A Canada Evidence Code Should Replace the Canada Evidence Act, Part 1

Part 1: The failure of the Law Reform Commission of Canada’s Evidence Code

For decades experts in the law of evidence have called for comprehensive legislative reform of the law of evidence in Canada, but it hasn’t happened. The great success of the U.S. Federal Rules of Evidence (the FRE), operative from July 1, 1975 (but from Dec. 1, 2011, known as the Restyled Federal Rules of Evidence), makes Canada’s failure to enact a true code of evidence a considerable loss to its administration of justice. Almost all U.S. states have adopted the FRE as their state codes of evidence. It has given the American law of evidence a much greater accessibility and therefore flexibility of application. The effect, in terms of frequency of use, would have been comparable to that of the Canadian Charter of Rights and Freedoms upon the practice of criminal law.

In fact, there was a very diligent attempt by the federal Department of Justice to bring an Evidence Code into the federal and provincial laws of Canada, which began in April 1976. Consider how important is the loss represented by that failure, given that, that Evidence Code “lifted” about 80% of its provisions from the FRE—in effect, a Canadian version of the U.S. Federal Rules of Evidence. Had it been enacted, all of the U.S. caselaw interpreting and applying the FRE would now be available for Canadian courts and lawyers to pick the best of it, while not being bound to apply any of it—a magnificent wealth of free legal technology flowing across the border to be used as we might choose to use it.

The reaction of the legal profession killed the Evidence Code, as explained below. As a result, the serious defects it revealed in the law of evidence still exist today. Had it been “law for the layman,” or otherwise of public interest, it might constitute the nucleus and foundation of the law of evidence today.

To understand the nature of a true code, it is necessary to appreciate the extent of the loss in not adopting the Evidence Code. A true code is: (1) a legislated statement of the law; (2) comprehensive of its subject; (3) the exclusive source of the law within its field; and, (4) a statement of the law in principles rather than in rules. It’s position in law is comparable to that of the Canadian Charter of Rights and Freedoms in that all interpretation begins with the code. Previous caselaw and statutes may be consulted, but they are not binding upon a true code. Therefore, the Criminal Code is not a true code, first enacted in 1892, and: (1) interpreted as the product of, and therefore bound by the previous law; (2) not comprehensive of the criminal law; (3) contains no statement of its purpose, or as to the approach and rules of interpretation applicable to it; and (4) does not state the law in terms of principles. In contrast, Part I of the Evidence Code is headed, “Purpose and Construction.”

Nor is “a comprehensive legislated statement of the law” a true code because it can be interpreted in whole or in part as bound by the previous law. A code is “a new beginning.” Sections 1 and 2 of the Evidence Code: (1) provide a standard against which the interpretation placed upon any of its sections can be measured; (2) establish the main rule of construction as being the purpose stated in s. 1. That prevents its provisions from being squeezed down to their narrowest meaning. Thus: (1) the Evidence Code is prevented from being merely an exception to the common law of evidence, otherwise the common law would continue to be the main source of the law of evidence; and, (2) is pre-emptive of other sources of law. The binding effect of the common law is broken and replaced by s. 3, which states: “Matters of evidence not provided for by this Code shall be determined in the light of reason and experience so as to secure the purpose of this Code.”

In December 1975, the Law Reform Commission of Canada (the LRCC, but disbanded in 1993; the Law Commission of Canada being substituted in 1997), published its first report, its Report On Evidence (no longer available from the Government of Canada’s catalogue) which recommended enactment of its “Evidence Code”. By unrelated coincidence, in January 1976, after ten years as an assistant Crown Attorney in the Toronto Crown Attorney’s Office, I joined the federal Department of Justice. On April 3, 1976, the Minister of Justice and Attorney General of Canada, Ron Basford, announced to the Victoria Bar Society: (1) “a major re-assessment of the rules of evidence using the draft Evidence Code of the Law Reform Commission of Canada as a frame of reference”; and, (2) that he had appointed me to conduct a national consultation process. Being the Editor-in-Chief of the Criminal Reports, New Series, I had the LRCC’s full Report On Evidence published at, (1976), 34 C.R.N.S. 26.

Because I had not been told what the consultation format was to be, I did it my way. I spoke at or organized and conducted more than 40 conferences and seminars across Canada. The seminars I conducted for senior judges and lawyers allowed the whole of the Evidence Code to be examined and reported on at each seminar. The sections of the Evidence Code were divided up among discussion groups, which were conducted between opening and closing plenary sessions. Resolutions were formulated and voted on in relation to the portions of the Evidence Code assigned to each discussion group. At the closing plenary session, each group reported the results of its discussions and presented its resolutions to the whole body present. In that way I secured well documented feedback, which I entered into my Resolutions Book, which grew larger as the consultation process matured. Prior to each seminar, each participant received a copy of the Report On Evidence and my 348-page book of consultation materials, and a copy of the resolutions that had been passed at the preceding seminars. Thus, as the consultation process progressed, the seminars became more efficient because of the availability of already-formulated resolutions that could be debated, re-drafted, and voted on as each group saw fit.

My consultation materials were meant to provide first, a format for conducting a one or two-day seminar, complete with opening and closing plenary sessions, and discussion groups in between. Secondly, they provided materials on the law of evidence that could be used in the daily practice of law. I included the FRE and the U.S. Uniform Rules of Evidence–the 1953 version, but not the 1974 version because it had been amended to be the same as the FRE. There was a table of concordance between the Evidence Code and the FRE, and a “Summary of the Commentaries to the Evidence Code” from the Report on Evidence. There were articles on the experience with codification in the United States, and summarizing the arguments for and against similar codification of the law of evidence in Canada. I included a 1959 article from the Canadian Bar Review by Professor Graham Murray of the Faculty of Law at Dalhousie University, entitled, “Evidence: A Fresh Approach The American Uniform Rules Of Evidence” (1959), 37 Can. Bar Rev. 576. The article was based upon a paper presented to the New Brunswick Section of the Canadian Bar Association in 1957, which began:

I simply wish to remind my fellow Canadian lawyers and Canadian judges that the American legal profession has succeeded in codifying many of our difficult common-law rules of evidence, to argue that the Uniform Rules are worthy of our closest scrutiny and, finally, to advocate that the Canadian legal profession give consideration to the preparation of a similar code of evidence for use in this country.

He then discussed, “Why our rules of evidence are in urgent need of reformation,” and, “Why we Canadian lawyers should look to the American legal profession for assistance in reforming our own rules of evidence.” Immediately preceding, the consultation materials contained articles I had written entitled, (1) “A Note on Similarities Between the Uniform Rules of Evidence (1953) and the Evidence Code”; and, (2) “Some Noted Arguments Made by Professor Neil Brooks on the Law of Evidence and the Evidence Code.” Professor Brooks, of Osgoode Hall Law School in Toronto, is listed in the Report on Evidence as a “Special Consultant.” He had been one of the chief architects of the Evidence Code while at the LRCC.

However, codification of the law of evidence was attacked by the Report on the Law Of Evidence of the Ontario Law Reform Commission (the OLRC), published in June 1976. It took the much more conservative approach of an extensive amending and expanding of the Ontario Evidence Act in contrast to the more aggressive approach of the LRCC of true codification. My Osgoode Hall Law School dean (1961-64), H. Allan Leal, was by that time the Chair of the OLRC. Its Report states (p. ix) that: “Professor Alan W. Mewett of the Faculty of Law of the University of Toronto was engaged to direct and supervise a research team on the law of evidence.”

My consultation materials included the OLRC’s draft Evidence Act, the full report being too large (278 pages). I did include however, a table of concordance between the Evidence Code and the Act, the OLRC’s Report on the Law of Evidence’s Introduction to which states, in part (at p. xi): “We have thought it desirable to codify some of the common law, but we do not think it would be wise to attempt to prepare an exhaustive and comprehensive code of evidence.” In contrast, the Introduction to the LRCC’s Report on Evidence states that there is a need to have the, “basic rules of the common law … subjected to rational simplification, in clear, orderly and flexible rules.” Therefore there are a number of subjects dealt with by the LRCC’s Code that are not dealt with in the OLRC’s Act. On the other hand, there are some matters that the Act deals with in more specific detail, which the Code leaves to more general provisions, e.g., the swearing-in of children, medical reports, and proof of registered land instruments. And the treatment and organization of subjects is very different. For example, the Code provides its own definition of hearsay, wipes out all existing exceptions, but provides its own exceptions. In contrast, the Act provides some relaxation to the existing hearsay rule by further codified exceptions. The Code in dealing with documentary evidence separates the issues as to admissibility of originals, authentication and admissibility of copies, into three separate groups of sections. The Act uses the traditional approach of dealing with admissibility, authentication, and copies of a particular type of document, all within the same or an adjoining section.

The OLRC’s Report made gaining more support than criticism for the Code during the consultation process, much less likely. I laid out the arguments on both sides and stressed in my consultation materials and opening remarks at the seminars that the purpose of the consultation was to obtain advice as to revising the law of evidence, and not merely to conduct a popularity contest on the LRCC’s Evidence Code. Unfortunately, that is exactly what the consultation process became, and almost inevitably so because the OLRC’s Report expressly rejected codification, stating (p. xi):

We remain convinced that the common law approach to evidence is basically sound, and that it would be unwise to reform the law in radically new directions, alien to the tradition of the common law, for example by leaving the admissibility of evidence solely to the judgment of individuals presiding in particular cases. There must be guidelines which control the admissibility of evidence, but the guidelines must be such that they will not defeat the tribunal in its search for truth.

Although I knew that the attachment by Canada’s judges and lawyers to “the tradition of the common law” was strong, the consultation process was to teach me just how very strong that devotion was. It would be devotion to a fault today, given the need for consolidation and codification of laws in compensation for their quickly growing volume, complexity, and dependence upon technology.

In contrast to such devotion, the consultation materials set out the events leading to the FRE. They began in 1923 when the American Law Institute decided that a re-statement of the law of evidence should be undertaken, the principle reason being that the rules of evidence were so defective, that instead of being a means of developing the truth, they tended to suppress it. By 1974, the FRE’s journey though the U.S. congressional review process had produced a “House Draft,” and a “Senate Draft.” The legislative drafts then went on to a conference committee, which produced the Compromise Version of the Federal Rules of Evidence. On December 16 and 18, 1974, the Compromise Version was enacted into law by the two houses of Congress. On January 2, 1975, President Ford signed it, and on July 1, 1975, the FRE became operative for U.S. federal court proceedings for cases commenced thereafter, and for proceedings after July 1st in cases pending on July 1st, unless the court found injustice or infeasibility would result (as stated in the Preamble). The FRE has been a very successful codification.

In regard to that very instructive history leading to the creation of the FRE, my consultation materials included the address by Professor Paul Rothstein of Georgetown University, an established expert on the U.S. law of evidence, entitled, “An Evidence Code: The American Experience,” opening the “Conference on Current Trends in Evidence,” at Dalhousie University in Halifax, on November 26, 1976. It stated:

Representatives of nearly every aspect of trial related law were on the Advisory Committee – academicians, judges, civil and criminal trial lawyers from both sides of the case, etc. Their drafts of the Federal Rules of Evidence owe an appreciable debt to the Uniform Rules and to the California Code. Indeed, some of the same drafters of the three earlier codes also sat on the Federal Rules of Evidence Advisory Committee.

In November, 1972, the drafts of the Federal Rules of Evidence seemed to be ready for finality, and so the Supreme Court of the United States approved the draft for use in all federal courts, to take effect automatically without further enactment on the following July 1st, which would be July 1, 1973.

But then the Rules hit a snag. Before their automatic effective date, Congress got into the act. Congress suspended the rules until Congress could take a closer look at them and examine each of them in detail. Congress’s dissatisfaction centered primarily on the privilege and hearsay provisions. Some Congressmen still didn’t like it that the hearsay rule was being restricted. The trial lawyers in Congress loved the old hearsay rule and didn’t want to see it restricted the way these rules did (and your Code does even more).

Let me examine the problem Congress had with privileges, which was probably the principal problem. The Supreme Court draft of the Federal Rules of Evidence prescribed an exclusive list of privileges much like the ones in your proposed Code. Congress felt that such an approach did not defer enough to the state law of privileges, which many Congressmen thought should apply not only in state courts but in federal courts as well. After all, they argued, states have reasons, policies for having privileges. For example, lawyer-client privilege. States want to encourage state lawyers and state clients to communicate. Or doctor-patient privilege. The states want to encourage state doctors and state patients to communicate fully, in the interests of better health care in the state. They won’t communicate fully if they know there’s no privilege should the matter get into a federal court. There’s a great likelihood matters do get into federal courts. So what good does it do for the state to have a privilege if the federal court doesn’t respect it? That was the argument.

In addition, the list of privileges failed to contain some of the privileges that were favored by many Congressmen. A general physician-patient privilege was not there. A general privilege concerning interspousal communications in civil and criminal cases was not there. There was no journalist privilege.

Additionally, the draft contained a broad governmental executive information privilege (almost identical to the one in your proposed Code) and this really irritated the Congressmen, who were at that time chafing under President Nixon’s excessive claims of executive privilege. Some libertarian Congressmen felt this broad view of governmental privilege was especially bad because it went hand in hand with a restriction elsewhere in the draft, of the personal privileges like the husband-and-wife and doctor-and-patient privileges. The rules seemed to be broadening governmental privileges while narrowing personal privileges. You see, the draft did not provide for privileging confidential private citizen relationships except for a very narrow list of specifically enumerated ones. It was not like your Code, which does privilege confidential professional and family relationships quite generally. I might say that your draft would not have satisfied these Congressmen because, even though your draft does privilege family and professional relationships, it does so only in a half-way fashion. It grants a qualified privilege. The judge can balance various factors to see whether he wants to accord a privilege or not. I submit to you that this really does not effectively foster the policies behind the privileges. The purpose of these privileges is, I assume, largely to encourage full communications. Are people going to be encouraged to communicate when they know that they may or may not have a privilege, depending upon what a judge rules? I do not think so. I think if you really want to encourage them to communicate, you have got to tell them that they definitely have a privilege.

The height of the Watergate affair was a very bad time to put forth a draft with a broad executive privilege. Furthermore, it was probably a Watergate-engendered sensitivity that made Congress reluctant to cede any power to any other branch of government, whether it be to the executive or the judiciary. Thus Congress was not about to allow the judiciary to unilaterally adopt rules of evidence without Congress getting into the picture. Especially was this so since many of the matters in the Code, such as privileges and other provisions, especially provisions applying to criminal cases, were perceived to affect matters outside technical court room conduct, possibly reaching into fundamental liberties in the daily activities of citizens.

For these reasons Congress wanted to play a role. Overlaying it all was a feeling that perhaps codification was not needed, but this did not prevail. New areas of controversy surfaced once Congress opened the rules, but finally, after a House draft, a Senate draft, and a compromise draft, the Rules were enacted, and became effective July 1, 1975. In broad outline they were about 90 per cent what the Supreme Court draft had provided anyway. They are also very like your Code. About eighty per cent attempts to codify the common law. But you can’t codify the common law in the United States. It has many different strands, many conflicting views. In most cases our Code took the majority view; but in many it codifies a minority view. There is very little that is made up out of whole cloth and brand new. Privileges were, under the final enactment, left to the common law or to state law, depending on the kind of case; and a compromise was reached cutting back on liberalization of the hearsay rule.

By August 1978, my Resolutions Book was complete, being 258 pages of resolutions obtained from seminars completed. The incisive and probing questions and attacks on the Evidence Code that I had faced, raised my knowledge of the law evidence to a substantially greater level of expertise than I had obtained as a “trial Crown” in Toronto, during the ten years preceding the consultation process. The seminars held were of two types: (1) “judges’ seminars,” which were attended by senior judges and lawyers; and, (2) “lawyers’ seminars,” attended by litigation lawyers in each locality. In 1977, I conducted 25 seminars—five “judges’ seminars” and 20 “lawyers’ seminars.” In 1976, I spoke at ten conferences on the “Evidence Code.” And in 1978, I spoke at six conferences on topics within the law of evidence while still an employee of the federal Department of Justice. But at some of those 1978 conferences I spoke of the work of another body that resulted from the consultation process on the LRCC’s Report on Evidencethe Federal/Provincial Task Force on Uniform Rules of Evidence (the “Task Force”). By late Fall 1977, it was clear that the “Evidence Code” would at best, receive a “mixed” reception. It was most favourably received in Atlantic Canada and Quebec, and least favourably in British Columbia, with feedback from locations in between evenly progressing from one side of the spectrum to the other. Consider the following resolutions from the “judges’ seminars,” concerning the “codification issue,” which was dealt with at the closing plenary sessions, or within the preceding discussion groups, as those in attendance chose:

Halifax Plenary

Resolution I – This group is in favour of a comprehensive, legislated statement of the law of evidence.

Resolution II – This group is in favour of a Code of Evidence which contains its own statement of principle.

Val Morin, Quebec Plenary

Unanimously accepted the idea of an Evidence Code, the provisions of which would be brought into force all at the same time, but with a delay between enactment and coming into force.

Toronto Group 1

Resolution 1 – Be it resolved that we not adopt the Law Reform Commission’s view of a pre-emptive Code as desirable.

Toronto Group 2

Resolution 1 – True codification of the law of evidence in the form of the Law Reform Commission of Canada’s Evidence Code is inappropriate to the common law legal system and will not fulfill the purpose of section 1 of that document.

Toronto Group 3

Proposition I: Re Codification – It was generally agreed that a comprehensive Canadian Code of Evidence departing from our common law tradition is not desirable.

Toronto Plenary

Resolution (unanimously approved) – Statutory changes in the existing law of evidence should be made only in problem areas not susceptible to appropriate change by the ordinary processes of judicial law-making. Many of these problem areas have been revealed during the Consultation Process. When change is to be made, there should be a draft bill of provisions on the law of evidence dealing with specific particular problems as reflected by the Consultation Process and reflecting the solutions suggested by the Consultation Process, submitted to Parliament for consultation across the country and given First Reading.

Edmonton Plenary

Resolution I – Resolved that it has not been demonstrated that an exclusive Code of Evidence is desirable.

Vancouver Group 1

Resolution XX – Re Codification Resolved that a pre-emptive Canadian code of evidence departing from our common law traditions is neither desirable nor necessary.

Vancouver Group 2

Resolution II – codification This group is of the opinion that a comprehensive Canadian Code of Evidence departing from our common law traditions is not desirable.

Vancouver Plenary

Resolution I – A pre-emptive Canadian Code of Evidence, departing from our Common Law traditions, is neither desirable nor necessary.

Three points of note:

(1) Every group that rejected codification also adopted resolutions to the effect that (quoting from Resolution II of the Vancouver Plenary session), “statutory changes to the existing law of evidence should be made in problem areas not susceptible to appropriate change by the ordinary processes of judicial lawmaking.” And very similar wordings were used in the resolutions of the other groups and seminars that rejected codification.

(2) The resolutions from the lawyers’ seminars in each area reflected views very similar to those expressed in the above resolutions from each corresponding area. At the Regina lawyers’ seminar, Resolution I stated, “Resolved that it has not been demonstrated that an exclusive Code of Evidence is desirable.” Would a similar consultation process held today return similar views?

(3) Until a proposal for law reform becomes a Bill before a legislature or Parliament, it is often difficult to get lawyers to treat it seriously. Therefore some of the above resolutions recommended that proposals for law reform be given First Reading. But governments are reluctant to make substantial changes after First Reading, fearing the Bill and its sponsor will thereby suffer a critical loss of credibility; ergo, the “Catch-22” conflict of consultation on legislative reform.

Generally, the further west I went, the more vocal were lawyers against “a true code.” Typical was the comment of one senior Vancouver lawyer, who had come across the waters of the Strait of Georgia to attend the Victoria seminar at the famous Empress Hotel on June 15, 1977. He stated to the plenary assemblage that the Evidence Code, if enacted, represented his pension plan. In the year following my years in Ottawa, we met before the British Columbia Court of Appeal, I representing the Crown in right of the Province of British Columbia in criminal appeals.

In the book of conference materials I included my article entitled, “The Meaning of Codification,” (previously published at, (1976), 35 C.R.N.S. 178). It was in response to that “meaning” that the “codification” resolutions were drafted and voted on. In my Introduction to the Resolutions Book, (dated August 1978), I provided this summary of the results obtained from the consultation process on this most important of all issues:

By far the most important issues were “codification” and “legislative approach.” The viewpoints expressed on these issues showed a very strong and consistent majority viewpoint. The main points which I found expressed in the Resolutions and in the comments I received while at these seminars were:

1. There should be no codification of the law of evidence at this time.

2. A comprehensive statement of the existing law of evidence should be developed immediately – opinion is split on whether it should be a legislated or non-legislated statement (which might be an authoritative analytical text-book or ‘Canadian Wigmore’).

3. Particular rules of evidence are in need of legislative amendment now.

4. Consultation in this form with judges and lawyers, on the law of evidence should continue. Reform of the law of evidence should be the product of continuing consultation with Bench and Bar.

A fifth important point which was strongly emphasized by comments at almost all of the seminars (although reflected in only a few of the Resolutions), was that an effort should be made by the federal and provincial governments to bring about uniformity in the federal and provincial rules of evidence.

. . .

The Consultation Process showed that there is work to be done by the Federal Department of Justice in the field of evidence. There is considerable support in developing a readily accessible statement of the rules of evidence and in amending rules which are out of date or obscure in their application, and also in bringing about greater uniformity between federal and provincial rules of evidence. Therefore, this Department is participating in a federal/provincial task force which is formulating recommendations to bring about uniformity in the rules of evidence. That body, the Federal/Provincial Task Force on Uniform Rules of Evidence, of which I am a member, will be presenting its first Annual Report to the Uniform Law Conference of Canada in August.

This is the first of two entries on the desirability of a Canada Evidence Code.

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