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Evidence in Personal Injury Cases (Ontario)

Last week, the Supreme Court of Canada released a decision which upheld key protections for sexual assault victims. The decision is R. v. J. J.

In the wake of the Me Too Revolution, Canadian parliament changed the Criminal Code to establish more protections for sexual assault victims.

Let’s say an accused has text messages, or emails, or some other form of communication directly from the complainant. Those messages may impact the dignity of the complainant. Instead of simply being used at trial in their defence, an accused must disclose these records and a pretrial must be held in order to determine what records, can, or cannot be used at trial. It’s entirely in the Judge’s hands. If the Judge determines that the records are not relevant and will hurt the complainant’s dignity, they cannot be used.

The second major change was to give the complainants the right to argue at a hearing (outside of the course of the trial) that their privacy outweighs the importance of the records. Again, it’s up to a Judge to make the final determination of the privacy rights of the complainant outweigh the rights to a defendant using all evidence at his/her disposal in order to defend the charges.

This is a very difficult balancing act. The rights, dignity and privacy of the complainant are important. A complainant should not be humiliated on the stand or hurt twice as a result of stepping forward and testifying at trial. Complainants should not be intimidated to step forward and have their voices heard. I think we can all agree with that.

At the same time, a Defendant has the right to a fair defence. If an accused cannot use all of the evidentiary tools at his/her disposal in order to combat the charges, then are we giving that Defendant a fair and meaningful opportunity to a defense a trial. Or are we just giving them a perceived fair shake while limiting the tools at their disposal?

Luckily for personal injury claimants, the evidentiary rules in personal injury cases are much different than the evidentiary rules in criminal matters. It’s a completely different rule book.

The question becomes what can be admitted at trial as evidence; and what cannot.

It generally boils down to this question:

Does the probative value of the evidence outweigh the prejudicial effect? Just like in criminal cases, it’s up to the Judge to decide what gets admitted, and what does not.

These questions aren’t so difficult when it comes to medical records, hospital records, police reports, employment files etc. Generally these records are admissible in the context of a personal injury case.

We see disagreements when it comes to out of Court hearsay statements. These are statements from third parties made outside of Court.

In R v Khelawon (2006) 2 S.C.R. 787, (SCC), an out of court statement is considered hearsay when 1) it is abducted to prove the truth of its content and 2) there is no opportunity for a contemporaneous cross examination of the declarant.

The out of court statement that is hearsay is presumptively inadmissible unless it falls within a recognized exception to the hearsay and is thus admissible or it can be admitted on a case-by-case basis applying a principled approach if the criterion of reliability and necessity are otherwise met.

Under the principled approach of hearsay admissibility, an out of court hearsay statement can be admitted if it is proven to be reliable and necessary.

1) Necessity: When examining necessity, it needs to be asked whether or not one of the parties is deceased or is unable to testify on their own. If a party is deceased deceased, it is necessary to receive hearsay evidence because equivalent evidence is not available. The failure to introduce this statement would mean the total loss of  evidence for the Judge or Jury. There is no other way of acquiring this evidence from other sources

2) Reliability can be established by showing :

  1. a) Is there a real concern about whether the hearsay statement is true or not because of the circumstances in which it came about
  2. b) If there is no real concern from the fact that the statement is presented in hearsay form because in the circumstances, its truth and accuracy can nonetheless be sufficiently tested by means other than cross-examination.-

Hearsay evidence that does not fall under these traditional exceptions may still be admitted under the so-called principled approach if indicia of reliability and necessity are established on a voir dire at trial. Death will usually meet the necessity requirement. The liability requirement will generally be met by showing that: there is no real concern about whether the statement is true or not because of the circumstances in which it came about; or, that no real concern arises from the fact that the statement is presented in hearsay form because, in the circumstances, its truth and accuracy can nonetheless be sufficiently tested by means other than contemporaneous cross-examination. linkedin-2-300x300

What you need to know is that the rules for evidence in criminal cases, in particular for sexual assault cases are much more rigid compared to the evidentiary rules for personal injury cases. For personal injury cases, there is much less concern for the dignity and privacy rights of the parties involved; particularly the complainant. The major similarity between the two is that at the end of the day, it will come down to the discretion of the trial judge in terms of whether or not a piece of evidence is admissible or not.

The protections provided to a complainant are not afforded to a Plaintiff in a personal injury case. We often see their dignity and privacy rights invaded by insurers and their lawyers. This is not limited to invasive surveillance. Judges have ordered that private messages, text messages and emails be produced in the context of a personal injury case. The same applies for a Plaintiff’s Facebook Page, Instagram, Twitter and other social media accounts. The cold hard reality is that once a Plaintiff makes a personal injury claim; his/her privacy rights are severely diminished and compromised.

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