4. The Variable Application of the Law of Evidence: Courts and Tribunals

• Author: David M. Paciocco - Lee Stuesser
• Profession: Justice of the Ontario Court of Justice - Professor of Law, Bond University
• Pages: 12-15

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It is sometimes said that "[t]here is no difference, as to the rules of evidence, between civil and criminal cases."²⁰This is not entirely so. Evidence may be admissible in civil proceedings but not in a criminal case. For example, because of special statutory treatment, the admission of bad character evidence is not as restricted in child protection proceedings as it is in a criminal prosecution involving the same allegation of abuse.²¹The Charter does not apply per se to the admission of unconstitutionally obtained evidence when it is being used in private, civil proceedings. Evidence that may have to be excluded under the Charter in a criminal case is therefore generally admissible in a civil case.²²The common law rules can also differ between civil and criminal cases. Self-incrimination protection available to the accused in a criminal case does not apply in civil cases because persons are not "incriminated" in civil cases.²³Involuntary confessions, inadmissible in a criminal case, may be admissible in a civil case.²⁴The test for protecting therapeutic records differs between civil and criminal cases.²⁵Even when the same general rules apply, their application may well be affected according to whether they are being applied in civil or criminal cases. For example, in determining the admissibility of expert opinion evidence a court must determine whether the benefits of its

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admission outweigh the costs. That decision can vary depending on whether the case is a civil or criminal one.²⁶The same is true of the application of the balancing process employed to determine the admissibility of similar fact evidence in civil and criminal cases.²⁷This is invariably so because the interests, and even the mode of trial, will differ.

Indeed, within different kinds of criminal proceedings the rules of evidence differ. The rules that apply during a criminal trial do not apply at bail hearings, or preliminary inquiries, or extradition hearings. None of these proceedings involve a final determination of guilt of the accused and therefore fewer restrictions apply on proof. Hearsay, for example, will be more readily admitted at these types of hearings than at a trial.

In Germany (Federal Republic) v. Ebke the accused argued that a statutory provision permitting an extradition judge to act on evidence inadmissible in Canada but admissible in the country seeking to try the accused was contrary to the Charter. In essence, the accused argued that the Court was constitutionally compelled to use Canadian evidence rules in making the extradition decision. The Court held against this argument, emphasizing that "our [particular] rules of evidence are not fundamental principles of justice" that must be applied at every kind of hearing. What is required to achieve fairness and to meet the policy needs in a given context varies, and so too do the rules of proof.²⁸For this reason practices unacceptable during a criminal trial may be permissible at the sentencing hearing.²⁹It is evident that at the sentencing hearing the character of the accused becomes important, permitting proof of prior criminal convictions even though the same...