Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, 32nd Parl, 1st Sess, No 66 (22 June 1983)
By: Canada (Parliament)
Citation: Canada, Parliament, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, 32nd Parl, 1st Sess, No 66 (23 June 1983).
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Thirty-second Parliament, 1980-81-82-83
SENATE OF CANADA
Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
The Honourable JOAN NEIMAN
Wednesday, June 22, 1983
Issue No. 66
Fourteenth proceedings on:
Bill S-33, “An Act to give effect, for
Canada, to the Uniform Evidence Act
adopted by the Uniform Law Conference
(See back cover)
THE STANDING SENATE COMMITTEE ON
LEGAL AND CONSTITUTIONAL AFFAIRS
The Honourable Joan Neiman, Chairman
The Honourable Richard A. Donahoe, Deputy Chairman
The Honourable Senators
*Ex Officio Members
ORDER OF REFERENCE
Extract from the Minutes of the Proceedings of the Senate, December 7, 1982:
“Pursuant to the Order of the Day, the Senate resumed the debate on the motion of the Honourable Senator Lewis, seconded by the Honourable Senator Barrow, for the second reading of the Bill S-33, intituled: “An Act to give effect, for Canada, to the Uniform Evidence Act adopted by the Uniform Law Conference of Canada”.
After debate, and-
The question being put on the motion, it was- Resolved in the affirmative.
The Bill was then read the second time.
The Honourable Senator Frith for the Honourable Senator Lewis moved, seconded by the Honourable Senator Olson, P.C., that the Bill be referred to the Standing Senate Committee on Legal and Constitutional Affairs.
The question being put on motion, it was- Resolved in the affirmative.”
Charles A. Lussier
Clerk of the Senate
MINUTES OF PROCEEDINGS
WEDNESDAY, JUNE 22, 1983
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 3:15 p.m., the Chairman, the Honourable Senator Joan B. Neiman, presiding.
Present: The Honourable Senators Asselin, Bosa, Deschatelets, Flynn, Godfrey, Haidasz, Lapointe, Neiman, Nurgitz and Rousseau. (10)
In attendance: Mrs. Monique Hebert, Research Officer, Law and Government Division, Research Branch, Library of Parliament.
From the Canadian Bar Association:
Mr. Yves Fortier, Q.C., President.
From the Special Committee on S-33 (of the C.B.A.):
Mr. John Sopinka, Q.C.;
Mr. Mark Rosenberg.
From the Bar of Quebec:
M. le bâtonnier Louis Lebel;
Mr. Jacques Fortin;
Mr. Gerald Tremblay.
From the Law, Science and Technology Committee (of the C.B.A.):
Mr. Derek Guthrie.
The Committee resumed consideration of Bill S-33 intituled: “An Act to give effect, for Canada, to the Uniform Evidence Act adopted by the Uniform Law Conference of Canada”.
On motion duly put, it was agreed,-That the briefs submitted by the Canadian Bar Association and by the Bar of Quebec, be printed as an appendices to the Committee’s proceedings. (The brief of the Bar of Quebec is printed as Appendix 66-A to this day’s Proceedings).
On direction of the Chairman, the brief of the Canadian Bar Association will be printed as an appendix to Issue No. 68 of this Committee, to be published at a later date.
The witnesses made a statement and answered questions.
At 6:10 p.m., the Committee adjourned until Thursday, June 23, 1983 at 11:15 a.m.
Clerk of the Committee
Ottawa, Wednesday, June 22, 1983
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-33, to give effect, for Canada, to the Uniform Evidence Act adopted by the Uniform Law Conference of Canada, met this day at 2.30 p.m. to give consideration to the bill.
Senator Joan Neiman (Chairman) in the Chair.
The Chairman: Honourable senators, it gives me a great deal of pleasure to welcome again the representatives of the Canadian Bar Association. We are pleased to have before us today such a distinguished-perhaps even overwhelmingrepresentation from the bar.
We have received two briefs, one of which is very large, to which Mr. Fortier will be referring, and another separate brief from the Bar of Quebec. Before we proceed, I should like a motion to have these two briefs form part of the record of the proceedings of the day. I understand that we are not going to hear a complete review of the briefs as such, but will be given a separate and somewhat shorter presentation.
Senator Lapointe: I so move.
(For text of briefs see p. A:1.)
The Chairman: Mr. Fortier, perhaps you would be good enough to introduce your colleagues to the members of the committee, after which you may proceed with your presentation.
Mr. Yves Fortier, Q.C., President, Canadian Bar Association: Thank you, Madam Chairman. First of all, I would like to thank you for inviting the Canadian Bar Association to appear once again before your Committee to share with you our concerns and criticisms, all constructive I hope, on Bill S-33.
You are quite correct in saying that this is our second appearance before the Committee. A delegation from the Canadian Bar Association headed by my colleague and friend seated to my left, Mr. Robert McKercher, the national Vice- President, first appeared before your Committee last March 24 to give you what I would call a “bird’s eye view” of Bill S-33. He was supported at that time by the resolution of the Council of the Canadian Bar which, moreover, was mentioned in the bried tabled on that same day, namely March 24. This resolution by the National Council of the Canadian Bar, which had been adopted at the Bar meetings held in Banff in February, concluded the following and I quote:
Be it resolved that the proposed Canada Evidence Act should not be enacted in its present form. This, therefore, was the mandate which the CBA had received from its legislators, members of council. Madam Chairman, honourable senators, when Mr. McKercher appeared before you on March 24 as head of the delegation, he said, and I quote from page 49.6 of the transcript of the proceedings:
We are still in the process of formulating a complete response to Bill S-33.
He went on to say:
In the important area of law, science and technology, a CBA committee is currently examining civil evidentiary issues relating to computers. Other CBA sections are equally interested in the provisions of this bill. Therefore, we suggest to this committee that this represents an initial opportunity to outline some of the potential difficulties that Bill S-33 may cause before Canadian courts …
Therefore, our presence here today is but a logical extension, if you wish, of our first appearance on March 24,
Allow me to tell honourable senators, if I may, what we have done since we appeared before you three months ago. Much of the work was influenced, Madam Chairman, by the meeting which I was privileged to have with you and the Minister of Justice, the Honourable Mark MacGuigan, at the end of April, at which time you very generously reminded me that we had promised to come back and asked when we would be at the rendezvous. I replied that we were doing everything in our power to arrange matters in such a way that we would be attending this committee meeting before Parliament adjourned at the end of June. We subsequently spoke on the telephone and you accommodated our request for a little more time. I would like to publicly acknowledge that gesture and extend to you my thanks and the thanks of the members of the association.
What we have done, Madam Chairman, and honourable senators, is this: we parcelled out 15 different chapters of Bill S-33 to 15 of our members, whose names appear on the fourth page of what I would call the blue book. This group was made up of judges, lawyers and academics. We asked each and every one of them first to examine the chapter assigned to him or her and to note the effects of those sections on the current state of the law of evidence in Canada; second, whether the position taken in Bill S-33 would beneficially affect the law of evidence; and third, if Bill S-33 was perceived not to promote beneficial changes, to offer constructive alternatives-and I underline the word “constructive.”
I am delighted and very quatified that, with only a few exceptions, the members to whom we assigned this work delivered the merchandise. On account of illness, in one case, and because of a protracted, unexpected hearing in another case, unfortunately we do not have papers concerning sections 56 to 63, sections 85 to 99 and sections 125 to 160 of Bill S-33. We do, however, have comments which I believe are very learned and which answer the mandate, if you wish, which we gave to those individuals concerning all of the other provisions of Bill S-33.
After the papers were received, we then sent them to an umbrella committee consisting of chairpersons of our national sections who have a very real interest in the disposition of Bill
S-33-civil litigation, criminal justice, family law and business law, to name but four of them. We asked members of that umbrella committee to please review those papers and to give us their comments so that some kind of a logical order would be given to the Canadian Bar Association’s presentation. That has been done.
On Friday of last week, racing against the clock, the brief was delivered to the secretary of your committee, Madam Chairman.
Parallel with this work, Le Barreau du Quebec [Translation] agreed to consider jointly with the Canadian Bar Bill S-33. I am very pleased with this work carried out jointly by the Association which represents all lawyers in Quebec on the one hand and by the Canadian Bar Association on the other hand. This work illustrates the benefits of federalism. You therefore have under separate cover the brief drafted by the Joint Committee of the Canadian Bar and the Quebec Bar. The brief focusses on the Bill and presents an overview by the civil law experts. It also focusses on the smallest details of the Bill and predicts that the legislation will have on impact on the practice of both civil and criminal law in Quebec.
Our third presentation to you today, Madam Chairman and honourable senators, is that of a very active member of the Law, Science and Technology Committee of the Canadian Bar Association, who examined Bill S-33 from the point of view of rules of evidence as they relate to computers. These are the three presentations which this delegation is going to present to you today. All of the members-whom I will introduce in a few seconds-stand ready, willing and able, I am sure, to answer your questions.
If I may, I would like to say this: I have had the advantage of travelling extensively across Canada in recent months in my capacity as president of the Canadian Bar Association. Everywhere I have been, in conversations with jurists-judges and lawyers alike-and academics, I have heard concern expressed about Bill S-33. The common denominator which runs through the comments which I have received is that it is too Crown oriented.
This view comes from crown attorneys as well as defence counsel; it comes from judges trained in the civil as well as in the common law; it comes from judges who sit both on criminal and on civil cases. One judge, whom I would rather not identify, recently told me the following, which I thought might be of interest to honourable senators: That if it is not amended-if the bill is not changed substantially-he and his colleagues in Canada are going to have to perform quite a balancing act. They are going to have to lean over backwards whenever a provision of Bill S-33 is used, either to admit evidence or to prevent the introduction of evidence. They are going to have to bend over backwards in order to ensure not only that justice is done but that justice is seen to be done. I thought that honourable senators would be interested in hearing this comment.
In my respectful submission there is no other proposed legislation, either before the Senate or before the other place,
at the moment which is of more immediate interest to the members of the profession. Present here this afternoon as members of the delegation we have my colleagues, the National Vice-President, Mr. Robert McKercher, Q.C., from Saskatoon, and [Translation] To my left is the batonnier for Quebec, Mr. Louis Lebel, who insisted on attending the proceedings here today. So, once again, thank you for inviting us to appear a second time before your Committee.
I would like to publicly acknowledge the work of many of the members of the association, some of whom are present today but many of whom are not, who have burned the midnight oil in order to see that our comments respecting Bill S-33 were delivered to honourable senators on time. There are a variety of messages which are offered in conclusion, and I think I can summarize these conclusions as follows. I believe that members of the Justice Department, who have worked long and hard to produce Bill S-33, have done an admirable job. I think that these same people should heed the comments which are offered by associations such as the Canadian Bar Association because I repeat that these comments are intended to be constructive. I think the drafters of the legislation should heed those comments and that, wherever possible, they should revise Bill S-33.
Since he should attempt to find other solutions, before giving the floor to those who have something more substantial to say, allow me to introduce to you the lawyers who are here with me this afternoon. First of all, I have already presented to you my colleague, Mr. Robert McKercher, National Association Vice-President. I would also like to introduce to you the members of the Quebec Bar delegation: batonnier Louis Lebel, Professor Jacques Fortin, Mr. Gustave Hebert and Mr. Gerald Tremblay. From the Canadian Bar, Mr. John Sopinka, Q.C., from Toronto, along with Mr. Patrick Healy, [Text] who was the author of one of the chapters of the blue book; Mr. Marc Rosenberg, and my partner, Derek Guthrie. Mr. Guthrie will be addressing the law, science and technology portion of Bill S-33. Finally, last but not least, from the national office, le directeur executif, M. le bAtonnier, Me Bernard Blanchard; my right-hand man in more ways than one, Mr. Eugene Oscapella; and Mr. Lorey Miller, also of the national office.
Without any further ado, Madam Chairman, if I may, I will now give the floor to Mr. John Sopinka who will summarize the aspects of civil procedure in the blue brief; he will be followed by [Text] Me Rosenberg, who will address the criminal law aspect of the brief. Needless to say, they will both be prepared to answer questions pertaining to any of the chapters in the blue book. [Translation] Thank you.
Mr. John Sopinka, Q.C., Toronto, Member of Special Committee on S-33 (Of Canadian Bar Association): Madam Chairman, honourable senators, I will deal with the rule against hearsay, and I will start off by quoting a statement made by the great jurist Caesar Wright, who said that “no layman could ever hope to understand the rules of evidence and no lawyer could ever hope to explain them to a layman.”
That is a rather telling comment, because I think we sometimes lose sight of the fact that the rules of evidence are not just for lawyers. Probably their most important operation is in a jury trial, where that very thing has to happen: A layman has to understand the rules of evidence and a lawyer has to try to explain them to him.
That points to the fact that in any revision of the rules of evidence an attempt should be made to simplify them and to eliminate some of the more technical language. I think it is a step in the right direction that in this bill with respect to the rule against hearsay, which is probably the most commonly encountered rule in all of the rules of evidence, the drafters have sought to do that.
In a text which I co-authored we thought that when the rules were revised they should provide that all hearsay would be admissible with certain exceptions. The drafters of this bill have taken the opposite tack, which is more in conformity with the present situation, to say that all new hearsay is excluded except in certain circumstances, and those exceptions have been considerably broadened over what they were at common law.
That was a step that was already being furthered by the judiciary, and in a number of cases there were more exceptions created.
In order to ensure that the old rigidity does not creep back into the rules of evidence, there is a general provision that a court can create additional exceptions. If you have the book before you, I refer to that provision on page 34. With respect to the specific provisions I have some criticisms. Where I do not make criticisms that means that I consider the revision desirable.
I will go over fairly quickly the criticisms that I have and the improvements that I suggest. Of course I am aware of the fact that I am not necessarily talking to lawyers so 1 will try to keep it simple. If I cannot explain the rules of evidence to you, then that means that probably these rules are still too technical.
Subsection 45(2), which appears at page 35 of the text, provides that:
Hearsay is admissible if the parties agree and the court consents to its admission.
That is fine in criminal cases, but we do not need the consent of the court in civil cases, because I can tell you that the two parties can get together and can agree to any set of facts they wish to agree to, irrespective of whether those facts are borne out by the evidence, and the judge is bound by that agreement as to fact and it would therefore be a very serious retrograde step to say that you would have to get the consent of the court for the parties to agree to any evidence.
Subsection 45(4) provides that:
Whether an exception is properly created under subsection (3) is a question of law that is subject to appeal.
Well, what if an exception is not created? That should also be a question of law and subject to appeal and indeed in the famous case, which is well known to all lawyers, of Ares v. Venner it was with respect to the refusal to create an exception that the appeal was taken to the Supreme Court of Canada.
There are then some exceptions that deal with exceptions where the declarant is available. Some of these are quite technical, but the one I want to deal with is at page 36. Section 47 provides that:
A record admissible under section 113 as past recollection recorded is admissible for all purposes.
I don’t think any layman you would explain that to could possibly understand the law as it stood before. If a witness is called and has absolutely no recollection of a particular event but is shown some note or memorandum that he made previously and looks at it and says, “That is my writing and, if I wrote that, it must be true,” the law as it stood was that the note itself was not evidence; it was what he said that was evidence.
It does not seem to make much difference, so far as I am concerned, whether or not his reading of the note is evidence or the record is evidence. All this section does is change the common law so that a note or memorandum is itself evidence. I think that that is a positive step.
On page 38 I have set out a number of sections which deal with previous statements of a witness who is called to give evidence. The common law was very tough on the admissibility of such statements. It did not favour a witness who was giving evidence putting in previous evidence that he had given.
These are very technical and I do not intend to go into all the technicalities of the common law, but as I see the object I consider it laudable and I set it out on page 39 of the material. I say:
The Task Force wished to ensure that only prior statements, the reliability of which can be guaranteed, would be admitted in evidence.
In this bill they considered that the reliability of such statements could only be guaranteed if they were made under oath or affirmation and were subject to cross-examination. Only those would be admitted to evidence for all purposes.
As I point out, I do not think they achieved that object, because so many of these sections are conflicting that it appears to me that they must have had two separate committees working on different aspects of the matter and that they did not communicate, because in fact, notwithstanding all these sections, you end up with very little.
Honourable senators, rather than going through these criticisms and how these sections interreact I suggest that the bill should be amended as set out at page 42. I can summarize all that by saying that previous statements, whether inconsistent
or consistent, should be admissible for all purposes except where they are protected by the Charter. The Charter, which must be taken into account in dealing with this area, now says that any witness who testifies, whether or not he claims the privilege, cannot have his evidence used against him to incriminate him in any other proceeding. That means that you could never introduce a statement made in a previous case against a witness and say that it was introduced for the purpose of proving the truth of the contents of the statement. Therefore, that kind of statement can be used only for the purpose of attacking the credibility of a witness. I say that, except in that kind of statement, whether or not a previous statement was made under oath or affirmation or otherwise, it should be admissible not for the limited purpose it has now of attacking credibility but for all purposes. The reason I say that is that I have never understood any juror to be able to grasp the distinction between using a statement merely for the purpose of testing credibility and using it for all purposes. Let me give you an example. If a witness says, “I saw X,” and he is cross-examined on a statement in which he said, “I did not see X,” the present law is that the jury can say, “Well, we can use that statement so that we don’t believe him when he says, ‘I saw X,’ but we cannot use that statement to find that he did not see X.” That is nonsense. No juror can understand that distinction. Mr. Justice Estey doesn’t think that distinction should exist, and he is a jurist of great experience, and I think it should be eliminated and that the formalism attaching to statements made under oath and affirmation should be taken out of the bill.
I now turn to the next area, where either the declarant or the testimony is unavailable. This was the approach we followed: At common law there were two criteria on which an exception to the hearsay rule was based. There was the unavailability of the declarant-and at common law that always meant that he was dead; and there was the presence of circumstances that made the declaration trustworthy. The approach taken by the drafters of Bill S-33 is, in civil cases, to expand considerably the situations in which the declarant is considered to be unavailable. The second criterion, that is the assurance that the statement is trustworthy, is simply ignored except in the case of an admission of a statement based on expense or inconvenience, in which case the judge can require the witness to be produced for cross-examination.
In criminal cases, however, there is a very slight change. Unavailability is expanded to include not only death but situations in which the witness is incompetent or is unable to testify by reason of physical or mental condition. I think that is certainly a warranted extension, because the evidence is just as unavailable if the witness is unable to testify as it is if the
witness is dead. It does not make it any more or less reliable one way or the other.
I think that is a desirable extension. I thought they should have extended it to include other things, but I notice that the judge can create other exceptions, and bearing in mind what the president said about the view of the criminal bar and many others, that this statute is too crown-minded, that could be alleviated to some extent by the judge being much more relaxed or relaxing the rules with respect to evidence tendered by the accused. Even under the common law very often evidence that is of tenuous admissibility is let in by a judge when it is tendered by the accused rather than by the Crown. With respect to the hearsay rule, if the hearsay rule is too crown-minded, and I don’t think it is, that is one way in which that could be taken care of.
The Chairman: Mr. Sopinka, would you like to recommend that there be further exceptions or extensions, or do you feel that that should be left in the form it is now?
Mr. Sopinka: I think it can be left to the judge, because without a lot of further study I am not sure just how many further exceptions there should be in criminal cases. I know that the criminal bar is quite concerned about the Crown being allowed to introduce hearsay evidence where the declarant is unavailable. So I think that it is better dealt with by the judge at his discretion. He knows the particular case and how important the evidence is.
However, there might be a provision inserted in the bill expressly to allow the judge to be more lenient in exercising his discretion in creating exceptions in favour of the accused than he is with respect to the Crown. Or perhaps something could be inserted to encourage him to do that.
Dealing now with the exceptions in criminal cases, I have already said that the only change in the criteria in criminal cases is that unavailability is advanced this one step and then the specific instances in which the exceptions exist are the same as those at common law.
Let me deal first with dying declarations. If a witness is unavailable, a dying declaration can be introduced. That is much the same as the exception at common law, but it is limited to charges of murder, manslaughter and criminal negligence. The theory is that you should not allow that kind of evidence in in less serious charges. Frankly, I think that is faulty reasoning, because either dying declarations are trustworthy evidence or they are not. If they are trustworthy evidence, then they should be admitted in all cases. If they are not trustworthy evidence, why would you admit them in those cases where the consequences are the most grave for the accused? In my opinion it is either all or nothing, and I say that it should be all, because it is an exception that has existed at common law and should be preserved.
The only other exception in criminal cases I wish to deal with is contained at page 49, section 55, declarations against pecuniary, proprietary or penal interest. The Federal/Provincial Task Force on Uniform Rules of Evidence recommended that, when dealing with this kind of declaration, “unavailable” should include “beyond the court’s process.” This may be an area where perhaps the crown attorneys had too much influence. They were concerned that a kind of situation would develop in which, every time the accused wanted a defence, he would get somebody outside the jurisdiction to say, “I did it.” Then, because that person was beyond the Court’s process, that statement would be admissible and it would raise a reasonable doubt. So that was left out of the definition of “unavailable.”
Well, quite frankly, just because the odd, phoney piece of evidence is let in does not mean that they should exclude all others which may not be phoney. is phoney or not can be decided by a judge when the evidence is allowed in. But if you do not allow any of it in, you never even get a chance to rule on whether it is phoney or not. So 1 think they should have accepted the recommendation of the task force there. That is all I have to say about hearsay evidence, Madam Chairman.
The Chairman: Thank you, Mr. Sopinka.
Mr. Fortier: With your permission, Madam Chairman, honourable senators, I would ask Mr. Marc Rosenberg to speak to evidence in criminal matters specifically, and then the whole blue book can become the object of discussion and questions, and we will try to reply to those questions.
The Chairman: Mr. Rosenberg.
Mr. Marc Rosenberg, Toronto, Member of Special Committee on S-33 (Canadian Bar Association): Thank you, Madam Chairman. Honourable senators, as you are aware, I wrote the first part of this blue book on burden of proof. However, I will attempt to deal with some of the criminal law matters throughout the entire book.
Mr. Tollefson and his committee identified most of the policy choices in their report to the Uniformity Commissioners, and I would like to highlight certain areas where I feel, and the Canadian Bar Association feels, that the correct choice was not made and thus the commissioners failed the test of whether or not this legislation has merit and whether it represents fairness, rationality and clarity.
Many of the provisions incorporated in bill S-33 represent the correct choice, of course. For example, section 165 of the bill, the privilege for psychiatric assessment, removes a longexisting unfairness which many judges and lawyers had commented on over the years. Section 168, which clarifies the spousal privilege area, is a welcome clarification of the law. Section 65, which removes the DeClercq rule, which has been a thorn in the sides of many judges and defence counsel and even many crown counsel, has been removed.
On the other hand, there are other areas where the policy choice, in my submission, is unfair and is really not justified on any rational basis. Much of what I will be saying will touch on the Charter of Rights, because I think that the drafters of this bill did not pay enough attention to the provisions of the Canadian Charter of Rights and Freedoms. We have become very conscious of that in the last year or so. And we have tended to look at many of these provisions in light of the Charter which represents a determination of basic principles of fairness, and any provision which appears to conflict with the Charter should be closely examined.
One of the fundamental rights that is guaranteed by the Charter in section 11(d) is the presumption of innocence. The practical way in which common law countries have always considered or implemented the presumption of innocence is to require the prosecution or the Crown to prove every element of the offence beyond a reasonable doubt. This principle has never been absolute, but section 1 of the Charter requires that any limitation of this fundamental requirement should be reasonably justified.
In looking at the specific provisions of Bill S-33, section 11(1) of that bill indicates the basic rule. That is that the Crown must prove each element of the offence beyond a reasonable doubt. The problem occurs, in my view, in section 11(3) which imposes the accused to disprove, on a balance of probabilities, any fact in issue where an enactment expressly imposes a legal burden on an accused of that fact. Just so that there is no doubt about it, that is not inconsistent with the law as it stands at the present time, leaving aside the Charter. That is, at common law, it had been held that it was open to Parliament or the legislature to shift the burden of proof of a specific fact or element to the accused, or to the defence. In my submission to you, however, the point is that in drafting a new bill, in light of the Charter of Rights and Freedoms you should be conscious that we now have entrenched the presumption of innocence in section 11(d) of the Charter.
The sections of this proposed legislation, Bill S-33, particularly section 11 and those sections that surround it, are not only unclear, in my view, but they may very well offend the Charter of Rights and Freedoms. Section 11(1) is unclear because it says that the burden is on the Crown to prove every essential element of the offence. Then you look at section 11(3) and it permits the shifting of the burden to the accused on a balance of probabilities of any fact in issue. You will get, therefore, a whole body of case law that will grow up as to what the difference is between an element of an offence as opposed to a fact in issue. To me, the clarity for which we should strive in this kind of bill has been lost in this provision. It is unclear in the sense that the accused may be convicted of an offence, even though the trier of fact has a doubt as to his guilt, because the accused has failed to establish on a balance of probabilities that he was innocent.
The most glaring example of that, up until now, has been he reverse onus in the Narcotic Control Act. As you are probably aware, the reverse onus in this provision requires the accused to prove on the balance of probabilities that he did not have a drug for the purposes of trafficking. Three provincial courts of appeal have now struck down that provision and in my submission to you, you run the risk of this provision also being struck down. It is a general provision and it simply may not be able to stand in light of the Charter.
It is unfair, in our view, to impose upon the accused the burden to prove on a balance of probabilities that he is innocent. It is unfair for him to hear a judge say, “Well, I may have a doubt as to your guilt, but you have not proved on a balance of probabilities that you are innocent.” We have, in our office, dealt with people on that basis; people who have been convicted have heard those words said by a judge, and it is difficult to explain to a layman that while he is innocent the law requires that he be convicted.
Section 12 of Bill S-33, in my view, suffers from the same fundamental defect. At pages 9 to 13 of our brief, I have dealt at length with the problems that section 12 represents. While it may be fair and even constitutional to shift the burden of proof of a particular defence or excuse to the accused, in our view it is not fair to do so with every excuse, which is the essential effect of section 12.
Section 12 is an extension of a provision that is already in the Criminal Code of Canada. Section 730(2) of the Code provides that, in summary conviction offences, the burden is on the accused, the defendant, to prove any exemption or exception, proviso et cetera, which is the same as the present section 12. What you have to understand about section 12 is that it now applies not only to summary conviction offences, which are minor offences, but to all indictable offences as well. That is, the whole range of offences. The exclusion from section 12, effectively, are what are referred to as defences of general application which may relieve against the reversal of the burden of proof of certain defences, but as I have set out in the paper, it raises real difficulties of interpretation. No one knows for sure what an excuse is as opposed to a defence; no one knows for sure what a defence of general application is as opposed to a defence of special application, or a defence in a particular section. Again, leaving aside questions of fairness and constitutionality, where is the clarity that this kind of legislation should bring to bear? In my submission, it is simply not there.
The practical concern is that the Crown should not bear the burden of disproving any fanciful defence or every fanciful excuse that may be available to an accused. That, however, can be met by a simple provision that puts the evidentiary burden on the accused. If he wants to rely on a particular defence, then he has to at least make it a live issue by cross-examination of Crown witnesses, by his own testimony and by testimony of other witnesses. That would be sufficient,
and that is what we have proposed in the paper. It would be a retrograde step, in my view, to take this section, which has been heavily criticized as it stood in the Criminal Code of Canada, section 730(2), and make it apply to the whole range of offences.
The next area that I would like to refer to is the area of character evidence. This is one of the most difficult areas in the law of evidence and most practitioners, certainly of criminal law, would welcome a statute which sets out the rules in a clear and rational way, leaving aside which side of the fence they have to be on, be it Crown or defence oriented. This is one area where it is a welcome addition to have the rules set out. Quite frankly, the cases go all over the map in this area and the common law has not been dealing with this area very satisfactorily. There are, however, some problems with the group of sections 23 to 32 and the way that it has been dealt with in Bill S-33. For example, section 25(2) provides that, where an accused has put his character in issue, the prosecution may adduce evidence of any character trait of the accused. I would hope and expect that that does not mean what it says and that that section is limited by the rule of relevancy in section 22. In other words, it has to be a character trait that is relevant. However, you have given the prosecution a specific power or opportunity to adduce evidence and I think it should be made clear that it is intended that it should only be relevant character traits which the prosecution can adduce.
Section 28 presents another serious problem. My partner, Mr. Edward Greenspan, was here previously and dealt extensively with that section, so I do not think I need to go into it. The problem that he raised, the specific overruling of the Regina v. Scopelliti case is a serious matter and is something that I think has to be looked at again.
I will turn now, if I might, to the area of confessions which involves a group of sections, starting at section 63 of the bill. This is discussed in our paper, commencing at page 56.
This is an important area of the law and a difficult one. It would take several hours to really do justice to the provisions dealing with the confession rule alone. However, let me point out what I consider to be very serious problems.
First of all, we have a basic difficulty with the definition of “voluntary” as it is defined in clause 63. In my view, the task force and Bill S-33 have gone off the track with respect to the definition of “voluntary.” The bill adopts a limited definition; the definition, as you have heard from other witnesses who have explained Ibrahim v. The King-an old English casedoes not fully express the true concept of voluntariness which has been adopted in case law.
There are differences of opinion; some people are ofthe view that the definition of “voluntary” currently in the bill would cover a wide range-that is, it would also incorporate exclusion of statements on the basis of oppression and on the basis as set out in a group of cases decided by the Supreme Court of Canada. In that regard, I would cite Horvath v. The Queen and Ward v. The Queen. Those cases, and others, really expanded the definition of “voluntariness” to give it the ordinary meaning.
In Canada we do not have anything like the Judges’ Rules they have in Britain; nor do we have the Miranda exclusionary rule that they have in the United States. So, in my view, it is important that we have a flexible exclusionary rule for confessions. This is one of the important parts of the bill and, in my view, it is wrong to freeze the development of the law to the narrow definition found in clause 63.
Clause 64 deals with the burden of proof. There has been considerable comment by many other witnesses before the committee regarding the burden of proof, and I do not think I should add anything more except one point. We consider this to be a serious mistake in the drafting of the bill.
As well, in our view it makes no sense to exclude certain statements by the accused from the voluntary rule. You will see from the manner in which the bill is drafted that certain statements by the accused do not have to be proven to be voluntary; they fall in the so-called res gestae category-that is, they were supposed to have been made spontaneously.
This is not so much a fairness problem as a clarity problem, in my view. What the Supreme Court of Canada did in a case called Erven, which has been mentioned to you before, was basically to establish a rule that any statement by an accused that is adduced by the prosecution must be proven to be voluntary during a voir dire. That was a simple rule that everyone understood. It was open to the accused to waive the voir dire and admit that it was voluntary, but it was at least a simple rule that everyone could understand. What you are getting into now is a situation in which you will have voir dires to determine whether there should be a voir dire. The Crown Attorney will say: “Well, this statement is a res gestae statement.” The defence will say: “It is not; it is a regular confession and you must prove it to have been made voluntarily.” So, the judge will have to hold a voir dire in any event to determine whether the statement was made voluntarily. Why not have one simple rule for clarity’s sake? In my view, there is no justification for this kind of chopping up of the confession rule.
Turning to another area that we, as members of the defence bar, are very concerned about that is the area of alibi. I shall just deal with this briefly because my colleagues from Quebec will have more to say about this.
What we are particularly concerned about is clause 85(1) which, as drafted, will prevent the accused from leading
evidence of a defence unless he has the permission of the Crown, or unless he can show cause.
Quite frankly, I think that if Parliament were to enact that kind of provision it would run afoul of section 7 of the Charter of Rights and Freedoms, which guarantees the principles of fundamental justice. It is contrary to every principle of fundamental justice if an accused should be prevented from adducing evidence of a defence because the Crown has not given consent. There is no basis for that kind of rule. In a sense, that particular provision does not present much of a problem because the courts will strike it down, but I do not think that Parliament should lend credibility to this kind of rule. There is simply no justification for it. The rules of alibi have worked very well up to now, and clause 85(1) is a serious mistake in drafting.
If you refer to page 118 of our paper, you will see that we take strong exception to clause 104. Again, this is another provision that could have the effect of depriving the accused of his defence. The effect of that appears to be that if the accused’s lawyer has not put to a Crown witness a contradiction- in other words, that the accused intends to get on the stand and contradict the Crown witness-then the accused will not be able to testify as to that particular happening or event. This kind of provision simply serves no useful purpose. It is merely a trap for the unwary. One of the justifications for having a code of evidence was that people would be able to defend themselves; they would know where the rules are located and would not leave that to the exclusive prerogative of lawyers.
This bill is intended to apply to all situations. As I understand the theory, it is not only to apply to federal prosecutions, but that the provinces are expected to adopt it. That means that this bill will apply to all offences-traffic offences all the way up to the most serious cases-so what kind of a position are we putting the accused in who is defending himself when he gets on the stand and the judges says: “You cannot testify to that because you did not tell the Crown witness in his cross-examination that you were going to contradict him.” What if the lawyer is incompetent or simply not properly briefed? It is not fair to an accused that he should be prevented from telling his story. Again, I think this is a provision that could run afoul of section 7 of the Charter of Rights and Freedoms-the guarantee of the principle of fundamental justice.
We have again taken exception to clause 123, which relates to criminal records. I think that most people involved in criminal law are concerned about the admissibility of an accused’s prior criminal record. As you know, the current section 12 of the Canada Evidence Act gives the Crown the unlimited right to cross-examine the accused as to any prior criminal record. Most judges and lawyers saw this as being fundamentally unfair. At one time there were a number of judges who were of the view that they had a discretion to prevent the Crown from asking the accused questions relating
to his prior criminal record, while the court of appeal has held that there is no discretion and that section 12 is clear and gives the Crown the absolute right to do so. So, we had hoped that in the drafting of a new evidence act this unfairness-and everyone saw it, and I think even Crown counsel acknowledged it-would be remedied. In oure view, this is not an adequate solution.
Let me point out some of the problems we see with it. First of all, that permits cross-examination on a prior discharge. The theory behind a discharge when it was brought in by Parliament in section 662.1 of the Criminal Code of Canada was that a person would be found guilty but would not have a criminal record. If they were asked whether they had a criminal record they could say that they did not. That was meant for people who were of good character or who would be harmed by a criminal record. It seems to me that this kind of provision strikes at the fundamental purpose of that kind of legislation. What is the point in giving a person a discharge when, if he is in court the next day, he can be asked about his prior discharge? I think that that is simply unfair and contrary to the purpose of the discharge provision.
As well, there was a compromise that seems to have been developed in the important provisions. As you can see, in clause 123(3) there is a special rule for an accused. He can only be cross-examined on prior conviction for perjury if he has given conflicting evidence, and that is fair enough, but also any conviction in the past seven years for a crime involving fraud.
One of the continuing debates in the substantive criminal law is what does “fraud” mean. Now the drafters of this bill have taken that nebulous concept and inserted it in clause 123. There are cases in England and Canada that say that fraud simply means dishonesty. If that is the case, then as you can understand, that is going sto embrace virtually every criminal conviction. Clause 123 does not represent any attempt to be fair to the accused. To the contrary, it opens the field.
Leaving aside a simple assault case, there are very few criminal offences in the Criminal Code that do not involve some kind of dishonesty. I think that what certain members of the task force favoured was something approaching the British system where the accused could be asked about his prior criminal record only if he did certain things during the trial that made it fair that he should be asked about it. For example, if he attacked his co-accused in his testimony or attacked the character of a crown witness, that is fair because his character should be an issue as well, at least to the extent that he should have his criminal record put in. We are very concerned that the attempt at a compromise that clause 123 represents simply is not a fair compromise.
We are concerned as well about clause 125, the removal of the corroboration for all offences and for all characters of
offences and for all classes of witnesses. I think that most lawyers would agree that the old rules of corroboration needed to be eliminated. They were archaic and had led to new trials. They were a favourite ground of appeal, and there has to be some rationality brought to the law of corroboration.
We are concerned about two classes of cases: One class involving child witnesses, that is, children who are too young to even give sworn testimony, whether or not the corroboration requirement should be preserved for them, and the other class of case is that of perjury. As you know, at present, perjury does require corroboration. Let me give you the reason why I think that should be preserved.
In the ordinary case where you see a citizen becoming involved with the law he comes in contact with a single police officer. They go to court and it is the citizen’s word against the police officer’s word. You may be surprised to hear that many courts accept the word of the police officer over the accusedor perhaps you may not be surprised at all. The point was that even if the accused was convicted at least that was the end of it. One of the reasons was that there was a corroboration requirement that even if the accused was disbelieved at his trial, he did not run the risk of a subsequent prosecution for perjury simply because the judge accepted the evidence of a police officer over his evidence. There was always that safeguard in the corroboration requirement. I think that has to be preserved as a matter of fairness as some kind of break on the prosecution because perjury can be a very powerful weapon or threat to keep an accused out of the stand. If it is a one-on-one situation-citizen versus police officer-every citizen knows that they run the risk that the judge is going to believe the police officer. They should not run the additional risk that not only is he going to be convicted of a traffic offence but he is also going to be prosecuted for perjury as a result of the judge not believing him. That is not fair. In my view, we should keep the corroboration requirement for this one offence of perjury.
That is all that I need to deal with at this point. As you can see from our brief, there are many provisions that we are concerned about but I tried to highlight what I think are the important ones and particularly, the ones that may run afoul of the Charter of Rights.
The Chairman: You may proceed, Mr. Fortier.
Mr. Fortier: Madam Chairman, I see that the time is now 4:05 p.m. and it is obvious that the half hour we did not use at the beginning of the afternoon could become even more important as we approach 6:30 p.m. Do you not think that it would perhaps be more beneficial and more efficient to present all of the components of the briefs of the Canadian Bar, that is if at this stage, you heard from the bAtonnier for the Quebec Bar who could summarize with Professor Fortin and Mr. Tremblay the joint briefs. Then, the lawyers who participated in the presentation could then answer any questions you and your colleagues may have.
The Chairman: I would hope so.
Senator Asselin: Does this represent the view of the Canadian Bar in general, and not only the Quebec Bar?
Mr. Fortier: It is a joint brief, that is it was drafted jointly by the Canadian Bar and the Quebec Bar. It is a study of Bill S-33 seen through the eyes of a lawyer practising in Quebec. Therefore, if you are in agreement, perhaps batonnier Lebel could lead off.
Mr. Louis Lebel, Bâtonnier for the Quebec Bar: Madam Chairman, Hon. Senators, on behalf of the Quebec Bar, I appreciate this opportunity to express our viewpoint on Bill S-33.
We willingly accepted the invitation of the Canadian Bar to participate in the preparation of a joint brief, since the legal profession in Quebec is profoundly concerned by the many aspects of Bill S-33. We share with our colleagues from the other provinces this feeling of concern about the effect some of the bill’s provisions will have on defence laws and on the evolution of criminal law.
My colleague, Professor Jacques Fortin from the University of Montreal, will delve further into this issue. However, may I say that we are especially concerned about the impact this bill will have on civil law in Quebec, on the system of civil law we know and have applied for many years now in the province. We are also concerned, from a broader perspective, about the legislation’s impact on the administration of justice and the operation of the courts in Quebec.
Briefly put, the members of our Committee, the lawyers we consulted-and I must say we consulted some of the most eminent evidence law experts in Quebec, people such as Professor Leo Ducharme, whose text we will table as an annex to our brief, and Judge Andre Nadeau, who sat on our Committee-all of them reached the same conclusion, in view of the provisions of section 3 of the Bill and the presence of a highly detailed series of legal provisions dealing both with substantial rules of evidence and the means of administering evidence. There is the distinct possibility that two parallel systems of evidence law and procedure will be established in Quebec.
As a general rule, as you doubtless know, in most of the cases heard in the different jurisdictional courts in Quebec, the rules of evidence and procedure that are invoked and applied are generally those provided for either in the Civil Code or in the Code of Civil Procedure.
And yet, section 3 of the Bill stipulates that:
Subject to sections 4 and 5, this Act applies to every proceeding and stage of a proceeding within the jurisdiction of the Parliament of Canada that is before a court or that is held for the purpose of taking evidence pursuant to a court order.
The complementarity of provincial law is confirmed in section 6 of the Bill which reads as follows:
Except to the extent that they are inconsistent with this Act or any other Act of the Parliament of Canada, the laws of evidence in force in the province where a proceeding is taken apply to the proceeding.
Some will be quick to point out that section 2 in the present Canada Evidence Act contains a similar provision. That’s true, but that section 2 was included in legislation which contained only a certain number of very limited provisions. The nature of the Evidence Act contained in Bill S-33 is radically different. This draft legislation in fact contains an extremely complex series of provisions pertaining to the fundamentals of law. I refer, for example, to rules such as those contained in sections 175 and 176 of the Bill. Section 175 deals with implied terms in contracts while section 176 focusses on the existence of reasonable and probable cause for instituting an action for malicious prosecution.
These are rules which in Quebec would come under contract interpretation law, the law of civil responsibility. Now these rules appear in the Canada Evidence Act. Aside from this fact, the draft legislation contains a great many rules dealing, so to speak, with the administration of evidence and with proceedings that are covered rather extensively at the present time by the Quebec Code of Civil Procedure.
In his paper which we will be tabling, Professor Ducharme lists some of these rules: rules respecting the competence and compellability of witnesses; rules respecting the subject of testimony, experts and opinion evidence; rules respecting the credibility of witnesses and how to testify; even rules respecting written statements of expert opinion. By clearly enshrining the rule contained in section 3 stipulating that the law of evidence or procedure provided for in Bill S-33 applies to proceedings which come under federal jurisdiction, it could become extremely difficult, in the course of a trial during which both federal law and provincial law provisions were invoked, to determine which system of evidence and procedure truly applied to the proceedings in question.
Suppose for one moment that a damage suit is filed by shareholders against the administrators of a company, in this instance a Crown corporation. Suppose for a moment that specific provisions relating to the Canada Business Corporations Act are invoked. Furthermore, imagine that general principles of civil responsibility provided for in the Quebec Civil Code are invoked. What system of evidence, what system of procedure should be applied in dealing with expert opinion, accounting reports and the like?
This is one instance in which it would be possible to apply almost simultaneously two different systems of law in the daily administration of justice. With all due respect for those who believe otherwise and in view of the interpretations that have already been given, among others that of the Quebec Court of Appeal respecting the impact of section 2, I believe that this legislative package could mean that on a day-to-day basis, in nearly every proceeding to which federal law applies in Quebec, we would have to alternate between federal law and
provincial law and procedure, depending on the case in question.
Senator Deschatelets: Madam Chairman, was it agreed that we not ask questions at this stage?
The Chairman: I would prefer it if you waited, Senator Deschatelets, to enable our witnesses to complete their testimony. I think it would be easier.
Mr. Lebel: I think there is a tendency sometimes, even within the legal profession in Quebec, to underestimate the importance of proceedings which come under federal law. The fact remains that the Parliament of Canada adopts regulations and laws on matters which are essential to the courts, matters in the interest of which we must live and work constantly. I’m thinking, for example, about bankruptcy laws, bank credit laws, bill laws, many aspects of the Bank Act, the Companies Act and many aspects of the trade and communications regulatory process, without forgetting, of course, the entire area of criminal law.
It is this aspect which, I believe, has sparked deep concern in all Quebec lawyers who have considered this draft legislation. This sense of concern has also led us to ask ourselves whether it is really a good idea to have the same piece of legislation combine rules of criminal law and rules on evidence and procedure based on civil or business law.
This feeling of concern has also led us to wonder, even though the federal Parliament has the required authority to pass legislation in this area, whether it should exercise this power fully or whether it should as has generally been the ease until now, leave these matters of evidence and procedure in legal cases for the provincial parliaments to take the appropriate legislative action.
It is true that in Quebec, a good part of the laws of evidence were based, during the 1866 codification, on certain rules of British law. This law has, however, been evolving for more than a century, I would venture to say, on its very own, following these principles taken from the codification.
This law is also in the process of being reformed, through, among other things, the work of the Quebec Civil Code Reform Bureau, work which has led to very broad consultation in all legal circles in Quebec. This work calls for amendments to the Quebec evidence law in accordance with methods and rules faithful to the spirit of this law and to the principles with which Quebec lawyers are familiar.
My great fear is that this legislation, if retained in its present form, will create serious problems in terms of the daily activities of the courts and the administration of justice in Quebec. This explains why the Quebec Bar is so very interested in the Bill. We have perhaps on occasion, been too silent about federal legislation. In my opinion, it would be very
desirable to establish more permanent, more systematic ties between the federal administration and Quebec lawyers, whether it be through the Canadian Bar or the Quebec Bar.
These ties are essential if we want federal law to respect the spirit and principles of our two main systems of law.
Of course, as for analysing the technical rules relating to criminal law and the findings of the joint committee of the Quebec Bar and the Canadian Bar, I will defer to Professor Jacques Fortin. Mr. Fortin is a professor of criminal law with the Faculty of Law of the University of Montreal. He is also a member of the Law Reform Commission.
Mr. Jacques Fortin, Quebec Bar: Madam Chairman, lion. Senators, I would hasten to specify that my role with the Law Reform Commission is only that of a part-time consultant who does his utmost to contribute, to the best of his ability, to the Canadian law reform process. I am neither a commissioner, nor a full-time staff member of the Law Reform Commission. I am speaking here today on behalf of the joint committee in which I was asked to participate, as a professor with the Faculty of Law of the University of Montreal and as member of the Quebec Bar.
At the outset, it is important to note that the members of the joint Committee of the Canadian Bar and Quebec Bar are in no way questioning the need to bring together in one piece of legislation the various legislative rules and those found in the cases which make up the Evidence Act in Canada. It would surely be useful to have one text bringing together all applicable provisions. In this respect, the Committee understands the objectives pursued by the authors of the Bill.
What we find objectionable, at least as far as certain aspects of the Bill are concerned, is the manner in which these objectives are attained. Thus, our Committee preferred to conduct a systematic study of the Bill in question, rather than proceed along the same lines as our colleagues from the Canadian Bar Association who conducted an exegetical study of the Bill.
The section of the brief which focusses on criminal law contains a number of themes. 1 would like to illustrate some of them, taking care not to be too repetitious, considering that they are essentially the same themes as those contained in the Canadian Bar Association’s brief. The first basic theme is the general concept of the Bill. As can be seen from the report which we tabled, this concept merits consideration from three perspectives or on three different levels. First of all, there is the structure of the Bill, that is the style occasionally used in the drafting process, its incomplete nature and the concept of the content.
The second major theme focusses on the Fundamental rights of the accused. I will go into further detail as I go through the brief.
First of all, I will summarize briefly the general concept of the bill, a section of the brief which begins on page 1 I. By denying that the Bill is an evidence code, the authors of Bill S-33 doubtless wanted to avoid the criticisms which had been directed at the Law Reform Commission for its 1976 code of evidence. An Evidence Act is presented, defining a series of individual rules whose provisions may be understood only in relation to the common law, in the absence of a statement of principles to guide the Courts in interpreting the rules in the Act. However, the intent to codify the existing law is present throughout the Bill, and the codification of rules without principles on which they are based, or to which they are subject, cannot be carried out without risking the creation of distortions of which we shall see a number of striking examples. A disturbing paradox is evident when we consider the structure of the Bill. While the feeling shared by a majority of the profession that the law of evidence, as developed by the common law, is in a state of disorganization such that it is very difficult to find the sources of the law and determine its substance-while this feeling may make legislation necessary, one nevertheless cannot but observe that the Bill has borrowed the structures of the common law and the rules in its case law without changing any aspect of them.
Hearsay is just one example of this. If you follow the manner in which the Bill deals with hearsay evidence, you will note that the structure of the Bill, except for a few details, is comparable to that of textbooks on the Evidence Act. The Bill borrows on the structures of the common law and gives them a statutory interpretation.
It would appear to the members of the Committee that the authors of the Bill perhaps missed an opportunity to try and rethink the entire theory and doctrine of hearsay evidence and have it focus on fundamental principles which must govern its application. Without going into all of the details of this question, I would, for example, like to stress at this time, as does the brief, the question of the reliability of a statement which otherwise would be considered hearsay. This concept of reliability commands a common denominator for most, if not all, exceptions to the rule excluding hearsay evidence.
With respect to the criminal application of exceptions to the rules of hearsay evidence, the Bill, rather than formulate a general rule based on the fundamental concept of reliability, gives us an enumeration, with as little organization as that found in works dealing with the law of evidence, an enumeration which must be examined very punctually, without even considering the common thread justifying these exclusions. From the standpoint of structure and reasoning, the Bill has many defects which, under the circumstances, is precisely the reason why Canadian lawyers believe it is desirable to codify the rules of evidence or to bring together in one piece of legislation all legislative and case law rules which make up the law of evidence, at least where criminal proceedings are concerned.
The Bill contains another structural shortcoming which the members of the Committee feels is rather significant. I will give you just one example of this shortcoming. Mr. Rosenberg has discussed certain aspects of the Bill which could apply to what I am saying here. The simple process of transforming common law rules into statutory rules could diminish the intent of the common law rule in question, unless special care is taken in formulating the rule. In fact, what is really important is to state the rule in such a way that the principle on which it is based is also evident and clear, since it is the principle which expresses the rule. If one simply extracts from the common law a rule and transposes it into a statutory context, one isolates it from its context and gives it a meaning which could give rise to applications full of distortions which have nothing to do with the intent of the rule and which could lead the courts to interpret it as is.
The example which warrants more serious consideration, Madam Chairman, is section 14 of the Bill which reads as follows:
In a criminal proceeding, the court is not required to give the trier of fact any special direction or instruction on the burden of proof in relation to circumstantial evidence.
It is clear that the rule in question relates to indirect or circumstantial evidence, at least according to present day terminology. Section 14, which states a rule of evidence, is drafted in the negative. First comment: the lawyer who is familiar with the Hodge rule which I will speak about briefly later, who is familiar with the Mitchell decision, with the Paul decision and with a few others, and finally with the Andrews decision which came after the Cooper decision can understand perfectly the objective pursued by this rule, since this is one instance where the evidence law is expressed by provisions in a purely negative form. Even if the lawyer is very familiar with the decision, section 14 can cause great embarrassment, since it loses sight of the principle which the Supreme Court of Canada intended to put forward in the Cooper decision. It limits the scope of application of the so-called Hodge rule which I will now explain to you as briefly as possible. In the celebrated 19th century Hodge case, the evidence pointing to the fact that the accused has allegedly committed a murder was entirely circumstantial. There was no direct testimony, the evidence was totally circumstancial. Baron Anderson instructed the jury thusly: you can only find the accused guilty if the circumstances convince you beyond any reasonable doubt that the accused is indeed guilty. Each and every circumstance must point to the only possible logical conclusion, namely that the accused is guilty. Each and every circumstance must be compatible with this finding of the accused’s guilt. If there is any incompatibility, then the accused must be found not guilty. Canadian case law subsequently elevated this so-called Hodge rule to make it an inflexible rule. This remained the case until relatively recently when the Supreme Court of Canada began to take away some of its elements, namely the
element of mens rea and finally the element of identification of the accused which is based on wholly circumstantial evidence. This brings us to the Cooper decision.
The Supreme Court of Canada has said that we must stop considering the Hodge rule as an inflexible rule of law and that is what Chief Justice Laskin said. It was a minority decision. Justice Ritchie, in delivering the majority decision, expressed agreement with Justice Laskin’s comment, but stated that it was enough, when the evidence and the identification of the accused are circumstantial, for the judge to explain clearly to the jury how the fundamental rule of reasonable doubt applies and that when the law is circumstantial, it is sufficient to explain to the jury that the circumstance constitutes evidence and indicates the only logical conclusion beyond any reasonable doubt, namely the guilt of the accused. You can see that the Supreme Court does not say what section 14 dictates that it should say. The Supreme Court did not say that the judge does not have to or must not or is not required to give special instructions. That is the principle on which the Cooper decision is based, the principle which is lost in section 14. It is the principle of reasonable doubt which can, because of certain evidence or certain types of evidence, require in reality that the jury understand clearly the fundamental principle of special instructions. Section 14 says the opposite. The judge is not required to give the jury special instructions and this can mean that the judge is not required to make the accused understand the fundamental rule of reasonable doubt in view of the nature of the evidence. No Canadian judge would give the interpretation as it is simply stated in section 14 Why? Because they are familiar with the case which I have just described to you. That’s what the Committee deplores the most, the fact that the manner in which the bill is drafted does not lend itself to the simple conversion of case law rules into statutory rules. The rule in question loses some of its force. We agree with the principle of the Cooper decision. It is a principle arising from the wisdom of the courts. The application of this principle is important and it is likewise important for the bill to maintain this principle and not have it disappear under a rule which was formulated too rapidly or worded negatively.
The second aspect has to do with the incomplete nature of the Bill and here, the Committee wants to be very sure that it is clearly understood. Our Criminal Code is not a code in the true sense of the word. It must be complemented by the common law. Our Criminal Code does, however, have one major quality, namely that it enables everyone to work with it. And why is this? Because it describes clearly the areas where the common law applies. All we have to do is read sections 7 and 8 of the Code. Sections 7 and 8 stipulate that some offences no longer come under the common law principles. Just read the statutes of Canada to find out what these offences are. With respect to principles which make it possible to testify for the defence by giving explanations or excuses, subsection 3 of section 7 of the Criminal Code tells us that the common law does apply. Therefore, to sum up the situation, our Criminal Code is crystal clear on this. If everyone agrees
with this, 1 will tell you that as far as the Committee is concerned, the Bill in no way has this same quality. It is by no means comprehensive, because the common law continues to apply in the same way as the Criminal Code. However, it does have one shortcoming that the Criminal Code does not have, namely this: it fails to express clearly the intent. Unlike the present Criminal Code, the Evidence Act does not allow the reader to identify at first glance those areas of evidence law which are still based on the common law. What changes has the Bill brought about? What rules mirror the common law? In other words, the Bill contains provisions which codify the common law and which transpose it into a statutory context, without changing anything. Therefore, the judges will very likely give these provisions an interpretation which is an extension of the case law rules which led to the formulation of statutory rules.
The Bill also contains other provisions which amend the common law. Well here, the judge will be somewhat hard pressed to call upon the common law to interpret these provisions. He will have to determine what impact the statutory provision will have as far as the common law is concerned.
Worse still, there are entire areas of evidence law the importance of which we cannot deny and which are simply overlooked in the Bill. No mention at all is made of them.
Evidence must have a perfect knowledge of the common law, it must be able to identify the effects of the provisions, to know whether it codifies or amends the common law and it must be able to identify what shortcomings there are where the common law remains intact between the sections.
I won’t go into the details, but I will give you a few examples of this. Consider the voir dire. Voir dire is the mini trial within the trial, the purpose of which is to enable the judge to gain knowledge of prior facts, to determine whether a particular piece of evidence is admissible. Voir dire is the current application as regards the law of evidence.
The Bill deals with the voir dire in many sections which I will not list here, but it does so from a number of very special perspectives. It deals with it in the context of the statements made by the accused to persons in a position of authority, or in other words, confessions. What about the role of the voir dire as a fundamental principle of the law of evidence? This is also an important question. Do the rules of evidence also apply to the determination of prior facts and so forth?
All of these questions remain unanswered in the Bill. One other thing which illustrates the incomplete nature of the Bill as far as very important evidence matters are concerned is the fact that on page 17 and 18 of the brief, as you can see, mention is made of the “dismissal”, or of what should perhaps be termed more appropriate by as the irrefutability of the fact tried.
You are all familiar, of course, with the concept of facts tried in law. Once a court has ruled on a case and delivered a final verdict, only the verdict can remain unchanged. It cannot be questioned in another trial.
This concept has important implications as far as the Evidence Act is concerned, as can be seen by a recent Supreme Court of Canada decision. The Bill makes no mention whatsoever of the fundamental rule of the irrefutability of the fact tried, yet this is an important question.
Here is another example of the incomplete nature of the Bill. It awards a great deal of importance to amendments concerning the admission which the parties can make during the course of the trial. The Bill proposes, contrary to the present legislation, that admissions can now involve a question of law. We do not see any for the moment in this aspect of the question. What the members of the Committee deplore is the fact that the authors of the Bill did not deem it useful to deal with the guilty plea which, as we all know, is the admission par excellence. It is perhaps the one most important institution of the law of evidence, the one which plays the greatest role in the administration of justice. While I do not have the statistics with me, it is often said that it is common knowledge that close to 80 per cent of the accused plead guilty. If the guilty plea were inadmissible, as it is in the other system, the administration of criminal justice in Canada would crumble. We would have to multiply the number of judges, courts and so forth. Therefore, as you can see, quantitatively speaking, the guilty plea plays an extraordinarily important role, one of the most important in terms of evidence law. When the accused pleads guilty, he is saying to the prosecution: I admit that you have evidence, I renounce all of my fundamental rights, the presumption of innocence, full and complete defence, etc., and when this is done, all that remains is for the court to pass sentence. We only have to look at case law to sec the host of problems this has created and to see under what conditions an improper plea can be withdrawn. What it is important to stress here is the fundamental aspect of the guilty plea which is quite simply overlooked in the Bill.
With respect to more theoretical concepts which also play an important fundamental role, we can speak of the concept of similar facts. The Bill speaks a great deal about morality evidence. It does not define completely the concept of relevance and it overlooks completely the concept of similar facts. Case law shows us that the admissibility of a similar fact questions a particular aspect of the basic concept of relevance. Therefore, as you can see, the Bill is silent as far as two basic concepts are concerned and we again have to rely on the common law.
I will now broach the theme of the fundamental rights of the accused. At this time, I would like to touch briefly on the rule of the presumption of innocence, namely the right of the accused to refuse to testify and his right to a full and complete defence, and finally on the burden of proof at the voir dire.
As Mr. Rosenberg correctly noted earlier, section 11(d) of the Canadian Charter enshrines the rule of the presumption of innocence. Furthermore, we know that the presumption of innocence means that the prosecution is required to prove that the accused is guilty beyond a reasonable doubt, taking into account all of the important elements of the offence. There is also one other aspect which has not been mentioned and which I will get back to later.
On reading the provisions of the Bill, the Committee found it rather disturbing that no mention is made of the presumption of innocence. If we read the provisions in question, we note that the provisions are descriptive. It would seem that the burden of proof is on the accused as often as it is on the prosecution, whereas the Canadian Charter of Rights says that the exact opposite should be the case.
Comments respecting the second aspect of the presumption of innocence apply equally once again to both the French and English versions of the Bill. In our opinion, the authors of the Bill unfortunately chose technical expressions, expressions which the judge must explain to a jury by using simpler words. For example, the English version of the Bill refers to the “evidential burden” and defines it in relation to certain means of defence as involving a particular thing. Elsewhere it refers to the burden of persuasion which it defines in terms of the preponderance of probabilities. The Law Reform Commission proposed approaches back in 1976 that would have made it possible to avoid technical expressions in the evidence legislation and would at the same time have enabled the trier of the law to explain the concept directly to the trier of the facts, without having to use technical terms. So the question of terminology in this respect is important to the committee as regards the enunciation of the presumption of innocence.
The second aspect is the question of the Bill’s structure, which in our opinion should make the principle of the presumption of innocence paramount, and the repercussions on the distribution of the burden of proof are only, at best, a compromise and, at worst, exceptions.
Finally the committee endorses, adopts, the remarks made by Mr. Rosenberg regarding the application in criminal law of the principle of Section 730, paragraph two, of the Criminal Code, which at the present time restricts itself to summary offenses.
The section makes the accused responsible for rebutting with preponderant evidence the existence of an excuse, justification or exception-exemption, prescribed by law, which is in his favour, and we regard that provision as a direct contradiction of the presumption of innocence.
Within the framework of the Bill it constitutes an extension to criminal acts that cannot be justified and also, even if the provision were limited as it is currently to summary offenses, it
would still obviously be open to argument as regards the presumption of innocence asset forth in the Charter.
More serious even than that, is the fact that acceptance of this clause as part of the law of the land-which a provision of the Bill clearly states-would mean that the presumption of innocence would from now on apply only to general means of defence. If you read the special provisions of the particular federal acts that define offenses and the texts on incrimination that are attached to the Criminal Code you will see that generally the legislator allows for particular means of defence.
This means that quantitatively the presumption of innocence would be made for only a relatively minor group of offenses. Quantitatively, for most offenses, the accused will not be presumed innocent. The contradiction seems to us much too marked at the outset, with the adoption of the Charter, to say that the Charter is only a principle and on the general level its principle does not hold. So there’s a contradiction in principle and also a contradiction in practice that must be enunciated.
There are other fundamental rights, but I’m going to limit myself to one aspect. This is the right of the accused to call him witnesses in any order that suits hi. This is very important, because this provision involves two fundamental human rights, as we see it. Clause 108 of the Bill, like the existing legislation, allows the accused to call his witnesses in any order he wishes. We have no difficulty with that, it’s the law as it now stands. The clause goes on to say, however, that the court may comment as to the probative force of the accused’s testimony if he confirms evidence previously given by one of his witnesses. The result of this provision goes against existing jurisprudence because it allows the judge to prejudge the credibility of the accused solely on the basis of the fact that he testified after his own witnesses.
We believe that this provision is in flagrant contradiction with the right of the accused to put forward a full and complete defence and with his right not to be compelled to testify. The combination of these two principles, a full and complete defence and the right not to be compelled to testify, simply mean that the accused has the right to put forward a full and complete defence without himself giving evidence.
Any rule that directly or indirectly results in compelling the accused to testify before his witnesses do is a restriction on the right of the accused to put forward a full and complete defence and not to testify himself. This is why: such a rule means in effect that the accused has to exercise his right to testify or not to testify before his defence is complete. fle has to decide to give evidence, and whether it is preferable to give evidence, before his witnesses do so.
Now, we feel it is essential that the accused be allowed to reserve his decision to testify or not in a case until such time as he as an accused person can have a complete appreciation of the evidence presented, if any.
As we all know, the accused cannot control the credibility of his witnesses, the people he decides should be heard, or the impact his witnesses may have on the trier of the facts.
Looked at in this light, all clause 108 does is to penalize the accused on the basis of the moment he picks to exercise his right to testify, even though the law acknowledges his right to a full and complete defence without being compelled to testify. These two fundamental human rights are thus threatened by this provision.
I said at the start of my remarks, Madam Chairman and Honourable Senators, that our brief was systematic, that is, we tried to construct it around certain basic ideas. In the brief you will find illustrations of themes that I have discussed here, illustrations that are obviously more complete than those I have tried to summarize for you. The themes that have come out of it indicate clearly that the Bill is not a pointless exercise, something that should never have been begun in the first place. The members of the committee recognize that an enormous amount of work has been done. There are a huge number of provisions that would constitute a considerable improvement to the existing law, notably in the area of marriage, there’s a splendid effort at making the whole thing more sensible and simple. However, in the areas we have identified, we have the impression that the Bill risks compromising the certainty and simplification of the law, qualities that were undoubtedly the goals of the drafters of the Bill. It risks compromising certain rights of the accused that existing law plainly guarantees him, but which the interpretation of a number of the provisions in the Bill threaten to take away from him.
The Chairman: Thank you, Maitre Fortin.
I wonder if I could ask our final witness to pause for a moment because Senator Asselin has to leave shortly and would like to put some questions to the members of the special committee.
Senator Asselin: Thank you, Madam Chairman.
Senator Asselin: I must beg the pardon of the Members of the Bar. I have an important meeting at five o’clock. It’s to decide whether or not we’re going to reform the Senate. I think my presence there is important because they’ll be making decisions regarding the work of the Committee. I am extremely impressed by the presentation of the brief by the Canadian Bar Association and the Bar Association in my own province, the Province of Quebec. 1 see there are still excellent law professors there. We have had the professor of law at the Universite de Montreal, Maitre Fortin, who has given us an excellent presentation, and I want to congratulate him.
You don’t seem to be satisfied with the Bill-we aren’t happy with it either. The first thing I would like to know from the members of the Canadian Bar Association is, you have already appeared before this Committee and presented your complaints. We studied them carefully and you were then to meet with senior officials of the Department of Justice. I
would like to know if there was a meeting and what the results were.
Mr. Fortier: There was indeed a meeting, Senator. Extremely constructive exchanges took place between certain members of the Canadian Bar and certain officials of t he Department of Justice, who have been working on Bill S-33 for a number of years now. In some areas, I am glad to be able to say, certain of our first observations were adopted. In other areas, we were told: “We’re very happy to hear that you’re going to study the Bill in depth, we’re eager to see the results.” I hope I didn’t commit a faux pas as far as the members of your Committee are concerned, but last Friday, at the same time as we were delivering the briefs that have been discussed here with you today, copies were sent to my friend the Deputy Minister of Justice, Mr. Roger Tasse. I had met him several days earlier and he was very pleased to hear that our work was completed, He gave me to understand that over the course of the summer he would want to continue the discussions with the Canadian Bar.
Senator Asselin: The Bill we have before us has virtues as well as defects. The fact that the provincial Attorneys Gen all agreed that a Bill on the uniformity of the Evidence Act should be brought in represents, I feel, a “plus” for the Bill’s sponsors. On page 25 of the brief by the Quebec Bar, you say:
The structure of the working group that developed the code adopted by the Uniform Law Conference of Canada, the general orientation of the group’s work, the kind of discussion found in its report and the very structure of the Bill make it clear that the duality of the legal systems in Canada, that results from the specific nature of the civil law heritage in Quebec, was not given any particular attention.
Now, I am aware, and the members of the Committee are too, that this Bill was submitted to the Quebec Ministry of Justice, which studied it closely. There were representatives of the Ministry of Justice on the Task Force. Have the Quebec and Canadian Bars-this is an important point when you talk about the duality of evidence in Quebec-had contacts with the Quebec Ministry of Justice to find out if they still support the Bill? I have myself seen a letter in support of the Bill.
Mr. Fortier: Perhaps Mr. Lebel, the Batonnier, could comment on this subject and then I would like to add a few remarks afterwards.
Mr. Lebel: On the question of consultations between the Quebec Ministry of Justice and the Canadian Department of Justice, I think that the person who would be best able to give a favourable answer would be one of the provincial deputy ministers. We did have a certain number of contacts with Quebec’s Ministry of Justice.
Senator Asselin: About the Bill?
Mr. Lebel: Yes, about the Bill and about the preliminary consultation procedures. I myself have had opportunities during these past few weeks to talk to certain deputy ministers. It is clear that there has been consultation on the aspects of penal and criminal law. Consultation has occurred mainly in these areas. It doesn’t appear that it has occurred with respect to the civil aspects, or at least that the civil aspects were a major part of the discussions. The people I met at the Ministry of Justice seemed to me in general quite surprised at the result of the preparatory work on the Bill, at least as regards the civil aspect.
Senator Deschatelets: That may be rather revealing. When Mr. Justice Pigeon appeared before us he said he had restricted himself largely to the terminology of the French version and that he hadn’t had the time to go into the substance of the Bill. With such a distinguished jurist before us we didn’t want him to get out of it so easily, without trying to question him a little further. Eventually he agreed to tell us that he was aware of the work by the Task Force that preceded the Bill, and he said, “If you want my reaction, I think that Bill S-33 goes very much further than the conclusions of the Task Force.” At that point I realized that if there were so many more or less unanimous people, when the Task Force was doing its study, if those who drafted the Bill went beyond the conclusions of the Task Force, that was when you practising lawyers, just about everywhere in the country, came along and said: Look, this is going beyond what was accepted there.
Mr. Fortier: I would like to add a few words to the answer that Mr. Lebel gave earlier to your question, Senator Asselin. First of all, I took part in some of those discussions with Quebec officials. I agree with Mr. Lebel that it would be very interesting for you to question them. Nevertheless, the Task Force to which Senator Deschatelets referred produced a document that is worth consulting, page 598. You’ll see that before adopting the draft Uniform Evidence Bill, there is a bland little statement: a Quebec delegate points out the difficulty of introducing a Uniform Evidence Act into that province when they already have a Civil Code and a Code of Civil Procedure, That’s the end of the quote, and that’s the end of the discussion on the issue, Quebec’s side of the story. I just wanted to add that to what the Batonnier had said. Our colleague Maitre Gerard Tremblay might also have something to say about this.
Mr. Gerald Tremblay, Quebec Bar: I am glad to address myself specifically to Senator Asselin before he has to leave us. Basically all this is hear-say, but in the consultations that follow, when you look at the Task Force and the make-up of our committee, you realize that the endorsement or the consent of the Attorneys Gen of the various provinces seems to have been oriented toward reinforcement of the tools available to the Crown in the application and administration of criminal law. The section 3 that you have been discussing from the
beginning went through perfectly smoothly. It was so exactly the way Mr. Ewaschuk conceived it, despite the alarm bell I sounded at my last appearance, that he said, “It doesn’t change anything, it’s already that way, it’ll always be the same thing.” At one point I was very disturbed–I said to myself, “Maybe I’m the one who can’t read?” That’s why when we came to make up the committee we looked for people like Mr. Justice Nadeau and Mr. Ducharme, who are cited all the time. They were the co-authors of the sole work we have on the rules of evidence in Quebec. They said the same thing: if you look at the exact jurisprudential texts in our report, they say in essence that in federal cases we are going to apply the legislation on evidence that will be included there, rather than applying the legislation on evidence that refers to civil matters.
One of the important points that must be stressed is that in the text that Mr. Ducharme produced for us there are a few minor inaccuracies in the French, and I’m sure he would be somewhat embarrassed to be quoted, because he went on vacation and he didn’t have the time to make the finishing touches. He would have wanted to go over it to correct the French. I can give you some examples by way of illustration. He mentions the following example, the examination of discovery: he says there is an Anglo-Saxon bias perceptible behind all this. The provisions of the Evidence Act do not apply to the examination for discovery. So in one trial there might occur during the examination for discovery an objection to the evidence, and then we go before the judge. The judge decides that in this particular case the hear-say evidence is or isn’t admissible, because the case doesn’t apply. Back to the Quebec Civil Code. The trial follows three years later. Same procedure. This time the same type of evidence is going to be admissible because the evidence code applies in Quebec. So we would have two different systems of rules of evidence within the same trial, which is absolutely senseless. The reason I say there is an Anglo-Saxon bias in all this is that as far as evidence is concerned, under common law, the examination for discovery is not part of the trail. With us, it is automatically part of the trial. In the other system they have nothing to lose because they start over again at the trial-they decide after discussion what evidence raised during the examination for discovery will be admissible at the trial. With us, everything is automatically part of the trial. So you will have evidence that is probably illegal under the new code, which will be legal evidence because it was obtained during the examination for discovery. That’s an example I wanted to draw to your attention.
Senator Deschatelets: May I ask Mr. Tremblay a question?
The Chairman: A supplementary?
Senator Deschatelets: I’m asking it so that everybody around this table will be quite clear as to your meaning about section 3 and the scope of its application-it’s important for the people of Quebec. At one point I asked officials of the Department of Justice and they said, “Read section 3 and the
provisions of section 4, etc. It’s the status quo.” But even so I’m asking you. There is a case in Quebec at this very moment.
The Chairman: May I interrupt you, Senator Deschatelets? Senator Asselin has to leave us.
Senator Asselin: Thank you, Madam Chairman. In the course of the hearings that have been held here before this Committee on this Bill, I have worried a great deal about the fundamental rights of the accused. That may be a professional bias, because in my youth I was a country lawyer and I often had to plead before juries on behalf of people accused of crimes. My view is-and I want to know if I’m right-there are so many contradictions on the subject of the fundamental rights of the accused, rights that are denied in this Bill, that I don’t think 1 would have trouble getting an acquittal the way I used to in the past. Am I mistaken?
Mr. Fortin: Madam Chairman, Honourable Senators, this question is fundamental.
Senator Asselin: Yes indeed, it is a fundamental question. We’re here to protect the rights of the accused as much as the rights of the Crown.
Mr. Fortin: The question is fundamental. Naturally it’s difficult for me to prophesy, to say “what if” the Bill were adopted as it stands. There are possible scenarios and hypotheses, of which the most likely is this: the rights that have traditionally been extended to the accused by the rules of evidence are one aspect of a free and democratic society such as we have always known hitherto. They form part of the concept of fundamental justice that is recognized in section I of the Charter. All the provisions of the Evidence Act that introduce restrictions on rights which an accused person currently enjoys would for that reason probably be attacked on the basis of their constitutionality, the legal rights and guarantees set forth in the Constitution. So it may be that the concept of fundamental justice will be safeguarded by the courts, because they are imbued with these principles. But even if the risks to the rights of the accused are minimal, is it worth it to open the door to legal battles triggered by texts that contain contradictions or uncertainties on such fundamental questions as these? You can imagine the confusion and uncertainty that would result. It would take jurisprudence years for the dust to settle, if I may put it like that, and we found ourselves back in the system hallowed by tradition.
Mr. Fortier: It may be interesting, now that you have heard from an academic, to hear from a practitioner who also is in the heat of battle daily as you were, Senator Asselin, not so many years ago. The question, Mr. Rosenberg, from Senator Asselin was whether or not if Bill S-33 is adopted in the form in which it presently stands, it would be more difficult to have an accused found not guilty. I am summarizing his question as best I can.
Mr. Rosenberg: That is a difficult question to answer in the abstract but you can pinpoint, as we tried to do in the paper, certain provisions of the bill which appear to take away some rights that the accused have, such as, shift the burden of proof around and that, of course, would make it more difficult for I.he accused to be found not guilty. He has a right to be found not guilty if there is a reasonable doubt as to his guilt. Anything that infringes on that means that you are going to have an accused person who, even though the trier of fact is not sure that he is guilty, nevertheless is going to be found guilty. That is a concrete example. There are other provisions whereby there is a slight improvement in this bill, but when you are revising the law of evidence it is fair that you should ask the drafters and Parliament to go as far as possible to make it as fair as possible. That is why I highlighted the problem of the accused’s criminal record. In Canada we have a dismal record of accused person being afraid to take the stand because they are concerned that their criminal records will get before the jury, be misused by the jury and prejudice their defence. Here was an opportunity to make it fairer for the accused, but what has happened is that they have, in my view, muddled the attempt and not made it any fairer, or made but a slight improvement. I hope that answers the question.
Senator Asselin: I have a lot of other questions, but since I have to leave … [Text]I am going to leave my other questions to you, Senator Godfrey, and to others who can ask them.
There is one thing I must say. We’re going to read the tome you’ve given us. Unfortunately I won’t have the time to read it tonight. We’ll re-read it, and I have the impression that your testimony is going to have a strong influence on the opinion we reach as to the validity or acceptability of this Bill.
I am sorry to have to leave the committee, but I have to go now.
Senator Deschatelets: May I ask some questions now?
The Chairman: No, it’s Mr. Tremblay’s turn to answer.
Mr. Tremblay: I know the day has been a particularly long one and I don’t intend to go on and on, especially since for you this is the second time you’re had to endure this. I’ll try to be as brief as possible, which will be quite easy, since I was happy to learn that in his presentation the Batonnier has just put his weight into the scales on the side of the avocates of Quebec.
I presided over the formation of the joint committees immediately after the presentation of our brief, which was indeed brief, in March, and we have obviously gone much further, and among other things, to confirm the scope that we say in section 3 we called upon, as I mentioned, people of indisputable competence, and without bearing any ill-will
toward our colleagues at the Department of Justice who were trained in the common law tradition I would invite them to read, among other items-unfortunately it hasn’t been translated- the text prepared for us by Professor Ducharme, which we have here with us today.
The aspect that strikes us-I have discussed this with Mr. Sopinka, who unfortunately had to leave earlier-is that in Quebec we have an evidence code, that is, the Civil Code; if you look at the work of the Office de revision du Code civil, to which Mr. Lebel referred, you will see a proposed reform regarding evidence. This proposal is written in simple, clear language that corresponds perfectly to the Latin spirit that presides over drafting and the daily practice of law in the Province of Quebec and is, in my view, a culturel enrichment for Quebec and for Canada. We also said that the Law Reform Commission itself, within the framework of the mandate established by the legislator, ought to see that this legal duality is maintained.
We find ourselves faced with a text in which the principles of criminal law and the principles of civil law are mixed together. The result is a working tool-because that’s what an evidence code is, a working tool, and one that we use every day before the courts-the result is that the working tool available to those of us who were trained in the civil law tradition and who work in Quebec, is full of concepts that evoke nothing and have no significance in civil law.
In Quebec, where in civil cases we haven’t had trial by jury in civil cases for ages, talk of “trier of the facts” and “instructions from the trier of the law to the trier of the facts” is meaningless. The text is heavy going and I would invite the members of the Committee and the staff of the Department of Justice to read how in civil cases there was a way to make short texts for the drafting of a code that could be used as a working tool in the Province of Quebec. But if we are obliged, when we do both criminal and civil law at the same time, to include the presumption of innocence, circumstantial evidence and the specific instructions on voluntary statements and so on and so forth, an attack-and I’m not using the word in a pejorative sense, but it becomes a problem for the integrity of civil law in Quebec, which has always served the purposes for which it was designed, in federal civil cases or in provincial cases.
You Members of both Houses must often have been told, as we are in Quebec, that an abuse of legislation is not good. This is known as the “mischief rule”. Legislation must be passed …
Senator Deschatelets: Which meets a need.
Mr. Tremblay: Which meets a need, yes. I can assure you, there’s no popular clamour for the federal government to revise the rules of evidence in civil cases. That is why one of our recommendations, to which I shall return in a moment, is that the Bill in its present form be withdrawn, because it is impossible to improve it in the context, and I repeat that to you because the provisions are so closely woven into one
another that what is needed is a preliminary principle that states that the text applies only in criminal cases, and on that basis anything in it that deals with civil law or evidence should be disentangled from anything that deals with evidence in criminal cases.
When we prepared this brief, we indicated back in March and we repeat today, that it is essential to study in much greater depth the impact on civil law. Personally, as a Quebec jurist, I would like to continue the process of consultation. The Law Reform Commission itself was aware of the problem, because in its Report on Evidence, which dates back to 1975 if my memory serves me, it said, regarding section 86, and I quote:
The Code has not been extended to such matters of federal jurisdiction as divorce, patents, bills of exchange and so on, because, apart from problems of determining constitutional boundaries in cases arising before provincial courts, these matters must frequently be dealt with in conjunction with matters over which the provinces have exclusive jurisdiction. For example, a person may in the same action seek both a contractual remedy and one under the Bills of Exchange Act, To avoid the possibility of two sets of evidence rules, federal and provincial, applying in the same action, the Code…
and this was at the time of the first federal evidence bill—
the Code was not made applicable to these proceedings.
I think we have to go back to the good sense that was shown at that time by the Law Reform Commission. This leads me to another extremely important aspect, which is going to be dealt with by Mr. Guthrie, the recommendation you will find on page 32: Recommendation One, That the Bill in its present form be withdrawn; Recommendation Two, That a general consultation with Canadian legal experts be organized as soon as possible, and that the Canadian Bar Association make this one of the major themes of its next congress. This perhaps doesn’t concern the Senate officially, properly speaking, but I would like to say that the Canadian Bar Association mentions it in a brief to the two Batonniers, as you can see. The congress takes place in August, and I would like to take advantage of it to conduct a debate within the profession.
Three, That a more specific consultation be organized with Quebec legal experts, to obtain their views as to the effects that general legislation on evidence in civil proceedings could have on the practice of law in Quebec.
Four, and this is the recommendation Mr. Fortin was talking about, the reduction of the rights of the accused, and Five, the French text. On the subject of the French text, in all fairness to my good friend Mr. Bertrand, who unfortunately could not be with us today-I wish he were here-he has, and I know that he’s in the process of working on a French text that seems to me to be better than the one we have here, but it is still largely inadequate nonetheless and I think I can tell you
why. It’s because it still displays the same mentality that Mr. Justice Pigeon spoke to you about when he appeared before you, that is, the refusal to use a new expression-to borrow his example, to describe an elephant in the language of the Inuit, you need a new expression, because there are no elephants in the High Arctic-it’s the same thing. In French civil law, if there’s no such thing in France as “preuve circonstancielle”, in Canada let’s call an elephant an elephant and call “circumstantial evidence” “preuve circonstancielle”. The same applies to “reasonable doubt”.
So in this context, and in the same vein as the Batonnier, I think that we, the Bar of Quebec, are ready to offer our whole-hearted co-operation. I think it would be much more useful before a proposal reaches the stage of a Bill like the one we have before us, where we have to get up and make comments in public that may perhaps hurt people who have worked very hard on it-we urge the people at the Department of Justice to let us study their draft Bill, before it gets to the stage it has reached now. I could say a lot more, but it’s already late and I thank you for your attention.
Senator Deschatelets: Mr. Tremblay, in your first recommendation you say you would like the Bill to be withdrawn.
Mr. Tremblay: Yes.
Senator Deschatelets: You also say you would like more time to consider the matter in greater depth, perhaps to meet with officials of the Department of Justice and try to untangle things and so on. What if the Bill were put on a back burner for a while, say six months, would the effect be the same?
Mr. Tremblay: I think that if we all had a bit of breathing space-you spoke of six months, which seems to me to be more reasonable than one month, but a year would be even better. Nonetheless, I think that a six-month delay would enable us to redistribute the Bill to the profession at large, and our brief as well, and to consult our members so that we could pass our comments along to the Department of Justice before it reaches the stage that Bill S-33 has reached. But 1 don’t know if the committee …
The Chairman: Thank you, Mr. Tremblay. [Text] Honourable senators, I believe we have one further witness.
Mr. Fortier: Yes, but perhaps you would prefer not to hear him.
The Chairman: Mr. Guthrie has been patient all this time, and I think we should hear him.
Mr. Fortier: I am grateful to you, Madam Chairman. Mr. Guthrie has travelled from Montreal. He is an expert in the domain and has been a longstanding and active member of the Law, Science and Technology Committee of the Canadian Bar Association. He told me at noon that he could expound the views of his committee on Bill S-33 in 10 or 15 minutes.
Mr. Derek Guthrie, Member of the Law, Science and Technology Committee, Canadian Bar Association: Madam Chairman and honourable senators, I am happy to say that I do not believe that the definition of a computer, which does not even appear in Bill S-33, would be a problem either under common law or under civil law; and if it were, it would be the same problem.
My remarks will be brief and will be limited to an area rather specialized and highly technical. I suggest that honourable senators refer strictly to the definition of “record” in clause 2, the “Interpretation” clause 130 and the “Business and Government Records” clause 152 to 158. That is the area about which I shall have something to say.
First, I do not believe, and neither does the Law, Science and Technology Committee, that our present court system and our present system of evidence cannot handle any of the evidentiary problems that we are running into today with computer printouts, or whatever other word we choose to apply to computer generated business records. The problem has not been the ability of our existing law to handle the matter, but the problem, like everything else related to computer matters, is the volume and speed with which these kinds of difficulties arise, including the number of times that commercial enterprises and financial institutions are now called upon to produce computer generated records. So we want to make it clear that we do not believe that any special status should be given to computer generated records per se. What we feel should be brought to the attention of honourable senators are perhaps two basic principles with respect to the criteria for admissibility of computer generated business records.
Honourable senators have heard several days of testimony from other bodies, such as the Canadian Bankers’ Association. Our committee has reviewed that testimony and thereof we shall not repeat it. However, with respect to admissibility, it has been suggested that financial institutions, if not all businesses, as presently defined in Bill S-33 should be permitted under certain circumstances to introduce their computer generated records with certain exceptions, which would perhaps prohibit or limit cross examination of the party who presented the records.
The idea that we would like to put across is that historically financial institutions, with respect to the presentation of their business records, have had a status of their own, and we do not suggest that that status should change. However, when it comes to computer generated evidence, all of us are about to enter, or have already entered, an era where what we knew about computer evidence 10 years ago may go out of the window in the next two or three years. In saying that, I mean that most computer generated business records that have worked their way into the court system over the past 10 years came from extremely large and complex computer systems, where usually there were three, five, ten or hundreds of people who had some aspect of feeding, storing, processing and
withdrawing business records from major systems. There was safety in numbers in terms of the accuracy of the final output of the system. Yes, there were areas for error, mechanical errors, that is true, but most of those mechanical problems have been cured by the advancement of technology in the last few years.
We are now entering the stage where many of us may have micro or personal computers. Perhaps many persons in this room may have one, in his or her home or on a desk at work, or, if not, your children may have one, or your children’s children may eventually have one. The so-called microcomputers, the personal computers, function in exactly the same manner as the large computers of the chartered banks or large corporate organizations. However, the facility with which a small microcomputer, and the data in it, can be manipulated is extraordinary in comparison with the large systems used by banks and corporations. The difficulty that we see is that if we eliminate or severely limit the normal criteria for presentation of business records to simply filing a computer printout, the reliability and trustworthiness that we have been used to over the last 10 years in large institutions may not be the same, for example, for a small professional or a small businessman, all of which are caught within the present definition of business and business records in Bill S-33. It is very simple for a mini-computer to produce a printout. The program and even the storage method can be changed overnight. So we feel that somewhere in the redrafting of Bill S-33 there should perhaps be a method of segregating or differentiating business records coming from large complex computer systems as opposed to business records coming from a $3000 or $10,000 small personal computer which can be fed, programmed and changed overnight. It is not the computer or the printout that causes the problem it is human-and I will not use the phrase “human error” – ingenuity that is capable of producing a printout which might or might not reflect what was in the memory of that particular computer at the time.
The second basic principle that we would like to suggest again involves business records of financial institutions and large corporations. It is one thing to suggest that those financial institutions and business corporations should have special rules with respect to the introduction of their computer system printouts when, in fact, the reason for having to produce the printouts is because one or more parties, who have absolutely no interest with respect to the bank or institution have merely subpoened, for example, a computer printout of a bank account. The bank has no interest. It does not know the party who subpoened them and could not care less. In those situations we appreciate and support the position taken by the Canadian Bankers’ Association in that they feel that it should
not be necessary that a person or persons from the bank or any other large institution should have to appear in court and go through a complete method of procedure to allow printouts to be admitted.
However, we feel that the situation changes when you have an adversarial situation. Let us make the example simple. Let us take a situation where two banks are litigating over a substantial sum of money involving millions of dollars-Bank I versus Bank II. Subpoenas have gone out and it is relevant to have the record or records of a particular bank or a portion of that bank’s operations submitted. To simply allow the printout of that particular bank record in, I think, might cause some interesting questions to be asked by the other bank. What we are trying to say is that in an adversarial situation we do not feel we should have the same simplification of the rules of the production of computer printout evidence.
I have just made two general comments. I would like to make briefly two or three specific but rather technical comments which I hope will aid in the redrafting of Bill S-33. I refer you to the definition of “record” which appears in clause 2 of the bill. It seems to go part way and then stops with respect to expanding what we all know as a book, a writing or a document. It goes on and refers to a card, a tape and stops there. We think that if it was going to start to give examples of these rather esoteric methods of recording information it should have gone on and used disc, drum, chip, you name it. But then the definition comes back and says, “or other thing on, in or by means of which data or information is written, recorded, stored or reproduced;” We feel that it is unwise to start an enumeration of the various surfaces or objects upon which data can be stored unless you are going to be complete. We feel that the definition of “record” should be made more general without referring to specific objects. A suggested definition for “record” was given by my colleague, Mr. Charles MacIntosh, before a hearing of the House of Commons Sub-committee on Computer Crime on June 8, 1983. We support this definition, which is found at page 16:11 of the Minutes of Proceedings of the committee. It reads:
“Record” means any information set down in handwriting, drawing, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other manner of setting down information for the purpose of data compilation and storage, and includes a printout from a computer of similar device in a form which may be understood whether the printout is the result of a process of data retrieval or a replica of data stored.
The method of recording is referring to in the definition but not the surface or the substance.
The second technical point is with regard to clause 130 of Bill S-33, which deals with the definitions of “duplicate” and
“original”. We see certain difficulties because the words are used rather indiscriminately. Words such as “duplicate”, “reproduction”, and “facsimile” are found in clause 130. A few clauses further on, in clause 156, we find the expression “duplicate or copy”. It seems to us that words such as “duplicate”, “copy”, “reproduction”, and “facsimile” when used indiscriminately may create problems of interpretation for the lawyers and the judges. We feel that the use of possibly one or, at the most, two expressions-whether it be “duplicate”, “copy”, “reproduction” or “facsimile” would be wise. This will be found throughout.
The third technical point that we would like to raise is with respect to the definition of “duplicate” in clause 130. We see the expression “means a reproduction” and it goes on until we come to “by chemical reproduction or by other equivalent technique that accurately reproduces the original”. The use of the word “equivalent” is rather puzzling. Does it mean that in the future when some new technology invents a new method for accurately reproducing the original, which is the crucial expression, that new technique must be equivalent to electronic rerecording or chemical reproduction? It seems to us that technology will come up with whatever new devices and methods it will come up with, and it is outside our control and that it does not necessarily have to be made “equivalent to electronic rerecording, mechanical rerecording or chemical reproduction’, if it accurately reproduces the original. So we question the necessity of the word “equivalent”.
Madam Chairman, those are my remarks for this evening, although we would hope that, if there is an opportunity to be involved in redrafting, members of my committee will be involved.
The Chairman: I can tell you that we have received testimony from the Canadian Payments Association on these points and that tomorrow we will hear from the Association of Records Managers and Administrators who, I am sure, will be raising some of the same concerns you expressed today. I am sure that they will be dealt with in the course of the revision.
Senator Godfrey: One of the witnesses mentioned that he hoped it would take no longer than six months. Due to experience in the past, I can assure you that it will be a lot longer than that. I moved second reading of the Trademarks bill in 1979, for example, and it has not yet come back; the Bankruptcy Act was considered by a Senate committee in 1976 ancLit is not yet passed; I could go on and on. I am quite sure that the department will be examining all of the representations you have made and that it will make a serious effort at consultation.
Some time ago we had a Professor Schiff appear before us. He is against any evidence act at all. What I am really interested in is this, and for the moment I am reflecting only on the view of the common law provinces and would like to treat Quebec differently in this regard: provided there is proper drafting of a bill, and so on, is the position of the Canadian Bar Association for against having an evidence act?
What is the general position of the common law provinces in this respect?
Mr. Fortier: Senator Godfrey, I cannot say that the CBA speaks with one voice on that question; that is, whether or not there should be a regrouping of all of the provisions having to do with evidentiary matters. I believe I am expressing the view of the common law practitioners faithfully in saying that there appears to be opposition to the codification of the laws of evidence in those provinces. Indeed, I think that the drafters of the legislation themselves have taken heed of that criticism, because we no longer have a proposed code but rather an amendment or series of amendments to evidentiary rules along with the enactment of some new ones. As to whether or not they should all be regrouped, to the extent that it is possible to do so, under one umbrella, I think the majority view of our members is that that would be a welcome development. I stress, however, that pros and cons have been expressed in this respect.
I regret that Mr. Sopinka has had to leave. He had an appointment with the Supreme Court at 5 o’clock and asked me to convey his excuses. He was modest, indeed, when he said that he contributed, along with other counsel, to the writing of a book-he is one of the leading counsel in Canada and is also one of the leading authorities, as Senator Godfrey well knows, on the law of evidence and civil matters. It is unfortunate that he cannot contribute further on this point, but perhaps Mr. Rosenberg would like to comment on the question raised by Senator Godfrey.
Mr. Rosenberg: I have spoken to Professor Schiff several times about Bill S-33 and he has a particular philosophy that the common law should continue to develop and that that is the best way. I think, however, that once it is decided that the Canada Evidence Act as we now have it needs revision, then the exercise that Mr. Tollefson’s committee went through must be performed; that is, all of the laws of evidence must be looked at and we are then forced to ask: Can we not improve upon them and rationalize them?
Quite frankly, I disagree with the views of Professor Schiff. Although there are many improvements to be made to Bill S-33, I think that once the task or exercise of revising the Canada Evidence Act is undertaken, it might as well be done. We might as well rationalize the areas.
I have made mention of character evidence. To me, that is a mess, to describe it in one word; it is a very difficult area to deal with. Primarily, I do appellate work, so I am dealing with it all the time in appeals. You cannot sit down and state the rules; you cannot tell someone what is going to happen in a particular case.
I think it is a useful exercise to revise the act, but there are some real problems with the present bill which must be addressed.
Senator Godfrey: Professor Schiff took the position, for example, that stare decisis really was not that important these days and that the judges kept on developing and changing it.
Could something be put down in a statute whereby it would be frozen and could not be further developed?
I did not quite agree with Professor Schiff in this respect. I thought that judges could develop and interpret statutes just as they could anything else, but I would simply like your comments on that.
Mr. Rosenberg: That is the danger of any statute, senator. It tends to become frozen. You run into the same sort of problem that we have run into with the Criminal Code, where everyone has seen that revisions of particular portions of the Criminal Code should be made, yet the omnibus bill has been stalled in Parliament for three years now. That is a problem.
I do not think it is that easy to say that stare decisis does not matter any more. The fact is that the Supreme Court of Canada has taken certain steps, but has basically gone through the same exercise as has Mr. Tollefson’s committee. They have said: “Let’s do away with common law corroboration; let’s do away with recent complaint.” Quite frankly, I would just as soon have Parliament do that as judges.
Mr. Fortier: My friend Mr. McKercher, the vice-president, who is an eminent counsel from a common law province, would like to contribute to the debate.
Mr. Robert McKercher Q.C., National Vice-President, Canadian Bar Associaon: Senator, you have asked a fundamental question, of course. I happen to practice civil law in the common law area. I am not a criminal lawyer, but, speaking generally, it has been my experience over many years that two things exist in a courtroom: first, not too many lawyers understand the rules of evidence; secondly, not too many judges do. Furthermore, we now have a young bar. I believe that the figures indicate that 60 per cent of the bar in Canada has been at it less than 10 years.
I suspect that the way in which judges, in trying to get on with their judicial work, cope with this morass of difficult rules is to simply say, when an objection is made, “I will take that under advisement, counsel,” and counsel never hears about it again.
I think it is quite clear, therefore, that the laws of evidence need drastic reform. I do not take any particular position on the debate today with respect to issues such as the Charter and so on that were raised by our people here, but reform is needed. Obviously this exercise shows that more consultation with active people who have to apply the rules is necessary, so that when the reform does come, it is going to work.
Mr. Tremblay: I was about to raise a point that you may be aware of already. I am reading from the report of the task force, where Mr. Justice Murray says, at page 498:
There are very few areas where the task force has not recommended legislation and accordingly I consider that, by whatever name it is called, we will have an evidence code, and I do not consider it necessary or desirable to codify the laws of evidence.
My point is simply that the concern you are expressing is basic to many people.
Senator Godfrey: I must admit that I found it difficult to follow one of the interpreters today, and this point may have already been covered, for which I apologize.
I can follow the argument that there is difficulty in a situation where the federal law and the civil code crop up in the same case. How is that problem handled now under the laws of evidence? Do you not have that problem now? Why would it be any greater under a code?
Mr. Lebel: Gen ly speaking, with respect to civil cases involving provincial and federal matters, at the present time we usually follow the provincial rules of procedure and evidence. It may happen that some provisions of the Canada Evidence Act will have to be considered and applied, but because there are relatively few such cases at the present time, they really cause very few problems. The situation will change quite completely if the bill is adopted in its present form, because we will now have whole new sets of rules on matters that are already regulated by the code of procedure in Quebec or by provisions of our civil code.
Senator Bosa: Madam Chairman, I have just two or three brief questions. I am not sure whether I should address this first question to Mr. Rosenberg or someone else. The brief makes no reference to section 52(2), but when Mr. Greenspan, a rather prominent lawyer, appeared before our committee he was highly critical of that section which would allow into evidence notes written by a policeman who is not able to appear in court either because he is seriously ill or dead. Mr. Greenspan contended that such notes are often slanted because they are written in contemplation of litigation. He said that, consequently, it would be unfair to admit them into evidence because notes cannot be cross-examined.
Do you have any comment on that?
Mr. Rosenberg: It is probably not fair to ask me because I am Mr. Greenspan’s partner, but I agree with him. I have read what he said to your committee. I think it reflects a real concern that a number of defence counsel have with that particular provision. It is kind of symptomatic of several provisions in Bill S-33, where for some reason there has been inserted a kind of crown bias or prosecutor or police bias. This is just a blatant example of that.
The circumstantial guarantee of trustworthiness of documents made in the course of duty is that they are not made looking to litigation or with the possibility that they will be used in court. They are just made because the person is under a duty. However, a police officer’s notes are made primarily to help that police officer refresh his memory when he is in the witness stand and testifying in court. They are therefore slanted that way. He records what he wants to remember. He does not record everything and he usually does not record exculpatory statements.
In fact, in a case in Toronto not long ago a police officer experienced in homicide was asked why he did not record a statement in which the accused had denied the offence. He said, “Well, I never record that part.” So there is just no guarantee of trustworthiness in those kinds of notes and it is not a fair provision to single out police officers for special treatment.
There is a role for that kind of provision; it is for routine entries in log books or the recording of exhibits and things like that. If we ever went to that, I doubt that there would be any problem, but that is not the way the section reads.
Senator Bosa: So you agree with Mr. Greenspan.
Mr. Rosenberg: I do.
Senator Bosa: I believe you said that clause 85 should be changed to permit an alibi defence to be raised at any time during the course of a trial. But isn’t there a provision within clause 85 that would enable a judge to use his discretion to allow an alibi to be admitted during the course of a trial? For instance, if an accused did not comply with clause 81, which requires him to submit notice ahead of time, wouldn’t clause 85, giving the judge that discretion, not answer your concern?
Mr. Rosenberg: There is a basic question: Why should anyone, whether it be the trial judge or the Crown, have a discretion to exclude defence evidence at all? To me that is the basic proposition. If a person has a defence of alibi, he should be allowed to present it. If he presents it late, if he does not give his notice in time, then he should run the risk that someone will comment on that and say, “Listen. This is the first time we have heard of that. We have not had a chance to investigate it.”
That is fine, but what are those words, “unless the trial court for cause shown orders otherwise”? Would that mean that some lawyer would have to get on the stand and say that he was incompetent and forgot about this provision? Will he have to say, “I did not realize I had to comply”? Or will a lawyer have to get on the stand and say that the previous lawyer was incompetent?
What do those words mean? Why should we have to get into that sort of thing in an ordinary area like a defence of alibi, or for any defence?
If you want to put in a notice provision, that is fine. The British have done it. They have their own system and we have our own system. There is nothing wrong in requiring an accused to give notice of an alibi, but don’t penalize him if for some reason, whatever it may be, he fails to do that. All there needs to be is a comment on the validity of the defence, but don’t prevent him from being able to present his defence to the jury. That is my complaint.
Senator Bosa: So you think the discretion the judge has under clause 85 is not sufficient.
Mr. Rosenberg: That is right. I don’t see the need for it. I don’t think anyone should have a discretion to exclude defence evidence, period.
Mr. Tremblay: If I may say so, senator, it is not a matter of discretion. You have to show cause so that means there is a trial within a trial. You have to say something like, “I was late because it was lost in the mail,” or something like that. It is not a matter of discretion.
Senator Bosa: Well, is it reasonable to expect that an accused who has an alibi would forget to tell his lawyer or the court that he had that alibi?
Mr. Rosenberg: Yes, that happens. It is not a question of forgetting. For example, what does “alibi” mean? If he says, “I was in a bar somewhere. I don’t know who else was there. I was just in a bar somewhere,” and he comes to trial and during the course of the trial some witness crops up, actually appears and says, “Yes, I can confirm that he was there,” does this clause in the bill mean that that witness will be excluded, that the accused can not call that witness?
There is an unnecessary formalism in the whole procedure that I don’t think is required. Perhaps the accused does not forget to tell the lawyer but perhaps the lawyer is busy and forgets to send the notice.
I am telling you that, if you want to draft an evidence code, don’t draft it for the careful lawyers. Their clients are protected already because they have careful lawyers. Draft it for the lawyer who will be careless or draft it for the accused who does not have a lawyer. That is what I am concerned about.
Mr. Fortier: May I point out to the honourable senators that at page 114 the position of the bar on that very question is set out. Let me read from the second paragraph: An accused should be permitted to raise a possible alibi defence at any time as long as it is fully understood by the accused that the judge has the right to comment on the accused’s failure to disclose it at first opportunity. We go on to say:
By making it not admissible “without the consent of the prosecutor unless the trial court for cause shown orders otherwise”, one may be adding something new to the law. We respectfully submit that there is nothing wrong with the present state of the law.
Senator Bosa: When Mr. Rosenberg was reviewing clause 123 I believe he stated that the previous record of an accused ought not to be mentioned except in cases where the accused attacks a co-accused or makes character references to witnesses. But what about the situation where an accused brings witnesses to attest to the good character of the accused himself? Would it not in that case be proper to raise the matter of his past record?
Mr. Rosenberg: Certainly. Senator Bosa, I was not attempting to be exhaustive in terms of when a criminal record should be introduced. The point I was trying to make was that, rather than focusing on the kinds of crimes or putting in the time-of-
year limitations, and that kind of thing, the focus should be on the conduct of the trial. If the accused leads evidence of his own good character, then, certainly, it is fair to adduce evidence of his criminal record. I was merely using these as examples; I did not mean to draft the rule before you.
Senator Bosa: A last question, Madame Chairman, of a general nature. Some witnesses who appeared before the committee pointed out that Bill S-33 did not incorporate all of the laws of evidence. Do you have any comments about that?
Mr. Rosenberg: I think Mr. Fortin made that point.
Senator Bosa: I am sorry, I was not here throughout the hearing, so if that point has already been made-
Mr. Rosenberg: Let me just add what I think to what Mr. Fortin said. It strikes me that if you are going through the exercise, you should be as comprehensive as possible. For example, one area that I would have thought would have been included is the area of solicitor-client privilege. That is an area wfiere we are very much up in the air as to what should be the procedure, and that struck me as an obvious area to codify, if I could use that word. However, as I understand it, the common law takes over where the bill does not specify, and as we have lived with the common law for a long time, I suppose we cannot complain if everything is not included in this bill.
Senator Lapointe: Mr. Guthrie, in your definition of “record”, would you object to the words “reflect accurately” being included in the bill?
Mr. Guthrie: I do not think so. However, we do not feel that we want to have “reflect accurately” and the come back to some other additional criteria for admissibility. It would seem to me to be one or the other.
If my recollection is correct, I believe the Canadian Bankers’ Association agreed, perhaps with a certain reluctance, that they could live with the three criteria of the task force, although they had some question with the third criterion. They did not like the “reflect accurately” because it meant that the matter could again come up before the courts which would result in another Regina v. McMullen decision which might not be necessary, and I share their point of view in that respect. In other words, by putting in “which would reflect accurately”, it would allow that same point to come up again and the court would have to decide what “reflect accurately” means, and would have to decide what the criterion for admissibility was, whereas the three criteria suggested by the task force have already basically been promulgated by the courts, perhaps not with the same clarity. However, this is a question of language and the Canadian Bankers’ Association would not wish to go back and litigate that matter again. My answer to you, senator, therefore, is that I would probably opt for the three criteria set out by the task force rather than the phrase which we now see before us in the definition.
Senator Godfrey: When you commented on section 104, I got the impression you felt that that excluded evidence, and yet it seems to me that really does not exclude evidence but
permits the judge to make a comment, which is the very thing you are saying you do not prefer. It is, I admit, a draft, but is that not really the effect of section 104, that it permits a juge to make a comment?
Mr. Rosenberg: Section 104 is a compromise that arose out of the proceedings in Whitehorse, and subsection 3 was tacked on as sort of a saving device.
Subsection 2, however, is clear. It says:
Where a party cross-examining a witness intends to contradict the witness on a fact in issue, the party shall direct the attention of the witness to that fact.
Therefore, quite frankly, I do not know what subsection 3 means. I would prefer that we just got rid of the whole concept. For example, what does that mean: ” … may take any other appropriate measure provided by law.”? One appropriate measure might be to exclude the evidence, to prevent the accused from giving his story, and I do not think that that would be appropriate.
Senator Godfrey: The other point I would like to ask you a question on is this business of the shifting of the onus. This occurs presently in a narcotic case on a question of possession. Suppose someone had a hundred pounds of hashish in the back of his station wagon. Is there anything wrong with him having to explain that?
Mr. Rosenberg: At what weight do you draw the line, though?
Senator Bosa: He said a hundred pounds.
Senator Godfrey: This is really a question of deciding at what point, or how much, which is something that goes towards the weight.
Mr. Fortier: Well, no shifting at fifty kilos.
Mr. Rosenberg: If someone has a hundred pounds of marijuana in their trunk, they have a lot of explaining to do. The Crown does not need the benefit of the reverse onus provision, and that is the point. Where it hurts is if someone has half a pound or an ounce in his or her possession. Why should he have to explain that? Therefore the Crown can get along without this provision, and I think the Ontario Court of Appeal made that clear in the Oakes case.
In the ordinary case where there is a large quantity, the Crown is not going to have any difficulty in proving its case. Where the reverse onus provision hurts is with the possibly innocent people who are found with a quantity of drugs and they should not have to explain their possession.
Senator Godfrey: So their possession is evidence in itself?
Mr. Rosenberg: Yes, that is right.
Mr. Fortier: Perhaps Professor Fortin has something to add.
Mr. Fortin: With your permission, Madam Chairman, I would like to clarify this question further. Even in cases where the law does not permit the shifting of the burden of proof
onto the accused when it comes to proving certain facts, even in those cases, as Mr. Rosenberg has said, the accused has oa bit of explaining to do». After all, he has to assume the burden of presenting facts that will result in a means of defence or that will lead to exoneration, when the prosecution evidence does not include these facts. My point is this: in most cases where existing laws require the accused to establish a fact or the existence of a fact by preponderant evidence, thus depriving him of reasonable doubt, those cases are attacks on the presumption of innocence. Most of those cases, not to say all of them, are pointless and gratuitous attacks on the presumption of innocence, because it is enough, in the absence of precise provisions in the law, that the accused must produce evidence to arouse a reasonable doubt about the matter, though he runs the risk of not doing so. That is the aspect of the question to which I would like to draw the committee,s attention as they study the provisions of the Bill that tamper too casually, in the opinion of the committee with which 1 worked, with the sacrosanct character of the presumption of innocence.
The Chairman: Thank you. Are there any further questions?
May I thank you on behalf of the committee for this very comprehensive and important brief which you have presented to us. I am sure it will be studied and observed very carefully in the ensuing months, as the revisions take place.
Mr. Fortier: Thank you, Madam Chairman, for first of all making it possible for all these views to be expressed. I personally appreciate the privilege of being given the opportunity of leading this delegation today. I hope that, through you, the very hard working members of the Department of Justice who have worked day and night in recent months on Bill S-33 will appreciate that, if they wish to continue the process of consultation, we would be more than happy to engage in it.
May I also remind you of the invitation which all of the members of your committee have received to partake of the Canadian Bar Association hospitality at 6.30 p.m. this evening at the Four Seasons Hotel, Salon F. Many of you have already indicated that you will be present and we look forward to hosting you and the members of the Justice and Legal Affairs Committee of the other place who will also be in attendance, along with members of the Law Reform Commission of Canada.
The Chairman: Thank you very much.
The committee adjourned.
Brief on Bill S-33
June 1, 1983
Canadian Bar Association
Bar of Quebec
Montreal, June 1, 1983
M. le batonnier Louis Le Bel
Bar of Quebec
1 Notre Dame St. E.
Me L. Yves Fortier, Q.C.
Canadian Bar Association
130 Albert St.
Re: Report of the joint committee of the Canadian Bar Association-Bar of Quebec on Bill S-33 (Evidence Act)
We have the honour of submitting to you the report of the joint committee of the Canadian Bar Association- Bar of Quebec on Bill S-33, concerning evidence in Canada.
We would first thank you for the confidence you have demonstrated in us, in asking us to represent the Canadian and Quebec Bars in developing the official position of these two bodies.
However, we greatly regret not having the time necessary to conduct a more thorough study and carry out broader consultation, which would have better reflected the scope and significance of the proposed legislation, and we can only state our hope that the sponsors of this Bill will give us all-and themselves-additional time for consideration.
After ten years of work on this subject, it is difficult to imagine that there can suddenly be such urgency that the people whose opinions would be of assistance in improving the Bill cannot have the opportunity of contributing to the discussion.
It should also be noted that the portion of our Committee report dealing with the criminal aspects of the Bill deals only with the points on which it was possible to gather opinions from a number of eminent lawyers who were able to take time to meet with the Committee.
Certainly, in view of the interest they demonstrated, a longer time would make it possible to obtain a more representative survey of the profession.
For the same reason, we were able only to make a broad study of the Bill, by highlighting particularly significant examples, although we were aware that a more specific study is necessary.
There was even greater difficulty in organizing any valid method of consultation on the civil aspect, as the Bill was almost unknown among the civil law practitioners in Quebec.
Nevertheless, we were able to call together a number of people, who could only confirm what we had already feared in the area of the problems that Bill S-33 could cause for members of the Bar practising in the civil law jurisdiction, as well as for parties appearing before the Courts.
We were therefore forced to limit our report to indicating the areas that should be addressed by a more thorough study and consultation process.
For their invaluable contribution, we would like to thank the following people, who agreed on little notice to join us in considering the effects of the Bill:
-Leo Ducharme, Q.C., Professor in the Faculty of Law of the University of Ottawa;
-Harvey W. Yaroskey, esq
-Morris J. Fish, esq
-Francois Daviault, esq
-Pierre Poupart, esq
-Jean-Claude Hebert, esq
-Yves Beriault, esq
We offer a very sincere thank you to these generous people, with the hope that Parliament will give them the chance, as they would like, to examine the Bill further and in greater depth.
We would like to thank particularly our devoted secretary, Gustave Hebert, of the research service of the Bar of Quebec, who often had to work at double speed. Without him, and the support staff we had around the Committee, Mr. President and M. le Batonnier, we would never have been able to submit this study within the time limit imposed on us.
We hope that the enclosed study will be of some use to you.
Yours very truly,
JOINT COMMITTEE OF THE CANADIAN
BAR ASSOCIATION AND THE BAR OF
QUEBEC ON BILL S-33
Gerald R. Tremblay, esq., Chairperson
Prof. Gisele Cote Carper
Prof Jacques Fortin
The Hon. Andre Nadeau, QC
Melvin Rothman, JSC.
Gérald R. Tremblay
CANADIAN BAR ASSOCIATION-BAR OF QUEBEC
June 1, 1983
Committee of the Canadian Bar Association-Bar of Quebec
on Bill S-33 (Evidence Act)
Gerald R. Tremblay, Chairperson
Gisele Cote Harper
Melvin Rothman J.
Gustave Hébert, Secretary
Research service, Bar of Quebec
Legal filing-2nd semester 1983
The Bill to give effect, for Canada, to the Uniform Evidence Act adopted by the Uniform Law Conference of Canada was tabled in the Senate of Canada in November 1982. Although this Bill is the final product of a process that extended over several years, it had not been discussed with the entire profession in its present form prior to tabling in the Senate.
In order to ensure that the Quebec perspective on this Bill is clearly identified, a Committee of the Bar of Quebec and the Canadian Bar Association was established. While this Committee is one of several of the Canadian Bar Association that has done such work, its particular mission was to present the views of Quebec on the Bill.
Having said this, in view of the physical impossibility of conducting any broader consultation process in the very short time available to it, the members of the Committee carried out its examination of the Bill in co-operation with lawyers who agreed to contribute their considerable experience, in both criminal and civil law, and who participated in the Committee’s study of this legislation, in order to determine the impact it may have on the practice of the profession of law in Quebec.
Despite the efforts expended in a very short time, it should be noted that this document should in no way be considered to be the result of any exhaustive study of all the sections and all possible consequences of enactment of the Bill. The Committee could only draw attention to the points it considered most offensive, and is convinced that an extended period for consideration and consultation would have contributed to expanding the range of comments on the Bill in question.
When we skim through Bill S-33, it is clear that it is dealing with both criminal and civil law. Our concerns in the area of criminal law are similar to those of the profession throughout Canada, and in all provinces. We shall consider later in this brief the various criminal aspects of this Bill which particularly drew our attention.
However, it is essential to note at the outset that the civil aspects of this Bill as they concern Quebec are unprecedented.
The law of evidence in Quebec has always been-with minor exceptions-the law provided in and Code of Civil Procedure. It is our Civil Code important to note that these provisions deal not only with rules of procedure, but also with rules of substance, regardless of the Court to which one is dealing, and regardless of the area of legislative jurisdiction in question. In other words, even if the resolution of a dispute at a trial requires that facts be proved that relate to enforcement of a federal Act, these facts must be proved according to the rules of our civil law. The unity and coherence that results from the fact that the same rules apply before all Courts, including Federal Court, can only be beneficial.
If Bill S-33 is adopted as is, it will succeed in bringing about a significant change to this situation.
Section 3 of the Act reads as follows:
Subject to sections 4 and 5, this Act applies to every proceeding and stage of a proceeding within the jurisdiction of the Parliament of Canada that is before a court or that is held for the purpose of taking evidence pursuant to a court order.1
When this section is read in conjunction with s 6 of the Bill and the definition of a “court” that is found in s 1, we can only conclude that every time a federal Act is at issue in a civil proceeding before any Court at all, w hether federal or provincial, the provisions of the new Bill must apply.
The Bill, which in several respects is simply a codification of the common law, will substantially change the rules of evidence that have been applied in civil matters up to this time.
It therefore follows that the civil aspect of this Bill substantially amends the civil law of Quebec.
It is not a sufficient response to this statement to s 1 that s 2 of the present Canada Evidence Act contains a provision similar to s 3 of the Bill. While that is undoubtedly true, the area to which the present Canada Evidence Act applies is so limited in civil matters that the results of this section cannot be compared to the results of the new provision, which exist in the context of a Bill with an area of application that extends to our entire civil law of evidence.
It should not be forgotten that Parliament itself recognized and respected the duality of the legal system in Canada in enacting subs 11(b) of the Law Reform Commission Act, which states: “The objects of the Commission are to study and keep under review … the statutes and other laws … with a view to … the reflection in and by the law of the distinctive concepts and institutions of the common law and civil law legal systems in Canada, and the reconciliation of differences in those concepts and institutions …”2
We conclude that a change that is at the same time as substantial and as unilateral as the change proposed is totally unacceptable, and does not contribute to maintaining this duality. It is even more unacceptable in that there was no prior consultation with civil law practitioners in Quebec, and that the need for a national Code in questions of evidence other than in criminal proceedings has never been discussed, let alone demonstrated.
Moreover, the constitutional disputes that could arise from such a codification of the rules of evidence in civil proceedings could be avoided if the Act applied only to criminal proceedings, as the Law Reform Commission itself suggested.
The members of the Committee questioned the advisability codifying the rules of evidence relating to both civil and criminal proceedings in the same legislation.
In considering the presentation of evidence in criminal proceedings, the Committee gave particular attention to the rights now granted to the accused. The Bill disturbs the traditional balance between the rights of the prosecution and of the defence.
Independently of this question, certain basic rules, which are intended as a codification of principles developed in the decisions of the Canadian common law Courts are incomprehensible if the reader does not have a thorough knowledge of the common law, as a result that is contrary to the very spirit of a codification, whatever form it may take.
Finally, although we first object to the very essence of the Bill, we believed that it would be advisable to deal with the French version of the Bill. This version uses new technology, which is used as the vehicle for concepts that are totally foreign to our legal vocabulary.
The members of the committee are aware of the fact that the second French version provided to them is an improvement over the first. Nevertheless, they note that it still contains a number of problems th at lead them to conclude that the French version of the Bill should be totally reworked. It is essential to ensure that Parliament will adopt two versions of the same Act, and not two Acts-one in French and the other in English. In addition, Parliament should avoid discarding expressions that have been used correctly, in both the linguistic and the conceptual senses, for generations, these expressions having become necessary when a legal system first conceived in English is practised in French.
It is in this spirit that the Committee of the Canadian Bar Association-Bar of Quebec submits its comments to you, dealing first with the rules of evidence in criminal proceedings, and then approaching the question from the angle of the rules of evidence in civil proceedings.
I BILL S-33 AND THE CRIMINAL LAW
When the joint Committee of the Canadian Bar and the Quebec Bar was formed to study Bill S-33, the proposed Uniform Evidence Act for Canada, the members called a meeting of a number of lawyers of the Bar of Montreal, so as to obtain their comments on the Bill as a whole as well as on the individual provisions that appeared to the Committee to require specific comments. These notes have been prepared out of this consultation.
Because of the short time given to us, it goes without saying that we were unable to carry out a complete analysis of all the provisions of the Bill. We rather perceived our role as bringing to the study of those particular points of the Bill that are of undeniable significance the point of view of lawyers who appear in the Courts on a daily basis. In addition, the Canadian Bar Association had assigned the specific study of certain parts of the Bill to another group of lawyers, so that all the topics dealt with in the Bill would be covered.
It should be noted at the outset that the Committee is in no way questioning the need to bring together in one Act the various rules now found in legislation and the cases, which compose the law of evidence in criminal matters. The Committee understands perfectly the objectives of the Bill.
However, the manner in which these objectives are attained is not immune to certain criticisms that are, in the eyes of the Committee, of fundamental importance. Thus the information document published by the Department, “A proposal for a new Evidence Act” states in the clearest possible terms that the new Act is not intended to be a Code to cover all aspects of the law of evidence. That document also states that it was considered more desirable not to legislate in certain areas of law, but rather to permit the law to develop through the decisions of the Courts.
In the opinion of the Committee, this concept of the Bill is debatable, as we shall see in the first part. Moreover, the information document states that the changes made by the new Act to the rules of evidence themselves do not differ radically from the present law. This statement is not an accurate depiction of the reality of the situation. We shall see in the second part to what point the Bill effects numerous and substantial amendments to the present law, which amendments generally operate to the detriment of the rights of the accused.
PART I: GENERAL CONCEPT OF THE BILL
By denying that the Bill is an evidence code, it is undoubtedly intended that all the criticism to which the Law Reform Commission was subject for its 1976 code of evidence would be avoided. An Evidence Act is presented, defining a series of individual rules whose provisions may be understood only in relation to the common law, in the absence of a statement of principles to guide the Courts in interpreting the rules in the Act. However, the intent to codify the existing law is present throughout the Bill, and the codification of rules without principles on which they are based, or to which they are subject, cannot be carried out without risking the creation of distortion of which we shall see a number of striking examples.
Despite the broad scope of the Bill, it remains very incomplete.
The structure of the Bill
There is a paradox evident in the structure of the Bill. While the feeling shared by a majority of the profession that the law of evidence as developed by the common law is in a state of disorganisation such that it is very difficult
to find the sources of the law and determine its substance, may make legislation necessary, nevertheless one cannot but observe that the Bill has borrowed the structures of the common law and the rules in its case law without changing any aspect of them. Hearsay is just one example of this. The structure of the Bill is comparable, except for a few details, with that of the textbooks on the subject. First, we find a definition of hearsay, followed by the general rule excluding hearsay evidence, and finally a series of exceptions that are grouped together without any reference to the principle justifying the exceptions-the reliability of the evidence. Those who drafted the Bill thus indicated their wish to codify the rules of the common law down to their smallest details, but they have done so without bothering to rethink the fundamental rules and the reasons for these exceptions, or grouping the provisions on the basis of the principles set out in them in any comprehensible manner. The Committee feels that the effect of this structure on the concept of the content of the Bill is unfortunate.
The concept of the content of the Bill
Simply to transform the common law rules into statutory rules, without any statement in the Act at the same time of the principles on which these rules are based, is to diminish the common law. A rule that is transposed into a statutory context loses the flexibility that it has in a common law context. It also tends to become an end in itself, isolated from its context, and thus becomes absolute, even when in its common law source it was relative, and was valid only in relation to the principle that applied to the case. Two examples should be sufficient to illustrate this idea: they are found in ss 14 and 22.
Section 14 of the Bill reads as follows:
In a criminal proceeding, the court is not required to give the trier of fact any special direction or instruction on the burden of proof in relation to circumstantial evidence.
Leaving aside the innovative nature, to say the least, of the vocabulary used, at least in the French version, it may be noted that the rule in question is intended to express the modifications made by the Supreme Court of Canada in Cooper3 to the directions relating to circumstantial evidence.
The Supreme Court did not say that the Court was not required to give the trier of fact any special direction in relation to circumstancial evidence. Rather, what it said was that there is no sacred formula that must be used for circumstancial evidence. The Supreme Court pointed out that the important thing is that the trier of fact understand the fundamental rule of the presumption of innocence and of reasonable doubt, and that is the principle at issue in Cooper. Section 14 has been drafted in the negative, and so can only be understood by a reader who is familiar with the Cooper decision, and so the effect of s 14 is to lose sight of the principle that the Supreme Court intended to put forward in this decision. It is very possible that the evidence in a specific case may by its very nature require that the judge give special direction to the jury, in order that it may understand the principle of the presumption of innocence and how the reasonable doubt rule gives effect to that presumption. Scction 14 does not set out this very important aspect of the Cooper decision, and the statutory formulation of the common law rule is thus without any doubt a derogation from the common law.
One more illustration of this effect, and one that is even more obvious, is found in s 122 of the Act. The effect of this section is to codify a common law rule stated by the Ontario Court of Appeal in R v Davison, DeRosie and MacArthur.4 This decision significant changed the statement of Spence J of the Supreme Court of Canada in R v Colpitts.5 It should be noted that Spence J had stated that an accused who decides to testify in his own defence may be treated as an ordinary witness for the purposes of verifying his credibility on cross-examination. The Ontario Court of Appeal noted the absence of realism in this statement, because of the difficulty in presuming that the jury can in fact appreciate that the implications of the facts disclosed on cross-examination are limited to the matter of the credibility of the accused. It is in this context that Martin J referred to the specific situation of the accused, by virtue of which the Crown cannot rely in cross-examination on facts that would impugn the accused’s character and that are of no relevance to the facts in dispute. The well-known exception, which we shall discuss later, is of course in relation to evidence of previous convictions, which are dealt with in s 12 of the Evidence Act.
The Ontario Court of Appeal added another exception to this one, the purpose of which is to permit the Crown to impugn the accused witness’s character when the question of character is directly relevant for the purpose of proving the falsity of the accused’s evidence.
If we now examine s 122 of the Bill, we find that the exception to the principle that “an accused shall not be cross-examined, solely for the purpose of challenging his credibility, as to his character, antecedents, associations, mode of life or participation in crimes” is stated in a way that can be interpreted much more broadly than the common law rule as stated by the Ontario Court of Appeal. The section in fact allows the Crown to give evidence of character if it is directly relevant to proving the falsity of the accused’s evidence. Certainly, in the case in question, Martin J did use the word’s “the accused’s evidence”, those being the words used in s 122. However, as was noted above, “the accused’s evidence” in the context of the decision refers to the accused’s testimony. This is not made clear in s 122. Either s 122 is intended to be interpreted without reference to the case law on which it is based, in which case it is an obvious enlargement on the rule of law, to the disadvantage of the accused, or s 1 22 must, to be understood in its true meaning, be understood on the basis of the common law rule it purports to set out.
Here again, it may be seen that the method in which the Act has been drafted distorts, if it doesn’t actually derogate from the common law rules. As a result, the relative nature of the common law rules, which must always be considered in the context of the facts to which they have been applied, disappears once they are put into statutory form, a form that does not reflect the various shades that exist in the common law. As a result, they tend to become absolute, in the absence of a clear statement of the principle that justifies the rule and the reasons for the exception.
The incomplete nature of the Bill
A distinction must be made as clearly as possible between the non-exhaustive nature of an Act, as p 3 of the information document appears to intend when it explains that it was considered preferable not to legislate certain aspects of the law of evidence in order to permit the law to develop through the decisions of the Courts, and the omissions there may be in a Bill. Clearly, a Bill such as the one in question here that does not include statements of fundamental principles could not be exhaustive. On the other hand, the fact that a Bill is incomplete can create real problems. In this respect, we would refer, for example, to at least four matters that are of great importance in the law of evidence that do not appear in the Bill. These are the voir dire, dismissal, use of new evidence on appeal and the guilty plea.
The importance of the voir dire in the evidence system need not be argued. When the Court is required to verify facts in order to determine the admissibility of evidence or the competence of a witness to testify or the expert qualifications of a witness, there will be a voir dire. The cases demonstrate a number of difficulties in the evidence system in relation to the voir dire that do not require consideration here, but it should be noted that the Bill omits any reference to the general characteristics of the voir dire. The Bill deals with the voir dire exclusively in the context of statements by the accused. In particular, s 64 eliminates the need for a voir dire in relation to res gestal, s 65 prohibits cross-examination of the accused as to the truth of his statement, s 71 provides that the evidence adduced at the voir dire shall form part of the evidence in the preliminary inquiry, s 68 provides for waiving a voir dire, subs 116(2) for a voir dire during cross-examination of the accused on the statement and, finally, s 64 alters the burden of proof on the Crown on the question of whether the statement by the accused was made freely and voluntarily.
Thus what the Bill does is to give us a series of individual provisions that deal with the voir dire exclusively in relation to statements by the accused. However, there are problems relating to the burden of proof and the manner of adducing evidence to demonstrate the admissibility of evidence other than a statement by an accused, that a draft Evidence Act should deal with.
It is also surprising to note that the Bill makes no mention of the dismissal. This is an application in the law of the principle of res judicata, and in this respect is exclusively a problem of evidence, which poses great problems for Courts; an example may be found in the recent Supreme Court of Canada decision in Gushu v R.
The production of new evidence on appeal, now governed by s 610 of the Criminal Code, is itself essentially a question of the law of evidence.
Finally, and not the least of the gaps found in the Bill, is the absence of any provision relating to the guilty plea.
Under the heading “Formal Admissions”, in ss 16 and 17, the Bill deals with admissions that may be made by the parties for the purpose of dispensing with proof by the adverse party. The modifications made by these sections to the present law may be disputed, in so far as they now make it possible to make admissions involving a question
of law. However, what we want to point out here is the significance attached by s 16 to partial admissions made by the parties, and particularly the accused, while the guilty plea, the admission par excellence, is completely om itted. The Criminal Code devotes three brief sections to this legal institution, which is of great importance in evidence in criminal proceedings, and which raises a host of problems in the case law. While we do not intend to give an exhaustive list of these problems, we wish to raise the following points:
-plea bargaining between the defence and the prosecution, including the validity of agreements between the parties;
-judicial control of the acceptability of a guilty plea, the nature and extent of this control, verification of the voluntary and informed nature of the plea and of its merits, the role of the lawyer, the conditions governing withdrawal of the plea and the effect on the validity, as an informal admission, of the guilty plea when it is withdrawn or decided to be unacceptable.
All these questions, which are of great importance in the law of evidence, are totally ignored in the Bill. The Committee can only express here its bewilderment at this omission.
Finally, the difficult question of the admissibility of similar facts, which raises a fundamental aspect of the concept of relevance, is simply ignored.
The concept of res gestae is defined exclusively in relation to statements that communicate facts or feelings, when the common law applies to the concept also the admissibility of conduct that is part of the event in issue.
To conclude, it appears that the general concept of the Bill suffers from several fundamental problems, and that its objective of simplifying the law runs serious risk of being compromised by the slavish reproduction of the structures of the common law, by the distortions that result from the statutory transcription of common law rules stripped of their context, and by the omissions in the Bill.
Part II: MODIFICATION OF THE PRESENT RULES TO THE DISADVANTAGE OF TI IF, ACCUSED
Several provisions of the Bill include restrictions on rights that the accused now enjoys: the presumption of innocence, the right of the accused not to testify in his own defence, the right to a full and complete defence, the effect of prior statements, and burden of proof at a voir dire relating to a confession.
Presumption of innocence
It would undoubtedly be pointless to recall that the Canadian Charter enshrines the presumption of innocence (subs 11(d)), which is traditionally identified with the rule of reasonable doubt. Sections 10 to 15 of the Bill deal with this question, and there are three difficulties evident in those sections: first, there is a problem with the formulation of the rights in question; secondly, there is the question of whether it is advisable to put into legislation the proposed rules relating to the principle adopted in the Canadian Charter; and finally, there is the problem of how the rule set out in s 730 of the Criminal Code will fit into the overall system of criminal law. Without delving into the problems raised by the French version, the Committee notes that the formulation of the rules proposed by this section does not assist in comprehension. In this respect, the proposed provisions appear to the Committee to be a clear step backward from the formulation advocated in the Code prepared by the Law Reform Commission. The Commission avoided using formulae such as the “balance of probabilities” or “preponderance of evidence”, proposing instead a descriptive formumation of the intellectual phenomenon in question. For example, subs 12(5) of the Law Reform Commission’s Code of Evidence reads as follows:
(5) When an Act expressly provides that the accused has the burden of persuasion with respect to a defence, excuse or justification to a criminal offence, that burden is dicharged if the trier of fact is satisfied that the existence of the defence, excuse or justification is more probable than its non existence.
On reading this provision, we note that the intellectual phenomenon that the expression “balance of probabilities” or “preponderance of probabilities” seeks, with a lack of precision, to express is defined in simple, concrete terms that are within the jury’s grasp without the judge having to define a technical expression. The formulation advocated in the Code of Evidence has another significant advantage: the burden of persuasion on the Crown is defined not only in relation to the essential elements of the offence, but it is also stated, as it is in the cases, to relate to the defences available to the accused.
The structure of the sections in the Bill also leave much, to be desired in comparison with the structure of the Code of Evidence. For example, with respect to criminal proceedings, the Bill discusses the specific rules relating to the burden of proof, before setting out the more fundamental principle, the obvious one of the presumption of innocence. One might ask, in relation to the burden of persuasion, whether it is advisable to put into statutory form the formulae that place restrictions on the presumption of innocence, when at the same time there are legal disputes in progress concerning the interpretation of the Charter. Clearly, the Bill could not have the effect of validating, in relation to the Charter, any provision that would impose on the accused the burden of proving a fact in issue, by a preponderance of evidence. If a restriction on the presumption of innocence is not justified within the meaning of s 1 of the Charter, it is self-evident that a judge would not give effect to the restriction.
There is one remaining aspect of the Bill that significantly modifies the present law. Subsection 12(1) operates to apply to all offences, whether they be criminal or summary conviction offences, the rule in s. 730 of the Criminal Code that has until now been limited to summary conviction offences. Moreover, subs. 12(2) explicitly states the effect of the provision: the presumption of innocence contained in that provision relates only to defences of general application, and not to specific defences provided in legislation.
Right of the accused not to testify
At least four provisions of the Bill operate to penalize the accused if he decides not to testify in his own defence.
These provisions are innovations which are far from being justified in the Bill, particularly as the Bill recognizes the present law that the failure of an accused or the spouse of an accused to testify shall not be made the subject of comment by the court or by counsel for the prosecution (s. 94). The provisions we refer to are subs. 62(2) relating to res gestae, s. 108 relating to the order of testimony, subs. 123(3) dealing with cross-examination of the accused on his previous convictions, and s. 95 dealing with the burden of proof on the accused.
Subsection 62(2) provides, in substance, that a statement made by the accused spontaneously and at the time of the event may not be received in evidence if the accused does not testify. The section provides that the accused cannot adduce such a statement by way of cross-examination of a witness who may have heard the statement. The purpose of this provision is clearly to avoid the effects of the decision of the Supreme Court of Canada in Graham. A majority of the judges of the Supreme Court held in that case that the accused could give evidence of the statement that he had made to the police at the time of his arrest for possession of stolen goods when he was in possession of stolen jewels. In the circumstances of this decision, the accused used the cross-examination of the police officer to put his exculpatory statement in evidence. The Court held that this statement was admissible on the basis that it was part of the res gestae since it was contemporaneous with the possession, which possession was a continuing offence. Of course, in circumstances of this type, it might be thought that an accused would have been free to prepare an explanation intended to clear himself in the event that he were arrested, which would amount to self-serving evidence, in the circumstances. It was clearly distrust of such evidence that led to the admissibility of such a statement being made subject to the obligation of the accused to testify. The provisions of the Bill contain an internal contradiction on this subject: on the one hand, the statement in question is admissible under para. 62(1)(i) if it was made by the accused spontaneously at the time the event in question occurred; on the other hand, regardless of whether it was spontaneous and contemporaneous with the event, it is not admissible if the accused does not testify. However, surely the decision of the Court that the statement is spontaneous is a sufficient guarantee of its truth. The Committee is of the opinion that the right of the accused not to testify in proceedings against him should not be compromised for the sole purpose of protecting the prosecution from what would appear to be a tactical advantage that could be used for the benefit of a certain type of accused, when the prosecution could rely on the doctrine of recent possession in the absence of the accused’s statement.
Section 108, like the existing law, provides that the accused may call witnesses in any order he wishes, but also provides that the Court may comment to the jury as to the weight to be given to testimony by the accused that confirms testimony given earlier by one of his witnesses. This provision, contrary to the present law, has the effect of allowing the judge to prejudge the credibility of the accused on the basis of the sole fact that he testifed before some one or more of his witnesses.9
This is a clear contradiction of the right of the accused to a full and complete defence and not to be required to testify in his own trial. These two principles together mean simply that the accused has the right to give a full and complete defence without testifying himself. Any rule that has the direct or indirect effect of forcing the accused to testify before his witnesses is a restriction on the right of the accused to provide a full and complete defence and the right not to testify. The effect of the rule is that the accused has to exercise his right to testify or not to testify even before his defence is completed. It would appear essential that the accused be able to reserve his decision as to whether he will testify until such time as he is able to have a full opportunity to hear the evidence. He has no control over the credibility of the witnesses that he decides to call, or over the effect of the testimony of such witnesses on the trier of fact. Considered in this way, section 108 clearly has the effect of penalizing the accused on the basis of the point at which he decides to exercise his right to testify.
The wording of the directions set out in s. 95 of the Bill, relating to the evidential burden on the accused to produce evidence to make his defence, includes references to the right of the accused not to testify in his defence that are unacceptable in the opinion of the Committee. First, the content of the directions is itself a comment on the decision of the accused not to testify, and such comment is contrary to the principle set out in s. 94 of the Bill.
Secondly, the cases have consistently held that the accused may discharge the evidential burden relating to a fact that is relevant to his defence without testifying himself. The Bill confuses this issue. Finally, the last provision of the direction, “if he does not testify, he runs the risk of not being able to defend the case (count(s) or charge(s)) against him”, can mean only one thing to a jury: if the accused does not testify, he is guilty.
The effect of subs. 123(3) is to amend the present s. 12 of the Evidence Act. Section 12 puts an accused who testifies on the same footing as an ordinary witness with respect to cross-examination concerning previous convictions, which is used to test the credibility of a witness, including an accused who is testifying on his own behalf. The amendments to this section are necessary because of the dilemma in which an accused with a record is placed: either he does not testify if he wishes to avoid cross-examination on his previous convictions, with the resultant risk that the jury will hold his failure to testify against him; or he does testify, and runs the risk of having his record revealed to the jury. However, in the latter case, the judge must instruct the jury on its duty to limit its consideration of the previous convictions to the question of credibility alone.
Empirical studies described in the report by the working group when the Bill was drafted show that the direction cannot have the anticipated effect. It must be noted at the outset that the provisions of subs. 123(3) of the Bill are a guarantee of the rights of the accused against the dangers in the rule set out in the present s. 12. This amendment seems to be intended to encourage an accused who has a criminal record to testify. However, we must ask whether the protection envisaged is as effective as those who drafted the Bill assumed. Undoubtedly, previous convictions for perjury or for giving contradictory testimony are relevant to the witness’s credibility. It is less clear, however, that an offence that includes fraud as an essential element is relevant. To isolate crimes “that include fraud as an essential element” as being of particular significance with respect to the accused’s credibility is unfair at the least, not to mention the insurmountable difficulties that could arise in attempting to apply this concept. It must also be noted that the recommendation on which s. 123 of the Bill is based provoked strong disagreement within the working group, precisely for these reasons.
The right to a full and complete defence
At least three provisions of the Bill operate to restrict very seriously the right of the accused to a full and complete defence. They thus constitute innovations to present law, and can be justified neither in theory nor in practice. The first is s. 28, which limits the circumstances in which the accused may adduce evidence of a character trait of the complainant, and leads to a conflict when an accused relying on a legitimate defence is deemed to be putting in issue a character trait the complainant; the second is ss. 80 to 85, governing alibis.
To a certain extent, s. 28 restates the present law, but it then goes much further. Contrary to present law, it permits an accused to prove a character trait of the complainant, if this trait is relevant to a matter in issue. For example, the complainant’s propensity for violence is relevant to the fears that the accused may have and to a defence of self-defence raised by the accused against a charge of bodily harm or homicide. On the other hand, and contrary to the present law, s. 28 opens up the possibility that the Crown may prove a character trait of the accused,
when the accused adduces evidence of a character trait of the complainant or pleads self-defence. This innovation is limited by the conditions set out in s. 27 of the Bill, which provides that the prosecution may adduce evidence of any trait of an accused’s character only if the court concludes that the accused has put his own character in issue by attacking the character of the complainant. These provisions are open to objections. The simple threat that if the accused pleads self-defence the prosecution may rebut it by adducing evidence of a trait of his character appears to the Committee to be an unjustified restriction on the accused’s right to a full and complete defence.
There is consistent case law that late disclosure of an alibi may be taken into consideration by the trier of fact in determining what weight should be given to that defence. The case law authorizes the trier of law to bring this matter to the attention of the jury. The Bill goes much further, and makes substantial changes to the evidence of alibi, including an unjustifiable restriction on the right of an accused to a full and complete defence. In particular, s. 81 imposes an obligation on an accused who intends to present an alibi to inform the prosecution at the first reasonable opportunity of his intention to rely on an alibi, and to indicate his whereabouts at the time the offence was committed, and the names and addresses of the witnesses who can testify as to his presence at that place, An accused’s failure to comply with this obligation makes him subject to the provisions of s. 83 of the Bill, which permits the Court or the adverse party to comment on the weight to be given to the alibi.
The Bill goes so far as to provide (subs 85(1) that the failure of an accused to give the notice provided in s 81 within seven days after being committed for trial will render alibi evidence inadmissible. To remedy this situation, the prosecution must have consented to the accused presenting his defence, or the accused must convince the Court that it is admissible. There are two kinds of comments to be made on this provision. First, any changes to the present law governing the weight of alibi evidence cannot be justified unless it is shown that the present rules are inadequate. There is nothing on which such a conclusion could be based. On the contrary, it is well known that the defence of alibi is generally regarded with some distrust. In addition, the directions that the trier of law may give to the jury on the credibility of alibi witnesses are the direct result of this distrust. The present situation appears to provide sufficient safeguards to eliminate the risk of false alibis escaping detection by the Courts or notice by the jury. Even if there were really risks in the alibi defence that were difficult to control, it is the opinion of the Committee that the measures advocated in the Bill are an unwarranted restriction on the right of an accused to a full and complete defence. It is sufficient to note in this respect that an accused who fails to provide the details of his alibi within the time provided in the section loses the right to rely on that defence, unless the prosecution consents to his doing so. It is unconceivable that the accused’s ability to present his alibi should depend on the goodwill of the prosecution. Moreover, failure by the accused to disclose his alibi before the trial may be attributable to a host of reasons unrelated to any attempt on his part to rely on a false alibi.
The implications of previous statements
Present law is that previous statements by a witness that are used to challenge or support the credibility of the witness are not evidence of the truth of the statements. Apart from a statement by an eye-witness out of court identifying the accused, which is admissible as evidence of its truth when the witness testifies (s 46 of the Bill), the only time when, according to present law, a previous statement by a witness that is used to challenge or support the witness’ credibility can be proof of its content is when it is adopted by the witness during the testimony of that witness. This rule is codified by subs 120(a) of the Bill.
There are several provisions in the Bill that change the existing law in this respect; these are ss 48 and 115 to 121, which provide that a previous statement by a witness used for the purpose of challenging or supporting his credibility is evidence of the truth of the statement, to the extent that it was made by the witness under oath or solemn affirmation while available for cross-examination. The reasons used by those who drafted the Bill to support this change seem to be that the previous statement was made under oath and there was the opportunity to cross-examine. This reason is not convincing, if we consider the reasons on which they relied in support of their definition of the concept of hearsay. That definition, in s 2 of the Bill, provides that hearsay includes any statement, made by a witness or by a party, outside the Court in which the case is being heard, when the person was not under oath and was not subject to cross-examination. Paradoxically, the fact that the previous statement was made under oath and the witness was subject to cross-examination at the time of making the previous statement is now used to avoid the rule excluding hearsay evidence. It is felt that the safeguards offered by cross-examination in the past are
sufficient to replace the safeguards normally offered by cross-examination before the Court. This conclusion contradicts the rationale relied on in support of the definition of hearsay adopted in the Bill.
The privilege against self-crimination
The Bill includes several provisions that prejudge the interpretation of the Canadian Charter of Rights and Freedoms, which provides that everyone has the right not to have any incriminating evidence given to be used to incriminate him in any other proceedings except in a prosecution for perjury or for the giving of contradictory evidence. For example, the words “used to incriminate him in any other proceedings” may quite well be interpreted to mean that testimony given under the privilege provided by the Charter may not be used against the witness, even for the sole purpose of challenging his credibility. The least that can be said in this respect is that the case law is not clear on this point at present. The draft Evidence Act prejudges the meaning of the constitutional provision. Specifically, s 163 provides that a statement by a witness that is inconsistent in a material particular with his present evidence may be received in evidence for the sole purpose of challenging his credibility. This provision obviously assumes that use of the previous testimony for the purpose of challenging credibility is not an incriminating use within the meaning of the provision of the Charter. The only argument that can be used in support of this interpretation is that preventing the prosecution from using the previous testimony to challenge the credibility of an accused witness would permit the accused to lie at his trial with impunity. However, to take the contrary position, it may be argued that the accused cannot act with total impunity, since in any event, and by virtue of the provisions of the Charter itself, the testimony in question may be used in a prosecution for perjury or for giving contradictory evidence. Since these are the only two exceptions expressly set out in the Charter, this interpretation lends support to the theory that the statement may not be used even for the sole purpose of discrediting the witness. Of course, given the present situation, it is impossible to settle this question one way or the other. On this point, the Committee would note that the danger that differences between the wording of the Bill and that of the Charter will become a source of futile and frustrating litigation.
Burden of proof at the voir dire
Section 64 of the Bill provides that the burden of proof on the prosecution to prove that a confession was voluntary is on the balance of probabilities. It is well established law that the rule of reasonable doubt applies to a determination of whether a confession is voluntary. It should be noted that the working group decided in favour of retaining the present rule of law. The Bill contains a further serious restriction on the rights of the accused. Those who favour this provision appear to be ignoring the very specific nature of the role a confession may play in the criminal process. While the Supreme Court has in recent years given a technical meaning to the confession, it includes statements that so that are not necessarily in the nature of an admission of guilt, nevertheless in the great majority of cases confessions used in evidence against an accused are in the nature of an admission of guilt. Evidence of a confession may therefore by itself justify a guilty verdict, and so it is important that there be specific safeguards on the conditions which determine whether it is admissible. It is disconcerting to note that with the stroke of a pen a rule that has developed through the wisdom and experience of the Courts has been set aside. A confession is also evidence of a specific kind because of the circumstances in which it was obtained. It must be recalled that at the voir dire the accused is often alone in citing reasons to doubt that his statement was voluntary, facing a whole series of police witnesses alleging, to the contrary, that the statement was voluntary. It would seem that if there is a reasonable doubt at the conclusion of the voir dire as to whether the accused made the statement in question without being influenced by promises or threats made by a person in authority, that should be sufficient reason to prevent the prosecution from using it in evidence against the accused.
II-Bill S-33 and Civil Law in Quebec
As we have noted, the fundamental difficulty lies in the fact that the Bill changes the rules of civil law that have applied until now to questions of evidence in Quebec.
Before making such changes, the Department of Justice should have conducted a thorough study of the impact that the civil aspects of the Bill would have in Quebec, by distributing a white paper or by organizing working
sessions of the kind held by the Law Reform Commission relating to its project, or by requesting that the Quebec Bar organize such sessions for it.
Similarly, our Committee should have conducted a general consultation process with lawyers in Quebec, in order to do the work merited by the significance of the subject.
Here again, we have had to go directly to the essential points, in the hope that before it is too late there will be such a consultation process and a more detailed study can be made.
While all new legislation is to some extent a leap into unknown territory, nevertheless, to govern one must foresee, and before the proposed legislation is enacted we would submit that there should be an attempt to foresee as far as possible what effect there will be on those who will have to use it daily in Quebec.
The structure of the working group that developed the code adopted by the Uniform Law Conference of Canada, the general orientaion of the group’s work, the kind of discussion found in its report and the very structure of the Bill make it clear that the duality of the legal systems in Canada that results from the specific nature of the civil law heritage in Quebec was not given any particular attention.
For example, nowhere is there any reference to the concern expressed by the Law Reform Commission, at p 106 of its report on evidence:
The existing Canada Evidence Act prescribes rules of evidence for criminal proceedings and proceedings before the Federal Court and for appeals to the Supreme Court from these. Under subsection (1), the Code is given the same application. The Code has not been extended to such matters of federal jurisdiction as divorce, patents, bills of exchange, patents and bankruptcy because, apart from problems of derterming constitutional boundaries in cases arising before provincial courts, these matters must frequently be dealt with in conjunction with matters over which the provinces have exclusive jurisdiction. For example, a person may in the same action seek both a contractual remedy and one under the Bills of Exchange Act. To avoid the possibility of two sets of evidence rules, federal and provincial, applying in the same action, the Code was not made applicable to these proceedings.10
Moreover, the wisdom of uniting the rules of evidence in civil and proceedings legislation-particularly in the Quebec context-is far from obvious.
This mixture of common law concepts (badly translated into French), that had to be maintained for criminal law, with rules of evidence for civil proceedings results in a dense and difficult text with significant problems of interpretation. For example, we may ask who should give the directions referred to in s 8 to the trier of fact in jurisdictions where there are no longer civil jury trials.
In addition, there is a particular problem in interpreting s 3 in the province of Quebec. The difficulty arises from the way the texts and the cases have interpreted s 2 of the present Canada Evidence Act, which reads as follows:
2. This Part applies to all criminal proceedings, and to all civil proceedings and other matters whatever respecting which the Parliament of Canada has jurisdiction in this behalf.
The similarity between this provision and the provisions of s 3 of the Bill is noticeable, and so it is very likely that the Courts would interpret s 3 in the same manner. If this were so, the result would be that the new Evidence Act would apply to all cases heard in the Courts in Quebec that are under the jurisdiction of Parliament, except for cases in which an express provision of a particular Act would make the new Act inapplicable, such as would be the case in divorce proceedings.
Both the texts and the present case law state that the present Canada Evidence Act takes precedence over the rules of Quebec law in all civil proceedings within federal jurisdiction that are heard in the Quebec Courts. Thus in Dame Lortie v Perras,” the Court of Appeal of Quebec, referring to s 2 of the Canada Evidence Act, added the following:
(Trans) Whereas Parliament by this formal legislative provision gave precedence to the Evidence Act in all matters and proceedings over which it has competence and jurisdiction whereas no specific legislation enacted by Parliament may derogate from the Evidence Act unless such specific legislation does so in a formal manner;
Whereas ss 41, 121 and 148 of the Bankruptcy Act do not contain such the Canada Evidence Act a specific derogation, and as a result must apply;
The Court, applying s 4 of the Canada Evidence Act, found that the wife of a bankrupt may not be compelled to testify in the bankruptcy of her husband.
More recently, the Provincial Court found that in proceedings relating to bills of exchange the Canada Evidence Act applies (Banque provinciale du Canada v Poulin).12
In this case, a Bank was permitted, on the basis of s 29 of the Act, to use entries in its books to prove payments that interrupted the limitation period, when such evidence would have been prohibited if the Quebec law set out in Arts 1227 and 1229 of the Civil Code had applied.
This decision is in accordance with the texts, which indicate that in proceedings relating to bills of exchange the Canada Evidence Act takes precedence over the rules of the Civil Code.”
More generally, O S Tyndale, later Chief Justice of the Superior Court, in a short article published in the Bar Review, expressed the following opinion:
It accordingly appears that in all civil (including commercial) matters with respect to which the Dominion has legislative authority the law of Quebec will apply, unless there is a relevant provision in the Canada Evidence Act (or in some other Federal Statute applicable to the case), in which event the latter will prevail.14
It should be noted that in the common law provinces the question of the applicability of the Canada Evidence Act in civil proceedings within federal jurisdiction appears to have been of little concern to the Courts and the authors. To our knowledge, the subject has only been discussed obiter by Killam J in The Queen v Douglas:15
I cannot agree with the contention of counsel for the prisoner, that The Canada Evidence Act, 1893, applies to actions upon promissory notes or other subject matters respecting which the Parliament of Canada may similarly make laws. It is the Provincial Legislatures which are to make laws for regulating procedure in civil actions generally in the Provincial Courts, including actions upon bills of exchange and promissory notes, &c.
It should be noted that the opinion of Killam J is contrary to the opinion generally accepted in Quebec, which we discussed above. It may be because the common law bar is unaware of the interpretation of s 2 of the Canada Evidence Act adopted by Quebec courts and the Quebec bar that some believe that s 3 of the Bill presents no problem. This may be the explanation of the statement made by Mr Ewaschuck before the Senate Committee, that s 2 of the Canada Evidence Act presented no problems, and that there would be no problems” with s 3 of the Bill.
In order to avoid any ambiguity, we recommend that if the scope of the Bill cannot be better defined so as to specify that it applies only to criminal proceedings, it should be clearly stated that the Evidence Act does not apply to proceedings within federal jurisdiction that are brought in provincial Courts, except for proceedings under Part IX, dealing with disclosure of government information. Such clarification is necessary to avoid having a system of provincial rules of evidence and a system of federal rules of evidence both of which may apply to the same action. It should be noted that this was the reason that the Law Reform Commission had proposed that its draft code of evidence not apply to proceedings within federal jurisdiction heard in provincial Courts.”
We also know that the Law Reform Commission of Canada proposed that the division between federal and provincial law be made on the basis of the Court in which a case is heard, and that therefore provincial law would apply in provincial Courts and federal law would apply in Federal Court. This approach is not totally acceptable to the Committee.
In so far as the Federal Courts has concurrent jurisdiction in certain areas with the provincial Courts, the possibility that the outcome of an action could depend on the system of evidence that applies in one of the Courts hearing an action would have to be avoided. This could be the result if the Commission’s approach were adopted. Since a right only exists where it can be proved in law, it is obviously desirable that the system of evidence should not substantially vary from Court to Court.
For this reason, we suggest that there be provision that Parts I to III would not apply to proceedings brought in Federal Court when the Federal Court is exercising jurisdiction concurrent to that of the provincial Courts.
Moreover, since the variations between provincial law and the rules set out in Part IV et seq of the Bill are not significant, there would be no major disadvantage in having these rules apply to all cases heard in Federal Court.
By way of conclusion to this part of our brief, the Committee wishes to point out that the Conference expected that its draft Act would be enacted by both Parliament and the provincial legislatures.
Otherwise, the comments in paras 1.7, 1.8 and 1.9 would make no sense. We must reach the same conclusion on reading certain sections of its draft Act, particularly the “Comment” on s 1 (Report, p 623), the parentheses to s 2 (p 623) and s 5 (p 624), and the English version of s 6 (p 624).
The preface to the Report states this principle:
“Il etait evident en effet qu’une telle conclusion lui imposerait la lourde charge de realiser un projet de loi uniforme a soumettre au Parlement du Canada et aux legislatures des provinces, d’ou toute une serie dc taches a accomplir: cerner et approfondir l’etat du droit en la matiere, etudier les regles appliquees dans les provinces, analyser et comparer les decisions judiciaires qui les mettent en oeuvre, determiner les cas de conflit et, enfin, faire les recommandations voulues pour ]’edition d’un texte uniforme et harmonise.”
Moreover, the Conference’s mandate, set out at p 1 of the Report, is quite clear:
“Son mandat etait le suivant: Favoriser l’uniformisation des regles provinciales et federales de preuve et, a cet effet …”
If Parliament were to act alone in enacting Bill S-33, the mandate of the Conference itself, which is supposedly being enacted in the Bill, as well as the very spirit of its Report, would be betrayed.
The coexistence of rules of evidence for proceedings within the jurisdiction of Parliament (these being the headings in s 91 of the BNA Act) that are different from the rules for other proceedings can only cause widespread confusion, which in certain cases would amount to absurdity, and would certainly complicate for no reason what was supposed to be simplification, by increasing the length and cost of proceedings that are already long and costly for the parties.
The French version:
Since the Canadian Bar Association made its preliminary comments to the Senate, a draft revised version prepared unofficially by the legislation section of the Justice Department has been submitted to us.
This revision contains a number of improvements that we wish to note at the outset.
However, the Bill still reflects what appears to be inflexible resistence respecting certain terms that had previously been used by the Uniform Law Conference of Canada.
For example, the very title of the Bill is misleading. The provisions of Bill S-33 do not in fact “give effect … to the Uniform Evidence Act adopted by the Uniform Law Conference of Canada”, because the French version of the Bill and the French version of the Conference’s draft Act are substantially different.
For example, s 14 of the French version of the Conference’s draft uses the expression “preuve circonstantielle” for “circumstantial evidence”, while the first version of S-33 uses “preuve indirecte” and the draft revision uses the words “preuve par concordance d’indices”.
Section 10 of the Conference’s draft renders the expression “reasonably … could find that the fact in issue had been established beyond a reasonable doubt” by “pourrait être convaincu au-delà du doute raisonnable”.
The first version of S-33 translates “beyond a reasonable doubt” as “avec une quasi certitude”, and the draft revision now refers to “conclure hors de tout doute”.
This fundamental common law concept that doubt should not be capricious or arbitrary, but must be reasonable, is totally absent from the French version.
Another example: the expression “discharge” was not defined in the Conference draft. In Bill S-33, it is added to the definitions, by specific reference to s 662.1 of the Criminal Code. The Code translates “discharge” as “libération”. The first French version of S-33 uses the expression “mise en liberté”, and the second uses the expression “absolution”!
Rather than similarity with the text on which it is based, the Criminal Code, we find further difference created.
Section 18 also shows a desire to diverge from terminology that is well known. The text reads as follows: “Le tribunal admet d’office l’authenticité…”.
The Conference draft translates the expression “judicial notice shall be taken of the following without production or proof” as “le tribunal prend d’office connaissance . . .”.
Bill S-33 introduces a concept that has nothing to do in law with judicial notice, when it refers to the authenticity of documents. The expressions used in the Code refer to two very different matters.
Within the limitations of this presentation, we cannot discuss all the problems. We must be content to reiterate the importance that the two versions set out the same intention of Parliament, and the importance of the fact that any change of vocabulary should be made with the greatest caution, because it could well result in a change of the law not intended by Parliament.
In this spirit, with patience and humility, we must be ready to start over at the beginning with the job of conferring with Judges and lawyers in Quebec who are the people most sensitive to the problems raised here, because it is they who are most often required to “work” simultaneously with the two versions of legislation.
1. That the Bill in its present form be withdrawn;
2. That there be a general consultation with Canadian legal experts (Judges and lawyers) to be organized as soon as possible, and that the Canadian Bar Association make this one of the major themes of its next congress;
3. That a more specific consultation be organized with Quebec legal experts (Judges and lawyers) to obtain their views as to the effects that general legislation on evidence in civil proceedings within federal jurisdiction could have on the practice of law in Quebec;
4. In view of the preceding comments respecting criminal proceedings, the Quebec Bar is stronly opposed to the Bill being enacted as it is, because it substantially changes the rights of the accused;
5. That the French version of any draft Evidence Act that may be submitted to Parliament be reviewed by a group of legal experts (teachers, Judges and practitioners) in Quebec in order to ensure that the intent of Parliament is the same in both of the languages in which it is expressed.
1. Bill S-33, to give effect, for Canada, to the Uniform Evidence Act adopted by the Uniform Law Conference of Canada, first reading 18 November 1982.
2. RSC 1970, 1st supp, Ch 23.
3. R v Cooper, (1978) RSC 860.
4. R v Davidson, DeRosie and MacArthur, (1975) 20 CCC.
5. R v Colpitts, (1965) RSC 739.
6. Gushue v R, (1980) 1 RSC 798.
7. See R v Oakes, Court of Appeal of Ontario, February 1983, under appeal to the Supreme Court of Canada.
8. R v Graham, (1974) SCR 206.
9. R v Smuk, (1971) 3 CCC (2d) 457 (BCCA)
10. Law Reform Commission of Canada, Report on Evidence, Department of Supply and Services Canada, (1977) p 121.
11. Dame Lortie v Perras, (1954) BR 568.
12. Banque provinciale du Canada v Poulin, JE 80-509, CP Montreal, 500-02-019240-790, May 6, 1980.
13. A Gerin-Lajoie, «Quelle loi s’applique en matiere de preuve relativement aux effets de commerce», (1926-27) 5 Revue de droit 430-440; A Perrault, Traité de droit commercial, Vol I, Montreal, Albert Levesque, 1936, pp 206-210.
14. O S Tyndale, “Notes on the Canada Evidence Act in Quebec”, (1942) 2 R du B 1 15.
15. The Queen v Douglas, (1898) CCC 221 at 228.
16. Proceedings of the Senate standing committee on legal and constitutional affairs, Thursday, April 21, 1983, section 52, p 52:23
17. Law Reform Commission of Canada, Report on Evidence, p 121.
SUPPLEMENT TO APPENDIX 66-A
The effects of enacting Bill S-33
on the rules of evidence in the
Courts of Quebec in proceedings under
The proceedings to which the draft federal Evidence Act would apply are defined in s 3 as follows:
Subject to sections 4 and 5, this Act applies to every proceeding and stage of a proceeding within the jurisdiction of the Parliament of Canada that is before a court or that is held for the purpose of taking evidence pursuant to a court order.
If the Courts are to interpret this provision as broadly as the Court of Appeal did, in considering s 2 of the present Evidence Act, the result will be a system of rules of evidence, in all proceedings within federal jurisdiction heard before the Quebec Courts, with the following characteristics:
1. On the basis of priority, the federal Evidence Act would apply, unless there were a provision to the contrary in that Act or another federal Act (s 3);
2. The rules of evidence in effect in the province in which a proceeding took place would apply to supplement the federal rules, but only to the extent that they are not inconsistent with a provision of the federal Evidence Act or another Act of the Parliament of Canada (s 6).
Although in theory it could be said that the reform would change nothing, since this is the situation under the present federal Evidence Act, in practice, it would create wide-spread confusion. The present Evidence Act contains very few provisions, so legislation that applies to proceedings within federal jurisdiction. Even though the proposed reform is presented as a draft Act and not as a draft Code, it contains a large number of provisions that could conflict with the rules of evidence followed in Quebec.
Enactment of Bill S-33 would result in a curious paradox: an Act that is intended to bring uniformity to the rules of evidence would have precisely the opposite result, since it would result in the creation of two systems of evidence in Quebec: the Quebec system, to be applied in provincial proceedings, and a special system to be applied in federal proceedings.
Once we establish a dual system of rules of evidence, we will be faced with the problem of precisely defining the areas to which each applies. This situation will certainly arise if this Bill is enacted. In addition to the difficulty of attempting to define precisely in each case whether the proceedings are under federal or provincial law, there will be the necessity of settling the problem of what happens when the Court must deal with questions under both federal and provincial law in a single action. The Court could then have to apply the two systems in parallel, with all the complications that such a situation would engender.
Moreover, if we set up such a dual system, we will have to avoid drifting into incoherence and adopting rules that require the Court to switch from one system to the other in order to decide a single case. This is just what would occur under the proposed Act each time that an examination for discovery is held in a proceeding under a federal Act. According to subs 4(1), the federal Evidence Act will not apply to an examination for discovery, and the provincial law would then apply, so that it would be possible for certain evidence to be found inadmissible under provincial law at an examination for discovery and then admitted at the trial under federal law. Such a situation appears even more absurd when we consider that Art. 396 of the Code of Civil Procedure provides that depositions taken at the examination for discovery are part of the evidence on the same basis as depositions taken at the trial.
As we said above, assuming that s 3 of the proposed Act would be broadly interpreted, a great number of Quebec rules of law would undeniably cease to apply in federal proceedings in the Quebec Courts. The impact of this Act on the law of evidence in Quebec may be understood by examining both the substantive and the procedural rules of evidence that would be affected.
It should be noted that in Quebec law there are two distinct categories of rules of evidence: substantive rules and procedural rules. The first are found in the Civil Code, and the second in the Code of Civil Procedure. Substantive rules deal with the following matters: the subject=matter of the evidence, the burden of proof, types of evidence and the admissibility of evidence. The procedural rules of evidence concern the presentation of various types of evidence during a trial.
I Substantive rules of evidence in Quebec affected
by the proposed federal Evidence Act
With respect to the general principles of the law of evidence, the federal Act governs the burden of proof (ss 8 and 9), codifies the rule of relevance (s 22) and provides for judicial notice (ss 18 to 21, 177 and 178). In these areas, the federal Act must be given priority, and will moreover render inoperative the corresponding rules in provincial law. It should be noted, for example, that Art 1203 of the Civil Code dealing with the burden of proof is drafted in very different terms from s 9 of the federal Act, which deals with the same subject matter. While s 9 appears to place the entire burden of convincing the Court on the plaintiff, Art 1203 CC divides the burden of proof between the plaintiff and the defendant.
It should be noted that the Civil Code recognizes four types of evidence: writings, admissions, presumptions and testimony. In addition, several provisions of the Code of Civil Procedure recognize that physical evidence may be admitted.
The proposed Evidence Act undeniably makes a number of changes to the rules in the Civil Code respecting types of evidence. We shall consider the main changes.
1. Authentic writings
The Civil Code recognizes the probative value of authentic writings, that is, writings received by public officers. These writings are evidence, unless they are denied through a special procedure referred to as an improbation, of any fact that the public officer is empowered to attest to. Evidence of an authentic document is given by producing a copy delivered by the legal depositary of the original. The proposed Evidence Act provides for no particular probative value to be given to authentic writings. Moreover, according to subs 139(2), a party could not use in evidence a copy of a notarized act without giving at least seven days notice of the intention to do so to the other parties.
2. The system of registers and domestic papers would be completely changed by the system of documents in the public or private sector provided in ss 152 to 158 of the draft Act. In this respect, the very extraordinary implications of s 157, which provides that a business record of a financial institution is presumed to be correct, should be noted. Under this section, a bank’s statement of account, sent to its customer, is presumed to be correct, and the burden is on the customer to prove that it is in error. This provision is contrary to the principle of civil law that no one may set themselves outside the law.
3. Section 16 provides for formal admissions on questions of law, while in provincial law admissions are permitted only on questions of fact.
4. Under Quebec law, extra-judicial admissions are an independent form of evidence.
Extra-judicial admissions, however, are peculiar in that they must be proved. Evidence of such admissions must comply with the requirements of Art 1244, which prohibits testimonial evidence of an extra-judicial admission when such admission concerns facts that cannot be proved by testimonial evidence. The proposed Act deals with extra-judicial admissions as an exception to the hearsay rule, and appears to authorize testimonial evidence of such an admission in all cases (ss 57 et seq).
5. The Bill gives weight to certain prior judicial decisions (ss 74-79), while under Quebec law such decisions would have no weight.
With respect to the rules concerning the admissibility of evidence, the prevailing principle recognized in the proposed Act is the rule of relevance set out in s. 22. However, this section recognizes that effect must be given to any rule excluding evidence “pursuant to the Canadian Charter of Rights and Freedoms, this Act or any other Act or law”. On the basis of s 6, it might be thought that the rules of Quebec law relating to the admissibility of evidence would apply to supplement this rule. Because these provisions are not of a supplementary nature, they would be inoperative each time they were inconsistent with an express provision of the federal Evidence Act. Thus
the entire Quebec system relating to hearsay evidence would be provisions of the Bill, found in inoperative, and would give way to the special ss 45 to 73. Similarly, the Quebec version of the best evidence rule would be replaced by the particular version in ss 130 to 138 of the Bill.
As we have seen, the proposed Act makes significant changes to the substantive rules of the Quebec law of evidence, but these changes are minimal in comparison to the changes to the procedural rules of evidence. The federal Act deals with such a large number of matters relating to procedure that there is little room left for the use of the rules in the Code of Civil Procedure. Thus, for all practical purposes, the rules relating to the examination of witnesses (Arts 293 to CCP) would be replaced by the rules in the Bill. Among the matters that are regulated specifically in the proposed Act are the following:
1. The respective roles of the judge and the parties (ss 100 to 102);
2. Exclusion of witnesses (s 107);
3. Rules concerning competence and compellability of witnesses (ss 86 to 94) Including rules relating to spousal privilege (ss 166 to 174) and the protection of witnesses against giving incriminating evidence (161 to 164);
4. The subject matter of the testimony: opinion evidence (ss 33 to 39);
5. The weight of evidence in the absence of corroboration (s 125);
6. Credibility of witnesses (ss 104 and 105; 115 to 124);
7. The manner of giving testimony -the system of oaths is changed (ss 96 to 99); -regulation of cross-examination of the witness (ss 101 to 104);
8. Institution of a specific system for statements by experts (ss 37 and 38);
9. Specific rules concerning a witness who is unable to recall fully a matter or who has used a writing or an object to recall it (ss 110 to 114);
10. Rules relating to interpreters and translators (ss 126 to 129).
In addition to almost completely covering the area of the examination of witnesses in court, the proposed Act provides for a specific system for the use of statements by experts (ss 40 to 44), which would have the effect of rendering Arts 414 to 425 CCP, which also deal with such statements and references to auditors or practioners, inoperative.
As may be seen, it is not an exaggeration to state that if s 3 of the proposed Evidence Act is to be broadly interpreted, it will result in the establishment of dual systems for the law of evidence in the province of Quebec, with all the disadvantages that would necessarily result from such a situation.
Ottawa, June 8, 1983.
From the Canadian Bar Association:
Mr. Yves Fortier, Q.C. President.
Members of the Special Committee on S-33 (of the C.B.A.):
Mr. John Sopinka, Q.C.;
Mr. Mark Rosenberg.
From the Bar of Quebec:
M. le bâtonnier Louis Lebel;
Mr. Jacques Fortin;
Mr. Gerald Tremblay.
Members of the Law, Science and Technology Committee (of the C.B.A.):
Mr. Derek Guthrie.
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