The Principled Revolution: An Article on the Law of Evidence in Canada

The law of evidence in Canada has undergone a dramatic transformation, moving away from a rigid, rules-based system toward a sophisticated, principle-rooted framework. This evolution is driven by both the development of the common law by the Supreme Court of Canada and the constitutional entrenchment of rights and freedoms under the Canadian Charter of Rights and Freedoms (the Charter). The overarching purpose of the rules of evidence is to facilitate the introduction of all logically relevant facts into judicial proceedings without compromising any fundamental policy of the law deemed more crucial than the mere ascertainment of truth. Canadian evidentiary principles regulate what matters are admissible or inadmissible before the court, and the procedural method by which admissible facts are presented.

In other words, the modern law of evidence in Canada tries to let in as much helpful information as possible, while still protecting fairness, privacy, and constitutional rights.

⚖️ I. The Foundational Shift: Towards a Principled Approach

Historically, the common law of evidence, particularly pertaining to hearsay, remained largely static until the Supreme Court of Canada initiated judicial reform starting in 1970. The shift from a strict rules-based system to a modern approach is characterized by the application of underlying principles to the specific circumstances of each case, replacing the previous arbitrary and inflexible application of fixed rules.

This foundational movement emphasizes a threshold contextual factual analysis over an inflexible set of rules for resolving admissibility issues. Instead of asking, “Does this fit a rigid category?”, judges now ask, “Do the underlying principles support admitting or excluding this evidence in these specific circumstances?”

The Supreme Court of Canada has directed trial judges to focus on these fundamental principles to decide issues of admissibility, thereby preserving the rationale behind the rules while avoiding injustices caused by the exclusion of reliable evidence or the admission of unreliable evidence. This Principled Approach has infused virtually every facet of the law of evidence in Canada.

One crucial area illustrating this transformation is the law of hearsay, although the principled analysis also extends to privilege, corroboration, res judicata, issue estoppel, abuse of process, and expert evidence.

🏛️ II. The Constitutional Impact: The Canadian Charter of Rights and Freedoms

The Charter, being part of the “supreme law of the land,” requires that other statutes and common law rules align with its principles. Its guarantees, which include broad protection against self-incrimination and a range of legal rights, have had a profound effect on the law of evidence in Canada.

The Charter guarantees fundamental freedoms and rights such as freedom of conscience, religion, thought, expression, assembly, and association. More specifically, legal rights relevant to evidence include:

• The right to life, liberty, and security of the person (s. 7).
• The right to be secure against unreasonable search and seizure (s. 8).
• The rights afforded to persons charged with an offence, including the presumption of innocence and fair trial rights (s. 11).

Legal rights under the Charter also include the right to be informed of the specific offence without unreasonable delay, the right to be tried within a reasonable time, the right not to be compelled to be a witness against oneself, and the right to be presumed innocent until proven guilty according to law in a fair and public hearing.

🧨 A. Exclusion of Illegally Obtained Evidence (Section 24(2))

The most direct link between the Charter and the law of evidence is Section 24(2), which provides the mechanism for excluding evidence obtained in a manner that infringes or denies Charter rights or freedoms. This provision gives real “teeth” to constitutional protections.

Section 24(2) mandates that evidence shall be excluded if, having regard to all the circumstances, its admission would bring the administration of justice into disrepute. This Canadian rule represents a careful compromise. It rejects:

• The absolute U.S. exclusionary rule, where illegally obtained evidence is automatically inadmissible (often described as the “fruit of the poisonous tree”), and
• The pre-Charter British inclusionary approach, where relevant evidence was admissible regardless of police misconduct.

Instead, Canadian courts use a contextual balancing test. The modern approach, set out by the Supreme Court of Canada in R. v. Grant, replaced the earlier Collins/Stillman framework that focused on “conscriptive” versus “non-conscriptive” evidence.

Under the Grant framework, courts assess and balance the effect of admitting the evidence on society’s confidence in the justice system by considering three lines of inquiry:

1. Seriousness of the Charter-Infringing State Conduct
   This factor evaluates how serious the state misconduct was. Admission of evidence may send the message that the justice system condones serious misconduct. Conduct ranges from inadvertent or minor violations to wilful or reckless disregard of rights. Good-faith errors by police generally do not lead to exclusion, but intentional, flagrant, or systemic violations tend to do so.
2. Impact of the Breach on the Accused’s Charter-Protected Interests
   This factor examines how seriously the breach affected the accused’s rights, such as privacy, bodily integrity, or liberty. For example, a search that intrudes upon an area where a person has a high expectation of privacy (like a home or personal digital device) is more likely to bring the administration of justice into disrepute if evidence from that search is admitted.
3. Society’s Interest in Adjudication on the Merits
   This factor requires the court to consider whether the truth-seeking function of the trial is better served by admitting or excluding the evidence. Relevant considerations include the reliability of the evidence, its importance to the Crown’s case, and the seriousness of the offence. Highly reliable evidence that is central to the prosecution’s case, if excluded, may severely undermine the truth-finding process.

The accused bears both the evidential and persuasive burden to prove that a Charter breach occurred and, on a balance of probabilities, that the admission of the evidence would bring the administration of justice into disrepute.

⚖️ III. Burdens and Standards of Proof in Canadian Evidence Law

The law of evidence in Canada distinguishes between two main concepts related to proof: the evidential burden and the persuasive (legal) burden.

📂 A. The Evidential Burden

The evidential burden is a question of law determined by the trial judge. It defines whether an issue should be presented to the trier of fact at all. A party bearing this burden must ensure there is sufficient evidence of a fact or issue on the record to pass a threshold test.

Meeting this burden does not require proving anything conclusively. It simply requires adducing some evidence, or pointing to existing evidence on the record, capable of supporting a finding on that issue.

In criminal cases, the Crown must satisfy its evidential burden to overcome a motion for a directed verdict of acquittal at the end of its case, applying the Shephard test. This requires the trial judge to conduct a limited weighing of the evidence to determine if a properly instructed jury could reasonably convict. The question is whether the evidence is capable of supporting the essential inferences the Crown seeks to have the jury draw beyond a reasonable doubt.

In civil proceedings, the plaintiff must meet the evidential burden to survive a defendant’s motion for a non-suit.

If a judge determines that the evidential burden for a particular issue (such as a defence advanced by the accused) is not met, that issue is withdrawn from the jury’s consideration. This determination is grounded in the criminal law’s “air of reality” test.

📈 B. The Persuasive (Legal) Burden

The persuasive (legal) burden is the obligation to prove or disprove a fact or issue to the requisite standard of proof. This is a question of fact decided by the trier of fact (judge or jury). The burden generally rests on the party advancing the claim.

The distinction between the evidential and persuasive burdens is crucial:

• The evidential burden governs what the judge does (whether an issue goes to the trier of fact).
• The persuasive burden governs what the trier of fact decides (the verdict on that issue).

Except where statutory provisions or presumptions compel otherwise, burdens generally do not shift but are distributed based on the contested issues in the case.

⚖️ C. Standards of Proof

The required degree of proof depends on the nature of the proceeding:

1. Criminal Standard – Beyond a Reasonable Doubt
   In criminal matters, the Crown must prove the guilt of the accused beyond a reasonable doubt. This “golden thread” of criminal law is fundamentally linked to the constitutional right to the presumption of innocence in s. 11(d) of the Charter. A reasonable doubt must be based on reason and common sense, logically connected to the evidence or the lack of evidence. It does not require proof to an absolute certainty.
2. Civil Standard – Balance of Probabilities
   In civil proceedings, the standard is the balance of probabilities. The plaintiff must establish that the claim is more probable than not (a likelihood greater than 50%). This is the sole standard in civil cases. While the standard does not fluctuate, the inherent improbability or seriousness of an allegation may cause the trier of fact to demand more clear, convincing, and cogent evidence before being satisfied on a balance of probabilities.

Statutory provisions that compel an accused to disprove an essential element of an offence on a balance of probabilities, thereby allowing for conviction despite a reasonable doubt, violate the presumption of innocence under s. 11(d) of the Charter.

🗣️ IV. Hearsay Evidence: Necessity and Reliability

Hearsay is defined as an out-of-court statement (oral, written, or non-verbal conduct intended as an assertion) offered in evidence to prove the truth of the matter asserted in the statement. The foundational reason for its exclusion is the inherent unreliability arising from the lack of traditional safeguards:

• The statement is usually not made under oath.
• The maker of the statement is not subject to contemporaneous scrutiny.
• There is no immediate cross-examination to test the declarant’s perception, memory, narration, and sincerity.

All of this makes it difficult for the trier of fact to assess the declarant’s credibility.

The principled approach dictates that hearsay is presumptively inadmissible unless it falls within a traditional exception or meets the criteria of necessity and reliability. The onus is on the proponent of the evidence to establish these criteria on the balance of probabilities during a voir dire (a trial within a trial on admissibility).

🪜 A. The Twin Pillars of Necessity and Reliability

The criteria of necessity and reliability are designed to achieve trial fairness, protecting the accused’s rights while serving society’s interest in discovering the truth.

1. Necessity
   Necessity is rooted in society’s interest in getting at the truth when the optimal test of contemporaneous cross-examination is unavailable.Necessity can arise where:
   • The declarant is deceased or otherwise unavailable to testify.
   • The declarant is available, but the out-of-court statement is closer in time to the events and offers a fuller, more accurate rendition than what the declarant can now provide.

   Necessity does not demand absolute unavailability; it is a practical concept grounded in whether calling the declarant or relying solely on in-court testimony would significantly impair the truth-seeking process.

2. Reliability
   Reliability ensures the integrity of the trial process by requiring that hearsay admitted into evidence is sufficiently trustworthy to overcome its inherent dangers.Reliability can be established where:
   • The statement was made under circumstances that substantially negate the possibility that the declarant was untruthful or mistaken (for example, spontaneous statements in stressful situations, or statements with corroborating features).
   • There were adequate substitutes for the traditional safeguards at the time the statement was made (such as the statement being under oath, videotaped, or subject to cross-examination in another proceeding).

   The presence or absence of a motive to lie is often critical in assessing threshold reliability.

🔄 B. The Starr Framework and Modern Flexibility

The Supreme Court confirmed in R. v. Starr that all existing traditional hearsay exceptions may be challenged to determine whether they comply with the principled approach. However, these exceptions remain useful by providing predictability and efficiency, and they are presumptively admissible. If a hearsay exception conflicts with the principled approach, it should be modified.

If evidence does not fall under an existing exception, it may still be admitted if necessity and reliability are established on a voir dire.

The modern approach, reiterated in R. v. Khelawon, requires flexibility and a contextual assessment of any factor relevant to the specific hearsay dangers, rather than rigid adherence to a checklist.

🧱 V. Specific Evidentiary Rules and Concepts

🗣️ A. Confessions and the Principle Against Self-Incrimination

Confessions are special types of evidence: they are statements made by an accused person to a person in authority (typically police or other state agents). The admissibility of a confession is governed by the common law rule requiring the statement to be voluntary.

The Crown must prove voluntariness beyond a reasonable doubt. The voluntariness test is intensely fact-based, examining the circumstances to ensure the confession was not obtained by engendering fear or exciting hope, and that it was not the product of oppression, threats, promises, or trickery that would shock the community. This protects both reliability and respect for individual autonomy.

The principle against self-incrimination is also protected constitutionally. Section 13 of the Charter grants a witness who testifies in any proceeding the right not to have that incriminating evidence used to incriminate them in any other subsequent proceeding (use immunity), except for perjury. Section 7 of the Charter extends protection through derivative use immunity, meaning that evidence discovered as a result of compelled testimony is also excluded, unless the Crown can prove on a balance of probabilities that the evidence would have been discovered independently.

The common law confession rule is broader than the Charter right to silence in some respects, because it applies whenever a person is questioned by a person in authority, not just upon arrest or detention under s. 10 of the Charter. However, a statement found voluntary under the common law may still be inadmissible if obtained through a Charter violation, such as a breach of the right to counsel.

🧩 B. Similar Fact Evidence

Similar fact evidence refers to evidence of discreditable conduct by the accused on other occasions. This evidence is presumptively inadmissible.

The rationale for exclusion is to uphold trial fairness and the presumption of innocence. The law aims to ensure the accused is tried only on the specific charges in the indictment, not on the basis of general criminal disposition or bad character (known as moral prejudice). There is also a concern about reasoning prejudice, where the trier of fact might be distracted or confused by collateral issues.

Similar fact evidence is only admissible in exceptional circumstances where its probative value outweighs its potential prejudice. The onus is on the prosecution to satisfy the judge on a balance of probabilities that the probative value justifies admission.

The framework for this analysis is detailed in R. v. Handy. The judge must:

• Assess the cogency and strength of the similar facts in relation to the specific issue (for example, identity, intent, or rebutting an innocent explanation), and
• Weigh this probative value against the risk of both moral and reasoning prejudice.

This rule applies in both civil and criminal cases, although the consequences are usually more serious in criminal proceedings.

🧠 C. Expert Evidence

Expert evidence is admissible if four criteria are met:

1. Relevance – The evidence must be logically connected to a material issue.
2. Necessity – The subject matter must be outside ordinary experience such that it will assist the trier of fact.
3. No Contravention of an Exclusionary Rule – The evidence must not violate another rule of admissibility.
4. Proper Qualification – The witness must be properly qualified in the relevant field.

The admissibility of novel scientific or technical evidence is subject to special scrutiny to determine its threshold reliability. Courts use a cost-benefit analysis, weighing the probative potential (considering reliability) against the risk of undue prejudice, confusion, increased trial length, and excessive cost.

🧑‍⚖️ D. Judicial Discretion to Exclude Evidence

Judicial discretion plays a central role in excluding evidence, even when it is technically relevant and admissible. In criminal cases, the trial judge has discretion to exclude evidence if its probative value is outweighed by its prejudicial effect or if its admission would mislead the jury or otherwise render the trial unfair, independent of any Charter breach.

This discretion extends to inflammatory evidence, such as graphic photographs or demonstrations of bodily injuries. Where the emotional impact on the jury risks overshadowing the actual probative value, judges may order exclusion or impose limits on how the evidence is presented.

📚 VI. Putting It All Together: A Dynamic, Principled System

The law of evidence in Canada today operates not as a static collection of arbitrary rules, but as a dynamic body of principles applied contextually to achieve the fundamental objectives of the legal system:

• Finding the truth
• Ensuring reliability
• Maintaining fairness and integrity in the adjudicative process

All of this is guided by constitutional mandates, particularly the Charter. The courts’ role has evolved into one of constant balancing. Judges act as gatekeepers, ensuring that evidence meets a threshold of reliability and fairness before being presented to the trier of fact. They serve as a check against overzealous state conduct while also guarding against the exclusion of necessary, trustworthy information.

The journey from strict adherence to ancient categories to a flexible, principles-based system means that the admissibility of almost any piece of evidence in Canada now hinges on careful contextual scrutiny—especially of its necessity and reliability. In practice, this makes the law of evidence less like a fixed map and more like a responsive compass pointing toward justice.

For more Canadian legal content, you might also be interested in related guides on legal research, Charter rights, and workplace disability law on MiltonMarketing’s legal education hub (for example, articles on law and legal research in Canada, or workplace disability rights and reprisals in Ontario).

❓ VII. FAQs on the Law of Evidence in Canada

❓ What is the law of evidence in Canada?

The law of evidence in Canada is the set of rules and principles that govern what information can be presented in court, how it is presented, and how it may be used by the trier of fact. It balances truth-seeking with fairness, privacy, and constitutional rights, especially as protected by the Canadian Charter of Rights and Freedoms.

❓ What is meant by the “principled approach” to evidence?

The principled approach is a flexible, case-by-case method that focuses on underlying values such as necessity, reliability, and trial fairness rather than rigid, technical categories. It is most visible in hearsay, but it also influences privilege, similar fact evidence, and expert evidence.

❓ How did the Charter change the law of evidence in Canada?

The Charter made rights such as the presumption of innocence, the right to silence, protection against unreasonable search and seizure, and the right to counsel constitutional. These rights directly shape when evidence can be obtained and whether it will be excluded under s. 24(2) if obtained in breach of the Charter.

❓ What does Section 24(2) of the Charter do?

Section 24(2) requires courts to exclude evidence obtained in violation of Charter rights if its admission would bring the administration of justice into disrepute. Courts apply the Grant framework, weighing the seriousness of the state misconduct, the impact on the accused’s rights, and society’s interest in a trial on the merits.

❓ What is the difference between evidential and persuasive burdens?

The evidential burden is about whether there is enough evidence to raise an issue so it can go to the trier of fact. The persuasive burden is about whether a party has proved a fact or issue to the required standard (beyond a reasonable doubt in criminal law, or on a balance of probabilities in civil cases).

❓ What is hearsay, in simple terms?

Hearsay is an out-of-court statement offered in court to prove that what the statement says is true. Because the speaker is not testifying directly and cannot be cross-examined at the time the statement is made, hearsay is presumptively inadmissible unless it fits a traditional exception or meets the tests of necessity and reliability.

❓ Why do courts care so much about necessity and reliability in hearsay?

Necessity and reliability protect fairness. Necessity ensures we only rely on hearsay when we truly need to (for example, when a witness is deceased). Reliability ensures that when we use hearsay, it is trustworthy enough to justify the risk of admitting second-hand evidence.

❓ What is similar fact evidence and why is it controversial?

Similar fact evidence is proof of the accused’s other discreditable acts, offered to show a pattern or similarity with the alleged offence. It is controversial because it can tempt judges or juries to convict based on “bad character” or moral prejudice. It is only admitted when its probative value clearly outweighs its potential prejudice.

❓ How are confessions treated under Canadian evidence law?

Confessions are only admissible if the Crown proves they were made voluntarily to a person in authority. The court considers whether the statement was the product of threats, promises, oppression, or trickery that would make it unfair or unreliable. In addition, the Charter right to silence and the right to counsel may require exclusion of a confession even if it appears voluntary under common law.

❓ What role do expert witnesses play in Canadian trials?

Expert witnesses help the court understand technical or specialized matters that are beyond ordinary experience (for example, DNA evidence, accident reconstruction, or medical diagnoses). Expert evidence is only admitted if it is relevant, necessary, not barred by an exclusionary rule, and provided by a properly qualified expert.

❓ Can a judge exclude evidence even if it is technically admissible?

Yes. Judges have a residual discretion to exclude evidence if its prejudicial effect outweighs its probative value or if its admission would make the trial unfair. This discretion exists even without a Charter breach and is often used for inflammatory or highly emotional evidence.

❓ What is a voir dire in the context of evidence?

A voir dire is a hearing within a trial where the judge decides a question of law, usually about the admissibility of evidence (such as hearsay, confessions, or expert opinion). It is often held without the jury, and its outcome determines whether certain evidence will be placed before the trier of fact.

❓ How does the standard of proof “beyond a reasonable doubt” actually work?

“Beyond a reasonable doubt” means that, after considering all the evidence, the trier of fact is left with no reasonable doubt about the accused’s guilt. The doubt must be based on reason and common sense, tied to the evidence or lack of evidence, and not based on speculation. If such a doubt exists, the accused must be acquitted.

❓ Is the law of evidence in Canada the same in civil and criminal cases?

Many core concepts (relevance, hearsay, expert evidence, and privilege) apply in both civil and criminal cases, but they can operate differently because the stakes and standards of proof differ. Criminal cases also engage the Charter more directly, especially around confessions, search and seizure, and exclusion of evidence.

Frequently Asked Questions on the Law of Evidence in Canada

General Principles and Foundational Concepts

Q: What is the function of the law of evidence in Canada?

The rules of evidence control the presentation of facts before the court. The purpose is to facilitate the introduction of all logically relevant facts without sacrificing any fundamental policy of the law which may be of greater importance than the ascertainment of the truth. Evidentiary principles regulate both what matters are or are not admissible before the court and the method by which admissible facts are placed before it. The law of evidence is made up of common law principles, statutory provisions, and constitutional principles.

Q: How has Canadian evidence law evolved recently?

The law of evidence has been dramatically transformed by the Supreme Court of Canada in recent decades. The system is moving away from a rigid, “Rules-based system” to a “Principled Approach.” The word “Rules” connotes strict adherence and arbitrary application, which in many circumstances has led to the exclusion of reliable evidence or the admission of unreliable evidence, resulting in injustices. The modern approach builds upon the underlying rationale of traditional rules rather than discarding them, focusing on truth seeking, judicial efficiency, and fairness in the adversarial process. This principled approach often results in a threshold contextual factual analysis being applied to admissibility issues, rather than a fixed, inflexible set of rules.

Q: What is the relevance of evidence?

Evidence is prima facie admissible if it is relevant. Relevance requires a determination of whether, as a matter of human experience and logic, the existence of a “Fact A” makes the existence or non-existence of a “Fact B” more probable than it would be without the existence of “Fact A.” The first step in determining what is relevant is identifying the facts that are in issue in the case, which are defined by the substantive law relating to the charge or cause of action. Once evidence is determined to be relevant, the trial judge considers whether it is subject to an exclusionary rule or if there is a judicial discretion to reject it.

Burdens and Standards of Proof

Q: What are the two types of burdens of proof in Canadian law?

The law distinguishes between two types of burdens:

1. Persuasive (Legal) Burden: This describes the onus of proof related to the degree of satisfaction required (either the balance of probabilities or beyond a reasonable doubt). The persuasive burden is allocated by law and generally does not shift during the trial, except where presumptions of law or rebuttable statutory provisions apply.
2. Evidential Burden: This burden requires a party to produce sufficient evidence of a fact or issue to make it a live issue for the trier of fact. The evidential burden may be satisfied by adducing evidence or pointing to evidence already on the record.

Q: What is the standard of proof in criminal cases?

The standard in criminal proceedings is that the prosecution must prove the accused’s guilt beyond a reasonable doubt. Lord Sankey referred to this as the “golden thread” throughout the English Criminal Law. This standard is satisfied if the trier of fact is sure that the accused committed the offence. A reasonable doubt is generally considered to fall much closer to absolute certainty than to proof on a balance of probabilities.

Q: What is the standard of proof in civil cases?

The standard of proof in civil proceedings is the balance of probabilities. This standard is flexible, meaning the trier of fact may require more cogent or stronger evidence to prove an unlikely or improbable event (e.g., an allegation of arson) than for an ordinary allegation of negligence.

Constitutional Protections and Exclusion of Evidence

Q: How does the Canadian Charter of Rights and Freedoms affect the admissibility of evidence?

The Charter enshrines fundamental rights, including the presumption of innocence, the privilege against testimonial self-incrimination, the right to remain silent, and the right to retain and instruct counsel without delay. These rights are enforced by Section 24(2) of the Charter, which empowers a court to exclude evidence obtained in a manner that violated the Charter if its admission “would bring the administration of justice into disrepute.”

Q: What is the test for excluding illegally obtained evidence under s. 24(2)?

The Supreme Court of Canada uses a balancing test, detailed in cases like R. v. Collins and further refined in R. v. Grant. The inquiry determines “whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.” This involves examining three main categories of factors:

1. Trial Fairness: The nature and significance of the evidence obtained (e.g., reliability).
2. Seriousness of the Charter Violation: The quality of the police conduct that permitted the evidence to be obtained.
3. Effect on the System: The consequences for the justice system as a whole if the evidence is excluded.

Hearsay and Prior Statements

Q: What is the Hearsay Rule?

The rule against hearsay has been a foundational part of evidence law for centuries, and hearsay evidence is presumptively inadmissible. The rationale for this is the difficulty of testing the reliability of an out-of-court statement because the maker was not under oath, available for cross-examination, or observable by the trier of fact.

Q: How is the modern admissibility of hearsay determined?

Under the principled approach, admissibility is determined by the twin criteria of necessity and reliability. The evidence is admissible if it is sufficiently trustworthy to compensate for the absence of traditional safeguards. These criteria are determined on a case-by-case basis.

Q: Are there specific statutory rules for documentary evidence?

Yes. The Canada Evidence Act (CEA) contains provisions concerning the admissibility of business records (s. 30). Records admitted under s. 30 of the CEA are considered prima facie evidence of their contents. However, records made “in the course of an investigation or inquiry” are expressly denied admissibility under s. 30(10)(a) of the Canada Evidence Act. The CEA also includes provisions (ss. 31.1 to 31.8) to facilitate the admissibility of electronic documents. Generally, a party intending to introduce a business record must provide the opponent seven days’ notice.

Q: How are confessions treated?

A confession must be proven by the Crown to be voluntary beyond a reasonable doubt before it can be admitted in evidence against the accused. A properly recorded interview, such as an audio or video recording, is jurisprudentially favored as it can avoid disputes regarding how the confession was obtained and compliance with the Charter or statutory rights, although video recording is not yet a mandatory requirement.

Similar Fact Evidence (SFE)

Q: What is Similar Fact Evidence and why is it presumptively inadmissible?

SFE relates to evidence of a person’s discreditable conduct on occasions other than the subject of the current charge. SFE is presumptively inadmissible because it runs the risk of prejudicing the accused by inviting the trier of fact to conclude that the accused is the type of person who would commit the crime (“propensity” or “disposition” reasoning), thus undermining the right to a fair trial.

Q: When is Similar Fact Evidence admissible?

SFE is admissible only in exceptional circumstances. The onus is on the prosecution (in criminal cases) to satisfy the trial judge, on a balance of probabilities, that the probative value of the evidence outweighs its potential prejudice. The probative force depends on factors like the purpose for which the evidence is tendered (e.g., to prove identity, mens rea, motive, or rebut a defense) and the strength of the connection between the acts.

Expert and Witness Evidence

Q: What are the criteria for admitting expert opinion evidence?

The Supreme Court of Canada established four key criteria for the admissibility of expert opinion evidence in cases such as R. v. Mohan:

1. Relevance: The evidence must be relevant to some issue in the case.
2. Necessity: The evidence must be necessary to assist the trier of fact; that is, the judge or jury must be unable to form their own satisfactory conclusions without the assistance of the expert’s specialized knowledge or expertise.
3. Absence of Exclusionary Rule: The evidence must not contravene an exclusionary rule.
4. Properly Qualified Expert: The witness must be a properly qualified expert.

Novel scientific theories are subjected to special scrutiny to ensure they meet a basic threshold of reliability.

Q: How does the court address the competence of witnesses?

Competence is the initial threshold for receiving evidence, requiring only a basic ability to provide truthful evidence. Since 2006, Parliament has liberalized the approach to the testimony of children under 14 years of age, who are now presumed to have the capacity to testify, with challenges to their competency significantly restricted under s. 16.1 of the Canada Evidence Act. Generally, witnesses in court proceedings are sworn or affirmed and are subject to examination-in-chief, cross-examination, and re-examination.

Analogy: The law of evidence in Canada can be compared to a customs inspection point at an international border. The judge, acting as the border agent, must decide whether an item (a piece of evidence) is allowed entry into the jurisdiction (the trial). The basic requirement is that the item must be relevant (like proving it belongs to you and serves a legitimate purpose for the visit). However, even if relevant, some items might be excluded if they violate a fundamental law (a Charter breach, resulting in exclusion under s. 24(2)), or if they are inherently unreliable (like hearsay, which needs to satisfy the necessity and reliability “principled approach” to be admitted).

📚 VIII. Sources & References (Suggested Further Reading)

• Justice Canada – overview and guide to the Canadian Charter of Rights and Freedoms. (Ministère de la Justice)
• Criminal Notebook – explanations of the principled approach to hearsay and voir dire practice. (criminalnotebook.ca)
• Supreme Court of Canada decisions on hearsay and similar fact evidence, including R. v. Khelawon and R. v. Handy. (Supreme Court of Canada Decisions)
• Academic and case commentary on the Grant framework and s. 24(2) exclusionary analysis. (Journal Publishing Service)
• Commentary on the right to silence and self-incrimination protections in Canadian law. (Supreme Court of Canada Decisions)

📣 IX. Conclusion and Call to Action

The law of evidence in Canada is now a deeply principled, Charter-sensitive system. Instead of blindly following old technical rules, courts weigh necessity, reliability, fairness, and constitutional values in almost every admissibility decision.

From hearsay and similar fact evidence to confessions and expert testimony, the modern law of evidence in Canada aims to admit what truly helps the court reach a just result, while excluding what would unfairly harm the integrity of the process. For legal professionals, students, and self-represented litigants, understanding these principles is essential to navigating Canadian courts with confidence.

If you are dealing with evidence issues in a real case and need direction on next steps, consider reaching out for proper legal advice and support. As a starting point, you can connect through our Contact page to get guidance toward qualified assistance.

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