COMMON LAW RULES OF EVIDENCE AS APPLIED
IN CRIMINAL MATTERSt
Joseph Cohen, Q.C.*
The subject matter of this brief essay is the distinction between the common
law rules of evidence as applied in criminal cases and the rules of evidence
applicable to civil matters in the Province of Quebec. That there are distinctions
in the rules of evidence is obvious to anyone who has ever practised in the
criminal courts. So many circumstances arise during the course of trial insofar
as evidence is concerned where the solution cannot be found-and must not be
found-in the Code of Civil Procedure, that we must, perforce, go to the com-
mon law. One very important example of this is the rule with respect to cross-
examination, and I need hardly remind civilians that in civil matters they are
restricted in their cross-examination to the facts referred to in the examination-
in-chief.’ Now, insofar as criminal law is concerned, this rule does not apply.
In criminal matters, an attorney may cross-examine a witness on any subject
that appertains to the case, regardless of whether or not the subject was raised
in the examination-in-chief. This was not always so, but the point is now
settled. For example, less than a year ago, in the case of R. v. Bordeleau,
Mr. Justice St. Jacques, referring to the cross-examination of defence wit-
nesses by the crown prosecutor, said this:
“Appellant testified; he gave his version of what happened the day his wife was
killed. In cross-examination, the crown had, no doubt, the right to put questions
that did not arise directly from the examination-in-chief, provided that the facts
were related, directly or indirectly, to the principal fact in the charge.”
In that particular case, the Court of Appeal found that the cross-examina-
tion had gone even beyond that point. I cite the case because it is the latest one
in which the Court of Appeal laid down, in clear and unequivocal language,
that in the cross-examination of a witness in a criminal trial one is not tied to
the examination-in-chief.
How important is this rule in criminal matters! In a civil case counsel is at
liberty to call as his witness a person subpoened by the opposite party or even
the opponent himself. But in criminal matters, in virtue of s. 9 of The Canada
,Revised Text of a Lecture Delivered at the 1956 Bar Extension Lectures at McGill
*Joseph Cohen, Q.C., of the Bar of Montreal; Lecturer
in Criminal Law, ‘McGill
University.
University.
1Art. 40, Code of Civil Procedure: “When a party has ceased examining a witness he
has produced, the opposite party may cross-examine such witness in every shape upon
the facts referred to in the examination-in-chlief; or he may require an entry to be made
of his declining to cross-examine.”
(Italics added).
2(1955), 24 C.R. 181.
N’o. 21
CRIMINAL EI DENCE
Evidence Act,3 a party producing a witness is not allowed to impeach his
credit by general evidence of bad character-and this quite apart from the fact
that the Crown cannot, of course, call the accused as a witness. Therefore, if
counsel did not have the right to try to impugn the testimony given by a witness
during his cross-examination, it can easily be seen how his hands would be tied,
because it is part and parcel of his duty-when the circumstances permit-to
try to impugn the testimony of witnesses against him.
Another distinction to which I would want to draw your attention is the
evidence of what is called “recent complaints”. In sex cases, the complaint of
the victim made to someone, anyone, immediately after the act complained of,
is admissible into evidence. It is not admissible as proof of the veracity of the
victim’s story, but rather to show the consistency of the story told by the com-
plainant. It may be used to disprove a defence of consent, and an interesting
case on this point is R. v. Elliott.4 But in practice, when evidence of this nature
is made before a jury, then notwithstanding the best efforts of the trial judge
to make that very fine distinction, it becomes one of the most dangerous types
of evidence that can be admitted because one can well imagine the effect which
it will have on the minds of the jury. And yet it is perfectly admissible under
the rules of the common law. I need hardly say that in civil law this evidence
would be inadmissible as being pure hearsay.
Another dangerous type of evidence which we meet in criminal cases is
evidence of similar acts, or, as it is sometimes called, similar facts. It is obvious
to anyone who has but the slightest notion of criminal law that the prosecution
has not the right to prove derogatory acts committed by the accused on previous
occasions and then ask the jury to infer that because the accused had committed
those acts he is probably also guilty of the offence with which he stands charged.
Yet similar acts are admissible under certain circumstances, chief among them
the attempt to negative a defence of accident, or lack of intent, or, if you will,
lack of guilty knowledge. The theory is that if the accused has done the same
sort of thing on a previous occasion, he cannot now raise any of these defences
with any degree of success.
The point is well illustrated in R. v. Brimet,3 a Quebec case which went to
the Supreme Court of Canada. In this case, the accused was a doctor who was
charged with using instruments in order to bring about an abortion. He did not
deny that he had treated the woman, but he pretended that he had treated her
“9. A party producing a witness shall not be allowed to impeach his credit by general
evidence of bad character, but if the witness, in the opinion of the court, proves adverse,
such party may contradict him by other evidence, or, by leave of the court, may prove
that the witness made at other times a statement inconsistent with his present testimony;
but before such last mentioned proof can be given the circumstances of the supposed
statement, sufficient to designate the particular occasion, shall be mentioned to the wit-
ness, and he shall be asked whether or not he did make such statement.”
4(1928), 49 C.C.C. 302.
5(1918), 30 C.C.C. 16.
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for some innocuous malady. In other words, his was a defence of innocent
purpose. The court held, however, that the Crown, having been met by this
defence, was entitled to show that on previous occasions the accused had com-
mitted similar acts. I might add that in such cases the crown would be entitled
to tender evidence not only of previous convictions, but also of those previous
acts by the accused which did not form the basis of a criminal charge. Clearly,
this is a rule not applicable in civil law.
In criminal law, the evidence of an accomplice-the evidence of a witness
tainted because of his connection with the crime-stands in a different light
from the testimony of the ordinary witness, and there is no rule stronger in
criminal law than that laid down in R. v. Baskerville,6 which makes it imperative
that in every case where the testimony of an accomplice is offered the trial
judge must explain to the jury the peculiar situation which this type of testi-
mony occupies. Moreover, he must explain to the jury who, in law, can be
considered an accomplice. He must also warn them-and this is supported by
a number of judgments of the Supreme Court 7-that
the testimony of an
accomplice is always dangerous, and that it is desirable that they should seek
corroboration of such testimony before convicting. But, having given this
warning to the jury, the trial judge must also tell them that they are free to
accept this testimony even if uncorroborated. Is there such a rule under the
civil law? I know of none. I understand that there is such a thing as the cred-
ibility of witnesses, and that a judge sitting in a civil court will be less inclined
to believe the testimony of an accomplice than he would the testimony of a
disinterested witness. But I know of no rule in the civil law which would require
a judge to warn the jury that the testimony of an accomplice is always dangerous
and that it is better to search for corroboration.
Let me consider another feature of evidence. We have in criminal law a
presumption that he who is found with goods recently stolen can be found
guilty of the theft or possession of these goods wnless he can give a reasonable
explanation as to how they came into his possession. In other words, the com-
mon law creates a rebuttable presumption, and the leading case on that point is
R. v. Schanza & Abramnovitch.8 This decision has been followed consistently in
Canadian courts, most notably in R. v. Ungaro,9 a Supreme Court judgment.
In civil law there is no analogous presumption.
Another rule of the common law is the admissibility of certain ante-inortem
declarations in cases of murder and manslaughter and, although the point has
not yet been decided, I would be inclined to believe that this rule would also
6[1916] 2 K.B. 658.
7E.g. Vigeant v. The King (1930), 54 C.C.C. 301, and Boidianne v. The King (1931),
56 C.C.C. 338.
8(1914), 11 Cr. App. Rep. 45.
9(1950), 9 C.R. 328; see also Richter v. The King (1939), 72 C.C.C. 399, and R. v.
Rozolinsky (1946), 1 C.R. 89.
No. 2)
CRIMINAL EVIDENCE
apply to the new offence of causing death by criminal negligence. The rule
provides that the declaration made by a dying person is acceptable if the victim
is on the point of death and has given up all hope of survival. Under such
circumstances, the law presumes that a person will tell the truth, and his test-
imony, though unsworn, will have the same effect as evidence given under oath.
If that person actually dies, then his declaration, made to a third person such
as a policeman, a nurse or a doctor, despite the fact that it is hearsay and that
it was made in the absence of the accused, will be admitted into evidence. 10
It may be well at this point to consider the question of privilege. The Statutes
of Quebec create a privilege for a physician,” so that, without the consent of
his patient, he cannot be forced to testify about facts which came to his know-
ledge in a professional capacity. Not so under the common law, where the
physician has no privilege. Indeed, the only person who does have a privilege
under the common law-and therefore in criminal matters-is a lawyer. And
even here, the privilege will only subside so long as the matter under discussion
is for a lawful purpose.
And here there is a most peculiar anomaly. The priest or minister has under
the Code of Civil Procedure a privilege-L-and he should have a privilege; be-
cause if the lawyer has a privilege, then, surely, the priest, who has a much
closer and higher relationship with his communicant than that between client
and solicitor, should also have a privilege. In civil matters this is recognized by
article 332 C.C.P., which, inter alia, also provides for the privilege of the
lawyer. 12 But in the common law-and this opinion is supported by an over-
whelming majority of the jurisprudence-there is no privilege, and I can find
only one English case which enunciated the opposite view. 13 In the Province of
Quebec, as in the rest of Canada, the religious adviser has no privilege, though
in a number of cases, particularly in Ontario, the judges always found a way
to preserve the confidence of this relationship without stultifying the law on
this point.
One can easily see some of the great distinctions which exist between the
civil law and the criminal law, not only on the point of privilege, but also on a
10 See for example Chapdelabie v. King (1934), 63 C.C.C. 5.
“1R.S.Q., 1941, c. 264, s. 60(2); a similar privilege is created for the notary: R.S.Q.
1941, c. 263, s. 8.
12Art. 332, Code of Civil Procedure: “He [a witness] cannot be compelled to declare
what has been revealed to him confidentially in his professional character as religious or
legal adviser, or as an officer of State where public policy is concerned.”
13(1953), 6 Cox C.C. 219; but see the opinion of Best, C.J., in Broad v. Pitt, where
the learned Chief Justice made this remark: “I, for one, will never compel a clergyman
to disclose communications made to him by a prisoner; if he chooses to disclose them,
I shall receive them”. A similar opinion, also obiter, is attributed to Lord Kenyon, C.J.,
who reportedly said in DuBarre v. Livette (1791), that he would pause before admitting
the evidence of a clergyman concerning statements made to him in his professional
capacity. Both cases are cited by Joy, On the Admissibility of Confessions and Challenge
of Jurors it Crininal Cases in England and Ireland (1843).
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good many other points. I have insisted on these because of a very peculiar
section in The Canada Evidence Act.
There is no doubt that The Canada Evidence Act applies to criminal matters,
and s. 2 says so distinctly. 14 But then one finds s. 36 which gives rise to a great
deal of controversy in our jurisprudence. It reads as follows:
“In all proceedings over which the Parliament of Canada has legislative authority,
the laws of evidence in force in the province in which such proceedings are taken,
including the laws of proof of service of any warrant, summons, subpona or other
document, subject to this and other Acts of the Parliament of Canada, apply to
such proceedings.”
Now, if this section means exactly what it says, then a reasonable question
occurs: Why is it necessary to resort to the common law to find the answers
to such points which are not specifically covered by The Canada Evidence
Act? For instance, why not apply the provincial rules of cross-examination?
Or why does the priest or minister not have a privilege?
Crankshaw, in his 5th Edition, says this :15
” . . . [it] will be seen that the above section, 35, [now 36], expressly provides
that in criminal cases the laws of evidence in force in the province in which the
proceedings are taken ‘shall, subject to the provisions of this and other acts of the
Parliament of Canada, apply to such proceedings.’ So that the English rule-will
not apply to criminal proceedings in a province whose laws of evidence,-as is the
case in the province of Quebec-restrict a witness’s cross-examination to the facts
referred to in his examination-in-chief.”
But in his 6th Edition, Crankshaw changed his mind, as one finds the fol-
lowing remarks :6
“What is the meaning of the words: ‘the laws of evidence in force in the province
in which such proceedings are taken’, as far as matters in the Province of Quebec
are concerned? When the Canada Evidence Act was enacted, the laws of England
as to proof in criminal matters were in force in Quebec; and the better opinion
seems to be that such English laws are in force in Quebec in accordance with the
meaning of the above section 35; and that the above English rules as to cross-
examination consequently apply in Quebec.”
The editors of Crankshaw were not alone in changing their opinion, and a
number of authors hold contradictory views.’ 7 Let us therefore examine one or
two of the cases which have dealt with the point. In Parent v. The King,’8 a
case which dealt with the right of the Crown to make certain rebuttal evidence
which admittedly could only be made if the common law rules applied, Mr.
Justice Marchand, who is a distinguished jurist and whose opinion is entitled
to respect, said this :9
14″2. This Part applies to all criminal proceedings, and to all civil proceedings and
other matters whatsoever respecting which the Parliament of Canada has jurisdiction
in this behalf.”
15At p. 1330.
‘rAt p. 1507.
17E.g. Charles Langelier, La Procidure Criminelle, para. 674, favours the applica-
tion of art. 340 C.C.P. Per contra, Sir Franqois Langelier, De La Preuve, para. 880.
and Fortier, J., at (1934-35), 13 Revue du Droit 321.
18(1947), 4 C.R. 127.
1OAt p. 143.
No. 2]
CRIMINAL EIIDENCE
“… I cannot come to any other conclusion than to admit for the present case
the authority of the laws of evidence of the province of Quebec, for everything on
the subject of furnishing evidence that is not regulated by the laws of Canada. In
the provinces where it is the iegular law of procedure, the common law of England
may well govern the furnishing of evidence in the trials that our Canada Evidence
Act does not regulate, but it cannot do so in our province, where recourse must be
had to our own law of furnishing evidence.”
And in The King v. Long20 it was held by the Quebec Court of Appeal that
a section of The Canada Evidence Act then in force which required ten days’
notice of intention to prove certain official records by certified extracts there-
from, does not apply to a criminal trial in the Province of Quebec, as no such
notice is required by the Code of Civil Procedure.
In order to make a confusing situation even more difficult, consider the case
of Holmes et al v. The King,21 also a judgment of our own Court of Appeal,
with Marchand J., a member of the bench. This case hinged on the admissibility
of evidence of similar acts-a type of evidence which derives its authority solely
from the common law. The court, by a four to one decision, maintained the
appeal on the ground that although proof of similar acts is admissible in virtue
of the common law in certain cases, this was not one of them. But Mr. Justice
Marchand, in a lone dissent, disagreed and ruled in favour of accepting the
evidence of similar acts, and hence the dismissal of the appeal. The only con-
clusion which one can draw from this opinion is that the learned judge had a
change of mind on this point since giving his judgment in the Parent case two
years earlier.
Judge Ir6ne Lagarde, in an article in La Revue du Barreau, 22 is of the
opinion, which I share, that the rules of the common law apply in the Province
of Quebec, and this notwithstanding the provisions of s. 36 of The Canada
Evidence Act.
In this connection, I think it is important that one should bear in mind that
Canada got its first Criminal Code in 1892, and its first Canada Evidence Act
a year later. And I wish to believe that what parliament intended at the time
was to incorporate as evidence in criminal matters those provincial rules of
evidence which applied in 1893. It is my contention that the confusion is due
to the fact that in subsequent revisions of The Canada Evidence Act our legis-
lators left the wording as it was-and as it applied-in 1893. To verify this
contention, one must consider some historical facts with reference to the intro-
duction of criminal law in the province of Quebec.
After the Treaty of Paris, in October 1763, King George III recommended
to what had been French North America the introduction of the English civil
and criminal law. His opinion did not entirely prevail, because in 1774 the
Quebec Act was passed. However, s. 11 of the Act brought into force, insofar
20(1902), 5 C.C.C. 493.
21(1949), 7 C.R. 323.
22(1950), 10 R. du B. 171.
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as criminal law is concerned, the common lav of England as it existed at that
time. Let us look at this section:
“And whereas the Certainty and Lenity of the Criminal Law of England, and
the Benefits and Advantages resulting from the use of it, have been sensibly felt
by Inhabitants, from an Experience of more than Nine Years, during which it has
been uniformly administered; be it therefore further enacted by the Authority
aforesaid. That the same shall continue to be administered, and shall be observed
as Law in the Province of Quebec, as well in the Description and Quality of the
Offence as in the Method of Prosecution and Trial.”
So here you have a solemn agreement, whereby the province of Quebec was
assured the French civil law on the one hand, and the criminal law of England
that existed at the time, on the other. This was followed in 1840 by the Union
Act,23 which provided
“…that all laws, statutes, and ordinances which at the time of the union of +he
Upper and Lower Canada, shall be in force within the said Province or either of
them or any part of the said Provinces respectively, shall remain and continue to
be of the same force, authority, and effect in those parts of the Province of Canada
which now constitute the said Provinces respectively as if this Act had not been
made, and as if the said two Provinces had not been united as aforesaid, except in
so far as the same are repealed or varied by this Act, or in so far as the same shall
or may hereafter by virtue and under the authority of this Act be repealed or
varied by any Act or Acts of the Legislature of the Province of Canada.”
Upper Canada adopted the criminal law of England as it stood on September
7, 1792, subject to any alteration.24 But Quebec was satisfied to administer its
criminal laws on the common law rules. We now come to the British North
America Act, 1867, and it is of course known to all that sub-section 27 of
section 91 gives exclusive jurisdiction in criminal matters, save for the adminis-
tration of criminal law, to the central government. But we must also consider
section 129, which reads as follows:
“Except as otherwise provided by this Act, all Laws in force in Canada, Nova
Scotia, or New Brunswick at the Union, and all Courts of Civil and Criminal Juris-
diction, and all legal Commissions, Powers, and Authorities, and all Officers,
Judicial, Administrative, and Ministerial, existing therein at the Union, shall con-
tinue in Ontario, Quebec, Nova Scotia, New Brunswick respectively, as if the
Union had not been made; subject nevertheless (except with respect to such as are
enacted by or exist under Acts of the Parliament of Great Britain or of the Par-
to be repealed,
liament of the United Kingdom of Great Britain and Ireland),
abolished, or altered by the Parliament of Canada, or by the Legislature of the
respective Province, according to the Authority of the Parliament or of that Legis-
lature under this Act.”
It follows that at Confederation,
the criminal law, both substantive and
procedural, was that which existed in the provinces prior to the coming into
is true that the federal government re-
force of the B.N.A. Act, and while it
ceived exclusive jurisdiction in criminal matters, it was not until 1892 that our
legislators at Ottawa exercised this right by the adoption of a Criminal Code.
But from 1867 until that time the criminal law which was administered in the
province of Quebec was the unwritten common law of England. And I would
233 & 4 Vic., c. 35.
2440 Geo. III, c. 1, s. 1.
No. 2]
CRIMINAL ETIDENCE
151
be prepared to go so far as to say that even if there had been any provincial
statutes dealing with criminal law in force at that time, they would have been
incompatible after 1892.
I hope that this brief historical review will show that when one pleads in our
criminal courts one must approach cases in the light of those rules of evidence
which are applicable to criminal matters and that one must, temporarily at
least, disregard the provisions of the Quebec Code of Civil Procedure, with
which we may all be more familiar.
