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When can a trier of fact take into account the absence of a complainant's motive to lie in assessing credibility in sexual assault cases. How much weight can be attributed to that absence? Resolution of these questions has led to a surprisingly sizable number of appellate cases. R v Gerrard 2022 SCC 13 is now the leading case on the issue. It confirms somewhat cryptically that the absence of evidence of a motive to fabricate can be considered in assessing credibility. Clarity on the issue is still needed. In particular, what consitutes "proved absence" and/or evidence of an absence of motive. This piece argues that courts need to start afresh. If we better understand what courts are trying to get at by referencing the issue of motive as being "proved"and, we apply the everyday rules of evidence, we can escape from this confusing trap of trying to fit the issue into a particular box. When the cases talk about proved absence (or presence) of motive, the phrase should be interpreted to mean that there is a sufficient and compelling evidentiary basis or foundation to allow for the conclusion or inference to be drawn. After setting out how the ordinary rules of evidence and policy support this principled approach to the issue, the article offers some model instructions on the issue.

"Evidence: Principles and Problems, now in its thirteenth edition, is a leading casebook on Canadian evidence law. This text is renowned for its clear, critical analysis of fundamental concepts and principles, insightful commentary, and thought-provoking problem scenarios. It also includes texts and excerpts from leading cases, making it a comprehensive resource for both law students and practitioners."--store.thomsonreuters.ca

Beverley McLachlin is the architect of a flexible, socially conscious and principled approach to evidence admissibility in Canada. Her jurisprudence has infused the law of evidence with tools that enable it to adapt to new situations, to be aware of and reflect concerns for systemic issues all with an eye to ensuring it can fulfill its regulatory purpose of facilitating justice. I call this the McLachlin principle. This chapter explores the foundations of that approach in two early McLachlin decisions: R v Khan; R v Seaboyer; and then, as Chief Justice, in Mitchell v MNR where she set out, for the first time in a Supreme Court decision, a theory of evidence admissibility. After examining this evidence trilogy, the chapter will consider the application of the McLachlin principle in the context of defence applications to limit cross-examination of an accused on their prior criminal record under R v Corbett. Section 12(1) of the Canada Evidence Act permits all witnesses, including an accused, to be cross-examined on their criminal record and our common law has, for the most part uncritically, accepted that a criminal record is relevant to a witness’s credibility and whether they are prepared to abide by their oath or affirmation. In Corbett, the Supreme Court of Canada upheld the constitutionality of section 12(1) by reading into the provision a judicial discretion to prohibit or limit cross-examination on a prior record. Corbett was decided in 1988 and since then we have become more aware of the existence and manifestations of systemic racism, particularly as it relates to Indigenous and Black communities and the criminal justice system. Chief Justice McLachlin recognized this social reality in both Sauvé v Canada (Chief Electoral Officer) and R v Williams. Despite this consciousness, little, if any, attention has been given in our trial and appellate courts to how social conditions and bias are relevant in thinking about admissibility under Corbett. Enter the McLachlin principle.The chapter examines how it can be used to impact Corbett applications and stimulate future consideration of how evidence law can adapt to better facilitate justice in cases involving Indigenous and racialized participants.

The Stanley trial highlights our failure to ensure that the rules of evidence protect against racial bias, although we have recognized other biases.

There is much to learn from the trial of Saskatchewan farmer Gerald Stanley on the dangers of not directly confronting the potential impact of racial bias on the trial process. Stanley was acquitted in February 2018 by an all-White jury in the shooting death of 22-year-old Cree man Colten Boushie. The law gives us tools to safeguard trials from racial bias that we shouldn’t ignore. One of these tools is the law of evidence.The law of evidence is a set of rules aimed at regulating the admissibility and use of evidence, in order to fairly promote the search for truth. It recognizes that judges and jurors bring to court every day assumptions about human experience and behaviour that are grounded in unreliable, stereotypical or discriminatory assumptions. That is precisely why it gives judges a discretion to exclude evidence where its prejudicial effect outweighs its relevance or probative value. And why we have rules, for example, that make prior sexual history evidence in sexual assault cases or evidence that paints an accused in a negative light (bad character evidence) presumptively inadmissible.Unfortunately, despite the fact that Indigenous, Black and Brown lived experiences are disproportionately before courts consisting of largely White jurors or judges, we have failed to ensure that our rules of evidence protect against racial bias in the same way that they do against other types of unreliable and discriminatory generalizations. The Stanley trial is a stark reminder of this reality.This short piece examines the Stanley trial and how the law of evidence can incorporate systemic racism as a lens to address issues of admissibility.

Racial bias likely played a role in the Gerald Stanley case. This article explains how racial dynamics and process failures enabled systemic racism to play a part in Stanley’s acquittal.

This chapter explores the more general and arguably distinct ethical obligations of those who practice criminal law either as defence lawyers or prosecutors. As you read this chapter, you should ask yourself whether you are satisfied with the justifications offered for the ethical rules that we have carved out for defence lawyers and prosecutors in this context and whether you think we have achieved the right balance. To assist you in thinking about the modern-day ethical roles of criminal lawyers, we begin with two historical cases, one from England and the other from Quebec, which frame the obligations in arguably extreme terms – defence lawyers justified in unbridled zealousness within the bounds of the law on the one hand, and the prosecutor as a “minister of justice” on the other. In reading the descriptions of the cases consider whether you think the duties of defence lawyers and prosecutors should be so different. What would justify that sort of difference? What common framing for the duties of defence lawyers and prosecutors might be available?

Justice Marc Rosenberg will be remembered as one of Canada’s greatest criminal law jurists by those fortunate enough to have worked with him, to have appeared before him, and now, by those who study and rely on his jurisprudence. He was a jurist who cared deeply about the fairness of the criminal justice system and he strived in every decision to arrive at a just result on the law and the facts. Many of Justice Rosenberg’s judgments reflect a concern for the constant struggle of triers of fact to accurately and fairly assess the credibility and reliability of evidence in determining historical events whether it be the testimony of the accused or central Crown witness. This piece explores three decisions from Justice Rosenberg which highlight the different ways in which stereotyping can distort the assessment of credibility and reliability in sexual assault cases: R v. Levert, R v. Rand and, R v. Stark.An important aspect of ensuring accuracy and fairness for Justice Rosenberg was the need to carefully regulate inductive reasoning: the engine that drives judicial reasoning and, ultimately, fact finding. The tools used for inductive reasoning include the decision maker’s or the law’s application of what it sees as common sense, logic and human experience. As an endeavour that explicitly relies on so-called common sense and generalizations about human experience, which shift with time, inductive reasoning can be highly subjective and can easily become a breeding ground for implicit bias, discriminatory stereotyping and unreliable decision-making.

In the landmark Canadian racial profiling case of R v Brown, an unanimous Ontario Court of Appeal firmly recognized that racial profiling is a reality that is “supported by significant social science research.”

"This volume brings together leading scholars, practitioners, and jurists who have written chapters in tribute to the Honourable Marc Rosenberg's legal and ethical contributions to the administration of justice. Inspired by his work as a teacher, a lawyer, and a judge, the contributors reflect on key trends and contemporary issues in jurisprudence, legal education, the administration of justice, and legal ethics. The contributors examine topics including wrongful convictions, social justice and the criminal law, the role of the judge and lawyer, challenges facing the law of evidence, the past and future of Charter justice, and the function of legal education in contributing to the administration of justice in Canada and abroad. The book is, thus, both a tribute to the life, work, and contributions of Marc Rosenberg, and an indispensable resource for all those concerned with the ways in which we seek justice in and through the law."

David M Tanovich, 2016 CanLIIDocs 4601

In the US, rap is frequently on trial, even in death penalty cases. It also appears to be a growing trend in England. And so, I began to study the issue in Canada. I was able to document thirty-six cases of attempts by the Canadian criminal justice system to put rap on trial in a recently published article “R v. Campbell: Rethinking the Admissibility of Rap Lyrics in Criminal Cases” (available on SSRN at http://ssrn.com/abstract=2730123). This Walrus piece provides a summary of some of the Canadian cases and explores how our criminal justice system should respond.

Racial profiling remains a serious and systemic problem in Canada. In 2004, I wrote this article addressing the naysayers - those who denied the systemic existence of the problem - as well as to identify a number of policy and law reform recommendations for addressing the problem. Even though the article is well over a decade old, the recommendations remain relevant today. They include mandatory data collection and anti-racial profiling legislation. I also set out a number of law reform recommendations including:

In R v Borde (2003), 8 Criminal Reports (6th) 203 (Ont CA), the Ontario Court of Appeal recognized that anti-Black racism could be taken into account in sentencing in applying section 718.2(e) of the Criminal Code, otherwise known as the Gladue provision for sentencing Aboriginal offenders.In R v Hamilton (2004) 22 Criminal Reports (6th) 1 (Ont CA), the same court restricted Borde to cases where there is evidence of a casual link between racism and the commission of the offence.This comment is critical of the decision and its failure to recognize the relevance of anti-Black racism in the "war on drugs" and the relevance of race and general deterrence in thinking about sentencing. These are arguments that are relevant today and could be used to distinguish Hamilton if an appropriate case ever got to the Supreme Court of Canada. In this case, the trial judge raised the issue of gender and racial bias and gave the parties an opportunity to address their relevance to the sentencing of the two Black female accused. The Court of Appeal was critical of the trial judge's intervention. This too was unfortunate given the general reluctance of lawyers to raise these issues.