v. Krasey

et al, [1971] 4 W.W.R. 358 (Man. Q.B.).

more.^o As far back as 1898, Wigmore "enunciated as a new and addi-
tional exception to the hearsay rule, having no connection with the 'res
gestae' doctrine, the theory of 'Spontaneous Exclamations' ".^^

In Wigmore's view "the phrase 'res gestae" has long been not only
entirely useless but even positively harmful". He contended that "it is
useless, because every rule of Evidence to which it has ever been applied
exists as part of some other well-established principle and can be explained
in terms of that principle. It is harmful, because by its ambiguity it invites
the confusion of one rule with another and thus creates uncertainty as
to the limitations of both. It ought therefore wholly to be repudiated, as
a vicious element in our legal phraseology ".^^

It is useful to set out how some of the major American writers on
evidence, have classified the categories of cases to which the doctrine of
res gestae has been applied.^^

(a) Verbal Acts

Under the 'Verbal Act' doctrine, an utterance is admitted as a verbal
part of an act. Wigmore points out that, although the phrase res gestae
has been constantly used in admitting verbal acts in evidence, such
utterances are admissible independently of the res gestae doctrine:

It follows from the very nature of the Hearsay rule that utter-
ances used not assertively but as a part of some otherwise relevant
act are receivable as not obnoxious to the rule; this is inevitably true
on principles otherwise fixed, and would have been equally true
had no mention of the Latin words ever been made in our courts or
our books. ^4

Wigmore classifies 'Verbal Acts' into three main categories : . utter-
pnres forming a part of th^. issiie. utterances forming a ^verbal part of an
act, and utterances used as circumstanfial p.videnre.

(i) Utterances forming a part of the issue

Wigmore points out, as have many other authors, that "[wjhere the
utterance of specific words is itself a part of the details of the issue under
the substantive law and the pleadings, their utterance may be proved
without violation of the Hearsay rule, because they are not offered to

60Slough, "Res Gestae" (1953), 2 U. of Kan L.R. 41, 43 states, "much of the
obscurity surrounding our latin phrase [res gestae] has been dispelled, thanks
to the productive scholarship of legal giants such as John Henry Wigmore and
Edmund Morgan".

6iMcWilliams, "Admissibility of Spontaneous Declarations" (1933), 21 Cal. L.
Rev. 460, 463.

626 Wigmore, Evidence, §1767 (3rd Ed. 1940).

63lt is not intended to deal exhaustively with the categories of res gestae; for
example, no reference is made to Wigmore's "Statements admissible as part of
the issue under the pleadings" or "Statements of a Mental Condition": Wigmore,
supra, §§1770 and 1714 (3rd Ed. 1940).

(^Ibid., §1768.

evidence the truth of the matter that may be asserted therein".^^ Examples
of this are seen in utterances involved in making a contract, consent for
a marriage contract, and in cases of defamation.

(ii) Utterances forming a verbal part of an act

In many cases "without the words, the act as a whole may be in-
complete; and, until the words are taken into consideration, the desired
significance cannot be attributed to the wordless conduct. "^^ The words
enter as evidence irrespective of the truth of the statement, if certain
conditions are satisfied. First, the conduct that is to be made definite
must be independently material and provable under the issues, either as
a fact directly in issue or as incidentally or evidentially relevant to the
issue. Second, since the utterance serves merely to assist in completing
and giving legal significance to the conduct, it is not needed when the
conduct is already complete in itself. The conduct must be equivocal or
incomplete as a legal act before the utterances can be admissible. Third,
the words must aid in completing the indefinite conduct, and no more.
And fourth, the words must be exactly contemporaneous with the act, for
here the words are used only as a verbal part of an entire act.

Wigmore lists some instances where this doctrine can be applied:
H^f>1arafmp<^ ^rrnmppn^Hng a AfA\^T(^ry ^f money to determine wlis^hei^a

l(^an or a payment w^^^gjinaHf^ or whether it was a gift?^all declarations bv

^ occupant of lanc^^ asserting a claim of title, are verbal parts of his act

of occupation, serving to give it an adverse colour; declarations made by

ji^ arpngfiH frrnnH with stolen goods, since "recent possession of stolen

goods raises a presumption that the possessor is the thief or robber or

knowing receiver. . . . Thus, the total significance of the act of possession

becomes material, and upon the principle of Verbal Acts, the utterances

of the person while in possession may be received, as verbal acts";^'^ the

yevocatiop of ?i^ win since the intent of this act can only be ascertained

by considering the words accompanying it; and declarations accompanying

an act of bankruptcy.^^

(iii) Utterances used as circumstantial evidence

Under this category an utterance may be admitted as indirect or
circumstantial evidence. For example, when it is sought to establish a
certain state of mind of an individual, statements made by him may be
admitted as circumstantial evidence of that state of mind, or of the
knowledge, beHef or sanity, of that individual. These statements, not being
admitted to prove the truth of the matter contained, are not inadmissible
because of the hearsay rule, and Wigmore includes them under the
'Verbal Acts' doctrine.

^^Ibid., §1770.
66/61U, §1772.
67/Mcf., §1781.
mbid., §§1778-1786.

(b) Spontaneous Exclamations

Wigmore defined a 'spontaneous exclamation' as "a statement or
exclamation, by a participant, irpmediatelv after an iniujv, declaring the
circumstances of the injury or by a person present at an affray, a railway
collision or other exciting occasion asserting the circumstances of it as
observed by him."^^ He justified the admissibility of such exclamations
on the theory that "under certain external circumstances of physical shock,
a stress of nervous excitement may be produced which stills the reflective
faculties and removes their control, so that the utterance which then
occurs is a spontaneous and sincere response to the actual sensations
and perceptions already produced by the external shock. Since this utter-
ance is made under the immediate and uncontrolled domination of the
senses, and during the brief period when considerations of self-interest
could not have been brought fully to bear by reasoned reflection, the
utterance may be taken as particularly trustworthy . . . and thus as
expressing the real tenor of the speaker's belief as to the facts just
observed by him, and may therefore be received as testimony to those
facts."^^ This would make the statement evidence of the facts contained
therein.

According to Wigmore, certain conditions must be satisfied before
a statement may be admitted in evidence as a spontaneous exclamation.
First, there must be some occurrence that is startling enough to produce
the required nervous excitement and render the utterance spontaneous and
unreflecting. Second, the utterance must be made before there is time to
contrive a story. The statements do not have to be strictly contempor-
aneous with the exciting event, but "may be subsequent to it, provided
there has not been time for the exciting influence to lose its sway and to
be dissipated"."^! Third, the utterance must relate to the circumstances
of the occurrence preceding it. And fourth, the declarant must appear to
have had an opportunity to observe personally the matter of which he
speaks. Other disqualifications which concern the declarant, such as in-
fancy or marital relationship, should not bar the testimony. The spon-
taneous exclamation doctrine overrides these considerations.

The principles regarding the 'Verbal Act' doctrine are often con-
fused with those relevant to the 'Spontaneous Exclamation' doctrine. There
is no place in the latter for the requirement that there be a main or prin-
cipal act. All that is required ig ^ gti^|-f|ing event prnHncing nervous excite-
pient; such event need not in itself he relevant to the issije."^^ The 'Sponta-
neous Exclamation' doctrine applies to bystanders as well as to partici-
pants."^^ The rule of contemporaneity is not the same for both; nervous
excitement may continue for some time.

Wigmore emphasized that spontaneous exclamations, although tradi-
tionally admitted in evidence under the res gestae doctrine, are in fact

69/6/^., §1746.

'^01 bid., §1747.

'^Ubid., §1750.

72/6iW., §1753.

73/61W., §1751.

admissible independently of that doctrine and as a separate exception to
the hearsay rule. Speaking of the spontaneous exclamations exception,
he said:

Its application has almost invariably been made in terms of 'res
gestae'. But this does not mean that there is any anomalous doctrine
which must be recognized by that name. What is actually done by
the Courts, and not what name they use, is always the important con-
sideration in dealing with a rule of Evidence; and since what they do
in this instance is to admit extrajudicial assertions as testimony to
the fact asserted, the plain truth is that they have recognized a
separate Exception to the Hearsay rule.'^'*

Like Wigmore, Professor Edmund M. Morgan has had a great
effect on the development of the principle of res gestae in the United
States. Although he agreed in general with Wigmore's views on res gestae,
he argued that another class of statements is admissible as part of the
res gestae exception: that of the contemporaneous statement.

Morgan identified "seven classes of cases in which the phrase [res
gestae^ is often used as a device for admitting or excluding evidence, some
of them having no element of hearsay involved in them".'^^ Six of these
classes are similar to those of Wigmore. "^^ The class not included in Wig-
more's classification consists of "cases in which the utterance is con-
temporaneous with a non-verbal agt, independently admissible, relating
to that act and tlirowmg some light upon it".'^'^ For Wigmore con-
temporaneity is important only as evidence of spontaneity.'^^ Wigmore
believed that an exciting event was necessary in order to insure the
^prarity of the .staLenignt. Morgan insisted that the contemporaneous
statement exception was proper, first because such statements are unpre-

74/Z,/^., §1768.

^5Morgan, "Res Gestae" (1937), 12 Wash. L. Rev. 91, 92.

76The first class consists of cases in which the utterance is an operative fact: "a
fact which, of itself or in combination with others, creates a legal relation and
without which that legal relation would not arise". The second class consists of
cases in which the utterance, regardless of its truth, has probative value upon
the question of the existence or non-existence of a material fact; the utterance
is used only to show a certain statement or claim was made. The third class
consists of cases where "non-verbal conduct is accompanied by verbal conduct
. . . and the operative effect or the legal significance of the non-verbal conduct
depends upon the words"; here, the non-verbal conduct is ambiguous, and the
words accompanying it clarify the action. The fourth class consists of cases in
which the operative effect of non-verbal conduct depends upon the intent which
accompanies it, and of the state of mind. The fifth class consists of "cases in
which the utterance is a direct declaration of a presently existing mental condi-
tion made naturally and without circumstances of suspicion". In all of these
situations, it is not the truth of the statement that is asserted and therefore the
rule against hearsay is not violated. See generally Morgan, "A Suggested
Classification of Utterances Admissible as Res Gestae'' (1922), 31 Yale, L.J.
229, and Morgan, "Res Gestae" (1937), 12 Wash. L.R. 91.

77Morgan, "A Suggested Classification of Utterances Admissible as Res Gestae"
(1922), 31 Yale L.J. 229, 236.

78Morgan, "Res Gestae" (1937), 12 Wash L.R. 91, 98.

meditated, and, second, because of the guarantee of trustworthiness of the
witness who can corroborate the occurrence of the event as well as the
fact and content of the utterance. The statement must be contemporaneous
with the event, but the event need not be startling.

Morgan's final class consists of "cases in which the utterance is made
concerning a startling event, by a declarant labouring under such stress
of nervous excitement caused by the event, as to make such utterance
spontaneous and unreflective''.'^^ The utterance is offered for its truth and
is hearsay, and its sole guarantee of trustworthiness lies in its spontaneity.
This class is the same as Wigmore's spontaneous exclamations exception,
for Morgan points out that "it is only since the publication of Dean Wig-
more's work that this exception to the hearsay rule has gained wide
recognition".^^ Morgan also states that "it is, however, by no means
universally accepted, and nowhere is the theory of the exception applied
with logical completeness [because], if spontaneity of itself is to be
accepted as a guaranty of trustworthiness, then the subject matter of the
declaration should not be limited to the startling event which operated to
still the reflective faculties".^! And yet many courts so limit it, and insist
on strict contemporaneity of time and place.^^

Today in the United States, 'spontaneous exclamations' (excited
utterances) are ^enerallv recognized as an exception to the hearsay rule.
There is, however, much disagreement as to whether Morgan's con-
temporaneous declaration exception is a valid one. Where this exception
for spontaneous exclamations in the absence of a startling event has
been recognized, the courts have held that to quaUfy under the exception
the utterance must satisfy six conditions of admissibility designed to
insure its trustworthiness. ^^ ' ^

First, the statement must be occasioned by the occurrence of an
event or the existence of a condition that is independentiy relevant.
Second, the statement must prove, fill out, explain or illustrate the event
or condition. Third, the statement must be ,<:nV>gtantip11y rnntfimporaneous
with the event or condition.^'^ This requirement is the primary guarantee
of trustworthiness as it normally assures spontaneity and corroboration
by the witness. ^^ Fourth, the statement must be spontaneous, although
"all the requirement need mean is that there be no apparent motive to

lie" 86 Fifth, fhp witness whrt rppnrtg the- ctatf^mpnt mnct Tiav<^ wifppggp'ii

what the statement reports. However, this requirement is occasionally
disregarded, for the statement, despite the absence of this requirement

79Morgan, footnote 77 supra, at p. 238.

mbid.

mbid., at pp. 238-239.

mbid., at p. 239.

83Note, "Spontaneous Exclamations in the Absence of a Startling Event" (1946),

46 Colum. L. Rev. 430, 435-441.
84However, according to the preceding article, this requirement probably means

no more than what the declarant reports must be relevant.
85Morgan, "Res Gestae" (1937), 12 Wash. L.R.. 91, 95-97; Hutchins & Slesinger,

"Some Observations on the Law of Evidence: Spontaneous Exclamations"

(1928), 28 Colum. L. Rev. 432, 436-440.
86Note, footnote 83 supra, at p. 438.

"has considerable value, both as corroboration of the witness and possibly,
being more reliable than his testimony, as the best way of proving the
issue". ^"^ And sixth, the declarant must have witnessed what the state-
ment reports.

Although there has been debate concerning the validity of these
two hearsay exceptions, the majority of American writers do accept their
vahdity. In a pioneering article in 1928, Professors Hutchins and Slesinger
point out that in 'res gestae' cases the law relies in part on immediacy:
"the desire to lie requires some 'time and reflection to develop."^^ "It
seems then that the courts are on the right track in demanding speed as
a guarantee of truth or at least of the absence of attempted falsehood. "^^
However, there is a problem in knowing how long it takes for one to be
able to fabricate a story, as it is believed to vary from person to person,
and so "the sound discretion of the trial judge ... is Hkely to be fallible".^^

Shock is also seen as rendering difficult a consciously planned lie.
Hutchins and Slesinger suggest that psychologists would probably concede
that excitement stills the voice of reflective self-interest, but they might
question whether this factor of reliability is not over-borne by the dis-
torting effect which shock produces ;9i for stress distorts the capacity to
perceive.^2 n could be argued that in Ught of possible distortion because of
shock, and, because some persons are more self reliant than others, the
rule should read: "Hearsay is inadmissible, especially (not except) if it be
a spontaneous exclamation."^^

However, Hutchins and Slesinger conclude that such a result would
be preposterous. ^"^ "If relevant [the statements] should go to a jury",^^
as they are better than no evidence at all. Contemporaneous statements,
both excited and unexcited, are so valuable for the accurate reconstruc-
tion of the facts that the need is not to narrow the use of such statements,
but to widen the exception to embrace as well, unexcited declarations of
observers near the time of happening.^^

Professor McCormick, in his treatise on Evidence, supports the
idea that statements accompanying non-starthng events or relating to a
condition which the declarant is observing, though unexcited, usually
possess a high degree of trustworthiness. He states that even where an
observer witnesses an event which does not produce shock or excitement,

. . . The observer may yet have occasion to comment on what
he sees (or learns from other senses) at the very time that he is

^llbid., at p. 440.

SSHutchins & Slesinger, footnote 85 supra, at p. 436.

mbid.

90Ibid., at p. 437.

92Marshall, Law and Psychology in Conflict (1969), at pp. 19-20.

93Hutchins & Slesinger, footnote 85 supra, at p. 439.

94lbid.

95Ibid., at p. 440.

96lbid.

receiving the impression. Such a comment, as to a situation then
before the declarant, does not have the safeguard of impulse, emo-
tion, or excitement, but as Morgan points out there are other safe-
guards. In the first place, the report at the moment of the thing
then seen, heard, etc., is safe from any error from defect of memory
of the declarant. Second, there is little or no time for calculated mis-
statement, and third, the statement will usually be made to another
(the witness who reports it) who would have equal opportunities
to observe and hence to check a misstatement. Consequently, it is
beheved that such comments, limited to reports of present sense-
impressions, have such unusual reliability as to warrant their ad-
mission under a special exception to the hearsay rule for declarations
of present sense-impressions.^"^

4. Alternative Approaches to Reform

The Scottish Law Commission recommended that hearsay evidence
should be admissible if the reported statement was made by a person as
a natural, spontaneous and immediate reaction to an event which took
place in his presence, sight or hearing, so as to form part of that event
and be explicatory of jt.^^ This would make the statement not only
evidence that it was made and allow the inferences to be drawn from
the fact that it was made, but evidence of the facts stated.

The American Law Institute in its Model Code of Evidence in 1942
proposed the following rule:

Rule 512. Contemporaneous or Spontaneous Statements

Evidence of a hearsay statement is admissible if the judge
finds that the hearsay statement was made

(a) while the declarant was perceiving the event or condition
which the statement narrates or describes or explains, or
immediately thereafter; or

(b) while the declarant was under the stress of a nervous
excitement caused by his perception of the event or
condition which the statement narrates or describes or
explains. 99

The provisions of the Federal Rules of Evidence^^^ dealing with
excited utterances and contemporaneous statements not made under the

97McCormick, Evidence (1st Ed. 1954), at p. 710.

98Scottish Law Commission, Memorandum No. 8, Draft Evidence Code {First
Part), Article 1.6, at p. 16. The Commission commented that, "There has been
a good deal of confusion on this topic, mainly arising from a failure to distin-
guish between a statement which is part of the res gestae and a de recenti
statement. ... A statement forming part of the res gestae . . . may have been
made by some unknown person; it must be part of the event; and it is
independent, and possibly corroborative, evidence . . . . U a de recenti state-
ment is one made shortly after the occurrence it cannot by definition be part
of the occurrence".

99American Law Institute, Model Code of Evidence (1942), Rule 512, at p. 262.
10028 U.S.C.A., Rule 803, enacted by Pub. Law 93-595, effective July 1, 1975.

stress of nervous excitement, are similar to the provisions of Rule 512
of the Model Code. Subsections (1) and (2) of Rule 803 provide that
such statements shall be admitted as exceptions to the rule against
hearsay :

Rule 803.

The following are not excluded by the hearsay rule, even
though the declarant is available as a witness :

(1) Present sense impression. A statement describing or ex-
plaining an event or condition made while the declarant
was perceiving the event or condition, or immediately
thereafter.

(2) Excited utterance. A statement relating to a startling event
or condition made while the declarant was under the stress
of excitement caused by the event or condition.

The Uniform Rules of Evidence^^i on res gestae also conform sub-
stantially to Rule 512 of the Model Code. The relevant rules provide
for the admission of both excited utterances, and contemporaneous state-
ments not made under the stress of nervous excitement.

Rule 63. Hearsay Evidence Excluded — Exceptions

Evidence of a statement which is made other than by a witness
while testifying at the hearing offered to prove the truth of the
matter stated is hearsay evidence and inadmissible except:

(4) Contemporaneous Statements and Statements Admissible
on Ground of Necessity Generally. A statement (a) which
the judge finds was made whUe the declarant was per-
ceiving the event or condition which the statement narrates,
describes or explains, or (b) which the judge finds was
made while the declarant was under the stress of a nervous
excitement caused by such perception.

There is some doubt whether or not the statement might have to relate
to the circumstances of the exciting occurrence. ^^^

The new Uniform Rules of Evidence approved by the National
Conference of Commissioners on Uniform State Laws in 1974, contain
provisions dealing with excited utterances and contemporaneous state-
ments which are identical to the provisions of subsections (1) and (2)
of Rules 803 of the Federal Rules of Evidence.i03

The New Jersey Committee Report^^^ recommended the adoption of
rules 63(4) (a) and (b) of the Uniform Rules, 1953. The Committee

lOiNational Conference of Commissioners on Uniform State Laws, Uniform Rules

of Evidence (1953).
l02Quick, "Hearsay, Excitement, Necessity and the Uniform Rules: A Reappraisal

of Rule 63(4)" (1960), 6 Wayne L. Rev. 204, 207.
l03National Conference of Commissioners on Uniform State Laws, Uniform Rules

of Evidence (1974), Rules 803(1) and 803(2).
'^^^Report of the Committee on the Revision of the Law of Evidence to the

Supreme Court of New Jersey (May 25, 1955).

also suggested for consideration: (1) a preliminary specific finding by
the trial judge of intrinsic trustworthiness; and/or (2) verification by the
auditor if established by the declarant himself; and/ or (3) exclusion if
self-serving; and/ or (4) admission only when the declarant is not avail-
able for cross-examination. ^05

The California Law Revision Commission stated that 63(4) (b) of
the Uniform Rules of Evidence was merely a statement of the existing
Cahfornia law, and recommended its adoption. ^^^ In the 1965 draft Code,
section 1240 read:

Evidence of a statement is not made inadmissible by the hearsay
rule if the statement:

(a) Purports to narrate, describe, or explain an act, condition,
or event perceived by the declarant; and

(b) Was made spontaneously while the declarant was under
the stress of excitement caused by such perception.

The rationale for this rule was said to be that the "spontaneity of such
statements and the consequent lack of opportunity for reflection and
deliberate fabrication provide an adequate guarantee of their trust-
worthiness". ^^"^

The same Commission, pointing out that rule 63(4) (a) of the
Uniform Rules had been advocated by Morgan and McCormick, recom-
mended its adoption. 10^ Thus in the 1965 draft Code, section 1241 read:

Evidence of a statement is not made inadmissible by the hearsay
rule if the declarant is unavailable as a witness and the statement:

(a) Purports to narrate, describe, or explain an act, condition,
or event perceived by the declarant; and

(b) Was made while the declarant was perceiving the act,
condition, or event.

The comment on the Code was that such statements would be sufficiently
trustworthy to be considered by the trier of fact for the three reasons
discussed by McCormick which were set out earlier. ^^

This section varies greatly from 63(4) (a) of the Uniform Rules of
Evidence, 1953. The whole basis of the section is the unavailability of the
witness, and thus a contemporaneous statement may not be introduced
as a self-serving statement, or as a previous inconsistent statement, unless
it is made admissible by some other section.

^osibid., at p. 120.

l06California Law Revision Commission, Tentative Recommendation and a Study

Relating,' to the Uniform Rules of Evidence, Article VIII, Hearsay Evidence

(August 1962), at p. 466.
l07Califomia Law Revision Commission, Recommendation proposing an Evidence

Code (Jan. 1965), at p. 237.
l08California Law Revision Commission, footnote 106 supra, at pp. 467-468.
lO^California Revision Commission, footnote 107 supra, at p. 238.

5. Conclusions

The recommendations we make under this heading are influenced
by the recommendations we have made concerning changes in the general
law relating to hearsay evidence. Although, as we have pointed out, many
res gestae problems are not exceptions to the hearsay rule, there is an
area in which res gestae statements do operate as exceptions to the hear-
say rule. If the rule against hearsay ^^^^Tf ^^ ^^ fntirely abolished, the
admissibility of the res gestae statements that are now exceptions to the
hearsay rule would be dependent upon their relevance, their weight, the
opportunities the declarant had for observation, and the likelihood of
any factual statement being accurate. There would be no need for any
separate rules regarding the admissibility of res gestae statements, since
they would either be admissible, if not hearsay, under other principles or,
if hearsay, under a provision abolishing the rule against hearsay.

However, we have decided that hearsay should not be admissible
generally, but only under limited circumstances. If the law is amended
as we recommended in Chapter 1, many statements of the sort discussed
in the cases, for example, R. v. Leland and Gilbert v. The King W\\\ be
admissible on the ground that the maker of the statement hasL^j^d before
the trial, pr is otherwise unavailable to give evidence.

There remain to be considered statements made as a spontaneous
reaction to an exciting or shocking event taking place in the presence of
{Jie declararft. In such a case, the fact that the statement is made while
the declarant is under the stress of nervous excitement minimizes the
risk of fabrication or concoction. In our view, such statements should be
admitted in evidence, without proof of that element of strict contempora-
neity which appears to be necessary for admission in evidence under the
res gestae doctrine.

Similarly, we are of the, view tljat confpmpnranpnns statements.
t]iat is^ statements made ^ wT^jlp th^ HpHa]-^|it is perceiving an event or
ynmediately thereafter. shQuld also be admitted in evidence. If the making
of the statement is substantially contemporaneous with the event, the
statement is likely to be reliable, as tliere is no time for reflection or
fabrication. Moreover, the value of the statement is likely to be superior
to any later recollection which may be given in testimony by the declarant.
We think such statements should be admissible regardless of whether the
person making the statement is dead, or cannot be found, or is too ill to
testify. We recommend that The Evidence Act be amended to include a
provision concerning spontaneous and contemporaneous statements under
defined circumstances.

6. Recommendation

We recommend that the amendment should be in the following
form:

t Whether or not a person is called as a witness in a proceeding, a
statement made by him is admissible in evidence if it was made in
such conditions of spontaneity or contemporaneitv in relation to an
event perceived by the witness as to exclude the probability of con-
coction or distortion. [Draft Act, Section 23.]

CHAPTER 3

PREVIOUS STATEMENTS

1. Previous Inconsistent Statements

At common law, the prior inconsistent statement of a witness under
cross-examination could be introduced in evidence and considered only
for the purpose of impeaching the witness' credibility, and not as sub-
stantive evidence of the facts contained in the prior statement. It is not
clear, however, whether at common law a party could impeach his own
witness by proof of a prior inconsistent statement. ^

Today, in Ontario, as in most common law jurisdictions, the common
law rule governing the use of prior inconsistent statements still prevails,
and it is the duty of the court to instruct a jury that they may consider the
prior statement only as affecting a witness' credibility, if so requested by
a party who fears that the statement may be treated by the jury as
substantive evidence against him.

The method of proving prior inconsistent statements under the
provincial law of Ontario is prescribed by statute. Section 21 of The
Evidence Act ( Ontario ),2 dealing with cross-examination of a witness
concerning prior written statements, provides :

21. A witness may be cross-examined as to previous state-
ments made by him in writing, or reduced into writing, relative to
the matter in question, without the writing being shown to him,
but, if it is intended to contradict him by the writing, his attention
shall, before such contradictory proof is given, be called to those
parts of the writing that are to be used for the purpose of so
contradicting him, and the judge or other person presiding at any
time during the trial or proceeding may require the production of
the writing for his inspection, and may thereupon make such use
of it for the purposes of the trial or proceeding as he thinks fit.

This section is procedural, and does not extend the common law limita-
tions on the use of the statement as substantive evidence. It may only
be used to discredit the witness.^

Likewise, a witness may be cross-examined concerning prior oral
statements inconsistent with his present testimony. Section 22 of The
Evidence Act (Ontario) provides:

22. If a witness upon cross-examination as to a former state-
ment made by him relative to the matter in question and inconsistent

iCross, Evidence (4th Ed. 1974), at p. 222; see also Greenough v. Eccles (1859),
5 C.B.N.S. 786, 802, 141 E.R. 315, 322; and Melhuish v. Collier (1850), 15
Q.B. 878, 890, 117 E.R. 690, 695.

2R.S.O. 1970, c. 151.

3/?. V. Birch (1924), 18 Cr. App. Rep. 26.

with his present testimony does not distinctly admit that he did make
such a statement, proof may be given that he did in fact make it,
but before such proof is given the circumstances of the supposed
statement sufficient to designate the particular occasion shall be
mentioned to the witness, and he shall be asked whether or not
he did make such statement.

This provision is also procedural and does not affect the common law
concerning the evidentiary value of the statement.

A party may discredit his own witness, under section 24 of the Act,
by proving that he made a prior inconsistent statement only if, in the
opinion of the judge, the witness has proved to be adverse.^ Like the
other sections of the Act dealing with proof of prior inconsistent state-
ments, this section gives no evidentiary value to the statement, and the
common law rule that the prior statement may be used only to discredit
the witness applies.

A statement made on examination for discovery by a party, or an
officer or servant of a party, to an action is admissible as evidence of the
facts stated at the instance of the opposite party, notwithstanding that the
person making the statement is not called as a witness. ^

Other provisions in the Act concerning statements made out-of-court
are not germane to the subjects discussed in this chapter.^

The common law rule that a previous inconsistent statement is not
received as proof of the facts stated, has been generally accepted for 5
major reasons:

(1) When the statement was made, the witness was not under the
sanction of an oath and was not speaking for the record in the
solemnity of a judicial proceeding.

(2) There is doubt whether cross-examination of the declarant at
the trial will prove adequate as a test of the dependability of an
alleged prior out-of-court statement, as there may not be com-
plete and adequate opportunity for cross-examination relevant
to the time and circumstances under which the statement was
made.

(3) The admission of prior inconsistent statements as substantive
evidence might encourage the fabrication of evidence. It is said
"their unrestricted use as evidence would increase both tempta-
tion and opportunity for the manufacture of evidence. [Thus]

4For a discussion and recommendations concerning impeachment of one's own
witness, see Chapter 12, Section 4, infra.

5R.S.O. 1970, c. 151, s. 16; R.R.O. 1970, R. 545, rr. 326, 328.

^Several of these we discuss elsewhere in this Report. They relate to entries in
books of account kept by a department of government (section 32), bank
records as prima facie evidence of all entries therein and of matters, trans-
actions and accounts therein recorded (section 34), business records made in
the usual and ordinary course of business, etc. (section 36), and medical reports
obtained for a party to an action and signed by a legally qualified medical
practitioner licensed to practice in any part of Canada (section 52).

declarations extracted by the most extreme '3rd degree' methods
could readily be made into affirmative evidence.""^

(4) It is feared that the admission of previous inconsistent statements
would lead to the admissibility of previous consistent statements.

(5) It is contended that the jury would attach unwarranted weight to
the prior statement, as juries are not experienced in the process
of giving greater weight to certain testimony. The task of in-
structing a jury on the relative weight to be given to this type
of hearsay evidence would be great.

Despite these objections, others have argued forcefully that such
statements should be received as substantive evidence. The two safe-
guards of the truth of testimony given in court are the oath with its
accompanying liability for punishment for perjury, and the probe of
cross-examination. Many authors contend that the major safeguard against
unreliable evidence is the test of cross-examination. The oath and conse-
quent sanctions, though of substantial value, are not as effective a
guarantee of truth as effective cross-examination.^

In the case of a previous inconsistent statement made by a witness
who is giving evidence or is available in court, only the oath is lacking,
for the previous statement may be tested in cross-examination and re-
examination: "the two questioners will lay bare the sources of the change
of face"^ and reveal which story is worthy of belief.

Evidence of a previous inconsistent statement where the declarant
is on the witness stand has, therefore, some of the safeguards of examined
testimony. "If we look to the procedural guarantees of truth of the prior
statement and of the present testimony of the same witness, we can
only conclude that they stand approximately equal, since they both are
subject to the same test of cross-examination. "^^ The proponents of this
argument do not accept the proposition that, if cross-examination is to
be effective, it must be conducted when the questioned statement is made
and under the circumstances in which it was made.

Another argument presented in favour of giving substantive value
to prior inconsistent statements is that they are nearer to the event than is
the testimony in court, and recollection is likely to be better than when
later statements are made. For "other things being equal, a memory is
most accurate when recall is made immediately following the observation
. . . [and so] the time-element . . . always favour[s] the earlier statement
. . . [A]s a class, prior inconsistent statements, when they are so verified

'^State v. Saporen (1939), 205 Minn. 358, 361-363, 285 N.W. 898, 901.

SMcCormick, Evidence (2nd Ed. 1972), at p. 601. See also 6 Wigmore,
Evidence, §1827 (3rd Ed. 1940); and Henry, "Uniform Rules of Evidence —
Should they be Adopted? Their Effect on Local Practice" (1964), 39 Wash.
L.R. 380, 388.

^McCormick, footnote 8 supra, at p. 603.
lOMcCormick, Evidence (1st Ed. 1954), at p. 75.

that their actual making is not in doubt, are more rehable as evidence of
the facts than later testimony of the same witnesses". ^^

The practice of cautioning a jury that it must consider the prior
statements of the witness not as substantive evidence on the main issue,
but solely as bearing on the credibility of the witness has been ruthlessly
criticized by eminent scholars and judges as "pious fraud", "artificial",
basically "misguided", "mere verbal ritual" and an "anachronism that
still impede (s) our pursuit of truth". ^^ The soundness of this practice has
been challenged as being a rule juries would not understand, since "the
distinction between the two is not easily appreciated by a jury" : ^^

If a jury is not to be trusted to evaluate hearsay evidence
properly, it may be doubted that it could consider it for one pur-
pose but avoid being influenced by it for another purpose. Jurors
normally reach a decision as a spontaneous reaction to the incidents
of the trial as a whole, the conduct of the witnesses, the parties,
the court, and counsel. They do not, and ordinarily could not, add
to the scales of their deliberation each item of evidence, assigning
to each fragment its due legal value, and then reach a decision by
merely ascertaining which side preponderates. Opinions are not
formed in any such manner; belief or disbelief is not a voluntary
process, controllable with the precision of a scientific instrument. The
impression that testimony makes upon the minds of the jury can
never be entirely removed or controlled by instructions from the
court, no matter how conscientiously the jury may try to follow the
instructions. It is a very difficult matter to control our own psycho-
logical reactions. ^^

McCormick's approach would be not merely to weigh the credibility
of the testimony given in court but to decide which of the two stories is
true: "Men will often believe that if a witness has earUer sworn to the
opposite of what he now swears to, he was speaking the truth when he
first testified". 15 Unless the statement may be true, it does not have the
effect of shaking the credibility of the testimony, and that it may be true
is what is meant by accepting a statement as evidence of the truth. "The
notion that the judge and jury may only say 'we know not which story
is true; we only say that the witness blows hot and cold, and hence is

'^Ubid., at pp. 75-76. See also Marshall, "Evidence, Psychology and the Trial"
(1963), 63 Col. L.R. 196; in general, the fresher the memory, the fuller and
more accurate it is: see Trankell, Reliability of Evidence (1972); Marshall,
Law and Psychology in Conflict (1969), at p. 54; Stewart, "Perception, Memory
and Hearsay: A Criticism of Present Law and the Proposed Federal Rules of
Evidence", [1970] Utah L. R. 1; Redmount, "The Psychological Basis of Evidence
Practices: Memory" (1959), 50 J. Crim. L.C. & P.S. 249.

^Wnited States v. De Sisto (1964), 329 F. 2d 929 (U.S.C.A. 2nd Circ).

l3Clark, C.J., in Mediin v. County Board of Education et al. (1914), 167 N.C. 239,
241, 83 S.E. 483, 484.

14R.T.K., comment in 133 A.L.R., 1444 at p. 1466 considering Chicago, St. Paul,
Minnesota and Oregon Railway Company v. Kulp (1941), 102 F. 2d 352.

^Wnited States ex rel NG. Kee Wong v. Corsi (1933), 65 F. 2d 564, 565 (CCA.
2nd).

not to be believed in either' demands a finical neutrality alien to the
atmosphere of a jury trial. "^^

Some consider that the refusal to accept previous statements as
substantive evidence, is arbitrary and without practical effect where the
impeaching party does not have the burden of producing evidence on the
issue to which the statement relates. Where the party bearing the burden
of proof produces only one witness to a material fact, and his evidence
is attacked by demonstrating that he made a previous inconsistent state-
ment, it is immaterial to the party that does not have the burden of proof
whether the prior statement is accepted as substantive evidence, or merely
used to impeach. In either event the jury can use it to cancel the effect
of the witness' testimony. The impeaching statement, though not substan-
tive evidence, may be a sufficient basis for a decision in favour of the
defendant. It is argued that if the previous statement and the circum-
stances surrounding its making are sufficiently probative to lead the jury
to disbelieve the story of the witness on the stand, they should be suffi-
cient to justify the jury's believing the statement itself. ^'^

Where the party who has the burden of proof seeks to use a prior
inconsistent statement to impeach the evidence of his own witness, the
situation is quite different. If a previous inconsistent statement were to
be admitted as proof of the facts stated therein, and the evidence of the
sole witness called has not discharged the onus but he has admitted
making a previous inconsistent statement which would discharge the
onus, the case could well be decided on evidence not given under the
sanction of an oath, except where the witness testifies as to the truth
of the previous inconsistent statement.

2. Previous Consistent Statements

The most widely accepted rule in the common law world on this
subject can be stated as follows: "any declaration made by the accused,
before or after the commission of the offence, that may be in his favour,
is deemed self-serving and as such is not admissible in evidence". ^^ At
one time it was thought in England that the evidence of a witness could
be corroborated by proof of his own former statements. ^^ However, it is
now settled law that a witness' own previous statements cannot be used,
either in criminaP^ or civil^i cases, to corroborate his testimony.

Three exceptions to this rule are commonly accepted. First, self-
serving evidence is generally admitted in evidence if the declaration is
admissible as part of the res gestae; but "this is not to say that in all
instances a court will disregard a statement's tendency to enhance a

McCormick, footnote 10 supra, at p. 78.

17/)/ Carlo V. U.S. (1925), 6 F. 2d 364, 369 (CCA. 2nd), cert. den. (1924), 268

U.S. 706.
iSGrosman, "An Important Exception to the Rule Against Admission of Self-

Serving Evidence" (1963-64), 6 Crim. L.Q. 27.
l9This was held to be so in Lutteral v. Reynell et al. (1677), 1 Mod. 283, 86

E.R. 887.
20/?. V. Parker, [1783] 3 Dougl. 242, 99 E.R. 634.
21G////^ V. Posho, [1939] 2 All E.R. 196.

litigant's position".^^ McCormick finds that under the prevailing view
the self-serving nature of a statement, while not a conclusive reason for
exclusion, is an indication that the statement was the result of reflective
thought and, thus, is a factor to be considered in deciding whether the
statement was appropriately spontaneous so as to be part of the res
gestaeP Second, complaints by victims of sexual offences are admitted
for a limited purpose. In the Middle Ages it was essential that the victim
raise a hue and cry in cases of rape because it was thought that this
type of evidence greatly increased the likelihood that the complainant
was being truthful. By the beginning of the eighteenth century a strong
presumption existed against a complainant in a rape case if she did not
complain within a reasonable time of the alleged offence. Third, previous
consistent statements may be admitted in evidence to rebut a charge of
recent fabrication; however, they must have been made prior to the
time of the alleged fabrication.

Some suggest that there are further exceptions to the rule against
admitting self-serving statements in evidence. For example, in a few
United States jurisdictions, prior consistent statements are admitted when-
ever the witness has been impeached by evidence of prior statements,
inconsistent with his testimony .^^

One English author suggests that there is in England implicit authority
for the practice of admitting statements of the accused when arrested
even if they are entirely self-serving,^^ and he cites the case of R. v.
Wallwork^^ in support of this view. In that case, Wallwork appealed
against his conviction partly on the ground that the judge in summing up
for the jury had not mentioned that Wallwork had always strenuously
denied the offence. Lord Goddard found, however, that this was
undoubtedly clear to the jury, as the trial judge read passages to them
from the evidence of the police inspector, in which Wallwork emphatically
denied to the police inspector that he had anything to do with the
offence.27 Gooderson argued that, "The Court of Criminal Appeal would
not have investigated the ground of appeal with such care had it occurred
to them that Wallwork's statement to the police was inadmissible because
of the rule against narrative''.^^ In a New Zealand case^^ there is a dictum
that a similar rule apphds there. In that case Ostler, J., said: "Exculpatory
statements made to the police when making enquiries about a crime . . .
if properly obtained, are always admissible both for and against the
person who made them if he is subsequently charged. . . ."^^ Although
Wigmore argues that it is highly desirable that any statement protesting

22Price, "Exclusion of Self-Serving Declarations" (1963), 61 Mich. L. Rev. 1306,

1314.
23 McCormick, footnote 10 supra, at p. 582.
24Cowan, "Prior Consistent Statements Admissible for Rehabilitation when

Witness' Testimony Assailed as Recent Fabrication" (1957), 45 Calif. L. Rev.

202, 203-204.
25Gooderson, "Previous Consistent Statements", [1968] Camb. L.J. 64, 66-68.
26/?. V. Wallwork (1958), 42 Cr. App. R. 153 (Eng. C.A.).
'2'! Ibid., at p. 160.

28Gooderson, footnote 25 supra, at p. 68.
297?. V. Coats, [1932] N.Z.L.R. 401.
30/6/^., at p. 407

innocence made upon arrest, should be receivable,^^ the bulk of United
States case law is against this view.

Statements by the accused when incriminating articles are recovered
from his possession have sometimes been admitted in evidence. "The
clearest case [for this] is where the accused is found in posssession of
recendy stolen goods, for this raises against him a presumption of fact
that he is either the thief or the receiver. It is clear that any explanation
he gives is admissible in evidence. "^^ Both the Supreme Court of Canada^^
and Wigmore consider that such statements are admissible in evidence
as part of the res gestae. However, it is not as clear why this is so if the
statement is self-serving.

For years, testimony concerning previous identification of an accused
has been received in evidence in Canada. ^^^ The courts here and in England
assume, without discussion, that evidence of previous identification either
in a parade or by photograph is admissible unless there was something
unfair in the methods used.

There are three principal arguments supporting the rule against
allowing previous consistent statements to be received in evidence: first,
it may be dangerous to leave probative value and weight of certain types
of evidence to the jury, since jurors are not experienced in the process
of determining the weight to be given to different classes of testimony and
may give undue weight to the previous statement. Secondly, evidence
of a previous consistent statement would be superfluous since a witness'
testimony is generally regarded as true, unless there is a particular
reason for rejecting it as false. This rule reduces collateral issues and
saves time. Thirdly, the risk of fabrication is thought to be so great that
self-serving statements must in general be excluded. This fear is wide-
spread, and is the basic reason why so few courts allow self-serving
statements to be introduced in evidence.^^

3iWigmore, footnote 8 supra, §1732, at p. 106.

32Gooderson, footnote 25 supra, at pp. 70-71.

33i?. V. Graham (1972), 26 D.L.R. (3d) 579.

34ln its Report, the Royal Commission on Police Powers and Procedure assumes
that police witnesses can testify to previous identification in parades and by
photograph: Report of the Royal Commission on Police Powers and Procedure,
Cmnd. 3297, (1929), para. 128. The position in New South Wales was stated by
Ferguson, J., when he said ". . . evidence has been admitted in criminal trials
from time immemorial of the identification of the accused by witnesses out of
Court", {R. V. Fannon & Walsh (1922), 22 S.R. (N.S.W.) 427, 430). The
learned judge justified the rule on the ground that an identification soon after the
commission of the offence strengthens the value of identification in the witness
box, though he regarded the latter as the most trustworthy evidence of identifica-
tion. In the United States, there is a division of authority on the question, but the
trend is in favour of admissibility of evidence of extra-judicial identification: sec
4 Wigmore, Evidence, §1130, (3rd Ed., 1940); and Note by C. R. McCorkle in
71 A.L.R. (2d) 449; see also, Gooderson, footnote 25 supra, at pp. 78, 80.

35For example, the court held in State v. Burgess (1914), 259 Mo. 383, 168
S.W. 740 (Missouri S. Ct.), that "to permit a party to corroborate a witness
by proof that on some other occasion the witness made the same statements
to another party which he or she has testified to upon the trial would set up
a new and dangerous method of corroboration. ... If such a practice . . .

On the other hand it has been said that "there is much to be said
for a broad formulation of the rule under which proof of prior consistent
statements would be permissible whenever the fact that the statement
was made is substantially relevant for some reason other than its
tendency to confirm the consistency of the witness". ^^

Several reasons may be advanced in support of this statement. The
rule arose as a corollary to the rule that prevailed in England until 1851
rendering parties incompetent as witnesses. Until that time "it was felt that
parties to a suit were so naturally and consistently biased in their own
favour that any testimony which they might give, even when under oath
and subject to stringent cross-examination, was of such doubtful value
as evidence that it should not go before the jury in any circumstances".^"^
Since this doctrine of interest has long been abandoned, it is said that the
rule against self-serving statements should be reformed, as both rules
are built on the same logical foundation. The abandonment of the doctrine
of interest is "based on the theory that jurors being reasonable men
realize the tendency of humans to advance their own welfare, and will
take this factor into consideration in judging the credibility of witnesses.
If the jury weigh the testimony given in court they should be able to
weigh the value of a statement given before trial. It is a matter of degree,
with one being perhaps sHghtly less reUable than the other".^^

Another argument is that the rejection of self-serving statements is
unfair, for "statements made by a party before the trial may be proved
if they tend to discredit that party's own evidence, but statements made
by him which are consistent with his evidence are inadmissible". ^^ The
rationale of the rule would seem to be that the "accused will manufacture
evidence for himself" and that this manufactured evidence should not be
considered by a jury or a judge; admissions against the accused's interest
on the other hand are more likely to be true."^^ A double standard is set
up which many regard as unjustified because the previous consistent
statements are often made under the same circumstances as previous
inconsistent statements."^!

were permitted, an untruthful witness could then corroborate himself as to a
falsehood by first relating the falsehood, to other parties, and then, after he
has sworn to the falsehood introduce such other parties to show that he has
theretofore made the same statements to them". This argument was also
advanced by Eyre, C.J., in R. v. Hardy (1794), 24 State Tr. 199, 1093, and
by the majority in Corke v. Corke and Cooke, [1958] P. 93.

36Cross, Evidence (3rd Ed. 1967), at pp. 194-95.

37Middleton, "Admissibility of Self -Serving Declarations" (1959-60), 14 Ark. L.
Rev. 105, 110.

mbid., at pp. 110-111.

39Jolowicz, "Self-Serving Statements or Conduct", [1958] Camb. L.J. 145.

40Grosman, footnote 18 supra, at p. 27.

4lAs an example of the injustice of this double standard, the case of Jones v.
S. E. and Chatham Ry. Co. (1918), 87 L.J.K.B. 775 is cited. In this case a
woman injured her hand, and the issue was whether she had been injured at
work or at home. She could receive compensation only if the injury occurred at
work. Evidence of certain persons who said that she had said to them that
the injury had been inflicted at home was admitted, but evidence of persons
who were prepared to say that the woman had told them shortly after the
accident that the injury had been received at the place of her employment was
excluded.

A third argument proceeds that it is unconvincing to maintain that
permitting the introduction of self-serving declarations would allow a
party to make evidence on his own behalf because to do so would be
to assume that the statements are false. "The court is assuming that the
accused's only purpose would be to deceive the court, and, in fact, [by
assuming this] the court is abdicating its usual function of presuming a
man innocent until proven guilty , . . [This is] repugnant to the funda-
mentals of British justice".'^^ Wigmore agrees with this objection because
he believes the rule is premised on the assumption that "this accused
person might be guilty and therefore might have contrived these false
utterances. . . . But it was not to have been anticipated in a legal system
which makes so showy a parade of the presumption of innocence". "^^

The fourth argument is one suggested by Morris, L.J., in a dissenting
judgment in Corke v. Corke and Cooke."^"^ In that case he was in favour
of admitting a previous consistent statement or act. He stated that the
essential test as to admissibility of evidence is the test of relevance, and
relevance is to be judged by applying a fair-minded common sense
approach. The learned Lord Justice considered that the relevant state-
ment was to be regarded as conduct and that since conduct which sug-
gests guilt may be proved, so may conduct which suggests innocence.
Even though there is a danger of fabrication, this should go to the weight
of the evidence, rather than to its admissibility.

Finally it is argued that the opportunity for cross-examination
provides a sufficient test of the truth of the previous consistent state-
ment : "reUability is initially estabhshed by the fact that the witness appears
personally before the court and is under oath to tell the truth [and]
the testimony given is subject to cross-examination by the opposing party.
This gives an opportunity to challenge any testimony offered, to probe
for inconsistencies, and generally discredit any untruthful testimony".'^^
But this is not entirely true where a previous consistent statement is
proved by a witness other than the witness who made the statement.

3. Reforms Proposed in Other Jurisdictions

The extent of the law reform activity in this area of the law in other
jurisdictions indicates that there is much dissatisfaction vdth the present
rules concerning prior statements. In the United States changes have
been proposed by many reform bodies, and have been adopted in some
states; in England legislation has been enacted.

(a) United States

In the United States, one of the first major proposals for reform of
the law concerning prior statements was contained in the hearsay provi-
sions of the Model Code of Evidence,'^^ approved by the American Law

42Grosman, footnote 18 supra, at pp. 28-29,

43Wigmore, footnote 8 supra, §1732, at p. 102.

44[1958] P. 93, 106.

45Note (1968), 54 Iowa L. Rev. 360, 361-362.

46American Law Institute, Model Code of Evidence (1942).

Institute in 1942. Under Rules 303 and 503 of the Code, which deal
broadly with hearsay evidence, previous statements, both consistent and
inconsistent, would be admitted, unless excluded on some other ground.
The relevant Rules provide:

Rule 503

Evidence of a hearsay declaration is admissible if the judge
finds that the declarant

(a) is unavailable as a witness, or

(b) is present and subject to cross-examination.

Rule 303

(1) The judge may in his discretion exclude evidence if he finds
that its probative value is outweighed by the risk that its admission
will

(a) necessitate undue consumption of time, or

(b) create a substantial danger of undue prejudice or of con-
fusing the issues or of misleading the jury, or

These provisions are based on the view that if the declarant is in
court and subject to cross-examination, there is no real foundation for
a hearsay objection. However, there is no requirement in the Model Code
that such hearsay statements, to be admissible, should exhibit circum-
stantial guarantees of trustworthiness.

In 1953, the Commissioners for Uniform State Laws approved the
Uniform Rules of Evidence.'^'^ Although these Rules have been super-
seded by the Uniform Rules of Evidence, 1974,^8 the earher rules do
provide a useful model for discussion. Rules 63(1) and 45 provide:

Rule 63. Hearsay Evidence Excluded — Exceptions

Evidence of a statement which is made other than by a witness
while testifying at the hearing offered to prove the truth of the
matter stated is hearsay evidence and inadmissible except:

( 1 ) A statement previously made by a person who is present at the
hearing and available for cross-examination with respect to the
statement and its subject matter, provided the statement would be
admissible if made by declarant while testifying as a witness.

Rule 45. Discretion of Judge to Exclude Admissible Evidence

Except as in these rules otherwise provided, the judge may in his
discretion exclude evidence if he finds that its probative value is
substantially outweighed by the risk that its admission will

47National Conference of Commissioners on Uniform State Laws, Uniform Rules
of Evidence (1953).

48Uniform Rules of Evidence approved by the National Conference of Commis-
sioners on Uniform State Laws (1974).

(a) necessitate undue consumption of time, or

(b) create substantial danger of undue prejudice or of con-
fusing the issues or of misleading the jury, or

(c) unfairly and harmfully surprise a party who has not had
reasonable opportunity to anticipate that such evidence
would be offered.

Under Rule 63 prior inconsistent statements would be admissible
as substantive evidence if the declarant is present and available for cross-
examination. Nor are prior consistent statements rendered inadmissible
by reason of the hearsay rule. The rationale for this is that cross-exami-
nation at the trial is as adequate as it would have been at the time the
statement was made, and also that Rule 45 gives protection from possible
abuse of this Rule. For example, "unless there has been substantial im-
peachment of the witness his prior consistent statements would add very
little to his trial testimony and it is likely that they would be excluded by
the trial judge"."^^ Under this proposal the out-of-court statement could
be excluded under Rule 45, on the ground that it was not worth the time
or that its effect was merely cumulative. The merits of this proposal
were stated by the Cahfomia Law Revision Commission to be as follows:

... in lieu of regulating the admissibility of prior consistent state-
ments by the perplexing 'recent contrivance' doctrine (under which
the evidence is inadmissible in all cases as substantive evidence but
admissible in some as nonsubstantive), we would have a simple rule
of admissibility of such statements as substantive evidence on the
merits in all cases, subject only to the judge's discretion to reject
them as merely cumulative. The new rule would be simpler for both
judge and jury to understand and apply.^^

The California Law Revision Commission, however, recommended
against the adoption of Rule 63(1) of the Uniform Rules of Evidence,
1953,5' and contended that the Rule,

. . . would permit a party to put in his case through written state-
ments carefully prepared in his attorney's office, thus enabling him to
present a smoothly coherent story which could often not be dupli-
cated on direct examination of the declarant. The prohibition against
leading questions on direct examination would be avoided and much
of the protection against perjury provided by the requirement that
in most instances testimony be given under oath in court would be
lost. Inasmuch as the declarant is, by definition, available to testify
in open court, the Commission does not believe that so broad an
exception to the hearsay rule is warranted. ^^

49Donnelly, "The Hearsay Rule and Its Exceptions" (1955-56), 40 Minn. L. Rev.

455, 460.
50Califomia Law Revision Commission, Tentative Recommendation and a Study

Relating to The Uniform Rules of Evidence, Article VIII, Hearsay Evidence

(August 1962), at p. 427.
^^Ibid., at p. 313 et seq.
52lbid., at p. 313.

The California Commission proposed instead, that the present law
respecting the admissibility of out-of-court declarations of trial witnesses
be codified with some revisions. The Commission recommended that the
law respecting the admissibility of prior inconsistent statements be codified
and the law regarding the admissibility of prior consistent statements
substantially restated ;53 it was proposed that in both instances the extra-
judicial declarations should be admitted as "substantive evidence in the
cause rather than, as at the present, solely to impeach the witness in the
case of prior inconsistent statements and, in the case of prior consistent
statements, to rebut a charge of recent fabrication". ^^ jhe California
Commission contended that it was not realistic to expect a jury to under-
stand and apply the subtle distinctions taken in the present law as to the
purposes for which the extrajudicial statements of a trial witness may or
may not be used. It also took the view that a party should be able to use
a prior inconsistent statement of a trial witness in order to make out a
prima facie case or defence, and stated that "in many cases the prior
inconsistent statement is more likely to be true than the testimony of
the witness at the trial because it was made nearer in time to the matter
to which it relates and is less likely to be influenced by the controversy
which gave rise to the litigation".^^

McCormick does not entirely subscribe to the philosophy of the
former Uniform Rules of Evidence because of the hazard in falsely
reporting oral statements. "We may well be justified, [he says], in placing
a special safeguard upon the use of such supplemental evidence if we
believe that the risk of mistransmission outweighs the probable value
of the evidence." McCormick proposed the following alternative rule:
"that a statement made on a former occasion by a declarant having an
opportunity to observe the facts stated, will be received as evidence of
such facts, notwithstanding the Hearsay Rule if:

(1) the statement is proved to have been written or signed by the
declarant or to have been given by him as testimony in a judicial
or official hearing, or the making of the statement is acknowl-
edged by the declarant in his testimony in the present proceed-
ing, and

(2) the party against whom the statement is offered is afforded an
opportunity to cross-examine the declarant".^^

Professor Judson F. Falknor has proposed a rule which is substantially
similar to that advocated by McCormick.^^ However, this general approach
has been rejected by those who contend that it is the function of the jury
to decide whom and what to believe.^^

^^Ibid., at pp. 312-313.

54//,/ J., at p. 313.

55lbid.

56McCormick, "The Turncoat Witness: Previous Statements as Substantive Evi-
dence" (1947), 25 Tex. L. Rev. 573, 588.

57Falknor, "The Hearsay Rule and Its Exceptions" (1954-55), 2 U.C.L.A. L.
Rev. 43, 53-54.

58See Donnelly, footnote 49 supra, at p. 461.

(b) England

The common law rule against the use of prior statements as proof of
the facts contained was altered by the changes to the hearsay rule made
by the English Evidence Act, 1938. As we stated in chapter 1 the pro-
visions of this Act made admissible as substantive evidence in civil pro-
ceedings, a relevant statement contained in an original document on the
following conditions:

(1) subject to certain exceptions, that the maker of the statement
had personal knowledge of the facts stated;

(2) that if the maker of the statement was alive and could be
called as a witness he must be called except in exceptional
circumstances;

(3) that the statement was made ante litem motam, and

(4) that the statement was written and signed by the maker of the
document, or at least otherwise recognized by him.

The circumstances in which the maker of the statement was not required
to be called as a witness, were where he was dead or unfit to attend as
a witness or was beyond the seas and it was not reasonably practical
to secure his attendance, or if all reasonable efforts to find him were
without success. ^9 YtdiV that the prior statement might be misreported
appears to have led to the requirement that the maker of the statement
be called as a witness.

The English Law Reform Committee considered the problem of
distortion in its Report on Hearsay.^^ It observed that the 1938 legislation
proceeded from a distinction between written and oral hearsay and
extended only to written statements. It examined the rationale for the
distinction as follows:

[A] written statement speaks for itself. There can be no dispute as
to whether what it says is accurate; there can be no dispute, save
as a matter of semantics, as to what it says. It is otherwise with
an oral statement the maker of which is not called as a witness. The
court's knowledge of what was said by the alleged maker of the
statement depends upon the honesty and accuracy of recollection:
of the witness who gives evidence of it. There is a double source
of error; the statement may not only be inaccurate, it may also be
misreported. But this criticism goes to probative value: it is equally
valid of oral statements at present admissible at common law — for
instance, under the res gestae rule.^^

The Law Reform Committee was divided as to whether a prior
statement should be admitted as evidence of the facts contained in the

^^Evidence Act, 1938, 1 & 2 Geo. VI, c. 28, ss. 1. 2.

60Law Reform Committee, Thirteenth Report, Hearsay Evidence in Civil Proceed-
ings, Cmnd. 2964, (1966).
^Ubid., para. 14, at p. 7.

statement.62 A substantial minority recommended that it should not,
except in exceptional circumstances:

Those who take this view attach importance to the principle
that, where it is available, the 'best evidence' should normally be
given and, while in favour of admitting hearsay evidence where it
is necessary (because direct evidence is not available) or convenient
and innocuous (because no adverse party wishes seriously to dispute
it), they regard as particularly valuable oral evidence given in answer
to questions which are not leading questions. To admit a statement
made outside court when the maker is not only available but is
actually called as a witness is, in their opinion, a departure from the
'best evidence' principle for which there is no sufficient justification.
If the previous statement is consistent with what the witness says
in court, it is of little value; if inconsistent, it should not be used by
the party calling the witness to contradict or qualify his oral testi-
mony. The minority sees no reason why a party should be permitted,
where his witness fails to 'come up to proof, to remedy the defect
in his evidence by showing that on another occasion the witness
made a different statement. They are, therefore, opposed to the
admission of previous inconsistent statements in any circumstances.
They recognize, however, that there are exceptional cases where a
previous consistent statement could properly be admitted at the
judge's discretion: for instance, a contemporaneous statement made
by an eye-witness to an event who has subsequently lost nearly all
recollection of what happened.^^

A narrow majority, however, took a different view. They considered that:

whether consistent or inconsistent with the witness' oral testimony, a
previous statement made by him should be admissible at the judge's
discretion, which could be exercised where circumstances justified
his taking this course. They attach considerable importance to con-
ferring on the judge a residual discretion to admit statements, as
evidence of the facts which they tend to establish, where those
statements appear to him to be likely to assist in ascertaining the
truth. A proof of a statement taken from a witness for the purposes
of the trial is of small probative value and they would not normally
expect a judge to admit it, except in rebuttal of suggestions made in
cross-examination; but a statement made by an eye-witness shortly
after the event that he has witnessed is sometimes more likely to be
accurate than his recollection of the event extracted from him in the
witness box years later. Whether consistent or inconsistent with his
oral evidence, the majority think not only that it may sometimes be a
useful aid in assessing the probative value of the latter, but also
that it may occasionally possess in its own right a higher probative
value than the so-called 'best evidence' with which it is inconsistent.
They would expect statements made while the witness' recollection

^Vbid., para 35, at p. 16.
^^Ibid., para. 36, at p. 17.

was still fresh to be freely admitted by the judge as evidence of the
facts which they tended to establish. ^"^

The members of the Committee were all agreed, however, that if a
prior statement is to be admitted as substantive evidence, it should be so
admitted only at the discretion of the trial judge. They were "accordingly
unanimously of the opinion that the . . . automatic admissibility of
statements of the kind to which the Evidence Act, 1938 applies, where
the maker of the statement is called, should, to his extent, be limited. "^^

Section 2(1) of the Civil Evidence Act 1968^^ provides that a state-
ment made by any person, whether called as a witness or not, is admis-
sible as evidence of any facts stated therein of which direct oral evidence
by him would be admissible. This would apply to previous statements,
both consistent and inconsistent, of a witness called at the trial. However,
this is subject to the Umitations set out in subsection 2.^'^

Section 3 provides that where a previous inconsistent statement
made by a witness is proved, either after he has been declared hostile or in
cross-examination, or where a previous consistent statement made by
a witness is admitted to rebut a suggestion that his evidence has been
fabricated, the statement is admissible not only to attack his credibility
or to support his credibiUty, as the case may be, but also as evidence of
the facts stated therein.

4. Recommendations

We have concluded that it would not be wise to permit counsel call-
ing a witness to adduce evidence of a prior statement inconsistent with
the evidence given by the witness at the trial, as proof of the facts con-
tained in the statement. In our view, proof of such a statement should be
permitted only for the purpose of discrediting a witness who has dis-
appointed an examiner. To admit a prior statement as evidence of the
facts contained therein, would permit a statement not given under oath to
contradict the evidence of the maker of the statement which has been
given under oath.

^Ibid., para 37, at pp. 17-18.

^^Ibid., para. 35, at p. 17.

66C/v// Evidence Act 1968, c. 64.

67(2) Where in any civil proceedings a party desiring to give a statement in evi-
dence by virtue of this section has called or intends to call as a witness in the
proceedings the person by whom the statement was made, the statement —

(a) shall not be given in evidence by virtue of this section on behalf of that
party without the leave of the court; and

(b) without prejudice to paragraph (a) above, shall not be given in evidence
by virtue of this section on behalf of that party before the conclusion of
the examination-in-chief of the person by whom it was made, except —

(i) where before that person is called the court allows evidence of the
making of the statement to be given on behalf of that party by some
other person; or

(ii) in so far as the court allows the person by whom the statement was
made to narrate it in the course of his examination-in-chief on the
ground that to prevent him from doing so would adversely affect the
intelligibility of his evidence.

On the other hand, where the evidence of a witness is challenged by
the opposing party as a fabrication for the purpose of the trial, the fact
that he made a prior consistent statement may well support the credibility
of the witness. In addition, the witness is on the witness stand and avail-
able to testify to the facts contained in the statement.

We make the following recommendations:

1. A party producing a witness should be permitted to prove a
previous consistent statement to rebut a suggestion that his
evidence as given at the trial has been fabricated. In such a case,
the statement should be admitted not only to support the credi-
bility of the witness, but as substantive evidence of the facts stated
therein. But where corroboration is required, no such statement
should be used to corroborate the witness' evidence. The Evidence
Act should be amended to include the following provision:

( 1 ) A previous consistent statement made by a witness
in a proceeding is admissible in evidence to rebut an allega-
tion that his evidence has been fabricated, and such a state-
ment shall be admitted not only to support the credibility
of that witness, but also as evidence of any fact contained
therein of which direct oral evidence by him would be ad-
missible.

(2) Where corroboration is required by law, a state-
ment admitted under this section shall not be taken as cor-
roborative of the evidence of the witness who made the
statement. [Draft Act, Section 28.]

2. If, in the opinion of the court, a witness has made an inconsistent
statement at some other time, the party producing the witness
should be permitted to prove that the witness made the prior
inconsistent statement; but before proof is given, the circumstances
under which the statement was made should be drawn to the
attention of the witness and he should be asked whether or not
he made the statement. If it is proved that the witness made a
prior inconsistent statement, the only evidentiary value it should
have should be to discredit the evidence of the witness given at
the trial. The Evidence Act should be amended by substituting for
section 24, the following provision:

( 1 ) A party producing a witness in a proceeding shall
not impeach his credit by general evidence of bad character,
but he may contradict him by other evidence, or proof that
the witness at some other time made a statement inconsistent
with his present evidence.

(2) Before proof of a prior inconsistent statement is
given in a proceeding, the circumstances of it sufficient to
designate the particular occasion on which it was made shall
be drawn to the attention of the witness and he shall be
asked whether or not he made the statement.

(3) No such prior statement is admissible in evidence
in proceeding to prove any fact contained in it. [Draft Act,
Section 24.]

3. Where on cross-examination a witness admits making a statement
inconsistent with his present testimony, or where he does not
admit making a statement inconsistent with his present testimony
and proof is given that he did in fact make such a statement,
the statement should be received as evidence of the facts stated
therein. Section 22 of The Evidence Act should be amended to
read as follows:

(1) If in a proceeding a witness upon cross-examina-
tion as to a former statement made by him relative to the
matter in question and inconsistent with his present testimony
does not distinctly admit that he did make such statement,
proof may be given that he did in fact make it, but before
such proof is given the circumstances of the supposed state-
ment sufficient to designate the particular occasion shall be
mentioned to the witness, and he shall be asked whether or
not he did make such statement.

(2) Where under this section it is proved that a witness
made a statement inconsistent with his present testimony,
the statement shall be admitted as evidence of the facts
stated therein but only if the witness could have testified as
to such facts. [Draft Act, Section 34.]

CHAPTER 4

ILLEGALLY OBTAINED EVIDENCE

1. Introduction

The admissibility of illegally obtained evidence in criminal trials
has long been the subject of controversy; little, however, has been said
about its admission in civil trials. The chief reason for this is that
evidence when obtained illegally in the criminal process usually attracts
greater notoriety, as it involves improper acts on the part of the State
and its agencies. We shall examine the rule governing the admissibility
of illegally obtained evidence in both civil and criminal proceedings in
Canada and make some comparison with the approach taken in other
jurisdictions.

Those who would not admit illegally obtained evidence, even where it
is relevant to the facts in issue, contend that it should be excluded on the
following grounds:

( 1 ) as a deterrent to illegal behaviour;

(2) the law breaker should not be allowed to benefit from his
illegal activity;

(3) the admission of such evidence involves the courts in recogni-
tion of wilful disobedience of the law tending to bring the
administration of justice into disrepute; and

(4) its admission would be unjust or unfair to the accused.

On the other hand, it is argued that where evidence is logically relevant
to the facts in issue, it should be admitted despite the fact that it was
illegally obtained because:

(1) the predominant concern of the tribunal of fact is the search
for truth, and the fact of the illegal acquisition of evidence does
not affect the logical relevance of that evidence;

(2) other sanctions and remedies exist against the perpetrator of
illegal acts that are better suited to deter wrongdoers than an
evidentiary rule of exclusion; and

(3) it would be a grave injustice to a party to be denied the use of
illegally obtained evidence where he was not involved in the
illegality.

Lord Cooper (Lord Justice-General) in Lawrie v. Muir^ summed
up the basic conflict of principle in this area of the law:

From the standpoint of principle it seems to me that the law
must strive to reconcile two highly important interests which are

i[1950]S.C.(J.) 19.

liable to come into conflict — (a) the interest of the citizen to be
protected from illegal or irregular invasions of his liberties by the
authorities, and (b) the interest of the State to secure that evidence
bearing upon the commission of crime and necessary to enable justice
to be done shall not be withheld from courts of law on any merely
formal or technical ground. Neither of these objects can be insisted
upon to the uttermost. The protection of the citizen is primarily
protection for the innocent citizen against unwarranted, wrongful and
perhaps high handed interference, and the common sanction is an
action of damages. The protection is not intended as a protection for
the guilty citizen against the efforts of the public prosecutor to vindi-
cate the law. On the other hand, the interest of the State cannot be
magnified to the point of causing all the safeguards for the protection
of the citizen to vanish, and of offering a positive inducement to the
authorities to proceed by irregular methods.

2. Theoretical Basis For Exclusion

Wigmore^ has divided the rules governing the admissibility of evi-
dence into two groups: those which may be said to be designed to im-
prove the quality of proof, and those which are not concerned with an
inquiry into truth but are based on extrinsic policy. In the latter group,
evidence may be disallowed where certain values are considered to pre-
dominate over the truth inquiry. Marital communications, confidential
communications between a solicitor and his client, and secrets of State,
illustrate rules coming within this category.

In the United States, in order to deter illegal activity in the securing
of evidence in criminal proceedings, evidence is inadmissible if law officers
have acquired it illegally or illegal acts have led to its discovery. In
Canada, on the other hand, the courts have been more reluctant to
subordinate the truth inquiry to extrinsic policy considerations. Generally
speaking, the English and Canadian criterion for the admission of illegally
obtained evidence is the logical relevance of the evidence to the facts in
issue. The way in which it was obtained is treated as a collateral issue
having no bearing on the trustworthiness of the evidence, although in
practice the court may consider the matter as having some effect on the
credibility of the party who produces it.

Where improperly or illegally obtained evidence has been excluded
in Canada, it has generally been on the basis, not of extrinsic policy con-
siderations, but rather because of the danger that such evidence might be
untrue. In Regina v. Wray,^ Cartwright, C.J., said:

The great weight of authority indicates that the underlying reason
for the rule that an involuntary confession shall not be admitted is
the supposed danger that it may be untrue."^

28 Wigmore, Evidence, §2175 (McNaughten Rev. 1961). Wigmore also discusses
a third group of rules: those which determine the relevance of circumstantial
and testimonial evidence.

3[1971] S.C.R. 272. This case is discussed in greater detail in Chapter 5, infra.

^Ibid., at p. 279.

This appears to be the basis of the rule in i?. v. St. Lawrence,^ in which
it was held that those parts of a confession which are subsequently con-
firmed by fact are admissible, even though the confession is not proved to
be voluntary and is otherwise inadmissible.

In a dissenting judgment in the Wray case, the Chief Justice dis-
cussed the rationale of probative worth behind the St. Lawrence rule, and
pointed out that if the only reason for the rule excluding an involuntary
confession was the danger that it might be untrue, then there was a lack
of logic in the exclusion of an involuntary statement which the accused
subsequently admits on his oath to be true. The Chief Justice put forward
as an additional rationale for the exclusion of involuntary confessions, the
privilege against self-incrimination. However, he went on to accept the
St. Lawrence rule, which seems to contradict his former argument and
places him with the other Justices of the Court who considered the proba-
tive worth as the sole criterion of admissibility. Only Mr. Justice Hall
felt that the Court ought to reconsider the St. Lawrence rule.

Martland, J., said in the majority decision ". . . in my opinion, under
our law, the function of the court is to determine the issue before it, on
the evidence admissible in law, and it does not extend to the exclusion of
admissible evidence for any other reason". ^

Because the law governing the admissibility of illegally obtained
evidence in criminal proceedings applies equally to civil cases, a discus-
sion of the present law must involve a consideration of the major criminal
cases.

3. The Exclusionary Rule In Criminal Trials And Its Effect On
The Civil Law

(a) The Law in Canada

The principle governing the admissibility of illegally obtained evidence
in criminal cases is stated by Lord Goddard in a decision of the Judicial
Committee of the Privy Council, Kuruma v. The Queen.'^ He said:

In their Lordships' opinion the test to be appHed in considering
whether evidence is admissible is whether it is relevant to the matters
in issue. If it is, it is admissible and the court is not concerned with
how the evidence was obtained.^

This principle was referred to with approval by the Supreme Court of
Canada in A.G. for Quebec v. Begin.^

Although Kuruma v. The Queen was a criminal appeal, Lord God-
dard saw "no difference in principle for this purpose between a civil and

5[1949] O.R. 215 (H.C.J.).
6[1971] S.C.R. 272, 288.
7[1955] A.C. 197 (P.C.).
^Ibid., at p. 203.
9[1955] S.C.R. 593, 597.

criminal case".^^ Many of the authorities reviewed in making this state-
ment of the law were civil cases. ^^

There are few reported cases in Canadian jurisdictions where the
admissibihty of illegally obtained evidence in civil trials has been con-
sidered. Although, as we have seen, it is settled for criminal cases that
evidence otherwise admissible is not rendered inadmissible by the fact
that it was illegally obtained, ^^ the law on this point in civil cases is not
so clear. The few precedents and obiter dicta that do exist, however, seem
to indicate that the rule is the same in both civil and criminal cases. Legal
commentators have taken this view.^^

In Cuthbertson v. Cuthbertson,^^ one of the questions in an action
for alimony concerned documents which the defendant alleged were
stolen by the plaintiff. The court said that the admissibility of evidence
is not affected by the fact that the evidence was obtained by illegal
means. ^^ As authority for this proposition, reference was made to Wig-
more on Evidence}^ The decision rested on the authority of Lightheart v.
Lightheart^'^ which was an action brought in Saskatchewan for judicial
separation. In that case the wife offered in evidence incriminating letters
showing her husband's adultery. She had obtained these letters from a
locked drawer in her husband's desk, the key of which she had taken from
his pocket while he slept. It was argued that the wife should not be per-
mitted to gain an advantage from her wrongful conduct, characterized
by counsel as theft. The court allowed the letters to be admitted, basing
its decision on a finding that the wife was not guilty of theft. The reasons
for judgment contain the following obiter statement, "It seems clearly
settled that . . . howsoever the documents were obtained they could be
put in evidence". 1^ In support of this proposition the learned judge quoted
from Rex v. Honan^^ where Meredith, J. A., as he was then, giving the
judgment of the Ontario Court of Appeal said: "the question is not, by
what means was the evidence procured; but is, whether the things proved
were evidence; ... it is still quite permissible to 'set a thief to catch
a thief ".20

Prior to the decision of the Supreme Court of Canada in Regina v.
Wray,'^^ it was thought that a trial judge had a discretion to exclude
relevant evidence which had been illegally or improperly obtained. In
Kuruma v. The Queen, Lord Goddard was careful to qualify the breadth

10[1955] A.C. 197, 204.

^^Lloyd V. Mostyn (1842), 10 M. & W. 478; Calcraft v. Guest, [1898] 1 Q.B.

759 (C.A.); Lawrie v. Muir, [1950] S.C. (L) 19; Rattray v. Rattray (1897),

25 Rettie 315.
'^'^Kuruma v. The Queen, footnote 7 supra.
l3Cross, Evidence (4th Ed. 1974), at p. 282.
14[1951] O.W.N. 845 (H.C.J.).
15/Z>/J., at p. 848.

168 Wigmore, Evidence, §2183 (3rd Ed. 1940).
17[1927] 1 W.W.R. 393 (Sask. K.B.).
mbid., at p. 397.
19(1912), 26 O.L.R. 484 (C.A.).
20/fczU, at p. 489.
21[1971] S.C.R. 272.

of the statement we have quoted by saying that there remained in the
court:

a discretion to disallow evidence if the strict rules of admissibility
would operate unfairly against an accused. ... If for instance, some
admission of some piece of evidence, e.g., a document, had been
obtained from a defendant by a trick, no doubt the judge might
properly rule it out.22

Lord Parker, C.J., in a later case, Callis v. Gunn, stated that a judge has a
discretion to exclude evidence, even if relevant, that would operate un-
fairly against an accused, or that has been obtained in an oppressive
manner by force or against the wishes of the accused.^^

In Regina v. Wray, however, in which the Supreme Court of Canada
considered the admissibility of evidence discovered as a result of an in-
voluntary confession, it was decided that a judge has no residual discre-
tionary power to exclude relevant evidence except where its evidentiary
value is slight and its prejudicial character far outweighs the evidentiary
value. Martland, J., referring to the statement of Lord Goddard in the
Kuruma case, said:

It recognized a discretion to disallow evidence if the strict rules of
admissibility would operate unfairly against the accused. Even if this
statement be accepted, in the way in which it is phrased, the exercise
of a discretion by the trial judge arises only if the admission of the
evidence would operate unfairly. The allowance of admissible
evidence relevant to the issue before the court and of substantial
probative value may operate unfortunately for the accused, but not
unfairly. It is only the allowance of evidence gravely prejudicial to
the accused, the admissibility of which is tenuous, and whose proba-
tive force in relation to the main issue before the court is trifling,
which can be said to operate unfairly. ^^^

Therefore, in Canada at common law a judge would appear to have
no discretion in a criminal case to exclude relevant and substantial
evidence on the basis that it has been obtained illegally. We have been
unable to find any authority that the law is different in civil cases.

Nor is evidence rendered inadmissible by reason of the fact that it
has been secured in contravention of the provisions of the Canadian Bill
of Rights. In R. v. Hogan^^ the Supreme Court of Canada considered
the admissibility of a certificate concerning a breathalizer test where the
test was administered by officers who had refused the accused's prior
request to consult counsel. It was argued that the refusal of an opportunity
to consult counsel was a violation of the Canadian Bill of Rights, that the
breathalizer sample was illegally obtained, and that, therefore, the certifi-
cate concerning it ought not to have been admitted in evidence. The
majority of the court held that even if the evidence had been improperly

2'^Kuruma v. The Queen, [1955] A.C. 197, 204 (P.C),

23[1964] 1 Q.B. 495, 501.

24[1971] S.C.R. 272,293.

25Hogan V. The Queen, [1975] 2 S.C.R. 574.

or illegally obtained there were no grounds for excluding it at common
law, and that, in view of other evidence of intoxication, it could not be
characterized as unfair to accept the evidence as proof of the exact
quantity of alcohol absorbed into the blood stream. Ritchie, J., in writing
the majority judgment said, "I cannot agree that, wherever there has been
a breach of one of the provisions of that Bill, [the Bill of Rights] it
justifies the adoption of the rule of 'absolute exclusion' on the American
model which is in derogation of the common law rule long accepted in
this country ".2^

The learned judge followed the reasoning in King v. The Queen,^'^
a case from Jamaica where the Privy Council considered the subject of
illegally obtained evidence generally and the effect of the search and
seizure provision in the Jamaican Constitution. Many of the relevant
cases in Scotland and England were discussed. The evidence in question
was obtained by an illegal search of the accused. The Committee dis-
cussed the following statement of Lord Parker in Callis v. Gunn,^^ con-
cerning the court's discretion to exclude illegally or improperly obtained
evidence: "[It] would certainly be exercised by excluding the evidence if
there was any suggestion of it having been obtained oppressively, by false
representations, by a trick, by threats, by bribes, anything of that sort".
The Committee qualified this statement by concluding that unfairness to
the accused in this context is not susceptible of close definition and must
be judged in the light of all the material facts and findings and of the
surrounding circumstances. ^^

The particular relevance of the King case to the Hogan case is the
disposition of the argument that, where the illegally obtained evidence
was obtained in violation of the accused's constitutional rights, it ought
to have been excluded under the Jamaican Constitution. Lord Hodson
disposed of this argument concisely:

This constitutional right may or may not be enshrined in a
written constitution, but it seems to the Lordships that it matters not
whether it depends on such enshrinement or simply upon the com-
mon law as it would do in this country. In either event the discretion
of the court must be exercised and has not been taken away by the
declaration of the right in written form.^^

With this the majority of the Supreme Court in jR. v. Hogan agreed.

Laskin, C.J., dissenting, with whom Spence, J., agreed, held that
the results of the breathalizer test should have been excluded. He termed
the Canadian Bill of Rights "a quasi-constitutional instrument". To the
subject of evidence obtained in breach of the provisions of the Bill of
Rights, he would apply the philosophy of the American exclusionary rules
developed in the interpretation of constitutional guarantees in the United
States of America to which we refer briefly later in this chapter. It would

26/Z>/J., at p. 584.

27[1969] 1 A.C. 304 (P.C).

28[1964] 1 Q.B. 495, 502.

^^King V. The Queen, footnote 27 supra, at p. 319.

mbid.

appear from the decision in the Hogan case that the provisions of the
Canadian Bill of Rights do not affect the admissibility of evidence that
may have been obtained in violation thereof.

In Canada, therefore, the courts regard illegally obtained evidence
as admissible, on the view that determining the truth of a matter is
something which prevails over other policy considerations which might be
set up as a basis for excluding such evidence. If illegally obtained evidence
is to be excluded more readily, legislation will be necessary to ensure
such a result.

One example of legislative modification of the common law rule at
the federal level is seen in the recent amendments to the Criminal Code
dealing with the protection of privacy. In 1974, the Criminal Code was
amended by adding Part IV. 1 dealing with the invasion of privacy. Under
this Part, it is an offence^^ to intercept a private communication "by means
of an electromagnetic, acoustic, mechanical or other device" without
authorization. 32 Provision is made for the exclusion of evidence obtained
in contravention of Part IV. 1 in the following terms:

A private communication that has been intercepted and
evidence obtained directly or indirectly as a result of information
acquired by interception of a private communication are both in-
admissible as evidence against the originator thereof or the person
intended by the originator thereof to receive it unless

(a) the interception was lawfully made; or

(b) the originator of the private communication or the person
intended by the originator thereof to receive it has express-
ly consented to the admission thereof.^^

The section goes on to empower the judge to admit the evidence if it is
relevant, notwithstanding that there is a defect in form or procedure
which is not substantive or, in the case of relevant evidence obtained
through the interception of a private communication, if the court finds
that its exclusion "may result in justice not being done''.^"^

(b) The Law in England

In England, as we have seen^^ there is no exclusionary rule for
illegally obtained evidence in civil and criminal trials, although some
degree of discretion is reserved to the trial judge in criminal cases.

3iEvery one who, by means of an electromagnetic, acoustic, mechanical or other
device, wilfully intercepts a private communication is guilty of an indictable
offence and liable to imprisonment for five years [Criminal Code, s. 178. 11(1)].

32For provisions concerning authorization, see Criminal Code, s. 178.11 (2) (b)
and s. 178.12 et seq. The power to grant authorization for the interception of
private communications is limited to cases of investigations concerning desig-
nated offences, all of which are offences against federal law (see s. 178.1).

33Cnmma/ Code, s. 178.16(1).

34/6/J., s. 178.16(2); the evidentiary rights of privilege are also preserved (s.
178.16(5)).

^^Kuruma v. The Queen, [1955] A.C. 197 (P.C); Callis v. Gunn, [1964] 1 Q.B.

495.

The courts, in adhering closely to the principle that illegally obtained
evidence, if relevant, is admissible, have undermined the law respecting
privileged communications in some cases.

Lloyd V. Mostyn-'^ was an action on a bond that was said to be
privileged from production on the ground that it came into the lawyer's
hands in confidence. The plaintiff tendered a copy of the bond. Its admis-
sion was opposed by the defendant on the ground that the privilege
attaching to the original document applies equally to a copy. This argu-
ment was rejected by the court, which stated that, "where an attorney
entrusted confidentially with a document communicates the contents of it,
or suffers another to take a copy surely the secondary evidence so ob-
tained may be produced". ^^ On the issue of illegally obtained evidence,
Parke, B., was of the opinion that the manner of acquiring the document
was irrelevant. The sole consideration was the logical relevance of the
evidence to the matter in issue.

That decision was approved in Calcrajt v. Guest,^^ in which the
admissibility of documents prepared for an earlier lawsuit was in issue in
subsequent litigation. It was uncertain on the facts whether the docu-
ments came into the hands of the appellant "accidentally", as he con-
tended, or "wrongfully", as the respondent argued. The court appeared
to be of the opinion that the way in which evidence was obtained was
of no consequence.

The rule in Lloyd v. Mostyn and Calcraft v. Guest, however, is
quite distinct from equitable relief that may be granted to restrain the
use of information wrongfully obtained. In Lord Ashburton v. Pape,^^
the defendant in bankruptcy proceedings hoped to introduce copies of
correspondence from the plaintiff to his solicitor, which he had obtained
by improper means. The plaintiff sought an injunction restraining the
defendant from disclosing the privileged documents or copies of them in
the bankruptcy proceedings. Cozens-Hardy, M.R., reaffirmed the principle
in Calcraft v. Guest in the following vwDrds :

The rule of evidence as explained in Calcraft v. Guest merely
amounts to this, that if a litigant wants to prove a particular docu-
ment which by reason of privilege or some circumstance he cannot
furnish by the production of the original, he may produce a copy
as secondary evidence although that copy has been obtained by im-
proper means, and even, it may be, by criminal means. The Court in
such an action is not really trying the circumstances under which
the document was produced. That is not an issue in the case and
the Court simply says 'Here is a copy of a document which cannot
be produced; it may have been stolen, it may have been picked up
in the street, it may have improperly got into the possession of the

36(1842), 10 M. & W. 478.
37//>/J., at pp. 481-482, per Parke, B.
38[1898] 1 Q.B. 759 (C.A.).
39[1913] 2 Ch. 469 (C.A.).

person who proposes to produce it, but that is not a matter which
the Court in the trial of the action can go into'.'^^

This passage demonstrates the courts' failure to distinguish between
the issues of privilege and illegally obtained evidence; as a result, the
rule that illegally obtained evidence is admissible, where relevant, is used
as an argument in favour of admitting illegally obtained secondary evi-
dence of privileged communications.

Notwithstanding the affirmation of the rule that illegally obtained
evidence is admissible in civil proceedings, the court granted an injunc-
tion restraining the defendant from introducing the copies of the privileged
evidence in the bankruptcy proceedings for the following reasons stated
by Swinfen Eady, LJ.:

There is here a confusion between the right to restrain a person
from divulging confidential information and the right to give second-
ary evidence of documents where the originals are privileged from
production, if the party has such secondary evidence in his pos-
session. The cases are entirely separate and distinct. If a person
were to steal a deed, nevertheless in any dispute to which it was
relevant the original deed might be given in evidence by him at the
trial. It would be no objection to the admissibility of the deed in
evidence to say you ought not to have possession of it. His unlawful
possession would not affect the admissibihty of the deed in evidence
if otherwise admissible. So again with regard to any copy he had.
If he was unable to obtain or compel production of the original
because it was privileged, if he had a copy in his possession it would
be admissible as secondary evidence. The fact, however, that a docu-
ment, whether original or copy, is admissible in evidence is no
answer to the demand of the lawful owner for the delivery up of the
document, and no answer to an application by the lawful owner of
confidential information to restrain it from being published or
copied."^^

The equitable principle recognized in Lord Ashhurton v. Pape pro-
vides a partial solution to the problem posed by the general rule govern-
ing the admissibility of secondary evidence of privileged communications,
which has been illegally obtained; however, a litigant may find it both
inconvenient and expensive to commence separate proceedings for an
injunction to protect privileged evidence. We shall make recommendations
concerning the admissibility of secondary evidence of privileged com-
munications in chapter 9.

The law of Scotland on the admissibihty of illegally obtained
evidence differs from the law of England and Canada in that the trial
judge is granted a discretionary power to exclude such evidence; this

40/6/W., at p. 473.
41/6/J., at pp. 476-77.

discretion exists in England in criminal trials only,'^^ ^^j j^ Canada, if
it exists, it is very limited."^^

The derivation of the discretionary rule is to be found in Lord
Aitchison's statement in HM. Advocate v. McGuigan: "an irregularity
in the obtaining of evidence does not necessarily make the evidence in-
admissible.'"^"^ This statement has been interpreted to mean that there
is no absolute rule rendering evidence inadmissible because of the illegal
way in which it was acquired, and neither is there an absolute rule requir-
ing its admission if relevant without regard to its illegal acquisition. The
trial judge has the discretion to admit or exclude such evidence in light
of the circumstances of the particular case.

In Rattray v. Rattray, ^^ a divorce case, it was held. Lord Young
dissenting, that a letter from the wife to her lover must be received al-
though it had been stolen from the post office by the husband and not-
withstanding that he had been convicted for the offence. This may appear
to be an acceptance of the rule operative in England and Canada, but
an inference may be drawn that Lord Trayner, in the majority decision,
would have been prepared to exclude evidence as inadmissible in some
cases.

In Maccoll v. Maccoll,"^^ an action for divorce, counsel for the
defender objected to the admissibility of a letter that the pursuer had
criminally intercepted in transit to the defender's lover. The issue was
whether in these circumstances the document could be admitted in evi-
dence at the instance of one who obtained it illegally. The letter was
admitted on the authority of Rattray.

Lawrie v. Muir^'^ is the leading case concerning the discretion vested
in the trial judge to admit or exclude otherwise admissible evidence which
has been obtained illegally. A shopkeeper was convicted of using milk
bottles which did not belong to her, contrary to the Milk Order. The
crucial evidence was given by inspectors of a milk bottle collecting
organization who found the bottles on an unauthorized search of her
premises. She appealed the conviction on the ground, among others,
that the evidence was inadmissible as having been obtained by an illegal
search. The Court held that an irregularity in the obtaining of evidence
does not necessarily render it inadmissible, but the conviction was quashed
because the inspectors ought to have known they were exceeding the
limits of their authority.

The law of Scotland appears to have adopted a middle road between
an exclusionary and non-exclusionary policy, through the discretion given
to the trier of fact as set out in the judgments in Lawrie v. Muir. In
Scotland, it is accepted that there is no absolute rule, and that the

^'2-Kuruma v. The Queen, [1955] A.C. 197 (P.C.); Callis v. Gunn, [1964] 1

Q.B. 495.
^^Regina v. Wray, [1971] S.C.R. 272.
44[1936] S.C.(J.) 16, 18 (emphasis added).
45(1897), 25 Rettie 315.
46[1946] S.L.T. 312 (Outer House).
47[1950] S.C.(J.) 19.

principle should not be strictly applied, but rather varied with the
circumstances.

(d) The Law in the United States

In American jurisdictions, constitutional considerations have played
an important part in shaping the rule excluding illegally obtained evidence.
The Fourth Amendment of the American Constitution, protecting the
citizen against unreasonable search and seizures, has been invoked as the
foundation for the rule excluding evidence acquired as a consequence
of an illegal search or seizure. In the leading case of Mapp v. Ohio,'^^ it
was held that the States are required to exclude from State criminal trials
evidence illegally seized by State officers. It appears that the Fourth
Amendment precludes only official actions. It was stated in Burdeau v.
McDowell that:

The papers having come into the possession of the Government
without a violation of petitioner's rights by governmental authority,
we see no reason why the fact that individuals, unconnected with the
Government, may have wrongfully taken them, should prevent them
from being held for use in prosecuting an offense where the docu-
ments are of an incriminatory character.^^

In civil cases, however, there is no general exclusionary rule although the
courts have excluded evidence in cases analogous to criminal cases or
where the nature of the illegality merited exclusion.^o

3. Policy Considerations

The major policy arguments advanced in support of and against the
adoption of an exclusionary rule governing the admissibility of illegally
obtained evidence may be summarized as follows :

(a) Deterrence

Deterrence of illegal activity is a principal reason put forward by
those who advocate an exclusionary rule. This has been the basis of the
application of the exclusionary rule in the United States in criminal
proceedings. It may be argued that the fruits of an illegality by a private
citizen should be on no higher basis than the fruits of an illegality by a

'^^Mapp V. Ohio (1961), 367 U.S. 643. This matter was recently considered by
the United States Supreme Court in U.S. v. Calandra (1974), 414 U.S. 338,
in which Mr. Justice Powell in delivering the judgment of the Court said at
p. 347 that the primary purpose of the exclusionary rule "is to deter future
unlawful police conduct and thereby effectuate the guarantee of the Fourth
Amendment against unreasonable search and seizures.''

49(1921 ), 256 U.S. 465, 476. It has been argued that this case was effectively over-
ruled by Elkins v. U.S. (1960), 364 U.S. 206.

50See Sackler v. Sackler (1964), 255 N.Y.S. (2d) 83; contra, Williams v. Williams
(1966), 8 Ohio Misc. 156, 221 N.E. (2d) 622; Kassner v. Fremont (1973), 47
Mich. App. 264, 209 N.W. (2d) 490; Del Presto v. Del Presto (1966), 92
N.J. Sup. 305, 223 A (2d) 217; Cataphote Corp. v. Hudson (C.A. Miss.)
(1970), 422 F. 2d 1290, on remand D.C. (1970), 316 F. Supp. 1122, affd
(1971), 444 F. 2d 1313.

public authority. This argument assumes that the adoption of the
exclusionary rule will remove the incentive to break the law to obtain
evidence, and that there is no other effective way to enforce the law.

The argument that an exclusionary rule is necessary to deter illegal
acts in the gathering of evidence for civil proceedings seems to us to be
weak. There are criminal sanctions and tort remedies available in place
of a rule of exclusion which will deter private individuals from obtaining
evidence illegally, punish those who do, and give civil redress to the
person against whom the illegal conduct was directed. ^^ The argument is
particularly weak when applied to those civil cases in which it is sought to
introduce evidence obtained illegally by the police. The police are servants
of the State. The civil litigant ought not to be limited in his search for
truth because a servant of the State has acted illegally.

We have found little evidence that the present state of the law is
inadequate to deter illegal conduct in the collection of evidence in this
country. Seldom has the issue of illegally obtained evidence arisen in
civil cases in Canada. We do not think it would be wise to adopt an
evidentiary rule of absolute exclusion based on deterrence without the
evidence to support its necessity, and at the expense of not having all
relevant evidence at the disposal of the court deciding an issue.

However, the law relating to invasion of privacy is not wholly satis-
factory.52 Sophisticated technology has made possible the violation of
spheres of private communication and action that have been traditionally
protected by physical barriers and common law tort categories of tres-
pass or nuisance. Electronic devices exist that enable one party to shadow
another, overhear and record his confidential conversations, and photo-
graph him. These technological innovations can be used in the collec-
tion of evidence for private lawsuits. Unregulated, they may be misused
by private investigators and evidence collection organizations. Privacy
legislation could be enacted which might contain a provision concerning
the exclusion of evidence obtained through an invasion of privacy. As
we saw earlier, this is the approach taken in the Criminal Code, in Mani-
toba,53 2^ji(j ijj several American jurisdictions. It expresses a strong policy
position of the legislature against evidence secured by such means. Privacy
legislation, in which 'privacy' is broadly defined, can operate, effectively, to
exclude much illegally obtained evidence. In practice, a provision of this
sort may be a wider rule of exclusion than a rule barring the admission of
illegally obtained evidence. There is a definite overlap; many of the cases
we have discussed in which illegally obtained evidence was in issue, in-
volved an invasion of privacy.

However, we have concluded that, if there is to be legislation in
Ontario concerning the exclusion of evidence obtained through invasion
of privacy, it should be enacted as part of comprehensive privacy legisla-
tion, and not by amendment to The Evidence Act.

5iSee Weiler, "The Control of Police Arrest Practices: Reflections of a Tort

Lawyer", in Linden (ed.), Studies in Canadian Tort Law.
52See Ontario Law Reform Commission, Report on Protection of Privacy in

Ontario (1968); Joint Task Force of Department of Communications and

Department of Justice, Privacy and Computers (1972).
53Pnvacy Act, S.M. 1970, c. 74.

(b) The "Clean Hands" Argument

In support of an exclusionary rule, it is argued that exclusion denies
to the wrongdoer any benefit of his wrongful act. Exclusion of evidence
favourable to his case is said to be a sanction against the person who
obtains evidence illegally; the court will exclude such evidence on a
"clean hands principle". However, this argument has no application where
the person who submits the evidence is not a party to the illegal act.

Another ground of public policy put forward is not concerned with
the relationship between the litigants, but involves the integrity of the
judicial process. It is argued that exclusion protects the integrity of the
courts by refusing to countenance unlawful actions. Where a court
admits evidence that has been obtained illegally without any regard for
that fact, the contention is that this implicates the courts in the illegality.
This is said to breed disrespect for the law and for the judicial process.
The response by Wigmore that the illegality is by no means condoned,
but is merely ignored,^'^ is an unsatisfactory legal nicety. Illegality that is
ignored by the institution whose very existence is premised on obedience
to the law, amounts to illegality condoned in the mind of the public the
institution serves. This is a strong argument for the adoption of some
evidentiary rule of exclusion. In the narrow context the test of relevance
of evidence produced is all that concerns the court; in its larger role,
the court must ensure that the judicial process is not abused. However, in
this area there are no absolutes. In some cases grave injustice would be
done if evidence illegally obtained were not admitted, and the respect for
the courts as courts of justice would be lowered much more than if the
evidence were rejected. There are many degrees of illegality, and there
may be cases of illegality for which no party to the action is responsible.

(d) Procedural Arguments

One of the traditional arguments favouring the reception of illegally
obtained evidence is that the method by which the evidence was obtained
is a collateral issue, and not the central issue of the inquiry. Consequently,
the court assumes the policy position of refusing to hear argument that
would distract it from a resolution of the facts in issue. "We think such
testimony (illegally obtained) is admissible. It is not the policy of the
courts, nor is it practicable, to pause in the trial of a cause, and open
up a collateral inquiry upon the question of whether a wrong has been
committed in obtaining the information which a witness possesses. "^^

4. Conclusion

We now consider whether an exclusionary rule ought to be adopted
in Ontario to replace the existing rule in civil cases, that the court will
admit all relevant evidence without considering the manner in which it
was obtained.

54Wigmore, footnote 2 supra, §2183.

^^Cluett V. Rosenthal (1894), 100 Mich. 193, 58 N.W. 1009, 1010.

There may be times when the court should have the power to exclude
evidence because the manner of its acquisition was contrary to the policy
of the State as expressed in enacted legislation. However, there are
occasions where the public interest requires that evidence be admitted in
a civil proceeding despite the illegal manner in which the evidence was
obtained. The illegality may be trivial or technical, or one for which the
party submitting the evidence may be in no way responsible. The courts
should not be required in all cases to exclude illegally obtained evidence
with the result that its exclusion would defeat the civil rights of the
litigants. The adoption of a rigid rule of exclusion would be no improve-
ment on the existing rule of "admissible- when-relevant" despite the
illegality in the acquisition. For the same reason, any provision in privacy
legislation should not adopt a rule excluding all evidence obtained by an
invasion of privacy.

Although it was speaking in the context of a criminal case, the
High Court of Justiciary of Scotland discussed the merits of the discre-
tionary element. The views expressed are equally applicable to civil trials:

It would greatly facilitate the task of Judges were it possible to
imprison the principle within the framework of a simple and unquali-
fied maxim, but I do not think it is feasible to do so. I attach weight
to the fact that the word used by Lord Chancellor Chelmsford and
by Horridge J., when referring to the disregarding of an irregularity
in the obtaining of evidence, was 'excuse'. Irregularities require to be
excused, and infringement of the formalities of the law in relation to
these matters are not lightly to be condoned. Whether any given
irregularity ought to be excused depends upon the nature of the
irregularity and the circumstances under which it was committed.^^

Mr. Justice Haim Cohn of the Supreme Court of Israel drew an
analogy between the exclusion of illegally obtained evidence and the
privilege attaching to state secrets. ^"^

The Supreme Court of Israel, following Scots, Canadian and
the 'better' American precedents, has recently laid down that there
is no absolute privilege from the disclosure of state secrets in Israel,
but that the trial judge has to satisfy himself, each time such privilege
is claimed, that the harm which is Hkely to be caused to the state
by the production of the evidence outweighs the pubhc interest in
a full disclosure to the court of all evidentiary material relevant to
the issue.

It thus appears that where the common law has provided an
exclusionary rule of evidence in the public interest and for reasons
of public policy, the modern tendency is to divest that rule of general
and unrestricted application, and to vest in the trial judge a dis-
cretion as to whether or not, and to what extent, to apply the rule
in the particular case before him. And there seems to be no valid

56Lawr/e V. Muir, [1950] S.C.(J.) 19, 27.

57Cohn, "The Exclusionary Rule Under Foreign Law: Israel" (1961), 52 J. Crim.
L.C. & P.S. 282.

reason why the development which has marked the exclusionary rule
in respect of state secrets should not be brought to bear, mutatis
mutandis, on an exclusionary rule in respect of illegally seized evi-
dence. In both cases, there is a conflict of public interests and that
conflict cannot justly and equitably be solved by an inflexible rule of
general application, but rather should be solved in each individual
case according to the best judgment of the trial judge. ^^

A Draft Code of Evidence prepared in Israel in 1952 contains the
following provision:

75. A court may refuse to admit in evidence any document
(including any form of record of anything said, written, printed or
photographed) which the party producing it has stolen or obtained
by any other illegal means, or in making or circulating which the
party producing it committed a criminal offense.

Specific guidelines may be laid down to aid the judge in the exercise
of his discretion. The Ouimet Committee suggested guidelines apphcable
in the context of the criminal law :

( 1 ) The Court may in its discretion reject evidence which has been
illegally obtained.

(2) The Court in exercising its discretion to either reject or admit
evidence which had been illegally obtained shall take into
consideration the following factors:

(i) Whether the violation of rights was wilful, or whether it
occurred as a result of inadvertence, mistake, ignorance,
or error in judgment.

(ii) Whether there existed a situation of urgency in order to
prevent the destruction or loss of evidence, or other
circumstances which in the particular case justified the
action taken.

(iii) Whether the admission of the evidence in question would
be unfair to the accused. ^^

We think the Israeli Draft Code of Evidence forms a basis for con-
sideration, but we thing it does not go far enough. The Israeli proposal
is restricted to documentary material which is obtained by the illegal
conduct of the party producing it, and no guidelines are laid down for the
exercise of the discretion conferred on the judge. Our conclusion is that
the court should have power in proper cases to reject any evidence, docu-
mentary or otherwise, on the ground that it was illegally obtained,
whether through the illegal acts of the party producing it or of a third
person, and that there should be guidelines for the exercise of the judicial
discretion.

5^Ibid., at p. 282-83.

^^Report of the Canadian Committee on Corrections (Ouimet Committee Report)
(1969), at p. 74.

5. Recommendations

1. A rule should be adopted with respect to illegally obtained evi-
dence which would give power to the court to refuse to admit in
evidence anything which has been obtained by illegal means. This
power should be a controlled power, to be exercised after con-
sidering all of the material facts, the nature of the illegality and
the concept of fairness to the parties involved.

2. Further legislation concerning the question of the exclusion of
evidence obtained as a consequence of an invasion of privacy
should be dealt with, if necessary, in the context of compre-
hensive privacy legislation, and not by way of amendment to
The Evidence Act.

We recommend the enactment in The Evidence Act of the following
section:

In a proceeding where it is shown that anything tendered in evi-
dence was obtained by illegal means, the court, after considering the
nature of the illegality and all the circumstances under which the
thing tendered was obtained, may refuse to admit it in evidence
if the court is of the opinion that because of the nature of the
illegal means by which it was obtained its admission would be un-
fair to the party against whom it is tendered. [Draft Act, Section 27.]

CHAPTER 5

EVIDENCE PROCURED BY METHODS REPUGNANT
TO THE FAIR ADMINISTRATION OF JUSTICE

1. Introduction

Evidence may be obtained by methods which, although not strictly
illegal, are nonetheless repugnant to the fair administration of justice. A
discussion of evidence obtained by such methods involves some consider-
ation of the subject of confessions, although evidence may be obtained
by reprehensible conduct that does not necessarily involve a confession.

A confession as the term is used in this chapter may be briefly
defined as a statement made by an accused to a person in authority
which may tend to prove his guilt. ^ Such a statement is inadmissible in
evidence on the trial of an indictable offence unless it has been proved
to have been made voluntarily. A voluntary statement in this context is
one that has not been obtained by threats, or fear of prejudice, or hope
of advantage, exercised or held out by a person in authority.^ Although
this definition has been framed differently on occasion by different courts,
in substance the test is the same.

In civil cases the opposition has a right to compel production and
discovery, and statements made to a police officer, or any other person
in authority, may be admitted in evidence in a civil trial, even if they
arise out of a matter that involves criminal responsibility. The circum-
stances under which the statement is made will affect the weight to be
given to the statement but not its admissibility.

2. Evidence Procured Through an Involuntary Confession: The
Wray Case

The case of Regina v. Wray^ illustrates dramatically the difficulties
in the present law concerning the admission of improperly obtained
evidence. The trial judge, five judges of the Court of Appeal for Ontario
and three judges of the Supreme Court of Canada expressly found that
the facts of the case were such as to tend to bring the administration of
justice into disrepute. The majority of the Supreme Court of Canada did
not expressly disagree with this finding, but on a pure question of law
reversed the judgment of the Court of Appeal and directed a new trial.

John Wray made a statement to police officers under circumstances
that rendered it inadmissible as a voluntary statement. The majority of the
Supreme Court held that evidence of the facts discovered as a result of
the inadmissible confession was admissible, together with statements made
by the accused which the discovery of the facts confirmed. In order to

^R. V. Bird, [1967] 1 C.C.C 33, 43.
Vhrahim v. The King, [1914] A.C. 599.
3[1971] S.C.R. 272.

discuss the difficulties arising out of this decision and to consider possible
reforms, it is necessary to set out the facts of this case at length.

(a) The Facts

An attendant at a gasoline station in the City of Peterborough was
fatally wounded by a shot from a Winchester 1892-44-40 rifle on the
23rd of March, 1968. The record does not disclose what investigations
took place between March 23 and June 2.

On June 2 Inspector Lidstone of the Ontario Provincial Police went
to Wray's home, where he hved with his father and mother. The Inspector
said he was looking for a Winchester 44-40 1 892 model rifle. He searched
the home but did not find one. The Inspector then interviewed Wray and
told him he was looking for a missing rifle and asked him if he might
search his car. This was done with Wray's permission. On June 4 the
Inspector together with another police officer interviewed Wray in Peter-
borough. He was asked if he knew what a polygraph was. The officers
explained that the machine was a lie detector and told Wray how it
worked. Wray was then asked if he would take a lie detector test and to
this he assented. Thereupon the Inspector arranged for him to be given
a test by John Jurems, who operated an establishment in Toronto equipped
for that purpose. The interrogation took place in Toronto and lasted from
2.35 p.m. until 7.10 p.m.

Wray was taken into an inner room equipped with devices used in
the test. The poHce officers arranged to sit in an adjacent room with a
tape-recorder connected to the inner room so that all conversation between
Jurems and Wray would be recorded. The record of the proceedings
covered 60 pages. The full effect of what took place in this case can best
be understood and appreciated by considerable recourse to the transcript.
Before the proceedings commenced Wray was asked by Jurems to sign
certain release forms.

(b) The Interrogation of Wray

JUREMS Well this is a release form, John, that you have to sign
to give me permission to examine you, see, because to
put some attachments on you I have to have your per-
mission. Right.

WRAY Yes. If the test is negative or positive it wouldn't be used

in evidence against me?

JUREMS No, not necessarily, used as evidence against you.

WRAY Or as evidence for them?

JUREMS No, it's just to see John, we want to know. Let us as-
sume that you're telling the truth?

WRAY Yes.

JUREMS The machine will show that you're telling the truth and
that will be the end of that. That will take the policemen
off your back. Is that what you want?

WRAY Yes.

JUREMS So, if you would print your name on top there and
sign it here. Now before I — before you do that, here's
— I'll explain the machine to you. This is a tube that
goes on your chest, right across here, all it does is register
your breathing. Yeah. Now have you been to a doctor
where he's taken your blood pressure.

WRAY Uh, yes.

JUREMS You know where he's put a cloth around your arm and
he's pumped it up and he's taken your blood pressure.
Now the other portion goes in the palm of your hand
and all it does is register skin sensitivity.

WRAY Yes.

JUREMS And that's it. So if you'll sign this release form for me
John, then we can — you read it. If there's anything
there that you don't understand let me know. Now you
print your name on top.

WRAY On here.

JUREMS Then sign it there. You say when you had your blood
pressure taken were you at a doctor's when that was
done?

WRAY Yes.

JUREMS What was he taking your blood pressure about?

WRAY For a medical.

JUREMS Oh, for a medical. What was that for?

WRAY When I went for British American Oil last spring.

JUREMS Oh, when you went with the British American Oil.

WRAY Yes. . . .

JUREMS Okay John, you come along over here. Well this is the
numagraph [sic] tube I was telling you about. All it does
is register your breathing. Now this is the cardiocuff and
all we're going to do with that is take your blood pres-
sure. Now give me your arm. No, no straighten it right
out, that's it. Have you ever had a test like this before?

WRAY No.

The release was signed and Wray was questioned concerning the
44-40 rifle and a direct question was put, "Did you shoot a man at the
Shell Station on March 23?" The answer was "No." In order to obtain a
mechanical reaction to his responses, Wray was told by Jurems he should
answer yes to a series of questions that were to be put to him, and then, to
another series of questions, that he should answer no. In the first series
he was asked, "Did you shoot a man at the Shell Service Station on

March 23?" According to instruction, he answered yes. In the second
series he was asked, "Do you know where the 44-40 rifle is?" The answer
was "No." "Did you throw it in the swamp?" Answer: "No."

Referring to events at the service station, Jurems told Wray: "You
must have got out of the car because your footprints are around there,
John." He rephed, "No, I didn't get out of the car. I drove out to
Lansdowne Street and No. 7 Highway." Jurems admitted in cross-exami-
nation at the trial that this was a lie and that Wray's footprints had not
been identified.

Inspector Lidstone intervened in the questioning and a long discus-
sion between the Inspector and Wray followed.

Jurems resumed the questioning. He asked Wray if he was thirsty
and produced a glass of ginger ale. Jurems said: "A long shot straight,
eh, say when. There you are. Now you know John that the machine is
pretty accurate. I'll be able to tell you what card you've chosen. Right —
it was the eight." Wray answered "Yes."

During this questioning Jurems said: "Eleven-thirty, now why did
vou get out of the car, John?" Wray: "I didn't get out." Jurems: "Well
because . . . you must have got out of the car because they got your
footprints. Did you get out for a leak?" Wray did not reply. The question-
ing continued as follows:

JUREMS Well, see, let's put it this way. I'm going to give you
powers of suggestion, see.

WRAY I know you suggest that I may have gone to the bath-

room.

JUREMS Now here, on a thing Mke this, see, it only happens once
in a lifetime, see. So if you were in that vicinity the
first thing that's going to strike you is that they may
think that you had committed it, right?

WRAY Right.

JUREMS All right. Now why did you get out of the car? Did your
car stall?

WRAY No, it didn't stall.

JUREMS Eh?

WRAY No, it didn't stall. It was running well.

JUREMS Well, what did you stop for, a leak?

WRAY I may have stopped for a leak, but . . .

JUREMS But you got out of the car, did you?

WRAY I can't remember. I don't have total recall.

JUREMS Well, total recall is not difficult because, see, John now
here now in my position I've been at this a long time
now. I know when you are hesitant telling. When you're

WRAY
JUREMS

WRAY

JUREMS

WRAY

JUREMS

WRAY

JUREMS
WRAY
JUREMS
WRAY

JUREMS

WRAY

not sure. This is by the way you are when I ask you a
question. Now certain questions you can come up with a
quick answer. Certain questions you are hesitant, but you
are hesitant on particular questions. You recall when your
parents were there. When they seen you. You recall what
time you went home. You recall going past the station.
Now when you go past the station and you read about
this in the newspapers, eh, first thing a person thinks,
well, boy, oh boy, they may think that I'm the Joe that
did it. What the hell did I do. So you have a recall. Now
you did that, didn't you.

Yes.

Now you got to be truthful. Sure you did that. Fine. Now,
why did you get out of the car, John? Now there's
nothing . . .

Yeah, I know.

Talk a little louder, John.

I might have got out to check a tire, I can't
remember exactly.

I can't

But you got out of the car. Is that why your footprints
are around there?

I may have got out of the car. I may have got out of the
car at Cooper's when I turned around there. I was there
for about five minutes.

Cooper's.

Maybe, even less.

What's Cooper's?

It's a trailer camp. I have a friend there.

Oh, oh yeah. But your footprints are in the vicinity of the
filling station.

I can't understand it because I . . .

JUREMS Pardon.

WRAY I don't understand that. Why did it. How do they know

they are my footprints. I know they are not stupid but,
well.

During this questioning Jurems brought up the name of Ralph Ball,
indicating that Ball had seen Wray at the service station. He asked Wray
"Do you know a Ralph Ball?" Ralph Ball was a totally fictitious character
invented by Jurems. "Did you arrive in Toronto on March 23rd with
only $12.00?" Answer: "Yes." "Are you trying to shield your mother?"
Answer: "No." "Did you ever shoot anyone in all your Ufe?" Answer:
"No." "Did you leave Peterborough because a storm was brewing?"
Answer: "Yes."

After a long interrogation, Lidstone and the other pohce officer
Woodbeck resumed their questioning:

LIDSTONE John, in trying to get all this thing straightened out we
keep coming up with these little things which don't make
sense. Now I know you've been more than co-operative
with us, see, and we sure appreciate your co-operation.
Are you sure of the time that you left Peterborough?
Now looking back on it I have to, I think it's only right,
I should point these out to you. That you said, if I
remember correctly, you correct me if I'm wrong and I
have it recorded. It's written down of you. You said that
you left Peterborough about twelve-thirty or a quarter to
one, and went to Toronto. Is that right — have I got it
right?

WRAY Yes, that's right about the time I believe I left.

LIDSTONE And you said that your mother when you asked, when
you were leaving Peterborough at that time, your mother
was saying something about the murder and was con-
cerned about the gun. Is that right?

WRAY

Yes, sir.

LIDSTONE Now the problem we have is this, John, that we've pre-
viously checked this, we've known this for some time
that there was nothing on the radio stations till ten after
one, that there had been a murder out there and there
is no way she could have known that anybody had been
murdered, or that there had been somebody shot at
twelve-thirty or a quarter to one. Now, how do you . . .

WRAY Yes, weU perhaps I'm using the word murder instead of

shot.

LIDSTONE Nobody knew there was anything going on out there until
a quarter, until ten after one, when, when both the radio
stations CHEX carried the first, the first news flash at
ten after one, nine minutes after one was the first thing
that anybody knew about it, and yet you say your mother
asked you at a quarter to one about the gun missing and
was most concerned about this thing. Now I'm not saying
that your mother's lying.

WRAY

No.

LIDSTONE Or that you're lying. I'm wondering what is the explana-
tion.

WRAY Well, the explanation is this, times — times.

LIDSTONE No.

WRAY And the explanation is that I'm not too sure about the

times. I know that I got in about noon hour. You know

that noon hour is one hour long and perhaps it might
stretch a Uttle longer.

LiDSTONE Well, well could I, could I put it to you this way?

WRAY Yeah.

LIDSTONE Could I put it to you this way. That you went out. When
you went out the highway and you drove down past
Knoll's you told us that you went back to the garage.
Could it be that you got back to the garage at twelve-
thirty and you were in fact there at — after twelve-thirty
when your uncle came back from lunch, and you were
still there after twelve-thirty when he came back from
lunch and then after that you went home and so in fact
instead of being twelve-thirty when you got to the house
it was one-thirty when you got to the house and by this
time your mother knew. Could this be it?

WRAY That may be closer.

LIDSTONE Now what do you think? I don't want to lead you, I mean.

WRAY No. I don't know anything about my uncle's movements.

LIDSTONE You Were there when he came back from lunch that day
weren't you? You weren't there when he left for lunch.
You had been there and you left. Is that right? Well that's
what you told me earlier. You said that you had been
there but you drove away in the car. You had been there
and you'd left, when he left for lunch, you weren't there.
Now when he came back after lunch you were there. So
this would put it in the neighbourhood of twelve-thirty —
a quarter to one, when he got back from lunch, to the
house to beat a hasty retreat. If it was starting to snow
this might weU be the situation.

WRAY That's probably right, sir.

LIDSTONE Well I don't want to be putting words in your mouth.

WRAY I know you don't. I'm, uh, no — but . . .

LIDSTONE Yeah, I know, but it made a good alibi too, didn't it?
I mean let's be — you know rather practical about this
thing. Getting back to the garage as quickly as possible
and fooling around with the car a bit longer made an
ideal ahbi as well after what happened at Knoll's, didn't
it, eh?

WRAY . . .

LIDSTONE Yes.

WRAY ... I could remember.

LIDSTONE Shouldn't we look at it objectively.

WRAY . . . All through my tests that's what I've said. I haven't

on purpose given you times because I just couldn't
remember . . . and I probably learned one thing . . .

LiDSTONE If you hadn't been washing the car when we came along
and asked you to talk to us lor a few minutes you might
have had your watch on.

WRAY Yeah, I can't remember where I left it now. But,

LIDSTONE Did you go from the garage. Now let me ask you this
truthfully did you go from the garage, your uncle's
garage to the house?

WRAY Yeah.

LIDSTONE Well, where did you go then?

WRAY Will you clarify that?

LIDSTONE When you left the garage for the last time after being
out on the road and back again, did you go from the
garage directly to your house or did you stop some-
where?

WRAY I went directly to my house.

LIDSTONE You said you were packing up to go home?

WRAY Right.

LIDSTONE It was just Starting to snow.

WRAY Yes, just starting.

LIDSTONE When you fixed the tail pipe. And you fixed the tail pipe
when you came back?

WRAY Yes.

LIDSTONE After you'd been out on that road around the country?

WRAY That's right, sir.

LIDSTONE You fixed the brakes before?

WRAY Yes.

LIDSTONE Did a piece break off the tail pipe?

WRAY No.

LIDSTONE What was wrong with the tail pipe?

WRAY The hanger was broken, the rubber of the hanger was

broken.

LIDSTONE You fixed that after you went back to, back to the garage,
after you had this trip down to Knoll's? ...

WRAY . . .

LiDSTONE And then, and then you went home after you'd spent
that extra little time. When did you decide you were
going to put that hanger on?

WRAY

After I came back.

LIDSTONE After you came back you decided it was — that's where
you spend a little more time, at that hanger, after twelve-
thirty, eh?

WRAY . . .

LIDSTONE Now are we getting any closer to the facts in this thing. Is
this why you didn't want to mention this before, because
once again it looks as though you were building an alibi.
Now look, I don't want to put words in your mouth. Is
this the reason, we reason things out. We sit here, we sit
here and we ponder and we say why was, why is he
leaving this out. What else is it leading to. And you've
done this so many times today that I don't know what to
think and I'm sure that at times you must be wondering
yourself what you're thinking. You've done this time and
again. You leave these little gems out and when we
finally drop them in to you, you say, oh well, yes, my
goodness. John, you've done this time and time again. It's
like catching a little kid lying. Every time you catch them
lying they say they do, well, this is what you're doing
with us.

WRAY

Yeah, well.

LIDSTONE Well, why are you doing this all the time. You are
leaving us in the most peculiar position.

WRAY I'm hurting myself.

LIDSTONE Yeah, but you're putting us in the most pecuUar position
because then I have to turn around and say did you do
this and you say, well, yes, I do. I mean I'm not promis-
ing you. I'm not threatening you. All I wanted you to do
was tell me the truth, and as we keep going over it, and
after you say, well, this is the truth. Then when we get
to the end of it and you listen to the truth then I come
along and say, well, gee, what about this and you say,
Oh well, yes, I forgot about this. Well, it isn't important
that I . . .

WRAY I forgot about these things.

LIDSTONE ... I think it is.

wooDBECK Did you not strike your tail pipe that day, the roads
weren't the best then?

WRAY No, I don't think so.

WOODBECK Well why did you fix it up then?

WRAY

Yes.

LiDSTONE Just onc thing after another. Every time you turn around
there's another one to put you down there.

WRAY That's right.

LIDSTONE Now here's a scientific medical term to a person when
they cry in their sleep about the whole thing. They have
completely blotted out. They've no guilt feeling at all.
Just like you have no guilt feeling when you touch some-
body for some money, you say in your mind if he lends
me the money Til pay him back. I mean you've done this
with Ben Mix. Ben has no reason to lay out $154 bucks
for you. You feel everybody owes you something now.
John this is right; your mother does, your dad does. Jim.
Jimmy works, he knows where every cent goes, pays for
things, he's got things getting married. You could no
more support a wife or hope to support a wife, could you.
You'll have to get a wealthy one who can afford you.
Now you've got yourself in this one this certainly has to
be the climax of your career to date, hasn't it?

WRAY . . .

LIDSTONE I wouldn't doubt it. But if you feel bad imagine how
Comrie's, [the victim] how Don's father and sister feel.
And his friends. What did he do to deserve that?

WRAY . . .

LIDSTONE

JUREMS

He just happened to be there. He just happened to be
there, didn't he? He was shot just when you happened
to be down there with your car, the car that was seen
leaving. The loaded gun, the shells missing from the
house. The gun, the case, of course the case was neces-
sary. You had to pass some of the neighbours. In
case any of the neighbours looked out and saw you with a
rifle get in the car that morning. They would say, oh, ho,
there's something wrong here. But you walk out with
a case and nobody pays any attention, so then the case.
It just happens that you're down there, down in that
same area at the same time then back to the garage. You
would have an alibi . . . You're sitting there sweating . . .
chills ... I recognize the signs of stress and you're under
stress.

Could I talk to John for a few minutes here. There's
something I thought of . . .

John, now listen to me good. Now I was through the
war, see, and I've been around. Now remember this and
remember it good. Have you ever seen rubby dubbies,
winos?

WRAY Yes.

JURE MS Have you ever seen the alcoholics?

WRAY Yes.

JURE MS Do you know why they go that way. Have you got a
clue?

WRAY No. I have an idea.

JUREMS I'll explain you something. You have the cerebreal [sic],
cerebreal [sic] and then you have the the tholmus [sic] and
the hipatholmus [sic]. Now, a person is going to blot out
something he doesn't like, see, but you just can't do it,
John. You just no can do, because the subconscious mind
takes over and you never live it down. Every time you want
to do something you think of it. Now here's this poor joker,
he's in the grave, oh, yes, now you can never go to him
and explain to him, say I'm sorry I did it. He won't
understand you. Do you believe in E.S.P., Extra Sensory
Perception?

WRAY I don't understand it too much, but I know it exists.

JUREMS All right. All right, do you know what happens when
they're dead. The spirit takes off.

WRAY Yes.

JUREMS The body's spirit takes off. Now his body's lying there
in the grave. Now for Christ sake, John, if you did it,
see, if you did it and if you think for one goddamn
minute you can live with this all your life without telling
you'll never make it. You'll never ever make it. It will
haunt you and in about five years time you will be in the
goddamn with the rubby dubs trying to hide it, you'll be
trying to get in behind some curtains, you'll be trying to
pull a shroud around you but you'll never make it, see.
You get half a dozen of those rubby dubs and you bring
them in here and I'll put them on the machine and they
tell me why they're like that. You know why? They're
trying to forget something. They're trying to forget some-
thing they did that was very goddamn serious, very bad,
see, but they never make it. They go rubby dub, they go
here, they steal here, they do every goddamn thing wrong,
all their life, eh. Now, if you committed this goddamn
thing, see, tell them, tell the cops. What the hell can you
get? They're not going to hang you. That's out. There is
no capital murder. They're not going to hang you. What
do you do. You get in there for seven or eight years and
you're out. But at least you've got it and after that you
can live with your conscience. But how the hell are you
going to go to the grave and explain? You can't, and if
you think for one minute, John, remember this that that

boy has relatives, that boy has mother and brothers and
sisters and do you know what a vindictive person is? Eh?
They'll go for you and maybe a year, maybe five years
from now you'll be going down the road and some son
of a bitch will run you off the road. You'll never know
why, but you'll guess why. See. Now, you were there,
see. You were in the goddamn service station. Now when
I asked you whether it was an accident you said, yes, and
it was an accident, see. There's extenuating circumstances
because a person goes in there you didn't go in — you
don't go in the — there to shoot the fellow. When a fellow
goes in there, sure, what happened to this — look at that
goofy one that came here from Montreal, he shot three
people in a bank robbery, what did he get, he's out now.
He didn't even serve ten years. Three people in a bank
robbery. See. So you went in there. You didn't go in
there to shoot the guy, but the gun went off. It was at
close range. What did he do, grab the gun from you.
Did he grab the rifle from you? Eh?

WRAY No.

JUREMs What happened? Well, get it off your chest man, you're
young, but in a few years you'll be out. But if you think
that you're going to live with this, laddie, you'll never
ever never make it. It's going to bug you for the rest of
your goddamn life. And you try and sleep, that the
sticker, you try and lay down and go to sleep. Now what
the hell happened there. Did you get in a tussle with him
— what happened. Well, spit it out. Your mother knows,
your brother knows, your sisters know, your uncle knows.
Do you think you can kid your mother for one minute —
never! Your mother knows. That's why she tried to
protect you. You know. Now what the hell happened, eh?
Will you tell us what happened?

WRAY Yes.

JUREMS Okay, tell us what happened.

WRAY I went in . . .

JUREMS You went in, talk a little louder, John.

WRAY I went in there.

JUREMS Yeah.

WRAY To Knoll's.

JUREMS Yeah, you went in to Knoll's, yeah.

WRAY And the boy —

JUREMS Which boy?

WRAY There's only one boy.

JUREMS Just the boy that was shot. Yeah, what happened?

WRAY He came out.

JUREMS Talk a Httle louder, John.

WRAY He came out.

JUREMS Yeah.

WRAY And asked me what I wanted.

JUREMS He asked you what you wanted.

WRAY And I told him to open the till.

JUREMS And told him to open the till. Was it closed?

WRAY Yes.

JUREMS And what did he say?

WRAY He said, all right.

JUREMS He opened the till, yeah.

WRAY And then he — he gave me the money.

JUREMS He gave you the money. Well, what the hell did you shoot
him for?

WRAY It was an accident.

JUREMS What?

WRAY It was an accident.

JUREMS It was an accident. Sure, you showed it on your check
it was an accident. All the reactions you gave me when I
asked you was the shooting an accident, you said, yes,
and it's an accident. Well, what the hell is wrong with
that. All they are going to charge you with. You went in
there, your intentions weren't to do any harm to the
man. Where is the gun now?

WRAY I don't know exactly.

JUREMS Well, where did you drop it, on the way home?

WRAY No, eh?

JUREMS On the way to Toronto?

WRAY Yes.

JUREMS Around Oshawa?

WRAY No.

JUREMS Where?

WRAY Near Omemee someplace.

JUREMS Where?

WRAY

JUREMS

WRAY

JUREMS

WRAY

JUREMS

WRAY
JUREMS

WRAY
JUREMS
WRAY
JUREMS

WRAY
LIDSTONE

WRAY

LIDSTONE

WRAY

LIDSTONE

WRAY

LIDSTONE

WRAY

LIDSTONE

WRAY

Omemee.

Omemee, in the ditch?

No.

Where?

In the swamp.

In the swamp. Could you, could you show the police
where it is?

Yes.

Now you're talking like a man. Jesus Christ, John,
because you got to Uve with it all your life, man, oh,
man, you'll never make it if you a person sleeps, hasn't
it been bothering you?

Yes.

Have you been sleeping well?

Yes, fairly well.

But it bothers you. A person never lives it down. Now
when, now I'll call in the — the Inspector there and you
tell him what happened, okay. Will you tell him?

Yes.

Now, John, you will be charged with the non-capital
murder of Donald Comrie on the 23rd day of March,
1968, at Otonabee Township. You are not required to say
anything in answer to the charge, but what you do say
will be given in evidence. Do you understand that?

Yes.

Did you say, yes?

Yes.

Will you try and show us the spot?

Is there anything else you want to add?

No.

Do you want to read this over, John? Anything you
want to change?

Following the interrogation by Jurems and the Inspector a statement
was prepared by the officers and signed by Wray. It read:

John Wray

You are charged with the non-capital murder of Donald
Comrie on the 23rd of March, 1968 at Otonabee Twp. You are
not required to say anything or answer to the charge but what you
do say will be given in evidence.

Q. Do you understand that?

A. Yes.

Well I went into the station and asked him for the money and
he gave it to me. I told him to back away and he did and I backed
away and the gun went off. It was an accident. I didn't mean to
shoot him ... I didn't even know I had the gun pointed in his
direction.

Then I went out and ran back to my car and went to the
garage. That was it. I didn't mean to hurt him.

What happened to the gun?

I threw it in the swamp.

Where?

Near Omemee.

Will you try and show us the spot?

Yes.

Is there anything else you want to add to this John?

Not now, thank you.

"John Wray"

"J.W. Lidstone"
"D.O. Woodbeck"

7:18 p.m.

After this statement was signed the officers drove with the accused
to the swamp to search for the rifle. They did not find it the first night.
The next day they found it a short distance from where the accused said
he had thrown it.

(d) Excerpts from the Trial Record

The following are some passages from the record of the evidence
given by Jurems at the trial:

HIS LORDSHIP : Now wheu you said this fellow Ralph Ball saw you
there, you were lying?

A. Yes.

Q. Throughout the hearing, in many places you were
lying in questions you put to the subject?

A. This Ralph Ball question is an interrogation ques-
tion.

Q. Did Ralph Ball ever tell you he had seen the subject
there?

A. No.

Q. It was lying by you?

A. In a sense.

Q. You are either lying or telling the truth.

A. There is no Ralph Ball.

Q. When you put that question to the subject, were
you lying or telling the truth?

A. I was lying.

Q. When you go on and say, "He lives in Lindsay",
were you lying or telling the truth?

A. I was lying.

Q. Were you told that Ralph Ball had identified the
accused as being near the service station?

A. No.

Q. When you told John Wray that he had been seen
in the vicinity of the gas station, you lied to him.

A. Yes.

Q. Answer me this, do you use tricks?

A. Sure you use tricks.

Q. Is that your philosophy?

A. In private investigations you do.

Q. So I am clear about this, you were retained and paid
by the Ontario Provincial Police to conduct this
examination?

A. Yes.

Q. And you found it necessary, after you got a reaction,
to ask questions which would condition the accused
to admit his guilt?

A. If he was guilty.

Q. I just want to ask you, at one stage Mr. Wray said
to you, "If the test is negative or positive, it will
not be used against me". This is page 6 of the first
section?

A. Not necessarily.

Q. Is that what you want to say?

A. Yes.

Q. Did Mr. Wray ask you this question and did you
give him this answer?

A. If they are in the transcript.

Q. I am teUing you it is in the transcript.

A. All right, yes.

O. He was clearly asking you if this was going to be
used as evidence for the police and your answer
was "No"; is this correct?

A. Yes.

Q. Also at the top of page 17, on the first tape, did
you tell him you could find out where the rifle was?

A. Yes.

Q. Throughout the test, one of the objects you had in
mind was to find out where that rifle was?

A. Yes.

MR. carter: When you were talking about footprints and Ralph
Ball, they were not true?

A. They were control questions.

O. Then you went on to deal with Ralph Ball and that
episode, which you say were "control questions".
At page one of the second tape you say this fellow
Ball — Ralph Ball, had seen you there. Is that a
control question?

A. No.

Q. It is not even a question?

A. No.

Q. After that, you questioned him about if he was from
Peterborough. Is that a control question?

A. No.

O. It is an out-and-out lie?

A. Yes.

Q. You were lying to support another lie?

A. Yes.

0. That is the third lie to support the first lie; is that
correct? You were just weaving a story of lies

around a person which would condition him to
answer in the affirmative?

A. Yes.

Q. Just to tie this up, again at page three you say, "He
seen you right in the vicinity of the filling station".
That wasn't a control question, that was a lie?

A. Yes.

Q. That is the fourth lie?

A. Yes.

Q. Then you said, "He seen you get out of the car". Is
that a control question?

A. No.

Q. But it is a he to support the first lie?

A. Yes.

Q. That again isn't a control question, but a lie in sup-
port of the first lie?

HIS LORDSHIP :

MR. carter:

A.
Q.

Yes.

In support of the first five lies.

Finally you got around to asking him "Why would
Ralph Ball say you had got out of the car?"

Yes.

How in the world would you expect an answer to that
question when the whole thing was a lie? You were
asking John Wray to speculate as to why a fictionary
character, who didn't exist, said something that
wasn't true. Isn't that what you were doing?

Yes.

Isn't that the result of all your questions, you put
him in that position where there could be no other
answer?

A. Yes.

(e) The Result

The trial judge rejected the confession and refused to admit the
evidence of the officers that they found the rifle in the general locality
where Wray said he had thrown it. On appeal taken by the Crown to the
Court of Appeal, no submission was made that the several statements
made by Wray were admissible, except with respect to those that pertained
to the finding of the rifle. It was argued that since the statements con-
cerning the finding of the rifle were confirmed by the fact that the rifle
was in fact found where Wray indicated, this evidence was admissible.

This argument was based on the decision in R. v. St. Lawrence,^ which
held that those parts of an involuntary confession which are subsequently
confirmed by fact are admissible in evidence. The Court of Appeal dis-
missed the appeal relying on the following passage in Kuruma v. The
Queen:^

. . . No doubt in a criminal case the judge always has a discretion
to disallow evidence if the strict rules of admissibility would operate
unfairly against an accused. This was emphasized in the case before
this Board of Noor Mohamed v. The King, and in the recent case
in the House of Lords, Harris v. Director of Public Prosecutions. If
for instance, some admission of some piece of evidence, e.g., a docu-
ment, had been obtained from a defendant by a trick, no doubt the
judge might properly rule it out. It was this discretion that lay at
the root of the ruling of Lord Guthrie in H.M. Advocate v. Turnbull.

Aylesworth, J. A., in giving the judgment of the Court of Appeal in R.
V. Wray said:

In our view, a trial Judge has a discretion to reject evidence,
even of substantial weight, if he considers that its admission would
be unjust or unfair to the accused or calculated to bring the adminis-
tration of justice into disrepute, the exercise of such discretion, of
course, to depend upon the particular facts before him. Cases where
to admit certain evidence would be calculated to bring the admini-
stration of justice into disrepute will be rare, but we think the dis-
cretion of a trial Judge extends to such cases.

Too much need not be said about the facts in this case. Admit-
tedly, the confession or statement by the accused was procured by
trickery, duress and improper inducements and it was clearly in-
admissible. Moreover, the whole of the circumstances present in the
case and before the learned trial Judge were such, in our opinion,
as to have warranted the learned trial Judge's rejection of the prof-
fered evidence respecting the accused's involvement in the discovery
of the murder weapon upon both the grounds which have been stated.
Strictly as a matter of law the rule as to admissibility of evidence
illegally obtained may be expressed as put by McRuer, C.J.H.C., in
Rex V. St. Lawrence, [1949] O.R. 215 where at p. 228 he said:

Where the discovery of the fact confirms the confession — that
is, where the confession must be taken to be true by reason of
the discovery of the fact — then that part of the confession that
is confirmed by the discovery of the fact is admissible, but
further than that no part of the confession is admissible.

It is plain from what already has been said that the application
of that rule in a particular case will depend upon the particular
circumstances and special facts of the case before the tribunal. Those
particular facts and circumstances in the case at bar are such as to
lead to the conclusion by this Court that the strict legal rule should

4[1949]O.R. 215 (H.CJ.).
5[1955] A.C. 197, 204 (P.C).

not be applied and that the discretion of the learned trial Judge in
rejecting the evidence, although such evidence was, strictly speaking,
admissible evidence, ought not to be disturbed.^

The Attorney General applied for leave to appeal to the Supreme
Court of Canada. Leave v^as granted on the following specific point of
law:

Did the Court of Appeal for Ontario err in law in holding that the
learned trial Judge had a discretion to reject the evidence relating
to the involvement of the accused in the locating of the murder
weapon?

The appeal was heard by the full Court of nine judges. Three judges dis-
sented; the appeal was allowed and a new trial directed. Cartwright, C.J.,
in his dissenting judgment, identified the crucial issue:

... I will endeavour to state in summary form my grounds for
thinking that the judgment of the Court of Appeal should be upheld.
The confession of the accused was improperly obtained and was
rightly excluded as being involuntary. In spite of this, evidence of
the fact that the accused told the police where the murder weapon
could be found was legally admissible under the rule in Rex v.
St. Lawrence', but, because the manner in which he was induced to
indicate the location of the weapon was as objectionable as that in
which he was induced to make the confession, it was open to the
learned trial judge to hold that the admission of evidence of that
fact would be so unjust and unfair to the accused and so calculated
to bring the administration of justice into disrepute as to warrant
his rejecting the evidence in the exercise of his discretion; and,
finally, there being evidence on which it was open to the learned
trial judge to exercise his discretion in the way he did, the propriety
of that exercise is not open to review on an appeal by the Crown. "^

Hall, J., agreed with the Chief Justice that the appeal should be
dismissed. He held that the trial judge had a discretion to reject admissible
evidence if its admission would operate unfairly against the accused. The
learned judge held that it would operate unfairly if it was obtained in an
oppressive manner by force or against the wishes of the accused. He
held that in this case there was a discretion in the trial judge to be judici-
ally exercised and that if it was judicially exercised it was not subject to
appeal.

In addition to the reasons advanced by the other dissenting judges for
disallowing the appeal, Spence, J., emphasizing that he agreed with the
reasons given in the Court of Appeal, quoted the judgment of Aylesworth,
J. A., and said:

I am most strongly of the opinion that it is the duty of every judge
to guard against bringing the administration of justice into dis-
repute. That is a duty which lies upon him constantly and that is a
duty which he must always keep firmly in mind.^

6[1970] 2 O.R. 3, 4-5.
7[1971] S.C.R. 272, 286-287.
^Ibid., at p. 304.

Martland, J., giving the leading judgment for the majority of the Court^
quoted from Lord Goddard in the Kuruma case as follows:

In their Lordships' opinion the test to be applied in considering
whether evidence is admissible is whether it is relevant to the matters
in issue. If it is, it is admissible and the court is not concerned with
how the evidence was obtained.

The relevant authorities were reviewed and it was concluded that any
discretion a trial judge may have to exclude admissible evidence, is con-
fined to cases where the evidence is of trifling weight, or has little proba-
tive value, and its admission would have a great prejudicial effect on the
jury. A distinction was drawn between "unfairness" in the method of
obtaining evidence and "unfairness" in the actual trial of the accused by
reason of the effect on the jury of evidence of little probative value but
great prejudicial effect. The test for the existence of the discretion was
based on:

... the duty of a trial judge to ensure that the minds of the jury
be not prejudiced by evidence of Httle probative value, but of great
prejudicial effect, by the test as to whether evidence, the probative
value of which is unimpeachable, was obtained by methods which the
trial judge, in his own discretion, considers to be unfair. Exclusion
of evidence on this ground has nothing whatever to do with the
duty of a trial judge to secure a fair trial for the accused. ^^

The learned judge held that the evidence concerning the rifle was admis-
sible on the basis of the law as stated in the St. Lawrence case.

Judson, J., concluded that there was no judicial discretion to exclude
relevant evidence on the ground of unfairness to the accused. He said:

If this law is to be changed, a simple amendment to the
Canada Evidence Act would be sufficient — an amendment to the
effect that no fact discovered as a result of an inadmissible confes-
sion shaU be provable in evidence against an accused person. Such
a change should not be effected by turning to a theory of judicial
discretion to admit or reject relevant evidence based upon the un-
substantial dicta to which I have referred in these reasons. Judicial
discretion in this field is a concept which involves great uncertainty
of application. The task of a judge in the conduct of a trial is to
apply the law and to admit all evidence that is logically probative
unless it is ruled out by some exclusionary rule. If this course is
followed, an accused person has had a fair trial. The exclusionary
rule applied in this case is one that should not be accepted. ^^

The Court directed a new trial, confining the evidence in question to
the circumstances of the finding of the rifle under the direction of the
accused.

Vbid., at p. 287.
mbid., at p. 295.
^Ubid., at pp. 299-30.

3. Conclusion

The record in this case discloses a method of obtaining evidence
in the law enforcement process, that not only calls for the severest con-
demnation but also immediate legislative action. In view of the reprehen-
sible conduct of the police officers and Jurems, we do not think that the
court should have been without power to refuse to admit the evidence
concerning the finding of the rifle and the statements made by the accused,
which were confirmed by the fact that the rifle was found.

We have come to the conclusion that neither the Canada Evidence
Act nor The Evidence Act ought to be amended in the manner suggested
by Judson, J. The mere fact that a statement has been made to a person
in authority in circumstances in which it could not be proved to be
voluntary, should not be the criterion for the exclusion of relevant evi-
dence concerning facts ascertained as a result of such a statement. The
approach suggested by Judson, J., would render many investigations of
crime an exercise in futility and exclude cogent evidence simply because
a police officer or some person in authority had not taken appropriate
precautions in questioning an accused person.

In our view, the principles relied on in the dissenting judgments
of the Supreme Court of Canada and in the judgment of the Court of
Appeal should be used as a guide for remedial legislation. However, such
legislation should not be restricted to evidence obtained through involun-
tary confessions. We think trial judges should have control over the
admission of evidence so as to preserve the integrity of the judicial
process and protect the administration of justice from practices likely
to bring it into disrepute. The judicial process is not confined to the
courts; it also encompasses officers of the law and others whose duties are
necessary to ensure that the courts function effectively.

4. Recommendations

To safeguard against practices similar to those disclosed in the
Wray case we recommend that:

1. The Evidence Act (Ontario) be amended to include the following
provision:

In a proceeding the court may refuse to admit evidence
that otherwise would be admissible if the court finds that
it was obtained by methods that are repugnant to the fair
administration of justice and likely to bring the administra-
tion of justice into disrepute. [Draft Act, Section 26.]

2. The Attorney General of Ontario should make representations to
the Government of Canada requesting that a similar amendment
be made to the Canada Evidence Act.

3. Where a police officer in conducting an investigation is guilty of
conduct likely to bring the administration of justice into dis-
repute, his conduct should be made a disciplinary offence under
the regulations passed under The Police Act}'^

i2See R.R.O. 1970, R. 680 (as amended),

CHAPTER 6

THE RULE IN HOLLINGTON v. HEWTHORN

1. The Rule

In Ontario, it is now generally accepted law that evidence of a
criminal conviction is inadmissible in subsequent civil proceedings to prove
the facts upon which the conviction was based. This rule of evidence
was propounded in 1943 in an English case, Hollington v. F. Hewthorn
& Co. Ltd.,^ which was approved in principle by the Supreme Court of
Canada in English v. Richmond^ in 1956. Although the rule survives
in Ontario, it was reversed by legislation in England in 1968 upon the
recommendation of the Lord Chancellor's Law Reform Committee.^
The reforms in England and similar reforms proposed or enacted else-
where'^ make it necessary for us to consider whether in Ontario the rule
ought to be reversed, amended or left unchanged.

In Hollington v. F. Hewthorn & Co. Ltd., the plaintiff claimed
damages in respect of a coUision between his car, which was driven by
his son who subsequently died, and a car owned by the defendant
company and driven by one of its employees, who thereafter had been
convicted of careless driving. The plaintiff, who had no other evidence
available due to the death of his son, sought to introduce this conviction
as prima facie evidence of the other driver's negligence. The Court of
Appeal held, both on principle and on authority, that evidence of the
conviction was inadmissible.

It is now generally accepted in Ontario that neither a prior criminal
conviction nor a prior finding of culpability in civil proceedings is admis-
sible in evidence in civil proceedings not brought between the same
parties.^ The principle of law involved in Hollington v. Hewthorn con-
cerning the admission in evidence of a previous conviction or other
determination of judicial proceedings is particularly important in six
different types of cases:

(1) In a civil action based on negHgence where the defendant has
been found guilty of negligent conduct arising out of the same
facts; Hollington v. Hewthorn was such a case.

1[1943] K.B. 587.

2[1956] S.C.R. 383, 386, per Kerwin, C.J.C.

3The Civil Evidence Act 1968, ss. 11, 12 and 13, implements the Fifteenth Re-
port of the Law Reform Committee on The Rule in Hollington v. Hewthorn,
Cmnd. 3391, (1967), to make a criminal conviction admissible in subsequent
civil proceedings and likewise to make previous findings of adultery and
paternity admissible in subsequent civil proceedings.

4See Alberta Institute of Law Research and Reform, Report No. 16, The Rule
in Hollington v. Hewthorn (February, 1975); Report of the Torts and General
Law Reform Committee of New Zealand, The Rule in Hollington v. Hewthorn
(July, 1972).

5See English v. Richmond, [1956] S.C.R. 383; Re Charlton, [1969] 1 O.R. 706
(C.A.); but see contra, Love v. Love, [1969] 1 O.R. 291, discussed in this
chapter at page 99.

(2) In an action for defamation based on a statement in which or
from which it might be inferred that the defendant has alleged
that the plaintiff was guilty of an offence, and where it is sought
to justify the statement by proof of the conviction for the
alleged offence.^

(3) In an action for malicious prosecution, where it is sought to
prove that the proceedings involved did not terminate in favour
of the plaintiff.

(4) In a proceeding based on the adultery of the respondent or
defendant who, as a co-respondent in a previous divorce pro-
ceeding, has been found guilty of adultery.

(5) In a divorce proceeding based on the grounds set out in section
3(b) of the Divorce Act: that is, that since the celebration of
the marriage the respondent "has been guilty of sodomy, besti-
ality or rape or has engaged in a homosexual act".

(6) In a divorce proceeding based on grounds set out in section
3(b) of the Divorce Act: that is, that since the celebration of
the marriage the respondent "has gone through a form of
marriage with another person".

We shall deal with each of these problems in the order in which we have
set them out.

Although evidence of a conviction is not admissible in a subsequent
negligence action to prove the facts upon which the conviction was based,
a plea of guilty to a charge may be received in evidence in proper circum-
stances in subsequent civil proceedings as an admission or confession.
This was the view of the majority in the English v. Richmond case.
However, in the dissenting judgments of Cartwright, J., and Abbott, J.,
views were expressed that a plea of guilty to an offence under The High-
way Traffic Act was not to be taken as an admission of negligence for the
purpose of a subsequent civil action. Abbott, J., relied on Potter v. Swain
and SwainP an earlier decision of the Ontario Court of Appeal which
held that an admission made by counsel for the purpose of proceedings
under The Summary Convictions Act was not admissible in evidence in
a subsequent civil case.

No question arises concerning proof of an acquittal as evidence that
the accused did not commit the act giving rise to the charge. Since the
standard of proof in a criminal case is proof beyond a reasonable doubt,
it cannot be argued that the failure to meet this standard should be any
basis for a conclusion based on the balance of probabilities.

As indicated, in England the Civil Evidence Act 1968 provides that
proof of a subsisting conviction of an offence by any court in the United
Kingdom is admissible in civil proceedings, where relevant, for the purpose
of proving that the person convicted is guilty of the conduct upon which

^Goody V. Odhams Press Limited, [1967] 1 Q.B. 333,
7[1945] O.W.N. 514.

the conviction was based. ^ Similarly, a Report prepared by the Alberta
Institute of Law Research and Reform recommends that evidence of the
conviction of any person in a Canadian court for an offence, whether
federal or provincial, should be admissible in civil proceedings to prove
that he committed the offence, whether he was convicted on a plea of
guilty or otherwise, and whether or not he is a party to the civil pro-
ceedings.^

However, it would not be wise, in our view, to amend the law to
permit a court to receive in evidence, in civil proceedings, proof of a
prior conviction for an offence arising out of the same facts. This issue
is particularly significant in negligence actions. The result of a conviction
for a breach of a provincial statute or a municipal by-law may be very
minor, while the consequences of a judgment in a civil action may be
great. In our view the results of the proceedings in the criminal court are
quite irrelevant to the issues between the parties in the civil suit. In most
negligence cases the real defendant in the civil suit is the insurer. Since
the insurer is not before the court in the criminal proceedings, it would
be unjust if it were to be prejudiced by the result of those proceedings.
If such an amendment were made, it would tend to encourage the use
of the criminal courts to promote civil interests.

^Section 11 provides:

1 1 . Convictions as evidence in civil proceedings

(1) In any civil proceedings the fact that a person has been convicted
of an offence by or before any court in the United Kingdom or by a court-
martial there or elsewhere shall (subject to subsection (3) below) be
admissible in evidence for the purpose of proving, where to do so is relevant
to any issue in those proceedings, that he committed that offence, whether
he was so convicted upon a plea of guilty or otherwise and whether or not
he is a party to the civil proceedings; but no conviction other than a sub-
sisting one shall be admissible in evidence by virtue of this section.

(2) In any civil proceedings in which by virtue of this section a person
is proved to have been convicted of an offence by or before any court in
the United Kingdom or by a court-martial there or elsewhere —

(a) he shall be taken to have committed that offence unless the
contrary is proved; and

(b) without prejudice to the reception of any other admissible evidence
for the purpose of identifying the facts on which the conviction
was based, the contents of any document which is admissible as
evidence of the conviction, and the contents of the information,
complaint, indictment or charge-sheet on which the person in ques-
tion was convicted, shall be admissible in evidence for that
purpose.

(3) Nothing in this section shall prejudice the operation of section 13
[dealing with defamation actions] of this Act or any other enactment
whereby a conviction or a finding of fact in any criminal proceedings is
for the purposes of any other proceedings made conclusive evidence of
any fact.

(4) Where in any civil proceedings the contents of any document are
admissible in evidence by virtue of subsection (2) above, a copy of that
document, or of the material part thereof, purporting to be certified or
otherwise authenticated by or on behalf of the court or authority having
custody of that document shall be admissible in evidence and shall be taken
to be a true copy of that document or part unless the contrary is shown. . . .

^Alberta Institute of Law Research and Reform, Report No. 16, The Rule in
Hollington v. Hewthom (February 1975), at p. 20. The Uniform Law Confer-
ence of Canada is considering a similar recommendation.

We do not think that a plea of guihy to an offence should be ad-
missible in evidence in subsequent civil proceedings. We agree with the
dissenting views expressed by Abbott, J., in English v. Richmond^^ and
with the judgment of the Ontario Court of Appeal in Potter v. Swain and
Swain}^ Very frequently where an accused person is charged with a minor
offence under a provincial statute such as The Highway Traffic Act ot a.
municipal by-law, he will plead guilty and suffer a small fine rather than
pay counsel to present a defence and lose time from his employment.
In so doing he may not realize that the plea of guilty is not warranted
and that the result may be to burden him or his insurer with an evidentiary
handicap in subsequent civil proceedings.

Our second category of case is concerned with actions for defamation
where the libel in question is that the plaintiff is guilty of a particular
crime, and the defendant seeks to justify the statement by proof of a
conviction for the alleged offence. Following the rule in Hollington v.
F. Hewthorn & Co. Ltd., it has been held that convictions for particular
crimes cannot be used to prove a plea of justification. ^^ In Goody v.
Odhams Press Limited, ^^ the plaintiff sought damages for libel following
an article describing his participation in the "Great Train Robbery". The
plaintiff had been convicted of the train robbery; the defendant wished
to introduce this conviction as evidence of his guilt, and in partial justi-
fication of the supposedly libellous words. The court held that Hollington
v. F. Hewthorn & Co. Ltd. had decided that a conviction is no evidence
of guilt, not even prima facie evidence. The Court of Appeal in Goody
V. Odhams Press Limited did, however, consider that the conviction might
be proved in mitigation of damges. We think that this distinction borders
on sophistry. Where a person has been convicted of robbery, that fact
should surely be admissible in evidence in a subsequent civil action to
establish that he was a robber.

^^Supra, footnote 5.
^^Supra, footnote 7.

I2ln England this has been reversed by s. 13 of the Civil Evidence Act 1968:
13. Conclusiveness of convictions for purposes of defamation actions

(1) In an action for libel or slander in which the question whether a
person did or did not commit a criminal offence is relevant to an issue
arising in the action, proof that at the time when that issue falls to be
determined, that person stands convicted of that offence shall be conclusive
evidence that he committed that offence; and his conviction thereof shall be
admissible in evidence accordingly.

(2) In any such action as aforesaid in which by virtue of this section
a person is proved to have been convicted of an offence, the contents of
any document which is admissible as evidence of the conviction, and the
contents of the information, complaint, indictment or charge-sheet on
which that person was convicted, shall, without prejudice to the reception
of any other admissible evidence for the purpose of identifying the facts
on which the conviction was based, be admissible in evidence for the
purpose of identifying those facts.

(3) For the purposes of this section a person shall be taken to stand
convicted of an offence if but only if there subsists against him a conviction
of that offence by or before a court in the United Kingdom or by
a court-martial there or elsewhere. . . .

^"^Supra, footnote 6.

We recommend that in an action for libel or slander in which the
question whether a person did or did not commit a criminal or provincial
offence is relevant, proof that the person has been convicted in a court
of competent jurisdiction in Canada of the offence alleged should be
conclusive evidence that he committed the offence.

Thirdly, in an action for mahcious prosecution, the onus is on the
plaintiff to show that the proceedings giving rise to the action terminated
in his favour. A conviction of the plaintiff for the offence in question
is, therefore, conclusive evidence that the proceedings did not terminate
in his favour. This is well-established laWy^"^ and we think no amendment
to The Evidence Act is necessary.

Love v. Love,^^ is an example of our fourth type of case in which
a prior judicial determination may be relevant in a subsequent proceeding.
In that case, Ferguson, J., held that the petitioner could rely on a finding
of adultery in a previous action in which the respondent was a co-respon-
dent, and permitted proof of the previous judgment as evidence of the
adultery. The learned judge said:

A judgment for divorce on the grounds of adultery between A and
B makes the issue of adultery res judicata. It is a judgment in rem;
that is to say one that is good not only between the parties and their
privies, but good as against the world and that is so because it is a
judgment affecting status.

Therefore, in this action now before the Court the adultery alleged
in this action between the defendants may be proved by filing the
judgment nisi in the previous trial, together with proof that the
defendants named in that judgment are the same as in the case at
bar. 16

This is a decision of a single judge in an uncontested action. It is
quite true that, insofar as the status of husband A and wife B is concerned,
the judgment is conclusive as against all the world. But it does not neces-
sarily follow that the issue of the adultery of the co-respondent has been
conclusively decided for the purposes of an action brought by his or her
spouse, whose status is not affected by the judgment in the action brought
by A against B. The learned judge dismissed the principle involved in
Hollington v. Hewthorn as irrelevant, and quoted certain early English
cases. The authors of Ray den on Divorce^'^ after deaUng with findings
of adultery in prior proceedings between the same parties, state:

But the case is different where the previous proceedings were not
between the same parties: thus if a co-respondent has been found
guilty of adultery in a suit instituted against him by a husband, he
is not estopped in subsequent proceedings between him and his wife
from denying his adultery. A decree containing a finding of adultery
in a suit between other parties was not admissible as evidence of

^^Romegialli v. Marceau, [1964] 1 O.R. 407, 42 D.L.R. (2d) 481,
15[1969] 1 O.R. 291.
16/6/^., at p. 292.
i7(12thEd. 1974) 211.

100

adultery in a subsequent suit by or against the person so found
guilty.

The authors note that the law has been changed by the Civil Evidence Act
1968}^

It is not satisfactory to leave this important aspect of the law of
evidence in such an uncertain condition. It was considered necessary to
resolve the problem by statute in England, and we think it should be so
resolved here. We do not think any amendment should relate merely to
evidence of adultery in divorce matters. If it did, constitutional questions
would arise. Any amendment should have general appUcation, and should
include actions for alimony, proceedings under The Deserted Wives' and

^^Civil Evidence Act 1968, section 12:

12. Findings of adultery and paternity as evidence in civil proceedings

( 1 ) In any civil proceedings —

(a) the fact that a person has been found guilty of adultery in any
matrimonial proceedings; and

(b) the fact that a person has been adjudged to be the father of a
child in affiliation proceedings before any court in the United
Kingdom,

shall (subject to subsection (3) below) be admissible in evidence for the
purpose of proving, where to do so is relevant to any issue in those civil
proceedings, that he committed the adultery to which the finding relates or,
as the case may be, is (or was) the father of that child, whether or not
he offered any defence to the allegation of adultery or paternity and
whether or not he is a party to the civil proceedings; but no finding or
adjudication other than a subsisting one shall be admissible in evidence by
virtue of this section.

(2) In any civil proceedings in which by virtue of this section a person
is proved to have been found guilty of adultery as mentioned in subsection
(l)(a) above or to have been adjudged to be the father of a child as
mentioned in subsection (l)(b) above —

(a) he shall be taken to have committed the adultery to which the
finding relates or, as the case may be, to be (or have been) the
father of that child unless the contrary is proved; and

(b) without prejudice to the reception of any other admissible evidence
for the purpose of identifying the facts on which the finding or
adjudication was based, the contents of any document which was
before the court, or which contains any pronouncement of the
court, in the matrimonial or affiliation proceedings in question shall
be admissible in evidence for that purpose.

(3) Nothing in this section shall prejudice the operation of any enact-
ment whereby a finding of fact in any matrimonial or affiliation proceedings
is for the purposes of any other proceedings made conclusive evidence of
any fact.

(4) Subsection (4) of section 11 of this Act shall apply for the
purposes of this section as if the reference to subsection (2) were a
reference to subsection (2) of this section.

(5) In this section —

"matrimonial proceedings" means any matrimonial cause in the High
Court or a county court in England and Wales or in the High Court
in Northern Ireland, any consistorial action in Scotland, or any appeal
arising out of any such cause or action;

"affiliation proceedings" means, in relation to Scotland, any action of
affiliation and aliment;
and in this subsection "consistorial action" does not include an action of
aliment only between husband and wife raised in the Court of Session or
an action of interim aliment raised in the sheriff court.

101

Children's Maintenance Act^^ and, where relevant, any other proceedings.
Our conclusion is that, where in a proceeding under the Divorce Act of
Canada, a co-respondent has been adjudged guilty of adultery, the judg-
ment should, in the absence of evidence to the contrary, be proof of the
co-respondent's adultery in any subsequent proceeding.

With respect to our fifth and sixth categories of cases, we think that
in a proceeding for divorce under the Divorce Act-^ of Canada, based on
grounds that the respondent has been guilty of the offences set out in
section 3(b) or 3(c) of the Act, proof that the respondent has been
convicted of any of the alleged offences should be admissible in evidence
for the purpose of proving that the respondent was guilty of the named
offence.

Section 20 of the Divorce Act provides:

20. (1) Subject to this or any other Act of the Parliament of
Canada, the laws of evidence of the province in which any pro-
ceedings under this Act are taken, including the laws of proof of
service of any petition or other document, apply to such proceedings.

This provision appears to be intended to enable the Legislature to facili-
tate proof of the guilt of a party in any proceeding based on section 3(b)
or 3(c) of the Divorce Act. We think that an amendment to The Evidence
Act is desirable.

It remains to be considered whether a judgment of a court in an
affiliation proceeding should be admissible in subsequent civil proceedings
involving the paternity of a child born out of wedlock.

In England, the Civil Evidence Act 1968 provides that, where a
person has been found to be the father of a child in an affiliation proceed-
ing before a court in the United Kingdom, the finding is admissible in
evidence in civil proceedings for the purpose of proving that he is the
father of the child.^i The Alberta Institute of Law Research and Reform
considered this provision in their Report on The Rule in Hollington v.
Hewthorn^'^ but reserved a recommendation pending consideration of the
problem of proof of paternity in a further report.

The Commission does not consider that an order made in affihation
proceedings, as they exist at present, should be regarded as a declaration
of paternity for the purpose of all other subsequent proceedings. An
affiliation order is obtained by a summary procedure, and for the limited
purpose of holding the father responsible for the payment of maintenance
to the child under The Child Welfare ActP In our Report on Children^^
we made the following recommendation:

19R.S.O. 1970, c. 128.

20R.S.C. 1970, c. D-8.

bisection 12(1), set out in footnote 18, supra. A similar provision is being con-
sidered by the Uniform Law Conference of Canada.

22Alberta Institute of Law Research and Reform, Report No. 16, The Rule in
Hollington v. Hewthorn (February, 1975), at p. 20.

23R.S.O. 1970, c. 64, s. 59, as am. by S.O. 1972, c. 109, s. 6.

240ntario Law Reform Commission, Report on Family Law, Part III, Children
(1973).

102

It should be possible for any interested person to obtain a judicial
decree of a declaratory nature that a given man is the father of a
given child. Such a decree should operate as a presumption that the
man is the father of the child for all purposes unless and until the
decree is vacated by the making of another decreets

If the issue of paternity were determined by means of a procedure
such as that envisaged by the Commission, our view as to the evidentiary
effect of the resulting order might be different. In the meantime, however,
we make no recommendation concerning this matter.

2. Recommendations

1. No amendment to The Evidence Act should be made to make
previous convictions for criminal or provincial offences generally
admissible in subsequent civil proceedings as proof of the facts
giving rise to the conviction.

2. The Evidence Act should be amended to provide that a plea of
guilty to an offence under the laws of Canada or the laws of
a province of Canada or a municipal by-law, should be inadmis-
sible in any civil proceeding to prove the facts constituting the
offence to which the plea of guilty was entered.

3. In an action for libel or slander in which the question whether
a person did or did not commit a criminal or provincial offence
is relevant to an issue arising in the action, proof that the person
has been convicted of the offence alleged in a court of competent
jurisdiction in Canada should be made conclusive proof that he
committed the offence.

4. Where in a proceeding under the Divorce Act of Canada a co-
respondent has been found to have committed adultery, the judg-
ment of the court should be proof, in the absence of evidence
to the contrary, of the co-respondent's adultery in any subsequent
proceeding.

5. Legislation should be enacted to provide that conviction for any
of the offences named as grounds for divorce in sections 3(b) and
3(c) of the Divorce Act should be evidence that the convicted
person is guilty of the named offence.

6. A conviction for bigamy should be evidence that the convicted
person committed adultery, where proof of adultery is relevant
in any proceeding under The Deserted Wives' and Children's
Maintenance Act or for alimony.

The Evidence Act should be amended to include the following
sections :

Except as provided in this or any other Act, no plea
of guilty to or conviction of an offence under the laws of
Canada or any province or territory of Canada or a munici-
pal by-law is admissible in evidence in any civil proceeding

257Mci., at pp. 31-32.

103

as proof of the facts constituting the offence to which the
plea of guilty was entered or upon which the conviction
was based. [Draft Act, Section 29.]

In an action for libel or slander in which the question
whether a person has or has not committed an offence under
the laws of Canada or any province or territory of Canada
is relevant to an issue in the action, proof that that person
was convicted of that offence is conclusive evidence that
he committed that offence. [Draft Act, Section 30.]

(1) Where in a proceeding for divorce before a court
having jurisdiction in Canada a co-respondent has been
found to have committed adultery with a party to the
proceeding, proof of the judgment of such court is, in the
absence of evidence to the contrary, proof of the adultery
of the co-respondent in a subsequent proceeding.

(2) Where in a proceeding for divorce it is alleged
that the respondent went through a form of marriage with
another person after the marriage in issue was entered into,
proof that the respondent was convicted of bigamy in Canada
is evidence that he was guilty of the offence.

(3) Where in a proceeding for divorce it is alleged
that the respondent has been guilty of sodomy, bestiality or
rape after the marriage in issue was entered into, proof
that the respondent was convicted of the alleged offence in
a court having jurisdiction in Canada is evidence that he
was guilty of the offence.

(4) Where in a proceeding under The Deserted Wives'
and Children's Maintenance Act or for alimony it is relevant
to prove adultery, proof of a conviction for bigamy during
the marriage of the spouses is evidence of adultery. [Draft
Act, Section 31.]

CHAPTER 7

COMPETENCE AND COMPELLABILITY

1. Competence

Witnesses and deponents are required to meet certain minimum
standards of reliability; otherwise, they are not permitted to testify. The
trier of law determines whether the witness meets these standards. If so,
he is competent and his evidence is received. It is for the trier of fact to
determine a witness' credibility and the weight to be given to his evidence.
There is an area where competence and weight tend to merge: although
a witness may be legally competent to testify, in some cases a requirement
is imposed that the evidence given by him be corroborated as, for example,
in the case of the evidence of young children and of complainants in
certain sexual offences.

Historically, the law relating to competence comprised a very signi-
ficant portion of the law of evidence; however, gradually the concept of
competence has given way to a concept of credibility, and the law of
competence has thus been reduced to relatively simple proportions.

Traditionally, rules relating to competence have been concerned with
three general matters: status, mental capacity and legally recognized under-
takings to tell the truth. We shall deal with the first two in this chapter;
in the next chapter we shall discuss the last under the heading of "the
oath".

(a) Status

Under the early common law even an adult who was mentally
sound, and who could take the required oath, was nevertheless barred
from testifying if he had an interest in the outcome of the litigation, or
if he had been convicted of an infamous crime. It was assumed that such
persons could not be relied on to speak the truth, and hence they were
not permitted to testify in the relevant proceedings. In other words, they
were denied status to testify.

In England, until 1828, no person convicted and sentenced for an
infamous crime was permitted to testify in court unless he had been
pardoned. This situation was ameliorated by the Civil Rights of Convicts
Act^ which permitted any person convicted of an offence other than
perjury or subornation of perjury to testify after he had served his sentence.
By the Evidence Act, 1843^ the remaining disabilities arising from con-
victions for crime or while serving sentence were removed. In 1854, it
was provided by statute that, although a convicted person was a compe-
tent witness, the matter of a previous conviction could be raised on the

19 Geo. 4, c. 32.

26 & 7 Vict., c. 85 (Lord Denman's Act).

105

106

issue of his credibility. ^ However, an accused person or his spouse was
not competent to give evidence at his own trial until 1898.4

The disability arising from pecuniary or proprietary interest in the
litigation was removed, except for parties and their spouses, by the
Evidence Act, 1843, and interest in the litigation was made a matter of
credibility rather than competence. Parties did not become competent
witnesses until 1851;^ their spouses until 1853.^

In Ontario the disqualification of persons accused of criminal offences
was removed in 1893,"^ five years earlier than in England. Incapacity for
crime or interest in civil cases was abolished in 1849, when the provisions
of the English Evidence Act, 1843 were introduced into Upper Canada.^
The relevant provisions of this legislation as they appear in the Consoli-
dated Statutes of 1859 provide:

3. No person offered as a witness shall, by reason of incapacity
from crime or interest, be excluded from giving evidence, either in
person or by deposition, according to the practice of the Court, on
the trial of any issue joined, or on any Inquiry arising in any Suit,
Action or Proceeding, Civil or Criminal, in any Court, or before
any Judge, Jury, Sheriff, Coroner, Magistrate, Officer or Person
having by Law, or consent of parties, authority to hear, receive and
examine evidence.

4. Every person so offered shall be admitted and be compellable
to give Evidence on Oath, or solemn affirmation where an affirma-
tion is receivable, notwithstanding that such a person has or may
have an interest in the matter in question or in the event of the
trial of some Issue, Matter, Question or Inquiry, or of the Suit,
Action or Proceeding in which he is offered as a witness, and not-
withstanding that such person so offered as a witness, had been
previously convicted of a crime or offence.^

Because these sections were adapted from the English legislation of 1843
as introduced into Canada in 1849, they appear, when read together, to
be redundant, and there is some overlapping.

These provisions, with some revision, appear as sections 6 and 7
of The Evidence Act, which read:

6. No person offered as a witness in an action shall be excluded
from giving evidence by reason of any alleged incapacity from crime
or interest.

7. Every person offered as a witness shall be admitted to give
evidence notwithstanding that he has an interest in the matter in

^Common Law Procedure Act, 1854, 17 & 18 Vict., c. 125; later adopted into
the Criminal Procedure Act, 1865, 28 & 29 Vict., c. 18, s. 6, for both civil and
criminal cases.

"^Criminal Evidence Act, 1898, 61 & 62 Vict., c. 36, s. 1.

^Evidence Act, 1851, 14 & 15 Vict., c. 99, s. 2.

^Evidence Amendment Act, 1853, 16 & 17 Vict, c. 83.

'^Canada Evidence Act, 1893, 56 Vict., c. 31, s. 4.

M« Act to improve the Law of Evidence in Upper Canada, 12 Vict., c. 70, s. 1.

9 An Act respecting Witnesses & Evidence, C.S.U.C. 1859, c. 32, ss. 3, 4.

107

question or in the event of the action and notwithstanding that he
has been previously convicted of a crime or offence. ^^

The differences between the two sections are probably unintentional. There
would seem to be no significance in the fact that section 6 is framed in
exclusionary terms and section 7 in inclusionary terms. Section 6 refers
to ''alleged incapacity", whereas section 7 proceeds from definite facts;
section 6 refers to "crime" and section 7 to "crime or offence". Conceiv-
ably the latter language covers provincial offences as well as federal
crimes, ^^ though it is doubtful that most provincial offences would have
been considered "infamous crimes" under the common law rule.

Although the sections may overlap, they have been part of our law
for a long time and we are not convinced that any change of consequence
should be made in them.

As we have indicated, in England parties and their spouses remained
incompetent in civil cases on the ground of interest even after the
Evidence Act, 1843. However, by the Evidence Act, 1851 parties were
made both competent and compellable in all civil proceedings except
proceedings instituted in consequence of adultery and actions for breach
of promise to marry. ^^ In 1853, spouses of parties to actions were made
competent and compellable subject to the exception for proceedings in-
stituted in consequence of adultery. ^^ These statutory provisions as to
parties and their spouses, which have had separate histories, have been
combined and adopted in Ontario as section 8 of The Evidence Act:

8(1) The parties to an action and the persons on whose behalf
it is brought, instituted, opposed or defended are, except as herein-
after otherwise provided, competent and compellable to give evidence
on behalf of themselves or of any of the parties, and the husbands
and wives of such parties and persons are, except as hereinafter
otherwise provided, competent and compellable to give evidence
on behalf of any of the parties. ^"^

Section 8(1) appears in substance to be satisfactory. We deal with
marital privilege in chapter 9 and there make recommendations for
amendment to section 8(2), dealing with the competence of spouses to
answer questions concerning marital intercourse.

(b) Mental Capacity

A minimum level of mental capacity in witnesses has also been
considered essential for a rational and expeditious trial process. Medical
and legal tests for mental competency are not identical, and it has been
held that a patient in a mental institution, who suffers from delusional
insanity, may be a competent witness in some cases. ^^ In Ontario, the

lOR.S.O. 1970, c. 151, ss. 6, 7.

^^Street v. City of Guelph et at., [1964] 2 O.R. 421.

^2Evidence ^cr, 1851, 14 & 15 Vict., c. 99, ss. 2, 4.

^^Evidence Amendment Act, 1853, 16 & 17 Vict., c. 83, ss. 1, 2.

l4The first part, dealing with parties, was adopted in 1869: 33 Vict., c. 13, s. 4.

The part relating to spouses was added in 1873: 36 Vict., c. 10, s. 1.
I5i?. V. Hill (1851), 5 Cox C.C. 259.

108

trier of law determines whether a proposed witness has the mental
capacity to testify and must satisfy himself that the witness ( 1 ) possesses
sufficient powers of perception and recollection, (2) is able to under-
stand reasonable questions asked on cross-examination, (3) has a
rational narrative ability, and (4) understands the obhgation to speak the
truth. 1^ Incapacity may be temporary, as in the case of someone intoxi-
cated by drink or drugs, or a child who matures prior to trial. ^"^

Few witnesses have been disqualified on grounds of mental capacity,
probably because very few who would not qualify have been called by
the parties to testify. Determination of mental capacity may raise difficult
questions for trial judges. The tendency has been to permit any witness
who is brought forward to testify, and to take any extenuating circum-
stances into consideration in assessing the weight to be attached to his
testimony.

Some jurisdictions have enacted legislation defining competence. The
California Evidence Code, adopting Rule 17 of the former Uniform Rules
of Evidence^^, provides as follows:

701 . A person is disqualified to be a witness if he is :

(a) Incapable of expressing himself concerning the matter so as to
be understood, either directly or through interpretation by one
who can understand him; or

(b) Incapable of understanding the duty of a witness to tell the
truth. 19

The Draft Scottish Evidence Code provides:

6.2 A person is incompetent as a witness if from nonage or from
any physical or mental incapacity he is incapable of either (a)
understanding the obligation to tell the truth, or (b) giving evidence
in a manner in which the same is or can be rendered intelligible to
the Court. The competence of a witness under this Article is to be
decided by the presiding judge, who may make such investigation,
including the calling of witnesses, as he may think fit, and whose
decision in the matter is not subject to review.^^

We have come to the conclusion that the practice in Ontario with respect
to the determination of the mental capacity of a witness is satisfactory,
and that no statutory provisions are required.

Some Ontario statutes render certain classes of persons not only
non-compellable as witnesses, but also incompetent to give evidence con-
cerning specific areas of information. For example. The Labour Relations

i^Udy V. Stewart (1885), 10 O.R. 591.

^TKendall v. The Queen, [1962] S.C.R. 469.

iSNational Conference of Commissioners on Uniform State Laws, Uniform Rules

of Evidence (1953), Rule 17.
i9Cal. Evidence Code, §701 (West, 1968).
20Scottish Lav;^ Commission, Memorandum No. 8, Draft Evidence Code (First

Part), Article 6.2 at p. 44.

109

Act^^ provides that the Minister, Deputy Minister of Labour and other
persons named in the statute are not competent or compellable as wit-
nesses in proceedings before the court or other tribunal respecting certain
information specified in the statute. Under The Liquor Licence Acf-'^
"no person to whom subsection 1 applies [persons employed in the
administration of the Act] shall be required to give testimony in any civil
suit or proceeding with regard to information obtained by him in the
course of his duties . . .". Such provisions are phrased differently in dif-
ferent statutes, but the object is to protect from disclosure information
obtained for certain official purposes.

2. Compellability

(a) Discussion

A person is "compellable" as a witness if he can be legally obliged
to give evidence. Compellability assumes competence, and implies that
the witness when sworn must, as a general rule, answer all relevant
questions. The sanction for refusal is to be held in contempt of court.

Private privilege may affect a witness' compellability by permitting
him to refuse to answer or by preventing him from answering certain
specific relevant questions at his or another person's option.

We have sketched the historical background of section 8 of The
Evidence Act. All parties to an action, and their spouses, are made com-
pellable as well as competent to give evidence on behalf of themselves
or of any of the parties. Accordingly, a party may be called to give
evidence on behalf of the opposite party, and the prosecutor for a provin-
cial offence may call the aocused^^ to give evidence against himself.

Under the provisions of section 9 of The Evidence Act and section
5 of the Canada Evidence Act, where a witness objects to answer ques-
tions on the ground that the answers may tend to criminate him or tend
to establish liability in civil proceedings, the answer shall not be used
against him in any subsequent civil or criminal proceedings. ^"^

Section 10 of The Evidence Act provides:

10. The parties to a proceeding instituted in consequence of adultery
and the husbands and wives of such parties are competent to give
evidence in such proceedings, but no witness in any such proceeding,
whether a party to the suit or not, is liable to be asked or bound
to answer any question tending to show that he or she is guilty of
adultery, unless such witness has already given evidence in the same
proceeding in disproof of his or her alleged adultery.

21R.S.O. 1970, c. 232, s. 100(4), (5).

22r/ze Liquor Licence Act, 1975, S.O. 1975, c. 40, s. 25(2).

23Section 1(a) defines "action" to include prosecutions for provincial offences.

See also R. v. Greenspoon Bros. Ltd., [1967] 2 O.R. 119.
24ln the recommended Draft Act, it is proposed to remove the necessity for a

witness to object to answer in order to obtain the protection of the section: See

subsection (3) of section 10.

110

Apart from the common law privilege against self-incrimination as
to adultery, expressly preserved in this section, section 10' poses some
difficulty in determining whether parties or their spouses are compellable
generally to give evidence in proceedings instituted in consequence of
adultery. Historically, they were not compellable to give evidence in such
proceedings and, at one time, here as in England, they were not even
competent to do so. If section 8 of The Evidence Act, providing that
parties and their spouses are competent and compellable in actions
generally, is to be read subject to section 10, it might be argued that
silence as to their compellability in the latter section should be construed
on historical grounds to mean that they are not compellable in actions
instituted in consequence of adultery.

From the words of section 10 alone it would appear that parties to
proceedings instituted in consequence of adultery, and their spouses, are
competent but not compellable as witnesses. But if they are called as
witnesses, like all other witnesses in such proceedings they are not liable
to be asked any question tending to show that they have committed
adultery unless they have already given evidence in the same proceeding
in disproof of the alleged adultery. Even though rules of compellability
assume the competence of the witness, it does not follow that competence
implies compellability.

The statutory background in Ontario seems to lend support to the
view that the parties and their spouses are compellable. In 1882 the
precursor of section 10 was enacted.^^ Its first clause was virtually
identical with section 10 and provided that parties and spouses "shall
be competent". When the Province's evidence legislation was consolidated
in 1909 the new statute read "shall be competent but not compellable",26
but in 1932 it was restored again to the "shall be competent" form.^^
The intentions of the legislators in making these changes are not known,
but it is not unreasonable to hold that the purpose of the 1932 change
was to make the parties compellable.

Authority exists for the view that in the absence of other indication,
competence implies compellability:

... at the Common Law the right and duty to give evidence are
correlative. If one who had the right to give evidence should for
any reason refuse, he could be compelled.^^

'^^The Evidence Amendment Act, 1882, 45 Vict., c. 10, s. 4. Prior to the 1882
enactment proceedings instituted in consequence of adultery were excepted from
the statutory provisions rendering parties competent and compellable: The
Evidence Act, 1869, 33 Vict., c. 13, s. 5(b) and The Evidence Act, 1873, 36
Vict., c. 10, s. 3.

26r/ze Evidence Act, 1909, 9 Edw. 7, c. 43, s. 8.

27r/ie Statute Law Amendment Act, S.O. 1932, c. 53, s. 11.

28/?. V. Barnes (1921), 49 O.L.R. 374, 390 (App. Div.), per Riddell, J.

Ill

Authorities point both ways as to whether this common law rule applies
in a statutory context. The House of Lords has held that it does not,^^
but an early Supreme Court of Canada decision indicates that it does.^^
We think this matter should be resolved by clear statutory provisions.

The exception contained in section 10, relieving parties and witnesses
in any proceeding instituted in consequence of adultery from liabiUty to
be asked, or obligation to answer, any question tending to show that he
or she has been guilty of adultery, preserves the original common law
privilege against self-incrimination as to adultery, an ecclesiastical offence
for which punishment might be imposed. ^i We do not think this archaic
concept is justified in the last quarter of the Twentieth Century. Moreover,
there does not seem to be any good reason why a witness in a proceeding
instituted in consequence of adultery should be exempt from answering
questions tending to show that he or she is guilty of adultery, while the
same witness in another proceeding may be compelled to answer such
questions.

The privilege has been subjected to much criticism, by Royal Com-
missions^^ in England, and by scholars^^ in both England and Canada.
It was abolished in England in 1968.3"^ It should be abolished in Ontario
as well, and we so recommend.

(b) Recommendation

We recommend that sections 8(1) and 10 of The Evidence Act be
repealed and the following substituted therefor:

(1) The parties to a proceeding and the persons on whose
behalf it is brought, instituted, opposed or defended are competent
and compellable to give evidence on behalf of themselves or of any

29See Leach v. R., [1912] A.C. 305 (H.L.), and the basis on which it was
distinguished by Avory, J., in R. v. Lapworth, [1931] 1 K.B. 117, (C.C.A.).
But see also Tilley v. Tilley, [1949] P. 240 (C.A.), specifically construing the
English counterpart to Ontario's section 10; and Cowen and Carter, Essays on
the Law of Evidence (1956), at pp. 220-30.

^OGosselin v. R. (1903), 33 S.C.R. 255: On a charge of murder the Crown sought
to call the wife of the accused as a witness. She was "competent" by the
Canada Evidence Act, 1893. The majority in the Supreme Court of Canada
held that not only could she testify without the consent of the accused, but
that competence normally implied compellability and accordingly she could
be compelled to testify by the Crown. The Court suggested that had Parliament
intended otherwise it would have provided that spouses were only competent
"for the defence". This suggestion was enacted in 1906 (S.C. 1906, c. 145, s. 4),
and remains in section 4(1) of the Canada Evidence Act.

^^Redfern v. Redfern, [1891] P. 139; and Gentle v. Gentle et al. (1974), 3 O.R.
(2d) 544.

32Royal Commission on Divorce and Matrimonial Causes, Cd. 6478 (1972);
Committee on Procedure in IVIatrimonial Causes, Final Report, Cmd. 7024
(1947); Royal Commission on Marriage and Divorce, CMD 9678 (1956).

33Z. Cowen, "Adultery and the Privilege Against Self-Crimination" (1949), 65
Law Q. Rev. 373; Rosen, "The Privilege Against Self-incrimination as to
Adultery: Should it be Abolished?" (1960), 23 Mod. L. Rev. 275; Cross,
Evidence (3rd Ed. 1967), at p. 238; Morden, Note (1949), 27 Can. Bar Rev.
468; Ryan, Note (1949), 27 Can. Bar Rev. 851.

34C/y// Evidence Act 1968, c. 64, s. 16(5).

112

of the parties, and the spouses of such parties and persons are
competent and compellable to give evidence on behalf of any of the
parties.

(2) The parties to and witnesses in a proceeding instituted
in consequence of adultery and the spouses of such parties may be
asked and shall not be excused from answering any question, in-
cluding any question tending to show that he or she has committed
adultery. [Draft Act, Section 9(1), (2).]

CHAPTER 8

THE OATH

1. Introduction

The concept of the oath as a form of declaration involving a higher
authority far antedates the common law. The earliest Biblical reference
to a sworn obligation appears in Genesis (22:16) where Jehovah's cove-
nant with Abraham at the burning bush is recorded: "By myself have I
sworn, saith the Lord, for because thou hast done this thing, and hast not
withheld thy son, thine only son\'' (22:17) "That in blessing I will bless
thee, and in multiplying I will multiply thy seed as the stars of the heaven,
and as the sand which is upon the sea shore. . . ." This passage was inter-
preted by the writer of the Epistle to the Hebrews (6:13) in this way:
"For when God made promise to Abraham, because he could swear by
no greater, he sware by himself," (6:16) "For men verily swear by the
greater: and an oath for confirmation is to them an end of all strife."

In the earliest Hebraic laws there was a concept of "an oath of
the Lord" in judicial proceedings concerning disputes between individuals.
''Then shall an oath of the Lord be between them . . ." (Exodus
22:11). In certain passages in the New Testament the former concept
of the oath is repudiated. Dissenters relied on these passages to justify
their refusal to take oaths; subsequently Parliament enacted statutory
provisions giving to a witness a right to affirm when he objects to being
sworn on the ground of his religious behef. The dissenters relied in
particular upon the following passages in the Gospel according to St.
Matthew: "Again, ye have heard that it hath been said by them of old
time. Thou shalt not forswear thyself, but shalt perform unto the Lord
thine oaths; (5.33) But I say unto you, swear not at all; neither by
heaven; for it is God's throne: (5:34) Nor by the earth: for it is his
footstool; . . ." (5:35). In the General Epistle of James (5:12) is found
the following exhortation: "But above all things, my brethren, swear not,
neither by heaven, neither by the earth, neither by any other oath . . . ."

The oath as it is now administered in Canadian courts is not, in
fact, of religious origin, although it has assumed religious connotations.
The oath in earlier English law antedates the principles of proof by
rational inference to be drawn from proven facts, and proof by the
relevancy of the testimony of witnesses. These methods of proof were
developed in English law comparatively recently, although they were part
of Roman law. Before the concept of proof by witnesses was developed,
the oath was a part of trial by compurgation, or law wager. The defendant
under oath denied the charge against him, and if he had the required
number of witnesses to support his denial on their oaths he would win
his case.^ Although oaths were used in Roman procedure, trial by com-
purgation was unknown. However, it was common in the laws of the

iHoldsworth, A History of English Law, Vol. 1, at p. 305.

113

114

barbarians. Holdsworth says that because trial by compurgation was so
common and widespread, the Church adopted it.^

The compurgators swore to the same oath as their principal; for
example, that he did not owe the debt or that he was innocent. This
method of settling disputes eventually became corrupt. A profession of
oath helpers developed who were available at a price. They made their
profession known by a straw they wore in their hats; it has been suggested
that this is the origin of the expression "man of straw".

Compurgation became extinct as the jury evolved from an investiga-
tory body finding the facts for itself to a body whose decisions were
based on testimonial proof. ^ Proof by the testimony of witnesses became
the practice. With proof by the testimony of witnesses, has developed
proof under oath.

The concept of the oath has undergone a process of development
from superstitution, through religious conviction based on divine sanc-
tions, to the present situation which appears to many people to be a mere
formal requirement to which temporal sanctions only are attached.

There can be no doubt that in the English common law as it has
been adopted in Canada, the oath as a safeguard for ascertaining the
truth in the trial of cases is founded on a belief in divine retribution. One
of the leading nineteenth century authorities, Starkie, put it this way:
"this imposes the strongest obligation upon the conscience of the witness
to declare the whole truth that human wisdom can devise; a wilful viola-
tion of the truth exposes him at once to temporal and to eternal punish-
ment". He went on to say: "A judicial oath may be defined to be a solemn
invocation of the vengeance of the Diety upon the witness, if he do not
declare the whole truth, as far as he knows it".^

On this thesis the qualification required of a witness to be sworn
was a belief in the existence of God and in a future state of rewards and
punishments, as well as a belief that divine punishment would be the
consequence of perjury. As a result, certain religious denominations or
sects who adhered strictly to the teachings in the New Testament, earlier
alluded to, and those who did not understand the nature of an oath, were
excluded as witnesses. An atheist was not a competent witness. ^ In R.
v. Taylor^ Duller, J., held that the proper question to be asked a witness
was whether he believed in God, the obligation of the oath and a future
state of rewards and punishments. Since the object of the oath was to
bind the conscience, a form had to be developed to bind the witness
according to what would be most solemn and sanctified by the usage of

2lbid.

3The last case in which compurgation was used, was King v. Williams 2 B. & C.

538 in 1824. It was finally abolished in 1833 (3 & 4 Will. 4, c. 42, s. 13):

Holdsworth, A History of English Law, Vol. 1, at p. 308.
^Starkie, A Practical Treatise of the Law of Evidence and Digest of Proofs in

Civil and Criminal Proceedings (7th Ed. 1842), at p. 21.
50mycJiund v. Barker (1745), 1 Atk. 21, 26 E.R. 15; see also R. v. White (1786),

1 Leach C.C.L. 430, 168 E.R. 317.
6(1790), 1 Peake Cases N.P. 14, 170 E.R. 62.

115

the country or ot the sect to which he belonged."^ No precise form of
oath has been prescribed by the common law; and no statutory form of
words is prescribed as an oath for witnesses in judicial proceedings in
Canada.

2. English Legislation

Throughout the eighteenth century, concessions were made to those
who objected to taking an oath on the ground of reHgious scruples.^ The
Quakers and Moravians Act, 1833,^ consoUdated much of the previous
century's statutory development in this area. It provided: "Every person
of the persuasion of the people called Quakers, and every Moravian, be
permitted to make his or her solemn affirmation or declaration, instead
of taking an oath . . . ." The form of the declaration was: "I A.B. being
one of the people called Quakers (or one of the persuasion of the people
called Quakers, or of the united brethren called Moravians, as the case
may be,) do solemnly, sincerely, and truly declare and affirm". An affirm-
ation or declaration in the proper form was given the same force and effect
as if made under oath; that is, it would incur the sanctions of perjury.

In 1838,^^ this privilege was extended to persons who had been
Quakers or Moravians and had ceased to be, but retained conscientious
scruples about taking an oath.

In 1854, the Common Law Procedure Act^^ was enacted; by section
20 of this Act, anyone who could declare that the taking of any oath was
contrary to his religious belief was permitted to affirm to written or
printed evidence in lieu of swearing. By The Evidence Further Amend-
ment Act, 1869^2 \i ^as provided that, where in any civil or criminal
proceeding a person objected to taking the oath, or was objected to as
incompetent, such person should, if the presiding judge was satisfied that
the taking of the oath would have no binding effect on his conscience,
make the following promise and declaration: "I solemnly promise and
declare that the evidence given by me to the Court shall be the truth the
whole truth and nothing but the truth". A party who, having made such
a declaration, corruptly gave false evidence was liable to conviction for
perjury as if he had taken the oath.

In 1888, these provisions of the Act of 1869 were repealed and the
following provision substituted:

Every person upon objecting to being sworn, and stating, as the
ground of such objection, either that he has no religious belief, or

7Starkie, footnote 4 supra, at p. 22.

8See 7 & 8 Will. 3, c. 34 (1696); 13 & 14 Will. 3, c. 4 (1701); 8 Geo. 1 ,c. 6
(1721); 22 Geo. 2, c. 30 (1749); 22 Geo. 2, c. 46, s. 36 (1749). See also 9
Geo. 4, c. 74, s. 36 (1828); and generally Tyler, Oaths, their Origin, Nature,
and History (1834).

93 & 4 Will. 4, c. 49 (1833). See also the Separatists' Affirmations Act, 3 & 4
Win. 4, c. 82 (1833).
^OQuakers and Moravians Act, 1838, 1 & 2 Vict., c. 77, s. 1.
1117 & 18 Vict, c. 125 (1854).

1232 & 33 Vict., c. 68, s. 4; subsequently amended by the Evidence Amendment
Act, 1870, 33 & 34 Vict., c. 49.

116

that the taking of an oath is contrary to his religious belief, shall
be permitted to make his solemn affirmation instead of taking an
oath in all places and for all purposes where an oath is or shall
be required by law, which affirmation shall be of the same force
and effect as if he had taken the oath.^^

A form of affirmation was provided as follows: "'I, A.B. do solemnly,
sincerely, and truly declare and affirm', and then proceed with the
words of the oath prescribed by law, omitting any words of imprecation
or calhng to witness. "^"^ The right to affirm under the Quakers and
Moravians Acts of 1833 and 1838 was still preserved. It was also pro-
vided that, where an oath had been duly administered and taken, the
fact that the person to whom the same was administered had, at the
time of taking such oath, no religious belief, should not for any purpose
affect the vaUdity of such oath.^^ A witness was permitted, if he wished
to do so, to swear with uplifted hand "in the form and manner in which
an oath is usually administered in Scotland . . . ."^^ In 1909, provision
was made for the manner and form of the oath. "Any oath may be
administered and taken in the form and manner following: The person
taking the oath shall hold the New Testament, or, in the case of a Jew,
the Old Testament, in his uplifted hand, and shall say or repeat after the
officer administering the oath the words T swear by Almighty God that
. . .' followed by the words of the oath prescribed by law.''^"^ It was also
specified that "in the case of a person who is neither a Christian nor a
Jew, the oath shall be administered in any manner which is now lawful". ^^

In 1961 the provisions of the Oaths Act, 1888, permitting persons
who objected to being sworn to make a solemn affirmation instead, were
extended to apply ". . .in relation to a person to whom it is not reason-
ably practicable to administer an oath in the manner appropriate to his
religious belief . . .".^^

3. The Canada Evidence Act

The eariiest federal legislation in Canada concerning the oath to be
administered to witnesses in criminal cases and in civil proceedings
respecting which the Parhament of Canada has jurisdiction, was enacted
in 1893 together with the introduction of the Criminal Code?-^ The rele-
vant provisions are:

22. Every court and judge, and every person having, by law or
consent of parties, authority to hear and receive evidence, shall have
power to administer an oath to every witness who is legally called
to give evidence before that court, judge or person.

^Waths Act, 1888, 51 & 52 Vict., c. 46, s. 1.

i4/6zU, s. 2.

is/ZjjW., s. 3.

Wbid., s. 5.

^1 Oaths Act, 1909, 9 Edw. 7, c. 39, s. 2.

mbid.

^^Oaths Act, 1961, 9 & 10 Eliz. 2, c. 21, s. 1; this statute was passed to deal
with the difficult situation posed in R. v. Pritam Singh, [1958] 1 All E.R. 199.
20Canada Evidence Act, 1893, S.C. 1893, 56 Vict., c. 31.

117

23. If a person called or desiring to give evidence, objects on
grounds of conscientious scruples, to take an oath or is objected
to as incompetent to take an oath, such person may make the follow-
ing affirmation: — 'I solemnly affirm that the evidence to be given
by me shall be the truth, the whole truth, and nothing but the
truth.' And upon the person making such solemn affirmation, his
evidence shall be taken and have the same effect as if taken under
oath.2i

These sections are repeated with minor changes in the Canada
Evidence Act?'^ As a result, under federal law, a witness must object to
taking an oath "on the grounds of conscientious scruples", or an objection
must be made that the witness is incompetent to take the oath, before the
statutory right to affirm arises. It is clear that the Canada Evidence Act
recognizes only "conscientious scruples" (the meaning of which is unclear)
and incompetence to take the oath as grounds permitting a witness to
give evidence by affirmation. This would appear to retain in the federal
law of evidence a large body of the common law of England concerning
the theological concept of the oath, the divine sanctions attached to it,
and a belief in punishment after death.

4. The Ontario Evidence Act

Some of the provisions of The Evidence Act (Ontario) concerning
the oath differ in substance from the Canada Evidence Act. They read:

17. Where an oath may be lawfully taken, it may be administered
to a person while such person holds in his hand a copy of the Old
or New Testament without requiring him to kiss the same, or, when
he objects to being sworn in this manner or declares that the oath
so administered is not binding upon his conscience, then in such
manner and form and with such ceremonies as he declares to be
binding.

18.(1) Where a person objects to being sworn from conscientious
scruples, or on the ground of his religious belief, or on the ground
that the taking of an oath would have no binding effect on his
conscience, he may in Heu of taking an oath, make an affirmation or
declaration that is of the same force and effect as if he had taken
an oath in the usual form. [Emphasis added]

(2) Where the evidence is in the form of an affidavit or
written deposition, the person before whom it is taken shall certify
that the deponent satisfied him that he was a person entitled to
affirm.23

The italicized words do not appear in the Canada Evidence Act. In addi-
tion, there is no provision in the Ontario Act permitting a witness to
affirm where he is objected to as incompetent to take an oath. Nor is
there a provision in the Canada Evidence Act similar to section 17,
dealing with the manner and form of administering the oath.

22R.S.C. 1970, c. E-10, ss. 13, 14.

23r/ie Evidence Act, R.S.O. 1970, c. 151, ss. 17, 18.

118

The first Ontario legislation concerning oaths was passed in 1809:
An Act for the Relief of Menonists and Tankers in certain Cases, '^'^ pro-
vided as follows:

WHEREAS the Religious Societies of the Menonists and
Tunkers from scruples of Conscience against taking an oath, are
subjected to many inconveniences to themselves and families as well
as to others who may require their evidence; for remedy whereof,
Be it enacted by the King's most Excellent Majesty, by and with
the advice and consent of the Legislative Council and Assembly of
the Province of Upper Canada, constituted and assembled by virtue
of, and under the authority of an Act passed in the Parliament of
Great Britain, intituled, "an Act to repeal certain parts of an Act
passed in the fourteenth year of his Majesty's reign, intituled, 'an
Act for making more effectual provision for the government of the
Province of Quebec, in North America,' and to make further provi-
sion for the government of the said Province," and by the authority
of the same. That from and after the passing of this Act, every
Menonist or Tunker in any case in which an oath is required by
law, or upon any lawful occasion wherein the affirmation or declara-
tion of a Quaker will by law be admitted, shall be, and is hereby
permitted to make his or her affirmation or declaration in the same
manner and form as a Quaker by the laws now in force is required
to do, having first made the following affirmation or declaration,
that is to say: —

T A.B. do solemnly, sincerely and truly affirm and declare, that
I am one of the Society of Tunkers or Menonists,' (as the case may
be)

which affirmation or declaration as aforesaid of any Menonist or
Tunker, except as hereinafter excepted, is hereby declared to be of
the same force and effect to all intents and purposes in all Courts
of Justice and other places where by law an oath is or shall be
allowed, authorized, directed or required, as if such Menonist or
Tunker had taken an oath in the usual form, and all and every
person or persons who is or are or shall be authorized or required
to administer any oath required by any law now in force or here-
after to be made, although no express provision is made for the
purpose in any such law, shall be, and is or are hereby required to
administer such affirmation or declaration.

II. And be it further enacted by the authority aforesaid, That if
any person making such affirmation or declaration shall be lawfully
convicted of having wilfully, falsely and corruptly affirmed and
declared any matter or thing which if the same had been deposed
in the usual form upon oath, would have amounted to wilful and
corrupt perjury, every such person so offending shall incur and
suffer all the pains, penalties, forfeitures and disabilities as by the
laws now in force are to be inflicted on persons convicted of wilful
and corrupt perjury.

2449 Geo. 3, c. 6.

119

III. And be it further enacted by the authority aforesaid, That no
Menonist or Tunker shall by virtue of this Act be qualified or per-
mitted to give evidence in any criminal cases, or to serve on juries
in criminal cases, or to hold or enjoy any office or place in the
government in this Province, any thing herein contained to the
contrary notwithstanding.

In 1829 the right to affirm was extended to evidence to be given in
criminal cases.^^

The next legislation in Ontario concerning oaths was enacted in
1869.26 The preamble to the Act reads in parts as follows:

Whereas it is expedient to permit any person who declares that the
taking of any oath is contrary to his religious belief to make instead
of such oath a solemn affirmation or declaration in all cases wherein
an oath may be lawfully administered.

The Act goes on to provide:

1. If any person called as a witness, or required or desiring to
make an affidavit or deposition in any civil proceeding, or on any
occasion other than in a criminal proceeding whereon or touching
any matter respecting which an oath is now, or hereafter may be
requisite by law, whether on taking office or otherwise, shall refuse
or be unwilling, from alleged conscientious motives, to be sworn,
it shall be lawful for the Court, or Judge, or other presiding officer,
or person quaUfied to take affidavits or depositions, to permit such
person, instead of being sworn, to make his or her solemn affirmation
or declaration in the words following, viz.: —

T, (A.B.) do solemnly, sincerely and truly affirm and declare
that the taking of an oath is, according to my religious belief, un-
lawful, and I do also solemnly, sincerely and truly affirm and declare,
&c.;' which solemn affirmation and declaration shall be of the same
force and effect as if such person had taken an oath in the usual
form. [Emphasis added]

This Act extends the right to affirm to all occasions where an oath
is required, and is not confined to cases in which witnesses are giving
evidence or making depositions. Under this statute, the condition prece-
dent to permitting the evidence of a witness to be taken under affirma-
tion is that the witness "shall refuse or be unwilling from alleged con-
scientious motives to be sworn'\ In the form prescribed for the affirma-
tion, the witness was required to declare "that the taking of an oath is,
according to my religious belief, unlawfuV\

The law remained in this form until 1909,^'^ when provisions similar
to the English Act of 1888 were introduced. The Ontario statute was
amended to read:

25^4 n Act to provide for the Admission of the Evidence of Quakers, Menonists,
Junkers and Moravians, in Criminal Cases, 10 Geo. 4, c. 1 (1829).

26/1 n Act to allow certain persons to make a Solemn Affirmation and Declaration
instead of an Oath, 1869, 33 Vict., c. 14.

27r/ze Evidence Act, 9 Edw. 7, c. 43, ss. 14, 15.

120

14. Where an oath may lawfully be administered to any person as
a witness or as a deponent in an action or on appointment to any
office or employment or on any occasion whatever, such person
shall be bound by the oath administered, if the same shall have
been administered in such form and with such ceremonies as such
person may declare to be binding.

15 — (1) If a person called as a witness or required or desiring to
give evidence or to make an affidavit or deposition in an action or
on an occasion whereon or touching a matter respecting which an
oath is required or permitted, objects to take an oath or is objected to
as incompetent to take an oath and if the presiding Judge or the
person qualified to take affidavits or depositions is satisfied that such
person objects to be sworn from conscientious scruples or on the
ground of his religious belief or on the ground that the taking of
an oath would have no binding effect on his conscience, such person
may make an affirmation and declaration in lieu of taking an oath
and such affirmation and declaration shall be of the same force and
effect as if such person had taken an oath in the usual form.

(2) Where the evidence is in the form of an affidavit or written
deposition the person before whom the same is taken shall certify
that the deponent satisfied him that he was a person entitled to
affirm.

This amendment made a fundamental change in the law. Previously
the person required to take an oath was only permitted to affirm "instead
of being sworn" and he was required to declare that "the taking of an
oath is, according to my rehgious belief, unlawful". Under the later
statute, although no particular form of oath is prescribed, the person is
bound by the oath "if the same shall have been administered in such
form and with such ceremonies as such person may declare to be binding".
This permitted the person taking the oath to declare the form and the
ceremonies which he considered to be binding.

In addition, the permission to affirm was extended to cases where
the party objected to taking an oath, or was objected to as incompetent
to take an oath, and the officer administering the oath found that the
person objected to being sworn from conscientious scruples, or on the
ground of his religious belief, or on the ground that the taking of the
oath would have no binding effect on his conscience. This was a consider-
able expansion of the law concerning the right to affirm. But the law, by
the use of the words in section 14, "in such form and wdth such ceremonies
as such person may declare to be binding", still recognized various forms
of oaths which, according to the common law, were accepted, such as
breaking a saucer, cutting off a chicken's head, etc.^^

The relevant sections of the 1909 Act were substantially changed
in 1926^9 and, with a few inconsequential changes in terminology, the
law has remained the same since that time. The essential changes in the

28/?. y.Ah Wooey (1902), 8 C.C.C. 25.

29j/ze Statute Revision Amendment Act, 1926, S.O. 1926, c. 21, s. 18.

121

1926 Act were: firstly, a form for taking the oath was prescribed for
the first time; that is, holding the Old or the New Testament in the hand.
However, if the person objected to being sworn, he was permitted, in
accordance with the former law, to declare the manner and form of the
ceremonies which would be binding on him. Secondly, the provision for
affirmation omitted the specific words "or on an occasion whereon or
touching a matter respecting which an oath is required or permitted".
These words made it clear that the right of affirmation extended to all
cases where an oath was required. However, the opening words of what
is now section 18(1), "Where a person objects to being sworn" are, no
doubt, intended to comprehend all those cases coming within previous
section 14, which contemplated the application of the Act to all cases
in which an oath is required to be administered. Lastly, the words "or
is objected to as incompetent to take an oath", which continue to appear
in section 14(1) of the Canada Evidence Act, were deleted.

The result is that in an area in which the law should be particularly
clear and precise, there is much confusion. The Ontario Act provides
for a manner of taking the oath, suited only to Jews and Christians: the
person to whom the oath is administered "holds in his hand a copy of
the Old or New Testament", but no form of oath is provided. If a person
objects to being sworn in this manner or declares that the oath so ad-
ministered is not binding upon his conscience, the oath may be admini-
stered "in such manner and form and with such ceremonies as he
declares to be binding". But where a person objects to being sworn from
conscientious scruples, or on the ground of religious belief, or on the
ground that the taking of an oath would have no binding effect on his
conscience, he may make an affirmation or declaration instead of taking
an oath. No form of affirmation is prescribed by law. If a person objects
to taking an oath or to the form of oath, these provisions may require
a considerable and difficult inquiry by the person administering the oath
in order to determine in what form and in what manner the oath should
be administered, if one is to be administered, or, on the other hand,
whether the witness should make an affirmation or declaration. In prac-
tice, the statutory provisions too often receive Httle or no attention.

We think that this condition in the law cannot be permitted to con-
tinue. The concept of "being sworn" and of an "oath" has had, as we
have seen, a confused historical origin. It has been supported on religious
grounds to sanctify the evidentiary process, and it has been rejected on
religious grounds. In deference to religious beliefs, a witness may be per-
mitted either to affirm or, if he declares that an oath is not binding on
his conscience, to take an oath in a manner different from that prescribed
generally for use in the courts, and with such ceremonies as he declares
to be binding. To determine the proper ceremonies is often a difficult
matter, and the whole process is impractical in the daily administration
of justice.

We have come to the conclusion that a form of affirmation should
be adopted that can be subscribed to and respected by those of all faiths,
and by agnostics or atheists. We recommend that the form should be
simple and reflect the solemnity of the occasion. It should apply to any

122

occasion when an oath is or may be required to be taken by an adult
witness in any proceeding. The sanctions of perjury would attach to
false affirmations. In addition, a form of affirmation should be substituted
for the oath, wherever an oath may be lawfully taken under provincial
legislation. We set out our specific recommendations later.

5. Evidence of Children of Tender Years

At common law, no evidence could be received unless given under
oath. A person fourteen years of age or over was presumed to be quafified
to take an oath. A child under fourteen years of age, however, was not
presumed to have the capacity to take an oath, and could not give
evidence, except in certain special cases such as rape, unless it was deter-
mined, upon inquiry, that he met the proper quaUfications to be sworn.

Omychund v. Barker^^ is the classic common law case. The qualifi-
cation for a witness to give evidence under oath was held to be a belief
in a God who both rewards and punishes. In R. v. Brasier,^^ twelve judges
were unanimous in the opinion that no testimony could be legally re-
ceived except under oath. They were of the opinion that a child under
seven would be competent to give evidence if she appeared on strict
examination to possess a sufficient knowledge of the nature and conse-
quences of an oath, but that admissibility depends upon the sense and
reason the child entertains of the danger and impiety of falsehood. In R.
V. Braddon and Speke,^'^ the questioning to determine the qualification of
the child went as follows:

A.G.: What age are you of?

Witness: I am thirteen, my lord.

A.G. : Do you know what an oath is?

Witness: No.

L.C.J. : Suppose you should tell a lie, do you know who is the
father of liars?

Witness: Yes.

L.C.J. : Who is it?

Witness: The devil.

L.C.J. : And if you should tell a lie, do you know what would
become of you?

Witness: Yes.

L.C.J. : What if you should swear to a lie? If you should call
God to witness to a lie, what would become of you then?

Witness: I should go to hell-fire.

30(1745), 1 Atk. 21,26E.R. 15.

31(1779), 1 Leach C.C.L. 199, 168 E.R. 202.

32(1684), 9 State Trials 1127, at pp. 1148-49.

123

It would appear that the emphasis was on the consequence of swearing
falsely, and that the nature of an oath was assumed by the courts to
involve submission to divine judgment.

Since 1893, provision has been made in Canada to receive the
evidence of a child of tender years (that is, a child under 14 years of
age) not under oath in defined circumstances:

(1) In any legal proceeding where a child of tender years is
tendered as a witness, and such child does not, in the opinion of the
judge, justice or other presiding officer, understand the nature of
an oath, the evidence of such child may be received, though not
given upon oath, if, in the opinion of the judge, justice or other
presiding officer, as the case may be, such child is possessed of
sufficient intelligence to justify the reception of the evidence and
understands the duty of speaking the truth.

(2) But no case shall be decided upon such evidence alone,
and such evidence must be corroborated by some other material
evidence. ^^

The provision has remained in the Canada Evidence Act,^^ and identical
legislation applicable to proceedings over which the Legislature has
jurisdiction was adopted in Ontario in 1959. ^^

This legislation requires the presiding officer to make three inquiries.
First, does the child understand "the nature of an oath"? If he does, he
may give evidence under oath and no further inquiry is required. If he
does not, two further matters must be determined before his evidence
may be received not under oath:

(1) Is the child possessed of sufficient intelligence to justify
the reception of the evidence; and

(2) Does he understand the duty of speaking the truth?

These inquiries are quite different. The first concerns the intelligence of
the child, and the second concerns his appreciation of his "duty of
speaking the truth". The earlier Canadian cases, which relied on English
cases interpreting the common law test as to whether a child should be
permitted to give evidence under oath, drew a clear distinction between
understanding "the nature of an oath" and understanding "the duty of
speaking the truth". As we shall see, this distinction has been judicially
narrowed.

In Sankey v. The King^^ the Supreme Court of Canada considered
the extent of the inquiry that must be made to determine that a child of

33S.C. 1893, 56 Vict., c. 31, s. 25.

34R.S.C. 1970, c. E-10, s. 16.

35S.O. 1959, c. 31; see now R.S.O. 1970, c. 151, s. 19. As a result of a Report
of the Council of Judges, The Evidence Act (Ontario) was amended to adopt
the relevant language of the Canada Evidence Act. Prior to the amendment,
the common law prevailed in the province and there was no provision for a
child under 14 years of age to give evidence not under oath in civil cases.

36[1927] S.C.R. 436.

124

tender years "does not understand the nature of an oath" before he may
be permitted to give evidence not under oath. The following is the record
of the examination of the child in question, Haldis Sandahl.

Mr. Johnson: I think that if you put her in a chair in the box;
we haven't a high chair. This child, my lord, is of
tender years, nine years old and I tender her
evidence under the provisions of section 16 of the
Canada Evidence Act.

Mr. Patmore

I understand that this is because this child does not
understand the nature of an oath.

Mr. Johnson: That is for the judge to satisfy himself.

The Court: Q. Where do you live, Haldis? —

A. Port Essington.

Q. See how loudly you can speak. How old are
you?

A. Eight — ten.

Q. And what is your daddy's name?

A. Mr. Sandahl.

Q. What does he do, does he live up there?

A. Yes.

Q. And your mother, does she live with you too?

A. Yes.

Q. You go to school?

A. Yes.

Q. Can you read a little bit?

A. Yes.

0. And write your own name?

A. Yes.

Q. Do you know that it is very bad for little girls
to tell lies?

A. Yes.

Q. Did they tell you that little girls must never
tell stories? Do you understand that?

A. Yes.

Q. You must always tell the truth?

A. Yes.

125

Q. We want you to answer the questions these
men ask you and be sure to tell the truth. ^^

Following this interrogation the child had been permitted to give evi-
dence at trial not under oath.

Anghn, C.J.C, made it very clear that the duty of the presiding
judge to satisfy himself that the child did not understand the "nature
of the oath" was quite distinct from his duty to satisfy himself that "she
was possessed of sufficient intelligence to justify the reception of her
evidence", and that she understood "the duty of speaking the truth". He
said:

Now it is quite as much the duty of the presiding judge to as-
certain by appropriate methods whether or not a child offered as a
witness does, or does not, understand the nature of an oath, as it
is to satisfy himself of the intelligence of such child and his appreci-
ation of the duty of speaking the truth. On both points alike he is
required by the statute to form an opinion; as to both he is entrusted
with discretion, to be exercised judicially and upon reasonable
grounds. The term 'child of tender years' is not defined. Of no
ordinary child over seven years of age can it be safely predicated,
from his mere appearance, that he does not understand the nature of
an oath. Such a child may be convicted of crime. Criminal Code,
sections 17-18. A very brief inquiry may suffice to satisfy the judge
on this point. But some inquiry would seem to be indispensable. The
opinion of the judge, so formed, that the child does not understand
the nature of an oath is made by the statute a pre-requisite to the
reception in evidence of his unsworn testimony. With the utmost
respect, in our opinion there was, in this instance, no material before
the judge on which he could properly base such an opinion. He
apparently misconceived the duty in this regard imposed upon him
by the statute. ^^ [Emphasis added]

The conviction was quashed on the ground that the unsworn evidence of
the child was admitted.

In Rex V. Antrobus^^ the British Columbia Court of Appeal dealt
with a case in which a child of nine was permitted to give sworn evidence.
The court made a comprehensive review of the requirements necessary to
establish the capacity of a child to take an oath, and concluded that,
before a child of tender years may be sworn, the test in the Brasier case
must be met; that is, that the child must appear to possess, on strict
examination by the court, "sufficient knowledge of the nature and con-
sequences of an oath", and that the admissibility of children to give
evidence under oath depended upon "the sense and reason they enter-
tained of the danger and impiety of falsehood which was to be collected
from their answers to questions propounded to them by the Court"."*^ In

^Vbid., at pp. 438-39.

^^Ibid., at pp. 439-40.

39[1947] 2 D.L.R. 55, [1947] 1 W.W.R. 157.

^Ibid., at p. 57, quoting R. v. Brasier, footnote 31 supra, at pp. 199 and 201

126

R. V. Lebrun^^ the Ontario Court of Appeal followed the judgment of the
British Columbia Court of Appeal in the Antrobus case.

A different Hne of reasoning was developed in R. v. Bannerman^'^
by the Manitoba Court of Appeal. The Antrobus and Lebrun cases were
not followed. Dickson, J. A., after reviewing these cases, held that, in
considering whether a child understood the nature of the oath, the court
was not called upon to consider whether the child understood the "con-
sequences of the oath". He pointed out that these words are not con-
tained in the Canada Evidence Act. However, when one examines the
history of the oath, the consequences were traditionally an important part
of its nature. To be competent to take an oath involved an acknowl-
edgment of a Supreme Being that punished. The court arrived at this
conclusion:

With the greatest respect, it appears to me that the Canadian Courts,
in Rex v. Antrobus, . . . and in cases following that decision, have
fallen into error, firstly in adopting the word 'consequences' from
Rex V. Brasier, . . . and giving insufficient recognition to the absence
of that word in s. 16 of the Canada Evidence Act, and, secondly,
having adopted the word, interpreting it to mean 'the spiritual
retribution which follows the telling of a lie' rather than 'the
solemn assumption before God of a moral obligation to speak the
truth'. In my view neither case law nor statute requires inquiry as
to the child's capacity to know what befalls him if he tells a lie under
oath.43 [Emphasis added]

If this interpretation is to be adopted, "the solemn assumption before
God" surely contemplates a belief in God on the part of the child. This
would often involve a complex theological discussion, inappropriate for
the courtroom, and one in which most judges and lawyers are incompe-
tent to participate. It is not clear what the learned judge meant by the
last sentence quoted. In its context it would appear to refer to divine
sanctions. However, it is open to the interpretation that the court is not
concerned with an inquiry into "the child's capacity to know" the legal
consequences of giving false evidence.

In R. V. Taylor^^ Dickson, J. A., in giving the judgment of the Mani-
toba Court of Appeal moved farther away from the inquiry involving
religious belief. In that case the inquiries that took place made some
reference to attending Church, but dealt mainly with the obligation to
tell the truth. The learned judge concluded:

After careful consideration of the evidence I am not prepared to
say that the Judge erred in permitting these witnesses to be sworn.
It cannot be denied that the child witnesses were not examined on
their respective religious beliefs or knowledge but it would seem to
me there was evidence upon which the Judge could properly conclude

4i[1951] O.R. 387.

42(1966), 48 C.R. 110, 55 W.W.R. 257; aff'd by the Supreme Court of Canada

without reasons (1967), 50 C.R. 76, 57 W.W.R. 736.
43(1966), 48 C.R. at p. 138, 55 W.W.R. at p. 285.
44(1970), 75 W.W.R. 45, 1 C.C.C. (2d) 321 (Man. C.A.).

127

that each of the child witnesses understood the moral obligation of
speaking the truth ."^^ [Emphasis added]

It appears that, in the opinion of the court, the words "understand the
nature of an oath", as used in the Canada Evidence Act, are synonymous
with the words "understand a moral obligation to tell the truth".

The law concerning the admissibility of evidence of children of tender
years was again considered by the Supreme Court of Canada in R. v.
Truscott.'^^ Eight judges concurred in the majority opinion; Hall, J. dis-
sented. After referring to the passage we have quoted from the Sankey
case, the majority of the Court went on to deal with the evidence of
two children who were permitted to give evidence under oath, in this
way: "We are of the opinion that the learned trial judge properly exer-
cised the discretion entrusted to him and that there were reasonable
grounds for his concluding that both [children] understood the moral
obligation of telUng the truth" .^^ In a later case, Horsburgh v. The
Queen,'^^ this passage was adopted by Spence, J., as the correct interpre-
tation of the law. It follows, therefore, that, at least with respect to the
evidence of children, through a process of judicial interpretation, the
oath, as it is administered in Canadian courts, has lost much, if not all,
of the historic religious attributes attached to it at common law. If the
oath is acknowledged as "a moral obligation of telling the truth", with
liability for penal sanctions for an intentional failure to do so, then any
inherent distinction between an oath and an affirmation ceases to exist.

The interpretation which the courts have placed on the words
"understand the nature of an oath" appears to produce a perplexing result.
Where a child under 14 is called as a witness, three inquiries by the
presiding officer may be necessary: (1) Does the child "understand the
moral obhgation of telling the truth"? If he does, no further inquiry is
necessary, and he may give evidence under oath. If he does not, two
further inquiries are required under the statute to determine if he may
give evidence not under oath: (2) Is the child possessed of sufficient
intelhgence to justify the reception of his evidence, and (3) Does he
understand the duty of speaking the truth?

Rarely would a child who does not qualify under (2) qualify under
(1). If the child does quahfy under (2), the court must go on to deter-
mine if he "understands the duty to speak the truth". But it would appear
from the interpretation placed by the courts on the words "understand the
nature of an oath", that is, "the moral obligation of telling the truth",
that the matter has already been decided. One of the accepted meanings
of "duty", as set out in the Oxford English Dictionary, is "moral obliga-
tion". Understanding the moral obligation to tell the truth is the test re-
quired under (1). If this interpretation is correct, it follows that a child
tendered as a witness who is "possessed of sufficient intelligence to justify
the reception of his evidence" and who "understands the duty of speaking

45(1970), 75 W.W.R. at pp. 50-51, 1 C.C.C. (2d) at pp. 327-328.
46[1967] S.C.R. 309.
^Vbid., at p. 368.
48[1967] S.C.R. 746, 777.

128

the truth" must quahfy as a witness who may give evidence under oath. On
this reasoning, there is now no authority for receiving the unsworn evi-
dence of a child. No doubt the courts did not intend to produce this
result when, by interpretation, the meaning of the words "the nature of
an oath" as used in the statute was changed from the traditional meaning
involving religious beliefs. This, however, appears to be the result. We
think legislative action is imperative.

The form of affirmation that we recommend, if adopted, would
resolve many of the difficulties and anomalies that now exist, but not
all. For adults it would be rational and adequate. However, for children,
more is required. The scheme of the statute now recognizes that there
must be corroboration of the evidence of children under fourteen years
of age who cannot meet the test required to qualify them to take an oath,
but who can meet the test required to qualify them to give unsworn
evidence. We agree that this should be the case. We do not think that it
can be assumed that all children under fourteen years of age are capable
of making the proposed affirmation. Some provision must be made for
an inquiry by the court, before a child under fourteen is qualified to give
evidence as an adult.

A child under seven years of age may not be convicted of any
offence."^^ Nevertheless, the law recognizes that a child under seven may
give evidence under oath in certain circumstances.^^ We think it is irra-
tional to permit a child under seven, against whom sanctions of perjury
cannot be invoked, to give evidence under oath. In such case the oath has
no real significance. On the other hand, the statute recognizes that a child
under seven may give evidence not under oath if, in the opinion of the
presiding officer, the child "is possessed of sufficient intelligence to justify
the reception of the evidence and understands the duty of speaking the
truth".

We think provision should be made that, wherever a child under
seven is presented as a witness, the court should conduct an inquiry to
determine if the child is possessed of sufficient intelligence to justify the
reception of his evidence and to ascertain if, in the opinion of the court,
the child understands that he should tell the truth. In such cases he should
be asked to identify himself and to state, "I promise to tell the truth".

The determination of the competence of a child seven years of age
and over but under fourteen, to take the affirmation prescribed for adults
should be made on a similar basis to that laid down in the Criminal Code
for the determination of whether a child seven years of age or more but
under the age of fourteen years is competent to commit a criminal offence.
If a child of the prescribed age is not competent to commit the offence of
perjury, it must necessarily follow that his evidence should not be received
under the affirmation prescribed for adults which carries with it the
sanctions of perjury. On the other hand, if such a child is competent to
commit perjury it follows that he should qualify as an adult witness. The
relevant section of the Criminal Code reads as follows:

^"^Criminal Code, R.S.C. 1970, c. C-34, s. 12.

50i?. V. Brasier (1779), 1 Leach C.C.L. 199, 168 E.R. 202; Strachan v. McGinn,
[1936] 1 W.W.R. 412.

129

No person shall be convicted of an offence in respect of an act or
omission on his part while he was seven years of age or more, but
under the age of fourteen years, unless he was competent to know
the nature and consequences of his conduct and to appreciate that
it was wrong. 51

We have come to the conclusion that where a child who is seven
years of age or more and under the age of fourteen is tendered as a
witness, the presiding officer should be required to conduct an inquiry
to determine whether, in his opinion, the child is competent to know the
nature and consequences of his conduct and to appreciate that it is wrong
to give false evidence. If the presiding officer so finds, the evidence of the
child should be received after he has made the affirmation in the form
we recommend for adults. If the presiding officer does not so find, the
evidence of the child may be received under the declaration recommended
for a child under the age of seven if the presiding officer finds that he
meets the test we have set out for children under seven. There should
be a provision that no case should be decided on the uncorroborated
evidence of a witness who has not made the affirmation prescribed for
an adult.

6. Conclusion

1. The historical common law conception of the oath is not now
appropriate for use in the courts or on other occasions where an
oath is now required.

2. The oath as it is administered has discriminatory aspects rooted
in religious beliefs that are unacceptable to many people.

3. Authoritative decisions of the courts have declared the "nature
of an oath" in Canadian law to be a "moral obligation to speak
the truth" attended with sanctions. If this is generally true for an
oath taken by a witness, it must be equally true that the nature
of an oath taken on other occasions is a moral obligation to abide
by the terms of the oath. This, in fact, is the express obHgation
imposed today on those who are permitted to affirm.

4. A form of affirmation should be substituted for the oath, wherever
an oath may be lawfully taken in Ontario.

5. An affirmation may be administered by requiring a person to
repeat "I, A.B., solemnly affirm (followed by the substance of the
affirmation)". In the case of a witness, the substance of the
affirmation should be: "I will tell the truth, the whole truth and
nothing but the truth well knowing that it is a serious offence to
give false evidence with intent to mislead the court".

6. The sanctions of perjury should attach to a false affirmation.

7. Before the recommendations made in this chapter are imple-
mented an effort should be made to provide a form of affirma-
tion that would be the same in substance in both civil and criminal
cases. This is highly desirable but not essential. It is not the

^^Criminal Code, R.S.C. 1970, c. C-34, s. 13.

130

case now. No form of affirmation is provided for a witness under
The Evidence Act (Ontario), while one is provided in the
Canada Evidence Act.

8. Pending the revision of the statutes, the provisions of The Inter-
pretation Act (Ontario) 5^ should be reviewed and any necessary
amendments made as a transitional means to reconcile the terms
"oath" and "swear" or "sworn" as used in different statutes with
the term "affirm" or "affirmation" used in the amendment we
recommend to The Evidence Act.

Section 30' of The Interpretation Act provides:

In every Act, unless the context otherwise requires,

26. 'oath', in the case of persons allowed by law to affirm
or declare instead of swearing, includes affirmation and
declaration;

36. 'swear', in the case of persons for the time being al-
lowed by law to affirm or declare instead of swearing,
includes affirm and declare, and 'sworn' has a corres-
ponding meaning.

7. Recommendation

We recommend that sections 17, 18 and 19 of The Evidence Act
be repealed and replaced with the following section:

(1) Except as provided in subsections 2 and 3, every person
presented as a witness in a proceeding shall before testifying identify
himself and make the following solemn affirmation:

I solemnly affirm that I will tell the truth, the whole truth, and
nothing but the truth, well knowing that it is a serious offence
to give false evidence with intent to mislead the court.

(2) Where a child seven years of age and under fourteen is
presented as a witness in a proceeding, the presiding officer shall
conduct an inquiry to determine if, in his opinion, the child is pos-
sessed of sufficient intelligence to justify the reception of his evi-
dence, and to determine if he is competent to know the nature and
consequences of giving false evidence and to know that it is wrong
and where he so finds, he shaU permit the child to give evidence upon
making the solemn affirmation set out in subsection 1.

(3) Where a child who is,

(a) under seven years of age; or

(b) seven years of age and under fourteen years, and who
does not qualify as a witness under subsection 2,

is presented as a witness in a proceeding, the presiding officer shall
conduct an inquiry to determine if in his opinion the child is pos-

52R.S.O. 1970, c. 225, ss. 30.26, 30.36.

131

sessed of sufficient intelligence to justify the reception of his evidence,
and understands that he should tell the truth, and where he so finds,
he shall permit the child to give evidence upon stating:

I promise to tell the truth.

(4) No case shall be decided upon the evidence of a child
who has qualified as a witness under subsection 3 unless his evidence
is corroborated by some other material evidence.

(5) In all other cases where a person might heretofore have
lawfully taken an oath, he shall hereafter be required to make a
solemn affirmation in the following form:

I, A.B., solemnly affirm (followed by the substance of the
affirmation).

(6) Where an oath is inadvertently administered after this Act
comes into force in a form that would have been binding had this
Act not been passed, it has the same force and effect as a solemn
affirmation made under this section. [Draft Act, Section 3.]

CHAPTER 9

PRIVATE PRIVILEGE

1. Introduction

The rules of private privilege are exceptions to the general rule that
a competent witness sworn to testify is obliged to answer all relevant
questions. Where a privilege is lawfully exercised, relevant evidence is
excluded on the basis that the interest in securing the truth is neither
absolute, nor always paramount to other conflicting interests which the
law of privilege safeguards. The social values of loyalty, trust and confi-
dence, protected by a legal privilege, are not easily weighed against the
procedural goals of efficient and accurate fact-finding. But, in determin-
ing whether a privilege should be recognized in law, this must be done.
Private honour alone has never been a deciding factor.

2. Marital Privilege

The matter of privilege concerning communications between spouses
was not something that required consideration at common law because
both parties and their spouses were incompetent to testify for or against
one another. 1 When the rule of incompetence of spouses of parties was
abolished by the Evidence Amendment Act, 1853^ a privilege against dis-
closure of communications between spouses was created in terms similar
to those contained in section 11 of The Evidence Act (Ontario)^ which
provides :

11. A husband is not compellable to disclose any communica-
tion made to him by his wife during the marriage, nor is a wife
compellable to disclose any communication made to her by her
husband during the marriage.

Although the reason for framing the privilege in these terms is un-
clear, the foundation of the privilege has been asserted to be (1) the
common law concept that the spouses are one, and (2) the suspicion of
natural bias arising out of affection between the spouses. In addition, two
justifications for the continued existence of marital privilege may be
advanced:

1. the privilege promotes conjugal confidences by encouraging
candour and frankness in marital communications;

2. it preserves marital harmony by avoiding the discord which might
arise if spouses were compelled to reveal the content of marital
communications.

^Rumping v. D.P.P., [1964] A.C. 814. For a contrary view, see 8 Wigmore,

Evidence, §§2333, 2334 (McNaughton Rev. 1961).
216 & 17 Vict., c. 83, s. 3.
3R.S.0. 1970, c. 151. A similar section is contained in the Canada Evidence Act,

R.S.C. 1970, c. E-10, s. 4(3).

133

134

Perhaps because of the absence of agreement concerning the policy
the law should seek to advance, the law governing marital privilege is
uncertain and inconsistent; indeed it may be seriously contended that the
existence of the privilege neither encourages candour during marriage nor
protects marital harmony.

(a) Holder of the privilege

The purpose of the privilege should determine its nature and who
should hold it. However, there has been considerable judicial disagree-
ment as to what the purpose of the privilege is. In Rumping v. D.P.P.^
the House of Lords was sharply divided on the pohcy underlying the
doctrines of marital incapacity and marital privilege. The issue in the
case was whether a letter written by the accused to his wife and inter-
cepted before it reached her, was in law privileged. After discussing the
common law. Lord Radcliffe, dissenting, said:

So much then for the 'legal policy of marriage' in relation to the
law of evidence. Its aim was, I think, the general one 'to ensure
conjugal confidence' and it rested on a much wider principle than
that of excluding witnesses on the ground of interest in the subject-
matter of a suit.5

His Lordship came to the conclusion that it was a recognized principle
of common law that communications between spouses should be protected
from being divulged in evidence.^

The other law Lords did not agree, and held that there never was
any rule at common law rendering inadmissible communications between
spouses during the marriage. Lord Morris of Borth-y-Gest said:

The conclusion that I deduce from a consideration of the authorities
is that prior to the legislative changes of the last century . . . there
neither existed nor was there need for any separate rule such as
is suggested, and that when the legislative changes were made they
were on lines which negatived the existence of any such rule. There
was no need for any such rule because the general rule [incompe-
tency of spouses] was adequate to give security against the betrayal
of confidences between husband and wife. So also the general rule
protected a spouse against the embarrassment of having to give
evidence adverse to the interest of the other spouse."^

The Evidence Amendment Act, 1853, which is almost identical to
section 11 of the Ontario legislation, provided that the recipient of a
communication between spouses is not compellable to disclose the com-
munication. Discussing the question of who is entitled to exercise the
privilege. Lord Morris of Borth-y-Gest stated:

My Lords, it is to be noted that it was not enacted that communi-
cations between husbands and wives should be inadmissible. . . .

^Supra, footnote 1.
5lbid., at pp. 840-841.
^Ibid., at p. 843.
'^Ibid., at pp. 848-849.

135

After 1853 a husband (whether or not he or his wife was a party
in the action) was not compellable to disclose a communication made
to him by his wife during the marriage. But if he wished to do so
he could. That was quite inconsistent with any rule making such a
communication inadmissible in evidence. A privilege against dis-
closure was given but it was one that could be waived: if waived it
would be waived not by the spouse making the communication but
by the spouse to whom it was made .... [It] would appear that
the enactment would protect a husband or wife from being obliged
to disclose a communication made to him or her by the other but
would not protect him or her from being obliged to disclose a com-
munication made by him or her to the other.^

Thus it is the recipient of the marital communication who is not com-
pellable. The communicator, or anyone else who knows of the communica-
tion, is compellable.

If the purpose of the privilege is to secure the confidentiality of
communications between spouses, it is difficult to understand why the
privilege is that of the recipient. In Rumping v. D.P.P., Lord Reid said:

It is a mystery to me why it was decided to give this privilege to
the spouse who is a witness: it means that if that spouse wishes to
protect the other he or she will use this privilege to conceal com-
munications if they would be injurious, but on the other hand a
spouse who has become unfriendly to the other spouse will use this
privilege to disclose communications if they are injurious to the
other spouse but conceal them if they are helpful.^

(b) Requisite Relationship

If the purpose of the privilege is to encourage and support candour
and confidence as part of the marital relationship, the privilege should
attach only to communications made during a subsisting marriage, and
should continue to attach to those communications after divorce or the
death of one of the parties. This is the view favoured by Wigmore, who
would also Hmit the privilege to confidential communications. ^^ If, on the
other hand, the supporting policy is to avoid creating marital disharmony
and embarrassment as a result of a spouse being called as a witness in
judicial proceedings, the status of the marriage at the time of the communi-
cation should be irrelevant. A subsisting marriage at the time disclosure
is sought, should be the determining factor.

Section 1 1 provides that the spouses are not compellable to disclose
any communication made "during the marriage". No English or Canadian
court has extended the privilege to include communications made prior to
the marriage and claimed during the existence of marriage. ^^ If the privi-

^Ibid., at pp. 858-859.
^Ibid., at pp. 833-834.

lt>8 Wigmore, Evidence, §§2332-2341 (McNaughton Rev. 1961).
iiThe issue has not, however, arisen for decision. The Quebec Court of Queen's
Bench denied the privilege in R. v. Coffin, but the woman with whom the
accused lived at all material times had not become his wife by the time of
trial: (1954), 19 C.R. 222.

136

lege exists to encourage candour and confidentiality within the marriage,
there would seem to be no justification for extending the privilege to
communications made prior to the marriage. If, however, the purpose of
the privilege is to preserve marital harmony, it may be argued that the
privilege should extend to communications made prior to the marriage
where the privilege is claimed during the marriage.

Although the case law on the subject is not absolutely clear, the
weight of authority indicates that marital privilege may not be claimed
after the dissolution of the marriage by annulment, divorce or death of
a spouse. In Connolly v. Murrell,^^ the defendant in an action brought
by his wife's relatives against him in his capacity as administrator of his
wdfe's estate, testified as to conversations with his wife concerning the
ownership of property which the plaintiffs sought to have declared the
property of the deceased and distributed as part of her estate. Upon being
asked further questions concerning conversations between himself and his
wife relative to the property, he declined to answer on the ground of
marital privilege. Street, J., held that the defendant was not rendered
compellable to disclose communications between himself and wife at one
period of their coverture, merely because he was willing to disclose com-
munications which took place at another. Referring in the course of judg-
ment to the predecessor of section 11 of the Ontario Act, Street, J., said:

... I am asked to order the defendant to disclose a communication
made to him by his wife during the marriage. I see no way of doing
so unless I were to disregard the statute utterly. . . . [T]he death of
the husband or the wife did not remove the seal from the lips of the
survivor; even their divorce did not compel him to break their
silence. 13

In Shenton v. Tyler^'^ the English Court of Appeal considered whe-
ther, in civil cases, the privilege terminates with the death of one of the
spouses. In that case, the plaintiff sought to administer interrogatories to
the defendant in order to establish that the defendant's late husband had
created a trust in her, in favour of the plaintiff. The defendant contended
that she was privileged from answering the interrogatories on the ground
that they were based on communications between her and her late
husband. Sir Wilfrid Greene, M.R., discussed the common law with
respect to communications between husband and wife and the effect of
section 3 of the English Evidence Amendment Act, 1853. He came to the
conclusion that there was no common law privilege concerning communi-
cations between husband and wife, and that the provisions of section 3
did not create a privilege which extended after the marriage was dis-
solved by divorce or death.

In Regina v. Kanester}^ a. decision of the British Columbia Court
of Appeal, the accused appealed his conviction on the ground, among
others, that his former wife had been compelled to testify as to com-

^2(1891), 14 P.R. 187, affirmed (1891), 14 P.R. 270.

^^bid., at p. 188.

14[1939] Ch. 620.

15(1966), 55 W.W.R. 705 (B.C.C.A.); [1966] S.C.R. v., 57 W.W.R. 576.

137

munications made by the accused to her during the marriage. MacLean,
J. A., in a dissenting judgment, considered the effect of section 4(3) of the
Canada Evidence Act, which is essentially the same as section 11 of the
Ontario Act, and followed Shenton v. Tyler. He said:

In the case at bar certain communications were made by the
appellant to his then wife Marilyn Ruth Kanester while the marriage
still subsisted. She was not his wife at the time she gave her evidence
and it follows that, not then being a wife, section 4(3) of the
Canada Evidence Act does not apply. ^^

The majority of the Court, however, allowed the appeal on other grounds
and quashed the conviction.

On appeal to the Supreme Court of Canada, the majority judgment
of the Court of Appeal was reversed, and the original conviction and
sentence restored. Written reasons were not given, but Taschereau, C.J.C.,
said at the conclusion of argument, "We find no merit in the points
argued before us on behalf of the respondent. We are in agreement with
the reasons and conclusion of MacLean, J. A.".

It would appear, therefore, that the Supreme Court approved the
decision in Shenton v. Tyler and that, Connolly v. Murrell notwithstand-
ing, a former spouse may be compelled to testify in civil cases concerning
communications made by his or her deceased or divorced spouse during
marriage. 1"^

To deny a former spouse the right to claim privilege after the
termination of the marriage may be consistent with the policy objective
of preserving marital harmony. If, however, the policy justification for
the privilege is the encouragement of candour and confidentiality within
marriage, then, logically, the privilege should survive the dissolution of
the marriage in order that the communication may be made with the
assurance that its disclosure cannot be compelled even after the marriage
has ceased to exist.

The question, what constitutes a "communication" protected by
marital privilege, was considered by the Supreme Court of Canada in
Gosselin v. The King}^ The accused was charged with murder. He was
found to have blood stains on his underclothing. At trial, his wife was
compelled to testify that she had discovered the blood-stained under-
clothing shortly after her husband left the premises, despite her claim
that this discovery was a privileged communication. The relevant pro-
vision of the Canada Evidence Act, as it then was, read:

^^Ibid., at p. 712.

I7ln criminal proceedings, however, it would appear that a former spouse remains
incompetent to testify against his or her ex-spouse after divorce: R. v. Algar,
[1954] 1 Q.B. 279; Monroe v. Twisleton (1802), Peake Add. Cas. 219, 170
E.R. 250; see also R. v. Cooper (No. J) (1975), 5 O.R. (2d) 59 (H.C.J.) .
For a discussion of this anomaly, see: Cross, Evidence (4th Ed. 1974), at pp.
147, 158-160.

18(1903), 33 S.C.R. 255.

138

... no husband shall be competent to disclose any communication
made to him by his wife during their marriage, and no wife shall be
competent to disclose any communication made to her by her
husband during their marriage. ^^

On appeal, the majority of the Supreme Court of Canada held that
the wife's discovery was not a "communication" within the marital
privilege section of the Canada Evidence Act. Girouard, J., dissenting,
took the view that the privilege should be held to cover the "whole situ-
ation" and not only words, letters or gestures:

... the word 'communication' is large enough to comprehend all
kinds of relations between husband and wife, whether de verbo,
de facto or de corpore?^

Mills, J., also dissenting, agreed and said that "communication" included
"... anything which she has learned from him as the result of their
marital relations. It is not simply what she has learned by words spoken
to her".2i

On any view of the policy underlying marital privilege, the majority
definition of communications protected by the privilege appears unneces-
sarily restrictive. If the privilege seeks to encourage confidences between
spouses, it would appear artificial to exclude from the ambit of protected
communications, information obtained as a result of the marital relation-
ship. Similarly, it may be said that it is as disruptive to marital harmony
to require a spouse to disclose information obtained as a result of the
marital relationship, as it is to require disclosure of a conversation or
other protected communication.

(d) Proof of Privileged Communications

At present, communications between spouses are not generally in-
admissible in evidence; as we have indicated, the privilege extends only to
the recipient spouse and must be claimed. Communications between hus-
band and wife that have been intercepted or overheard may be proved by
evidence other than that of the spouse. ^^ To be consistent with the policy
objective of protecting marital communications, it may be argued that the
law should preclude proof of privileged communications in these circum-
stances.

In view of the foregoing, it is obvious that marital privilege, as
framed at present in Ontario, is ineffective: it neither protects marital
harmony nor encourages candour during marriage. Because the privilege
may be claimed by the recipient of the communication alone, and waived
at will by him, the communicating spouse can have no assurance that his
communication will not be divulged. Even if the recipient wishes to

^^Canada Evidence Act, 1893, 56 Vict., c. 31, s. 4; now R.S.C. 1970, c-E-10, s.
4(3). Although the section of the 1893 Act dealing with marital privilege has
been amended to substitute for the word "competent", the word "compellable",
the Gosselin decision would still appear to govern the law of Ontario.

20(1903), 33 S.C.R. 255, 270.

2llbid., at p. 283.

^^Rumping v. D.P.P., footnote 1 supra.

139

respect the communication, he or she may be compelled to disclose a
confidence if the marriage has terminated, or if the information obtained
does not fall within the definition of communications protected by the
privilege. Finally, if the communication is overheard or intercepted by a
third party, it is not protected by the law of marital privilege.

(e) Alternative Approaches to Reform

In certain American jurisdictions, the privilege belongs to the com-
municating spouse and may be waived by him alone.^^ This position is
clearly preferable to section 11 of The Evidence Act (Ontario), as the
communicating spouse is assured that his confidences will not be dis-
closed without his consent.

In our view, however, the privilege, if it were to be retained, should
be a joint privilege enabling either spouse to object to the disclosure of
marital communications. Such a provision is contained in the California
Evidence Code,^^ Section 980, which provides:

980. Privilege for confidential marital communications. Subject
to Section 912 and except as otherwise provided in this article, a
spouse (or his guardian or conservator when he has a guardian or
conservator), whether or not a party, has a privilege during the
marital relationship and afterwards to refuse to disclose, and to pre-
vent another from disclosing, a communication if he claims the
privilege and the communication was made in confidence between
him and the other spouse while they were husband and wife.

Under this section, the privilege belongs to both spouses, and enables
either spouse to refuse to disclose, and to prevent the other spouse from
disclosing, a confidential communication. Because the privilege exists only
if it is claimed, relevant evidence need not be withheld from the court
for the sole reason that a spouse is not available to consent to the dis-
closure of confidential communications. The privilege is subject to numer-
ous elaborately codified exceptions, reflecting the wide range of factual
circumstances in which a claim of privilege may be inappropriate.^^

In England, marital privilege was abolished by the Civil Evidence
Act 1968. The relevant section reads as follows:

Section 3 of the Evidence Amendment Act 1853, (which provides
that a husband or wife shall not be compellable to discuss any com-
munication made to him or her by his or her spouse during the
marriage) shall cease to have effect except in relation to criminal
proceedings. 2^

238 Wigmore, Evidence, §2340(1) (McNaughton Rev. 1961); American Law In-
stitute, Model Code of Evidence (1942), Rules 214, 215; Uniform Rules of
Evidence approved by the National Conference of Commissioners on Uniform
State Laws (1953), Rule 28.

24Cal. Evidence Code, §980 (West, 1968).

25/6/U, §§981-987.

26C/v// Evidence Act 1968, c. 64, s. 16(3).

140

This legislation implements the recommendation of the Law Reform
Committee in its Report on Privilege in Civil Proceedings?'' The Commit-
tee made the following case for abolition of marital privilege :

Marital Relationships: Communications between spouses

42. The Evidence (Amendment) Act 1853, which made spouses of
parties competent and compellable witnesses in most civil proceed-
ings, contained the following provision in section 3 :

'No husband shall be compellable to disclose any communi-
cation made to him by his wife during the marriage, and no
wife shall be compellable to disclose any communication made
to her by her husband during the marriage'.

This curious provision, which is repeated in section 1(d) of the
Criminal Evidence Act 1898 with reference to criminal proceedings,
was presumably intended to prevent use being made of admissions
made by one spouse to the other, but if so it gives the liberty to
disclose to the spouse in whom confidence was reposed and not to
the spouse who reposed the confidence. The communicator has no
right to prevent the spouse to whom the communication was made
from waiving the privilege. This does not make sense. The Model
Code and the Uniform Rules of Evidence in the United States make
the privilege that of the communicator alone and exclude the privilege
in actions between spouses. The Indian Evidence Act, section 122,
makes the privilege a joint one requiring waiver by both spouses and
also excludes the privilege in actions between the spouses and some
criminal proceedings. But there are practical disadvantages in mak-
ing the privilege a joint one. One of the spouses may not be present
or readily available when the claim for privilege arises. In such a
case the evidence would be shut out even although the absent spouse,
if asked, would have had no objection to the disclosure. Presumably
the absence of the consent of a deceased spouse would be irrelevant,
but what is to happen when the marriage between the spouses is
dissolved? We see no easy solution to these problems.

43. We have no doubt that this statutory privilege ought to be
altered. The decision whether there should be any absolute privilege
at all involves a value judgment and depends upon the social and
religious importance which one attaches to the institution of mar-
riage. If a privilege for communications between spouses were to be
retained, we think that it should clearly be that of the communicator
and waivable by the communicator alone. There can be no breach
of marital confidence if the spouse who made the communication is
veiling that it should be disclosed. There would, however, have to
be a provision that the privilege should not apply in proceedings
between spouses. On the other hand, there is, we think, great force in
the contention that such a privilege in civil actions other than actions

27Law Reform Committee, Sixteenth Report, Privilege in Civil Proceedings,
Cmnd. 3472, (1967); the Criminal Law Revision Committee in its Eleventh
Report on Evidence (General), Cmnd. 4991, (1972) recommended that the
privilege should also be abolished in criminal proceedings: see p. 106.

141

between spouses is of little practical importance and would have a
minimal effect upon marital relations. It is unrealistic to suppose
that candour of communication between husband and wife is influ-
enced today by section 3 of the Evidence (Amendment) Act 1853,
which, as we have pointed out, does not ensure that marital confi-
dences will be respected, or would be enhanced tomorrow by an
amendment of the law on the lines indicated above. Other family re-
lationships, such as those between parent and child, are equally close,
yet it has never been suggested that communications between parent
and child should be privileged. On the whole, we think that the rea-
sonable protection of the confidential relationship between husband
and wife is best left to the discretion of the judge and, we may add,
the good taste of counsel. We accordingly recommend that section 3
of the Evidence (Amendment) Act 1853 be repealed.^s

We agree with the conclusion of the English Law Reform Committee
concerning the utility of marital privilege. The privilege, as it exists at
present in Ontario, accomplishes neither of the policy objectives which
might justify its retention. Moreover, we are of the view that, even if the
privilege were altered by extending it to both the communicating and
recipient spouses and expanding the definition of communications pro-
tected by the privilege, its effect upon the matrimonial relationship would
be minimal. Any formulation of an altered or expanded privilege would
have to be subject to many exceptions, in order to prevent privilege from
being claimed in circumstances in which a claim would result in a mis-
carriage of justice, or would otherwise be clearly inappropriate. ^^

(f) Recommendation

For these reasons we have concluded that marital privilege should
be aboUshed. We therefore recommend that section 11 of The Evidence
Act (Ontario) be repealed.

(g) Comment and dissent of H. Allan Leal, Q.C.

I associate myself entirely with what my colleagues have written con-
cerning the shortcomings of the existing law regarding marital privilege.
With regret, however, I cannot agree with the solution which they propose.
The case for reform is clear but, in my view, the case for abolition of the
privilege has not been made.

It is certainly true that one cannot establish, or cannot establish
easily, the extent to which candour as between husband and wife and
the strengthening of the marital union is enhanced by the existence of
the marital privilege. It is equally true that one cannot judge accurately
the extent to which candour is indulged in because of the knowledge of the
provisions of section 1 1 of the Ontario Act. But this is as one would expect,
and the fact that the case cannot be documented does not mean that
the privilege does not serve a useful, indeed an essential, purpose. I

28Law Reform Committee, footnote 27 supra, at pp. 17-18.

29For example, a claim of privilege should not apply in proceedings between
the spouses or concerning the welfare of children. See also the exceptions to
marital privilege contained in the California Evidence Code, footnote 25 supra.

142

suspect we will know very quickly the unhappy consequences of removal
the moment that abolition is accomplished. I would prefer a power in
the court to apply the privilege on a balancing of interests, such as that
proposed in the Code recommended in the Report on Evidence by the
Law Reform Commission of Canada^^ but better still I would prefer the
retention of the privilege, as a right, with amendments as follows:

(i) that the privilege be altered by extending it to both the com-
municating and recipient spouses;

(ii) that the definition of communications be expanded;

(iii) that the privilege should continue to exist notwithstanding the
dissolution of the marriage, and

(iv) that the privilege should not apply in actions between husband
and wife.

For the above reasons, I favour the adoption in this jurisdiction,
of the relevant provisions of the California Evidence Code referred to in
the majority report. ^^

3. Questions concerning Sexual Intercourse

(a) Discussion

In Chapter 7, dealing with competence and compellability, we defer-
red our consideration of section 8(2) The Evidence Act (Ontario) provid-
ing for the competence of spouses to answer questions concerning marital
intercourse. For convenience we repeat section 8 of The Evidence Act
(Ontario) :

8. — (1) The parties to an action and the persons on whose behalf
it is brought, instituted, opposed or defended are, except as hereinafter
otherwise provided, competent and compellable to give evidence on
behalf of tiiemselves or of any of the parties, and the husbands and
wives of such parties and persons are, except as hereinafter otherwise
provided, competent and compellable to give evidence on behalf
of any of the parties.

(2) Without limiting the generality of subsection 1, a husband
or wife may in an action give evidence that he or she did or did not
have sexual intercourse with the other party to the marriage at any
time or within any period of time before or during the marriage. ^^

This provision in its original form was first introduced into the law
of Ontario in 1946.^3 jj^g legislation was designed to overrule the decision
of the House of Lords in Russell v. RusselL^"^ In that case, it was held
that the law of legitimacy included a rule of common law and public
policy to the effect that neither spouse was competent to give evidence
that would bastardize issue bom during the marriage. Therefore, a hus-

30Law Reform Commission of Canada, Report on Evidence (1975), at p. 79,

commenting on section 40 of the Draft Evidence Code.
3iCal. Evidence Code, §§980-987 (West, 1968).
32R.S.O. 1970, c. 151, s. 8.
33S.O. 1946, c. 25, s. 1.
34[1924] A.C. 687 (H.L.).

143

band was not allowed to testify that he had not had sexual access to his
wife during the relevant period. This evidence could only be given by
third parties. The rule, grounded upon general sentiments of decency,
was not confined to legitimacy proceedings, but applied to all proceedings
including divorce, and applied notwithstanding dissolution of the marriage
by death of one of the spouses, or divorce.

As a result of recommendations made concerning the rule in Russell
V. Russell, the law was amended in England by providing:

( 1 ) Notwithstanding any rule of law the evidence of a husband
or a wife shall be admissible in any proceedings to prove that marital
intercourse did or did not take place between them during any
period.

(2) Notwithstanding anything in this section or any rule of law,
a husband or wife shall not be compellable in any proceedings to
give evidence of the matters aforesaid.^^

The provision was re-enacted in the Matrimonial Causes Act 1965 as
follows :

The evidence of a husband or wife shall be admissible in any pro-
ceedings to prove that marital intercourse did or did not take place
between them during any period; but a husband or wife shall not
be compellable in any proceedings to give evidence of the matters
aforesaid. 36

It is to be observed that this provision is not restricted to proceedings
instituted in consequence of adultery.

It is suggested that the word "may", used in subsection (2) of sec-
tion 8 of the Ontario Act, and the phrase "without limiting the generality
of subsection 1" create ambiguity. Because it is uncertain whether spouses
may be compelled to give evidence of marital intercourse, it may be
argued that the section not only removes the rule of incompetency in
Russell V. Russell, but creates a new privilege.

If a new privilege is created, the section goes considerably beyond
both the facts in Russell v. Russell and the rule expounded by the majority
in that case. It is not confined to matrimonial causes, let alone to proceed-
ings where legitimacy is in issue. Not only does it remove the incompe-
tency of spouses who are litigants; it also confers a privilege on husbands
or wives who are witnesses, but who may not be parties. In other words,
it removes some obstruction to the judicial search for truth, but substitutes
more extensive obstructions which may be waived by either spouse
unilaterally.

35Law Reform (Miscellaneous Provisions) Act, 1949, 12, 13 & 14 Geo. 6, c. 100,

s. 7.
361965, c. 72, s. 43(1).

144

Following a recommendation of the Law Reform Committee, ^"^ the
statutory privilege was abolished in England in 1968.^^ The Committee
was of the opinion that, apart from legitimacy proceedings, the only justi-
fication for the privilege is that of delicacy. Moreover, in legitimacy
proceedings, either spouse can give evidence that marital intercourse did
not take place within the relevant period, and privilege may therefore
prove illusory. We do not think that experience in the courts today dic-
tates that a privilege based only on delicacy should continue to exist; such
a privilege should not exist in Ontario. A section should be substituted
which merely removes the rule in Russell v. Russell by providing that
persons should not be incompetent in circumstances covered by that rule.

( b ) Recommendation

We recommend that section 7(2) of The Evidence Act be amended
to provide:

In a proceeding a spouse is competent and compellable to give evidence
that he or she did or did not have sexual intercourse with the other
spouse to the marriage and a married person shall not be excused on
the grounds of privilege from answering questions tending to establish
that sexual intercourse did not take place between such person and
the other party to the marriage at any time prior to or during the
marriage. [Draft Act, Section 9(3).]

4. Proceedings in Consequence of Adultery

We have discussed the privilege against self-incrimination as to
adultery and recommended changes in the law in Chapter 7 dealing with
competence and compellability. ^^

5. Professional Privilege

(a) Solicitor and Client Privilege

The solicitor and client privilege arose at common law, and is of
ancient origin. The right to have an attorney prosecute and defend all
"pleas moved for or against him" goes back to at least the fourteenth
century. It is a right fundamental to equality before the law. The privilege
does not rest on confidence or a confidential relationship, but on the
basis that the solicitor is the alter ego of the client in relation to the ad-
ministration of justice.40 Lord Brougham clearly defined the rationale of
the solicitor and client relationship in Greenough v. Gaskell:

The foundation of this rule is not difficult to discover. It is not (as
has sometimes been said) on account of any particular importance
which the law attributes to the business of legal professors, or any
particular disposition to afford them protection. . . . But it is out

37Law Reform Committee, Sixteenth Report, Privilege in Civil Proceedings, Cmnd.
3472, (1967), para. 44, at pp. 18-19.

38Cm7 Evidence Act 1968, c. 64, s. 16(4).

39See Chapter 7, "Competence and Compellability", supra at pp. 111-112.

40For a more detailed discussion of the nature of the privilege, see Royal Com-
mission Inquiry Into Civil Rights (1968), Vol. 2, at pp. 817-821.

145

of regard to the interests of justice, which cannot be upholden, and
to the administration of justice, which cannot go on without the
aid of men skilled in jurisprudence, in the practice of the courts, and
in those matters affecting courts, and in those matters affecting rights
and obligations which form the subject of all judicial proceedings.
If the privilege did not exist at all, everyone would be thrown upon
his own legal resources; deprived of all professional assistance, a
man would not venture to consult any skilful person, or would only
dare to tell his counsellor half his cslsq^^

The scope of the solicitor and client privilege has been stated in this
way:

there is no doubt that legal professional privilege, which has a sure
and unshakable foundation in our law, protects from disclosure
not only documents which embody communications between a cHent
and his legal adviser which come into existence in the course of liti-
gation, or in anticipation of litigation, but even documents which
without contemplation of any litigation at all come into existence in

order to enable the cHent to obtain the legal advice which he
requires. "^2

The privilege is essential to the long estabhshed right to retain
counsel, to a fair hearing as expressed in the Canadian Bill of Rights,
and to the right "in full equality to a fair and public hearing by an inde-
pendent and impartial tribunal", as expressed in the Universal Declaration
of Human Rights. It is not necessary for us to enter upon any extensive
discussion of the nature and extent of the privilege. We have considered
whether it should be extended and whether it should be further Umited.
Nothing has been drawn to our attention to convince us that the law as it
is reasonably well defined is not working satisfactorily in the administra-
tion of justice. We are not convinced that an attempt should be made to
define the privilege by statute as has been done in some jurisdictions^^
or that there should be any statutory extension of the privilege as defined
at common law.

(b) Other Relationships

Representations have been made to us that the privilege which exists
between a solicitor and his client should be extended to communications
between accountants and their clients, newsmen and their sources of in-
formation"^, physicians and their patients, and clergymen and members of
their congregations. None of these relationships are fundamentally or
historically the same as that which exists between the solicitor and his

41(1833), 1 My. & K. 98, 103, 39 E.R. 618, 620-621.

'^'^Hobbs V. Hobbs and Cousens, [1960] P. 112, 116.

43See, for example, American Law Institute, Model Code of Evidence (1942),
Rules 209-13; National Conference of Commissioners on Uniform State Laws,
Uniform Rules of Evidence (1953), Rule 26; Cal. Evidence Code, §950-962
(West, 1968); Federal Rules of Evidence, 28 U.S.C.A., Rule 501.

440ne of the Commissioners, Mr. Bell, wishes it to be a matter of record that he
favours the establishment of a privilege for journalists to decline to disclose the
sources of their information. The issues and the law in most jurisdictions are
discussed in detail in Professional Secrecy and the Journalist, (International
Press Institute, Zurich, 1962) and Mr. Bell adopts the conclusions of that study.

146

client. The argument put forward is that they are all based on confidence;
however, as we have pointed out, the solicitor and client relationship is
based not on confidence, but arises necessarily out of the basic right
of the client to equality before the law. The extension of a statutory
privilege to any of the relationships we have mentioned would result in
closing to the judicial process wide areas in its search for truth. We
have come to the conclusion that this consideration outweighs the argu-
ments put forward in favour of providing statutory protection for the
relevant communicants.

Special arguments have been advanced in favour of giving statutory
protection to communications between a patent attorney and his clients.
No such privilege is recognized by Canadian law.'^^ If specific litigation is
contemplated and a patent agent prepares a report or opinion for that
purpose at the request of the solicitor or the client, the document is
privileged. Also, when no specific litigation is contemplated opinions may
not be received in evidence over objection if the subject matter of the
opinion is the precise issue before the court. There is, however, a residual
area where communications between patent agents and inventors or their
representatives are not protected from disclosure in court other than by
an ad hoc exercise of judicial discretion. "^^

We have come to the conclusion that the Legislature ought not to
extend a special privilege to patent attorneys that is not enjoyed by other
professional groups. If a privilege is to be granted with respect to the
duties performed in the exercise of the functions they perform under the
Patent Act,^'' it is a matter for Parliament. We may point out that many
others who perform similar duties and work on a confidential basis, such
as copyright agents and taxation agents, do not enjoy privilege as to
professional communications.

6. Privilege Concerning Voting

(a) Discussion

Under The Election Act^^ a person who has voted shall not in any
legal proceedings be compelled to state for whom he has voted. Before
it was amended in 1969,"^^ the provision read: "A person who has voted
shall not in any legal proceedings questioning the election or return be
compelled to state for whom he voted".

"^^Moseley v. Victoria Rubber Co. (1866), 55 L.T.N.S. 482; Toronto Gravel
Road Co. V. Taylor (1875), 6 P.R. 227; Clopay Corp. and Canadian General
Tower Ltd. v. Metalix Ltd. (1959), 31 C.P.R. 63 (Exch. Ct.).
46This protection may be reasonably counted upon where a patent application
is being prosecuted but the patent has not yet issued: McKercher v, Vancouver-
Iowa Shingle Co., [1929] 4 D.L.R. 231 (B.C.S.C).
47Patent attorneys are regulated under the Patent Act, R.S.C. 1970, c. P-4.
Section 15 of the Act provides:

A register of attorneys shall be kept in the Patent Office on which shall
be entered the names of all persons entitled to represent applicants in the
presentation and prosecution of applications for patents or in other business
before the Patent Office.
48R.S.O. 1970, c. 142, s. 69.
49S.O. 1968-69, c. 33, s. 69, amending R.S.O. 1960, c. 118, s. 152.

147

Under The Municipal Elections Act, 1972^^ the privilege is restricted
to prcKeedings questioning a municipal election. Hence the law in Ontario
would appear to be that a person may not be required to state in any
legal proceeding how he voted in a provincial election, but he may be
required to state how he voted in a municipal election unless the pro-
ceeding is one to question the election.

, Under The Liquor Licence Act^^ the local option provisions con-
cerning the sale of Uquor in particular areas provide that those entitled
to vote are those qualified to vote in provincial elections. ^^ The provisions
of The Election Act are adopted respecting a revision of lists, holding a
poll, holding advance polls, forms, oaths, powers and duties of officers,
and corrupt practices. ^^ However, the provisions of The Election Act
concerning non-disclosure are not adopted, and there would appear to
be no provision concerning privilege as to how a voter has voted.

(b) Recommendation

We think that the privilege as now expressed in The Election Act
should be extended to all voting, whether it be in federal, provincial or
municipal elections, and that it should apply as well to referenda and
plebiscites authorized by statute. We recommend that The Evidence Act
be amended by including the following section:

A person is competent but not compellable in a proceeding
to disclose for whom or how he voted in any federal, provincial,
municipal or other election to public office or in any referendum or
plebiscite authorized by statute. [Draft Act, Section 11.]

7. Evidence Admissible to Prove Privileged Communications

(a) Discussion

In Chapter 4 we discussed the subject of illegally obtained evidence,
and reviewed the law permitting proof of privileged communications by
secondary evidence.

Beyond the desirability of admitting secondary evidence of privileged
communications, there are additional matters which concern us. Where a
privilege has not been waived, should it be permissible to prove a
privileged communication that has been legally intercepted; for example,
instructions given by a prisoner to a solicitor legally overheard by a fellow
prisoner or a warden? We do not think so. Even more so should proof
of privileged communications obtained by illegal means be excluded.
There would seem to be no rational basis on which the law concerning
privilege should be defeated by permitting proof by indirect means, where
direct proof is prohibited.

The privilege protecting such communications should not, however,
be confused with the right to prove the content of the communication by

50S.O. 1972, c. 95, s. 93(6),
51S.O. 1975, c. 40.
^Vbid., s. 32.

148

means other than proof of the communication itself. It is one thing to
say that a document is privileged, and another to maintain that the in-
formation contained in it may not be proven in any manner. Similarly, a
party cannot immunize documents from disclosure merely by depositing
them with his solicitor. However, we do not v/ish to imply that there
should be a right to prove documents that have been prepared at the
instruction of the cUent for the purpose of obtaining legal advice.

( b ) Recommendation

The Evidence Act should be amended to include a section to read
as follows:

Evidence is not admissible in a proceeding to prove a communication
which is inadmissible by reason of the fact that it is privileged under
this Act, or any other Act or at common law. [Draft Act, Section 12.]

CHAPTER 10

OPINION EVIDENCE

1. Introduction

The rule governing the reception of opinion evidence has been sum-
marized by Cross as follows :

A witness may not give his opinion on matters which the court con-
siders call for the special skill or knowledge of an expert unless he is
an expert in such matters, and he may not give his opinion on other
matters if the facts upon which it is based can be stated without
reference to it in a manner equally conducive to the ascertainment
of the truth. 1

The admission of expert testimony is commonly regarded as an
exception to the general rule forbidding the reception of opinion testimony.
An examination of expert evidence would be incomplete, therefore, with-
out a consideration of the supposed rule to which it is labelled an excep-
tion. The term 'supposed rule' is used advisedly, as we must first determine
whether there does exist in fact a general rule in Canada which excludes
opinion evidence, that is, testimony in the form of a conclusion, regardless
of whether the witness has personal knowledge of the subject of the
htigation.

The proper scope of the opinion rule in the law of evidence can be
appreciated best by first considering the historical development of the
law. The early eighteenth century pronouncements of English courts that
witnesses must relate facts and not opinion, when read in the context of
that age, forbade quite different testimony from that which is now thought
to be foreclosed by the opinion rule. Samuel Johnson's Dictionary of the
English Language (1st Ed., 1755) defined opinion as "persuasion of the
mind without proof or certain knowledge . . . [sjentiments, [jjudgment,
[n]otion", and did not refer to 'opinion' in the sense of a reasoned con-
clusion from facts observed.^ Up to the end of the eighteenth century
there was no opinion rule as we know it today, ^ and statements then made
such as Lord Mansfield's in Carter v. Boehm, "It is mere opinion, which
is not evidence'"^, were statements condemning testimony by witnesses who
had no personal knowledge of the event. Such testimony was thought to
be as unreliable as hearsay. What was being forbidden were notions,
guesses and conjectures. They were statements, Wigmore has observed,
demanding that "the witness must speak as a knower, not merely a
guesser".^

1 Cross, Evidence (4th Ed. 1974), at p. 381.

2Sce King and Pillinger, Opinion Evidence in Illinois (1942), at p. 8.

3See Phipson, Evidence (11th Ed. 1970), at p. 504, noting that Gilbert's Evidence
written before 1726 and Buller's N.P. written before 1767 make no mention
of such a Rile. However, it appears in Peake on Evidence in 1801.

4(1776), 3 Burr, 1905, 1918, 97 E.R. 1162, 1168.

57 Wigmore, Evidence, §1917 (3rd Ed. 1940).

149

150

Expert assistance has been available to the court from very ancient
times, but not in the form normally used today.'' Special juries of experts
were commonly used in the fourteenth century to resolve trade disputes,"^
and as early as 1353 we find the court summoning surgeons to give an
opinion on whether a wounding amounted to mayhem.^ The manner in
which expert aid was elicited at that time illustrates that the assistance
was rendered to the judge rather than to the jury; so that the court
summoned the expert and, on considering his advice, directed the jury
respecting the premises that could be used by them in assessing particular
facts.

Toward the end of the eighteenth century, an exception appears to
have been established to this general rule forbidding testimony by wit-
nesses who had no personal knowledge of the facts in issue. As the jury
system evolved from an investigatory body to a body informed by wit-
nesses summoned by the parties,^ experts were called by the parties.
These experts, testifying as witnesses, furnished their assistance directly
to the jury. 10 To justify this apparent exception to the long-standing rule
that witnesses must testify from personal knowledge, the courts reasoned
that the reception of such expert evidence was necessary to conclude the
trial of technically complex issues. The expert was permitted to give his
opinion on scientific matters although he had no personal knowledge of
the matters being litigated, where to do so would assist the jury in its
decision, and where the major premise or premises of the case had to be
tested by information outside the general knowledge possessed by the
layman.

This test for the reception of expert testimony, together with the
misinterpretation of earlier statements forbidding opinion in the sense
of "conjecture", gave rise in the early nineteenth century to the formula-
tion of an opinion rule forbidding the reception of lay opinion generally,
whether or not the witness had personal knowledge of the relevant facts.

2. NoN Expert Opinion

(a) Discussion

The reception of opinion is justified at times as simply a "compen-
dious mode of stating facts", or a "shorthand rendering" or an appHca-

6See generally Hand, "Historical and Practical Considerations Regarding Expert
Testimony" (1901), 15 Harv. L. Rev. 40; see also Thayer, Cases on Evidence
(2d Ed. 1900), at pp. 672-73; and Rosenthal, 'The Development of the Use
of Expert Testimony" (1935), 2 Law and Contemporary Problems 403.

7See Hand, footnote 6 supra, at pp. 41-42. For a more recent example of the
empanelling of a special jury see R. v. Anne Wycherley (1838), 8 Car. & P.
262, 173 E.R. 486: a jury of married women was empanelled to determine if
the convicted defendant was quick with child.

SAnon. Lib. Ass. 28, pi. 5 (28 Edw. Ill) as cited in Holdsworth, A History of
English Law, Vol. IX, at p. 212; see also Buller v. Crips (1705), 6 Mod. 29,
87 E.R. 793.

9See, generally, Holdsworth, A History of English Law, Vol. 1, at pp. 33ff.

lOSee e.g., Folkes v. Chadd (1782), 3 Dougl. K.B. 157, 99 E.R. 589.

151

tion of the "congeries of circumstances rule" or "collective fact rule".^^
For example, a witness may testify that a person is very old, without
specifying in detail the physical characteristics upon which this conclu-
sion is based. The courts recognize that the opinion rule cannot be abso-
lute. For example, in R. v. German,^^ in denying that any injustice
was done by the reception of opinion testimony from lay witnesses respect-
ing the defendant's intoxicated condition, Robertson C.J.O., said:

No doubt, the general rule is that it is only persons who are qualified
by some special skill, training or experience who can be asked their
opinion upon a matter in issue. The rule is not, however, an absolute
one. There are a number of matters in respect of which a person
of ordinary intelligence may be permitted to give evidence of his
opinion upon a matter of which he has knowledge. Such matters as
the identity of individuals, the apparent age of a person, the speed
of a vehicle, are among the matters upon which witnesses have been
allowed to express an opinion, notwithstanding that they have no
special qualifications, other than the fact that they have personal
knowledge of the subject matter, to enable them to form an opinion. ^^
[Emphasis added]

This attitude to the opinion rule may be supported on two grounds:
first, the impossibiUty of restricting testimony to facts, and second, the
absence of any justification for totally excluding opinion testimony in the
form of reasoned conclusions from witnesses, without regard to their
testimonial qualifications as observers of the event.

If we start from a premise that all that is logically probative is
receivable unless excluded by some rule of law,^'^ then it is clear that
there must be some clear ground of policy to justify the exclusion. ^^ The
theory has sometimes been put forward that to permit the reception of
opinion testimony would be to permit the "usurpation of the jury's
function". 16 This overlooks the fact that the trier of fact must determine
what weight to give to evidence admitted, and is not bound to agree with

liSee Tyree, "The Opinion Rule" (1955), 10 Rutgers L. Rev. 601. See also
Baron Alderson in Wright v. Tatham (1838), 5 Clark and Finnelly 670, 721, 7
E.R. 559, 577 "... a compendious mode of putting one instead of a multitude
of questions to the witness"; relied on in Robins v. National Trust Co. (1925),
57 O.L.R. 46 in receiving the opinion of witnesses respecting a testator's mental
condition when he signed his will.

12[1947] O.R. 395 (C.A.); relied on and followed on this point in R. v. Pollock,
[1947] 2 W.W.R. 973 (Alta.) and R. v. Nagy (1965), 51 W.W.R. 307 (B.C.);
but see contra R. v. Davies (No. 2), [1962] 1 W.L.R. 1111 (C.M.C.A.).

13[1947] O.R. 395, 409. And see Porter v. O'Connell (1915), 43 N.B.R. 458
where the court held it permissible for the eye-witness to state, in answer to a
question respecting the speed of defendant's horse at the time of the accident,
". . . the horse was going that fast I don't think he could be pulled up
immediately".

I'^Thayer, Preliminary Treatise on the Law of Evidence, at p. 265.

i5See Trautman, "Logical or Legal Relevancy — A Conflict in Theory" (1952),
5 Vand. L. Rev. 385.

l6See, for example, Phipson, Evidence (11th Ed. 1970), at p. 504; Carter v. Boehm
(1766), 3 Burr. 1905, 1918, 97 E.R. 1162, 1168-1169.

152

the opinion expressed by the witness. ^"^ In addition, the reception of
opinion testimony is accepted from expert witnesses whose opinions are
the most Hkely to influence the trier of fact.

We have come to the conclusion that such a broad formulation of
the opinion rule cannot be justified on principle and should be reformed
to accord with present practice. ^^ Lay opinion evidence, as we have
indicated, has been received in some cases from witnesses with personal
knowledge when it was thought to be helpful to the jury. To do other-
wise would render the exerdse of giving evidence unduly artificial, since
it is often difficult to separate conclusions and inferences from the facts
that give rise to them.

In the United States, where the common law rule was said to be
capable of "capricious appHcation'V^ the Federal Rules of Evidence
now provide:

If the witness is not testifying as an expert, his testimony in the
form of opinions or inferences is limited to those opinions or in-
ferences which are (a) rationally based on the perception of the
witness and (b) helpful to a clear understanding of his testimony
or the determination of a fact in issue. ^o

The Advisory Committee in a Note to Rule 701, considered that the
adversary system will normally provide adequate safeguards to ensure
a satisfactory result:

. . . since the detailed account carries more conviction than the
broad assertion, and a lawyer can be expected to display his witness
to the best advantage. If he fails to do so, cross-examination and
argument will point up the weakness.^!

In England the Law Reform Committee examined the law with
respect to non expert evidence of opinion and recommended that:

The opinion of a non-expert witness on an issue in the proceedings
should not be admissible as such, but, subject to the courts' having
a discretion to exclude it, should be admissible as evidence of the
facts perceived by him on which it is based. ^^

The Committee's recommendation was adopted in the Civil Evidence Act
1972 in the following form:

i7This justification for the opinion rule has been termed "empty rhetoric" in
7 Wigmore, Evidence, §1920 (3 rd Ed. 1940).

i8See e.g., Phipson, Evidence (11th Ed. 1970), at pp. 526-30, where, after noting a
broad exclusionary opinion rule, there are then listed as exceptions thereto, in-
stances in which courts have decided to receive lay opinion; i.e., identity, resem-
blance, photographs, meaning of words, handwriting, mental and physical condi-
ditions such as age, speed, value, etc. See also Pepper, "Scientific Proof", [1959]
L.S.U.C. 277.

i9American Law Institute, Model Code of Evidence (1942), at p. 198.

20Federal Rules of Evidence, 28 U.S.C.A., Rule 701.

21/^/J., at p. 453.

22Seventeenth Report of the Law Reform Committee, Evidence of Opinion and
Expert Evidence, Cmnd. 4489, (1970), at p. 31.

153

3. — (2) It is hereby declared that where a person is called as a
witness in any civil proceedings, a statement of opinion by him on
any relevant matter on which he is not qualified to give expert
evidence, if made as a way of conveying relevant facts personally
perceived by him, is admissible as evidence of what he perceived.

(3) In this section 'relevant matter' includes an issue in the
proceedings in question.

(b) Recommendation

We recommend that The Evidence Act be amended to include the
following section:

Where a witness in a proceeding is testifying in a capacity other
than as a person quaUfied to give opinion evidence and a question is
put to him to elicit a fact that he personally perceived, his answer is
admissible as evidence of the fact even though given in the form of
an expression of his opinion upon a matter in issue in the proceeding.
[Draft Act, Section 14.]

3. The Ultimate Issue Rule

(a) Discussion

The ultimate issue rule states that an expert witness cannot be
asked his opinion concerning the very point which the jury must deter-
mine. In early decisions on expert evidence no such rule was recognized.
In Beckwith et al. v. Sydebotham^^ the plaintiffs sued on a policy of
insurance covering their ship. The defendants resisted on the basis that
the ship was not seaworthy when it sailed. In their defence, the defendants
introduced a deposition by a man who had surveyed the ship at the
foreign port, and who described a great many deficiencies he had dis-
covered. The defendant then proposed to call several eminent ship sur-
veyors to testify that, in their opinion, the ship could not have been sea-
worthy if the facts disclosed by the deposition were true. The plaintiffs
objected on the basis that an inference such as this was for the jury to
draw. Lord Ellenborough reasoned that, where there was a matter of skill
or science to be decided, the jury might be assisted by the opinion of those
peculiarly acquainted with it from their professions or pursuits. In Fen-
wick V. Bell,'^'^ the plaintiff having called eye witnesses to testify con-
cerning the facts of a collision at sea, proposed to call a nautical expert
for the purpose of asking whether, according to his best judgment, having
heard the evidence and assuming the facts to be as plaintiff's witnesses
had testified, he thought that a collision could have been avoided by
proper care on the part of the defendant's servants. The defendant objected
that this was the very question which the jury were to try, but Coltman,
J., permitted the question on the ground that it was a question having
reference to a matter of science and opinion.

23(1807), 1 Camp. 116, 170 E.R. 897.
24(1844), 1 Car. & K. 312, 174 E.R. 825.

154

In the nineteenth century, a change developed in the judicial attitude
towards this type of evidence. The Canadian decision in British Drug
Houses Ltd. v. Battle Pharmaceuticals,'^^ illustrates the extent of the
change. On a motion to expunge the registration of a trade mark on the
ground of similarity to a mark already registered, Thorson, J., said:

Kerly on Trade Marks, 6th ed., p. 290, makes the statement that
the evidence of persons who are well acquainted with the trade
concerned was formerly constantly tendered by the parties to show
that in the opinion of such persons, as experts, the alleged resem-
blance between the contrasted marks was, or was not, calculated to
deceive, and it was constantly admitted, but that, since the decision
of the House of Lords in North Cheshire & Manchester Brewery
Co. V. Manchester Brewery Co., [1899] A.C. 83, such evidence has
frequently been disallowed. In that case Lord Halsbury, L.C., said
at page 85: 'Upon the one question which Your Lordships have to
decide, whether the one name is so nearly resembling another, as
to be calculated to deceive, I am of opinion that no witness would be
entitled to say that, and for this reason: that that is the very question
which your Lordships have to decide'. ^^

It was accordingly held that a witness' evidence concerning the effect of
the use of the mark in dispute on him might be received, but that he
could not state his opinion as to the effect it would have on someone else.

The development of the ultimate issue rule is frequently traced to
the decision mR.w. Wright^'' in which a physician gave an opinion respect-
ing the symptoms of insanity and concluded his testimony by saying,
"[m]y firm conviction is that it was an act of insanity". The judges, having
met and considered the testimony, decided that a medical witness could
testify as to whether certain appearances in the accused were symptoms of
insanity, and whether a long fast followed by strong liquor was Ukely to
produce a paroxysm of that disorder. However, they expressed strong
doubts whether the doctor could say that the act with which the prisoner
was charged was an act of insanity, as this was the very point the jury were
to decide. However, this case should be regarded as authority for the
rejection of opinion testimony on questions of law, rather than for the
rejection of opinion on an ultimate issue.

The distinction between an opinion involving interpretation of the
law and an opinion as to fact, is illustrated by the decision of the Supreme
Court of Canada in R. v. Neil.'^^ The accused had been sentenced to pre-
ventive detention on being found to be a criminal sexual psychopath.
Counsel for the Crown, in examining a psychiatric expert called by him,
had read the then section 659(b) of the Criminal Code in which 'criminal
sexual psychopath' was defined, and had asked the doctor whether "each
one of the isolated requirements set forth in section 659(b) are found
affirmatively against the accused?" The doctor had replied, "it is my

25[1944] Ex. C.R. 239, [1944] 4 D.L.R. 577.
26[1944] Ex. C.R. 243, [1944] 4 D.L.R. 580.
27[1821] Russ. & Ry. 456, 168 E.R. 895.
28[1957] S.C.R. 685.

155

opinion that this is so". Cartwright, J., found the objections to the exami-
nation obvious:

The witness is also, in effect, being called upon to interpret the defini-
tion contained in s. 659(b), a task the difficulty of which is empha-
sized by the different submissions as to its meaning made by counsel
in the course of the argument before us.^^

Were the ultimate issue rule narrowly interpreted to prohibit only
expressions of opinion on issues which are mixed questions of fact and
law, as in the Wright and Neil cases, it would be generally justifiable on
the general basis that opinion testimony ought to be received only when it
is necessary and helpful. An expression of opinion that involves the appli-
cation of a legal standard ought to be excluded as superfluous, since a
jury, properly instructed by the trial judge on the law, is as capable of
applying the standard as the witness. ^^

The doctrines of relevance and materiality suggest that all evidence
given at a trial must concern matters that are necessary to the prosecution
or defence of the matter in issue. All testimony relates to an ultimate issue
in the sense that failure to prove any element necessary to a successful
prosecution must result in an acquittal. In theory, no expert, bound by the
rules of relevancy and materiality, would be permitted to testify to any-
thing under a broad formulation of the ultimate issue rule.

In practice, expert opinion testimony is received, and the supposed
ultimate issue rule has been diluted. For example, in the case of R. v.
Jones^^ the defendant was convicted of murder, although the defendant's
daughter testified that she, not the father, had done the kilUng. A doctor
was asked whether the blows described by the defendant's daughter could
inflict the fractures found on the deceased. The doctor was permitted to
state that the fractures could not have been so caused. On appeal it was
held that the doctor's evidence was receivable. Richards, C.J.O., explained:

The rule seems to be that a skilled witness cannot in strictness be
asked his opinion respecting the very point which the jury are to
determine; but he may be asked a hypothetical question, which in
effect will determine the same question. But here the witness was not
asked respecting the very point which the jury were to determine,
namely, whether the prisoner caused the death of the deceased, nor
even the question of whether, in his opinion, Elizabeth Jones had
killed the deceased, but simply whether the blows, as she described
them, could produce fractures . . . such questions must in their very

29lbid., at p. 701. See and compare R. v. Holmes, [19531 2 All E.R. 324
(C.C.A.). The fineness of the distinction may also be seen in Rich v. Pier pout
(1862), 3 F. & F. 35, 176 E.R. 16: in a suit for negligence against a doctor,
defence counsel asked a medical witness "whether he was of opinion that there
has been any want of due care or skill on the part of the defendant". Plaintiff's
counsel objected. Erie, C.J., suggested that the question ought to be modified,
and defence counsel was then permitted to ask the question, "whether the wit-
ness had heard anything (in the evidence) which was improper in the defend-
ant's treatment of the patient from a medical point of view".

30See R. v. Fisher, [1961] O.W.N. 94, 96, per Aylesworth, J.A.

31(1869), 28U.C.Q.B. 416.

156

nature be proper to be asked and answered or how could a jury ever
possibly ascertain the true mode in which the death was caused. ^^

The doctor was asked for a scientific opinion as to the results that could
flow from the blows inflicted, not what caused the death. The deductions
to be drawn from the opinion, together with other facts, were for the jury.

The difficulty of applying the ultimate issue rule is displayed in D.P.P.
V. A. & B.C. Chewing Gum Limited. ^^ The accused was charged with
selling obscene cards to children. At trial, the justices rejected the evidence
of child psychiatrists concerning the likely effect of the cards, taken singly
and together, on children of different ages. On appeal by the prosecutors
against the dismissal of the information. Lord Parker referred to the "long-
standing rule of common law [that] evidence is inadmissible if it is on the
very issue the court has to determine". The case was remitted for retrial,
as it was held that this opinion evidence was not on the very point to be
decided. Lord Parker said:

There were two matters really for consideration. What sort of
effect would these cards singly or together have on children, and no
doubt children of different ages; what would it lead them to do?
Secondly, was what they were led to do a sign of corruption or
depravity? As it seems to me, it would be perfectly proper to call a
psychiatrist and to ask him in the first instance what his experience,
if any, with children was, and to say what the effect on the minds
of children of different groups would be if certain types of photo-
graphs or pictures were put before them, and indeed, having got his
general evidence, to put one or more of the cards in question to him
and ask what would their effect be upon the child. For myself, I
think it would be wrong to ask the direct question whether any par-
ticular cards tended to corrupt or deprave, because that final stage
was a matter which was entirely for the justices. ^"^

The American courts have not consistently maintained a broad ul-
timate issue rule. For many years the courts followed the approach of
U.S. V. Spaulding:

The medical opinions that respondent became totally and perma-
nently disabled before his policy lapsed are without weight . . .
Moreover, that question is not to be resolved by opinion evidence.
It was the ultimate issue to be decided by the jury upon all the
evidence in obedience to the judge's instructions as to the meaning
of the crucial phrase, and other questions of law. The experts ought
not to have been asked or allowed to state their conclusion on the
whole case.35

There has been a considerable trend of authority refusing to exclude expert
testimony solely because it amounts to an opinion upon ultimate facts.
For example, in Harried v. U.S. the court expressly relaxed the rule:

^Vbid., at pp. 422-23.
33[1968] 1 Q.B. 159.
34/Z,jU, at p. 164.
35293 U.S. 498, 506 (1934),

157

There can be no doubt that the question was a violation of U.S. v.
Spaulding . . . but we have long tolerated violation of that rule.^^

The confusion surrounding the application of the ultimate issue rule,
and the consequent need for reform, is demonstrated by a recent decision
of the Supreme Court of Canada. In R. v. Lupien,^'' the accused was
charged with gross indecency. By way of defence, he testified that he had
thought that the male person with whom he was found was, in fact, female,
and sought to introduce psychiatric evidence to the effect that he had a
strong aversion to homosexual practices, and would not, therefore, know-
ingly engage in homosexual acts. Martland, J., and Judson, J., dis-
senting on this point, rejected the psychiatric opinion, agreeing with the
dissenting judgment of Davey, C.J. B.C., in the court below, that:

The opinion that Lupien would not have knowingly engaged in the
acts alleged is in the particular circumstances of this case too dan-
gerous to be admitted, because without any necessity it comes too
close to the very thing the jury had to find on the whole of the
evidence. 3^

An earlier decision of the court in R. v. Fisher^^ was distinguished on the
ground that in that case the psychiatrist was testifying as to the capacity
of the defendant to entertain the requisite intent whereas here :

. . . the psychiatrist is being asked for an opinion, not as to whether
the respondent was mentally capable of formulating an intent, but
as to whether he did, on the facts of this case, formulate such intent.'^^

The majority of the Court, on the other hand, held that expert testimony
was admissible on the question of whether or not the man was "homo-
sexually inclined or otherwise sexually perverted.''^! Hall, J., put it this
way:

It is true, as Davey, C.J.B.C. points out in his dissent, that the
answer which the psychiatrist was expected to give 'comes too close
to the very thing the jury had to find on the whole of the evidence'.
I do not think that this is a vaUd reason for rejecting the evidence.
Psychiatrists are permitted to testify . . . that the accused was incap-
able of forming the intent necessary to constitute the crime with
which he is charged. That type of evidence is very close, if not
identical, to the conclusion the jury must come to in such a case if it
is to find that the accused was not guilty because he did not have
intent necessary to support conviction. The weight to be given the
opinion of the expert is entirely for the jury, and it is the function
of the trial judge to instruct the jury that the responsibility for weigh-
ing the evidence is theirs and theirs alone."^^

36389 F. 2d 281, 285 (D.C. Cir., 1967).

37[1970] S.C.R. 263.

38/6/^., at p. 269, quoting Davey, C.J.B.C. in (1968), 64 W.W.R. 721, 724.

39[1961] S.C.R. 535.

40[1970] S.C.R. 263, 268.

41/6/W., at p. 278.

4Vbid., at pp. 279-280.

158

In 1970 the English Law Reform Committee recommended that:

the opinion of an expert witness on a matter within his field of
expertise should be admissible, notwithstanding that it involves the
expression of the witness's opinion upon an issue in the proceedings.'*^

The Civil Evidence Act 1972 reflects the Committee's recommendations:

3. — ( 1 ) Subject to any rules of court made in pursuance of Part I of
the Civil Evidence Act 1968 or this Act, where a person is called as a
witness in any civil proceedings, his opinion on any relevant matter
on which he is qualified to give expert evidence shall be admissible
in evidence.

In the United States, the relevant Federal Rule reads as follows:

704. Opinion on Ultimate Issue. Testimony in the form of an
opinion or inference otherwise admissible is not objectionable be-
cause it embraces an ultimate issue to be decided by the trier of
fact.44

(b) Recommendation

We have concluded that there is need for clarification of the law in
Ontario. We recommend the following be added to The Evidence Act:

Where a witness in a proceeding is qualified to give opinion evi-
dence, his evidence in the form of opinions or inferences is not made
inadmissible because it embraces an ultimate issue of fact. [Draft
Act, Section 15.]

4. Appointment of Court Experts

(a) Discussion

Since the eighteenth century, with the change from the use of court
appointed experts and special juries, to the use of experts called by the
parties testifying as witnesses,^^ adverse criticism has been directed at the
apparent partisanship displayed by experts. Too often, unfortunately, the
criticism has been unfairly aimed at the expert and his profession, which
is in no way responsible for the present system. Often, counsel seeks not
the best expert to elucidate the matter in issue, but rather the best witness
for his cause. Jessel, M.R., condemned this practice saying:

... I have, as usual, the evidence of experts on the one side and on
the other, and, as usual, the experts do not agree in their opinion.
There is no reason why they should . . . the mode in which expert
evidence is obtained is such as not to give the fair result of scientific
opinion to the court. A man may go, and does sometimes, to half-

43Seventeenth Report of the Law Reform Committee, Evidence of Opinion and
Expert Evidence, Cmnd. 4489 (1970), at p. 31.

44Federal Rules of Evidence, 28 U.S.C.A., Rule 704. See also National Conference
of Commissioners on Uniform State Laws, Uniform Rules of Evidence (1953),
Rule 56(4); Cal. Evidence Code, §805 (West, 1968).

45See Hand, "Historical and Practical Considerations Regarding Expert Testi-
mony" (1901), 15 Harv. L. Rev. 40; and Rosenthal, "The Development of the
Use of Expert Testimony" (1935), 2 Law and Contemporary Problems 403.

159

a-dozen experts .... He takes their honest opinions, he finds three
in his favour and three against him; he says to the three in his favour,
Will you be kind enough to give evidence? and he pays the three
against him their fees and leaves them alone; the other side does the
same. It may not be three out of six, it may be three out of fifty . . .
I have always the greatest possible distrust of scientific evidence . . .
I am sorry to say the result is that the Court does not get the
assistance from the experts which, if they were unbiased and fairly
chosen, it would have a right to expect.'*^

It has been said that the role of the trier of fact in weighing such
evidence is difficult and that it becomes impossible when two experts
express diametrically opposed views. His decision turns not on facts
proved in evidence, but on which expert he believes. Spellman puts it
this way:

This presents a quandary which, except by coincidence, is remote
from any concept of justice. The question at bar should be what is
the proper conclusion to be drawn from record facts. By the nature
of the case, no external criteria are available to the fact-finder to
enable him to work his way out of the presented dilemma. Thus,
strange as it may seem, the fact-finder, as to this phase of the litiga-
tion, is basing his finding on a conclusion as to credibility A"^

A partial solution to the problem of inherent bias in an expert called
by a party, may be a return to providing the necessary assistance through
a court appointed expert."^^

As the adversary system developed, the power of the trial judge to
call witnesses of any kind declined, especially in civil cases. The view was
favoured that the judge should determine the dispute on the basis of the
issues raised by the parties and in accordance with the evidence they
saw fit to introduce. "^9 Whether there remains in Ontario any inherent
common law right in the court to appoint experts as assessors to assist
the court on its own motion, is a matter of some doubt.^^ In Phillips v.

460n the hearing of a motion in Thorn v. Worthing Skating Rink Co., as noted
in Plimpton v. Spiller (1877), 6 Ch. D. 412, 416. But see More v. The Queen,
[1963] S.C.R. 522, at pp. 537-538 (S.C.C.), where the court criticizes the
trial judge's instruction to the jury for his "unwarranted disparagement" of
the expert evidence: the trial judge had quoted extracts from Phipson, Taylor,
and Lord Campbell to the same effect as the statement of Jessel, M.R. See, too,
Overholser, The Psychiatrist and the Law (1952), at pp. 106-14.

'^^Spellman, Direct Examination of Witnesses (1968), at p. 139.

48See McCormick, "Some Observations Upon the Opinion Rule and Expert
Testimony" (1945), 23 Texas L. Rev. 109, 130-136; and 2 Wigmore, Evidence,
§563 (3rd Ed. 1940). For statutory recommendations to such effect see Uniform
Rules of Evidence (1953), Rules 59, 61; and Model Code of Evidence (1942),
Rules 403-10. But see Levy, "Impartial Medical Testimony — Revisited" (1961),
34 Temple L.Q. 416.

49See Jones v. Nationcd Coal Board, [1957] 2 Q.B. 55; Fowler v. Fowler
and Jackson, [1949] O.W.N. 244 (C.A.); but seemingly contra in criminal cases,
see R. V. Dora Harris, [1927] 2 K.B. 587.

50The question appears to have been conclusively resolved in the United States:
see Advisory Committee's Note to Rule 706 of the Federal Rules of Evidence,
28 U.S.C.A., at pp. 518-519.

160

Ford Motor Co. of Canada Ltd.,^^ Evans, J. A., although saying that it
was not necessary to his decision, stated :

I have purposely refrained from referring to Mr. McCaffrey [the
expert appointed by the court] as an assessor because I entertain
considerable doubt as to the authority of an Ontario Court, since
the repeal of s. 101 of The Judicature Act, R.S.O. 1897, c. 51, by
1913 (Can.), c. 19, s. 125, to introduce into a trial an assessor or
in fact any person who was not a party, a witness, a counsel, a Judge
or referee. ^-

The learned judge considered the status and function of McCaffrey as an
expert appointed under Rule 267, which reads in part as follows:

267 ( 1 ) The court may obtain the assistance of merchants, engineers,
accountants, actuaries, or scientific persons, in such way as it thinks
fit, the better to enable it to determine any matter of fact in question
in any cause or proceeding and may act on the certificate of such
persons. ^3

Of McCaffrey's functions, the learned judge said:

[I believe] that the purpose of such appointment is solely to assist
the Judge in understanding the evidence. I do not conclude that the
trial Judge had any difficulty in understanding the evidence. . . .
The most that Mr. McCaffrey was entitled to do was to assist in
determining the facts from the evidence. The drawing of inferences,
the deciding of issues, the interpretation of the so-called phenomenon
and the reaching of conclusions are all matters within the exclusive
jurisdiction of the trial Judge and cannot be delegated. I do not think
that a court can say, in effect, T believe that this accident resulted
from some unusual circumstance and I propose to call in an expert
to assist me in discovering the cause.' . . . While Rule 267 permits
the Court to obtain the assistance of experts in such way as it thinks
fit, such assistance must be restricted to the purpose of better
enabling the Court to determine from the evidence adduced the
questions of fact in issue. ^"^

The technique followed in civil law jurisdictions is to permit the
court to select experts to inform it of their opinion based on their own
particular knowledge and experienced^ Such experts are permitted not

5i[1971] 2 O.R. 637, 18 D.L.R. (3d) 641.

52[1971] 2 O.R. at p. 663, 18 D.L.R. (3d) at p. 667.

53R.R.O. 1970, Reg. 545, Rule 267(1).

54[1971] 2 O.R. at pp. 660-661, 18 D.L.R. (3d) at pp. 664-665.

55See Hammelmann, "Expert Evidence" (1947), 10 Mod. L. Rev. 32; Ploscowe,
'*The Expert Witness in Criminal Cases in France, Germany and Italy" (1935),
Law and Contemporary Problems 504; and Schroeder, "Problems Faced by the
Impartial Expert Witness in Court; The Continental View" (1961), 34 Temple
Law Q. 378.

161

only to give their opinions, but they may also conduct independent
investigations for the purpose of preparing their written reports. ^^

Under the federal criminal procedure in the United States, the trial
judge is permitted to select an expert^"^ in addition to the experts called
by the parties. The court's expert may express his opinion and is not con-
fined solely to the role of interpreter.^^ This practice forms the basis for
Rule 706 of the Federal Rules of Evidence which reads :

706. Court Appointed Experts

(a) Appointment. The court may on his own motion or on the mo-
tion of any party enter an order to show cause why expert witnesses
should not be appointed, and may request the parties to submit
nominations. The court may appoint any expert witnesses agreed upon
by the parties, and may appoint expert witnesses of its own selection.
An expert witness shall not be appointed by the court unless he
consents to act. A witness so appointed shall be informed of his
duties by the court in writing, a copy of which shall be filed with
the clerk, or at a conference in which the parties shall have oppor-
tunity to participate. A witness so appointed shall advise the parties
of his findings, if any; his deposition may be taken by any party;
and he may be called to testify by the court or any party. He shall
be subject to cross-examination by each party, including a party
calling him as a witness.

(b) Compensation. Expert witnesses so appointed are entitled to
reasonable compensation in whatever sum the court may allow. The
compensation thus fixed is payable from funds which may be pro-
vided by law in criminal cases and civil actions and proceedings
involving just compensation under the fifth amendment. In other civil
actions and proceedings the compensation shall be paid by the
parties in such proportion and at such time as the court directs, and
thereafter charged in like manner as other costs.

(c) Disclosure of appointment. In the exercise of its discretion, the
court may authorize disclosure to the jury of the fact that the court
appointed the expert witness.

(d) Parties' experts of own selection. Nothing in this rule limits the
parties in caUing expert witnesses of their own selection.^^

Apparently the rule in federal criminal cases is seldom used.^^ The ques-
tion arises whether it is a desirable compromise with the civil law system,

56See e.g., Quebec Code of Civil Procedure, S.Q. 1965, ch. 80, ss. 414-25.
Compare also the position of assessors in admiralty cases at common law
where expert evidence on matters within the sphere of the assessors cannot be
led by the parties: See Halsbury's Laws of England, (4th Ed.), Vol. 1, para. 443,
at p. 283. For Canadian adoption of the English approach, see: Montreal Har-
bour Comm. V. The Universe (1906), 10 Ex. C.R. 305; and Fraser v. Aztec
(1920), 20 Ex. C.R. 39.

57See 2 Wigmore, Evidence, §563 (3rd Ed., 1940).

58See Beuscher, "The Use of Experts by the Courts" (1940), 54 Harv. L.R. 1105.

59Federal Rules of Evidence, 28 U.S.C.A., Rule 706.

60Wright, Federal Practice and Procedure, Criminal, Vol. 2, at pp. 229-33.

162

since the parties' experts are forced to testify in the face of the testimony
of another expert who bears "the accolade flowing from a judicial appoint-
ment".^^ As DeParcq, commenting on a similar provision in the Uniform
Rules, said:

Although the rules purport to allow the parties to call other experts
of their own, they might just as well save their money. The testimony
of the court-appointed expert will be accepted as gospel, while any
other expert testimony will be sound and fury, signifying notliing.^^

This may or may not be true, but the parties may feel that the court's
appointed expert is in a preferred evidentiary position to one called by
a party.

In England, despite similar rules of the Supreme Court permitting the
appointment of independent court experts on the application of the
parties, ^3 ^he power is seldom used. Lord Denning, M.R., commented in
Re Saxton:

. . . Neither side has applied for the court to appoint a court expert.
It is said to be a rare thing for it to be done. I suppose that litigants
realize that the court would attach great weight to the report of a
court expert: and are reluctant thus to leave the decision of the
case so much in his hands. If his report is against one side, that
side will wish to call its own expert to contradict him and then the
other side will wish to call one too. So it would only mean that the
parties would call their own experts as well. In the circumstances
the parties usually prefer to have the judge decide on the evidence
of experts on either side, without resort to a court expert.^"^

In 1970 the Law Reform Committee considered provisions for the
appointment of court experts and concluded that the introduction of a
"general court expert system is not desirable". ^^ The Committee con-
cluded that its recommendations with respect to the simultaneous dis-
closure by the parties of experts' reports would obviate the need for court
appointed experts. It found the following objections to such a system
compelling:

[The exchange of experts' reports] we think, will eliminate the need
for oral expert testimony except on matters upon which there is
room for a genuine difference of expert opinion or where the expert
opinion has to be based upon facts which are in dispute between the
parties and of which the true version will only be ascertained in the
course of the hearing of the oral evidence of witnesses of fact. The
role of a court expert in either type of case presents great practical
difficulties. The first problem* is the choice of expert. What voice are

^^Per Hincks, J., in dissent in Scott v. Spanjer Bros. Inc., 298 F. 2d 928, 933

(2nd Circ. 1962).
62Deparcq, "The Uniform Rules: A Plaintiff's View" (1956), 40 Minn. L. Rev.

301, 334.
63R.S.C. 1973, Order 40, Rules 1-6.
64[1962] 3 All E.R. 92, 95.
65Seventeenth Report of the Law Reform Committee, Evidence of Opinion and

Expert Evidence, Cmnd. 4489, (1970) Rec. 4, at p. 31.

163

the parties to have in his selection if they are unable to agree upon
who should be appointed? How is the judge to assess the validity
of their objections to particular appointees nominated by the court?
Next, how is the expert once appointed to inform himself of the
facts upon which to base his report? If they are in controversy it
would be for the judge to find the facts, not for the expert to hear
and determine disputed matters of evidence. His report would have
to await the judge's findings. The alternative of inviting him to report
in advance on various hypotheses of fact would run the risk that the
correct hypothesis, which would be known only at the conclusion
of the evidence, had not been stated. Finally, there is the problem
of the use to be made of his report. Plainly it would be contrary to
our system of administering justice if it were final and conclusive
on the matters of expertise with which it dealt, without giving to the
parties an opportunity in open court to persuade the judge that it
was wrong. Is the court expert to be called at the trial to be cross-
examined by any party who wishes to do so? And, if so, are the
parties to be entitled to call expert evidence in rebuttal?^^

Assessors are provided for in the Supreme Court Rules^'^. Histori-
cally, assessors were seldom used except in admiralty cases. Although in
England admiralty cases are no longer tried in a separate Division^^ the
Rules of Court still provide for the appointment of nautical assessors in
such cases.^^

66/z?/^., at p. 8.

67R.S.C. 1973, Order 33, r. 6.

68See Administration of Justice Act 1970, c. 31, ss. 1(3), 2(1).

690rder 75, r. 25(2). The function of assessors in the former Admiralty Division
was described by the Law Reform Committee, as follows:

to advise the judge on matters of nautical skill, knowledge and experience,
particularly seamanship. . . . The function of an assessor in an Admiralty
action is not to give evidence but to provide the judge with such general
information as wiill enable him to take judicial notice of facts which are
notorious to those experienced in seamanship about the corresponding
characteristics of ships and of traffic conditions upon navigable waters, so
that he may be qualified to reach an informed opinion about the standards
of care to be observed by reasonable users of those waters. In effect, the
nautical assessor's function is to enlarge the field of matters of which the
judge may take judicial notice so as to include matters of navigation and
general seamanship.

It lies within the discretion of the court whether or not to admit
expert evidence when the judge sits with a nautical assessor. The established
practice in Admiralty actions is not to allow the parties to call expert
v\dtnesses as such upon matters of general seamanship; but it is to be borne
in mind that in thus kind of case the main witnesses of fact on each side
are usually themselves experts in this general field. Leave, however, is given
to call experts in cases involving special types of vessels or equipment about
which more esoteric knowledge or experience is needed in order to form a
reliable opinion.

Consultation between the judge and the nautical assessor is continual
and informal, both in court and in the judge's room. The advice which the
judge receives from the assessor is not normally disclosed to counsel during
the course of the hearing, although the judge may do so if he thinks fit.
In his judgment he does usually state what advice he has received on parti-
cular matters and whether he has accepted it or not. But he is under no
obligation to do so and the practice is not uniform among all judges: Law
Reform Committee, footnote 65 supra, paras. 9-10, at p. 6.

164

In 1965, the Ontario Attorney General's Committee on Medical
Evidence in Court in Civil Cases'^^ discussed fully the methods of appoint-
ing experts in other jurisdictions with particular reference to medical
experts. The Committee rejected, in principle, selection of experts by the
court, either from panels or otherwise.

However, we have concluded that there is value in giving the court
power to appoint an expert, so long as the rights of cross-examination
are preserved. Our reasons for this conclusion are essentially the same as
those expressed by the Advisory Committee in its Note to Rule 706 of
the Federal Rules:

The practice of shopping for experts, the venality of some
experts, and the reluctance of many reputable experts to involve
themselves in litigation, have been matters of deep concern. Though
the contention is made that court appointed experts acquire an aura
of infallibility to which they are not entitled, . . . the trend is in-
creasingly to provide for their use. While experience indicates that
actual appointment is a relatively infrequent occurrence, the assump-
tion may be made that the availabiUty of the procedure in itself
decreases the need for resorting to it. The ever-present possibility
that the judge may appoint an expert in a given case must in-
evitably exert a sobering effect on the expert witness of a party and
upon the person utilizing his services."^ ^

In our view, the approach taken in Rule 706 of the Federal Rules
should be adopted. It not only provides that a judge may act on his own
motion to appoint an expert, but also provides for appointment on the
application of one or both of the parties. In any case, the expert so
appointed is subject to cross-examination by any party to the action.

(b) Recommendation

We recommend that The Judicature Act should be amended by add-
ing the following section:

(1) In any action, the court, upon the application of any
party or upon its own motion, may appoint one or more persons
qualified to give opinion evidence concerning the subject matter in
issue, to make such investigation as the court considers expedient
concerning the matter.

(2) A person so appointed shall report his findings to the
parties only and he may be called as a witness by the judge or
any party and be subject to cross-examination by any of the parties
to the action.

(3) The court shall have the power to fix the compensation to
be paid to such person and may direct payment thereof by the

'J^Report of the Attorney General's Committee on Medical Evidence in Court

in Civil Cases (1965).
7iSee Advisory Committee's Note to Rule 706, Federal Rules of Evidence, 28

U.S.C.A., at pp. 517-518.

165

parties in such proportions as the court may direct or out of the
consolidated revenue fund.

(4) Where a person has been appointed under this section in
an action tried by a jury, the court shall not disclose to the jury
that such person was appointed by the court.

(5) Nothing in this section shall affect the rights of the parties
to call witnesses to give opinion evidence.

If The Judicature Act is so amended, Rule 267 will be redundant
and should be repealed.

5. Exchange of Reports of Experts

(a) Discussion

The Attorney General's Committee on Medical Evidence,'^^ reporting
in 1965, concluded that, in actions involving personal injuries, an ex-
change of medical reports between the parties ought to be a prerequisite
to calling medical testimony. The Committee emphasized'^^ ^j^at their
recommendations were "designed to improve the administration of justice
and to reduce the inconvenience to the members of the medical profes-
sion". As a result of the Committee's recommendations The Evidence
Act was amended'^'^ to enact the present section:

52. — (1) Any medical report obtained by or prepared for a party
to an action and signed by a legally qualified medical practitioner
licensed to practice in any part of Canada is, with the leave of the
court and after at least seven days notice has been given to all
other parties, admissible in evidence in the action.

(2) Unless otherwise ordered by the court, a party to an
action is entitled to obtain the production for inspection of any
report of which notice has been given under subsection 1 within
five days after giving notice to produce the report.

(3) Except by leave of the judge presiding at the trial, a legally
qualified medical practitioner who has medically examined any
party to the action shall not give evidence at the trial touching upon
such examination unless a report thereof has been given to all other
parties in accordance with subsection 1.

(4) Where a legally qualified medical practitioner has been
required to give evidence viva voce in an action and the court is of
opinion that the evidence could have been produced as effectively

72See footnote 70, supra.

'^^Ibid., Conclusion 13, at pp. 87-88.

74S.O. 1968, c. 36, s. 2; now R.S.O. 1970, c. 151, s. 52. The Committee's recom-
mendations were first implemented by an amendment to The Evidence Act in
1966 (R.S.O. 1960, c. 125 as am. 1966, c. 51, s. 2) and the Ontario Rules of
Practice were altered accordingly (O. Reg. 207/66, s. 7). The relevant rule
was held to be ultra vires m Circosta v. Lilly ([1967], 1 O.R. 185 (H.C.J.) ;
appeal allowed [1967] 1 O.R. 398 (C.A.)), since it effected a change in the
substantive law.

166

by way of a medical report, the court may order the party that
required the attendance of the medical practitioner to pay as costs
therefor such sum as it deems appropriate.

It appears that section 52 does not go as far as the Committee had
hoped, since medical reports need only be exchanged when they are
intended to be used by the parties at trial. There is no obligation to
disclose where a party decides, perhaps because the report is adverse to
his position, not to use a report prepared by a medical practitioner. The
conclusions of the Committee do not appear to have contemplated such a
limitation on enforced exchange. '^^ However, in our view the rationale
underlying the present section 52 does not extend necessarily in all its
aspects to experts' reports in all proceedings over which the Legislature
has jurisdiction.

In 1953 a Committee in England under the chairmanship of Lord
Evershed'^6 considered the matter of the exchange of experts' reports and
made the following recommendations:

Para. 289 In certain classes of cases the evidence of expert
witnesses is necessary to explain the working of a machine or
describe some process or other technical matter. Without their as-
sistance counsel might not be able even to explain the case to the
Court. At present, the reports and proofs and also the plans and
drawings of such experts are privileged. They are not disclosed
until the expert goes into the witness box except perhaps in the
course of cross-examination. Much time is frequently wasted in
cross-examination by counsel trying to understand what the expert
witness for the other party is really saying and mastering the techni-
cal details of his evidence. A party is apt to rely on his expert's
evidence as producing an element of surprise. This often leads to a
waste of time and does not assist the Court in coming to an accurate
decision as to the facts. The element of surprise is no doubt good
tactics under the Rules as they exist at present and on the principles
generally adopted today in contesting cases. In our view this element
of surprise does not conduce to decisions in accordance with the
true facts. The more this element is eliminated, the more correct
is likely to be the judgment of the Court. It is, therefore, eminently
desirable that each party should know what is the expert evidence
to be called for the other side.

Para. 290 We recommend that the evidence of an expert should
not be receivable in evidence unless a copy of his report has been
made available for inspection by the other side at least ten days
before the trial, unless for special reasons the Court or a Judge
otherwise orders. This Rule should also apply to experts' plans,
drawings and sketches. The majority of the witnesses before us

^5Supra footnote 70, at p. 86. Conclusion 5 simply states: ". . . other reports
obtained by or for the plaintiff that are relevant to the injury complained of
should be made available . . ."

'^^Final Report of the Committee on Supreme Court Practice and Procedure
(Evershed Committee Report), Cmnd. 8878, (1953).

167

agreed with this suggestion. It would save time at the trial, reduce
the element of surprise and in some cases might lead to agreement
between the experts, if not in full, at least as to a considerable
portion of their reports.'''^

The Evershed Committee specified that its views respecting expert
evidence in general ought to be appHcable to medical witnesses in per-
sonal injury actions. No medical evidence would be receivable at trial
unless a copy of the witness' report had been previously made available
to the other side.'^^ A Report of a Joint Committee of the Bar, the Law
Society and the British Medical Association"^^ fully supported the recom-
mendations of the Evershed Committee respecting the exchange of medi-
cal reports, subject to the qualification that it be implemented only after
the more general recommendation applicable to expert evidence as a
whole had been consider ed.^^

Order 30 was added to the Rules of Practice in 1954 to give effect
to these recommendations of the Evershed Committee, ^^ but its effect
was apparently short-Hved; it is probably true that "the attempt made by
the Evershed Committee to secure the exchange of experts' reports be-
fore trial has been almost completely nullified". ^^

In 1968 the Winn Committee, appointed to consider the jurisdiction
and procedure of the English courts in actions for personal injury, recom-
mended that in such actions the parties should, as a general rule, be
required to disclose the relevant reports of the expert medical witnesses
upon whose evidence they propose to rely.^^ xhe Committee's recom-
mendations were reviewed by the Law Reform Committee in 1970 when

'T^Ibid., at paras. 289-290.

T^lbid., at para. 352. See also para. 320(14) respecting this requirement for

all experts.
''^Report of The Joint Committee on Medical Evidence in Courts of Law, re-
produced as Appendix No. 1 to the Report of the Attorney -General's Commit-
tee, footnote 70 supra,
mbid., at paras. 23-24.
«1R.S.C. (Summons for Directions) 1954; see now R.S.C. 1973, Order 25, esp.

r. 6.
82See Note (1955), 71 L.Q.R. 314. In Worrall v. Reich, [1955] 1 Q.B. 296 (C.A.),
an action for damages for personal injuries, the master, on a summons for
directions, ordered the parties to exchange medical reports pursuant to Order 30,
r. 6(1). Rule 6(1) conferred wide power on the court to order production of
documents and was not confined to medical reports. The Court of Appeal in
approving the purpose of the order said at pp. 298-299:

The object of these provisions clearly is to ensure so far as possible that
the parties . . . put all their cards on the table, so that the real issues
between them emerge, and the amount of evidence necessary to be given,
whether documentary or oral, may be limited to matters which are really
in issue and seriously contested by the parties.
However, this object was held to be effectively negatived by Order 30, r. 6(4)
which read:

(4) Notwithstanding anything in the preceding provisions of this rule, no
information or documents which are privileged from disclosure shall be
required to be given or produced under this rule by or by the advisers of
any party otherwise than with the consent of that party.
^^Report of the Committee on Personal Injuries Litigation, Cmnd. 3691, (1968),
at pp. 81-83.

168

it reported on expert and opinion evidence. ^"^ With respect to the com-
pulsory simultaneous exchange of experts' reports the Committee recom-
mended:

10. any compulsory pre-trial disclosure of experts' reports should
be limited to oases where the report may be expected to be based
on agreed facts or on facts ascertainable by the expert from his
own observation or which are within his general professional knowl-
edge and experience;

11. medical reports made by experts on whose evidence a party
intends to rely at the trial should, as a general rule, be subject to
compulsory disclosure (whether or not an order for such disclosure is
applied for) and the onus of showing that a particular case is un-
suitable for compulsory disclosure should be on the party seeking to
avoid it;

15. compulsory disclosure of non-medical experts' reports should
be capable of being ordered, but only on the application of the
party seeking such disclosure and the onus should be on that party
to show that such disclosure is appropriate. ^^

These recommendations were implemented,^^ in the Civil Evidence Act
1972 as follows:

2. — (3) Notwithstanding any enactment or rule of law by virtue
of which documents prepared for the purpose of pending or con-
templated civil proceedings or in connection with the obtaining or
giving of legal advice are in certain circumstances privileged from
disclosure, provision may be made by rules of court —

(a) for enabling the court in any civil proceedings to direct, with
respect to medical matters or matters of any other class which
may be specified in the direction, that the parties or some of
them shall each by such date as may be so specified (or such
later date as may be permitted or agreed in accordance with
the rules) disclose to the other or others in the form of one
or more expert reports the expert evidence on matters of that
class which he proposes to adduce as part of his case at the
trial; and

(b) for prohibiting a party who fails to comply with a direction
given in any such proceedings under rules of court made by
virtue of paragraph (a) above from adducing in evidence by
virtue of section 2 of the Civil Evidence Act 1968 (admissibility
of out-of-court statements), except with the leave of the court,
any statement (whether of fact or opinion) contained in any
expert report whatsoever in so far as that statement deals with
matters of any class specified in the direction. ^"^

84Law Reform Committee, Seventeenth Report, Evidence of Opinion and Expert

Evidence, Cmnd. 4489, (1970).
85/6iW., at pp. 31-32.
86The limitation concerning privilege which led to the decision in Worrall v.

Reich, discussed at footnote 82 supra, was specifically excluded.
87Cm7 Evidence Act 1972, c. 30, s. 2(3).

169

Under the Rules of Practice of the Federal Court of Canada a full
statement of the proposed evidence-in-chief of an expert witness must be
put into the form of an affidavit or other written form and a copy must
be filed and served at least ten days before the trial. ^^ Such evidence must
relate to an issue that has been defined by the pleadings or by agreement
by the parties filed under Rule 485.

Under The Expropriations Act,^^ a party to an application before
the Land Compensation Board is required to serve upon the other parties,
a copy of any appraisal report upon which he intends to rely at the
hearing. We have been advised that this procedure is working quite
satisfactorily. Where any attempt is made to escape from the requirement
by stating that it is not proposed to rely on the report, but on the oral
evidence of the expert, the Board allows an adjournment, if requested, to
enable the party to consider the oral evidence. This practice has been
salutary in giving effect to the spirit of the statute.

Another method of minimizing the element of surprise in the case of
expert evidence is to permit the discovery by both parties of their
opponent's expert witnesses. In the United States the Federal Courts have
amended their Rules to permit a liberalized discovery of experts. As
amended in 1970, Rule 26 provides:

Rule 26(4): Trial preparation: Experts. Discovery of facts known
and opinions held by experts, otherwise discoverable under the provi-
sions of subdivision (b)(1) of this rule and acquired or developed
in anticipation of litigation or for trial, may be obtained only as
follows: (A)(i) A party may through interrogatories require any
other party to identify each person whom the other party expects to
call as an expert witness at trial, to state the subject matter on which
the expert is expected to testify, and to state the substance of the
facts and opinions to which the expert is expected to testify and a
summary of the grounds for each opinion, (ii) Upon motion, the
court may order further discovery by other means, subject to such
restrictions as to scope and such provisions, pursuant to subdivision
(b)(4)(C) of this rule, concerning fees and expenses as the court
may deem appropriate.

(B) A party may discover facts known or opinions held by an
expert who has been retained or specially employed by another party
in anticipation of litigation or preparation for trial and who is not
expected to be called as a witness at trial, only as provided in Rule
35(b) or upon a showing of exceptional circumstances under which
it is impracticable for the party seeking discovery to obtain facts or
opinions on the same subject by other means.

(C) Unless manifest injustice would result, (i) the court shall
require that the party seeking discovery pay the expert a reasonable
fee for time spent in responding to discovery under subdivisions

(b)(4)(A)(ii) and (b)(4)(B) of this rule; and (ii) with respect

88S.O.R. 71-68, Rule 482(1), (2).
89R.S.O. 1970, c. 154, s. 29(1).

170

to discovery obtained under subdivision (b)(4) (A) (ii) of this rule
the court may require, and with respect to discovery obtained under
subdivision (b)(4)(B) of this rule the court shall require, the party
seeking discovery to pay the other party a fair portion of the fees
and expenses reasonably incurred by the latter party in obtaining
facts and opinions from the expert.^^

Although the provisions for disclosure of experts' evidence may
appear to be novel incursions into the adversary system, they are not
without precedent. As early as 1782, in Folkes v. ChadcP^ Lord Mansfield
permitted the reception of expert opinion evidence from scientists called
by the parties. At the first trial, the opinion of Mr. Milne, an engineer,
was received as to the cause of the decay of a harbour. The plaintiff
obtained a verdict. However,

... a new trial was granted, on the ground that the defendants were
surprised by the doctrine and reasoning of Mr. Milne, and the parties
were directed to print and deliver over to the opposite side the
opinions and reasonings of the engineers whom they meant to
produce on the next trial, so that both sides might be prepared to
answer them.^^

The recommendations made by the Evershed Committee, the Law
Reform Committee, the EngUsh Joint Committee on Medical Evidence,
the Attorney General of Ontario's Committee and the Advisory Com-
mittee on Federal Rules of Civil Procedure in the United States reflect
a concern to avoid injustice by minimizing the element of surprise in
adversary proceedings with respect to expert evidence. In our view such
a concern is sound; where reports of experts have been prepared they
should be made admissible in evidence and exchanged. However, the law
should not restrict oral evidence in cases in which no report has been
prepared. Where no report has been prepared and oral evidence is called,
the rights of the parties may be safeguarded adequately in suitable cases
by an adjournment.

The change we recommend may be resisted on the grounds set out
by Lord Denning in Re Saxton:

The court would not order the report of either expert to be shown
to the other side before the trial. That could only be done by agree-
ment. This is the familiar practice in all cases where experts are
called, such as patent cases and Factory Act cases (where engineers
are employed) or personal injury cases (where doctors are em-
ployed). The reports of experts are often exchanged by agreement,
but no compulsion on either side is exercised; see Worrall v. Reich,
[1955] 1 Q.B. 296. The reason is because, to our way of thinking,

90Fed6ral Rules of Civil Procedure, 28 U.S.C.A. For a full analysis of the
problem, and recommendations for rules similar to that enacted see: Friedenthal,
"Discovery and Use of an Adverse Party's Expert Information" (1962), 14
Stan. L. Rev. 455; and Long, "Discovery and Experts under the Federal Rules
of Civil Procedure" (1965), 38 F.R.D. 111.

91(1782), 3 Dougl. K.B. 157, 99 E.R. 589.

171

the expert should be allowed to give his report fully and frankly to
the party who employs him, with all its strength and weakness, and
not be made to offer it beforehand as a hostage to the opponent,
lest he take unfair advantage of it. In short, it is one of our notions
of a fair trial that, except by agreement, one side is not entitled to
see the proofs of the other side's witnesses.^^

The fears expressed by Lord Denning have not been justified by the
experience with section 52 of The Evidence Act or under the practice
in the Federal Courts of Canada.

(b) Recommendation

We therefore recommend that The Evidence Act be amended to in-
clude the following provision:

(1) Any report, other than one to which section 17 applies,
obtained by or prepared for a party to a proceeding and signed by a
person entitled according to the law or practice to give opinion
evidence is, with the leave of the court and after at least seven days
notice has been given to all other parties, admissible in evidence in
the proceeding.

(2) Unless otherwise ordered by the court, a party to a pro-
ceeding is entitled to obtain the production for inspection of any
report of which notice has been given under subsection 1 within
five days after giving notice to produce the report.

(3) Except by leave of the judge presiding at the proceeding,
a person who has made a report mentioned in subsection 1 shall
not give evidence at the proceeding touching upon any matter to
which the report relates unless subsection 1 has been complied with.

(4) This section applies only to proceedings in the Supreme
Court and the county and district courts. [Draft Act, Section 16.]

6. Summary of Recommendations Dealing with Opinion Evidence.
We recommend the following amendments to The Evidence Act:

1. Where a witness in a proceeding is testifying in a capacity other
than as a person qualified to give opinion evidence and a question
is put to him to ehcit a fact that he personally perceived, his
answer is admissible as evidence of the fact even though given
in the form of an expression of his opinion upon a matter in issue
in the proceeding. [Draft Act, Section 14.]

2. Where a witness in a proceeding is qualified to give opinion
evidence, his evidence in the form of opinions or inferences is not
made inadmissible because it embraces an ultimate issue of fact.
[Draft Act, Section 15.]

3. (1) Any report, other than one to which section 17 applies,
obtained by or prepared for a party to a proceeding and signed

93[1962J 3 All E.R. 92, 94.

172

by a person entitled according to the law or practice to give
opinion evidence is, with the leave of the court and after at
least seven days notice has been given to all other parties,
admissible in evidence in the proceeding.

(2) Unless otherwise ordered by the court, a party to a
proceeding is entitled to obtain the production for inspection
of any report of which notice has been given under subsection 1
within five days after giving notice to produce the report.

(3) Except by leave of the judge presiding at the pro-
ceeding, a person who has made a report mentioned in sub-
section 1 shall not give evidence at the proceeding touching
upon any matter to which the report relates unless subsection 1
has been complied with.

(4) This section applies only to proceedings in the Supreme
Court and the county and district courts. [Draft Act, Section 16.]

We recommend that The Judicature Act be amended as follows:

4. (1) In any action the court upon the application of any party
or upon its own motion, may appoint one or more persons
qualified to give opinion evidence concerning the subject matter
in issue, to make such investigation as the court considers ex-
pedient concerning the matter.

(2) A person so appointed shall report his findings to the
parties only and he may be called as a witness by the judge
or any party and be subject to cross-examination by any of the
parties to the action.

(3) The court shall have the power to fix the compensa-
tion to be paid to such person and may direct payment thereof
by the parties in such proportions as the court may direct or
out of the consolidated revenue fund.

(4) Where a person has been appointed under this section
in any action tried by a jury, the court shall not disclose to the
jury that such person was appointed by the court.

(5) Nothing in this section shall affect the rights of the
parties to call witnesses to give opinion evidence.

5. Rule 267 should be repealed.

CHAPTER 11

USE OF NOTES AND PAST RECORDS

1. Introduction

As a general rule a witness must give his testimony in court orally
from memory, free from suggestion or instruction, in response to ques-
tions put to him by counsel. He may not recite from a prepared statement.
A witness may, however, in certain circumstances be permitted to refer
to notes while testifying.

The use of notes was divided at common law into two categories:
notes used to refresh the witness' present memory of past events, and
notes or things used to record past events of which the witness has no
present memory. The distinction between these two common law cate-
gories, which is not always clearly maintained, must be examined before
considering relevant legislation.

2. Use of Notes or Things to Revive Memory.

(a) Discussion

It is important to distinguish between the use of notes, drawings,
maps or other things used to assist the witness to recall a circumstance,
and the use of notes which record past events which the witness cannot
recall.

If the witness' memory is truly revived by reference to a previously
recorded note or other thing, his oral testimony is the evidence received
by the court. The only function of the note or other thing is to revive
his memory, thus enabling him to testify from his present recollection of
previous events. The note or thing is not admissible as evidence per se
of the matters contained in it and it forms no part of the actual testimony.
It is not the authenticity of the written document that is in issue, but
rather the witness' ability to recall and testify as to the past events. The
principle governing the use of notes to revive memory is stated by Lord
Ellenborough, C.J., in Henry v. Lee:

It is sufficient if a man can positively swear that he recollected the
fact, though he had totally forgotten the circumstance before he came
into Court; and if upon looking at any document he can so far refresh
his memory as to recollect a circumstance, it is sufficient; and it makes
no difference, that the memorandum was written by himself, for it is
not the memorandum that is the evidence, but the recollection of the
witness. 1

The writing may have been that of the witness himself or of others,
"providing in the latter case that it was read by him when the facts
were fresh in his memory and he knew the statement to be correct".^

Wenry v. Lee (1810), 2 Chitty 124, 124-125, per Lord Ellenborough.
2Phipson, Evidence (11th Ed. 1970), para. 1528, at p. 633.

173

174

The note need not even be a written note but may be a tape recording of
a conversation overheard.^

In Lawes v. Reed^ Baron Alderson held that a witness can refresh
his memory from notes of counsel taken on his brief at a former trial. He
observed, however, that the witness must afterwards speak from his
refreshed memory, and not merely from the notes. Sir Gregory A. Lewin,
in a note to his report of this case clearly sets out the rationale of this rule :

Where the object is to revive in the mind of the witness the
recollection of facts of which he once had knowledge, it is difficult
to understand why any means should be excepted to whereby that
object may be attained. Whether in any particular case the witness's
memory has been refreshed by the document referred to, or he speaks
from what the document tells him, is a question of fact open to
observation, more or less, according to the circumstances. But if, in
truth, the memory has been refreshed, and he is enabled in conse-
quence to speak to facts with which he was once familiar, but which
afterwards escaped him, it cannot signify in effect in what manner or
by what means those facts were recalled to his recollection.

Common experience tells every man, that a very slight circum-
stance, and one not in point to the existing inquiry, will sometimes
revive the history of a transaction made up of many circumstances.
The witnesses who come into the box to speak of facts of ancient date
are generally schooled beforehand, and the means employed to
refresh their memory are such as are deemed best calculated to
accomplish that end. These persons afterwards swear to the facts
from their own knowledge and recollection of them, and their tes-
timony is received as a thing of course. Why, then, if a man may
refresh his memory by such means out of Court, should he be
precluded from doing so when he is under examination in Court?^

Often, in dealing with cases concerned with refreshing a witness'
memory, the courts do not distinguish between cases in which the witness
speaks from a revived memory, and cases in which the witness affirms
past recollection recorded. Although it is clear that a witness need have
no independent recollection of events to which he is prepared to testify
on the basis of a document recording the events,^ it is confusing and in-
appropriate to use the term "refreshing memory" to refer to cases of past
recollection recorded:

that is a very inaccurate expression; because in nine cases out of ten
the witness's memory is not at all refreshed; he looks at it (the
document) again and again; and he recollects nothing of the trans-
action; but, seeing that it is in his own handwriting, he gives credit
to the truth and accuracy of his habits, and, though his memory is
a perfect blank, he nevertheless undertakes to swear to the accuracy
of his notes."^

3i?. V. Mills, R. V. Rose, [1962] 3 All E.R. 298.

4[1835] 2 Lewin 152, 168 E.R. 1111.

5 1 bid., at p. 153.

^Fleming Y. Toronto Railway Co. (1912), 25 O.L.R. 317.

175

Where notes or documents are used to revive memory, the notes or
documents should not, logically, be admitted in evidence; in this case it
is the oral testimony of the witness upon which the court should rely. In
Canada, however, while the courts have stated, generally, that documents
used to refresh memory are not themselves evidence, they have not, in
enunciating the general principle, distinguished between the two types of
cases to which we have referred; as a result, it is not clear to which type
of case the prohibition extends. For example, in Young v. Denton and
Tate^ a witness spoke from a business pad kept as a sort of diary which
recorded his activities from day to day. The case, which was one of
vicarious liabihty, turned on whether the employee was traveUing on the
defendant's business on the date of the accident giving rise to the action.
The trial judge considered that the diary, kept as it was on consecutive
days recording the services of the employee, was corroborative of the
defendant's evidence that the employee had not performed services for
him on the relevant date. The Saskatchewan Court of Appeal held that the
memorandum was not admissible in evidence and directed a new trial.
It is not clear from the judgment whether the witness used the record to
revive his memory, or whether he spoke from the record as past recollec-
tion recorded.

Cross, dealing with conditions on which memory may be refreshed
by reference to documents, says :

The document must have been made substantially at the same
time as the occurrence of the events to which the witness is required
to depose, it must have been made or read over by, or under the
supervision of, the witness, it must be produced to the court or
opposite party on demand, and in one class of case, the document
must be the original.^

Phipson states:

A witness may refresh his memory by reference to any writing
made or verified by himself concerning, and contemporaneously with,
the facts to which he testifies; but such documents are no evidence
per se of the matters contained.

The writing [from which the witness refreshes his memory]
may have been made either by the witness himself, or by others,
providing in the latter case that it was read by him when the facts
were fresh in his memory, and he knew the statement to be correct. ^^

However, certain cases dealing with the use of prior depositions to
refresh a witness' memory appear to be inconsistent with the requirements
of contemporaneity of the document, and verification by the witness. In
Reference Re Regina v. Coffin}^ the majority of the Supreme Court of

7Hayes, J., in Lord Talbot de Malahide v. Cusack (1864), 17 I.C.L.R. 213
at p. 220.
8[1927] 1 D.L.R. 426, [1927] 1 W.W.R. 75.

9Cross, Evidence (4th Ed. 1974), at p. 204. Cross notes that Wigmore's conten-
tion that these conditions need not be met in cases where memory is revived,
is not supported by the English cases: Ibid., at p. 206, footnote 2.
lophipson, Evidence (11th Ed. 1970), para. 1528, at pp. 632-33.
n[1956] S.C.R. 191.

176

Canada were of the view that it was acceptable for Crown counsel to
show a witness her deposition taken at the preliminary inquiry for the
purpose of refreshing her memory at a subsequent trial. The argument in
the case dealt mainly with whether Crown counsel, in showing the prior
deposition to the witness and questioning her concerning it, was in effect
cross-examining her on the basis of prior inconsistent statements. Cart-
wright, J., dissented on the ground that the prior deposition was used, not
to refresh the witness' memory, but to impeach her by cross-examination.

Kellock, J., stated that the witness' evidence was admissible on the
ground that the witness

[hjaving answered that . . . [her memory of the facts at the time of
the preHminary hearing] was 'a Httle better than they are now' . . .
[and] that her memory when she had thus testified was 'not too bad
I guess', . . . was adopting as the fact what she had said at the
preliminary inquiry and her evidence is to be taken accordingly.^^

The learned judge continued:

Moreover, the authorities make it clear that a witness may be allowed
to refresh his memory by reference to his earlier depositions and that
it is only where the object of the examination is to discredit or
contradict a party's own witness that s. 9 of the Canada Evidence
Act [dealing with impeachment of one's own witness] applies. ^^

In coming to this conclusion, Kellock, J., rehed on two nineteenth
century English judgments, which some authors ^"^ regard as frail authority
for the Coffin decision. In R. v. Williams^^ a prosecution witness had
testified differently from counsel's expectations; counsel was permitted to
show the witness an earlier deposition for the purpose of refreshing his
memory. When the witness continued to give the same answer after
refreshing his memory, the court permitted counsel to put the question
in a leading form. Kellock, J., also quoted an extract from the judgment
of Coleridge, J., in Melhuish v. Collier}^ suggesting that a witness may
be asked whether he made the same answer in earlier proceedings, if it
is done, not to discredit the witness, but merely to remind him of an
earlier answer. The line may often be a difficult one to draw. The case of
Melhuish v. Collier has always been analysed in terms of the law relating
to prior inconsistent statements. ^"^ Neither case, therefore, may be strictly
relevant to a discussion of using depositions to refresh memory.

mbid., at p. 211.

13/zjiU, at pp. m-m.

i4See Cross, Evidence (4th Ed. 1974), at p. 204, footnote 8 and text accompanying.

15(1853), 6 CoxC.C. 343.

16(1850), 19 L.J.Q.B. 493, 15 Q.B. (A «& Ens.) 878.

17In Wawanesa Mutual Insurance Co. v. Hanes ([1961] O.R. 495, 502, 28 D.L.R.
(2d) 386, 393, upheld on appeal (on different grounds) to Supreme Court of
Canada ([1963] S.C.R. 154), Porter, C.J.O., analysed the case and concluded
that "at common law questions could have been put to a witness by the party
calling him as to former inconsistent statements if it were not done with the
object of impeaching the credit of the witness, although consequentially it might
have this effect. The cases illustrate the obvious difficulties in drawing a line
of distinction".

177

In R.Y. Woodcock^^ a court consisting of Lord Parker, C.J., Ashworth
and Winn, J. J., held that a trial judge was wrong in letting a witness refresh
his memory from a deposition previously taken since it was not a con-
temporaneous note or record.

In our view, the approach adopted in the Woodcock decision is
preferable as being more consistent with the requirement that the note
be a contemporaneous record, made or verified by the witness. In addition
we think that, where a witness uses a document or note to revive his
memory, the document should not itself become evidence.

(b) Recommendation

We think that the law concerning the use of writings to revive memory
should be clarified by statute. We recommend that The Evidence Act be
amended by including the following section:

( 1 ) Where a witness in a proceeding is unable to recall fully any
matter upon which he is being questioned, he may use any writing or
other thing made or verified by him or under his direction at the time
of the event or within a reasonable time thereafter in order to revive
his memory.

(2) Where a writing or other thing is used by a witness in a
proceeding in order to revive his memory, any adverse party is entitled
to inspect the writing or thing and may cross-examine the witness
concerning it.

(3) A writing or other thing used by a witness in a proceeding
to revive his memory shall not be used as evidence of the facts stated
therein. [Draft Act, Section 37.]

3. Past Recollection Recorded

(a) Discussion

Fleming v. Toronto Railway Co. Ltd.,^'^ is the leading Ontario case on
the use of a written record, where the witness has no independent recollec-
tion. In that case, Middleton, J., refused to permit an inspector to testify
as to the inspection of the streetcar in question by looking at an inspec-
tion record signed by him, unless the witness could say by refreshing his
memory from looking at the sheet that he remembered the inspection.
On appeal, Meredith, J. A., remitted the case for a new trial stating:

If, looking at the report, the witness could have said, 'That is my
report, it refers to the car in question, and shews that it was examined
at that time, and, though I cannot from memory say that it was then
examined, I can now swear that it was, because I signed no report
that was untrue, and at the time I signed this report I knew that it
was true,' that would, of course, be very good evidence.

The use of past recollection recorded is quite different from the use of
notes or things to revive the memory. In cases of past recollection re-

18[1963] Crim. L.R. 273.
19(1911), 25 O.L.R. 317 (C.A.),

178

corded, a witness does not purport to have a memory of the events in
question but introduces the record as evidence of the facts contained
therein and sworn to be correct because he recorded them correctly. The
record becomes the evidence and is presented to the court as such.^^

It is often difficult to know how a witness may be using the notes
in question. The distinction between present memory revived and past
recollection recorded is often a subtle one. Yet the rules relating to the
two appear to differ. Notes that may be admissible when a witness'
memory has failed completely, will not necessarily be admissible if they
are used merely to jog his memory.

The use of notes as past recollection may be classified as an excep-
tion to the hearsay rule, or it may be an independent rule that permits a
witness to incorporate the written record as his testimony. The analysis
depends on how broadly one defines hearsay.^^ However it is analysed,
such evidence differs from the standard hearsay testimony because the
declarant is himself before the court, and his capacities of perception and
his disposition to make an honest use of his own notes may be examined.

Where the notes have been written by two or more people, the task
of evaluating the weight to be assigned to the document is more difficult;
where one person observes a fact and reports it to another, who makes
a record, the document would appear to be almost as reliable as if the
observer had himself made the record, so long as he verifies the accuracy
of that record while memory of it is still fresh in his mind.22

Rules that have been developed concerning the admissibility of
records of events now no longer remembered, appear to guarantee a
certain prima facie trustworthiness. The basic principle is that the writer
must have had personal knowledge of the matter recorded, and that the
record must have been made at, or close to, the time of the event recorded.
Whether the elapsed time between the event and the making of the record
will be considered too long depends upon the circumstances of each case,
but the recollection must be fresh in the mind of the observer. He must
be able to swear to the accuracy of the record by remembering his belief
at the time that the record was true, or by relying upon a general habit
of correctness. The observer of the event need not be the actual recorder,
so long as the observer verifies the record at the time his recollection
was fresh. In addition, the original of the record must be produced unless
it is no longer available.

203 Wigmore, Evidence, §749(3) (Chadbourn Rev. 1970).
21 A commonly accepted English definition is:

evidence of a statement made by a person who is not himself called as a

witness, when the object of the evidence is to establish the truth of what is

contained in the statement. {Subramaniam v. D.P.P., [1956] 1 W.L.R. 965)

If hearsay is limited to statements made by a person other than the witness

who is testifying, using notes in this fashion could not be considered hearsay.

In the United States, on the other hand, hearsay is sometimes defined more

broadly, to include out-of-court statements by the person testifying; on the

basis of this definition, the use of notes as past recollection recorded could be

considered hearsay.

22This problem is particularly relevant to the subject of "business records": see

section 4, infra.

179

It can be argued that the use of notes in this way offends the rule
against narrative, that oral testimony should be free from suggestion or
instruction. It is thought that the testimony will fail to represent the
witness' sincere and actual recollection. It is apparent, however, that most
jurisdictions permit the use of past recollection recorded, and allow the
witness to "adopt" the record, provided it fulfils the criteria set out above.
Whether this is regarded as an exception to the hearsay rule or whether
the written record merely becomes part of the witness' oral testimony
seems to be of only academic significance.

(b) Recommendation

We recommend that the law should be clarified by adding the fol-
lowing section to The Evidence Act:

( 1 ) Where a witness in a proceeding is being questioned upon
any matter concerning which he had prior knowledge but which he is
unable to recall, he may read from any record concerning any fact
stated therein of which direct oral evidence given by the witness would
be admissible,

(a) if the record was made by him contemporaneously with the
occurrence of the matter or subsequently while the matter was
still fresh in his mind; or

(b) if, where the record was made by a person other than the
witness, it was checked as to its accuracy by the witness sub-
sequently while the occurrence was still fresh in his mind.

(2) Any portion of a record read from under subsection 1
shall be introduced in evidence together with such other portions of
the record as the court may direct to be admitted as explanatory
thereof.

(3) Where it is not practical to introduce the original record,
a copy thereof may be introduced as the court may direct. [Draft Act,
Section 38.]

4. Records Made in the Course of Duty

(a) Business Records

(i) Discussion

The Evidence Act (Ontario) provides:

36. (1) In this section,

(a) "business" includes every kind of business, profession, oc-
cupation, calling, operation or activity, whether carried on
for profit or otherwise;

(b) "record" includes any information that is recorded or
stored by means of any device.

(2) Any writing or record made of any act, transaction, oc-
currence or event is admissible as evidence of such act, transaction,
occurrence or event if made in the usual and ordinary course of any

180

business and if it was in the usual and ordinary course of such
business to make such writing or record at the time of such act,
transaction, occurrence or event or within a reasonable time there-
after.

(3) Subsection 2 does not apply unless the party tendering the
writing or record has given at least seven days notice of his intention
to all other parties in the action, and any party to the action is
entitled to obtain from the person who has possession thereof produc-
tion for inspection of the writing or record within five days after
giving notice to produce the same.

(4) The circumstances of the making of such a writing or
record, including lack of personal knowledge by the maker, may be
shown to affect its weight, but such circumstances do not affect its
admissibility.

(5) Nothing in this section affects the admissibility of any
evidence that would be admissible apart from this section or makes
admissible any writing or record that is privileged.

At common law, statements made in the course of duty are recog-
nized as an exception to the hearsay rule. To render such statements
admissible, the declarant must be dead; he must have been under a duty
to record the act; the declarations must have been made contempora-
neously with the acts to which they relate; and the declarant must have
had personal knowledge of the facts so recorded. This exception is, in
practice, so narrow that it would frequently be inapplicable to modern
business records. For example, in Myers v. D.P.P.,^^ records of engine
serial numbers systematically recorded on the assembly line were none-
theless held to be inadmissible at common law as hearsay evidence.

Before the Myers case, some courts in Canada began to admit docu-
ments as "business entries". In /. H. Ashdown Hardware Co. Ltd. v.
Singer,^^ the court permitted the plaintiff's credit manager to testify con-
cerning the manner in which delivery records were made, and then ad-
mitted the records themselves as proof of the facts contained therein. The
court followed Omand v. Alberta Milling Co.^"^ and referred to the neces-
sity of allowing records of business transactions to be admitted in the
light of modern practices. In the Omand case, certain passages in Wigmore
concerning records as past recollection recorded were relied on. In both
cases there appears to be some confusion between "business entries" and
documents admitted under the rules relating to past recollection recorded.

These cases were reviewed by the Supreme Court of Canada in
Ares V. Venner.'^^ The court refused to follow the majority judgment in
the Myers case and adopted the minority view that judge-made law con-
cerning the hearsay rule "needs to be restated to meet modem conditions".
The court held that "hospital records including nurses' notes, made con-

23[1965] A.C. 1001.
24[1952] 1 D.L.R. 33, 3 W.W.R. 145.
25[1922] 3 W.W.R. 412, 18 Alta. L.R. 383.
26[1970] S.C.R. 608.

181

temporaneously by someone having a personal knowledge of the matters
then being recorded and under a duty to make the entry or record should
be received in evidence as prima facie proof of the facts stated therein. "^"^

This case settles the common law in Ontario; although the statement
refers only to hospital records, it may be inferred that this decision also
settles the law applicable to records of other businesses made in similar
circumstances.

In an earlier case, Adderly v. Bremner,'^^ Brooke, J., construing
section 36 of the Ontario Act, held that it was not broad enough to permit
the admission of hospital records in which statements of opinion and un-
pressions were recorded as well as events occurring prior to the admission
of the plaintiff to the hospital.

In Aynsley v. Toronto General HospitaP^ Morand, J., construed the
section as applying to:

. . . such routine entries in a hospital record as the date of admittance,
the time of admittance, the name of the attending physician, the
routine orders as to care of the patient such as the administration
of drugs, notation by the nurse of taking temperatures . . .^^

However, it would appear that the Ares case may be applied to
render admissible records which could not be admitted under the strict
wording of section 36 of The Evidence Act. It is a decision declaring the
common law in Canada. Section 36(5) of the Ontario Act contains the
following provision:

36. (5) Nothing in this section affects the admissibility of any
evidence that would be admissible apart from this section or makes
admissible any writing or record that is privileged.

The Canada Evidence Act deals exhaustively with the subject of
business records in section 30.^^

'2-Vbid., at p. 626.

28[1968] 1 O.R. 621.

29(1972), 25 D.L.R. (3d) 241 (S.C.C.); [1969] 2 O.R. 829; [1968] 1 O.R. 425.

30[1968] 1 O.R. 425, 432.

31R.S.C. 1970, c. E-10, s. 30, provides:

30. (1) Where oral evidence in respect of a matter would be admissible in
a legal proceeding, a record made in the usual and ordinary course of
business that contains information in respect of that matter is admissible
in evidence under this section in the legal proceeding upon production of
the record.

(2) Where a record made in the usual and ordinary course of business does
not contain information in respect of a matter the occurrence or existence
of which might reasonably be expected to be recorded in that record, the
court may upon production of the record admit the record for the purpose
of establishing that fact and may draw the inference that such matter did
not occur or exist.

(3) Where it is not possible or reasonably practicable to produce any
record described in subsection (1) or (2), a copy of the record accompanied
by an affidavit setting out the reasons why it is not possible or reasonably
practicable to produce the record and an affidavit of the person who made
the copy setting out the source from which the copy was made and attesting
to its authenticity, each affidavit having been sworn before a commissioner

182

or other person authorized to take affidavits, is admissible in evidence
under this section in the same manner as \l it were the original of such
record.

(4) Where production of any record or of a copy of any record described
in subsection (1) or (2) would not convey to the court the information
contained in the record by reason of its having been kept in a form that
requires explanation, a transcript of the explanation of the record or copy
prepared by a person qualified to make the explanation, accompanied by an
affidavit of that person setting forth his qualifications to make the explana-
tion, attesting to the accuracy of the explanation and sworn before any
commissioner or other person authorized to take affidavits, is admissible in
evidence under this section in the same manner as if it were the original of
such record.

(5) Where part only of a record is produced under this section by any
party, the court may examine any other part of the record and direct that,
together with the part of the record previously so produced, the whole or
any part of such other part thereof be produced by that party as the record
produced by him.

(6) For the purpose of determining whether any provision of this section
applies, or for the purpose of determining the probative value, if any, to
be given to information contained in any record received in evidence under
this section, the court may, upon production of any record, examine the
record, receive any evidence in respect thereof given orally or by affidavit
including evidence as to the circumstances in which the information con-
tained in the record was written, recorded, stored or reproduced, and draw
any reasonable inference from the form or content of the record.

(7) Unless the court orders otherwise, no record or affidavit shall be re-
ceived in evidence under this section unless the party producing the record
or affidavit has, at least seven days before its production, given notice of his
intention to produce it to each other party to the legal proceeding and has,
within five days after receiving any notice in that behalf given by any such
party, produced it for inspection by such party.

(8) Where evidence is offered by affidavit under this section it is not
necessary to prove the signature or official character of the person making
the affidavit if the official character of that person is set out in the body
of the affidavit.

(9) Subject to section 4, any person who has or may reasonably be
expected to have knowledge of the making or contents of any record
produced or received in evidence under this section may, with leave of the
court, be examined or cross-examined thereon by any party to the legal
proceeding.

(10) Nothing in this section renders admissible in evidence in any legal
proceeding

(a) such part of any record as is proved to be

(i) a record made in the course of an investigation or inquiry,
(ii) a record made in the course of obtaining or giving legal advice or

in contemplation of a legal proceeding,
(iii) a record in respect of the production of which any privilege exists

and is claimed, or
(iv) a record of or alluding to a statement made by a person who is
not, or if he were living and of sound mind would not be, com-
petent and compellable to disclose in the legal proceeding a matter
disclosed in the record;

(b) any record the production of which would be contrary to public policy;
or

(11) The provisions of this section shall be deemed to be in addition to
and not in derogation of

(a) any other provision of this or any other Act of the Parliament of
Canada respecting the admissibility in evidence of any record or the
proof of any matter, or

183

In the United States, the Model Code of Evidence, the Uniform
Rules, 1953, and the Federal Rules of Evidence all deal at length with
business entries. ^^ All three require that witnesses be produced to account
for the gathering, transmitting and recording of the information. The
Federal Rules, for example, expressly provide that a requisite foundation
be laid by "the custodian or other qualified witness". ^^

The Model Code and the Uniform Rules, 1953, provide for the
admissibility of records kept "in the regular course of business", with
the definition of "business" being broad enough to include activities not
carried on for profit. ^^ The proposed Federal Rules contained the phrase
"regularly conducted activity" which appears to be somewhat broader.
For example, regular entries in a personal diary may be a regularly
conducted activity, but not an entry made in the regular course of busi-
ness, as usually defined. However, the Committee on the Judiciary were
of the view that there were insufficient guarantees or reliability in records
made in the course of activities which were not business activities, ^^ and
the Federal Rules now refer to "records kept in the course of a regularly
conducted business activity", business being defined to include activities
not conducted for profit.

The broader the definition of "business", the more frequently diffi-
culties tend to arise concerning the reliability of the source of the informa-
tion. In addition, in certain cases, as for example where there is a

(b) any existing rule of law under which any record is admissible in

evidence or any matter may be proved.
(12) In this section

"business" means any business, profession, trade, calling, manufacture or
undertaking of any kind carried on in Canada or elsewhere whether for
profit or otherwise, including any activity or operation carried on or per-
formed in Canada or elsewhere by any government, by any department,
branch, board, commission or agency of any government, by any court or
other tribunal or by any other body or authority performing a function of
government;

"copy", in relation to any record, includes a print, whether enlarged or
not, from a photographic film of such record, and "photographic film"
includes a photographic plate, microphotographic film or photostatic
negative;

"court" means the court, judge, arbitrator or person before whom a legal
proceeding is held or taken;

"legal proceeding" means any civil or criminal proceeding or inquiry in
which evidence is or may be given, and includes an arbitration;
"record" includes the whole or any part of any book, document, paper,
card, tape or other thing on or in which information is written, recorded,
stored or reproduced, and, except for the purposes of subsections (3) and
(4), any copy or transcript received in evidence under this section pursuant
to subsection (3) or (4).
32See American Law Institute, Model Code of Evidence (1942), Rule 514;
National Conference of Commissioners on Uniform State Laws, Uniform Rules
of Evidence (1953), Rule 63(13) (now superseded by the Uniform Rules of
Evidence (1974)); Federal Rules of Evidence, 28 U.S.C.A., Rule 803(6).
33Federal Rules of Evidence, U.S.C.A., Rule 803(6).
34See Model Code of Evidence, footnote 32 supra. Rule 514; and Uniform Rules

of Evidence (1953), footnote 32 supra. Rules 62 and 63(13).
35See Note of Committee on the Judiciary to Rule 803(6), 28 U.S.C.A. at p.
579.

184

requirement to report an accident, the recorder may have a strong motive
to falsify evidence. The American codifications exhibit concern about the
problems of rehabihty and the motivation of the informant. Rule 63(13)
of the Uniform Rules requires the judge to find that "the method and
circumstances of their [the entries] preparation were such as to indicate
their trustworthiness". Rule 514 of the Model Code requires:

. . . that it was the regular course of that business for one with
personal knowledge ... to make such a memorandum or record
or to transmit information thereof to be included in such a memor-
andum or record. [Emphasis added.]

Rule 80'3(6) of the Federal Rules of Evidence provides for the admis-
sibility in evidence of the following:

Records of regularly conducted activity. A memorandum, re-
port, record, or data compilation, in any form, of acts, events,
conditions, opinions, or diagnoses, made at or near the time by, or
from information transmitted by, a person with knowledge, if kept
in the course of a regularly conducted business activity, and if it
was the regular practice of that business activity to make the
memorandum, report, record, or data compilation, all as shown by
the testimony of the custodian or other qualified witness, unless the
source of information or the method or circumstances of preparation
indicate lack of trustworthiness. The term "business" as used in this
paragraph includes business, institution, association, profession,
occupation, and calling of every kind, whether or not conducted for
profit.

The Federal Rules require personal knowledge, and empower the court
to exclude a record if the source of information or the method or circum-
stances of preparation indicate lack of trustworthiness. In contrast. The
Evidence Act (Ontario) makes the circumstances of preparation of the
record a factor affecting weight, but not admissibility.^^

Generally speaking, entries in the form of opinions are not found in
traditional business records, since they tend to be of a purely factual
and routine nature. However, there are exceptions such as entries made
in hospital records, garage records and mechanics' records. The use of
the words "act, transaction, occurrence or event"^'^ in the Ontario Act
would seem to exclude opinion from admissible records. ^^ While the Model
Code uses the words "act, event or condition",^^ the Canada Evidence Act,
section 30(1), has used the more comprehensive term "matter". The
Federal Rules specifically provide for the admission of diagnosis and
opinion.40

Where a record contains data which is not purely factual, it may be
persuasively contended that the person giving the diagnosis or opinion

36R.S.O. 1970, c. 151, s. 36(4).

^Vbid., s. 36(2).

38See Adderley v. Bremner, footnote 28 supra.

39Model Code of Evidence, footnote 32 supra, Rule 514(1)

"^osupra, footnote 33, Rule 803(6).

185

ought to be available for cross-examination to permit a proper assess-
ment of the value of his evidence to be made. However, cases in the
United States seem to indicate a fairly wide-spread practice of admitting
records of opinion where the issue is the performance of well-established
functions. We think records containing such matters should be admissible
as prima facie evidence

We think that, basically, section 30 of the Canada Act is an im-
provement on section 36 of the Ontario Act, and should be adopted in
Ontario with certain changes, modifications and additions.

In the Canada Evidence Act there are important provisions that do
not appear in the Ontario Act. The qualifying condition "where oral
evidence in respect of the matter would be admissible . . ." is an important
one and we think this qualification should be included in the Ontario
Act. It makes it clear that evidence that would otherwise be inadmissible,
for example, second hand hearsay, is not admissible under this section.

There is a second difference between the two Acts. Section 36(2)
of the Ontario Act requires that the record be made "at the time of such
act, transaction, occurrence or event or within a reasonable time there-
after" and thus appears to incorporate a principle relating to past recol-
lection recorded. Under section 30(6) of the Canada Act a more flexible
approach is taken by giving the court power to inquire "into the circum-
stances" of the making of the record for the purpose of deciding its
admissibility or probative value. Certain difficulties may arise in the
application of the relevant provisions. In some businesses, permanent
records are made a considerable time after temporary records are made,
at which time the latter are destroyed. While the latter may comply
v^th section 35 or section 36 of the Ontario Act, it may be difficult for the
permanent records to satisfy the requirement of contemporaneity, despite
the fact that they may be as fully trustworthy as the temporary records
made immediately after the event.

There is another essential difference between the Canada Act and
the Ontario Act. The Canada Act uses the words "any matter", whereas
the Ontario Act uses the more detailed: "any writing or record made of
any act, transaction, occurrence or event". As we have seen, this provi-
sion was held in Adderly v. Bremner^^ to exclude hospital records con-
taining expressions of opinion. In our view the word "matter" is preferable,
as being more comprehensive and contemplating the admissibility of
records of opinion which we have recommended should be admissible as
prima facie evidence. It is moreover the very word used by Hall, J., in
his judgment in the /I re^ case.'^^

To be admissible in evidence under the Ontario Act, a record must
not only be made in the usual and ordinary course of business; it must
be part of the usual and ordinary course of business to make such a
record. The Canada Act merely requires that the record be made in the
usual and ordinary course of business. We think that the additional On-

4i[1968] 1 O.R. 621.
42[1970]S.C.R. 608,626.

186

tario qualification, that it be in the ordinary course of the business to make
the records sought to be introduced in evidence, should be retained as
tending to guarantee a routine and, hence, prima facie trustworthy entry.

Subsections 2 to 1 1 of section 30 of the Canada Act are all useful
provisions and should be incorporated in the Ontario Act. Subsection 12
containing the interpretative clauses is more comprehensive than section
36(1) (a) of the Ontario Act, and, with appropriate modification, should
be adopted.

(ii) Recommendation

We recommend that section 36 of The Evidence Act be repealed
and the following be substituted therefor:

( 1 ) In this section,

(a) "business" means any business, profession, trade, calUng, manu-
facture or undertaking of any kind carried on in Canada or else-
where whether for profit or otherwise, including any activity or
operation carried on or performed in Canada or elsewhere by any
government, by any department, branch, board, commission or
agency of any government, by any court or other tribunal or by
any other body or authority performing a function of govern-
ment;

(b) "copy", in relation to any record, includes a print, whether en-
larged or not, from a photographic film of such record, and
"photographic film" includes a photographic plate, microphoto-
graphic film or photostatic negative;

(c) "record" includes the whole or any part of any book, document,
paper, card, tape or other thing on or in which information is
written, recorded, stored or reproduced, and, except for the
purposes of subsections 4 and 5, any copy or transcript received
in evidence under this section pursuant to subsection 4 or 5.

(2) Where oral evidence in respect of a matter would be admis-
sible in a proceeding, a record that contains information in respect of
that matter is admissible in evidence in a proceeding upon production
of the record if it was made in the usual and ordinary course of
business and it was in the usual and ordinary course of business to
make such a record.

(3) Where a record was made in the usual and ordinary course
of business and it was in the usual and ordinary course of business to
make such a record, and that record does not contain information in
respect of a matter the occurrence or existence of which might reason-
ably be expected to be recorded in that record, the court may upon
production of the record admit the record in a proceeding for the
purpose of establishing that fact and may draw the inference that such
matter did not occur or exist.

(4) Where it is not possible or reasonably practicable to pro-
duce a record described in subsection 2 or 3, a copy of the record
accompanied by an affidavit setting out the reasons why it is not

187

possible or reasonably practicable to produce the record and an affi-
davit of the person who made the copy setting out the source from
which the copy was made and attesting to its authenticity, is admis-
sible in evidence under this section in the same manner as if it were
the original record.

(5) Where production of a record or of a copy of a record
described in subsection 2 or 3 would not convey to the court the
information contained in the record by reason of its having been kept
in a form that requires explanation, a transcript of the explanation of
the record or copy prepared by a person qualified to make the ex-
planation, accompanied by an affidavit of that person setting forth his
qualifications to make the explanation, and attesting to the accuracy
of the explanation is admissible in evidence under this section in the
same manner as if it were the original record.

(6) Where part only of a record is produced under this section
by a party, the court may examine any other part of the record and
direct that, together with the part of the record previously so pro-
duced, the whole or any part of such other part be produced by that
party.

(7) For the purpose of determining whether any provision of
this section applies, or for the purpose of determining the probative
value, if any, to be given to information contained in a record ad-
mitted in evidence under this section, the court may, upon production
of any record, examine the record, admit evidence in respect thereof
given orally or by affidavit, including evidence as to the circumstances
in which the information contained in the record was written, re-
corded, stored or reproduced, and draw any reasonable inference
from the form or content of the record.

(8) Unless the court orders otherwise, no record or affidavit
shall be admitted in evidence under this section unless the party pro-
ducing the record or affidavit has, at least seven days before its pro-
duction, given notice of his intention to produce it to each other party
to the proceeding and has, within five days after receiving any notice
in that behalf given by any such party, produced it for inspection
by such party.

(9) Where evidence is tendered by affidavit under this section,
it is not necessary to prove the signature or official character of the
person making the affidavit if the official character of that person is
set out in the body of the affidavit.

(10) Any person who has or may reasonably be expected to
have knowledge of the making or contents of any record produced or
received in evidence under this section may, with leave of the court,
be examined or cross-examined thereon by any party to the pro-
ceeding.

(11) Nothing in this section makes admissible in evidence in a
proceeding,

188

(a) the part of any record as is proved to be,

(i) a record made in the course of an investigation or inquiry,
(ii) a record made in the course of obtaining or giving legal

advice or in contemplation of a legal proceeding,
(iii) a record in respect of the production of which any privilege

exists and is claimed, or
(iv) a record of or alluding to a statement made by a person
who is not, or if he were living and of sound mind would
not be, competent and compellable to disclose in the legal
proceeding a matter disclosed in the record;

(b) any record whose production would be contrary to public policy;
or

(12) The provisions of this section shall be deemed to be in
addition to and not in derogation of,

(a) any other provision of this or any other Act of the Legislature
respecting the admissibility in evidence of any record or the proof
of any matter; or

(b) any existing rule of law under which any record is admissible in
evidence or any matter may be proved. [Draft Act, Section
39(1)-(12).]

4. (b) Records Kept by a Computer
(i) Discussion

The advent of the computer and new technologies of information
storage has posed new challenges for law reform, since computer record-
keeping differs significantly from conventional procedures. Computers are
so widely used for record keeping that it is vital that computer records
be available as evidence in today's business litigation. Computerized sys-
tems are only justified if more efficient or economic than conventional
record systems. Automating the transfer of records can increase efficiency,
since mechanical transcription avoids many of the weaknesses of human
transcription and filing. Economy can be increased by assembling vast
amounts of information into single files to permit fast processing. However
increased efficiency not only involves using the computer's speed to
eliminate many intermediate steps, but also reduces the contact between
human beings responsible for records and the actual records needed to
conduct business. Increasingly, clerical tasks of collecting, collating, and
calculating have been taken over by machines. Moreover, when individuals
are employed they must now handle more information, at greater speed.
All these developments pose problems for the law of evidence. The form
of computer records adverts to an original human source whose evidence
would be, by definition, more authentic and reliable than records passed
through the potentially unreliable processes of the computer. Secondly if
computer records are used to establish the truth of their contents, they
may be said to violate the hearsay rule. Finally it may be difficult to
produce computer records in court in an intelligible form.'^^

43See Tapper, Computers and the Law (1973), at p. 16; Tapper, "Evidence from
Computers" (1974), 5 Georgia L.R. 562, 565-566.

189

Subsections 3 and 4 of section 30 of the Canada Evidence Act,
adopted in our proposals, provide for the admission of copies of records
in certain conditions:

30. — (3) Where it is not possible or reasonably practicable to
produce any record described in subsection (1) or (2), a copy of
the record accompanied by an affidavit setting out the reasons why
it is not possible or reasonably practicable to produce the record and
an affidavit of the person who made the copy setting out the source
from which the copy was made and attesting to its authenticity, each
affidavit having been sworn before a commissioner or other person
authorized to take affidavits, is admissible in evidence under this
section in the same manner as if it were the original of such record.

(4) Where production of any record or of a copy of any record
described in subsection (1) or (2) would not convey to the court
the information contained in the record by reason of its having
been kept in a form that requires explanation, a transcript of the
explanation of the record or copy prepared by a person qualified to
make the explanation, accompanied by an affidavit of that person
setting forth his qualifications to make the explanation ... is admis-
sible in evidence under this section in the same manner as if it
were the original of such record.

Record is defined in subsection 12:

(12) "record" includes the whole or any part of any book,
document, paper, card, tape or other thing on or in which informa-
tion is written, recorded, stored or reproduced, and, except for the
purposes of subsections (3) and (4), any copy or transcript re-
ceived in evidence under this section pursuant to subsection (3)
or (4).

These provisions, together with section 31 dealing with banking records
and records of the Government of Canada and any province in Canada,
would cover many cases in which it is necessary to prove recorded in-
formation, for example, permanent records being transcribed from tem-
porary ones or being stored on tapes. They may encompass circumstances
where copies wAX be admissible, for example, where the originals have
been lost or are in a form that does not permit their being introduced in
evidence. However, the language may not be sufficiently clear to include
the complete process of storing records by computer and their retrieval in
intelligible form for use in the courts.

Storage of records in a computer together Vv'ith their retrieval re-
quires at least three steps: (1) the information to be recorded must be
put into an acceptable form for recording in the computer; (2) the
computer must be fed with information in the prepared form; (3) what
has been stored in the recorded form in the computer must be retrieved
in readable and intelligible form.

Each of these steps involves a separate procedure, the performance
of which may affect the accuracy and reliability of the information con-
cerning the events to be recorded. In some cases there is a fourth step.

190

The record stored in the computer is transferred to microfilm or electronic
tape from which it is retrieved according to a predetermined process so
as to convert the record transferred to readable and intelligible form.
After the transfer to tape, the computer's memory of the record is cleared.

From the terminology used in section 30 of the Canada Evidence
Act, it appears that this provision is not entirely responsive to the pro-
cedures used in recording information in computers. The record produced
in court would be a "print-out" of the information and calculations stored
in the computer, not "a transcript of the explanation of the record or
copy". What is retrieved is not necessarily a copy of what is stored, but
the data after it has been processed by the computer. Undoubtedly, an
explanation of the whole process is required to determine the reUability
of the method of storing information, but the ultimate production in a
form usable by the courts is the product of a whole series of processing
steps performed upon the original record made for the purpose of storing
in the computer. The print-out is in effect a mechanical translation of the
data fed into the computer and stored.

In England the problem of admissibiUty of statements produced
by computers has been specifically dealt with in recent legislation.'^

44C/vz7 Evidence Act 1968, c. 64, s. 5:

5. Admissibility of statements produced by computers

( 1 ) In any civil proceedings a statement contained in a document produced
by a computer shall, subject to rules of court, be admissible as evidence of
any fact stated therein of which direct oral evidence would be admissible,
if it is shown that the conditions mentioned in subsection (2) below are
satisfied in relation to the statement and computer in question.

(2) The said conditions are —

(a) that the document containing the statement was produced by the
computer during a period over which the computer was used regularly
to store or process information for the purposes of any activities
regularly carried on over that period, whether for profit or not, by any
body, whether corporate or not, or by any individual;

(b) that over that period there was regularly supplied to the computer in
the ordinary course of those activities information of the kind con-
tained in the statement or of the kind from which the information so
contained is derived;

(c) that throughout the material part of that period the computer was
operating properly or, if not, that any respect in which it was not
operating properly or was out of operation during that part of that
period was not such as to affect the production of the document or
the accuracy of its contents; and

(d) that the information contained in the statement reproduces or is derived
from information supplied to the computer in the ordinary course of
those activities.

(3) Where over a period the function of storing or processing information
for the purposes of any activities regularly carried on over that period as
mentioned in subsection (2) (a) above was regularly performed by com-
puters, whether —

(a) by a combination of computers operating over that period; or

(b) by different computers operating in succession over that period; or

(d) in any other manner involving the successive operation over that period,
in whatever order, of one or more computers and one or more com-
binations of computers,

191

Rules of procedure supplement this legislation'*^ and require a party
desiring to rely on computer records to serve notice of his desire to do so
on the other parties. The notice must be given within 21 days after the
matter is set down for hearing or an equivalent step taken. In the case
of statements in documents produced by computers, the requisite notice
must contain particulars of persons who occupied a responsible position
with respect to the management of the relevant activities, the supply of
information to the computer and its operation. If it is proposed not to call
any of these individuals, the notice must set out the reasons relied upon.
Reasons provided for excusing a person of whom particulars are given
are that he is "dead, or beyond the seas, or unfit by reason of his bodily
or mental condition to attend as a witness or cannot with reasonable dili-
gence be identified or found or cannot reasonably be expected ... to have
any recollection of matters relevant to the accuracy or otherwise of the
statement".'*^ Provision is made for a counter-notice requiring a person

all the computers used for that purpose during that period shall be
treated for the purposes of this Part of this Act as constituting a single
computer; and references in this Part of this Act to a computer shall be
construed accordingly.

(4) In any civil proceedings where it is desired to give a statement in
evidence by virtue of this section, a certificate doing any of the following
things, that is to say —

(a) identifying the document containing the statement and describing the
manner in which it was produced;

(b) giving such particulars of any device involved in the production of that
document as may be appropriate for the purpose of showing that the
document was produced by a computer;

and purporting to be signed by a person occupying a responsible position in
relation to the operation of the relevant device or the management of the
relevant activities (whichever is appropriate) shall be evidence of any matter
stated in the certificate; and for the purposes of this subsection it shall be
sufficient for a matter to be stated to the best of the knowledge and belief
of the person stating it.

(5) For the purposes of this Part of this Act —

(a) information shall be taken to be supplied to a computer if it is sup-
plied thereto in any appropriate form and whether it is so supplied
directly or (with or without human intervention) by means of any
appropriate equipment;

(b) where, in the course of activities carried on by any individual or body,
information is supplied with a view to its being stored or processed
for the purposes of those activities by a computer operated otherwise
than in the course of those activities, that information, if duly supplied
to that computer, shall be taken to be supplied to it in the course of
those activities;

(c) a document shall be taken to have been produced by a computer
whether it was produced by it directly or (with or without human
intervention) by means of any appropriate equipment.

(6) Subject to subsection (3) above, in this Part of this Act "computer"
means any device for storing and processing information, and any reference
to information being derived from other information is a reference to its
being derived therefrom by calculation, comparison or any other process.

"Statement" is defined for the purpose of the Act to include "any representation

of fcict. whether made in words or otherwise".
45C/v// Evidence Act 1968, s. 8.
^Hbid., s. 8(2) (b).

192

of whom particulars have been given to be called; however, if no counter-
notice is given the statement is admissible provided that requirements for
admissibility set out in the legislation are satisfied.

The Law Reform Commission of New South Wales in its Report
on Evidence (Business Records )'^'^ rejected the English procedure as im-
practical in New South Wales. We think that the English solution would
be equally impractical in Ontario. In a draft bill attached to the Com-
mission's Report dealing with the admissibility of business records gener-
ally, the subject of records kept by computer is dealt with specifically. It
is unnecessary for our purposes here to go into the general provisions of
the proposed bill other than to say that it provided that, "a statement
in a record of information made by the use of a computer may be proved
by the production of a document produced by the use of a computer
containing the statement in a form which can be understood by sight"."^^
The effect of this provision would appear to be that if the business record
as stored in the computer would be otherwise admissible the print-out
produced by the computer would be admissible. The Commission also
proposed a section similar to one in the California Evidence Code,"^^
removing any doubt that might exist as to whether one can admit evidence
concerning the absence of a record; such evidence might technically be
considered as not covered by the hearsay provisions in statute law.

The use of computerized records in the business community and in
government is so widespread that it can be assumed that there is no
greater margin of error in such records than in the case of ordinary com-
mercial records, most of which have been admissible for many years
both under the federal and provincial evidence acts.

The provision governing the use of computer records should be a
simple one, capable of broad and flexible interpretation to bring the
realities of business and professional practices into the court room. At
the same time, care must be taken to safeguard against the use of
language that would permit the admission of hearsay evidence of a
character not contemplated by the rules relating to the admission of
business records.

(ii) Recommendation

We recommend that The Evidence Act (Ontario) be amended to
add the following subsection to the proposed draft section dealing with
business records:

(13) Where a record containing information in respect of a
matter is made by the use of a computer or similar device, the out-
put thereof in a form which may be understood is admissible in evi-
dence if the record would be admissible under this section if made by
other means. [Draft Act, Section 39(13).]

47New South Wales Law Reform Commission, Report on Evidence (Business

Records) (1973), at p. 7.
^^Ibid., Appendix A, Draft Evidence (Amendment) Bill, s. 14 CK. (l)(c).
49Cal. Evidence Code, §1272 (West, 1968).

CHAPTER 12

CREDIBILITY AND CHARACTER

1. Introduction

As a general rule,

a witness may, upon cross-examination, be asked any question con-
cerning his antecedents, associations, or mode of life, which, although
irrelevant to the issue, would be Hkely to discredit his testimony or
degrade his character; but he cannot always be compelled to answer,
and his answers cannot, unless otherwise relevant to the issue, be
contradicted}

According to Cross, there are four generally recognised exceptions to the
rule that a witness' answer to questions on collateral issues or credit
cannot be contradicted: the fact that a witness has been convicted of a
crime; the fact that he is biased in favour of a party calling him; the
fact that he has made statements inconsistent with his present testimony;
and the fact that the moral character or physical condition of the witness
is such as to militate against his telling the truth.^ In this chapter we are
concerned only with the first of these exceptions.

2. Previous Convictions

(a) The Ontario Law

Section 23 ( 1 ) of The Evidence Act^ provides:

A witness may be asked whether he has been convicted of any crime,
and upon being so asked, if he either denies the fact or refuses to
answer, the conviction may be proved ....

A witness' previous criminal record may affect his credibility even
where he admits it. \n R. v. Leforte the Supreme Court of Canada adopted
a dissenting judgment in the British Columbia Court of Appeal, in which
Sheppard, J. A. had supported a direction by the trial judge to the jury
concerning the cross-examination of an accused who admitted his con-
victions. The trial judge had said.

Now, that evidence is led for one purpose only and can be used by
you for one purpose only. It is for you to say, on the evidence, as to
whether or not these people being [sic], having suffered these con-
victions, are the kind of people that you would choose to believe. In
other words, criminal records go to credibility only, and that is . . . the

iPhipson, Evidence (11th Ed. 1970), para. 1548, at pp. 654-655.
2Cross, Evidence (4th Ed. 1974), at p. 235.

3R.S.O. 1970, c. 151, s. 23(1). A similar provision appears in the Canada
Evidence Act, R.S.C. 1970, c. E-10, s. 12(1) as follows:

A witness may be questioned as to whether he has been convicted of any
offence, and upon being so questioned, if he either denies the fact or
refuses to answer, the opposite party may prove such conviction.

193

194

exclusive purpose for which the evidence is tendered and for which
it may be used by you.'^

In view of the fact that a contrary view was taken by Norris, J. A., in the
British Columbia Court of Appeal and the fact that the Supreme Court
allowed the appeal of the Crown and confirmed the conviction, it would
appear that the law as stated by the trial judge and quoted by Shep-
pard, J. A., in his dissenting judgment has been confirmed by the Supreme
Court of Canada.

Law reform in this area depends largely on the answers which are
to be given to the following questions:

(1) Is it true that a person who has been convicted of an offence
of any kind is less likely to tell the truth than a person who has
never been convicted?

(2) Is a person convicted of crimes involving some concept of
'untruthfulness' less deserving of belief than a person convicted
of other types of crime that involve no element of untruth-
fulness?

(3) Are some provincial offences more relevant to credibility than
some federal offences, for instance, offences against The Secur-
ities Act as compared with driving while under the influence of
alcohol?

(4) Should the time elapsed between the commission of the offence
and the date the person is offered as a witness be considered
in determining the relevance of the conviction to credibility?

(b) Other Jurisdictions

(i) England

Until the nineteenth century a person who had been convicted and
sentenced for an "infamous" crime, generally interpreted to mean treason
and felony, was incompetent as a witness and could not, therefore, testify
either in civil or criminal proceedings. In 1828, the Civil Rights of Con-
victs Act^ made such a person capable of giving testimony after he had
served his sentence to completion, unless the offence for which he had
been convicted was perjury. The Evidence Act, 1843^ provided that no
person should thereafter be excluded as a witness by reason of incapacity
from crime or interest. Hence it is only since 1843 that a witness con-
victed of serious crime has been competent to give evidence. It was not
until 1898 that an accused person could give evidence at his own trial.*^

4/?. V. Leforte (1962), 31 D.L.R. (2d) 1 (S.C.C.), approving in full the reasons
of Sheppard, J.A., in (1961), 29 D.L.R. (2d) 459, at p. 470. See also Street
V. City of Guelph et al, [1964] 2 O.R. 421, 422, per Grant, J:

. . . the purpose of putting such a question is to indicate that the witness
is of such a character that his evidence ought to be either not accepted
or screened carefully.
59 Geo. 4, c. 32.
66&7 Vict., c. 85, s. 1.
'^Criminal Evidence Act, 1898, 61 & 62 Vict., c. 36, s. 1.

195

By the Criminal Procedure Act, 1865,^ which, despite its title, applies
to both criminal and civil cases, a witness may be asked whether he has
been convicted of a felony or misdemeanour. The provision is similar to
section 23(1) of the Ontario Evidence Act, except that in England where
the witness is the defendant in a criminal case, the special provisions of
the Criminal Evidence Act, 1898^ apply. That Act provides:

l.(f) A person charged and called as a witness in pursuance of this
Act shall not be asked, and if asked shall not be required to
answer, any question tending to show that he has committed or
been convicted of or been charged with any offence other than
that wherewith he is then charged, or is of bad character,
unless —

(i) the proof that he has committed or been convicted of such
other offence is admissible evidence to show that he is guilty
of the offence wherewith he is then charged; or

(ii) he has personally or by his advocate asked questions of
the witnesses for the prosecution with a view to estabUsh his
own good character, or has given evidence of his good character,
or the nature or conduct of the defence is such as to involve
imputations on the character of the prosecutor or the witnesses
for the prosecution; or

(iii) he has given evidence against any other person charged
with the same offence.

These provisions were designed to safeguard the rights of an accused
person in a criminal trial. They are not necessarily appropriate for civil
proceedings or investigations under provincial law.

Under the English legislation an accused person may be cross-
examined about previous convictions if the "nature and conduct of his
defence is such as to involve imputations on the character of the pro-
secutor or the witness for the prosecution". It has been held by the House
of Lords in Selvey v. D.P.P}^ that, except in cases of rape, an accused
may be cross-examined concerning previous convictions, not only when
imputations on the character of the prosecutor and his v^tnesses are cast
to show their unreliability as witnesses, independently of the evidence given
by them, but also when the casting of such imputations is necessary to
enable the accused to estabhsh his defence. Thus, an accused would be
unable to put forward a defence, no matter how true, involving imputa-
tions on the character of the prosecutor or his witnesses without running
the risk of having all previous convictions disclosed.

(ii) United States of America

Although there have been some attempts to deal with this area of
law in statutes, in the United States the law is generally the same as in
Canada. The subject raises many difficult considerations for the trial

828 & 29 Vict., c. 18, s. 6.
961 &62 Vict., c. 36, s. 1(f)
10[1970] A.C. 304.

196

judge in particular cases. The courts have had to decide what exactly
constitutes a crime : does it refer only to felonies or does it extend to cover
misdemeanours and police violations? Some courts limit the term to
offences involving moral turpitude; others to offences which would affect
credibility. The judge has power to disallow questions referring to con-
victions that fall outside these limits. The courts have also tackled the
problem of what constitutes a conviction. There may be difficulties in cases
involving confessions or guilty pleas; or when a licence has been revoked,
or a person suspended from a profession by a governing body. The courts
have also had to decide how far counsel may probe into the previous
convictions: can he ask about the punishment or any surrounding circum-
stances; can the witness himself explain the conviction or show mitigating
circumstances? The courts have also had to face the difficult question of
how to treat the conviction that dates from many years ago: can they
refuse to admit such a conviction, or give less weight to it?

The Model Code of Evidence limits this type of evidence with respect
to credibility to convictions involving dishonesty or false statement, and
limits the occasions on which convictions can be introduced to impair
the credibility of an accused. Rule 106 provides in part:

106. Evidence Affecting Credibility

(1) Subject to Paragraphs (2) and (3), for the purpose of
impairing or supporting the credibility of a witness, any party in-
cluding the party calling him may examine him and introduce ex-
trinsic evidence concerning any . . . matter relevant upon the issue
of his credibility as a witness . . . except that extrinsic evidence shall
be inadmissible

(b) of his conviction of crime not involving dishonesty or false
statement.

(3) If an accused who testifies at the trial introduces no evi-
dence for the sole purpose of supporting his credibility, no evidence
concerning his commission or conviction of crime shall, for the sole
purpose of impairing his credibility, be elicited on his cross-examina-
tion or be otherwise introduced against him; if he introduces evidence
for the sole purpose of supporting his credibiHty, all evidence ad-
missible under Paragraph (1) shall be admissible against him.^i

The Uniform Rules of Evidence, 1953, are to the same effect:

Rule 21. Evidence of the conviction of a witness for a crime not
involving dishonesty or false statement shall be inadmissible for the
purpose of impairing his credibility. If the witness be the accused in
a criminal proceeding, no evidence of his conviction of a crime shall
be admissible for the sole purpose of impairing his credibility unless
he has first introduced evidence admissible solely for the purpose of
supporting his credibility. ^^

liAmerican Law Institute, Model Code of Evidence (1942), Rule 106(1) (b),

and (3).
i2National Conference of Commissioners on Uniform State Laws, Uniform Rules

of Evidence (1953), Rule 21.

197

Rule 609 of the Federal Rules of Evidence^^ provides in part:

(a) General Rule. For the purpose of attacking the credibility of a
witness, evidence that he has been convicted of a crime shall be
admitted if elicited from him or established by public record during
cross-examination but only if the crime ( 1 ) was punishable by death
or imprisonment in excess of one year under the law under which
he was convicted, and the court determines that the probative value
of admitting this evidence outweighs its prejudicial effect to the de-
fendant, or (2) involved dishonesty or false statement, regardless of
the punishment.

(b) Time limit. Evidence of a conviction under this rule is not
admissible if a period of more than ten years has elapsed since the
date of the conviction or of the release of the witness from the con-
finement imposed for that conviction, whichever is the later date,
unless the court determines, in the interests of justice, that the pro-
bative value of the conviction supported by specific facts and circum-
stances substantially outweighs its prejudicial effect. However, evi-
dence of a conviction more than 10 years old as calculated herein, is
not admissible unless the proponent gives to the adverse party
sufficient advance written notice of intent to use such evidence to
provide the adverse party with a fair opportunity to contest the use
of such evidence.

(iii) Australia and New Zealand

In AustraUa and New Zealand, there have been a number of statutory
provisions concerning the admissibility of prior convictions. The most
typical approach is that taken in Victoria. That state permits questions
concerning previous convictions.^"^ In addition, by section 37 of their
Evidence Act, questions during cross-examination whose only relevance
is to probe the credibility of the witness need not be answered if the court
so decides. The court's decision is to be based on the following con-
siderations :

(a) Such questions are proper if they are of such a nature that the
truth of the imputation conveyed by them would seriously affect the
opinion of the court as to the credibility of the witness on the matter
to which he testifies.

(b) Such questions are improper if the imputation which they convey
relates to matters so remote in time or of such a character that the
truth of the imputation would not affect or would affect only in a
slight degree the opinion of the court as to the credibility of the
witness on the matter to which he testifies.

(c) Such questions are improper if there is a great disproportion
between the importance of the imputation made against the witness'
character and the importance of his evidence. ^^

i3Federal Rules of Evidence, 28 U.S.C.A., Rule 609.
^^Evidence Act, 1958-1974 (Vic), s. 33.
^5lbid., s. 37.

198

A similar approach is followed in South Australia,^^ Western Austraha,^'^
Tasmania,!^ Queensland^^ and New Zealand.^^

New South Wales, however, adopts a different approach. Although
the Evidence Acf-^ of this state contains no section expressly permitting
use of previous convictions as a means of attacking a witness' credibility
in civil proceedings, it has been held that questions as to convictions are
admissible in cross-examination. ^^ There are safeguards, however, which
prevent such questions being used to prejudice unfairly a witness or a
party. Section 56 limits cross-examination by providing that,

When any question put to a witness in cross-examination is not
relevant to the cause or proceeding, except so far as the truth of the
matter suggested by the question affects the credit of the witness
by injuring his character, the Court shall have a discretion to dis-
allow the question, if in its opinion the matter is so remote in time,
or of such a nature that an admission of its truth would not materially
affect the credibility of the witness .^^

It would appear, therefore, that most common law jurisdictions have
adopted devices to limit the circumstances in which a witness may be
cross-examined as to previous convictions. These take the form of:

Limitations as to the type of conviction. These may relate to the
seriousness of the offence as measured by (a) the procedure spec-
ified, for example, indictable as opposed to summary conviction
offences; (b) the penalty, for example, life or over a specified term
of imprisonment; or (c) the nature of the offence, that is, one in-
volving dishonesty or false pretences, and similar offences.

Limitations as to time. Questioning is not permitted concerning a
conviction for an offence committed prior to a specified time, or in
respect of which the penalty has been served prior to a specified
time.

Discretionary Limitations. The trial judge may be given a discretion,
to be exercised with or without guidehnes, to disallow a question
going solely to credibiUty.^"^

No jurisdiction has completely denied the right to cross-examine as to
previous convictions which are relevant to credibility.

^^Evidence Act, 1929-1972 (S.A.), ss. 23, 24, 26.

^'JEvidence Act, 1906-1967 (W.A.), ss. 23, 25.

^^Evidence Act, 1910-1970 (Tas.), ss. 100, 102.

^^Evidence & Discovery Acts, 1867-1973 (Qld.), s. 19; see also Order 40,

R.S.C. (Qld.).
^^Evidence Act, 1908, ss. 12, 13 (as amended).
^^Evidence Act, 1898-1973 (N.S.W.).

22See Bugg v. Day (1949), 79 C.L.R. 442, 457 per Latham, C.J.
^^Evidence Act, 1898-1973 (N.S.W.), s. 56.
24There may now be such a power in the trial judge under provisions of the

Canada Evidence Act (see R. v. St. Pierre, [1973] 1 O.R. 718) although

there is clear authority to the contrary (Clark v. Holdsworth (1968), 62 W.W.R.

1 (B.C.S.C.)).

199

In the case of a witness who is not a party to the action,^^ there can
be no danger of confusing credibility with similar fact evidence^^ relevant
to the issue. However, there remains the initial problem of whether a
conviction is, in any event, relevant to the issue of credibility. In our
view, it does not necessarily follow that a witness with previous criminal
convictions, other than perjury, which he has admitted is in all cases less
credible than a witness with no previous convictions. To accept such a
proposition would tend to raise a presumption that, where a person has
been convicted for a breach of the criminal law on one occasion, he will
lie under oath on another. We think that there should be some connection
between the prior conviction and the issue of credibility; and that there
should be no artificial distinction between indictable offences and sum-
mary offences. Neither should there be any distinction between criminal
offences and offences against the provincial law. There are some indictable
offences such as theft, or obtaining by false pretences, that may be relevant
to credibility in some cases, and there are others, such as driving offences,
or even manslaughter, that may have no relevance to credibility. Similarly,
some summary conviction offences, such as offences under the provincial
Securities Act, may be more relevant to credibility than many indictable
offences.

We think that the present practice of cross-examining a witness as
to all previous convictions on the ground that they are relevant to the
issue of credibility, is both unrealistic and unfair; proof of certain prior
convictions may be quite irrelevant to a witness's credibility. We do not
think that a party should be permitted to prove prior convictions which
cannot be supported as relevant to credibility. Only where the conviction
is relevant to credibiUty by reason of the nature of the ofTence and the
date of its commission, should such cross-examination be permitted.

(d) Recommendation

We recommended that section 23 of The Evidence Act be repealed
and the following section substituted:

( 1 ) A witness in a proceeding shall not be asked any question tending
to show that he has been convicted of any Federal or provincial
offence solely for the purpose of attacking his credibility unless the
court finds that the conviction is, because of the nature of the offence
and the date of its commission, relevant to the witness' credibility.

(2) Notwithstanding subsection 1, a witness in a proceeding may be
asked any question tending to show that he has been convicted of an
offence under section 121, 122 or 124 of the Criminal Code
(Canada).

(3) Notwithstanding subsections 1 and 2, a witness in a proceeding
shall not be asked any question tending to show that he has been
convicted of any offence for which he has been granted a pardon.

(4) Where a witness in a proceeding is asked a question under sub-
section 1 or 2 and he either denies the allegation or refuses to answer,

25It is accepted that "witness" includes parties to the proceedings.
26See D.P.P. V. Boardman, [1974] 3 W.L.R. 673 (H.L.).

200

the conviction may be proved, and a certificate containing the sub-
stance and effect only, omitting the formal part, of the charge and of
the conviction, purporting to be signed by the officer having the
custody of the records of the court at which the offender was con-
victed, or by a deputy of the officer, is, upon proof of the identity of
the witness as such convict, sufficient evidence of the conviction, with-
out proof of the signature or of the official character of the person
appearing to have signed the certificate. [Draft Act, Section 36.]

3. Reputation For Untruthfulness

At common law, the credibility of a witness may be attacked by
calling a witness to testify as to his reputation for veracity. The form of
questioning of such a character witness has become formalized as follows:

(a) Do you know the reputation of the witness for truth and veracity
in the community in which he resides?

(If the answer is no, the questioning ceases; if the answer is yes,
it may continue.)

(b) Is that reputation good or bad?

The form of questioning has been specifically designed to limit the inquiry
into reputation as it relates to veracity. In 18 17,2"^ extrinsic evidence of
general bad character was permitted for the purpose of attacking the
credibility of the witness. However, by 1824 this was limited by excluding
extrinsic evidence of particular instances of misconduct.^^ From this
emerged the form of questioning used today.

General evidence of bad character is seldom led to attack the cred-
ibility of a witness. The more complex and mobile the society, the less
opportunity there is for a person to acquire a "reputation for speaking
the truth".29 Nevertheless, on some occasions, evidence of bad character
is admitted and relied on. For example, as recently as 1968, evidence
was received from witnesses who testified that they would not believe
the complainant on his oath.^o

We have come to the conclusion that no amendment to The Evidence
Act is required to clarify the law concerning the right to submit evidence
attacking the credibility of a witness on the ground of bad character.

An analogous problem to this concerns medical evidence of physical
or mental conditions which tends to show that the witness is untruthful.
In Toohey v. Metropolitan Police Commissioner,'^^ the chief witness for

^iSharpe v. Scoging (1817), Holt. 541, 171 E.R. 334.

28Mav V. Brown (1824), 3 B. & C. 1 13, 107 E.R. 676.

29/?. V. F., [1968] 1 O.R. 658.

^^Ibid. As Lord Pearce said in Toohey v. Metropolitan Police Commissioner,
[1965] A.C. 595, 605-606, "From olden times it has been the practice to allow
evidence of bad reputation to discredit a witness's testimony. It is perhaps not
very logical and not very useful to allow such evidence founded on hearsay ....
But the rule has been sanctified, through the centuries in legal examinations
and text boolcs and in some rare cases, and it does not create injustice."

3i[1965] A.C. 595.

201

the prosecution, the complainant, a 16 year old youth, testified that the
two accused persons had assaulted him and stolen some money. The
House of Lords held that the defence was entitled to call medical evidence
to show that the complainant's general instability and hysteric tendency
made him more prone than a normal person to exaggerate, and even
imagine events that had not taken place, and that his testimony was,
therefore, not credible. In so holding, the House of Lords overruled the
earlier Court of Criminal Appeal case ot R. v. Gunewardene,^^ which held
that defence counsel was not entitled to call a doctor to testify that a
previous prosecution witness was suffering from a particular disease of
the mind that made him an unreliable witness, on the ground that this
extended beyond the traditional evidence of general bad character for
veracity. We make no recommendation for an amendment to The Evi-
dence Act concerning the matter raised in the Toohey case.

4. Impeaching One's Own Witness

(a) Discussion

The origin of the common law rule concerning the right of a party
to attack credibility of his own witness is obscure. As early as 1681,
North, L.C.J. , in Colledge's Case^^ is reported to have admonished a
defendant in these terms, "whatsoever witnesses you call, you call them
as witnesses to testify the truth for you ... let him answer you if he will;
but you must not afterwards go to disprove him". In Adams v. Arnold,^"^
Holt, C.J., is reported to have said that he would not "suffer the plaintiff
to discredit a witness of his own calling, he swearing against him". By the
early part of the nineteenth century, the rule appears to have been estab-
lished beyond question.

The reason for the rule is obscure. Wigmore^^ suggests that its
origin lies in trial by compurgation; it obviously would not be reasonable
to permit an "oath-helper" to be impeached. It has also been suggested
that it is the natural outcome of the development from an inquisitorial
to an adversary system, and of the adoption of a theory that witnesses
'belong' to the parties rather than to the court. There is reference in the
cases to a party "guaranteeing the credibility of his witness". However,
this appears to mean simply that a party is free to choose whether to
call a witness or not, but once having elected to call him, he is bound
by what that witness says. A third suggested reason for the rule is the
fear that, if a party were allowed to discredit his own witness, he might
be able to force him to tell a story beneficial to that party in return for not
attacking the witness' credibility. Although Wigmore considers that there
is some merit in this reason, the point has been made that the credibility
of a witness may be attacked by the other party and that no witness is
entirely protected from the possibility of having his credibility attacked. ^^

32[1951] 2 K.B. 600.
33(1681), 8 How. St. Tr. 549, 636.
34(1700), 12 Mod. 375, 88 E.R. 1389.
353 A Wigmore, Evidence, §896 (Chad. Rev. 1970).

36Schatz, "Impeachment of One's Own Witness: Present New York and Proposed
Changes" (1941-42), 27 Cornell L.Q. 377.

202

The rule against impeaching the credibility of one's own witness,
is a limited one. In 1811, Lord EUenborough said in Alexander v. Gibson,
"If a witness is called on the part of the plaintiff, who swears what is
palpably false, it would be extremely hard if the plaintiff's case should
for that reason be sacrificed. But I know of no rule of law by which the
truth is on such an oocasion to be shut out and justice is to be per-
verted".^^ In 1831, Tindal, C.J., took a similar view: "The object of all
the laws of evidence is to bring the whole truth of a case before a
jury . . . [but if this contradicting evidence were excluded] that would
no longer be the just ground on which the principles of evidence would
proceed, but we should compel the plaintiff to take singly all the chances
of the tables, and to be bound by the statements of a witness whom he
might call without knowing he was adverse, who might labour under a
defect of memory, or be otherwise unable to make a statement on which
complete reliance could be placed". ^^

Cross comments on the position at common law as follows:

The judge may allow the examination-in-chief of a hostile witness
to be conducted in the manner of a cross-examination to the extent
to which he considers it necessary for the purpose of doing justice.
The witness may be asked leading questions, challenged with regard
to his means of knowledge of the facts to which he is deposing or
tested on such matters as the accuracy of his memory and perception;
but the party by whom he is called cannot ask about his previous bad
conduct and convictions, nor can he adduce evidence of the witness's
doubtful veracity. This is the result of the common law, but it used
not to be clear whether a statement inconsistent with his present
testimony could be proved against a hostile witness. . . .^^

In 1854, in England, the Common Law Procedure Act was passed
providing:

A party producing a witness shall not be allowed to impeach his
credit by general evidence of bad character, but he may, in case the
witness shall in the opinion of the Judge prove adverse, contradict
him by other evidence, or, by leave of the Judge, prove that he has
made at other times a statement inconsistent with his present tes-
timony; . . .^

Section 24 of The Evidence Act (Ontario) which replaced a provi-
sional tQ ^he same effect as the 1854 English legislation provides:

A party producing a witness shall not be allowed to impeach his
credit by general evidence of bad character, but he may contradict
him by other evidence, or, if the witness in the opinion of the judge
or other person presiding proves adverse, such party may, by leave
of the judge or other person presiding, prove that the witness made

37(1811), 2 Camp. 555, 556, 170 E.R. 1250.

^^Bradley v. Ricardo (1831), 8 Bing. 57, 58, 131 E.R. 321, 322.

39Cross, Evidence (4th Ed. 1974), at pp. 221-222.

^Common Law Procedure Act, 1854, 17 & 18 Vict., c. 125, s. 22.

41See The Common Law Procedure Act, C.S.U.C. 1859, c. 22, s. 214.

203

at some other time a statement inconsistent with his present tes-
timony. . . ^^

The Ontario Act makes it clear that a party calling a witness has the
right to contradict his evidence by other evidence and, where the court
considers the witness to be adverse, counsel may establish that the
witness made at some other time a statement inconsistent v^th his present
testimony. Nevertheless, there is still some confusion as to the meaning of
"adverse". In some cases , it has been interpreted as "hostile" within the
meaning of the common law rule which allowed a party, v^th leave of the
judge, to cross-examine his own witness at large after it has been deter-
mined that he did not desire to tell the truth at the instance of the party
calling him.'*^

In Wawanesa Mutual Insurance Co. v. Hanes,"^^ the Ontario Court
of Appeal held. Roach, J. A., dissenting, that a witness' prior inconsistent
statement may be accepted as evidence of adversity, and that a judge in
determining whether a witness is adverse, is not limited to a consideration
of his demeanour in the witness box. Porter, C.J.O., considered that
"adverse" means unfavourable to the party calling the witness, in the
sense of the witness assuming, by his testimony, a position opposite to that
of the party calHng him. According to Porter, C.J.O., the term "adverse"
is wider than "hostile", which means displaying hostility of mind by
demeanour, language and manner. MacKay, J. A., agreed, stating that
"adverse" should be given its ordinary meaning of "opposed in interest".
Roach, J. A., dissenting, was of the view that the legislature, in enacting
the Common Law Procedure Act, did not intend to alter the common law,
and that, therefore, "adverse" must be construed to mean "hostile".
Hostility, according to the learned judge, should be demonstrated by
something more than a witness merely giving answers unfavourable to
the party calling him.

The respondent's appeal to the Supreme Court of Canada'*^ was dis-
missed. The appellant's cross appeal was allowed on other grounds, and
it did not become necessary to consider the point.

The decision in Wawanesa rejected earlier English judicial authority
on a similar section.^^ Cases before'^'^ and after'^^ the Wawanesa decision
construing section 9 of the Canada Evidence Act,^^ which was then similar
to section 24 of the Ontario Act, have taken a different position and have
equated "adverse" with "hostile".

42R.S.O. 1970, c. 151, s. 24.

43See Boland v. The Globe <Sc Mail Ltd., [1961] O.R. 712, per Schroeder, J.A.,

at pp. 732-33.
<4[1961] O.R. 495.
45[1963]S.C.R. 154.

^^Greenough v. Eccles (1859), 5 C.B. (N.S.) 768, 141 E.R. 315.
47See R. V. May (1915), 21 D.L.R. 728; R. v. Wyman (1958), 122 C.C.C.

65 (N.B.C.A.).
48i?. V. Mclntyre, [1963] 2 C.C.C. 380 (N.S.C.A.); and R. v. Collerman, [1964]

3 C.C.C. 195 (B.C.C.A.).
49Now R.S.C. 1970, c. E-10, s. 9(1).

204

In 1969 the Canada Evidence Act was amended to add to section
9 the following subsection:

(2) Where the party producing a witness alleges that the wit-
ness made at other times a statement in writing, or reduced to
writing, inconsistent with his present testimony, the court may,
without proof that the witness is adverse, grant leave to that party
to cross-examine the witness as to the statement and the court may
consider such cross-examination in determining whether in the
opinion of the court the witness is adverse. ^^

It follows that in proceedings governed by the Canada Evidence Act, no
finding of adversity is necessary to permit cross-examination on a prior
inconsistent statement that has been reduced to writing. ^^

Massachusetts and many other states, (for example, Arkansas, Cali-
fornia, Idaho, Indiana, Montana, Oregon, Texas, Wyoming, and Hawaii)
have removed any requirement of proving adversity.^^

The Federal Rules of Evidence^^ provide :

607. The credibility of a witness may be attacked by any party,
including the party calling him.

This rule and similar rules proposed or enacted in other American
jurisdictions^"^ abolish what has been described by Morgan as "that most
senseless of all evidential rules, the rule which forbids a party to im-
peach his own witness". 55 The provisions aboUshing the rule are usually
accompanied by a discretion in the judge to exclude evidence where the
probative value is slight or there is risk of confusing the jury.

It is said that, if a party were given an unlimited right to impeach
his own witness, he would be placed in a position of undue advantage : if
the testimony was favourable to him he would not impeach; if it is was
disadvantageous, he would try to impeach. To avoid this situation legisla-
tion was proposed in New York.^^ The legislation, which was not adopted.

50As enacted by S.C. 1968-69, c. 14, s. 2.

5iln R. V. Milgaard (1971), 2 C.C.C. 206, the Saskatchewan Court of Appeal
considered the application of section 9(2) and established guidelines to be
followed in an application for leave to cross-examine.
52See Mass. G.L.A., c. 233, §23; Ark. Stats. 28-706; Idaho Rules of Civil Pro-
cedure, Rule 43(b)(7); Mont. Rev. Code. 93-1901-8; Hawaii, H.R.S. §621.25;
Wyoming, Code of Civ. Pro. §1-143; Tex. C.C.P. Art. 38.28; Ore. R.S. §45.590;
Ind. C.C.P. §34-1-14-15; Cal. Evidence Code, §780.
53Federal Rules of Evidence, 28 U.S.C.A., Rule 607.

54See for example: Cal. Evidence Code, §785 (West, 1968); American Law

Institute, Model Code of Evidence (1942), Rule 106; National Conference of

Commissioners on Uniform State Laws, Uniform Rules of Evidence (1953),

Rule 20.

55Morgan, "The Jury and The Exclusionary Rules of Evidence", [1936-37] 4 U. of

Chi. L. Rev. 247, 257.
56The proposed New York legislation provided:

The party who calls a witness shall not be precluded from impeaching him
by proof of prior contradictory statements or by evidence of bias or cor-
ruption, or in any other manner, except that the party calling the witness
shall not be permitted to prove the bad reputation of the witness for
truth and veracity, or to prove that he was convicted of a crime unless

205

would have required the party to elect, before the witness testified, whether
he was going to impeach by evidence of bad character or prior conviction,
unless the court was satisfied that the bad reputation or conviction was
discovered by the party subsequent to the witness' testimony.

Some suggest that an unlimited right to impeach one's own witness
strikes at the heart of the adversary system. A party, it is said, may always
choose whether or not to call a particular witness. If he knows that the
witness has a prior conviction, or has a bad reputation for veracity, he
is aware that the witness' credibility may be attacked by the other party.
He also must consider whether such a vdtness may be trusted to give
favourable testimony.

There is, however, one case in which it may be unfair not to permit
a party to impeach his own witness, and that is where, by virtue of a
previous inconsistent statement, that party is taken by surprise. The
requirement that the witness must be ruled "adverse" before the party
producing him is allowed to prove a prior inconsistent statement, appears
to us to be unnecessary and cumbersome. The vital question in each case
then becomes whether or not the previous statement is inconsistent.

(b) Recommendation

We have come to the conclusion that a party calling a witness should
be permitted to prove that the witness has made a prior inconsistent
statement without a finding by the court that a witness is "adverse" or
"hostile". The impeachment of one's own witness should be limited to
proof of prior inconsistent statements and the introduction of other
evidence.

The recommendations we have made in Chapter 3 for amendments
to The Evidence Act concerning the use of prior inconsistent statements
should accomplish this purpose.

such proof is offered prior to or at the beginning of the examination of the
witness or unless the court is satisfied that such bad reputation or conviction
was discovered by the party subsequent to the witness' giving his testimony:
New York Commission on the Administration of Justice, 1934 Report
(Legis. Doc. 1934, No. 50, p. 299). Proposed section 343-a of the Civil
Practice Act as quoted in 3A Wigmore, Evidence, §899 (Chad. Rev. 1970).

CHAPTER 13

ADMISSIONS

I. Introduction

An admission is an act or statement made by or on behalf of a
party to an action and offered in evidence against him at trial. The party
who makes the admission may make the statement^ himself, or adopt a
statement made by a third party. He may also make an admission through
a third person if that person is authorized expressly or impliedly to make
the admission, or if that person is in privity with the party, as, for example,
in the case of a predecessor in title.

Informal admissions are to be distinguished from formal admissions
made during legal proceedings. A formal admission is binding on the
party making it. On the other hand, an informal admission made by words
or conduct is admissible in evidence as proof of its contents,^ but may
be explained away or rejected because of the circumstances under which
it was made. In this chapter, we are concerned with informal admissions
tendered in evidence in civil proceedings.

There is some disagreement concerning the theoretical basis upon
which admissions are accepted as evidence. Morgan considered that ad-
missions are received in evidence as an exception to the hearsay rule
because they are made out of court, are not subject to cross-examination,
and are admitted as proof of the truth of the facts stated therein. ^ If so
classified, they are a special exception. Hearsay is excluded because the
traditional guarantees of truthfulness built into our legal system are
absent, that is, because the declarant was not under oath, and was not
subject to cross-examination when he made the statement which is being
tendered as evidence. On the other hand, the party whose own admission
is offered in evidence can hardly object on the ground that it was not
subject to cross-examination at the time it was made; neither can he be
heard to complain that he was not under oath.^

The view that admissions are admitted in evidence as an exception
to the hearsay rule appears to have been generally accepted, although
a strong argument has been made by Strahorn that admissions are received
as circumstantial evidence, being the relevant conduct of the speaker.^

Although the rationale for the reception of admissions in evidence
has been stated to be that "what a party himself admits to be true may

iThe words may be written or oral — Cross, Evidence (4th Ed. 1974), at p. 446.

In R. V. Foil (1956), 19 W.W.R. 661, 25 C.R. 69 (Man.), they were in the

form of a tape recording.
2Cross, Evidence (4th Ed. 1974), at p. 143.
^Morgan, Basic Problems of Evidence (1962), at p. 265.
^Ibid., at p. 266.
SStrahorn, "A Reconsideration of the Hearsay Rule and Admissions" (1937),

85 U. Pa. L. Rev. 484, 564.

207

208

reasonably be presumed to be so",^ the admission may not be against
interest when made; it may be self-serving."^ Nor is the declarant required
to possess personal knowledge of the facts which he admits.^ Morgan
thought that it was because of the adversary nature of our legal system
that admissions are received in evidence, even though traditional guaran-
tees of trustworthiness are absent.^ It may be assumed that the party has
made an adequate investigation before making the statement. ^^

The fact that an admission has been made under threats or pressure
does not affect its admissibility^ ^ but goes to weight. In Bains et al. v. York-
shire Insurance Co. Ltd.,^^ a statement made by the plaintiff was accepted
as an admission even though the same statement had been excluded as
involuntary in a previous criminal trial where the plaintiff was the accused.
Admissions have been received in the United States even though made
while the party was under the influence of alcohol, or in a state of
hysteria. 13

It is generally agreed that a child may make an admission, ^^ ^^t
it is not clear whether the age or maturity of the child is a factor going to
the admissibility of the admission or entirely to its weight. In Yorkton
Agricultural and Industrial Exhibition Association Ltd. v. Morley et al.,^^
Hall, J. A., discussed at some length the admissions of an eight year old
child to an investigating officer concerning a fire which had been caused
by the child lighting a match. He said:

The tender age of the infant respondent by itself does not
make his statements any less admissible than those of a more
mature infant. The tender age is, however, an important factor to
consider, along with all the other circumstances, when determining
weight. 1^

After pointing out that the weight of an admission by an infant of tender
years is not limited by statute as is the weight of his testimony in court,
he went on to say:

(>Slatterie v. Pooley (1840), 6 M. & W. 664, 669, 151 E.R. 579, 581.

'^Falcon v. Famous Players Film Co., [1926] 2 K.B. 474 was a copyright action
in which the question raised was whether a play had been performed for the
first time in England. A letter written by the author's agent was tendered as
an admission. In the Jetter it was stated that the play had been performed
in England first, but when the letter was written it was in the author's interest
to make the statement in order to help the sale of his right.

^Stowe V. Grand Trunk Pacific Railway Co. (1918), 39 D.L.R. 127 (Alta.
C.A.), affirmed (1918), 59 S.C.R. 665; R. v. Schmidt, [1948] S.C.R. 333;
Cross, Evidence (4th Ed. 1974), at p. 447.

^Morgan, "Admissions" (1937), 12 Wash. L. Rev. 181, 183.

lOMcCormick, Evidence (1st Ed. 1954), at p. 507. This reasoning would not
apply to a self-serving admission.

llCross, Evidence (4th Ed. 1974), at p. 446.

12(1963), 38 D.L.R. (2d) 417 (B.C.S.C). See also Tompkins y. Ternes (1960), 26
D.L.R. (2d) 565 (Sask. C.A.).

i3See Morgan, footnote 9 supra, at p. 182.

i4phipson, Evidence (11th Ed. 1970), para. 671, at p. 304.

15(1968), 66 D.L.R. (2d) 37 (Sask. C.A.).

^^Ibid., at pp. 44-45.

209

The proper inquiry to be made does not directly concern the
infant's capacity to understand the nature of an oath. The trial Judge
should determine such factors as whether:

1 . The infant is of sufficient intelligence to recognize what his interest
is and how the giving of a statement might affect it.

2. The infant possesses the understanding that will enable him to
recall and relate the facts.

3. There was any duress, undue influence or improper inducement
involved in giving the statement. ^"^

It is not clear whether the learned judge meant that this was an inquiry
that went to the weight or the admissibiHty of the evidence; however,
it probably does not matter. If these standards are not met the evidence,
if admitted, would be given no weight.

An admission may be based on opinion. ^^ "If the want of knowledge
of the party does not exclude his admissions ... it would seem clear
that the opinion rule should not.''^^

If an admission is introduced by one party, then the whole state-
ment must be used, or at least everything required to understand that
part which is intended to be the admission. Thus it is said that the
entire statement must be used, both for and against the party offering it
in evidence.2^

One purpose of an examination for discovery is to secure admis-
sions so that they may be used at trial.^i These admissions, even though
obtained on oath, are treated no differently than other admissions as far
as admissibility is concerned, except that an admission made on an
examination for discovery by an officer or servant of a corporation is,
by statute, admissible against the corporation even where it is not within
the scope of the authority of the officer or servant to make an admission.22
However, the weight to be given to an admission made on an examination
for discovery will be greater because it is made under oath.

Although the rule in Hollington v. HewthornP with which we dealt
in chapter 6, precludes the subsequent use of a conviction in a criminal
trial as proof of the facts upon which the conviction was based, a plea of
guilty made in a previous criminal trial may or may not operate as an

^Vbid., at p. 45.

i8Phipson, Evidence (11th Ed. 1970), para. 683, at p. 310; see also Stowe v.

G.T.P.R. (1918), 59 S.C.R. 665.
i^McCormick, Evidence (2nd Ed. 1972), at p. 632.
^OCapital Trust Corp. v. Fowler (1921), 50 O.L.R. 48, 64 D.L.R. 289 (Ont.

C.A.); R.R.O. 1970, Reg. 545, Rule 329; Cross, Evidence (4th Ed. 1974), at

p. 447.
^^Ontario Marble Co. Ltd. v. Creative Memorials Ltd. et al. (1964), 45 D.L.R.

(2d) 244 (Sask. C.A.); Collins v. Belgian Dry Cleaners, Dryers & Furriers

Ltd., [1952] 1 D.L.R. 712 (Sask. C.A.).
22R.S.O. 1970, c. 151, s. 16.
23[1943] K.B. 587, [1943] 2 All E.R. 35 (C.A.).

210

admission in a subsequent civil action.^'^ Like all other admissions it is
not conclusive and the litigant may explain it away.^^ However, the plea
is generally considered to be of considerable weight,^^ and any explana-
tion offered for it should be "entirely reasonable and convincing". ^^ In
a criminal case if the plea of guilty is allowed to be withdrawn, it is then
treated as if it had never been made and may not be treated as an
admission.^^

Although, in our view, the law of admissions is satisfactory in most
respects, we think that it would be useful to codify some areas of the
law. In this chapter, therefore, we propose to set out briefly the major
aspects of the law of admissions, and to indicate the ways in which our
proposed codification would depart from existing law.

2. Admissions by Conduct

A party's conduct may in some cases constitute an admission. Ad-
missions by conduct are to be distinguished from admissions by adoption,
which occur whenever a party, expressly or by inference, acknowledges his
acceptance of an adverse statement made by another person. Although
admissions by adoption can be established by drawing the inference of
adoption from conduct, there is no issue of adoption involved in admis-
sions by conduct. The conduct itself is the admission.^^

A party fleeing to escape arrest affords one common example of
an admission by conduct; the conduct amounts to an admission of a con-

^^English V. Richmond, [1956] S.C.R. 383; cf. Potter v. Swain and Swain, [1945]
O.W.N. 514. For a discussion of these cases and our recommendations con-
cerning the admissibility of a plea of guilty made in a criminal trial in subse-
quent civil proceedings, see chapter 6, supra.

^^Cromarty v. Monteith (1957), 8 D.L.R. (2d) 112 (B.C.); Ferris v. Monohan
(1956), 4 D.L.R. (2d) 539 (N.B.S.C, A.D.). In Wesley v. Toronto General
Ins. Co., [1939] 3 D.L.R. 783, [appeal dismissed without written reasons: [1939]
4 D.L.R. 731 (C.A.)], McFarland, J., of the Ontario High Court held that a
plea of guilty by the plaintiff in a previous criminal trial on the charge of
reckless driving was admissible against the plaintiff to show that he had caused
the accident in question, and he further held that the plea could not be
explained away by the plaintiff. Ingles v. Sun Life Ass'ce Co., [1937] 1 D.L.R.
706 (Ont. C.A.), [appeal dismissed [1938] 3 D.L.R. 80 (S.C.C.)] was cited as
authority for the conclusiveness of the plea. This case is not authority for the
point. It was an action on an insurance policy for double indemnity because
of death due to accident. The defendant tendered the deceased's plea of guilty
for reckless driving to prove he fell within an exception, that is, violation of
law. All that the Ontario Court of Appeal said was that the plea was fatal to
the plaintiff's claim, which it would be if not explained, and we must conclude
that an explanation was not attempted.

2eCohen & Rudelier v. Bates & Genser & Sons Ltd. (1962), 32 D.L.R. (2d)
763 (Man. C.A.) ("considerable importance"); Re Charlton, [1969] 1 O.R.
706, 3 D.L.R. (3d) 623 (C.A.) ("very great weight" ) .

^^Campbell v. Pickard (1961), 30 D.L.R. (2d) 152 (Man. C.A.).

^^Tibodeau v. The Queen, [1955] S.C.R. 646.

29The question whether conduct can ever be hearsay need not be raised at this
point, if the circumstantial utterance theory is accepted. Phipson was of the
view that an admission by conduct is original evidence. (Phipson, Evidence
(11th Ed. 1970), para. 688, at p. 313).

211

sciousness of guilt. ^^ Suborning or attempting to suborn a witness has also
been held to be an admission that the party did not have a good case.^^

There is some doubt whether the possession of documents can be
an admission. In R. v. RiisselP^ documents found in the possession of
the accused were admissible, and were held to be prima facie evidence
against him, it being inferred that he knew their contents and had acted
upon them. In R. v. Famous Players^^ such documents were admitted as
original evidence to show the possessor's knowledge of their contents,
although in order for them to be received as an admission it was neces-
sary to show by other circumstantial evidence that he had adopted and
acted upon them.

An offer to pay a sum of money by way of settlement to the other
party to an action is not an admission, ^4 the probable policy of the law
being to encourage the settlement of disputes. ^^ Sometimes the courts
have spoken of compassionate or humanitarian motives for making the
offer.3^ McCormick speaks of such offers as privileged,^^ and Wigmore
considers that the offer does not imply a belief that the adversary's
claim is well founded, but instead implies a desire for peace. ^^ In Kowal
V. New York Central Railway Co.,'^^ Rinfret, J., referring to Larombiere,
Obligations,^^ said:

For an act or a declaration to be considered as an admission there
must be the intention of recognizing as legally established the fact
to which they apply, and that the person in whose favour they are
made shall thereby be exempted from proving the facts of the
case.

3. Adoptive Admissions

Whenever a party, expressly or by inference, acknowledges his
acceptance of an adverse statement made by another person, he is said to
make an adoptive admission. The rule governing the adoption of state-
ments made in the presence of a party is contained in D.P.P. v. Christie.^^
In order for such a statement to be admitted as an admission, the party
must accept the statement "so as to make it, in effect, his own ....
He may accept the statement by word or conduct, action or demeanour". "^^

307?. V. Wray (No. 2) (1971), 4 C.C.C. (2d) 378 (Ont. C.A.); Cross, Evidence

(4th Ed. 1974), at p. 445; McCormick, Evidence (2nd Ed. 1972), at p. 655.
^^Moriarty et al. v. London, Chatham & Dover R. Co. (1870), L.R. 5 Q.B. 314;

R. V. Watt (1905), 20 Cox C.C. 852.
32(1920), 51 D.L.R. 1 (Man. C.A.); see also Cross, footnote 30 supra, at p. 448.
33[1932] O.R. 307, [1932] 3 D.L.R. 791.
^^Walmsley v. Humenick, [1954] 2 D.L.R. 232 (B.C. S.C).
35McCormick, Evidence (2nd Ed. 1972), at p. 663.
^^Kowal V. New York Central Railway Co., [1934] S.C.R. 214; Nigro v. Donati,

[1912] 6 D.L.R. 316, appeal dismissed 8 D.L.R. 213 (Ont. Div. Ct.); Walmsley

V. Humenick, footnote 34 supra.
37See McCormick, footnote 35 supra.
384 Wigmore, Evidence, §1061 (Chad. Rev. 1970).
39[1934] S.C.R. 214, 221, [1934] 4 D.L.R. 442, 445.
40Vol. 7, art. 1354, no. 3.
4i[1914] A.C. 545.
^Vbid., at p. 554, per Lord Atkinson.

212

To establish an adoptive admission, therefore, it is necessary to adduce
evidence of the statement allegedly accepted by the party, and, also,
evidence of the party's reaction to the statement, from which acceptance
may be inferred.

Express adoption poses little problem since it is in effect an ex-
press admission; however, problems arise if the supposed adoption is
less than express, for example, if the trier of fact is asked to draw the
inference of adoption from silence, an ambiguous reply, or even an express
disavowment of the truth of the facts asserted, if made in a certain
manner.

Silence can only be considered to amount to an adoption if the
statement of the other person would naturally call for a dissent if it were
untrue.'^^

Several matters arise whenever the court is required to consider
whether that which has been spoken in a party's presence has been
adopted. These are: Did the party hear the statement; did he understand
it; was the truth of the facts embraced in the statement within the knowl-
edge of the litigant; was he at liberty to make a reply; and was a reply
naturally called for?44

We think that the law governing adoptive admissions should be
codified to provide that, in a civil proceeding, any statement is admissible
against a party to the proceeding if he has adopted it expressly, or if, in the
circumstances, it would be reasonable to infer that he has adopted it.

4. Admissions in Judicial Proceedings

Although the matter does not appear to have been decided in Ca-
nadian cases, it is settled in England that a witness' oral evidence called in
judicial proceedings to prove a material fact is not an admission of that
fact in subsequent proceedings against the party who tendered the evi-
dence.45 In British Thomson-Houston Co. Ltd. v. British Insulated and
Helsby Cables, Ltd.,^^ the majority of the Court of Appeal held that evi-
dence of the oral testimony of a witness called by a party in a previous
action to prove a certain fact, is not admissible against that party to prove
the same fact in subsequent litigation. The proposition that a party who
calls a witness declares the witness' evidence to be true and, thus, makes
an admission by conduct, was rejected by the majority on the ground that

'^Wessela v. Stern (1877), L.R. 2 C.P.D. 265 (C.A.). In Wiedemann v. Walpole,
[1891] 2 Q.B. 534 (C.A.), a breach of promise to marry action, failure to
answer a letter containing statements that the defendant promised to marry
the plaintiff was held not to be an admission. Bessela v. Stern was distinguished
on the ground that in the instant case a letter was involved. The court was of
the opinion that there may be other circumstances surrounding the sending of
a letter, such as a business relationship, which would have the effect of making
silence an adoption of the contents as true, and hence an admission. See 2
Wigmore, Evidence, §292 (3rd Ed. 1940).

44See "Note: Evidence — Admissibility of Adoptive Admissions" ( 1954) , 29 N.Y.U.L.
Rev. 1266.

^^British Thomson-Houston Co. Ltd. v. British Insulated and Helsby Cables, Ltd.,
[1924] 2 Ch. 160 (C.A.).

^(>lbid.

213

a party to an action cannot be said to guarantee the truth of his witness'
evidence. Sargant, LJ., in a dissenting judgment, held that "evidence of
specific facts, which has once been definitely adopted and placed before
the court as true by a party to previous proceedings, is admissible against
him thereafter, as constituting an assertion or statement by him to the
effect of those specific facts"."^"^

McCormick said of the British Thomson-Houston case that "the
prevailing opinions seem most unpersuasive but the dissenting opinion of
Sargant, L. J., is convincingly cogent"."^^ Cross is of the opinion that there
is much to be said for the majority's view on principle: "A witness is not
an agent for the party calling him who may not even know what he is
going to say"."^^

Affidavits or documents which a party has knowingly advanced as
true in judicial proceedings for the purpose of proving a particular fact,
are admissible against him in subsequent proceedings to prove the same
fact. 50 In such a case the party would have had complete knowledge of
the contents of the document when he used it to assert the fact.^^ Similarly,
evidence given by a party at a previous trial is admissible against him at
a subsequent trial as an admission.^^

Admissions in judicial proceedings are subsumed under 507(b) of the
Model Code of Evidence which provides:

Evidence of a hearsay statement is admissible against a party
to the action if the judge finds that ... the party with knowledge
of the content of the statement by words or other conduct manifested
his adoption or approval of the statement or his belief in its truth.^^

This rule deals with conduct from which it could be inferred that the
party believed the declaration to be true, although there could be no
finding that he adopted the declaration. ^4

Under the Federal Rules of Evidence^^ a statement offered against
a party may be received in evidence as an admission, if the party has

^Vbid., at p. 184.

48McCormick, Evidence (1st Ed. 1954), at p. 527.

49Cross, Evidence (3rd Ed. 1967), at p. 441.

^OBrickell v. Hulse (1837), 7 Ad. & E. 454, 112 E.R. 541; Gardner v. Mouh
(1839), 10 Ad. & E. 464, 113 E.R. 176; Fleet v. Perrins (1868), L.R. 3
(Q.B.) 536.

5iRichards v. Morgan (1863), 4 B. & S. 641, 662, 33 L.J.Q.B. 114, 124.

52/?. V. Drew (No. 2), [1933] 4 D.L.R. 592 (Sask. C.A.); Brown et al. v. Winning
(1878), 43 U.C.Q.B. 327 (C.A.).

53American Law Institute, Model Code of Evidence (1942), Rule 507(b).

54In the Comment to subsection 507(b) it is said:

The party's conduct may be such that no reasonable person could find
therefrom an intention to concede the truth of the declarant's statement;
indeed, it may indicate a purpose to convey exactly the opposite impression;
and yet one might reasonably conclude from it that the party really be-
lieved the declaration to be true. Thus his silence, or his attempted explana-
tion, or even a halting or otherwise suspiciously spoken denial, in the face
of a damaging accusation, may furnish ample ground for an inference of
consciousness of its truth even though it would afford no sufficient basis
for an inference of adoption (at pp. 247-248).

55Federal Rules of Evidence, 28 U.S.C.A., Rule 801(d)(2).

214

manifested his adoption or belief in its truth. Knowledge of the content
of the statement is not necessary in all cases, as in the following example
in the Advisory Committee's Note^^ to the rule: "X is a reliable person
and knows what he is talking about".

Rule 63(3) (b)(i) of the Uniform Rules, 1953,57 adopts the dis-
senting view in British Thomson-Houston Co. Ltd. v. British Insulated
and Helsby Cables, Ltd.^^ The party is held to have adopted the evidence
he presented at a former trial. The declarant must also be unavailable. The
California Law Revision Commission, commenting on this provision,
stated that the party's "previous direct and redirect examination should
suffice as a substitute for [his] present opportunity to cross-examine". ^^

We find the reasoning of the majority in the British Thomson-
Houston case persuasive. We do not consider that a party can be said to
vouchsafe the credibility of a witness so as to be bound by that witness'
evidence in subsequent proceedings, and find ourselves in accord with the
following statement of Lord Atkin:

... is it true to say that proffering or using evidence is a declaration
that it is true? I imagine that the most optimistic Htigant would shy
at such a burden. He would say: I assert the affirmative or negative of
the issue of fact found between me and my opponent. I tender the
evidence of persons who are prepared to swear to facts which, if
true, I believe will support my case; but as the facts are not within
my own knowledge I have no means of judging whether they are
true or not. I do not think that morality requires more from a litigant
than a belief that the evidence may be true, and the absence of
knowledge or belief that it is false. If he is an experienced litigant
there will be many cases where his honest belief may be alleged with
some honest distrust. But the evidence given may in fact be obviously
exaggerated, or intentionally or unintentionally false. It may be
contradicted by other evidence also called by the same litigant, or be
conclusively overthrown by the evidence of the opponent. To pledge
the party to the truth of evidence under these circumstances seems
to me to travesty the facts.^^

We therefore make no recommendation concerning the matter.

5. Admissions made in a Representative Capacity

Any statement made by a person who is a party to an action in his
personal capacity is admissible against him regardless of the capacity in

56Federal Rules of Evidence, 28 U.S.C.A., at p. 530.

57National Conference of Commissioners on Uniform State Laws, Uniform Rules
of Evidence, 1953. Rule 63 (3) (b)(1) provides that, if the judge finds that the
declarant is unavailable as a witness at the hearing, testimony given as a witness
in another action is admissible when the testimony is offered against a party who
offered it in his own behalf on the former occasion, or against the successor in
interest of such party.

58See footnote 45, supra.

59California Law Revision Commission, Tentative Recommendation and a Study
relating to The Uniform Rules of Evidence, Art. VIII. Hearsay Evidence
(Aug. 1962), at pp. 447-48.

^^British Thomson-Houston Co. Ltd. v. British Insulated and Helsby Cables,
Ltd., [1924] 2 Ch. 160, 169.

215

which he made the statement. However, where a person is a party to an
action in a representative capacity,^^ that is, where he represents another
person or persons as, for example, a trustee, or executor or administrator
of an estate, statements made by him in other than a representative
capacity are inadmissible against him and the party he represents:

What a trustee says or does in the exercise of his duties is evidence
against his beneficiaries. But what he does in other respects is not.^^

Admissions made by a representative before or after his term of office
are inadmissible.^^

The principle underlying this rule is that persons other than the
maker of the statement should not be bound by it. Cross states that this
is a valid principle: ". . . [I]t would clearly be improper to allow those
represented by the maker of an admission to be affected by it, at any rate
when it does not concern a matter in which his and their interest was
identical". ^"^ However, he notes that such a statement could now be ren-
dered admissible under section 2 of the Civil Evidence Act 1968.

The Model Code and Uniform Rules both provide that, where a
person is a party to an action in a representative capacity, the admission
may be received in evidence only if he was acting in a representative
capacity in making the statement. ^^ xhis approach has been rejected by
both the Federal Rules of Evidence^^ and the California Evidence Code.^"^
The note to the Federal Rules states that the statement need only be
relevant to the representative affairs. The California Law Revision Com-
mission gives the following rationale for the dropping of the requirement
in the Uniform Rules:

The basis of the admissions exception to the hearsay rule is that
because the statements are the declarant's own he does not need to
cross-examine. Moreover, a party has ample opportunity to deny,
explain or qualify the statement in the course of the proceeding.
These considerations apply to any extrajudicial statement made by
one who is a party to a judicial action or proceeding either in a
personal or in a representative capacity.^^

6iThe term 'representative capacity' is used here in a narrow sense to indicate

a trustee, executor or administrator, and is to be distinguished from the use

of the term 'agent' at pp. 216-218 infra.
('2New's Trustee v. Hunting, [1897] 1 Q.B. 607, 611 per Vaughan Williams, J.,

affirmed [1897] 2 Q.B. 19. See also Legge v. Edmonds (1855), 25 LJ.Ch.

125, 141.
63phipson, Evidence (11th Ed. 1970), para. 703, at p. 319.
64Cross, Evidence (4th Ed. 1974), at p. 447.
65American Law Institute, Model Code of Evidence (1942), Rule 506; National

Conference of Commissioners on Uniform State Laws, Uniform Rules of

Evidence (1953), Rule 63(7).
66Federal Rules of Evidence, 28 U.S.C.A., Rule 801(d)(2) A; see also Advisory

Committee's Note at p. 530.
67Cal. Evidence Code, §1220 (West, 1968).
68California Law Revision Commission, Tentative Recommendation and a Study

relating to The Uniform Rules of Evidence, Art. VIII, Hearsay Evidence

(August 1962), at p. 320.

216

For the reasons stated by the Cahfornia Law Revision Commission,
we think that any statement made by a person who is a party to a civil
proceeding in a representative capacity should be admissible against him
and the party he represents regardless of the capacity in which he made
the statement; however, in our view the admission should be admissible
in evidence only if it was made during the period of time when the party
was a representative.

6. Vicarious Admissions

Vicarious admissions are admissions made by third persons which bind
the litigant, not because he has adopted them as his own, but because he
has expressly or impliedly authorized the third person to make admissions
which will bind him.

Although a party can hardly object when his out-of-court statements
are offered against him that he was not under oath or that he had no
opportunity to cross-examine himself, yet when the out-of-court statement
is that of another, such an objection is relevant. These statements carry no
stamp of credibility. The admissibility of vicarious admissions is an excep-
tion to the broad principle that a person other than the maker of an
admission is not bound by it.

If an agent is expressly authorized to speak for the party, any admis-
sion made by the agent will be admissible against the party if what was
said was within the authority granted. The Model Code, Uniform Rules
1953, and Federal Rules of Evidence segregate these from Vicarious
Admissions and call them "Authorized Admissions". The Model Code,
Rule 507(a), provides:

507 — (a) Evidence of a hearsay statement is admissible against a
party to the action if the judge finds that ... the declarant was
authorized by the party to make a statement or statements for him
concerning the subject matter of the statement . . .^^

In the Federal Rules of Evidence, Rule 801(d)(2)(C), the words "for
him" are omitted and the rule provides that, "a statement by a person
authorized by him to make a statement concerning the subject" is admis-
sible. We think that the addition of the words "for him" makes the provi-
sion too restrictive. We think that, in a civil proceeding, any statement of
any person that has been authorized by a party to the proceeding, should
be admissible against that party.

Difficulties arise where there is no express authorization to speak,
and principles of the substantive law of agency invade the realm of the
law of evidence. It is usually said that an agent's admission will be received
in evidence against his principal whenever it was made within the scope
of the agent's authority, or in the course of his employment, if such

69American Law Institute, Model Code of Evidence (1942), Rule 507(a); see
also National Conference of Commissioners on Uniform State Laws, Uniform
Rules of Evidence (1953), Rule 63(8) (a); Cal. Evidence Code, §1222 (West,
1968); Federal Rules of Evidence, 28 U.S.C.A., Rule 801(d)(2)(C).

217

authority included the authority to speak or write on behalf of the principal
concerning the matter.

The test to be applied in determining the scope of an agent's author-
ity to make admissions which bind his principal, was considered by the
Ontario Court of Appeal in R. v. Strand Electric Ltd.,'^^ in which the
accused corporation appealed its conviction under The Construction Safety
Act'^^ for failing to provide a scaffold in good condition at a construction
site. One of the main issues for the consideration of the Court was whether
an admission made by one of the employees of the accused, a supervisor, to
a construction safety engineer that he had directed a workman on to the
scaffold was admissible in evidence against the company. In delivering
the judgment of the majority, MacKay, J. A., adopted as the correct state-
ment of the law governing the question whether the employee had the
authority as agent to make the relevant admission, the test set out in
Cross on Evidence:

Statements made by an agent within the scope of his authority
to third persons during the continuance of the agency may be received
as admissions against his principal in litigation to which the latter is
a party . . . the admission must have been made by the agent as part
of a conversation or other communication which he was authorized
to have with a third party P'^

Because the agent was required under The Construction Safety Act to
give information to the construction safety inspector, the majority, in
dismissing the appeal, held that the accused was "compelled by statute to
authorize" its agent to give information such as that given by the super-
visor, and that the employee's statements were, therefore, admissible in
evidence against the accused.

Laskin, J. A., in a dissenting judgment, eliminated the condition that
the agent's admission must have been made as part of a communication
he was authorized to have with a third party. He said :

... the admissions of the agent tendered against the principal must
have been made to a third party within the scope of his authority
during the subsistence of the agency [citing Wigmore and Cross].
The application of . . . [this] proposition has, in the cases, revealed
a different attitude of the Courts to the authority of an agent to
"act" on behalf of his principal and his authority to "speak" on
behalf of his principal, as if speech or conversation was not itself an
act. There may, indeed, be justification for viewing authority dif-
ferently in the two situations, but some of the case law exhibits, in
relation to the reception of admissions, the same formal requirement
of authority that in earlier days limited the development of vicarious
liability in tort; and see also Restatement of the Law, Agency, 2d,
ss. 286, 288 (1958).

70[1969] 1 O.R. 190.

71S.O. 1961-62, c. 18; now R.S.O. 1970, c. 81.

72[1969] 1 O.R. 190, 193, quoting Cross, Evidence (2nd Ed. 1963), at pp. 441-442,
emphasis added.

218

The concept of authority, taken literally, would exclude as
against the principal any admission of an agent tending to show
liability in tort or penal liability, unless the agent is shown to have
been authorized to make admissions to charge his principal. . . .
Authority as between agent and principal has in respect of vicarious
liability of the principal to third parties, been translated into an issue
of the scope of the agent's duties or employment, and I would apply
the same test in relation to admissions by an agent which are ten-
dered in evidence against the principal.'^^

Laskin, J. A., dissented on another point. He would have accepted the
agent's admission as evidence against the accused, if the Crown had ad-
duced evidence that the agent was acting within the scope of his authority
in directing workmen on to the scaffold; however, he was of the view that
the appeal should be allowed, on the ground that there was no evidence
as to the duties and responsibilities of the agent.

The rule as suggested by Laskin, J. A., in the Strand Electric case
reflects Rule 508(a) of the Model Code:

Evidence of a hearsay declaration is admissible against a party to the

action if the judge finds that . . . the declaration concerned a matter

within the scope of an agency or employment of the declarant for

the party and was made before the termination of the agency or
employment.'^4

The statement must be one that the declarant could make as a witness at
the trial. "75 xhe Model Code gives no explanation as to why it narrows
the common-law, by requiring the element of personal knowledge, but
an added guarantee of trustworthiness is compatible with the search for
truth. Under the Federal Rules of Evidence this element is excluded.

The declaration must concern a matter which has been authorized.
Once the declarant has been authorized to act for the party, any state-
ments made by him concerning the matter are admissible if such state-
ments were made during the existence of the agency. The Model Code
does not distinguish between authorization of an agent to act, and author-
ization to speak.

On balance, we prefer the approach adopted in the Model Code and
by Laskin, J. A. We think that a statement made by an agent or employee
during the existence of the agency or employment should be admissible
against his principal or employer if it concerns a matter within the scope
of the agency or employment.

73/6/J., at p. 200.

74American Law Institute, Model Code of Evidence (1942), Rule 508(a). See also
Uniform Rules (1953), Rule 63(9) (a); Federal Rules of Evidence, 28 U.S.C.A.,
Rule 801(d)(2)(D).

75Model Code of Evidence, supra. Rule 501(3): "A hearsay declaration is a hearsay
statement which if made in the process of testifying at the present trial would
be admissible and would not itself be a hearsay statement". The Uniform Rules
(1953), Rule 63(9), begins with the words "a statement which would be admis-
sible if made by the declarant at the hearing".

219

7. Admissions by Solicitors and Counsel

A solicitor is his client's agent for the conduct of the litigation or
potential litigation, but it is a unique kind of agency. The solicitor has
authority to speak for his client, but an admission made by him while
conducting the litigation is limited to use in that litigation. The concept
of authorization is kept within very narrow limits. Admissions made by
counsel are treated with more restriction than those made by solicitors.
They more nearly resemble "formal" admissions than evidentiary ad-
missions."^^

In English v. Richmoncf^ the admissibility of a plea of guilty at a
previous criminal trial was complicated by the fact that English had not
personally made the plea; it was entered by his counsel. The Supreme
Court of Canada held that the plea was admissible as an admission.
Although it is not clear what the precise reasoning of the Court was, the
majority appear to have regarded the plea of guilty as an admission by
adoption. Locke, J., said: "I think that the evidence was relevant and
admissible as showing conduct of the appellant English which, on the face
of it, was inconsistent with his evidence at the trial, directed to showing
that he was not at fault". "^^ This quotation appears to support the relevant
conduct theory of admissions,'^^ and implies that there was an admission
by adoption because English stood by and made no comment while the
plea was made. Kerwin, C.J.C, also stressed that the plea had been made
in the presence of the accused. ^^ Abbott, J., in a dissenting judgment, held
that the plea of guilty was made by counsel in circumstances that "impUed
no more than a desire for peace and not a concession of wrong done".^^
The case may also be viewed as an example of express authorization to
make an admission.^^

As we have indicated, the extent to which counsel can make an
admission which will bind his client in the litigation being conducted has
been kept within narrow limits. For example, admissions cannot be made
by counsel in out-of-court conversation with the lawyer for the other
party.83 ^po be binding it would appear that an admission would have to
be made as "a step in the cause". ^"^

The existing law governing admissions by counsel clearly reflects the
unique relationship between a solicitor and his client. We consider the law
to be satisfactory in this area and see no reason to alter it. Accordingly
we recommend no change.

76phipson speaks of admissions by a counsel as waiver of proof in the action only:

see Phipson, Evidence (11th Ed. 1970), para. 740, at pp. 333-334.
77[1956] S.C.R. 383.
78/6iU, at p. 392.
79See footnote 5 supra.
80[1956] S.C.R. 383, 385.
^Ubid., at p. 398.
82For our recommendation concerning the admissibility in evidence in civil

proceedings of a plea of guilty in a previous criminal trial, see Chapter 6, supra,
^molman v. Main et al, [19701 1 O.R. 318, 8 D.L.R. (3d) 328. In this case

it was held that a statement made by counsel on examination for discovery was

not binding on his client.
^^Haller v. Worman (1861), 3 L.T. 741.

220

8. Recommendations

We recommend the following section be included in The Evidence

Act:

(1) In this section "statement" means any statement against
interest, and includes any expression however made and any gesture
or other assertive conduct.

(2) In a civil proceeding, without limiting the admissibility of
any statement admissible at common law or under this or any other
Act,

(a) any statement of a person who is a party to the proceeding
in his personal capacity is admissible against him regardless
of the capacity in which he made the statement;

(b) any statement of a person who is a party to the proceeding
in a representative capacity is admissible against him and the
party whom he represents regardless of the capacity in
which he made the statement, if the statement was made
during the period of time he was a representative;

(d) any statement is admissible against a party to the proceed-
ing if he expressly adopted it or if, in the circumstances, it
is reasonable to infer that he adopted it;

(e) any statement made by an agent or employee of a party to
the proceeding during the existence of the agency or
employment is admissible against that party if the statement
concerned a matter within the scope of the agency or
employment.

(3) No statement is admissible under this section if it is inad-
missible by reason of any privilege conferred by this or any other
Act or at common law. [Draft Act, Section 32.]

CHAPTER 14

EXECUTIVE PRIVILEGE

1. Introduction

Executive privilege as it relates to the law of evidence requires con-
sideration of two separate but related aspects of the subjection of the
executive to judicial authority. Both of these aspects concern the extent
to which substantive law binds the Crown and its agents, and both are
deeply rooted in history.

First, at common law the Crown could not be sued or subjected to
discovery without its consent. This rule has been extensively altered by
federal and provincial statutes. ^ Second, the Crown, whether or not a party
to particular legal proceedings, may refuse to produce documents or
other information relevant to the litigation on the ground that disclosure
would be contrary to public interest. Both common law rules appear to
have originated in the prerogative of the Crown as the ultimate source of
power vested in both the executive and the judiciary.

It is the second proposition with which we are particularly concerned.
Despite the vastly expanded role of government in recent years, the subject
of crown privilege has remained to be regulated largely by the common
law rules formulated for other conditions.

Executive silence and the degree of secrecy afforded to affairs of
government are matters of general political concern. This is particularly
true today when government functions extend far beyond the regulation
of matters of external and internal security and foreign relations. Gov-
ernmental expansion into virtually every area of social activity, into areas
of commerce, industry, and welfare, to name only a few, together with
the increasing role played by government in public administration through
tribunals and investigatory bodies, have created conditions far removed
from those prevailing when the common law principles concerning execu-
tive privilege were first formulated. The questions that arise under these
modern conditions are very remote from questions of disclosure relating
to peace and war and national security. Conflicting public interests must
be balanced: "there is the pubHc interest that harm shall not be done to
the nation or the public service by disclosure of certain documents, and
there is the public interest that the administration of justice shall not be
frustrated by the withholding of documents which must be produced if
justice is to be done".^ The question is who should hold the balance and
how should it be held?

iFor example, Crown Liability Act, R.S.C. 1970, c. C-38; The Proceedings

Against the Crown Act, R.S.O. 1970, c. 365.
'^Conway v. Rimmer and Another, [1968] A.C. 910, 940, [1968] 1 All E.R.

874, 880.

221

222

2. The Case Law

In a comprehensive and painstaking discussion of crown privilege
in the Canadian Bar Review^ Professor Bushnell has reHeved us from the
task of setting out an exhaustive analysis of all the relevant jurisprudence.
For our purposes, the matter can best be considered by first discussing a
group of leading English cases, and then considering two cases in the
Supreme Court of Canada.

(a) English Case Law

It is useful to start with Robinson v. State of South Australia
[No. 2]. 4 In this case the appellant brought an action for damages arising
out of alleged negligence in the care of wheat placed under the control of
the State under relevant legislation concerning the marketing of wheat.
Proof of the plaintiff's case rested mainly on documents in the control of
the defendant, and for the plaintiff to succeed it was essential that there
be full disclosure by the State. The Judicial Committee examined the basic
foundation on which so called crown privilege rests; from the judgment,
four essential principles may be extracted:

(a) the privilege is a narrow one;

(b) unless there is some plain overriding principle of public interest
which cannot be disregarded, the same discovery should be
made by the Crown, as if the Crown were in the position of a
subject;

(d) that the documents are confidential or official is, alone, no
reason for their non-production.

The Committee did not consider the procedure which should apply
where privilege is claimed in an action to which the Crown is not a party.
In cases where the Crown is a party, their Lordships' view was that the
privilege should be claimed by a responsible Minister of State whose
mind was directed to the question whether on grounds of public interest
the document should be withheld.

Having discussed the principles governing crown privilege. Lord
Blanesburgh proceeded to consider the power of the court to call for
production of documents where privilege is claimed, so that the court
may determine whether they come within the principles to be applied.
His Lordship held that at common law the court had that power, and went
on to quote from the Rules of Court of South Australia,^ stating that the
rule giving the power to call for production for examination applied.
Having come to this conclusion, he proceeded to consider whether the
power to call for production should be exercised, and concluded that the
documents should be produced and examined by a judge on an inter-

3(1973), 51 Can. Bar Rev. 551.
4[1931] A.C. 704.

sSimilar to Rule 348 of the Rules of Practice of the Supreme Court, R.R.O.
1970, Reg. 545.

223

locutory application with the caution, "That the judge in giving his deci-
sion as to any document will be careful to safeguard the interest of the
State, and will not, in any case of doubt, resolve the doubt against the
State without further inquiry from the Minister". ^

Eleven years later the House of Lords considered the Robinson case
in Duncan v. Cammell, Laird & Co. LtdJ This case was, however, very
different from the Robinson case, in which the State was the defendant
and the documents referred to commercial transactions and reports arising
out of State operations in the marketing of wheat. In the Duncan case the
State was not a party to the action and the court was concerned with
documents and plans relating to the construction of a submarine during
wartime. Two questions were considered at length: first, the manner in
which the claim of privilege should be made; and secondly, whether when
the objection to production is taken in proper form, it should be treated by
the court as conclusive, or whether there are circumstances in which the
judge should himself look at the documents before ruling on their produc-
tion. As to the first question the House held:

The essential matter is that the decision to object should be taken
by the minister who is the political head of the department, and that
he should have seen and considered the contents of the documents and
himself have formed the view that on grounds of public interest they
ought not to be produced, either because of their actual conten.s or
because of the class of documents, e.g., departmental minutes, to
which they belong.^

The court held that the objection might be taken by a high official in the
department in certain circumstances. Although the objection might be
conveyed to the court by a person other than the minister, the court could
require the minister to express his view under oath that the production
would be against the public interest.

On the second point the House directly disagreed with the decision
of the Judicial Committee of the Privy Council in the Robinson case and
held that "Those who are responsible for the national security must be the
sole judges of what the national security requires".^

Referring to the South AustraHan Rule of Court which provided that,
where on an application for an order for inspection privilege is claimed
for any document, it shall be lawful for the court or a judge to inspect
the document for the purpose of deciding as to the validity of the claim
of privilege, 10 Viscount Simon said, "In my opinion, the Privy Council was
mistaken in regarding such a rule as having any application to the subject-
matter. . . . The withholding of documents, on the ground that their
publication would be contrary to the public interest, is not properly to be
regarded as a branch of the law of privilege connected with discovery". '^

6[1931] A.C. 704, 725.

7[1942] A.C. 624.

^Ibid., at p. 638.

9/6/^., at p. 641, quoting Lord Parker in The Zamora, [1916] 2 A.C. 77, 107.
10/6/^., at p. 641.
^^Ibid.

224

The result was that the House of Lords held that the decision of the
minister was conclusive, and that the court had no power to call for the
inspection of the relevant documents for the purpose of determining
whether the production would or would not be prejudicial to the public
interest.

However, Viscount Simon, L.C., took care to indicate the sort of
grounds which would not afford the minister adequate justification for
objecting to production. He said:

It is not a sufficient ground that the documents are 'State documents'
or 'official' or are marked 'confidential'. It would not be a good
ground that, if they were produced, the consequences might involve
the department or the government in parliamentary discussion or in
public criticism, or might necessitate the attendance as witnesses or
otherwise of officials who have pressing duties elsewhere. Neither
would it be a good ground that production might tend to expose a
want of efficiency in the administration or tend to lay the department
open to claims for compensation. In a word, it is not enough that
the minister of the department does not want to have the documents
produced. The minister, in deciding whether it is his duty to object,
should bear these considerations in mind, for he ought not to take the
responsibility of withholding production except in cases where the
public interest would otherwise be damnified, for example, where
disclosure would be injurious to national defence, or to good diplo-
matic relations, or where the practice of keeping a class of documents
secret is necessary for the proper functioning of the public service.
When these conditions are satisfied and the minister feels it is his
duty to deny access to material which would otherwise be available,
there is no question but that the public interest must be preferred
to any private consideration. ^^

He went on to add that although the court was concerned with documents
in that case, the same principles would apply to oral evidence.

That part of the speech of Viscount Simon, L.C., in the Duncan case
which purported to hold that, where crown privilege was claimed in proper
form, the court bad no right to inspect documents in order to determine
whether the claim of privilege was well founded, came under critical
examination in Re Grosvenor Hotel, London (No. 2)}^ The Court of
Appeal regarded that portion of the speech as obiter dictum and declined
to follow it. Although the court refused to call for the production of
documents. Lord Denning stated the law to be as follows:

The objection of a Minister, even though taken in proper form, should
not be conclusive. If the court should be of opinion that the objec-
tion is not taken in good faith, or that there are no reasonable
grounds for thinking that the production of the documents would be
injurious to the public interest, the court can override the objection
and order production. It can, if it thinks fit, call for the documents

mbid., at pp. 642-43.

13[1965] Ch. 1210, [1964] 3 All E.R. 354.

225

and inspect them itself so as to see whether there are reasonable
grounds for withholding them : ensuring, of course, that they are not
disclosed to anyone else. It is rare indeed for the court to override
the Minister's objection, but it has the ultimate power, in the interests
of justice, to do so. After all, it is the judges who are the guardians
of justice in this land: and if they are to fulfil their trust, they must
be able to call on the Minister to put forward his reasons so as to
see if they outweigh the interests of justice. ^"^

The result of this case would appear to be that where the minister
puts forward a claim that the production of documents falling within a
certain class might imperil the safety of the State or diplomatic relations,
the claim should be allowed without question. Cabinet minutes and min-
utes of discussion between heads of departments and dispatches from
ambassadors fall into this class as well as communications made to a
minister by virtue of a statutory obligation. Secondly, the case decides
that where it is not clear that the public interest would be seriously injured
by the production of certain documents, such as routine communications
between civil servants or documents of a class for which privilege could not
reasonably be claimed, the court has residual power to call for the docu-
ments for inspection to determine if the minister's claim is well founded.

The English Court of Appeal again considered crown privilege in
Wednesbury Corporation and Others v. Ministry of Housing and Local
Government. ^^ In that case Lord Denning said:

. . . [I]n a case where a Minister claims privilege for a class of docu-
ments, he must justify his objection with reasons. He should describe
the nature of the class and the reason why the document should not
be disclosed, so that the court itself can see whether this claim is
well taken or not. The very description of the documents in the class
may itself suffice, as, for instance, confidential reports on officers in
the Army. There it is obvious that candour is necessary and that the
documents should not be disclosed; but if it be not obvious, then
reasons should be given. The Minister should consider every class of
documents on its merits, and only withhold them when he is satisfied
that candour can only be secured by complete confidence. 'The
proper functioning of the public service' is not enough. This affidavit
in common form is to my mind insufficient in itself to give the
privilege from production which the Minister claims.

But nevertheless, before ordering the production of these docu-
ments, I think that we should see whether, in the interests of justice,
it is necessary that we should overrule the objection of the Minister. ^^

In this case the production was refused.

A fundamental re-examination of the entire subject of executive
privilege was undertaken by the House of Lords in 1968 in Conway v.

14[1965] Ch. 1245-1246, [1964] 3 All E.R. 361-362.
15[1965] 1 All E.R. 186.
16/6/^., at p. 190.

226

Rimmer and Another}'' The relevant cases were analysed and discussed,
particularly the speech of Viscount Simon, L.C., in the Duncan case. Lord
Reid concluded, "that the present position is unsatisfactory and that the
House must re-examine the whole question in the light of the authorities".
All members of the House disagreed with the conclusion in the Duncan
case, in so far as it held that the court had no right to inspect documents
where crown privilege is claimed, in order to determine whether the claim
of privilege was well founded. Lord Reid said:

I would therefore propose that the House ought now to decide
that courts have and are entitled to exercise a power and duty to
hold a balance between the public interest, as expressed by a Min-
ister, to withhold certain documents or other evidence, and the public
interest in ensuring the proper administration of justice. ^^

Having indicated certain classes of documents that ought not to be dis-
closed, such as cabinet minutes and documents concerned with policy
making within the departments of government, he went on to say:

It appears to me that, if the Minister's reasons are such that a
judge can properly weigh them, he must, on the other hand, con-
sider what is the probable importance in the case before him of the
documents or other evidence sought to be withheld. If he decides
that on balance the documents probably ought to be produced, I
think that it would generally be best that he should see them before
ordering production and if he thinks that the Minister's reasons are
not clearly expressed he will have to see the documents before
ordering production. ^^

Lord Morris in clear language said, "I have come to the conclusion
that it is now right to depart from the decision in Duncan's case",^^ and
stated :

In my view, it should now be made clear that whenever an objec-
tion is made to the production of a relevant document is it for
the court to decide whether or not to uphold the objection. The in-
herent power of the court must include a power to ask for a clarifi-
cation or an amplification of an objection to production though the
court will be careful not to impose a requirement which could only
be met by divulging the very matters to which the objection related.
The power of the court must also include a power to examine docu-
ments privately, a power, I think, which in practice should be
sparingly exercised but one which could operate as a safeguard for
the executive in cases where a court is inclined to make an order
for production, though an objection is being pressed. I see no dif-
ference in principle between the consideration of what have been

17[1968] A.C. 910, [1968] 1 All E.R. 874; see also Rogers v. Secretary of State
for the Home Department, [1973] A.C. 388; Norwich Pharmacal v. Customs and
Excise Commissioners, [1974] A.C. 133; Alfred Crompton Amusements Machines
Ltd. V. Customs and Excise Commissioners (No. 2), [1974] A.C, 405.

18[1968] A.C. 952, [1968] 1 All E.R. 888.

19[1968] A.C. 953, [1968] 1 All E.R. 888.

20[1968] A.C. 958, [1968] 1 All E.R. 892.

227

called the contents cases and the class cases. The principle which the
courts will follow is that relevant documents normally liable to
production will be withheld, if the public interest requires that they
should be withheld. In many cases it will be plain that documents
are within a class of documents which by their very nature ought
not to be disclosed. Indeed, in the majority of cases I apprehend that
a decision as to an objection will present no difficulty. The cases of
difficulty will be those in which it will appear that if there is non-
disclosure some injustice may result and that if there is disclosure
the public interest may to some extent be affected prejudicially. The
courts can and will recognise that a view honestly put forward by
a Minister as to the public interest will be based upon special
knowledge and will be put forward by one who is charged with a
special responsibility. As Lord Radcliffe said in the Glasgow Cor-
poration case, the courts will not seek on a matter which is within
the sphere and knowledge of a Minister to displace his view by their
own. But where there is more than one aspect of the public interest
to be considered it seems to me that a court, in reference to litiga-
tion pending before it, will be in the best position to decide where
the weight of public interest predominates. I am convinced that the
courts, with the independence which is their strength, can safely be
entrusted with the duty of weighing all aspects of public interests
and of private interests and of giving protection where it is found
to be due.2i

Lord Hodson, Lord Pearce and Lord Upjohn all agreed that the court had
the power to overrule the minister and call for the production of docu-
ments to determine whether their contents should be disclosed, and an
order was made accordingly.

(b) Canadian Case Law

Re R. V. Snider'^'^ was a reference to the Supreme Court of Canada
arising out of an objection taken by the Minister of National Revenue to
produce income tax returns and documents filed pursuant to the provi-
sions of the Income Tax Act. After dealing with the nature of executive
privilege Rand, J., said:

Once the nature, general or specific as the case may be, of documents
or the reasons against its disclosure, are shown, the question for the
court is whether they might, on any rational view, either as to their
contents or the fact of their existence, be such that the public interest
requires that they should not be revealed; if they are capable of
sustaining such an interest, and a minister of the Crown avers its
existence, then the courts must accept his decision. On the other
hand, if the facts, as in the example before us, show that, in the
ordinary case, no such interest can exist, then such a declaration of
the minister must be taken to have been made under a misapprehen-
sion and be disregarded. To eliminate the courts in a function with
which the tradition of the common law has invested them and to

2i[1968] A.C. 971-972, [1968] 1 All E.R. 900-901.
22[1954] S.C.R. 479.

228

hold them subject to any opinion formed, rational or irrational, by
a member of the executive to the prejudice, it might be, of the lives
of private individuals, is not in harmony with the basic conceptions
of our polity. But I should add that the consequences of the exclusion
of a document for reasons of public interest as it may affect the
interest of an accused person are not in question here and no im-
plication is intended as to what they may be.

What is secured by attributing to the courts this preliminary
determination of possible prejudice is protection against executive
encroachments upon the administration of justice; and in the present
trend of government little can be more essential to the maintenance
of individual security. In this important matter, to relegate the courts
to such a subserviency as is suggested would be to withdraw from
them the confidence of independence and judicial appraisal that so
far appear to have served well the organization of which we are the
heirs. These are considerations which appear to me to follow from
the reasoning of the Judicial Committee in Robinson v. South
Australia^

In Gagnon v. Quebec Securities Commission,^"^ the Supreme Court
declined to follow the Duncan case and followed the reasoning of Lord
Denning, M.R., in the Grosvenor Hotel case. It was made clear that the
judges "who are guardians of justice" must be reasonably satisfied that
the interest of the State goes beyond that of the litigant, or at least that
the departmental objection is not unreasonable. Fauteux, J., writing the
majority judgment said:

There is no doubt that Judges will use great caution and will hesitate
before exercising this residuary power of review; but the fact that
this power is attributed to them necessarily implies that, rare though
they may be, there will be cases where the duty to exercise the power
will arise. And it goes without saying that in each case the facts
raised to justify the use of the power will vary; each case will have
to be judged on its merits. ^^

Abbott, J., concluded his dissenting judgment by stating "It may well be
that this is out of line with modern day conditions, as to which of course
I express no opinion. If that be so, I think the remedy must be sought
elsewhere than in the Courts". ^6 However, much that was said in this case
may be obiter, as the basis of the decision was that the objection by the
minister was not in adequate or proper form.

From these cases it appears that under Canadian law the court may
in certain cases examine the ground on which a minister claims privilege,
to determine whether the privilege can be sustained; in other cases the
court may determine, from the very nature of the documents for which
privilege is claimed, that no examination should be ordered, as for example

23/^/W., at pp. 485-86.
24[1965] S.C.R. 73, 50 D.L.R. (2d) 329.
25[1965] S.C.R. 79, 50 D.L.R. (2d) 333-334.
26[1965] S.C.R. 84, 50 D.L.R. (2d) 338.

229

in the case of cabinet minutes and diplomatic reports. In the words of
Lord Upjohn in Conway v. Rimmer,

. . . the principle to be applied can be very shortly stated. On the
one side there is the public interest to be protected; on the other side
of the scales is the interest of the subject who legitimately wants
production of some documents, which he believes will support his
own or defeat his adversary's case. Both are matters of public in-
terest, for it is also in the public interest that justice should be done
between litigating parties by production of all documents which are
relevant and for which privilege cannot be claimed under the ordinary
rules. They must be weighed in the balance one against the other. ^'^

3. Legislation

We now consider how far legislation concerning executive privilege
precludes the court from applying the common law. The provisions of the
Ontario Evidence Act read:

3L Where a document is in the official possession, custody or
power of a member of the Executive Council, or of the head of a
department of the public service of Ontario, if the deputy head or
other officer of the department has the document in his personal
possession, and is called as a witness, he is entitled, acting herein
by the direction and on behalf of such member of the Executive
Council or head of the department, to object to producing the docu-
ment on the ground that it is privileged, and such objection may be
taken by him in the same manner, and has the same effect, as if
such member of the Executive Council or head of the department
were personally present and made the objection.^^

This provision does not appear to affect the conclusiveness of an objection
to produce, made by a member of the Executive Council. It merely
faciUtates the manner in which the objection may be made where a deputy
head or other officer is called as a witness. A much broader provision in
the Quebec Code of Civil Procedure did not prevent the Supreme Court
of Canada, in the Gagnon case, from applying the principles laid down
in the Grosvenor Hotel case.

At the time of the Gagnon case Article 332 of the Quebec Code of
Civil Procedure provided:

He cannot be compelled to declare what has been revealed to
him confidentially in his professional character as religious or legal
advisor, or as an officer of state where public policy is concerned.

The same shall apply to any member, officer or employee of a
commission, board or other body the members of which are ap-
pointed by the Lieutenant-Governor in Council, whenever the Attor-
ney-General or Solicitor-General of the Province certifies, by a writing

^'^ Conway v. Rimmer and Another, [1968] A.C. 910, 992, [1968] 1 All E.R.

874, 914.
28R.S.O. 1970, c. 151, s. 31.

230

in the possession of the witness, who must produce the same, that
pubhc order is involved in the facts concerning which it is desired to
examine him.^^

Our interpretation of the majority judgment of the Supreme Court con-
cerning this section is reinforced when it is read with the dissenting judg-
ment of Abbott, J. Referring to some previous Canadian cases dealing
with the effect of Article 332, Abbott, J., adopted the words of Casey, J.,
in Minister of National Revenue et al. v. Die-Plast Co.^^ where he said:

It appears to me that these decisions constitute a jurisprudence
which supports the contention that it is only the head of a Depart-
ment of State who is in a position and who has the right to decide
whether the disclosure will be against the public interest, and the
further proposition that no Court has the right to go behind the
decision — in this case — of the Minister of National Revenue. It
would require a very compelling reason to warrant any interference
with this jurisprudence and to justify an opinion contrary to that
expressed in these decisions. Neither in the judgment a quo nor else-
where have I been able to find such a reason. ^^

From the fact that the majority of the court did not agree with Abbott, J.,
it might be inferred that, even though they did not find it necessary to
decide the point, the majority did not consider that the language of Article
332 hmited the power of the court to hold the balance concerning the
respeolive interests involved.

In The Proceedings Against The Crown Act^^ it is provided that
where an action is brought against Her Majesty in the right of Ontario,

. . . the rules of the court in which the proceedings are pending as to
discovery and inspection of documents and examination for discovery
apply in the same manner as if the Crown were a corporation, except
that,

(a) the Crown may refuse to produce a document or to answer a
question on the ground that the production or answer would be
injurious to the public interest;

(b) the person who shall attend to be examined for discovery shall
be an official designated by the Deputy Minister of Justice and
Deputy Attorney General; and

(c) the Crown is not required to deliver an affidavit on production
of documents for discovery and inspection, but a list of the
documents that the Crown may be required to produce, signed
by the Deputy Minister of Justice and Deputy Attorney General,
shall be delivered.^^

29S.Q. 1957-58, c. 43, s. 2.
30[1952] 2 D.L.R. 808.
^nbid., at p. 815.
32R.S.O. 1970, c. 365.
mbid., s. 12.

231

This section was criticized by the Royal Commission Inquiry into Civil
Rights34 on the ground that in actions against the Crown it went further
than the common law privilege. It was recommended that the section be
repealed and parties to actions coming within it be left to their common
law rights.

In the light of our interpretation of the Supreme Court's view of
Article 332 of the Quebec Code of Civil Procedure in the Gagnon case,
it is doubtful that the interpretation of the Royal Commission is correct.
The better conclusion would appear to be that the section is a procedural
one giving the Crown a right to refuse to produce documents or answer
questions on discovery on the ground of privilege, but it would still
remain for the court in proper cases to determine whether the ground of
privilege is well taken.

The latest attempt to deal in statutory form with the topic of executive
privilege is contained in the Federal Court AcP^ and the Federal Court
Rules ?^ The Act provides:

41(1) Subject to the provisions of any other Act and to subsec-
tion (2), when a Minister of the Crown certifies to any court by
affidavit that a document belongs to a class or contains information
which on grounds of a public interest specified in the affidavit should
be withheld from production and discovery, the court may examine
the document and order its production and discovery to the parties,
subject to such restrictions or conditions as it deems appropriate, if
it concludes in the circumstances of the case that the public interest
in the proper administration of justice outweighs in importance the
public interest specified in the affidavit.

(2) When a Minister of the Crown certifies to any court by affidavit
that the production or discovery of a document or its contents would
be injurious to international relations, national defence or security,
or to federal-provincial relations, or that it would disclose a con-
fidence of the Queen's Privy Council for Canada, discovery and
production shall be refused v^thout any examination of the document
by the court.

This provision does not apply to oral communications not reduced to
documentary form. Rule 464 provides for production and inspection of
Crown documents, where the Crown is not a party:

^^Royal Commission Inquiry into Civil Rights (1971), Vol. 5, Chapter 131, at
p. 2213 et seq.

35S.C. 1970-71-72, c. C-1.

36S.O.R./71-68. The relevant rules provide:

Rule 456. At any state of an action, the Court may order any party to
produce to the Court any document in his possession, custody or power re-
lating to any matter in question in the cause or matter and the Court may
deal with the document when produced in such manner as it thinks fit.
Rule 457. Where on an application for production of any document,
privilege from such production is claimed or objection is made to such
production on any other ground, the Court may inspect the document for
the purpose of deciding whether the claim or objection is valid.
Rule 459 reproduces section 41 of the Act.

232

Rule 464(1) When a document is in the possession of a person not
a party to the action and the production of such document at a trial
might be compelled, the Court may at the instance of any party, on
notice to such persons and to the other parties to the action, direct
the production and inspection thereof, and may give directions re-
specting the preparation of a certified copy which may be used for
all purposes in lieu of the original.

(2) This Rule applies in respect of a document in possession
of the Crown.

(3) Where an application under paragraph (1) is in respect of
a document in the possession of the Crown, the notice to the Crown
shall be directed to, and served on, the Deputy Attorney General of
Canada.

4. Conclusions

We have come to the conclusion that the law governing executive
privilege requires clarification by statute. Although the relevant provisions
of the Federal Court Act form a basis for consideration, they are not
entirely satisfactory for our purposes. They do not refer to oral com-
munications; and it may be argued that the Act does not go beyond
production and discovery in the preparation for trial of an action to which
the Crown is a party.

We have concluded that, in the provincial context, only the following
grounds should form the basis of an unreviewable claim of privilege:
injury to the security of the Province or the Nation, or to federal-provin-
cial relations, or disclosure of a Cabinet confidence. Moreover, it is the
Commission's view that, because the proposed scheme would broaden the
range of matters in respect of which crown privilege may be claimed
absolutely, without intervention by the courts, additional safeguards are
required against the unwise and arbitrary exercise of the privilege. We
recommend, therefore, that a decision as to whether executive privilege
should be claimed on any of the grounds on which, under our recom-
mendations, a claim for unreviewable privilege may be based, should be
made not by a Minister alone, but collectively by the Executive Council.

We have concluded that the power to inquire into a claim of execu-
tive privilege on the ground that disclosure would be contrary to the
public interest should be restricted to proceedings in the Supreme and
County or District Courts. However, we think that provision should be
made for an application to the Divisional Court by way of stated case
where a Minister objects to produce documents or other things before
a tribunal or court presided over by provincial appointees.

5. Recommendation

We recommend that section 31 of The Evidence Act be repealed
and the following substituted therefor:

( 1 ) This section applies only to a proceeding in the Supreme
Court or a county or district court, whether the Crown is or is not a
party.

233

(2) Subject to subsection 3 and any other Act, where a member
of the Executive Council objects to the disclosure of a document or
its contents or of an oral communication or other thing on the ground
that the disclosure would be against the public interest and certifies
to the court by affidavit that the document or oral communication
or other thing belongs to a class or contains information which on
grounds of public interest specified in the affidavit should not be dis-
closed, the court may inquire into the matter privately and, if it con-
cludes in the circumstances of the case that the pubhc interest in the
proper administration of justice outweighs in importance the public
interest specified in the affidavit, it may order, subject to such re-
strictions or conditions as it deems appropriate, disclosure on dis-
covery or by a witness at trial.

(3) Where a member of the Executive Council certifies to the
court by affidavit that the Executive Council is of the opinion that
disclosure of any document or its contents or any oral communication
or other thing would be injurious to the security of Canada or Ontario
or to federal-provincial relations, or that it would disclose a confidence
of the Executive Council, disclosure shall be refused without any
examination by the court concerning the document, oral communica-
tion, or other thing. [Draft Act, Section 42.]

(1) This section appUes only to a proceeding other than a
proceeding to which section 42 applies.

(2) Where a member of the Executive Council objects to the
disclosure of a document or its contents or of an oral communication
or other thing on any ground not falling within subsection 3 of section
42 and certifies to the court by affidavit that the document or oral
communication or other thing belongs to a class or contains infor-
mation which on grounds of public interest specified in the affidavit
should not be disclosed, the presiding officer at the proceeding may
on his own motion or on application of a party to the proceeding
state a case to the Divisional Court setting out the facts, and the
court may on application by the presiding officer or by such party
inquire into the matter privately and make any order concerning
production of the matter in question that a court could have made
under section 42.

(3) Where a presiding officer refuses to state a case under sub-
section 2, any party to the proceeding may apply to the Divisional
Court for an order that he so state a case and if the order is made, he
shall state a case accordingly. [Draft Act, Section 43.]

CHAPTER 15

FORMAL PROOF OF
GOVERNMENTAL DOCUMENTS

1. Discussion

Sections 25 to 29 inclusive, section 30 (in part) and section 32 of
The Evidence Act^ deal with proof of governmental documents such as
letters patent, statutes, orders in council, proclamations, orders, notices
and entries in books of account kept by departments of governments. ^ The

iR.S.O. 1970, c. 151.
2These sections provide:

25. Letters patent under the Great Seal of the United Kingdom, or of
any other of Her Majesty's dominions, may be proved by the production
of an exemplification thereof, or of the enrolment thereof, under the Great
Seal under which such letters patent were issued, and such exemplification
has the like force and effect for all purposes as the letters patent thereby
exemplified or enrolled, as well against Her Majesty as against all other
persons whomsoever.

26. Copies of statutes, official gazettes, ordinances, regulations, procla-
mations, journals, orders, appointments to office, notices thereof and other
public documents purporting to be printed by or under the authority of the
Parliament of the United Kingdom, or of the Imperial Government or by
or under the authority of the government or of any legislative body of
any dominion, commonwealth, state, province, colony, territory or posses-
sion within the Queen's dominions, shall be admitted in evidence to prove
the contents thereof.

27. Prima facie evidence of a proclamation, order, regulation or appoint-
ment to office made or issued,

(a) by the Governor General or the Governor General in Council, or other
chief executive oflficer or administrator of the Government of Canada;
or

(b) by or under the authority of a minister or head of a department of
the Government of Canada or of a provincial or territorial government
in Canada; or

(c) by a Lieutenant Governor or Lieutenant Governor in Council or other
chief executive officer or administrator of Ontario or of any other
province or territory in Canada.

may be given by the production of,

(d) a copy of the Canada Gazette or of the official gazette for a province
or territory purporting to contain a notice of such proclamation, order,
regulation or appointment; or

(e) a copy of such proclamation, order, regulation or appointment purport-
ing to be printed by the Queen's Printer or by the government printer
for the province or territory; or

(f) a copy of or extract from such proclamation, order, regulation or
appointment purporting to be certified to be a true copy by such
minister or head of a department or by the clerk, or assistant or
acting clerk of the executive council or by the head of a department
of the Government of Canada or of a provincial or territorial govern-
ment or by his deputy or acting deputy.

28. An order in writing purporting to be signed by the Secretary of
State of Canada and to be written by command of the Governor General
shall be received in evidence as the order of the Governor General and an
order in writing purporting to be signed by the Provincial Secretary and to

235

236

language used in some of these sections was relevant to the constitutional
structure of the British Empire existing when they were first enacted. But
changes since then have made the terminology not only irrelevant, but in
some cases probably inapplicable. Section 25 refers to "Her Majesty's
dominions". Section 26 refers to the "Parliament of the United Kingdom,
or of the Imperial Government" and refers to documents printed "under the
authority of the government or of any legislative body of any dominion,
commonwealth, state, province, colony, territory or possession within the
Queen's dominions". Section 32 is limited to copies of entries of books
of account kept in a department of the government of Canada or of
Ontario; no reference is made to other provinces in Canada.

We think the scope of this legislation should be much broader than
it now is. It seems unreasonable to us that a statute or other govern-
mental order of Nigeria or Hong Kong should be admissible in evidence
in Ontario, while formal proof must be demonstrated when a statute of
the State of New York or the State of Michigan is relevant to an issue
being tried in Ontario.

In our view, where the contents of a statute or other governmental
document are relevant to an issue being tried in Ontario, formal proof of
the document should be as simple as possible. On the other hand, if the
document requires interpretation, the rules applicable to the proof of
foreign law should be applied, as they would be on any other question of
foreign law. In any case, the applicability of foreign law to an issue being
tried in Ontario always rests with the court.

2. Recommendation

In order to facilitate formal proof of foreign statutes and similar
governmental documents, we recommend that the substance of the sec-
tions of The Evidence Act we have referred to should be replaced by a

be written by command of the Lieutenant Governor shall be received in
evidence as the order of the Lieutenant Governor.

29. Copies of proclamations and of official and other documents, notices
and advertisements printed in the Canada Gazette, or in The Ontario
Gazette, or in the official gazette of any province or territory in Canada
are prima facie evidence of the originals and of the contents thereof.

30. Where the original record could be received in evidence, a copy of
an official or public document in Ontario, purporting to be certified under
the hand of the proper officer, or the person in whose custody such official
or public document is placed, or of a document, by-law, rule, regulation or
proceeding, or of an entry in a register or other book of a corporation,
created by charter or statute in Ontario, purporting to be certified under the
seal of the corporation and the hand of the presiding officer or secretary
thereof, is receivable in evidence without proof of the seal of the corporation,
or of the signature or of the official character of the person or persons
appearing to have signed the same, and without further proof thereof.

32. A copy of an entry in a book of account kept in a department of
the Government of Canada or of Ontario shall be received as prima facie
evidence of such entry and of the matters, transactions and accounts therein
recorded, if it is proved by the oath or affidavit of an officer of the depart-
ment that such book was, at the time of the making of the entry, one of
the ordinary books kept in the department, that the entry was apparently,
and as the deponent believes, made in the usual and ordinary course of
business of the department, and that such copy is a true copy thereof.

237

more comprehensive and relevant provision. If a copy of a foreign govern-
mental document is produced, which the court is satisfied is an authentic
copy of the document, and the court finds that the original, if otherv/ise
proved, would be admissible in evidence, a copy should be received as
prima facie evidence of the contents of the original. If at any time it is
disclosed that the copy is not, in fact, a true copy of the original, it would
necessarily follow that proof of the original had not been established.
We recommend that sections 25 to 30 inclusive^ and section 32 of The
Evidence Act be repealed and the following be substituted therefor:

If the court is satisfied as to its authenticity, a copy reproduced
by any means,

(a) of any statute, regulation, rule, by-law, ordinance, proclamation,
official gazette or journal, order, appointment, patent, charter or
other document of a similar nature enacted, made, issued, published
or promulgated by or on behalf of any government or governmental
agency in the exercise of any original or delegated authority within
or outside Ontario; or

(b) of an entry in a book of account kept by or on behalf of any
government or governmental agency within or outside Ontario,

is admissible in a proceeding as prima facie evidence of the document
and of its contents, or of the entry and the matters, transactions and
accounts recorded therein. [Draft Act, Section 41.]

3The provisions of section 30 dealing with corporate documents are now contained
in section 46 of the Draft Act.

CHAPTER 16

THE ENFORCEMENT OF
INTERPROVINCIAL SUBPOENAS

Securing the attendance of witnesses from other provinces in Canada
presents certain problems in the administration of justice in Ontario. As
far as witnesses from Quebec are concerned, the provisions of the pre-
Confederation Act of the Province of Canada^ still apply; these are set
out as an appendix to section 20 of The Evidence Act?

iS.C. 1854, c. 9.

2These provisions read as follows:

20. A witness served in due time with a subpoena issued out of a
court in Ontario, and paid his proper witness fees and conduct money, who
makes default in obeying such subpoena, without any lawful and reasonable
impediment, in addition to any penalty he may incur as for a contempt of
court, is liable to an action on the part of the person by whom, or on
whose behalf, he has been subpoenaed for any damage that such person
may sustain or be put to by reason of such default.

4. If in any action or suit depending in any of Her Majesty's Superior
Courts of Law or Equity in Canada, it appears to the Court, or when
not sitting, it appears to any Judge of the Court that it is proper to
compel the personal attendance at any trial or enquete or examination
of witnesses, of any person who may not be within the jurisdiction of
the Court in which the action or suit is pending, the Court or Judge,
in their or his discretion, may order that a writ called a writ of subpoena
ad testificandum or of subpoena duces tecum shall issue in special form,
commanding such person to attend as a witness at such trial or enquete
or examination of witnesses wherever he may be in Canada.

5. The service of any such writ or process in any part of Canada,
shall be valid and effectual to all intents and purposes, as if the same
had been served within the jurisdiction of the Court from which it has
issued, according to the practice of such Court,

6. No such writ shall be issued in any case in which an action is pend-
ing for the same cause of action, in that section of the Province,
whether Upper or Lower Canada respectively, within which such witness
or witnesses may reside.

7. Every such writ shall have at the foot, or in the margin thereof,
a statement or notice that the same is issued by the special order of the
Court or Judge making such order, and no such writ shall issue without
such special order.

8. In case any person so served does not appear according to the
exigency of such writ or process, the Court out of which the same
issued, may, upon proof made of the service thereof, and of such
default to the satisfaction of such Court, transmit a certificate of such
default, under the seal of the same Court, to any of Her Majesty's
Superior Courts of Law or Equity in that part of Canada in which the
person so served may reside, being out of the jurisdiction of the Court
transmitting such certificate, and the Court to which such certificate is
sent, shall thereupon proceed against and punish such person so having
made default, in like manner as they might have done if such person
had neglected or refused to appear to a writ of subpoena or other
similar process issued out of such last mentioned Court.

9. No such certificate of default shall be transmitted by any Court,
nor shall any person be punished for neglect or refusal to attend any

239

240

In Rideout v. Rideout^ an application was made to commit witnesses
in Ontario who had failed to respond to a subpoena served in Montreal.
Kelly, J., held that the provisions of the pre-Confederation statute are
still in force in Ontario, but refused to make an order to commit because
of the unsatisfactory condition of the material filed in support of the ap-
plication. In this case the learned judge followed a line of cases based on
Moffat V. Prentice"^ in which Spragge, C, upheld a decision of the Regis-
trar that a party living in Hull could be compelled to attend for examina-
tion in Ottawa.

Section 129 of the British North America Act^ provides that, except
where otherwise provided, all laws in force in Canada at the time of the
union should continue in Ontario and Quebec as if the union had not been
made, subject, however, to repeal, abolition or alteration "by the Parlia-
ment of Canada or by the legislature of the respective province according
to the authority of the ParUament or of that legislature under this Act".

In Dobie v. Temporalities Board^ Lord Watson dealt with Quebec
legislation that affected a fund incorporated prior to Confederation under
a statute of Canada, and established principles that do not appear to have
been challenged. He said:

If it could be established that, in the absence of all provincial legisla-
tion on the subject the Legislature of Quebec would have been
authorized by section 92 of the B.N. A. Act to pass an act in terms
identical with 22 Vict., c. 66 [the pre-Confederation Act], then it
would follow that the Act of 22 Vict., has been validly amended by

trial or enquete or examination of witnesses, in obedience to any such
subpoena or other similar process, unless it be made to appear to the
Court transmitting and also to the Court receiving such certificate, that
a reasonable and sufficient sum of money, according to the rate per
diem and per mile allowed to witnesses by the law and practice of the
Superior Court of Law within the jurisdiction of which such person was
found, to defray the expenses of coming and attending to give evidence
and of returning from giving evidence, had been tendered to such person
at the time when the writ of subpoena, or other similar process was
served upon him.

10. The service of such writs of subpoena or other similar process, in
Lower Canada, shall be proved by the certificate of a Bailiff within the
jurisdiction where the service has been made, under his oath of office,
and such service in Upper Canada by the affidavit of service endorsed
on or annexed to such writ by the person who served the same.

11. The costs of the attendance of any such witness shall not be taxed
against the adverse party to such suit, beyond the amount that would
have been allowed on a commission rogatoire, or to examine witnesses
unless the Court or Judge before whom such trial or enquete or exami-
nation of witnesses is had, so orders.

13. Nothing herein contained shall affect the power of any Court to
issue a commission for the examination of witnesses out of its jurisdic-
tion, nor affect the admissibility of any evidence at any trial or proceed-
ing, where such evidence is now by law receivable, on the ground
of any witness being beyond the jurisdiction of the Court.

3[1956] O.W.N. 644 (H.C.J.) .

4(1873), 6 P.R. 33.

530 & 31 Vict., c. 3, (1867).

6(1882), 7 App. C^s. 136.

241

38 Vict., c. 64 [the impugned Act]. On the other hand, if the Legisla-
ture of Quebec has not derived such powers of enactment from sec-
tion 92 the necessary inference is that the legislative authority re-
quired in terms of section 129 to sustain its right to repeal or alter
the old law of the Parliament of the Province of Canada in this case
is wanting . . ."."^

Referring to the trust set up under the pre-Confederation Act, Lord
Watson said.

The corporation and the corporate trust, the matters to which its
provisions relate, are in reality not divisible according to the limits
of provincial authority. In every case where an act applicable to the
two provinces of Quebec and Ontario can now be validly repealed
by one of them, the result must be to leave the Act in full vigour
within the other province.^

The converse situation arose in AG. for Ontario v. A.G. for the
Dominion.^ There the subject matter was one which lay entirely within the
jurisdiction of the Province of Ontario, and it was held that the provi-
sions of The Canada Temperance Act, 1886 insofar as they purported
to repeal the prohibition provisions of an 1864 pre-Confederation Act of
Canada were ultra vires. Lord Watson said "It appears to their Lordships
that neither the Parliament of Canada nor the Provincial legislature have
authority to repeal statutes they could not directly enact". ^^

Lefroy, in his book on Canada's Federal System, ^^ after referring to
the Dobie case, quoted from a report from the Minister of Justice to the
Governor General on November 22, 1900 as follows:

There can be no doubt that the legislature of either of the provinces
of Ontario and Quebec has no power to modify or repeal the provi-
sions of the charter of a corporation created by the legislature of the
late province of Canada for the purpose of doing business in Upper
and Lower Canada.

Varcoe, in The Constitution of Canada,^'^ commenting on the cases
we have discussed, states:

section 129, ... contemplated the continuation of the authority
of the United Kingdom Parliament to legislate for Canada. The Stat-
ute of Westminster, however, expressly provided that no Act of the
United Kingdom Parliament passed after the commencement of that
statute should extend to Canada unless it was expressly declared in
the Act that Canada had requested and consented to the enactment.
And it was further provided that the Parliament of Canada could

'^Ibid., at p. 147.
^Ibid., at p. 150.
9[1896] A.C. 349.
mbid., at p. 366.

liLefroy, A.H.F., Canada's Federal System (1913), at p. 162; quoting Hon.
Charles J. Doherty, (cited as Hodgins Provincial Legislation, 1899-1900 at p.
16, in Lefroy, Canadian Constitutional Law (1918), at p. 189).
l2Varcoe, F.P., The Constitution of Canada ( 1965), at p. 24.

242

repeal or amend any United Kingdom Act in so far as the same was
part of the law of Canada, and that this power extended to the
powers of the legislatures of the provinces.

... In the Natural Products Marketing Act case [1937] A.C.
377, Lord Atkin referred to this problem as follows at p. 389:

'Unless and until a change is made in the respective legis-
lative functions of Dominion and Province it may well be that
satisfactory results for both can only be obtained by co-opera-
tion. But the legislation will have to be carefully framed, and
will not be achieved by either party leaving its own sphere and
encroaching upon that of the other.'

We have concluded that the provisions of the Act of Canada of 1854
appended to section 20 of The Evidence Act are in force in Ontario and
Quebec. We do not think that they are divisible, as their subject matter
is of mutual concern in the administration of justice in both provinces,
Quebec and Ontario. Hence, neither the Province of Quebec nor the
Province of Ontario can, alone, materially alter these provisions by legis-
lation. They may well be satisfactory as far as Ontario and Quebec are
concerned.

However, cases frequently arise in which witnesses from provinces
other than Quebec are required to testify at proceedings in Ontario. This
is particularly true with respect to witnesses from Manitoba. The Uniform
Law Conference of Canada has considered the matter of interprovincial
subpoenas and has recommended that all provinces enact an Interprovin-
cial Subpoena Act.^^ We agree in principle with the proposed Act and
recommend that appropriate legislation be passed. A copy of the proposed
Act is included as an Appendix to this chapter.

If our recommendations are implemented, the appendix to section 20
of The Evidence Act should be deleted.

i3Uniform Law Conference of Canada, Proceedings (1974), at pp. 33, 189.

APPENDIX

The Interprovincial Subpoena Act

Definitions

1. In this Act

(a) "court" means any court in a province of Canada;

(b) "subpoena" means a subpoena or other document issued by a
court requiring a person within a province other than the prov-
ince of the issuing court to attend as a witness before the issuing
court.

Note: Provinces may wish to extend definition of court to include a power to enable
the Lieutenant Governor in Council to extend to named boards, commissions,
or other bodies having power to issue a subpoena, on a reciprocal basis with
another province. In provinces where magistrates have power to issue sub-
poenas in civil matters in their offical capacity and not out of a court, con-
sideration should be given to a change in the definition of "court".

Adoption of interprovincial subpoena

2.(1) A court in (enacting province) shall receive and adopt as an
order of the court a subpoena from a court outside (enacting province) if

(a) the subpoena is accompanied by a certificate signed by a judge
of a superior, county or district court of the issuing province
and impressed with the seal of that court, signifying that, upon
hearing and examining the applicant, the judge is satisfied that
the attendance in the issuing province of the person subpoenaed

(i) is necessary for the due adjudication of the proceeding in
which the subpoena is issued, and

(ii) in relation to the nature and importance of the cause or
proceeding is reasonable and essential to the due admin-
istration of justice in that province; and

(b) the subpoena is accompanied by the witness fees and travelling
expenses in accordance with Schedule "A".

Form of certificate

2.(2) The certificate to which reference is made in clause (a) of sub-
section (1 ) may be in the form set out in Schedule "B" or in a form to
the like effect.

Immunity by law of other province

3. A court in (enacting province) shall not receive a subpoena from
another province under section 2 unless the law of that other province
has a provision similar to section 6 providing absolute immunity to a
resident of (enacting province) who is required to attend as a witness
in the other province from all proceedings of the nature set out in sec-

243

244

tion 6 and within the jurisdiction of the Legislature of that other province
except only those proceedings grounded on events occurring during or
after the required attendance of the person in the other province.

Failure to comply with adopted subpoena

4. Where a person who has been served with a subpoena adopted
under section 2 and given the witness fee and travelling expenses in
accordance with Schedule "A" not less than 10 days, or such shorter
period as the judge of the court in the issuing province may indicate in
his certificate, before the date the person is required to attend in the
issuing court, fails without lawful excuse to comply with the order, he is in
contempt of court and subject to such penalty as the court may impose.

Proceedings in (enacting province)

5.(1) Where a party to a proceeding in any court in (enacting prov-
ince) causes a subpoena to be issued for service in another province of
Canada, the party may attend upon a judge of (the Court of Appeal,
or the Court of Queen's Bench, or a County Court, or as the case may
be) who shall hear and examine the party or his counsel, if any, and,
upon being satisfied that the attendance in (enacting province) of the
person required in (enacting province) as a witness

(a) is necessary for the due adjudication of the proceeding in which
the subpoena or other document has been issued; and

(b) in relation to the nature and importance of the proceedings, is
reasonable and essential to the due administration of justice in
(enacting province) :

shall sign a certificate which may be in the form set out in Schedule "B"
and shall cause the certificate to be impressed with the seal of the court.

Certificate to be attached to and endorsed on subpoena

(2) The certificate shall be either attached to or endorsed on the
subpoena.

No submission to jurisdiction

6. A person required to attend before a court in (enacting province)
by a subpoena adopted by a court outside (enacting province) shall be
deemed, while within (enacting province) not to have submitted to the
jurisdiction of the courts of (enacting province) other than as a witness
in the proceedings in which he is subpoenaed and shall be absolutely
immune from seizure of goods, service of process, execution of judgment,
garnishment, imprisonment or molestation of any kind relating to a legal
or judicial right, cause, action, proceeding or process within the juris-
diction of the Legislature of (enacting province) except only those pro-
ceedings grounded on events occurring during or after the required attend-
ance of the person in (enacting province).

Non-application of Act

1. This Act does not apply to a subpoena that is issued with respect
to a criminal offence under an Act of Parliament.

245

NOTE: Most courts have authority to require the payment of additional witness fees
and conduct money where the amount paid on the service of the subpoena
is inadequate. If there is any doubt about such authority a provision similar
to the following should be added after section 6.

Order for additional witness fees and expenses

6.1 Where a person is required to attend before a court in (enact-
ing province) by a subpoena adopted by a court outside (enacting prov-
ince) he may request the court to order additional fees and expenses to
be paid in respect of his attendance as a witness and the court, if it is
satisfied that the amount of fees and expenses previously paid to the
person in respect of his attendance is insufficient, may order the party who
obtained the subpoena to pay the person forthwith such additional fees
and expenses as the court considers sufficient, and amounts paid pursuant
to an order made under this section are disbursements in the cause.

NOTE: The following Schedule is recommended for consideration as Schedule of
Witness fees and travelling expenses. The amounts might be varied and
other items might be added.

SCHEDULE "A"

Witness Fees and Travelling Expenses

The witness fees and travelling expenses required to be given to the
witness upon service of an interprovincial subpoena shall be a sum of
money or a sum of money together with valid travel warrants, sufficient
to satisfy the following requirements:

1. The fare for transportation by the most direct route via public
commercial passenger carrier between the witness' place of residence and
the place at which the witness is required to attend in court, in accordance
with the following rules:

(a) K the journey or part of it can be made by air, rail or bus, that
portion of the journey shall be by airline, rail or bus by tourist
class or equivalent class via carriers on which the witness can
complete his total journey to the place where he is required to
attend in court on the day before his attendance is required.

(b) K railway transportation is necessary for part of the journey and
sleeping accommodation would normally be obtained for such
a journey, the fare for sleeping accommodation shall be in-
cluded.

(c) In the calculation of the fare for transportation, the most rapid
form of transportation by regularly scheduled carrier shall be
accorded priority over all other forms.

(d) If the material which the witness is required to produce in court
is of such weight or size as to attract extra fares or charges, the
amount so required shall be included.

246

2. The cost of hotel accommodation for not less than three days at
the place where the witness is required to attend in court, in an amount
not less than $60.00.

3. The cost of meals for the total journey and for not less than three
days at the place where the witness is required to attend in court, an
amount not less than $48.00.

4. In addition to the amounts described above, an allowance of
$20.00 for each day of absence from the ordinary residence of the witness,
and the witness shall be paid on account of this allowance not less than
$60.00.

SCHEDULE "B"

Interproyincial Subpoena Act
Certificate

I, a judge of the

(name of judge)

certify that I

(name of superior, county or district court)

have heard and examined

(name of applicant party or his counsel)

who seeks to compel the attendance of

(name of witness)

to produce documents or other articles or to testify, or both, in a pro-
ceeding in (enacting province) in the

(name of court in which witness

styled

is to appear) (style of proceeding)

I further certifiy that I am persuaded that the appearance of

(name of

as a witness in

witness)

the proceeding is necessary for the due adjudication of the proceeding,
and, in relation to the nature and importance of cause or proceeding, is
reasonable and essential to the due administration of justice in (enacting
province).

The Interprovincial Subpoena Act of (enacting province) makes the

following provision for the immunity of

(name of witness)

A person required to attend before a court in (enacting province)
by subpoena adopted by a court outside (enacting province) shall be

247

deemed, while within (enacting province) not to have submitted to the
jurisdiction of the courts of (enacting province) other than as a witness
in the proceedings in which he is subpoenaed and shall be absolutely
immune from seizure of goods, service of process, execution of judg-
ment, garnishment, imprisonment or molestation of any kind relating to
a legal or judicial right, cause, action, proceeding or process within the
jurisdiction of the Legislature of (enacting province) except only those
proceedings grounded on events occurring during or after the required
attendance of the person in (enacting province).

Dated this day of , 19....

(seal of the court)

(signature of judge)

ifi

CHAPTER 17

APPLICATION OF SECTION 37
OF THE CANADA EVIDENCE ACT
TO THE PROVISIONS OF THE
ONTARIO EVIDENCE ACT

In addition to the matters set out in this Report, we have considered
how far our recommendations might alter the rules of evidence applicable
in criminal trials in Ontario by reason of the provisions of section 37 of
the Canada Evidence Act. In the event, we have concluded that there
would be no alteration. Section 37 provides:

In all proceedings over which the Parliament of Canada has
legislative authority, the laws of evidence in force in the province
in which such proceedings are taken, including the laws of proof of
service of any warrant, summons, subpoena or other document,
subject to this and other Acts of the Parliament of Canada, apply
to such proceedings.

This section is to be read with section 7(2) of the Criminal Code 'A

7.(2) The criminal law of England that was in force in a province
immediately before the 1st day of April 1955 continues in force in
the province except as altered, varied, modified or affected by this
Act or any other Act of the Parliament of Canada.

In Marshall v. The Queen,^ the Supreme Court of Canada considered the
appHcation of these sections to provincial legislation. The precise question
in this appeal was whether statements, made to a police officer by the
accused following a motor car accident, were admissible at a criminal
trial arising out of the accident, notwithstanding the provisions of The
Highway Traffic Act of Ontario which read:

110. (1) Every person in charge of a motor vehicle who is directly
or indirectly involved in an accident shall, if the accident results in
personal injuries, or in damage to property apparently exceeding
$100, report the accident forthwith to the nearest provincial or mu-
nicipal police officer, and furnish him with such information or
written statement concerning the accident as may be required by the
officer or by the Registrar.

(5) Any written reports or statements made or furnished under
this section shall be without prejudice, shall be for the information
of the Registrar, and shall not be open to public inspection, and the
fact that such reports and statements have been so made or furnished
shall be admissible in evidence solely to prove compliance with this
section, and no such reports or statements, or any parts thereof or

IR.S.C. 1970, c. C-34.
2[1961] S.C.R. 123.

249

250

statements contained therein, shall be admissible in evidence for any
other purpose in any trial arising out of a motor vehicle accident.^

It was argued that these provisions made the statements to the pohce
officer inadmissible because of section 36 of the Canada Evidence Act
(now section 37). Kerwin, C.J.C, held that if the words of subsection 5
of section 110 of The Highway Traffic Act purported to alter the rule of
evidence as to the admissibility of the statements, its application in a trial
under the Criminal Code was excluded by the words "subject to this and
other Acts of the Parliament of Canada" used in section 37, because of
section 7(1) of the Criminal Code which retained the old common law.

In referring to an amendment made to the predecessor of section
110(5) the learned judge said:

If subs. 5 of s. 110 of the present Act purported to alter this rule,
its application in a trial under the Criminal Code is excluded by that
part of s. 36 of the Canada Evidence Act which is underlined [subject
to this and other Acts of the Parliament of Canada] because s. 7(1)
of the Criminal Code retains the old common law; but in view of the
amendment referred to above, I am satisfied that the Legislature
never so intended."^

The amendment referred to by Kerwin, C.J.C. was made in 1938. The
words "civil or criminal" were struck out from section 94(5), the pre-
decessor of section 110'. From this it seems to be quite clear that, in the
Chief Justice's opinion, where the Legislature passes laws of evidence
intended to apply only to proceedings respecting which the Legislature
has jurisdiction, section 37 has no application.

Cartwright, J., agreed with the Chief Justice's view. He said:

As a matter of construction it is my opinion that the words in
s. 110(5) 'any trial' mean 'any trial respecting the proceedings in
which the Legislature has jurisdiction'. This follows not only from the
history of the subsection and particularly the amendment made by
s. 20 of c. 17 of the Statutes of Ontario 1938 set out in the reasons
of the Chief Justice but also from the well setded rule of construction
that if the words of an enactment so permit they shall be construed
in accordance with the presumption which imputes to the Legislature
the intention of limiting the operation of its enactments to matters
within its allotted sphere.^

In the case of our draft legislation, it should be unnecessary for the
courts to infer the Legislature's intention as to the scope of its application.
Section 2 of the proposed Draft Act provides expUcitly for this matter as
follows :

2. This Act applies to all proceedings respecting which the Legisla-
ture has jurisdiction.

3R.S.O. 1950, c. 167, s. 110, as amended by S.O. 1954, c. 35.
4[1961] S.C.R. 123, 127-128.
Hbid., at p. 128.

251

CONCLUSION

With the submission of this Report on the Law of Evidence, we
bring to a conclusion many years of work and study of the provincial
law of evidence. Hopefully we have laid the foundations for a compre-
hensive and contemporary law which will be of assistance to the courts,
to the lawyers, and to the public in future years. Throughout the project
we have benefited immeasurably from the sound research and wise counsel
of Professor Alan W. Mewett of the Faculty of Law of the University of
Toronto and the Research Team which he led. The Research Team con-
sisted of B. C. McDonald, Esq., formerly on the staff of the Faculty of
Law, Queen's University; Professor J. D. Morton, Q.C., of the Faculty of
Law of the University of Toronto; His Honour Judge Stephen Borins,
formerly of the Faculty of Osgoode Hall Law School, York University;
His Honour Ronald Joseph DeHsle, formerly of the Faculty of Law,
Queen's University and Professor S. I. Bushnell of the Faculty of Law
of the University of Windsor. We wish to acknowledge with gratitude
the high quality of the research material prepared by them. We are also
much indebted to L. R. MacTavish, Esq., Q.C., formerly Senior Legislative
Counsel for the Province of Ontario for the most competent assistance
he has given to the Commission in drafting the proposed revision of
The Evidence Act which accompanies this Report. Finally, we owe a great
debt of gratitude to the Research Staff of the Commission for the dedicated
public service they have rendered in the preparation of this Report.

All of which is respectfully submitted.

H. ALLAN LtiAL, Chairman

JAMES C. McRUER, Commissioner

RICHARD A. BELL, Commissioner
W. GIBSON GRAY, Commissioner

29 March, 1976.

WILLIAM R. POOLE, Commissioner

APPENDIX A
BILL 00 197

The Evidence Act, 197

HER MAJESTY, by and with the advice and consent of the
Legislative Assembly of the Province of Ontario, enacts as
follows:

1. In this Act, JatfoT^'

(a) "court" includes a judge, arbitrator, umpire, commis-
sioner, justice of the peace or other officer or person
having by law or by consent of parties authority to
hear, receive and examine evidence; R.S.O. 1970, c. 151,
s. Kb).

(b) "proceeding" includes an action, issue, matter, arbitra-
tion, reference, investigation, inquiry, a prosecution for
an offence committed against a statute of Ontario or
against a by-law or regulation made under any such
statute, and any other proceeding authorized or per-
mitted to be tried, heard, had or taken by or before a
court under the law of Ontario.

R.S.O. 1970, c. 151, s. 1(a), amended.

2. This Act applies to all proceedings respecting which the A^iication
Legislature has jurisdiction. R.S.O. 1970, c. 151, s. 2, amended.

3. — (1) Except as provided in subsections 2 and 3, every per- witnesses'

^ . . ,. , „ , r . :-r • affirmation

son presented as a witness m a proceedmg shall before testirymg
identify himself and make the following solemn affirmation:

I solemnly affirm that I will tell the truth, the whole truth,
and nothing but the truth, well knowing that it is a serious
offence to give false evidence with intent to mislead the court.

(2) Where a child seven years of age and under fourteen is pre- children,
sented as a witness in a proceeding, the presiding officer shall con-
duct an inquiry to determine if, in his opinion, the child is possessed

of sufficient intelligence to justify the reception of his evidence, and
to determine if he is competent to know the nature and conse-
quences of giving false evidence and to know that it is wrong and
where he so finds, he shall permit the child to give evidence upon
making the solemn affirmation set out in subsection 1.

(3) Where a child who is, other^^

{a) under seven years of age; or

{b) seven years of age and under fourteen years, and who
does not qualify as a witness under subsection 2,

is presented as a witness in a proceeding, the presiding officer
shall conduct an inquiry to determine if in his opinion the child
is possessed of sufficient intelligence to justify the reception of his

253

254

Idem,
Corrobora-
tion

Affirmation
in lieu of
oath

Oaths
inadvert-
ently
administered

Recording
of evidence,
etc.

Admissi-
bility of
transcripts

Witnesses,
not incapac-
itated by
crime, etc.

Administra-
tion of
affirmations

By courts

Certifica-
tion

Admissi-
bility

notwithstand-
ing interest
or crime

Evidence
of parties
and their
spouses

evidence, and understands that he should tell the truth, and where
he so finds, he shall permit the child to give evidence upon stating:

I promise to tell the truth.

(4) No case shall be decided upon the evidence of a child who
has qualified as a witness under subsection 3 unless his evidence is
corroborated by some other material evidence.

(5) In all other cases where a person might heretofore have
lawfully taken an oath, he shall hereafter be required to make a
solemn affirmation in the following form:

I, A.B., solemnly affirm (followed by the substance of the
affirmation).

4. — (1) Any person who is authorized to record evidence and
proceedings in a court may record the evidence and the proceedings
by any form of shorthand or by any device for recording sound of
a type approved by the Attorney General.

(2) A transcript of the whole or a part of any evidence that has
or proceedings that have been recorded in accordance with sub-
section 1 and that has or have been certified in accordance with
the Act, regulation or rule of court, if any, applicable thereto and
that is otherwise admissible by law is admissible in evidence whether
or not the witness or any of the parties to the proceeding has ap-
proved the method used to record the evidence and the proceed-
ings. R.S.O. 1970, c. 151, s. 5, amended.

5. No person offered as a witness in a proceeding shall be ex-
cluded from giving evidence by reason of any alleged incapacity
from crime or interest. R.S.O. 1970, c. 151, s. 6, amended.

6. — (1) Where by any Act of the Legislature or order of the
Assembly an oath or solemn affirmation is authorized or directed
to be administered, an affirmation may be administered by any
person authorized to take affidavits in Ontario.

(2) Every court has power to administer or cause to be admin-
istered a solemn affirmation to every witness who is called to
give evidence before the court. R.S.O. 1970, c. 151, s. 3,
amended.

7. Where a solemn affirmation or declaration is directed to be
made before a person, he has power and authority to administer it
and to certify to its having been made. R.S.O. 1970, c. 151, s. 4,
amended.

8. Every person offered as a witness in a proceeding shall be
admitted to give evidence notwithstanding that he has an interest
in the matter in question or in the event of the proceeding and
notwithstanding that he has been previously convicted of a crime
or offence. R.S.O. 1970, c. 151, s. 7, amended.

9« — (1) The parties to a proceeding and the persons on whose
behalf it is brought, instituted, opposed or defended are competent
and compellable to give evidence on behalf of themselves or of any

255

of the parties, and the spouses of such parties and persons are com-
petent and compellable to give evidence on behalf of any of the
parties. R.S.O. 1970, c. 151, s. 8(1), amended.

(2) The parties to and witnesses in a proceedine instituted in Proceeding

in conse-

consequence of adultery and the spouses of such parties may be quence of
asked and shall not be excused from answering any question, in- ^^^^^^^'^
eluding any question tending to show that he or she has committed
adultery. R.S.O. 1970, c. 151, s. 10, amended.

(3) In a proceeding a spouse is competent and compellable to Evidence of
give evidence that he or she did or did not have sexual intercourse to^exuaP
with the other spouse to the marriage and a married person shall J^J^J!'^""^
not be excused on the grounds of privilege from answering ques-
tions tending to establish that sexual intercourse did not take place
between such person and the other party to the marriage at any

time prior to or during the marriage. R.S.O. 1970, c. 151, s. 8(2),
amended.

10. — (1) A witness in a proceeding shall not be excused from witness must
answering any question upon the ground that the answer may tend qUesttons
to criminate him or may tend to establish his liability to a civil
proceeding at the instance of the Crown or of any person or to a
prosecution under any Act of the Legislature. R.S.O. 1970, c. 151,
s. 9(1), amended.

(2) If with respect to a question or a series of related questions Protection

a witness in a proceeding objects to answer upon any of the ^''^^^"^ss^^
grounds mentioned in subsection 1 and if, but for this section or
any Act of the Parliament of Canada, he would therefore be ex-
cused from answering, then, although he is by reason of subsection
1 or by reason of any Act of the Parliament of Canada compelled
to answer, the answer shall not be used or receivable in evidence
against him in any civil proceeding or in any proceeding under any
Act of the Legislature thereafter taking place. R.S.O. 1970, c. 151,
s. 9(2), amended.

(3) Notwithstanding subsection 2, a witness in a proceeding shall objection
be deemed to have objected to answer any question the answer to p^e^sumed "^
which may tend to criminate him or may tend to establish his
liability to a civil proceeding at the instance of the Crown or of

any person or to a prosecution under any Act of the Legislature.
New.

11. A person is competent but not compellable in a proceeding Disclosure
to disclose for whom or how he voted in any federal, provincial,
municipal or other election to public office or in any referendum
or plebiscite authorized by statute. New.

12. Evidence is not admissible in a proceeding to prove a com- Privileged
munication which is inadmissible by reason of the fact that it is tkmr"'"*^'
privileged under this Act, any other Act or at common law. New.

13. Where it is intended by a party to a proceeding to examine ?^'j]°"g
as witnesses persons entitled, according to the law or practice, to
give opinion evidence, not more than three of such witnesses may
be called upon by any party without the leave of the judge or
other person presiding. R.S.O. 1970, c. 151, s. 12, amended.

256

Experts'
reports

Lay witnesses' \4^ Where a witness in a proceeding is testifyine in a capacity

answers in , .^5 , . . . ^ . , ,

form of Other than as a person quahned to give opinion evidence and a

admisSbie question is put to him to elicit a fact that he personally perceived,

his answer is admissible as evidence of the fact even though given

in the form of an expression of his opinion upon a matter in issue

in the proceeding. New.

^iSnce^on^°" ^^' ^^^^^ ^ witness in a proceeding is qualified to give opinion
ultimate evidence, his evidence in the form of opinions or inferences is

fact admissible not made inadmissible because it embraces an ultimate issue of fact.

New.

16. — (1) Any report, other than one to which section 17 applies,
obtained by or prepared for a party to a proceeding and signed
by a person entitled according to the law or practice to give
opinion evidence is, with the leave of the court and after at least
seven days notice has been given to all other parties, admissible in
evidence in the proceeding.

(4) This section applies only to proceedings in the Supreme
Court and the county and district courts. New.

17. — (1) A medical report obtained by or prepared for a party
to a proceeding and signed by a legally qualified medical practi-
tioner licensed to practise in any part of Canada is, with the leave
of the court and after at least seven days notice has been given
to all other parties, admissible in evidence in the proceeding.

(2) Unless otherwise ordered by the court, a party to a proceed-
ing is entitled to obtain the production for inspection of any report
of which notice has been given under subsection 1 within five days
after giving notice to produce the report.

(3) Except by leave of the judge presiding at the trial, a legally
qualified medical practitioner who has medically examined a party
to the proceeding shall not give evidence at the trial touching upon
such examination unless a report thereof has been given to all other
parties in accordance with subsection 1.

(4) Where a legally qualified medical practitioner has been re-
quired to give evidence viva voce in a proceeding and the court
is of opinion that the evidence could have been produced as
efi:ectively by way of a medical report, the court may order the
party that required the attendance of the medical practitioner to
pay as costs therefor such sum as it considers appropriate. R.S.O.
1970, c. 151, s. 52, amended.

dve e^^dence ^^' ^^^ plaintiff in an action for breach of promise of marriage
promise°^ shall not recover unless his or her testimony is corroborated by

Production
of report

Viva voce
evidence
on matters
in report

Application
of section

Medical
reports

Notice and
production

Report
required

Where doctor
called un-
necessarily

257

some other material evidence in support of the promise. R.S.O.
1970, c. 151, s. 13.

19. In a proceeding by or against the heirs, next of kin, execu- Proceedings
tors, administrators or assigns of a deceased person, an opposite heirs^ efc^^"^
or interested party shall not obtain a verdict, judgment or decision

on his own evidence in respect of any matter occurring before
the death of the deceased person, unless such evidence is corrobo-
rated by some other material evidence. R.S.O. 1970, c. 151, s. 14,
amended.

20. In a proceeding by or against a mentally incompetent person Proceedings
so found, or an involuntary patient in a psychiatric facility, or a persons of
person who from unsoundness of mind is incapable of giving evi- ^"sound mind
dence, an opposite or interested party shall not obtain a verdict,
judgment or decision on his own evidence, unless such evidence

is corroborated by some other material evidence. R.S.O. 1970,
c. 151, s. 15, amended.

21. An examination for discovery, or any part thereof, of an ^^^/nation
officer or servant of a corporation made under the rules of court for ^scovery

,..,,. . , , . , , -, .of officer or

is admissible in evidence at the trial by any party adverse m servant of
interest to the corporation, subject to such protection to the artriai^^^°"
corporation as the rules of court provide. R.S.O. 1970, c. 151,
s. 16, amended.

22. — (1) In this section "statement" means any representation J^^J^''^"
of fact, whether in words or otherwise, made to a witness called
to give evidence.

(2) In a civil proceeding a statement that would otherwise be ^^Hy
inadmissible as hearsay is nevertheless admissible as evidence of admissible
any fact stated therein of which direct evidence would be ad-
missible,

{a) if the parties to the proceeding agree to its admission
with or without admission of the truth of facts; or

{b) if the maker of the statement could have testified from
personal knowledge and

(i) he has died, or
(ii) he is too ill to testify, or

(iii) he cannot with reasonable diligence be identified or
found.

(3) Notice of intention to introduce evidence under clause 6 Notice
of subsection 2 shall be given by the party intending to do so to
other parties to the proceeding in accordance with such rules as

the Rules Committee may make.

(4) Where corroboration is required by law, a statement ad- where
mitted under this section shall not be taken to be corroborative tSn^^^"^^"
of the evidence of a witness called to prove the statement. required

(5) Where a statement is tendered in evidence under this section. Credibility

of maker c
statement

the circumstances under which it was made may be investigated °^ "^^^^ °^

by the court, and, where it is admitted, the credibility of the maker
of the statement may be impeached to the same extent and in the
same manner as if he had been a witness in the proceeding except
as to the right to cross-examine him.

258

Limits upon
scope of
section

Spontaneous
and contempo-
raneous state-
ments

How far a
party may
discredit
his own
witness

Prior in-
consistent
statements

Idem

Judicial
notice
of facts

Refusal of
evidence
obtained by
repugnant
methods

Admissibility
of things
obtained
illegally

Where

consistent

statements

admissible

as evidence

of facts

stated

therein

Corrobora-
tion

(6) Nothing in this section is to be taken to affect the admis-
sion of evidence that would otherwise be admissible under this Act
or any other Act or at common law or to make admissible any
evidence that would be inadmissible on any ground of privilege
under this Act or any other Act or at common law. New,

23. Whether or not a person is called as a witness in a pro-
ceeding, a statement made by him is admissible in evidence if it
was made in such conditions of spontaneity or contemporaneity in
relation to an event perceived by the witness as to exclude the
probability of concoction or distortion. New.

24. — (1) A party producing a witness in a proceeding shall not
impeach his credit by general evidence of bad character, but he
may contradict him by other evidence, or proof that the witness
at some other time made a statement inconsistent with his present
evidence.

(2) Before proof of a prior inconsistent statement is given in a
proceeding, the circumstances of it sufficient to designate the par-
ticular occasion on which it was made shall be drawn to the atten-
tion of the witness and he shall be asked whether or not he made
the statement.

(3) No such prior statement is admissible in evidence in a pro-
ceeding to prove any fact contained in it. New.

25. In a proceeding judicial notice may be taken of facts,

{a) that are so generally known and accepted within the
area pertinent to the event that they cannot reason-
ably be disputed; or

{b) that are capable of accurate and ready determina-
tion by resort to sources whose accuracy cannot
reasonably be questioned. New.

26. In a proceeding the court may refuse to admit evidence
that otherwise would be admissible if the court finds that it was
obtained by methods that are repugnant to the fair administration
of justice and likely to bring the administration of justice into
disrepute. New.

27. In a proceeding where it is shown that anything tendered
in evidence was obtained by illegal means, the court, after con-
sidering the nature of the illegality and all the circumstances under
which the thing tendered was obtained, may refuse to admit it in
evidence if the court is of the opinion that because of the nature
of the illegal means by which it was obtained its admission would
be unfair to the party against whom it is tendered. New.

28. — (1) A previous consistent statement made by a witness in
a proceeding is admissible in evidence to rebut an allegation that
his evidence has been fabricated, and such a statement shall be
admitted not only to support the credibility of that witness, but
also as evidence of any fact contained therein of which direct oral
evidence by him would be admissible.

(2) Where corroboration is required by law, a statement ad-
mitted under this section shall not be taken as corroborative of
the evidence of the witness who made the statement. New.

259

29. Except as provided in this or any other Act, no plea of ^mf "Jj'^'
guilty to or conviction of an offence under the laws of Canada convictions
or any province or territory of Canada or a municipal by-law is
admissible in evidence in any civil proceeding as proof of the

facts constituting the offence to which the plea of guilty was
entered or upon which the conviction was based. New.

30. In an action for libel or slander in which the question Conciusive-
whether a person has or has not committed an offence under the convictions
laws of Canada or any province or territory of Canada is relevant pu'j-poses of
to an issue in the action, proof that that person was convicted of defamation
that offence is conclusive evidence that he committed that offence.

New.

31. — (1) Where in a proceeding for divorce before a court ^^"'^^"^
having jurisdiction in Canada a co-respondent has been found to adultery
have committed adultery with a party to the proceeding, proof in
of the judgment of such court is, in the absence of evidence to proceedfng
the contrary, proof of the adultery of the co-respondent in a
subsequent proceeding.

(2) Where in a proceeding for divorce it is alleged that the Conviction

^ tt r f ' • 1 1 of bigamy

respondent went through a form of marriage with another person as evidence
after the marriage in issue was entered into, proof that the subsequent
respondent was convicted of bigamy in Canada is evidence that he proceeding
wss guilty of the offence.

(3) Where in a proceeding for divorce it is alleged that the or^rape^^et".
respondent has been guilty of sodomy, bestiality or rape after the as evidence
marriage in issue was entered into, proof that the respondent was subsequent
convicted of the alleged offence in a court having jurisdiction proceeding
in Canada is evidence that he was guilty of the offence.

(4) Where in a proceeding under The Deserted Wives' and Proceedings

^, .,,,,- . ^ . ° . ,. . . , under R.S.O.

Children s Maintenance Act or for alimony it is relevant to prove i970, c.i28
adultery, proof of a conviction for bigamy during the marriage JuSony
of the spouses is evidence of adultery. A^^vv.

32. — (1) In this section "statement" means any statement against interpreta-
interest, and includes any expression however made and any ges-
ture or other assertive conduct.

(2) In a civil proceeding, without limiting the admissibility of any Admissibility
statement admissible at common law or under this or any other Act, Statements

/ \ r , • against

{a) any statement or a person who is a party to the proceeding interest
in his personal capacity is admissible against him regard-
less of the capacity in which he made the statement;

(b) any statement of a person who is a party to the proceeding
in a representative capacity is admissible against him and
the party whom he represents regardless of the capacity
in which he made the statement, if the statement was
made during the period of time he was a representative;

(d) any statement is admissible against a party to the proceed-
ing if he expressly adopted it or if, in the circumstances,
it is reasonable to infer that he adopted it;

260

Idem

Examination
of witnesses,
proof of con-
tradictory
written
statements

Idem

Protection
of

witnesses
charged with
offences

Protection
of

witnesses
convicted
of offences

Perjury,
etc.

R.S.C. 1970,
c. C-34

Pardon

Proof of
previous
conviction

(e) any statement made by an agent or employee of a party
to the proceeding during the existence of the agency or
employment is admissible against that party if the state-
ment concerned a matter within the scope of the agency
or employment.

(3) No statement is admissible under this section if it is inadmis-
sible by reason of any privilege conferred by this or any other
Act or at common law. New.

33. A witness in a proceeding may be cross-examined as to
previous statements made by him in writing, or reduced into writ-
ing, relative to the matter in question, without the writing being
shown to him, but, if it is intended to contradict him by the
writing, his attention shall, before such contradictory proof is
given, be called to those parts of the writing that are to be used
for the purpose of so contradicting him, and the judge or other
person presiding at the proceeding may require the production of
the writing for his inspection, and may thereupon make such use
of it for the purposes of the proceeding as he thinks fit. R.S.O.
1970, c. 151, s. 21, amended.

34. — (1) If in a proceeding a witness upon cross-examination
as to a former statement made by him relative to the matter in
question and inconsistent with his present testimony does not dis-
tinctly admit that he did make such statement, proof may be
given that he did in fact make it, but before such proof is given
the circumstances of the supposed statement sufficient to designate
the particular occasion shall be mentioned to the witness, and he
shall be asked whether or not he did make such statement. R.S.O.
1970, c. 151, s. 22, amended.

(2) Where under this section it is proved that a witness made
a statement inconsistent with his present testimony, the statement
shall be admitted as evidence of the facts stated therein but only
if the witness could have testified as to such facts. New.

35. A witness in a proceeding shall not be asked any question
tending to show that he is or has been charged with any Federal
or provincial offence. New.

36. — (1) A witness in a proceeding shall not be asked any ques-
tion tending to show that he has been convicted of any Federal or
provincial offence solely for the purpose of attacking his credibility
unless the court finds that the conviction is, because of the nature
of the offence and the date of its commission, relevant to the
witness' credibility. New.

(2) Notwithstanding subsection 1, a witness in a proceeding
may be asked any question tending to show that he has been
convicted of an offence under section 121, 122 or 124 of the
Criminal Code (Canada). New.

(3) Notwithstanding subsections 1 and 2, a witness in a pro-
ceeding shall not be asked any question tending to show that he
has been convicted of any offence for which he has been granted
a pardon. New.

(4) Where a witness in a proceeding is asked a question under
subsection 1 or 2 and he either denies the allegation or refuses

261

to answer, the conviction may be proved, and a certificate con-
taining the substance and effect only, omitting the formal part,
of the charge and of the conviction, purporting to be signed by
the officer having the custody of the records of the court at which
the offender was convicted, or by a deputy of the officer, is, upon
proof of the identity of the witness as such convict, sufficient
evidence of the conviction, without proof of the signature or of
the official character of the person appearing to have signed the
certificate. R.S.O. 1970, c. 151, s. 23(1), amended.

37. — (1) Where a witness in a proceeding is unable to recall Present

- „ ,.,,.,. • 1 1 memory

lully any matter upon which he is being questioned, he may use revived
any writing or other thing made or verified by him or under his
direction at the time of the event or within a reasonable time
thereafter in order to revive his memory.

(2) Where a writing or other thing is used by a witness in a Rights of
proceeding in order to revive his memory, any adverse party is parties
entitled to inspect the writing or thing and may cross-examine the
witness concerning it.

(3) A writing or other thing used by a witness in a proceeding ^"JjJ^
to revive his memory shall not be used as evidence of the facts revive
stated therein. New. memory

38. — (1) Where a witness in a proceeding is being questioned J*e?oiiection
upon any matter concerning which he had prior knowledge but recorded
which he is unable to recall, he may read from any record con-
cerning any fact stated therein of which direct oral evidence given
by the witness would be admissible,

{a) if the record was made by him contemporaneously with
the occurrence of the matter or subsequently while the
matter was still fresh in his mind; or
{b) if where the record was made by a person other than the
witness, it was checked as to its accuracy by the witness
subsequently while the occurrence was still fresh in his
mind,.

(2) Any portion of a record read from under subsection 1 shall idem
be introduced in evidence together with such other portions of the
record as the court may direct to be admitted as explanatory
thereof.

(3) Where it is not practical to introduce the original record, introduction
a copy thereof may be introduced as the court may direct. New. ° ^^"^^^^

39. — ( 1 ) In this section, Interpreta-

uon
{a) "business" means any business, profession, trade, calling,

manufacture or undertaking of any kind carried on in
Canada or elsewhere whether for profit or otherwise, in-
cluding any activity or operation carried on or performed
in Canada or elsewhere by any government, by any de-
partment, branch, board, commission or agency of any
government, by any court or other tribunal or by any
other body or authority performing a function of gov-
ernment;

{b) "copy", in relation to any record, includes a print,
whether enlarged or not, from a photographic film of

262

Business
records

Inference

where
information
not in
business
record

Copy of
records

Where record
kept in
form
requiring
explanation

Production
of additional
parts of
records

Power of
court to
draw
inferences

such record, and "photographic film" includes a photo-
graphic plate, microphotographic film or photostatic
negative;
(c) "record" includes the whole or any part of any book,
document, paper, card, tape or other thing on or in
which information is written, recorded, stored or repro-
duced, and, except for the purposes of subsections 4 and
5, any copy or transcript received in evidence under this
section pursuant to subsection 4 or 5.

(2) Where oral evidence in respect of a matter would be ad-
missible in a proceeding, a record that contains information in
respect of that matter is admissible in evidence in a proceeding
upon production of the record if it was made in the usual and
ordinary course of business and it was in the usual and ordinary
course of business to make such a record.

(3) Where a record was made in the usual and ordinary course
of business and it was in the usual and ordinary course of business
to make such a record, and that record does not contain informa-
tion in respect of a matter the occurrence or existence of which
might reasonably be expected to be recorded in that record, the
court may upon production of the record admit the record in a
proceeding for the purpose of establishing that fact and may draw
the inference that such matter did not occur or exist.

(4) Where it is not possible or reasonably practicable to produce
a record described in subsection 2 or 3, a copy of the record
accompanied by an affidavit setting out the reasons why it is not
possible or reasonably practicable to produce the record and an
affidavit of the person who made the copy setting out the source
from which the copy was made and attesting to its authenticity,
is admissible in evidence under this section in the same manner
as if it were the original record.

(5) Where production of a record or of a copy of a record
described in subsection 2 or 3 would not convey to the court the
information contained in the record by reason of its having been
kept in a form that requires explanation, a transcript of the
explanation of the record or copy prepared by a person qualified
to make the explanation, accompanied by an affidavit of that
person setting forth his qualifications to make the explanation, and
attesting to the accuracy of the explanation is admissible in evi-
dence under this section in the same manner as if it were the
original record.

(6) Where part only of a record is produced under this section
by a party, the court may examine any other part of the record
and direct that, together with the part of the record previously
so produced, the whole or any part of such other part be pro-
duced by that party.

(7) For the purpose of determining whether any provision of
this section applies, or for the purpose of determining the probative
value, if any, to be given to information contained in a record
admitted in evidence under this section, the court may, upon pro-
duction of any record, examine the record, admit evidence in
respect thereof given orally or by affidavit, including evidence as
to the circumstances in which the information contained in the

263

record was written, recorded, stored or reproduced, and draw any
reasonable inference from the form or content of the record.

(8) Unless the court orders otherwise, no record or affidavit Notice of
shall be admitted in evidence under this section unless the party produce
producing the record or affidavit has, at least seven days before

its production, given notice of his intention to produce it to each
other party to the proceeding and has, within five days after
receiving any notice in that behalf given by any such party, pro-
duced it for inspection by such party.

(9) Where evidence is tendered by affidavit under this section, Formalities
it is not necessary to prove the signature or official character of affidavits
the person making the affidavit if the official character of that
person is set out in the body of the affidavit.

(10) Any person who has or may reasonably be expected to Examination
have knowledge of the making or contents of any record produced with

or received in evidence under this section may, with leave of the ^cords ^^ °
court, be examined or cross-examined thereon by any party to
the proceeding.

(11) Nothing in this section makes admissible in evidence in a ^^^^^^^^9
proceeding, and

privileged

(a) the part of any record as is proved to be, not affecte^d

(i) a record made in the course of an investigation or
inquiry,

(ii) a record made in the course of obtaining or giving
legal advice or in contemplation of a legal pro-
ceeding,

(iii) a record in respect of the production of which any
privilege exists and is claimed, or

(iv) a record of or alluding to a statement made by a
person who is not, or if he were living and of sound
mind would not be, competent and compellable to
disclose in the legal proceeding a matter disclosed
in the record;

(b) any record whose production would be contrary to pub-
lic policy; or

(12) The provisions of this section shall be deemed to be in fea?on°^
addition to and not in derogation of,

(a) any other provision of this or any other Act of the Legis-
lature respecting the admissibility in evidence of any rec-
ord or the proof of any matter; or

(b) any existing rule of law under which any record is ad-
missible in evidence or any matter may be proved.

(13) Where a record containing information in respect of a out'iu't^^'^
matter is made by the use of a computer or a similar device, the
out-put thereof in a form which may be understood is admissible

in evidence if the record v/ould be admissible under this section
if made by other means. New.

264

Interpreta-
tion

Photographic
records

Court may
refuse to
admit in
evidence

Exception

Proof of

compliance

with

conditions

40. — (1) In this section,

(a) "person" includes,

(i) the Government of Canada, the government of a
province or territory of Canada, and a department,
commission, board or branch of the Government of
Canada or of the government of any province or
territory of Canada,
(ii) a corporation, its successors and assigns, and
(iii) the heirs, executors, administrators or other legal
representatives of a person;

(b) "photographic film" includes any photographic plate,
microphotographic film and photostatic negative, and
"photograph" has a corresponding meaning.

(2) Where a bill of exchange, promissory note, cheque, receipt,
instrument, agreement, document, plan or a record or book or
entry therein kept or held by a person,

(a) is photographed in the course of an established practice
of such person of photographing objects of the same or
a similar class in order to keep a permanent record
thereof; and

(b) is destroyed by or in the presence of such person or of
one or more of his employees or delivered to another
person in the ordinary course of business or lost,

a print from the photographic film is admissible in evidence in all
cases and for all purposes for which the object photographed
would have been admissible.

(3) Where a bill of exchange, promissory note, cheque, receipt,
instrument, agreement or other executed or signed document was
so destroyed before the expiration of six years from,

(a) the date when in the ordinary course of business either
the object or the matter to which it related ceased to be
treated as current by the person having custody or control
of the object; or

(b) the date of receipt by the person having custody or
control of the object of notice in writing of a claim in
respect of the object or matter prior to the destruction
of the object,

whichever is the later date, the court may refuse to admit in evi-
dence under this section a print from a photographic film of the
object.

(4) Where the photographic print is tendered by a government
or the Bank of Canada, subsection 3 does not apply.

(5) Proof of compliance with the conditions prescribed by this
section may be given by any person having knowledge of the facts
either orally or by affidavit taken before a notary public, and, unless
the court otherwise orders, a notarial copy of any such affidavit is
admissible in evidence in lieu of the original affidavit. R.S.O.
1970, c. 151, s. 35, amended.

265

41. — (1) If the court is satisfied as to its authenticity, a copy ^°p'®^
reproduced by any means, government

documents

(a) of a statute, regulation, rule, by-law, ordinance, procla-
mation, official gazette or journal, order, appointment,
patent, charter or other document of a similar nature
enacted, made, issued, published or promulgated by or
on behalf of any government or governmental agency in
the exercise of any original or delegated authority with-
in or outside Ontario; or

(b) of an entry in a book of account kept by or on behalf
of any government or governmental agency within or
outside Ontario,

is admissible in a proceeding as prima facie evidence of the docu-
ment and of its contents, or of the entry and the matters, trans-
actions and accounts recorded therein. New.

(2) No proof is required of the handwriting or official position Proof of
of a person certifying to the truth of a copy of or extract from when^not "^*
any proclamation, order, regulation or appointment, or to any '^^^"^'^^^
matter or thing as to which he is by law authorized or required
to certify. R.S.O. 1970, c. 151, s. 38.

42. — (1) This section applies only to a proceeding in the Application
Supreme Court or a county or district court, whether the Crown section
is or is not a party.

(2) Subject to subsection 3 and any other Act, where a Disclosure

where

member of the Executive Council objects to the disclosure of a crown
document or its contents or of an oral communication or other o^'J^cts
thing on the ground that the disclosure would be against the public
interest and certifies to the court by affidavit that the document or
oral communication or other thing belongs to a class or contains
information which on grounds of public interest specified in the
affidavit should not be disclosed, the court may inquire into the
matter privately and, if it concludes in the circumstances of the
case that the public interest in the proper administration of justice
outweighs in importance the public interest specified in the affida-
vit, it may order, subject to such restrictions or conditions as it
deems appropriate, disclosure on discovery or by a witness at trial.

(3) Where a member of the Executive Council certifies to the ^^^^'

where no

court by affidavit that the Executive Council is of the opinion that disclosure
disclosure of any document or its contents or any oral communi-
cation or other thing would be injurious to the security of Canada
or Ontario or to federal-provincial relations, or that it would dis-
close a confidence of the Executive Council, disclosure shall be
refused without any examination by the court concerning the
document, oral communication, or other thing. New.

43. — (1) This section applies only to a proceeding other than a Application
proceeding to which section 42 applies.

(2) Where a member of the Executive Council objects to the stated case
disclosure of a document or its contents or of an oral communi-
cation or other thing on any ground not falling within subsection
3 of section 42 and certifies to the court by affidavit that the
document or oral communication or other thing belongs to a class
or contains information which on grounds of public interest

266

Idem

Filing
copies of
official
documents

When
original to
be retained

Proof of

foreign

judgments

Corporation
documents

Interpreta-
tion

R.S.C. 1970
c. B-1

Bank
records

specified in the affidavit should not be disclosed, the presiding
officer at the proceeding may on his own motion or on applica-
tion of a party to the proceeding state a case to the Divisional
Court setting out the facts, and the court may on application by
the presiding officer or by such party inquire into the matter
privately and make any order concerning production of the matter
in question that a court could have made under section 42.

44. — (1) Where a public officer produces upon a subpoena an
original document, it shall not be deposited in court unless other-
wise ordered, but, if the document or a copy is needed for sub-
sequent reference or use, a copy thereof or of so much thereof as
is considered necessary, certified under the hand of the officer
producing the document or otherwise proved, shall be filed as an
exhibit in the place of the original. R.S.O. 1970, c. 151, s. 54(1),
amended.

(2) Where an order is made that the original be retained, the
order shall be delivered to the public officer and the exhibit shall
be retained in court and filed. R.S.O. 1970, c. 151, s. 54 (2).

45. A judgment, decree or other order of any court of record
of any jurisdiction outside Ontario may be proved by a copy
thereof under the seal of the court without any proof of the
authenticity of the seal or any other proof in the same manner as
a judgment, decree or other order of the Supreme Court of Ontario
may be proved by a copy thereof. R.S.O. 1970, c. 151, s. 39,
amended.

46. Where the charter, any by-law, resolution, rule, regulation,
minute or other document or any entry in a register or other book
of a corporation created by or under any Act of the Parliament
of Canada or the legislature of any province or territory of Canada
is unavailable, a copy thereof, purporting to be certified under the
seal of the corporation and the hand of its presiding officer or
secretary, is admissible in any proceeding without proof of the
seal of the corporation or of the signature or official character of
the person appearing to have signed the certificate. R.S.O. 1970, c.
151, s. 30, part amended.

47. — (1) In this section "bank" means a bank to which the
Bank Act (Canada) applies, and includes the Province of Ontario
Savings Office and any trust company, loan corporation, credit
union and any other organization that is authorized by law to
receive money on deposit, and includes any branch, agency or
office of any of them.

(2) A copy of an entry in a book or record kept by a bank is
admissible in any proceeding to which the bank is not a party as
prima facie evidence of the entry and of the matters, transactions
and accounts therein recorded if it is established that the book or
record was, at the time of the making of the entry, one of the
ordinary books or records of the bank, that the entry was appar-
ently made in the usual and ordinary course of business, that the

267

book or record is in the custody or control of the bank, and that
the copy is a true copy of the entry.

(3) A bank or officer of a bank is not, in a proceeding to which where bank
the bank is not a party, compellable to produce any book or not
record the contents of which can be proved under this section, or w°itnesse^s^'^
to appear as a witness to prove the matters, transactions and
accounts therein recorded, unless by order of the court.

(4) On the application of a party to a proceeding to which the inspection
bank is not a party, the court may order that the party may accounts
inspect and take copies of any entries in the books or records of

a bank for the purposes of the proceeding, but a person whose
account is to be inspected shall be served with notice of the
application at least two clear days before the hearing thereof, and,
if it is shown to the satisfaction of the court that such person can-
not be notified personally, the notice may be given by addressing it
to the bank.

(5) The costs of an application under subsection 4 and the costs Costs
of any thing done or to be done under an order made under sub-
section 4 are in the discretion of the court which may order the
costs or any part of them to be paid to a party by the bank if the
costs have been occasioned by a default or delay on the part of

the bank, and any such order against a bank may be enforced as
if the bank were a party to the proceeding. R.S.O. 1970, c. 151,
s. 34, amended.

48. — (1) In this section "judge" includes any member of any interpreta-
tribunal however described upon which a statutory power of ^^°"
decision is conferred by or under any Act of the Parliament of
Canada or the legislature of any province or territory of Canada.

(2) Every court and every judge, justice, master, registrar, clerk. Judicial
secretary and other officer of a court shall take judicial notice of be taken
the signature of any judge that is appended or attached to any ^gjl^ture's
official document. R.S.O. 1970, c. 151, s. 37, amended.

49. — (1) A copy of a notarial act or instrument in writing made Copies of
in Quebec before a notary and filed, enrolled or enregistered by acts in
such notary, certified by a notary or prothonotary to be a true 2i"m^s^s*ibie
copy of the original thereby certified to be in his possession as such
notary or prothonotary, may be admitted in evidence in the place
of the original and has the same effect as the original would have
if produced and proved. R.S.O. 1970, c. 151, s. 40(1), amended.

(2) The proof of such certified copy may be rebutted or set How proof
aside by proof that there is no such original, or that the copy is not Sbutted
a true copy of the original in some material particular, or that the ^"^ ^^^ ^^'^®
original is not an instrument of such nature as may, by the law of
Quebec, be taken before a notary, or be filed, enrolled or enregis-
tered by a notary. R.S.O. 1970, c. 151, s. 40(2).

50. — (1) A protest of a bill of exchange or promissory note P'',?^^^^^^^
purporting to be under the hand of a notary public is admissible notes
in any proceeding as prima facie evidence of the allegations and
facts therein stated. R.S.O. 1970, c. 151, s. 41, amended.

(2) Any note, memorandum or certificate purporting to be made i^em
by a notary public in Canada in his own handwriting or to be

268

Proving
titles under
small claims
courts
executions

Solemn
declaration

Idem

R.S.C. 1970.
c. E-10

Affirmations or
declarations
made before
officers in
the Canadian
Forces

Admissibility

Affirmations or
declarations
made outside
Ontario

signed by him at the foot of or embodied in any protest or in a
regular register of official acts purporting to be kept by him is
admissible in any proceeding as prima facie evidence of the fact
of notice of non-acceptance or non-payment of a bill of exchange
or promissory note having been sent or delivered at the time and
in the manner stated in the note, certificate or memorandum.
R.S.O. 1970, c. 151, s. 42, amended.

51. In proving a title under a sheriff's conveyance based upon an
execution issued from a small claims court, it is sufficient to prove
the judgment recovered in the small claims court without proof of
any prior proceedings. R.S.O. 1970, c. 151, s. 43.

52. — (1) Any person authorized to take declarations in Ontario
may receive the solemn declaration of any person in attestation of
the truth of any fact or of any account rendered in writing and,
subject to subsection 2, the declaration and any declaration
authorized or required by any Act of the Legislature shall be in
the following form:

I, , solemnly declare that

(state the fact or facts declared to) and I make this solemn
declaration well knowing that it is a serious offence to make
this statement knowing it to be false.

Declared before me
at the of

this day of

, 19 .
A Commissioner, etc.

R.S.O. 1970, c. 151, s. 44(1), amended.

(2) A declaration made in the form prescribed by section 38 of
the Canada Evidence Act shall be deemed to have been made in
compliance with subsection 1. R.S.O. 1970, c. 151, s. 44(2).

53. — (1) An oath, affidavit, affirmation or solemn declaration
administered, sworn, affirmed or made within or outside Ontario
before a person who then held a commission as an officer in the
Canadian Forces and then was on full-time service is as valid and
effectual as if it had been a solemn affirmation or declaration duly
made in Ontario.

(2) A document that purports to be signed by a person men-
tioned in subsection 1 in testimony of an oath, affidavit, affirma-
tion or solemn declaration having been administered, sworn,
affirmed or made before him and on which his rank and unit are
shown below his signature is admissible in evidence without proof
of his signature or of his rank or unit or that he was on full-time
service. R.S.O. 1970, c. 151, s. 45, amended.

54. — (1) An oath, affidavit, affirmation or solemn declaration
administered, sworn, affirmed or made outside Ontario before,
{a) a judge;
{b) a magistrate;
(c) an officer of a court of justice;

id) a commissioner for taking affidavits or other competent
authority of the like nature;

269

(e) a notary public;

(/) the head of a city, town, village, township or other
municipality;

ig) an officer of any of Her Majesty's diplomatic or consular
services, including an ambassador, envoy, minister, charge
d'affaires, counsellor, secretary, attache, consul-general,
consul, vice-consul, pro-consul, consular agent, acting
consul-general, acting consul, acting vice-consul and acting
consular agent;

(h) an officer of the Canadian diplomatic, consular or repre-
sentative services, including, in addition to the diplo-
matic and consular officers mentioned in clause g, a high
commissioner, permanent delegate, acting high commis-
sioner, acting permanent delegate, counsellor and secre-
tary; or

(i) a Canadian Government trade commissioner or assistant
trade commissioner,

exercising his functions or having jurisdiction or authority as such
in the place in which it is adminstered, sworn, affirmed or made,
is as valid and effectual as if it had been a solemn affirmation or
declaration duly made in Ontario.

(2) An oath, affidavit, affirmation or solemn declaration admin- Validity
istered, sworn, affirmed or made outside Ontario before a notary
public for Ontario or before a commissioner for taking affidavits
in Ontario is as valid and effectual as if it had been a solemn
affirmation or declaration duly made in Ontario.

(3) A document that purports to be signed by a person men- Admissibility
tioned in subsection 1 or 2 in testimony of an oath, affidavit, affir-
mation or solemn declaration having been administered, sworn,
affirmed or made before him, and on which his office is shown
below his signature and,

(a) in the case of a notary public, that purports to have
impressed thereon or attached thereto his official seal;

(b) in the case of a person mentioned in clause / of sub-
section 1, that purports to have impressed thereon or
attached thereto the seal of the municipality;

(c) in the case of a person mentioned in clause g, h or / of
subsection 1, that purports to have impressed thereon or
attached thereto his seal or the seal or stamp of his office
or of the office to which he is attached,

is admissible in evidence without proof of his signature or of his
office or official character or of the seal or stamp and without
proof that he was exercising his functions or had jurisdiction or
authority in the place in which the oath, affidavit, affirmation or
solemn declaration was administered, sworn, affirmed or made.
R.S.O. 1970, c. 151, s. 46, amended.

55. No informality in any essential part of any affidavit, solemn Formal
affirmation or declaration made before a person authorized to take
affidavits in Ontario is any objection to its admission in evidence if
the court thinks proper to admit it. R.S.O. 1970, c. 151, s. 47,
amended.

270

Copies of

depositions

admissible

Proof of
devise of
real property,
local probate

Proof of
devise of
real property,
foreign
probate

Effect of
certificate

Military
records as
to date of
death

R.S.C. 1970,
c. N-4

Interpreta-
tion

R.S.O. 1970,
C.409

Proof of
registered
land
instruments

Where
certified
copies of
registered
instruments
may be used

56. A copy of an examination or deposition of a party or
witness taken before a judge or other officer or person appointed
to take it, certified by the person taking it, is admissible in
evidence without proof of the signature, saving all just exceptions.
R.S.O. 1970, c. 151, s. 48, amended,

57. In order to establish a devise or other testamentary dispo-
sition of or affecting real estate, letters probate of the will or
letters of administration with the will annexed containing such
devise or disposition, or a copy thereof, under the seal of the
surrogate court granting the letters, are or is prima facie evidence
of the will and of its validity and contents. R.S.O. 1970, c. 151, s.
49, amended.

58. — (1) Where a person dies outside Ontario having made a
will sufficient to pass real estate in Ontario that purports to
devise, charge or affect real estate in Ontario, the party desiring to
establish such disposition, after giving one month's notice to the
opposite party to the proceeding of his intention so to do, may
produce and file the letters probate of the wDl or letters of
administration with the will annexed or a certified copy thereof
under the seal of the court that granted the letters with a certificate
of the judge, registrar or clerk of such court that the original will
is filed and remains in the court and purports to have been
executed before two witnesses, and such letter or certified copy
with such certificate are or is, unless the court otherwise orders,
prima facie evidence of the will and of its validity and contents.

(2) The certificate mentioned in subsection 1 is admissible in
evidence as prima facie proof of the facts therein stated and of the
authority of the judge, registrar or clerk, without proof of his
appointment, authority or signature. R.S.O. 1970, c. 151, s. 50,
amended.

59, A certificate purporting to be signed by an authority
authorized in that behalf by the National Defence Act or the
regulations made thereunder, stating that the person named in the
certificate died, or was deemed to have died, on a date set forth
therein, is admissible in any proceeding as prima facie evidence
that the person so named died on that date, and also of the
office, authority and signature of the person signing the certificate,
without any proof of his appointment, authority or signature.
R.S.O. 1970, c. 151, s. 51, amended.

60. — (1) In this section "instrument" has the same meaning as in
The Registry Act.

(2) A copy of an instrument or memorial certified under the
hand and seal of office of the land registrar in whose office it is
deposited, filed, kept or registered, to be a true copy is admissible
in any proceeding as prima facie evidence of the original, except
in the cases provided for in subsection 3.

(3) Where it would be necessary to produce and prove an
instrument or memorial that has been so deposited, filed, kept or
registered in order to establish such instrument or memorial and
the contents thereof, the party intending to prove it may give
notice to the opposite party at least ten days before the proceeding
in which the proof is intended to be adduced that he intends at

271

the proceeding to give in evidence, as proof of the instrument or
memorial, a copy thereof certified by the land registrar under his
hand and seal of office, and in every such case the copy so
certified is sufficient evidence of the instrument or memorial and
of its validity and contents, unless the party receiving the notice,
within four days after such receipt, gives notice that he disputes
its validity, in which case the costs of producing and proving it
may be ordered to be paid by any party as is considered just.
R.S.O. 1970, c. 151, s. 53, amended.

61. — (1) A party intending to prove the original of a telegram. Proof of
letter, shipping bill, bill of lading, delivery order, receipt, documents
account or other document used in business or other transac-
tions may give notice to the opposite party, ten days at least
before the proceeding in which the proof is intended to be
adduced, that he intends to give in evidence as proof of the
contents a writing purporting to be a copy of the document, and
in the notice shall name some convenient time and place for the
inspection thereof.

(2) Such copy may then be inspected by the opposite party, inspection
and is without further proof sufficient evidence of the contents of

the original document, and shall be accepted and taken in lieu
of the original, unless the party receiving the notice within
four days after the time mentioned for inspection gives notice that
he intends to dispute the correctness or genuineness of the copy
at the proceeding, and to require proof of the original, and the
costs attending any production or proof of the original document
are in the discretion of the court. R.S.O. 1970, c. 151, s. 55,
amended.

(3) It is not necessary in a proceeding to produce any evidence Evidence
that, by section 1 of The Vendors and Purchasers Act, is dis- wfth^under
pensed with as between vendor and purchaser, and the evidence J^f^g^- ^^^^'
declared to be sufficient as between vendor and purchaser is prima

facie sufficient for the purposes of the proceeding. R.S.O. 1970, c.
151, s. 59, amended.

62. It is not necessary to prove, by the attesting witness, an where no
instrument to the vahdity of which attestation is not requisite, attestation
R.S.O. 1970, c. 151, s. 56. ''"*"''"

63. Comparison of a disputed writing with a writing proved to Hand-
the satisfaction of the court to be genuine shall be permitted to ^"^"^
be made by a witness, and such writings and the evidence of
witnesses representing them may be submitted to the court or jury

as evidence of the genuineness or otherwise of the writing in dispute.
R.S.O. 1970, c. 151, s. 57.

64. Where a document is admitted in evidence, the court may impounding
order that it be impounded and kept in such custody for such adSed^n"^^
period and subject to such conditions as to the court seems ^''^^^^^^
proper. R.S.O. 1970, c. 151, s. 58, amended.

65. — (1) Where it is made to appear to the Supreme Court or Commission
a judge thereof, or to a judge of a county or district court, that a plrsons^in^
court or tribunal of competent jurisdiction in a foreign country Ontario for

V J 1 I • , 1 • . , , -^ use in foreign

nas duly authorized, by commission, order or other process, the courts

272

Conduct
money, etc.

obtaining of the testimony in or in relation to an action, suit or
proceeding pending in or before such foreign court or tribunal, of
a witness out of the jurisdiction thereof and within the jurisdiction
of the court or judge so applied to, such court or judge may order
the examination of such witness before the person appointed, and
in the manner and form directed by the commission, order or other
process, and may, by the same or by a subsequent order, com-
mand the attendance of a person named therein for the purpose
of being examined, or the production of a writing or other
document or thing mentioned in the order, and may give all such
directions as to the time and place of the examination, and all
other matters connected therewith as seem proper, and the order
may be enforced, and any disobedience thereto punished, in like
manner as in the case of an order made by the same court or judge
in an action pending in such court or before such judge.

(2) A person whose attendance is so ordered is entitled to the
like conduct money and payment for expenses and loss of time as
upon attendance at a trial in the Supreme Court.

Rights of (3) A person examined under such commission, order or process

persons i i ,-i • i i • • i- • •

examined has the like right to object to answer questions tending to crimi-
on commission ^^^^ himself, and to refuse to answer any questions that, in an
action pending in the court by which or by a judge whereof or
before the judge by whom the order for examination was made,
the witness would be entitled to object or to refuse to answer,
and no person shall be compelled to produce at the examination
any writing, document or thing that he could not be compelled to
produce at the trial of such an action. R.S.O. 1970, c. 151, s.
60(1), (2), (3).

Administra-
tion of
affirmation

Conflicts
avoided

Attendance
of witnesses

Repeal

Commence-
ment

Short title

(4) Where the commission, order or other process, or the
accompanying instructions, direct that the person to be examined
shall be sworn or shall affirm, the person so appointed has
authority to take his solemn affirmation. R.S.O. 1970, c. 151, s.
60(4), amended.

66. Nothing in this Act renders any evidence inadmissible that
would be admissible under any other Act or makes admissible any
evidence that would be inadmissible under any other Act of the
Legislature. New.

67. A witness in a proceeding served in due time with a
subpoena issued out of a court in Ontario, and paid his proper
witness fees and conduct money, who makes default in obeying
such subpoena, without any lawful and reasonable impediment, in
addition to any penalty he may incur as for a contempt of court,
is liable to an action on the part of the person by whom, or on
whose behalf, he has been subpoenaed for any damage that such
person may sustain or be put to by reason of such default. R.S.O.
1970, c. 151, s. 20, amended.

68. The Evidence Act, being chapter 151 of the Revised Statutes
of Ontario, 1970, is repealed.

69. This Act comes into force on the day of ,19

70. This Act may be cited as The Evidence Act, 19

273

APPENDIX B

List of Differences Between Draft Act and Present Act

R.S.O.

Draft Act 1970, c. 151 Differences

Section \{a) \{b) No change

"proceeding" substituted for "action"
and "action" added to the list of things
included.

"proceedings" substituted for "actions
and other matters whatsoever".

[9 New, replacing former sections 17-19
inclusive: see c. 8, pp. 130-131.

Redrafted, no change in principle.

"proceeding" substituted for "action".

Revised to conform to the provisions of
section 3 of the Draft Act.

"in a proceeding" added after "witness"
in line 1; "proceeding" substituted for
"action" in line 3.

9(1) 8(1) Revised to conform with recommenda-

tions in c. 7.

Rewritten, see c. 7, pp. 111-112.

Rewritten, see c. 9, p. 144.

"in a proceeding" added after "witness"
in line 1 .

(2) (2) "or a series of related questions" is

added after "question" in line 1; "in
a proceedings" is added after "witness"
in line 1; "such question" is struck in
line 4; "so given" is struck in line 6;
"thereafter taking place" is added at
end.

(3) New, see c. 7, footnote 24.

11 New, see c. 9, pp. 146-147.

12 New, see c. 9, pp. 147-148.

13 12 Redrafted, no change in principle.

14 New, see c. 10, p. 153.

15 New, see c. 10, p. 158.

l(fl)

1(6)

ib)

ia)

17, U

(2)

(3)

8(2)

10(1)

9(1)

Draft Act

274

797^ c. 151 Differences
Section 16 New, see c. 10, pp. 164-165.

Redrafted, no change in principle.

No change.

"proceeding" substituted for "action".

"proceeding" substituted for "action" in
line 1; "or an involuntary" substituted
for "or a" after "so found" in line 2.
Amended to confine the application of
the section to involuntary patients in
psychiatric facilities: see The Mental
Health Act, R.S.O. 1970, c. 69, s. 8.

21 16 "is admissible in" is substituted for "may

be used as".

22 New, see c. 1, pp. 16-17.

23 New, see c. 2, p. 38.

24 24 New, replacing former section 24: see c.

3, pp. 54-55, and c. 12, p. 205.

25 New; this is an adaptation of Rule

201(b) of the Federal Rules of Evidence
of the U.S.A. It is a codification of the
common law concerning judicial facts.

26 New, see c. 5, p. 94.

27 New, see c. 4, p. 72.

28 New, see c. 3, p. 54.

29 New, see c. 6, pp. 102-103.

30 New, see c. 6, pp. 102-103.

31 New, see c. 6, pp. 102-103.

32 New, see c. 13, p 220.

33 21 "in a proceeding" added after "witness"

in line 1; "any time during the trial
or" struck in lines 7 and 8; "trial or"
struck in line 10; no change in principle.

34(1) 22 "in a proceeding" added after "if" in line

1 ; no change in principle.

(2) New, see c. 3, p. 55.

35 New, to ensure that a witness shall not

be cross-examined as to charges that have
not resulted in conviction.

36(1) New, see c. 12, p. 199.

(2) New, see c. 12, p. 199.

275

R.S.O.

Draft Act 1970, c. 151 Differences

Section (3) New, see c. 12.

(4) 23(1) "Where a witness in a proceeding is

asked a question under subsection 1 or 2
and" is substituted at the opening for "A
witness may be asked whether he has
been convicted of any crime, and upon
being so asked, if"; "allegation" is sub-
stituted for "fact" in line 3.

New, see c. 11, p. 177.

New, see c. 11, p. 179.

New, replacing former section 36: see
c. 11, pp. 186-188, and 192.

"the government of a province or terri-
tory" substituted for "and of a province"
in line 3; "of the Government of Canada
or of the government of any province or
territory of Canada" substituted for "of
any such government" in line 5.

New, replaces former sections 25-29,
part section 30, and section 32: see c.
15, pp. 236-237.

No change.

New, replacing former section 31: see c.
14, pp. 232-233.

New, see c. 14, pp. 232-233.

Reference to fees deleted.

Revised to extend its application to all
jurisdictions outside Ontario.

46 30 Revised in part. Application of section

restricted to corporate documents. Gov-
ernment documents dealt with in section
41 of the Draft Act.

47(1) 34(1) Section extended to include institutions

authorized to receive money on deposit.

Consolidated and rewritten.

41(1)

25-29,
part 30,

(2)

(2), (3)

(3)

(4)

(5)

(6)

"proceeding" substituted for "action
"or a judge made for special cause"
struck in lines 5 and 6.

"proceeding" substituted for "action"; sub-
section rephrased, no change in principle.

Rephrased, no change in principle.

48 37 Rewritten, extended to apply to tribunals

generally.

276

R.S.O.

Draft Act

1970, c. 151

Differences

49(1)

40(1)

"may be j

52(1)

44(1)

(2)

53(1)

45(1)

Section 49(1) 40(1) "may be admitted in evidence in the

place of" substituted for "is receivable
in evidence in the place and stead of" in
lines 5 and 6; "force and" is struck in
line 6.

(2) (2) No change.

50(1) 41 "is admissible in any proceeding as prima

facie evidence" substituted for "is prima
facie evidence".

(2) 42 "is admissible in any proceeding as

prima facie evidence" substituted for "is
prima facie evidence".

No change.

Form of solemn declaration rewritten.

No change.

"solemn declaration" substituted for
"statutory declaration"; "is as valid and
effectual as if it had been a solemn
affirmation or declaration duly made in
Ontario" substituted for "is as valid and
effectual to all intents and purposes as if
it had been duly administered, sworn,
affirmed or made in Ontario before a
commissioner for taking affidavits in
Ontario".

(2) (2) "solemn declaration" substituted for

"statutory declaration".

54(1) 46(1) Same changes as in 45(1) of present Act

(see above); "to all intents and purposes"
struck in line 28.

(2) (2) Same changes as in 45(1) of present Act

(see above); "to all intents and purposes
struck in lines 4 and 5.

(3) (3) "solemn declaration" substituted for

"statutory declaration".

55 47 Rewritten; "affidavit, solemn affirmation

or declaration" substituted for "affidavit,
declaration or affirmation" in line 2.

56 48 Rewritten.

57 49 "letters" substituted for "same" in line

5; "or under the seal of the Supreme
Court, where the probate or letters of
administration were granted by the
former court of probate for Upper Can-
ada" struck.

277

R.S.O.

Draft Act 1970, c. 151 Differences

Section 58(1) 50(1) Rewritten.

(2) (2) "The certificate mentioned in subsection

1 is admissible in evidence as prima
facie proof" substituted for "The produc-
tion of the certificate mentioned in sub-
section 1 is sufficient prima facie evi-
dence", at the commencement.

59 51 "The production of struck at the com-

mencement; "admissible in any proceed-
ing as prima facie evidence" substituted
for ''prima facie proof for any purpose
to which the authority of the Legislature
extends".

60(1) 53(1) "has the same meaning as in r/ze /^e^wrry

Acf substituted for "has the meaning
assigned to it in section 1 of The Regis-
try Act".

(2) (2) "land registrar" substituted for "regis-

trar or master of titles"; "admissible in
any proceeding as prima facie'' substi-
tuted for ''prima facie'\

(3) (3) "trial or other" struck in lines 5, 6 and

7; "land registrar" substituted for "regis-
trar or master of titles" in line 9.

61(1) 55(1) "document" substituted for "written in-

strument" in line 3; "trial or other"
struck in line 5.

(2) "such" in line 5 struck; "trial or" struck

in line 7.

"proceeding" substituted for "action".

No change.

"admitting it" in line 2 struck; "order"
substituted for "direct" in line 2; "to the
court" inserted after "as" in line 3; "or
until the further order of the court or of
the Supreme Court or of a judge thereof
or of a county or district court, as the
case may be" in lines 4, 5, and 6 struck.

(2)

(3)

65(1)

60(1)

No change.

(2)

No change.

(3)

No change.

278

Section

Draft Act

(4)

R.S.O.

1970, c. 151 Differences

(4)

"accompanying instructions" substituted
for "instructions of the court accom-
panying the same" in line 2; "administer
the oath to him or" struck in Hne 4.

New, section designed to avoid conflicts
with special evidentiary provisions in
particular Acts.

Appendix to former section 20 dealing
with interprovincial subpoenas (Ontario
and Quebec) struck. See recommenda-
tions in c. 16.

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