Rules Relating to the Use of Admissible Evidence

• Author: David M. Paciocco/Lee Stuesser
• Profession: Justice of the Ontario Court of Justice/Professor of Law, Bond University
• Pages: 521-546

521

CHA PTER 12

RULES RELATING

TO THE USE OF

ADMISSIBLE EVIDENCE

1. INTRODUCTION

In general, the tr ier 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 introduc-

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

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

sumptions of law, d iscussed in this chapter, c an a lso 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 unless t hat evidence is corroborated. This

1 See chapter 1, sect ion 1.2, “Rules of Adm issibility.”

THE LAW OF EVIDENCE522

means that the t rier of fact is legally obliged to refr ain 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, t he Ontario Evidence Act disallows any verdict from being

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

roborated testimony of the opposing party litigant. This means that

there must be independent evidence conf‌ir ming 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 wa s based solely on their assertion t hat they had made the pay-

ments in cash to the landlord before he died.2

Strict corroboration rule s are becoming less common and much

less technical than t hey once were. They are b eing repealed a nd in

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

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

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

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

Some pre sumptions 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 other-

wise have been satisf‌ied about the ex istence of that fact. For example,

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

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

Criminal Code requires the trier of fact to f‌ind that the accu sed was

in care or control of the motor vehicle unless the accused e stablishes

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

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

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

2. CORROBORATION AND DANGEROUS

EV IDENCE

2.1) The Former Law

At common law, certain k inds 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 pres umptions tend to be rebuttable, they a re 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.