Law of Evidence

Law of evidence, the body of regulations governing the proof of the existence of a fact before a court. It falls under federal and provincial legislation. In matters governed by the former, provisions of the Canada Evidence Act must be applied. Common law must also be applied. In criminal law, the rules of evidence are partly unwritten and derive from judgements in English and Canadian jurisprudence. One of the basic principles of Canadian criminal law, a principle which is now entrenched in the Canadian Charter of Rights and Freedoms, is that an accused is presumed innocent until proven guilty beyond reasonable doubt; because no accused person may be forced to testify against himself, the prosecution must supply evidence of the crime. It may be supplied by witnesses testifying under oath, by documentary evidence, by the exhibition of objects, as long as the rule of relevancy, which determines the admissibility of evidence in criminal cases, is respected and there is no violation of the various exclusionary rules.

According to these rules, anything that might establish the guilt or innocence of the accused may be admitted as evidence, the most important exception being hearsay. Generally, oral or written statements made outside the court, unless they are made by the accused, are not admissible for the truth of their contents. The most recent change in this area allows out of court statements to be considered for the truth of their contents if that evidence is necessary and if there is some guarantee of its reliability. As long as it was free and voluntary, any statement by the accused acknowledging commission of the crime may be introduced to establish guilt.

Privileged communications between lawyers and clients are also excluded; no lawyers may be obliged to testify concerning matters confided to them in the exercise of their profession. Evidence obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter is to be excluded if it is established that its admission would bring the administration of justice into disrepute.

Provincial Civil Cases

In provincial civil cases the rules of evidence derive from each provincial legislature. The rules governing how evidence is presented are largely the same in all provinces since Québec has adopted the English model, which is based on adversarial procedure, meaning that each party is responsible for proving the facts which it invokes; and in all provinces, witnesses must in principle be heard before an open court, where they are first questioned by the lawyer of the party who has called them and then cross-examined by the lawyer of the opposing party.

The distinction between the law of evidence in Québec and in the common-law provinces lies in the provisions governing the admissibility of evidence. In the latter, the basic principle is still the rule of relevancy, from which flows the principle of the freedom of means of obtaining evidence. In Québec law, however, evidence concerning contracts must be presented in writing, not orally, although oral testimony may be permitted in a limited number of cases; eg, commercial transactions. Another unique feature of Québec law is called "authentic writing," writing drawn up by a public officer; eg, a notary public. An advantage of an authentic writing is that nobody may prove it false without having first obtained permission from the court to do so and without thereby calling into question the public officer who received it.

Variations in Laws of Evidence

In recent years, considerable concern has been expressed regarding the variation of the laws of evidence among provinces and between federal and provincial courts. In 1975 the Law Reform Commission of Canada presented a report to Parliament recommending an evidence code which would replace existing common law. The Ontario Law Reform Commission has also proposed changes in rules of evidence, though its recommendations differ significantly from those of the LRCC. The Uniform Law Conference of Canada, a body composed of commissioners appointed by each provincial government to attend conferences organized for the purpose of promoting uniformity of legislation throughout Canada, responded by recommending a task force to prepare a Uniform Evidence Act which, presented in 1981, was adopted by the conference and proposed as a legislative model for Parliament and the provincial assemblies. Federal and provincial work is being done, but no evidence bills have as yet been passed.