Weighing Evidence - Appendix A: The rules of evidence and the Canada Evidence Act

A.1      Rules of evidence

The rules of evidence are derived from case law and applied by courts to ensure the evidence they rely upon to reach a decision is deserving of weight. As explained in Chapter 2 of this paper, the IRB is not bound by any legal or technical rules of evidence and may admit evidence that would not be admissible in a court. Nevertheless, the IRB may consider the rationales for those rules in assessing the weight of evidence.

A.1.1   Hearsay rule

A.1.1.1  Rule

“Written or oral statements, or communicative conduct made by persons otherwise than in testimony at the proceeding in which it is offered, are inadmissible, if such statements or conduct are tendered either as proof of their truth or as proof of assertions implicit therein.”Footnote 397

A.1.1.2  Rationale

Hearsay evidence is thought to be generally untrustworthy. Some of the reasons that have been given for finding hearsay to be a poor type of evidence are:

  • the author of the statement (the declarant) is not under oath and is not subject to cross-examination;
  • there is no opportunity to observe the demeanour of the declarant;
  • accuracy tends to deteriorate with each repetition of a statement;
  • the admission of such evidence lends itself to the perpetration of fraud;
  • hearsay evidence may result in a decision based upon secondary evidence that is weaker than the best evidence available; and
  • the introduction of such evidence could lengthen trials.Footnote 398

A.1.1.3  Exceptions to the rule:

Hearsay evidence may be admitted where its admission is necessary to prove a fact in issue and the evidence is reliable.Footnote 399

“The criterion of ‘reliability’—or, in Wigmore's terminology, the circumstantial guarantee of trustworthiness—is a function of the circumstances under which the statement in question was made. If a statement sought to be adduced by way of hearsay evidence is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken, the hearsay evidence may be said to be ‘reliable’, i.e., a circumstantial guarantee of trustworthiness is established.”Footnote 400

Hearsay must be sufficiently reliable to overcome the dangers arising from having limited ability to test it. The trial judge must be satisfied that the statement is so reliable that cross-examination would add little, if anything, to the process.Footnote 401

A.1.2   Best evidence rule

A.1.2.1  Rule

“The law does not permit a man to give evidence which from its very nature shows that there is better evidence within his reach, which he does not produce.”Footnote 402

The importance of this rule has diminished over time, as the position that all relevant evidence should be admitted even if it is not the best available has gained favour. However, the weight assigned to evidence that is not the best may be discounted when a party chooses not to submit the best evidence on a particular matter.

A.1.2.2  Application of the rule

While this rule originally applied to all evidence, it has more recently been restricted in its application to documentary evidence: if the original document is available, it must be produced. Even this application may not be absolute, given the proliferation of technology that facilitates the creation of accurate digital copies. However, evidence of a document’s authenticity remains necessary for its admissibility.

Secondary evidence may be admissible where:

  • the original document has been lost or destroyed;
  • the original document is in the possession of another party who refuses to produce it; or
  • the original document is of an official or public nature, and great inconvenience or risk would result from its removal from its place of storage.

A.1.3   Opinion evidence

A.1.3.1  Original rule

A witness may only testify as to what they have actually observed, and not to the inferences they draw from those observations.

A.1.3.2  Rationale

It is the jurisdiction of the trier of fact to draw inferences from the facts that are established.

However, this rule has been found to be unworkable in many circumstances because the distinction between facts and inferences is not always clear.

A.1.3.3  Exceptions to the rule

Historical exceptions allowed lay witnesses to testify as to the identity of persons and places; the identification of handwriting; and mental capacity and state of mind.

A.1.3.4  Current rule

Now a witness may give testimony about the inferences they draw from observed facts where they would be helpful to the court.Footnote 403 As with any evidence, the court must decide how much weight to assign to opinion evidence once it is admitted.

Expert evidence is a form of opinion evidence. “The general rule is that expert evidence is admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of the judge and jury ... .”Footnote 404

In court proceedings, there are four criteria expert evidence must satisfy in order to be admissible: it is relevant, it is necessary, it does not trigger any exclusionary rules, and it is provided by a properly-qualified expert.Footnote 405

In White Burgess Langille Inman,Footnote 406 the Supreme Court of Canada stated that an expert has a duty to the court to be fair, objective, and unbiased. If they fail to discharge that duty, then they are not a properly qualified expert.

A.1.4   Self-serving evidence

A.1.4.1  Rule

Self-serving evidence was originally not admissible to support the credibility of a witness unless their credibility had first been put in issue. However, the Supreme Court of Canada amended the rule. Now such evidence is admissible as substantive evidence of its contents if it arises from a witness other than the accused and is reliable and necessary.Footnote 407

The rule is generally used to exclude prior consistent statements made by the witness, but also extends to any out-of-court evidence which is entirely self-serving.

A.1.4.2  Rationale

Reasons for this rule include the risk of fabrication of evidence, the notion that repetitions do not make the evidence more reliable, and the risk that court time would be wasted in dealing with such evidence if credibility is not in issue.

A.1.4.3  Application of the rule

Self-serving evidence may be introduced, when credibility is in issue, only to bolster credibility, and not as evidence of the truth of the statement.

Prior consistent statements may only be admitted to:Footnote 408

  • rebut allegations of recent fabrication;
  • establish an eye-witness’s prior identification of the accused;
  • prove a recent complaint by a sexual assault victim;
  • establish that a statement was made that forms part of the res gestae (that is, a statement that was made during the course of a transaction and so closely related in time as to form part of that transaction) or prove the physical, mental or emotional state of the accused;
  • prove that a statement was made on arrest; or
  • prove that a statement was made on the recovery of incriminating articles.

A.1.4.4  Exceptions to the rule

Such evidence is admissible as substantive evidence of its contents if it is (a) evidence of a witness other than the accused, and (b) reliable and necessary.Footnote 409

A.2      Canada Evidence Act

A.2.1   Business records

Section 30 of the Canada Evidence ActFootnote 410 provides that “records made during the usual and ordinary course of business” may be admitted into evidence. Subsection 30(6) indicates some of the factors that may be taken into consideration in determining the weight of such evidence include “the circumstances in which the information contained in the record was written, recorded, stored or reproduced.”

A.2.2   Affidavits and oaths taken abroad

Sections 52 and 53 of the Canada Evidence Act indicate who may take oaths and affidavits abroad.

Oaths taken abroad by persons other than those named in sections 52 and 53, may be given less weight. In addition, the circumstances of the taking of the oath should be examined to determine the weight.Footnote 411

A.2.3   Evidence of foreign law

Section 23 of the Canada Evidence Act describes the method of providing proof of court records or judicial proceedings from a foreign country.Footnote 412

A.2.4   Witness’s capacity to give evidence

Section 16 of the Canada Evidence Act provides a procedure for determining whether a witness of 14 years of age or older whose mental capacity is challenged should be permitted to testify.

A.2.5   Judicial notice

Sections 17 and 18 of the Canada Evidence Act provide that judicial notice may be taken of federal and provincial legislation.

A.2.6   Authentication of electronic documents

Section 31.1 of the Canada Evidence Act allows electronic evidence to be admitted into evidence if the person seeking to admit such evidence proves its authenticity. Under the Canada Evidence Act,the best evidence rule is satisfied (a) upon proof of the integrity of the electronic documents system by or in which the document was stored, or (b) if an evidentiary presumption is established regarding secure electronic signatures.Footnote 413

A.2.7   Non-disclosure of specified public interest i​nformation

Sections 37-38.16 of the Canada Evidence Act address the balancing that must occur with respect to the disclosure of evidence relating to a specified public interest, international relations, national defence, or national security in judicial or other proceedings. Such information may be deemed protected. A notice to the Attorney General of Canada may be made by a participant or an official (other than a participant) who believes that sensitive information or potentially injurious information is about to be disclosed during a proceeding.Footnote 414