Rules Relating to the Use of Admissible Evidence

• Author: David M. Paciocco/Lee Stuesser
• Pages: 519-542

519

CHA PTER 12

RULES RELATING

TO THE USE OF

ADMISSIBLE EVIDENCE

1. INTRODUCTION

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

sense and human experience in de termining whether e vidence 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 ex perience to decide whether admissible evidence is cred-

ible and to determine what use, if a ny, to ma ke of it in coming to its

f‌inding of fact. This is not always so. As d iscussed in the introduc-

tory chapter, some rules of admissibil ity impose limit ations on the use

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

sumptions of law, discusse d in this ch apter, can also control the use

that triers of fact ca n make of certain k inds 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 evidence

of a child of tender years unles s that evidence is corroborated. This

1 See chapter 1, sect ion 3.2, “Restricted Admis sibility.”

THE LAW OF EVIDENCE520

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 truthf ul and accurate.

Similarly, the Ontario Evidence Act disallows any verdict from being

rendered against a deceased persons’ est ate based solely on the uncor-

roborated testimony of the opposing party litigant. This means that

there must be independent evidence conf‌irming each particular cl aim

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 pay-

ments 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 They are being repealed and in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 case s replaced by other rules that a re 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 par ticularly dangerous,

although the trier of fact remain s free to act upon it.

Some presumptions of law also control the way t hat 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 other-

wise h ave been satisf‌ied about the existence of that fact. For example,

where it is proved that an accused person wa s in the seat normally

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

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

in care or control of the motor vehicle unle ss t he accused establishes

that he did not intend to drive. The tr ier of fact is obliged to make th is

f‌inding even where it may have a reasonable doubt a s to whether the

accused really was i n care or control of that vehicle.3

2. CORROBOR ATION AND DANGEROUS

EV IDENCE

2.1) The Former Law

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

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

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

3 Because pre sumptions tend to be rebuttable, the y are closely linked to burden s

of proof and will t herefore be discussed to gether with the law relati ng to bu-

rdens of proof.