A Canada Evidence Code Should Replace the Canada Evidence Act, Part 2

Part 2: The failure of the Federal/Provincial Task Force on Uniform Rules of Evidence to have its Uniform Evidence Act enacted, because the piecemeal amendment of the law of evidence is preferred

Late in 1977, because of the “mixed” reception that the Law Reform Commission of Canada’s proposal for an Evidence Code to replace the Canada Evidence Act had received nationally, the Federal/Provincial Task Force on Uniform Rules of Evidence had been formed under the sponsorship of the Uniform Law Conference of Canada (the ULCC), which body provides the mechanisms and procedures by which federal, provincial, and territorial government lawyers work together to maintain consistency and compatibility of federal and provincial laws. For example, the reason why the Evidence Acts in Canada look so very similar is due to adoption of the work of “Uniformity” (the ULCC’s term of endearment).

The Task Force was formed because the sharply contrasting positions of the LRCC (the Law Reform Commission of Canada) and the OLRC (Ontario Law Reform Commission) as to reform of the law of evidence, combined with the reception given the LRCC’s Evidence Code, threatened an imminent split in the law of evidence into two, criminal and civil laws of evidence, and therefore, separate federal and provincial laws of evidence. Up to that time “evidence” had always been a unified whole, with but a few rules having operation in only civil or criminal cases. Everyone thought it should remain that way. Therefore, through the instrumentality of the ULCC, the Task Force from late in 1977 until its final report in 1981, deliberated in fulfilling its mandate to formulate a uniformly accepted comprehensive statement of the rules of evidence. The resolutions obtained from the consultation process conducted in relation to the LRCC’s Report on Evidence, were often referred to in the deliberations of the Task Force.

The members of the Task Force wrote study papers on the various topics of the law of evidence, debated them at our monthly meetings, usually held in each member’s provincial capital city in rotation, and thus developed a draft Uniform Evidence Act (1982). Its final report was published as the, Report of the Federal/Provincial Task Force on Uniform Rules of Evidence (Toronto: Carswell; 1982). It was, in my opinion, the best textbook on the law of evidence in Canada until “constitutionalization” of various rules of evidence under the Canadian Charter of Rights and Freedoms gradually put it out of date. Professor Tony Sheppard of the Faculty of Law at the University of British Columbia, was “a member of the Task Force research team and principal writer of the Report.” The regular members of the Task Force came from the federal Department of Justice and the larger provinces, Ontario, Quebec, British Columbia, and Alberta, and sometimes a representative from Nova Scotia attended our monthly meetings. There were other members who attended on an intermittent basis, including Eugene Ewaschuk, Q.C., then Director, Criminal Law Amendments Section of the federal Department of Justice, and later Mr. Justice Ewaschuk of the Ontario Superior Court of Justice. Gilles Létourneau, then Acting Assistant Director General, Legislative Affairs, Quebec Department of Justice, who represented Quebec, later President of the LRCC, and a Justice of the Federal Court of Appeal. And the late Justice G.L. Murray of the Supreme Court of British Columbia was the B.C. representative. I was at first, a federal representative, and then a “Member at Large” on moving to the Office of the Crown Counsel in Vancouver, and later to Legal Aid Ontario in Toronto as its first Director of Research at LAO LAW.

At a Special Plenary Session of the ULCC, held on August 27-28, 1981 in Whitehorse, Yukon, the new Uniform Evidence Act, being the end product of the Task Force’s work and Report, was adopted, appearing as Appendix 4 to the Report of the Federal/Provincial Task Force on Uniform Rules of Evidence. Given the considerable time and talent devoted to the work of the Task Force, and the well acknowledged need for legislated reform, its Report should not have come to nothing.

On November 18, 1982, First Reading was given in the Senate to Bill S-33, (1^st session (1980/04/14 – 1983/11/30) “An Act to give effect, for Canada, to the Uniform Evidence Act, adopted by the Uniform Law Conference of Canada.” Bill S-33 died and came to nothing. Finally, by means of a “Proposed Canada Evidence Act,” dated February 23, 1987, the federal Department of Justice circulated for consultation a draft Act, s. 1 of which stated, “This Act may be cited as the Canada Evidence Act, 1986.” It was mainly the Uniform Evidence Act with some re-organization and re-drafting. But it too came to nothing.

Those efforts failing, not until the electronic records provisions of the Canada Evidence Act, ss. 31.1 to 31.8, came into force on May 1, 2000, as Part 3 of the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5, s. 56 (PIPEDA), along with their 10 provincial and territorial counterparts, has there been significant revision and updating of the law of evidence by statute, or adequate provision for electronically-stored records as evidence. Now, only the Evidence Acts of British Columbia, the Northwest Territories, and Newfoundland and Labrador, still do not contain electronic records provisions. However, having been developed to fulfill an anticipated specific need arising from the fundamentally different nature of electronic records in comparison with traditional pre-electronic paper records, the electronic records provisions appear to signal an abandonment of a comprehensive approach to reform of the law of evidence in favour of a topic-by-topic or issue-by-issue approach, as problems are perceived to arise. That is far different and far more conservative than the bold view deemed necessary by the LRCC’s Report on Evidence and its contained Evidence Code published in December 1975.

At least one can hope that the outmoded, overly conservative view as to when legislative intervention is appropriate, which says, “if it ain’t broke, don’t fix it,” is gone. Law, like all other social sciences and the humanities is driven to change by changing technology—particularly procedural law, of which the law of evidence is a major subdivision. Waiting for emergencies to strike before laws are changed to cope with suddenly imposed new needs is too disruptive and costly. The necessary strategy is the anticipation of needed solutions before emergencies arise, not the rectification or “damage control” of emergencies. For example, the business record provisions of the Evidence Acts (e.g.: s. 30 of the Canada Evidence Act; s. 35 of the Ontario Evidence Act; and, s. 42 of the B.C. Evidence Act) were legislated into hurried existence in the late 1960’s, in response to the decision in, Myers v. D.P.P. [1965] A.C. 1001, [1964] 2 All E.R. 881, 48 Cr. App. R. 348 (H.L.), wherein the House of Lords held that the available hearsay exception as to business records was not adequate to admit records concerning serial numbers of manufactured automobiles without the evidence of the person who was the maker of those records, and that any needed alteration of the law would require new legislation. The inadequacies of these legislated “quick fixes” was soon made apparent by the published textbook and journal commentary raising uncertainties as to their adequacy in dealing with the admissibility and “weight” issues generated by adducing electronically-produced records as evidence. See for example, “The Federal Business Record Provision: Section 30 of the Canada Evidence Act,” at p. 82, and generally, pp. 44-119 in, J. Douglas Ewart, Documentary Evidence In Canada (Toronto: Carswell; 1984; but no longer published); and see my article, “Electronic Records as Documentary Evidence” (2007), 6 Canadian Journal of Law & Technology 141, 147-151). Therefore every Evidence Act should contain electronic records provisions. In Canada, the Supreme Court of Canada instead followed the dissenting decision in Myers, thus allowing the Court to revise the hearsay rule exception for business records at common law: Ares v. Venner, [1970] SCR 608, 14 D.L.R. (3d) 4, 12 C.R.N.S. 349. As a result of this updating of the business records exception at common law, the Evidence Acts of Alberta and Newfoundland & Labrador still do not contain a business records exception to the hearsay rule. This very varied evidentiary legislation situation, will produce a very inconsistent caselaw, one jurisdiction to the next, once judges and lawyers realize the consequences in law required by the fundamental difference between an electronic record and a pre-electronic paper record—in particular, the “system integrity concept” that is expressly stated in the electronic records provisions; e.g.: s. 34.1(5),(5.1) of the Ontario Evidence Act; and, s. 31.2(1) of the Canada Evidence Act (see my Slaw blog article, “The Dependence of Electronic Discovery and Admissibility upon Electronic Records Management,” published Nov. 22, 2013). For example, the business record provisions were enacted before the present technology of electronic records existed, making necessary accompanying electronic record provisions, which three of Canada’s 14 jurisdictions still don’t have. The same weakness applies to the common law rules as to the admissibility of business records.

The consultation process in relation to the LRCC’s Evidence Code documented the very strong bias of the majority of lawyers and judges in Canada against codification of the law and in favour of judge-made law over statutory law. Has it altered much since then? In the United States, (and among lawyers in Quebec and possibly the Atlantic provinces), codification is much more readily accepted and used as proved by the success of the FRE. Most likely that was because American law school evidence courses had been based upon model codes, such as Uniform Rules of Evidence, for more than 25 years before the FRE became operative in 1975. Canadian law schools have not had a similarly national stepping stone up from “the traditions of the common law.”

Ironically and unfortunately, Canada has a greater need for codification than the U.S., having a population of slightly more than a tenth, and a caselaw production even smaller. In a small country, important issues of law do not get to the higher courts for decision fast and frequently enough to justify a continued dependence upon caselaw development as the predominant mechanism for maintaining the law’s currency, effectiveness, and necessary respect of the people it serves.

Many of our larger and more important pieces of legislation incur amendments every year and often more than once per year. But that is not codification. Just as a “comprehensive legislative statement of the rules of evidence” is not a codification of the law of evidence, and our Criminal Code is not a true code, but rather a legislated and unruly collection of amendments to the criminal law. Codification does not mean the abolition of caselaw or even a diminution of its importance or of the necessity of its continued existence. The bias against codification is not only unjustified, it hampers the proper development and utility of the law. The lawyer’s art is not diminished by it. Words are words, not mathematics—qualitative and not quantitative expressions of concepts and descriptions. Therefore they need interpretation and argument, whether in a code or as part of a collection of amendments, or court decisions. All three need lawyers and judges to interpret and apply their words effectively.

In a speech, “Codification and Judge-Made Law: A Problem of Co-Existence,” by the chair of the Law Commission of England, Mr. Justice Scarman, in 1966 at Birmingham University (reproduced at, (1967), 42 Indiana Law Journal 355 at 358), he defined a code thus:

A Code is a species of enacted law which purports so to formulate the law that it becomes within its field the authoritative, comprehensive and exclusive source of that law.

A code must be enacted law in order to give it authority. Its “comprehensiveness” distinguishes a code from other types of legislative activity such as amendment, revision and consolidation. Codification will almost invariably include revision and consolidation, and to formulate all the law within its field. “Exclusiveness” means the code must be the exclusive source of the law within its field. The definition of a code as being, “nothing more than a restatement of the law enjoying the authority of a statute,” was rejected. His Lordship pointed out that there were already examples in English law where courts had accepted that they must give up the common law and the binding effect of precedents, adding: “The courts must start with the code and not attempt to go behind it.” Existing decisions are applied, not because they are binding, but only if they are persuasive. As an existing example of this approach, Mr. Justice Scarman quoted from Lord Herschell in setting down the proper approach to the Bills of Exchange Act of 1882 in, Vagliano v. Bank of England, [1891] A.C. 107, at 144-45:

. . . the proper course is in the first instance to examine the language of the statute and to ask what is its natural meaning, uninfluenced by any considerations derived from the previous state of the law; and not to start with inquiring how the law previously stood, and then, assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view.

In contrast, Canada’s Criminal Code has been treated as being a restatement and consolidation of the pre-existing common law and statute law, coupled with an attempt to remove technicalities and clarify the law. Pre-existing rules have prevailed unless the provision of the Criminal Code in question has been held to contain sufficiently different language to support an interpretation that Parliament intended to displace it. This approach treats statute law as an exception to the common law rather than as the total source of the law. This is the way in which the rule of construction that states, “statutes, and particularly penal statutes, shall be strictly construed,” is justified.

In comparison, the LRCC’s Evidence Code, by means of its first three sections, establishes the exclusiveness and the comprehensiveness of its provisions. As stated by Mr. Justice Scarman, codification is thus the best means of ensuring that law reform does in fact take place. The need was well argued in the Introduction to the LRCC’s Report on Evidence (p. 4, and 34 C.R.N.S. 26 at 29)

. . . Present evidence law has rightly been categorized as a “proliferation of ostensible legal rules, refinements of rules, distinctions in the refinements, refinements and distinctions in the exceptions, and so forth ad infinitum.”

How then is a judge in the heat of a trial expected to cope when fine points regarding the admissibility of evidence may be raised at any time? And how can he be expected, often on the spur of the moment, to assess numerous conflicting or narrowly distinguishable precedents cited by opposing counsel? The simple fact is: he can’t. No one can fully master Wigmore’s or Phipson’s or the welter of judicial precedents that make up evidence law. The law of evidence functions because it is often ignored. Surely this is not good enough. For it means that the law is unevenly applied, a problem that is all the more serious where opposing parties are not equally matched. [emphasis added]

If such is the present state of the law, the exclusiveness and comprehensiveness that is the essence of codification is a necessary guarantee of the present law’s replacement. That is done by the fourth major distinguishing feature of a code—it states the law in principles, such as these first five sections of the LRCC’s Evidence Code:

TITLE I GENERAL PRINCIPLES

Part I Purpose and Construction

1. The purpose of this Code is to establish rules of evidence to help secure the just determination of proceedings, and to that end to assist in the ascertainment of the facts in issue, in the elimination of unjustifiable expense and delay, and in the protection of other important social interests.

2. This Code shall be liberally construed to secure its purpose and is not subject to the rule that statutes in derogation of the common law shall be strictly construed.

3. 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.

Part II General Rules

4. (1) All relevant evidence is admissible except as provided in this Code or any other Act.

(2) “Relevant evidence” means evidence that has any tendency in reason to prove a fact in issue in a proceeding.

5. Evidence may be excluded if its probative value is substantially outweighed by the danger of undue prejudice, confusing the issues, misleading the jury, or undue consumption of time.

The Evidence Code contains 89 sections, including “Title VII Abrogation and Repeal” of the Canada Evidence Act and particular provisions of the Criminal Code. For a more complete definition and analysis of true codification, see my article, “The Meaning of Codification,” (1976), 35 C.R.N.S. 178, and the authorities cited.

An important advantage provided by codification over statutory amendments and court decisions is that it more effectively improves “access to justice.” The other two are more likely to diminish access to justice, for they spread and fragment the law among a greater number of sources necessary to be consulted in order to gather an adequate statement of the law. As a result, law is less readily understood, and therefore less respected by the people it is supposed to serve, especially so by the unconscionably high percentages of unrepresented litigants in our courts. Legal research takes longer and therefore costs more. “Access to justice” diminishes as the costs of legal research increase. It was exactly to cure that problem that the centralized legal research service, LAO LAW, at Legal Aid Ontario was created. (See my Slaw articles for August 9th and October 24, 2013).

The Introduction to the Evidence Code in the LRCC’s Report On Evidence ends with this paragraph (p. 11, and 34 C.R.N.S. 26 at 35):

Whatever lack of unanimity there may be about specifics, of one thing we are sure. All of us are in full agreement that the need to reform the law of evidence is long overdue. We are convinced that the only rational way of effecting this reform is by a set of rules such as those we now propose. These, no doubt, will require adjustment in the light of experience as times goes on, but this can readily be done if one starts with a coherent structure. We do not regard as particularly progressive any reform that tends to add still more patches to the outlandish patchwork quilt we call the law of evidence.

Consider the Commissioners of the LRCC who put their names to this statement and to the whole of its Report On Evidence: E. Patrick Hartt, Chairman; Antonio Lamer, Vice-Chairman; J.W. Mohr, Commissioner; G.V. La Forest, Commissioner. Three of them were outstanding lawyers and later outstanding judges. Antonio Lamer was appointed to the Supreme Court of Canada on March 28, 1980, and became Chief Justice of Canada on July 1, 1990, retiring on January 6, 2000. G.V. La Forest was appointed to the Supreme Court of Canada on January 16, 1985, and retired on September 30, 1997. E. Patrick Hartt was a justice of the High Court of Ontario, now the Superior Court of Justice.

Therefore, if I were now the Minister of Justice and Attorney General of Canada, I would not be so “democratic” in my consultation on the need for law reform and codification of the law of evidence. Instead, if the Uniform Law Conference of Canada could not quickly respond, I would form a small committee of experts on the law of evidence, asking them to update the LRCC’s Evidence Code, particularly having regard to what the Canadian Charter of Rights and Freedoms and its caselaw have done to the law of evidence. A year later, I would have a Bill before the House of Commons in Ottawa containing a proposed Canada Evidence Code.

This is the second of two entries on the on the desirability of a Canada Evidence Code. The first is available here.