Uniform Evidence Act: Bill S-33 1983 The B.C. Civil Liberties Association is concerned about several features of the proposed Uniform Evidence Act. One relates to the way in which the proposal came about. We understand it was the result of a four year project by the Federal/Provincial Task Force on Uniform Rules of Evidence, a body created by the Uniform Law Conference of Canada. Both the Task Force and the Uniform Law Conference were largely composed of members of Federal and Provincial governments’ legal staffs and non-practising academics, with one judge—the Honourable Mr. Justice George L. Murray of the B.C. Supreme Court. The composition of the bodies considering the issues meant that the point of view of members of the public, accused persons, or their representatives in the defence bar, was not available perhaps as much as it should have been. Rules of evidence, particularly in criminal matters, have a direct impact on individuals who face charges in our courts, and we submit that there should have been representation of their point of view. The B.C. Civil Liberties Association has the following particular concerns about the contents of the proposed Uniform Evidence Act: The law relating to admissibility of confessions is altered in two very important ways. First, the Act provides (s. 64) that the Crown need only prove an a balance of probabilities (rather than beyond a reasonable doubt) that a confession was voluntary. The Task Force did not recommend this particular change. It, in fact, recommended that "beyond a reasonable doubt" be the standard. Second, s. 63 gives a definition of "voluntary" which arguably is a step backward from the position which the Supreme Court of Canada has reached in recent years—namely, that a confession may be involuntary for reasons arising from police conduct other than direct inducements or threats. The s. 63 definition is limited to circumstances which would come under the old Ibrahim test. It is submitted that the common law had, for good reason, begun to evolve a more inclusive concept of involuntariness and that it is unwise now to interfere. The Supreme Court of Canada has, on many occasions, said that the rationale behind the confessions rules is not to ensure reliability. The confessions rule has a significant although immeasurable effect on police practices. The potential effect of a change in the definition of "involuntary" along with the change in the burden of proof could be enormous. It is true that the Charter of Rights and Freedoms may provide an independent source of protection to citizens who are subjected to unacceptable conduct by the police; however, the scope and limits of that are still unknown and it seems unwise to presume that the Charter will have any effect until the courts have had at least a decade to consider it. An important protection to the accused under the existing law is that he cannot be compelled to take the stand at his own trial and neither the prosecutor nor the judge may comment on the failure of an accused to testify. The Act changes that rule (s. 95) and now requires comment when there is a jury. The majority of the Task Force recommended this change, but there were four dissents. The dissent of Mr. Justice Murray was stated as follows: "I and the British Columbia Committee expressly dissent from the proposal that a mandatory direction be given by the trial judge as to the right of the accused to testify on the following grounds, inter alia that the direction will draw attention to the fact that the accused did not testify; that the cure proposed is worse than the disease which it is designed to cure; that the direction will lead to difficulty in cases where there are reverse onus provisions and negative averments." The proposal to provide for comment on the accused’s failure to testify is linked with the revision on cross-examination as to previous criminal convictions. It has been thought that the main reason for the extremely low number of accused persons who testify in Canada, compared with those who take the stand at their own trials in England, has been that in Canada testifying brings automatic vulnerability to cross-examination on any previous convictions. (Otherwise, evidence of previous convictions may not be adduced.) In England, although an accused cannot be cross-examined on all of his previous convictions, his failure to testify may be made the subject of comment. Section 123 and Section 95 seems to go half way in each direction—in other words, the proposal is that an accused may be cross-examined on only some convictions, but a failure to testify must be the subject of comment to a jury, although supposedly the comment is framed in terms that will produce a neutral effect. Arguably, because of the exceptions to Section 123 allowing cross-examination on convictions (convictions in which fraud is an element, situations in which the accused has allegedly put his character in issue, situations in which for some reason the conviction is found to be directly relevant to the proof of the offence with which he is charged), an accused person will hardly feel less vulnerable now than he did before. Moreover, the logic behind excluding cross-examination about convictions for drug trafficking, rape and murder, and permitting it for convictions regarding NSF cheques or misstatements on welfare application forms is not compelling. It is therefore suggested that either the law should be left the way it is or the trial judge should be given discretion to refuse to permit cross-examination on convictions which are irrelevant to the credibility of the accused or to the matter at issue. The defence should be able to admit facts without the Crown’s consent, contrary to the proposal in Section 17(2) of the Uniform Evidence Act. To preclude admissions in the manner of s. 17(2) is to give the Crown control of the trial beyond what is reasonable. The Crown, however, should be able to bring in evidence of an admitted fact despite the admission. The rules with respect to the admission of illegally obtained evidence should be revised in the light of the Charter of Rights and Freedoms at least to prohibit admission of evidence where its admission would bring the administration of justice into disrepute. Uniform Evidence Act section 24 should not prevent an accused from leading evidence about his disposition or character in the community unless he has given notice to the court, because no such notice requirement is imposed on anyone else. The rule permitting the prosecution to lead evidence that a person accused of receiving stolen goods has had other stolen goods in his possession or has been convicted or receiving stolen goods in the past should be abolished because it is an unjustifiable exception to the general prohibition against evidence of bad character. This would entail amendment to Uniform Evidence Act section 35. The scope for admissibility of police officers’ notes created by Uniform Evidence Act section 55(2) seems too broad. Such notes are often made in the expectation of a trial and possibility of distortion therefore exists. There should not be a rule preventing police officers from referring to their notes before testifying, so long as they are made available for cross-examination, but the notes should not be admissible at the trial in the absence of the police officer who prepared them. Officers should be available for cross-examination upon their contents and should be required to testify under oath as to the events in question. The provision for admission of statements made against penal interest in Uniform Evidence Act Section 58(2) is a matter of concern for two reasons: It makes admissible hearsay statements against penal interest which inculpate an accused person, contrary to the decision of the Supreme Court of Canada in Lucier v. The Queen [1982] 2 W.W.R. 289. (In the Lucier case the COurt said that such statements could be admitted only if they were exculpatory.) It restricts the admissibility of statements against penal interest to situations where there is other evidence implicating the person who made the statement. This again narrows the scope of the exception which the Courts have recognized at common law and unfairly operates against accused persons who may not have the resources to find confirmatory evidence. With respect to spontaneous statements of persons describing or explaining observed events, it does not seem justifiable to discriminate against the accused as does section 65 of the Uniform Evidence Act. Why should statements by the accused be excluded if they are helpful, when this is not the case with anyone else? Confessions obtained by trickery should not be admissible as in Uniform Evidence Act section 73, even though this reflects the present law. Some limits should be set on the means by which suspects can be manipulated. Alibi evidence is made inadmissible under Uniform Evidence Act section 88 unless proper notice is given or cause for failure to give notice is provided. This would operate unfairly against accused persons without counsel or in other circumstances where the evidence could be admitted subject to comment, in the manner presently in effect. The Uniform Evidence Act is very broad in scope, and includes not only criminal but civil evidentiary rules. We are refraining from commenting on any but those provisions which we consider seriously to affect the right to a fair trial in the criminal justice system. We urge you to reconsider the Uniform Evidence Act and if reform of the rules of evidence is considered necessary, to consult with a wide range of persons who are likely to be affected (persons affected as suspects of crime, of course, can include any members of society).