2. The Sources of Evidence Law

• Author: David M. Paciocco - Lee Stuesser
• Profession: Justice of the Ontario Court of Justice - Professor of Law, Bond University
• Pages: 6-7

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Most of the law of evidence in Canada consists of common law rules. Each jurisdiction within Canada, including Canada itself, has an evi-

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dence act.⁴The application of each evidence act is determined by the constitutional division of powers. The Canada Evidence Act applies in the federal courts, in criminal matters, in non-criminal federal prosecutions, in federal administrative proceedings, in bankruptcy matters, and in other civil proceedings over which the federal government has jurisdiction. The provincial Evidence Acts apply to matters within provincial jurisdiction, including provincial prosecutions, provincial administrative proceedings, and in most civil litigation.

These evidence acts are not codes purporting to include the heart of the law of evidence. They merely supplement the common law. They consist of provisions that modify some common law rules, such as those relating to when witnesses qualify to give testimony or when they can be forced to testify. The evidence acts touch most areas of the law of evidence, but do so selectively. Since they are an overlay on the common law it is often necessary to understand the relevant common law rules to appreciate how these provisions operate.

Apart from the evidence acts, there are many specialized statutes that have provisions relating to the proof of facts. For example, land registration acts typically provide for the issuance and admissibility of certificates to assist in proving real estate transactions,⁵while professional registration statutes also provide for the use of certificates to prove membership in the profession.⁶Rules of practice established within each province also include provisions relating to the law of evidence.⁷It is important for counsel to be familiar with the relevant statutory provisions in their area of practice that could affect evidentiary issues.

[4] For a list and citations to these statutes, see Table of Canadian Evidence Acts following chapter 13.

[5] See, for example, Land Titles Act, R.S.O. 1990, c. L.5, ss. 113, 117, 165, & 166.

[6] See, for...