Why Some Evidence is Excluded
Justice J. E. Scanlan
Nova Scotia Supreme Court
November, 2003

Introduction

This paper is intended as a cursory review of some types of evidence which are excluded; no single paper could look at all the rules on areas of exclusion in depth. The rules or statutes which limit the admissibility of evidence are rooted in the decision to ensure that accused persons have a fair trial based only on the most reliable evidence available. This means guilt or innocence is not based on rumor, speculation or reputation. An accused as we will see is not tried based on what he/ she may have done before but instead on the evidence related to the matter in issue.

The issue of guilt or innocence is not the only societal concern. As will be noted in this paper, society and legislation recognize that other interests are also at stake. Recent legislation for example recognizes that victims have interests which must be protected and in some cases evidence is excluded to protect those victims. In other situations the fundamental rights of all persons in our society are best protected by insuring that the specific rights as enunciated in the Canadian Charter of Rights and Freedoms take precedence over the issue of whether or not a crime has been committed. Charter rights for all, are sometimes best reinforced through the exclusion of evidence in a single case.

The overriding objective in excluding some evidence is to ensure that only the most reliable evidence is put before the trier of a case. The goal is to ensure that only the guilty are convicted. As for the Charter, society at large has an interest in knowing that fundamental rights, freedoms and protections are recognized and protected. That broader interest goes beyond the issue of guilt or innocence in a particular case.

Many matters in court involve private disputes between parties. We refer to those as civil as opposed to criminal cases. This may include things such as matrimonial disputes, contract disputes, probate issues. The list could go on. There are many rules of evidence developed specifically for those types of cases. There is an overlap in criminal and civil law as regards rules of evidence but many rules of evidence relate specifically to criminal proceedings. For the sake of brevity, I deal mainly with criminal rules of evidence. The Criminal Code and Charter have a substantial impact on the evidence received in Court in criminal matters. In addition, common law rules of evidence as developed by the Courts apply to exclude certain types of evidence.

The term ‘evidence’ has a very broad meaning. In some instances it refers to physical items, for example things found at a crime scene or located elsewhere as the result of a search. It may also include statements from victims, witnesses or an accused. In addition it may include testimony from someone who was not at the scene, for example an expert in something such as accident reconstruction or chemical analysis. The list could go on but serves to illustrate the broad meaning of the term ‘evidence’.

Of the three means by which evidence is excluded I refer first to evidence which is excluded by statute. Courts have little discretion in terms of admitting evidence which is prohibited by statute. By way of example, I refer to the record of criminal convictions of an accused person in criminal proceedings. Another example is private medical records of a witness. The second category of exclusion I refer to, results from the operation of a statute even though the statute may not specifically say that the evidence is inadmissible. In this regard, I refer to provisions in the Charter which, when applied, may preclude the admission of evidence in some cases. As with the first category, I note the Charter has paramount application and the Courts have no option but to accept and apply the Charter. The third and final area of exclusion to which I refer is based on the common law rules of evidence. These rules have been developed by the Courts, in some cases going back hundreds of years. The common law example I will use is the rule excluding hearsay evidence. The common law rules can be and are changed by the Courts in response to specific issues or in response to the realities of modern technology or society.

It is not my intention to discuss any of the exclusionary provisions in detail. I instead attempt to illustrate how and why each exclusionary provision might operate.

 

Exclusion by statute

Statutory rules of evidence are created by elected officials. They pass laws which may prohibit courts from considering certain types of evidence. In some cases, for example with victim impact statements, legislators have in fact done just the opposite by requiring that the courts at the sentencing stage of criminal proceedings must take into account victim impact statements. Statutory rules of evidence are included in statutes such as the Criminal Code and The Canada Evidence Act. The Criminal Code of course does a lot more than just set out the rules of evidence. For example it defines many acts as crimes and prescribes penalties for those crimes.

Provisions of the Criminal Code, sections 278.1-278.9, place strict limitations on the access to and use of private medical records of witnesses, including complainants. Even when access to the records is ordered it is only after initial scrutiny by the Court, and subject to limitation in terms of publication or dissemination. This legislation is the result of a series of cases and earlier legislative attempts to balance the right of privacy of persons receiving medical treatment and the rights of an accused to a fair trial. For the purpose of this paper it is enough to point out that when patients seek medical treatment or counseling, one key to successful treatment may be an expectation that what is disclosed by the patient will remain confidential. Sections 278.1-278.9 deal with situations where evidence in those medical files may be essential to an accused person’s right to make full answer and defence in criminal proceedings. The statutory provisions apply to exclude evidence and even to limit access to the medical records unless certain threshold tests are met.

Perhaps a clearer example of evidence which is excluded by statute is the record of prior convictions of accused persons. Although a record of conviction may be considered in sentencing an offender during the trial on the issue of guilt or innocence, Section 12 of the Canada Evidence Act prohibits the asking of questions of an accused about prior convictions.
A record of prior convictions is not evidence which can be used as evidence against an accused for the purpose of determining guilt or innocence. There is an exception to this rule in cases of similar fact evidence which I do not discuss in detail here. The fact that an accused person has committed crimes in the past may well reflect on the character of that person but it is not proof the person has committed a crime he/she is later alleged to have committed. As I had indicated earlier, the objective is to ensure that only guilty persons are convicted.

We often see media reports related to prior convictions of an accused and the fact they were not disclosed to a jury as part of the evidence. Some even suggest that if a jury had that record of convictions a jury would surely have convicted in cases where they have acquitted. That comment alone highlights the logic in the exclusion of the evidence. Ask the question; should an accused person be tried based on the evidence related to the matter in issue or simply be convicted based on prior wrongdoing? I dare say most people, if they were accused of wrongdoing, would prefer being tried on the evidence specific to that case rather than on their past misdeeds. The risk of wrongful conviction would no doubt increase if the question asked was whether an accused committed a crime in the past, instead of asking the question of whether the evidence proves beyond a reasonable doubt that this accused committed this crime.

 

Evidence excluded as a result of the operation of legislative provisions

In this portion of the paper, I refer to situations where evidence may not be specifically mentioned in a statute as being inadmissible, but, through the interpretation and application of legislation the Courts have the power to exclude evidence. The most common example of this is seen in the application of the Canadian Charter of Rights and Freedoms. In this regard I refer for example to s.8 and s.10. Section 8 states:

Everyone has the right to be secure against unreasonable search or seizure.

Evidence which has been obtained as a result of an unreasonable search or seizure may be excluded by operation of the Charter. Enforcement of the accused’s rights is provided for under s. 24 of the Charter. Section 24 (1) and (2) provide:

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

If evidence was admitted after being obtained as the result of unreasonable searches it would likely encourage the use of unreasonable searches. The purpose of the Charter provision therefore is to protect society at large against random or unreasonable searches. The sections operate to protect society at large as much as an individual in a particular case.

Section 10 of the Charter is another legislative provision that often results in the exclusion of evidence. That section states in part:

Everyone has the right on arrest or detention:
(a) to be informed promptly of the reasons therefore;
(b) to retain and instruct counsel without delay and be informed of that right and ...

Again s. 24 of the Charter may be invoked to exclude evidence obtained during a breach of s.10 rights. Exclusion of evidence is only one possible remedy when a breach of fundamental rights has occurred. The number of situations in which the Charter has been argued and applied is as varied as the imagination of legal counsel.

The Charter is unique in terms of legislation in that it has an overriding application. If legislators attempt to pass laws which are contrary to the fundamental principals or rights as set out in the Charter they can be challenged in court and may be held to be invalid. I return to the point which I had made earlier; Parliament has enacted the Charter and the Courts must interpret and apply the legislative provisions. There is more judicial input in terms of deciding whether evidence will be excluded in these Charter cases as compared to a statutory provision specifically excluding evidence such as records of prior convictions.

If there has been an infringement of Charter rights there are remedies other than an exclusion of evidence. In some situations the Court for example may order a stay of proceedings. By way of example, I suggest that if a person has been unreasonably searched or has provided incriminating evidence after having been denied the right to counsel, the evidence obtained as a result of the Charter breach may be excluded. Parliament has determined which rights are fundamental rights and it is simply left to the Courts to decide what should be done in terms of remedy in situations where fundamental rights have been denied.

I simply pose the question of whether the reader would want to be the subject of arbitrary arrest, then denied the right to counsel only to have any incriminating statements made in those circumstances used against them without recourse. Exclusion of evidence is but one way to discourage breaches of fundamental rights.

 

Common Law rules excluding evidence

Many rules of evidence have been developed by the Courts. Persons appearing in courts, in theory at least should be able to predict what evidence will be admitted and what may be excluded. This is because courts usually will follow cases that have gone before and adopt or apply the reasoning in those earlier cases when it comes to rules of evidence . These rules have developed into what we refer to as common law rules of evidence. The common law rules of evidence have been developed by the Courts over many centuries. There are too many examples of common law rules which operate to exclude evidence for me to even mention in this paper. For illustration purposes I refer only to hearsay evidence. It may be because of too much TV courtroom drama, but many people have a sense of what they think hearsay is. In reality the term is so vague that it defies accurate description. I have heard many witnesses pause in giving their evidence and state “I can’t say that, it is hearsay.” I only wish I understood the rule so well as those witnesses think they do. My feeble attempt to explain it in a few words is to say that no utterance, spoken or written, made in the absence of an accused person may be adduced into evidence unless through the person who made the statement. Logically the reason for the rule is that such evidence is unreliable unless the maker of the statement is available for cross examination. Cross examination will test the veracity of the person making the statement. The cross examiner has an opportunity to inquire as to the evidence on which the person based their conclusions.

Most who have been involved in litigation will recall situations where a person made a statement and it turns out on cross examination that they were not a witness but formed an opinion based simply on what someone else has told them or what they think may have occurred. In other cases cross-examination discloses that a person has a motive for putting a particular spin on the storey or even fabricating evidence. Cross-examination gives the trier of the case, Judge or Jury, a chance to hear the witness and decide how much they should rely on the evidence.

The hearsay rule, because it is a common law rule of evidence, can be modified by the Courts. Such modifications recognize that in some cases there may be other factors which make the evidence reliable even though the person making the utterance is not present for the purpose of cross examination. Sometimes the admission of hearsay evidence makes more sense in the pursuit of the truth than excluding it.

There are so many exceptions to the hearsay rule that it is often said to be ‘a rule of exceptions.’ The exceptions have evolved just as the rule itself, over a long period. A few examples of the exceptions serve to illustrate how in some cases Courts have looked to the circumstances surrounding the utterances as being suggestive of the truth even when the person is not available for cross-examination.

As examples of exceptions to the rule against hearsay I refer first to medical (or business) records. They have been admitted in some cases without the necessity of having to call the person who prepared the documents. The Supreme Court of Canada in Ayres v. Venner [1970] S.C.R. 608 agreed nurses charts could be admitted without the author testifying. This exception recognized the inconvenience and cost of calling staff away from large institutions. It is also based on the assumption that it could be taken for granted that nurses had a duty to take accurate notes and had no other interest in the issue. The Court reasoned that it could be assumed the nurses notes were accurate. It was the duty to record, and the circumstances of recording, which added to the veracity of the records so as to allow for admission of the evidence even without cross examination.

Another exception is evidence of statements made by child witnesses in sexual abuse cases. In limited situations the evidence has been admitted without the necessity of the child witness testifying (see R. v. Khan [1990] 2 S.C.R. 532). In Khan the child’s hearsay statements to her mother were admitted because it might be too traumatic to call the child. Reliability is said to have resulted from the fact the child had no motive to fabricate her story and that a young child could not be expected to have detected knowledge of the sexual acts in question as to enable her to concoct such a story. (See also R. v. Smith [1991] 2 S.C.R. 915, R. v. Finta [1994] 1 S.C.R. 701 and R. v. B. (Mg.) [1993] 1 S.C.R. 740 for further discussion of the principle approach referred to in Khan)

In other situations declaration against personal interest have been admitted on the reasoning that a person is likely to speak the truth in a matter affecting his or her liberty or pocket book. (See R. v. O’Brien [1978] 1 S.C.R. 591). Again the exception to the hearsay rule looks to assess indicia of reliability in the absence of the author being available for cross-examination.

 

Summary

I have discussed three different situations where evidence is excluded. The first is the result of statutory provisions which prohibits the admission of certain types of evidence. Statutes reflect the wishes and priorities of elected officials. A second type of exclusion is evidence obtained as a result of a breach of fundamental Charter rights. The Charter of course is the creation of elected officials and the Courts function is to simply interpret and apply the Charter as it has been adopted. In considering exclusion of evidence as a result of a Charter breach there is a recognition there is a greater public interest being protected. The fundamental rights recognized in the Charter are rights afforded to society at large but the societal rights are protected by beginning at the individual level. The last exclusionary rules discussed were established by the Courts, the common law rule. Each of these exclusionary examples aim to protect the rights of accused persons by only permitting evidence which is reliable and relevant to the issue before the Court.

Statutory provisions limiting access to medical records recognizes that persons seeking medical treatment also have rights and the provisions attempt to balance the rights of both patients and accused.

The ultimate goal of the rules is to seek the truth using the best evidence available.

Justice J. E. Scanlan
Halifax, NS
November, 2003