Rules Relating to the Use of Admissible Evidence

• Author: David M. Paciocco/Lee Stuesser
• Pages: 475-498

475

1 See chapter 1, section 3.2, “Restricted Admissibility.”

1. INTRODUCTION

In general, the trier of fact is entitled simply to apply common

sense and human experience in determining whether evidence is

credible and in deciding what use, if any, to make of it in coming

to its finding of fact.

Exceptionally, corroboration rules and presumptions of law

can control the way that particular items of evidence are used.

In most cases, the trier of fact is simply invited to apply common sense

and human experience to decide whether admissible evidence is cred-

ible and to determine what use if any to make of it in coming to its

finding of fact. This is not always so. As discussed in the introductory

chapter, some rules of admissibility impose limitations on the use that

can be made of admissible evidence.1Corroboration rules and pre-

sumptions of law, discussed in this chapter, can also control the use

that triers of fact can make of certain kinds of evidence.

Corroboration rules require triers of fact to search for, and in some

cases to find, independent evidence that confirms other evidence

before it is relied upon. For example, subsection 19(2) of the Alberta

Evidence Act provides that no case shall be decided on the unsworn evi-

dence of a child of tender years unless that evidence is corroborated.

Rules Relating

to the Use of

Admissible Evidence

chapter 12

476 The law of Evidence

This means that the trier of fact is legally obliged to refrain from acting

on the uncorroborated, unsworn testimony of a child even where the

trier of fact is firmly convinced that the child is being truthful and

accurate. Similarly, the Ontario Evidence Act disallows any verdict from

being rendered against a deceased persons’ estate based solely on the

uncorroborated testimony of the opposing party litigant. This means

that there must be independent evidence confirming each particular

claim made. In Liu Estate v. Chau the Ontario Court of Appeal ruled

against the tenants of a deceased man, given that their defence to a rent

arrears claim was based solely on their assertion that they had made the

payments in cash to the landlord before he died.2

Strict corroboration rules are becoming less common and much

less technical than they once were. They are being repealed and in

some cases replaced by other rules that are intended to provide guid-

ance to triers of fact. These rules typically require warnings to be given

to the triers of fact about evidence where it is particularly dangerous,

although the trier of fact remains free to act upon it.

Some presumptions of law also control the way that specific evi-

dence is used. They can require triers of fact to find that a presumed

fact exists on the evidence, even where the trier of fact might not oth-

erwise have been satisfied about the existence of that fact. For exam-

ple, where it is proved that an accused person was in the seat normally

occupied by the driver of a motor vehicle, subsection 258(1)(a) of the

Criminal Code requires the trier of fact to find that the accused was in

care or control of the motor vehicle unless the accused establishes that

he did not intend to drive. The trier of fact is obliged to make this find-

ing even where it may have a reasonable doubt as to whether the

accused really was in care or control of that vehicle.3

2. CORROBORATION AND DANGEROUS

EVIDENCE

2.1) The Former Law

At common law, certain kinds of evidence were considered to be par-

ticularly unsafe. “Rules of practice” developed requiring the judge to

2 (2004), 236 D.L.R. (4th) 711 (Ont. C.A.)

3 Because presumptions tend to be rebuttable, they are closely linked to burdens

of proof and will therefore be discussed together with the law relating to bur-

dens of proof.