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Evidence - Admissibility. McCormack v. Evans [exclusions contrasted in criminal/admin/civil/charter contexts]
In McCormack v. Evans (Ont CA, 2025) the Ontario Court of Appeal dismissed a plaintiff's appeal, here brought against the dismissal of "a civil action against the respondents alleging malicious prosecution, negligent investigation and other civil wrongs".
Here the court considers exclusion of the same evidence in contrasting criminal, charter, civil and administrative contexts:iii. The Rules of Admissibility at Civil Trials are Different
[75] The same subject matter can give rise to criminal, civil and administrative proceedings. These juridical contexts have elements in common but are also fundamentally distinct. Because they involve different legal, policy and public interest considerations, exclusion of evidence in one context does not imply exclusion in another. This is particularly so where the Charter is concerned. As Rosenberg J.A. observed in P. (D.) v. Wagg, 2004 CanLII 39048 (ON CA), 71 O.R. (3d) 229 (C.A.), at para. 77: “the analysis of whether or not to exclude evidence for a Charter breach is entirely different in the civil context than in the criminal context.”
[76] The coercive power of the state is most prominently on display in criminal proceedings. A person charged with a criminal offence faces jeopardy, stigma and a potential loss of liberty. It is here that the state stands as the singular antagonist of the individual and it is here that constitutional principles are most directly and forcefully engaged. The pursuit of truth is an objective of all judicial proceedings, but it is not absolute. In the criminal context, it may yield to other objectives, such as the recognition and enforcement of constitutional rights and freedoms. This is the compromise dictated by the edicts of a free and democratic society.
[77] Civil trials are different. An individual who sues police for malicious prosecution or negligent investigation does not face a risk of jeopardy or a potential loss of liberty. Within this context, the state does not wield coercive authority. Rather, the individual is the protagonist of the piece, having commenced an action for monetary compensation for alleged wrongdoing.
[78] That is the case here. It was the appellant who initiated the civil action, and it was the appellant who bore the persuasive onus of proof. The intercepted communications were introduced, not for the purpose of attaching criminal liability to the appellant, but to prevent erroneous findings of civil liability from attaching to the respondents.
[79] In this context, the Charter did not determine admissibility. Admissibility was governed by the rules of evidence, as defined by statute and common law, and as informed by Charter values: RWDSU v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 S.C.R. 573, at p. 603; Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, at paras. 91-97. The overarching calculus was one that balanced probative value against prejudicial effect. This equation facilitates the pursuit of truth, while allowing for exclusion of evidence that would undermine the integrity of the fact-finding process.
[80] The pursuit of truth is the cardinal principle in civil proceedings. As it was put in Imperial Oil v. Jacques, 2014 SCC 66, [2014] 3 S.C.R. 287, at para. 24:Nearly 20 years ago, Cory J. observed that “[t]he ultimate aim of any trial, criminal or civil, must be to seek and to ascertain the truth”. Although the parallel objectives of proportionality and efficiency have become increasingly important in the civil procedure context, seeking the truth remains the cardinal principle in civil proceedings. Informed by this objective, the rules of the law of evidence in civil matters allow judges “to find out the truth, and to do justice according to law”. [Citations omitted.] [81] In this case, the intercepted communications were critical indicia of truth, necessary to allow the trial judge to “find out the truth and do justice according to law”. Where, as here, the plaintiff alleges malicious prosecution and negligent investigation, evidence of factual guilt or innocence is directly relevant to the inquiry. As explained in Hill (2007), at para. 64:Any suspect suing the police bears the burden of showing that police negligence in the course of an investigation caused harm compensable at law. This means that the suspect must establish through evidence that the damage incurred, be it a conviction, imprisonment, prosecution or other compensable harm, would not have been suffered but for the police’s negligent investigation. Evidence going to the factual guilt or innocence of the suspect, including the results of any criminal proceedings that may have occurred, may be relevant to this causation inquiry. [Emphasis added.] [82] In his statement of claim, the appellant expressly pleaded that he was factually innocent and that police acted without reasonable and probable grounds when they charged him with the offences. The intercepted communications stood as a powerful rebuttal of both assertions. They belied the notion of factual innocence and readily established the existence of reasonable and probable grounds. This evidence was critical to an understanding of how and why the criminal charges came to be. The intercepted communications informed the respondents’ subjective grounds to believe that the appellant had committed the offences. Those same communications established that the respondents’ beliefs were objectively reasonable.
[83] The probative value of this evidence fell at the high end of the range. Conversely, little, if any, prejudice flowed from its admission. This evidence was reliable. It captured precisely what it purported to capture: the appellant’s direct involvement in corrupt activities. Evans’ deception did not cause the appellant to say what he said. He incriminated himself through his own words and actions. Nor is there any evidence to suggest that Peluso, or Evans’ wish to “heat up the wires”, influenced the appellant’s words. The appellant’s incriminating conversations took place with persons other than Peluso. While Croll J. found that Peluso had a personal animus against the appellant, there is no indication that Peluso’s views had any material impact on the investigation.
[84] Against this backdrop, it is difficult to imagine a proper basis for excluding the intercepted communications from the appellant’s civil trial. Such exclusion would have marked a departure from factual reality, common sense, and the pursuit of justice. It would have generated a record that was intolerably distorted. It would have potentially permitted recovery of damages in the absence of civil wrongdoing. It would have been to overshoot the purpose of the Charter by permitting its use as a sword, rather than a shield. . R. v. Schneider
In R. v. Schneider (SCC, 2022) the Supreme Court of Canada summarized the basics of admissibility of evidence in a criminal trial:(1) Legal Framework for Admissibility of Evidence at a Criminal Trial
[36] Evidence that is relevant to an issue at trial is admissible, as long as it is not subject to an exclusionary rule and the trial judge does not exercise their discretion to exclude it (R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 2; D. M. Paciocco, P. Paciocco and L. Stuesser, The Law of Evidence (8th ed. 2020), at p. 32; S. N. Lederman, M. K. Fuerst and H. C. Stewart, Sopinka, Lederman & Bryant: The Law of Evidence in Canada (6th ed. 2022), at ¶2.48; M. Vauclair and T. Desjardins, in collaboration with P. Lachance, Traité général de preuve et de procédure pénales 2022 (29th ed. 2022), at pp. 905-6). This is the three-part test for admission of all evidence. Judges must consider: (a) whether the evidence is relevant; (b) whether it is subject to an exclusionary rule; and (c) whether to exercise their discretion to exclude the evidence.]
[37] When questions arise as to the admissibility of evidence, a voir dire is often needed. That said, this Court has noted in obiter that a voir dire may not be necessary for party admission evidence (R. v. S.G.T., 2010 SCC 20, [2010] 1 S.C.R. 688, at para. 20). Whether a voir dire is needed for such evidence is to be determined in the circumstances of each case.
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