Watt’s Manual of Criminal Evidence, 2022 Edition – What’s New?

Recent Supreme Court of Canada and Court of Appeal Cases include the following:

• R. v. Al-Enzi (ONCA) – Spousal testimonial privilege under Canada Evidence Act s. 4(3) does not survive divorce. For the privilege to be available, the communication in issue must have been made during the marriage. And the claimant must be a spouse at the time the privilege is claimed.

• R. v. Bernier (ABCA) – Prosecution is not entitled to ask defendant why victim would make an allegation against them. The questioning undermines the presumption of innocence and risks the trier of fact finding them guilty absent a credible explanation.

• R. v. Daou (ONCA) – A denial of liability coupled with a claim that defendant's purported confession is unreliable does not amount to an attack on the integrity of the investigation. A police officer may not testify that a confession is true. This falls under the Controlled Drugs and Substances Act.

• R. v. Dirksen (SKCA) – Evidence of defendant's conduct toward victim in period surrounding sexual assault may be relevant to motive and nature of relationship. Decisions to permit reopening and to declare a mistrial are discretionary and attract appellate deference.

• R. v. Farmer (NSCA) – Good character evidence is admissible on the issue of guilt or innocence. If the evidence of a particular character trait relates to a relevant issue or to D's credibility.

• Graham v. Canada (Minister of Justice) (BCCA) – Information obtained from third parties and passed to the client by a lawyer who simply acts as a conduit for the conveyance is not generally privileged. This falls under the Youth Criminal Justice Act.

• R. v. J.M. (ONCA) –Where a judge wishes to take judicial notice of a fact on their own initiative, the parties must be given an opportunity to consider and respond to the new information. Judicial notice does not extend to a subject on which expert evidence is required.

• R. v. Ledesma (ABCA) – In assessing probative value versus prejudicial effect, a trial judge does not decide whether the confession is true, but determines whether the evidence is worthy of being heard by the jury. In other words, the trial judge decides only threshold reliability.

• R. v. McCullough (ONCA) – The admissibility of post-offence conduct evidence and the formulation of limiting instructions are governed by the same principles that govern circumstantial evidence generally.

• R. v. Slatter (SCC) – When assessing the credibility and reliability of testimony given by a witness with an intellectual or developmental disability, courts should focus on the witness' veracity and their capacities as demonstrated by their ability to perceive, recall, and recount the relevant events, in light of the totality of the evidence.

• R. v. Swain (BCCA) – A trier of fact is entitled to consider the absence of evidence of a motive to fabricate in assessing credibility but cannot use the absence of such evidence to establish conclusively that V is telling the truth.

• R. v. Tenthorey (ONCA) – Proof that a witness lied to protect D does not amount to proof that D encouraged or directed the witness to do so absent an evidentiary foundation for a finding of collusion.

• R. c. Tremblay (QCCA) – The presence of a cellphone is not a circumstance requiring police officers to permit its use by a detained person to communicate with counsel. However, the presence of a cellphone is relevant to determining when the "first reasonable opportunity" to consult counsel arises.

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