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A Proposal to Replace Ontario’s Evidence Act With an Evidence Code

In September, 2019, I responded to the Law Commission of Ontario’s request for law reform project suggestions, with the following Evidence Code proposal. It contains reasons why you should send your written support to the LCO. The LCO will respond to such submissions early in 2020. Every Canadian common law jurisdiction’s Evidence Act should now be replaced with a true Evidence Code.

The work to replace Ontario’s Evidence Act with a true Evidence Code is much more than half completed, because in December, 1975, the Law Reform Commission of Canada (the LRCC)[1] published its Report on Evidence; reproduced at: (1976), vol. 34 Criminal Reports, New Series pp. 26-116 (Thomson Reuters (formerly a publication of, Carswell Co.)). It proposed and contained a draft Evidence Code to replace the Canada Evidence Act. An Evidence Code would contain all the principles necessary to deal with all issues of law and fact concerning evidence. Thus, a code is a comprehensive legislated statement of principles, not rules. Ontario’s Evidence Act contains only some of the rules of evidence, which is true of all present Evidence Acts in Canada.

All of the arguments in the LRCC’s Report on Evidence as to the need for codification are even more valid and persuasive today.[2] And, as stated below, the Canadian Charter of Rights and Freedoms, which wasn’t operative when that Report was published and being evaluated by the federal Department of Justice, has added further supportive reasons.

Three of the four Commissioners of the LRCC who published the Report on Evidence were prominent lawyers and later highly renowned judges. In 1980, Antonio Lamer became a justice of the Supreme Court of Canada and later Chief Justice of Canada, 1990-2000. G.V. LaForest also became a justice of the Supreme Court of Canada in 1985 and retired in 1997. And E. Patrick Hartt, the Chair of the LRCC, was a renowned justice of the Ontario Superior Court of Justice. The fourth Commissioner, J.W. Mohr, was a sociologist much involved in law reform projects. Therefore, such advocacy of the need for codification of the law of evidence was being put forward by very experienced senior lawyers and judges. Their Introduction and “Comments on [the] Evidence Code” in the Report are very persuasive and deserve to be given great weight when considering the need for such a codification of the law. They explain the theme and purpose of every one of the 89 sections of the Code, including, its purpose and construction (ss. 1-3); decision-making powers respecting evidence (ss. 6-11); burdens of proof and presumptions (ss.12-14); specific rules respecting admissibility (ss. 15-48); methods of establishing facts (ss. 49-85); the application of the Evidence Code to various types of proceedings (ss. 86-87); and, as a consequence of the Evidence Code’s “occupying the field,” (comprehensiveness), the abrogation and repeal of various common law rules (s. 89).

In April, 1976, the Honourable Ron Basford, Minister of Justice and Attorney General of Canada, announced that I would be conducting a national consultation process to aid in the determination of what should be done with the LRCC’s Report on Evidence. And so, during 1976-1978, I travelled to all parts of Canada to consult with senior judges and lawyers. As to how I organized and conducted that very extensive consultation process and its results, see: “A Canada Evidence Code Should Replace the Canada Evidence Act” (SSRN, May 31, 2014, 16 pages, pdf).[3]

And to explain the unique meaning and importance of codification, I wrote this text, “The Meaning of Codification,” (1976), 35 CRNS 178-185. In brief, a true code must be: (1) a legislated statement; (2) of principles; and, (3) be the exclusive source of the law in regard to its subject matter. “Exclusive” in the sense that all analysis of issues of law and fact begins with the code. Previous case law may be considered but it is not binding on the interpretation and application of a true code. Therefore, the Canadian Charter of Rights and Freedoms is a true code; the Criminal Code is not. From its beginning in 1892, the Criminal Code was interpreted as being the end product of the prior case law, therefore its interpretation was bound by that case law. A true code is not so bound and therefore the application of the Charter is not so bound by the previous law concerning rights, freedoms, and the rule of law. Also, the Criminal Code is much more than a statement of principles, containing as it does many detailed procedures and rules in several of its Parts. And the Criminal Code does not contain all of the statutory criminal law.

Replacing a provincial Evidence Act with an Evidence Code is not something requiring federal participation, or the participation of the other provinces and territories, although of course, the more participants in such a project, the more persuasive would be arguments favoring codification, and the more readily would codification be accepted. Even though the U.S. Federal Rules of Evidence have been adopted by a large majority of the States as their state codes of evidence, California has its own California Evidence Code, as does the state of Louisiana.

The Charter itself has made codification more acceptable than it was when I conducted the consultation process concerning the LRCC’s Report on Evidence, i.e., before the Charter existed. It was suspicion of, and concern about the consequences of codification that resulted in the federal Department of Justice concluding that the Report on Evidence’s advocacy of codification of the law evidence received only “a mixed response.” But many judges and lawyers were in favor of codification of the law of evidence. In my opinion, they would constitute an overwhelming majority now. However, that deemed “mixed response” resulted in nothing being done with the LRCC’s Report of a legislative nature.[4]

Also, the competing Ontario Law Reform Commission’s Report on the Law Evidence (June, 1976) was against codification. Its Introduction (p. xi) argued 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… .” Instead, it strongly advocated an extensive number of amendments to the law of evidence, both to the common law and to statute law.[5]

Even a comprehensive legislated statement of the rules of evidence, which is not a true code, would most likely be interpreted as being the product of, and bound by the previous case law. The Charter has greatly aided the development and application of the law as provided by its codification. The advantages of codification are discussed in the LRCC’s Report on Evidence and so there is now much support for the codification of the law of evidence. The Charter has revolutionized the practice of criminal law and has been an important part of the development of many other areas of law. I was a criminal lawyer, both as a Crown prosecutor and defence counsel, during the first 40 years of my career as a lawyer (since March, 1966).[6] Therefore, I believe that the Charter has largely removed the concerns that the legal profession once had as to the consequences of codification of various areas of the law.

Particularly important is the Supreme Court of Canada’s development of its “principled approach” to the law of evidence for almost 30 years, by altering the method by which the application of various rules of evidence should be analyzed.[7] The results should be gathered into a single text that is an Evidence Code. Being a legislated statement of principles, from which all analysis of the rules of evidence must begin, it would greatly aid such development of the law of evidence. Being a code, it would operate much like the Charter does as the starting point from which all analysis of the operation of rights, freedoms, and the rule of law must begin.

At present, the rules of evidence, with their many exceptions and qualifications, are scattered over a great volume of case law. That has had to be tolerated for many years. For example, in Graat v. The Queen, 1982 CanLII 33 (SCC), [1982] 2 SCR 819 at 835, Dickson J., delivering the judgment of the Supreme Court of Canada, stated:

We start with the reality that the law of evidence is burdened with a large number of cumbersome rules, with exclusions, and exceptions to the exclusions, and exceptions to the exceptions.

Now, 38 years later, the fragmentation of the law of evidence is much greater.

Instead of being applied to large collections of case law, courts should be enabled to apply the declarations in the Charter to the statements of the principles of the law of evidence as stated in an Evidence Code. The interpretation and application of an Evidence Code would not be rigidly bound by that previous, much fragmented case law, except as required by decisions based upon the Charter. Therefore, an Evidence Code would be drafted having regard to such Charter decisions concerning the law of evidence. That would ensure the “principled approach” that the Supreme Court of Canada has being developing would become the constitutionally-required method of analyzing and applying the principles and rules of the law of evidence.

All that would be needed to carry out such a project to replace any Evidence Act with an Evidence Code would be to have a committee of experts update the LRCC’s Evidence Code, having particular regard to: (1) what the Supreme Court of Canada and the Courts of Appeal have done to the law evidence since its publication in December, 1975; and, (2) the need for provisions that recognize that most of the evidence now used in legal proceedings (and for legal services), comes from electronic systems and devices, electronically-produced records being the most frequently used example; see: Ken Chasse, “Challenging Electronic Systems’ and Devices’ Ability to Produce Reliable Evidence” (SSRN, May 21, 2019, 62 pages, pdf.).

Any Attorney General would be proud to have his/her term in office accredited with the enacting of an Evidence Code. It would be a mark of distinction for the career of any lawyer who played a part in bringing about such an important statute codifying a major area of the law. Therefore, it should not be difficult to obtain the support and participation of other government-based law reform bodies in the other jurisdictions of Canada. That is what happened in 1978 during the last stages of the national consultation process concerning the LRCC’s Report on Evidence and its Evidence Code.[8]

 

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[1] The LRCC existed from 1971 to 1992. In 1997 the Law Commission of Canada became operative. But on September 26, 2006, the federal government announced that it was cutting its funding.

[2] The LRCC’s Report on Evidence is no longer available as a government publication. However, at the time of its publication, I was the Editor-in-Chief of the Criminal Reports, New Series (the CRNS). As a result, the full text of the Report is reproduced at, (1976), 34 CRNS 26-116. Most institutional law libraries should have that series of law reports as well as a copy of the original soft-bound Report itself, there being no electronic storage of texts at the time of its publication. Unfortunately, Thomson Reuters no longer sells the earlier volumes of the Criminal Reports.

[3] See a shorter 2-part version of that SSRN-posted text in: Part 1 (Slaw, Jan. 9, 2014); and, Part 2 (Slaw, Jan. 16, 2014). I also authored the following text which contains similar content: “Canada’s Evidence Code?” (2006), 64 the Advocate 659-674. The Advocate is published six times a year by the Vancouver Bar Association and is distributed to all members of the Law Society of British Columbia.

[4] That concern arose from the lack of familiarity with a codified law of evidence and the great attachment to the common law, stare decisis method of developing the law by way of case law precedent. That devotion has substantially diminished.

[5] The OLRC’s Report on the Law of Evidence, ends with a, “Draft Bill: The Evidence Act,” which contains its recommendations for changes to Ontario’s Evidence Act in the form of a statute; see: Appendix A, pp. 253-272. Appendix B (pp. 273-278), is a “List of Differences Between the Draft Bill and the Present Act.”

In the U.S., the codification of the law of evidence that became the Federal Rules of Evidence, (operative from July 1, 1975), was not a major issue because model codes of evidence had existed in the U.S. for many years, and had been used as the foundation of law school courses on the law of evidence. The major issue was “States’ rights,” in that the States wanted each State’s law of privileges to apply in federal proceedings. That did not happen.

[6] Since January 2007, I have concentrated on developing “records management law” as a new and necessary field of the practice of law. Beginning in 1978, it was a small but continuous part of my law practice. On October 3, 2012, the Law Society of Ontario’s Certified Specialists Board refused my request to make “records and information management law” a designated area of practice. But they suggested that it might be made part of a future specialty of, “Information Technology Law.” That would be a good first step, but it is one that still does not exist.

[7] See, Sopinka, Lederman & Bryant, The Law of Evidence, 5th edition (LexisNexis, 2018), the Introduction & Chapter 1.

[8] As to that resulting joint federal-provincial participation, see: (1) the references to the, Federal/Provincial Task Force on Uniform Rules of Evidence on pages 7 and following, in this text, A Canada Evidence Code Should Replace the Canada Evidence Act” (SSRN, May 31, 2014, pdf); and, (2) the published, Report of the Federal/Provincial Task Force on Uniform Rules of Evidence, prepared for the Uniform Law Conference of Canada (Carswell Co., 1982).

Comments

  1. During my time teaching the law of evidence (1980-2010), I saw our courts, and particularly the SCC, gain confidence in treating statutory and common law rules of evidence as expressing underlying, general principles with deep historical and political roots. This began in earnest even before the Charter, but the Charter made it clear to everyone that this principled reconception of evidence law was not an academic mind game or a judicial whim, but a constitutional necessity. This process has produced remarkable clarifications of ancient and modern rules, abolished much nonsense, and guided statutory reform.
    It is now at least arguable that the interwoven principles supporting evidence law are sufficiently well developed and well understood that we can safely create an evidence *code* with relatively little worry that it will entrench unjust rules or tunnel vision.
    We have the American experience to look to, as well. How well has it worked for them? (I make no judgment.) We had the American experience with a Bill of Rights to look at, and as a result we have a Charter that is a significant improvement. Perhaps we could improve on the typical US evidence code, as well.
    It is time to revisit the possibility of evidence codes for Canada. Ideally, we could even have Provincial uniformity!

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