A Canada Evidence Code Should Replace the Canada Evidence Act
16 Pages Posted: 31 May 2014
Date Written: January 16, 2014
An Evidence Code, that was very similar to the provisions of the U.S. Federal Rules of Evidence (the FRE, operative from July 1, 1975) was recommended by the Law Reform Commission of Canada in December 1975. It failed to be enacted because of the "mixed results" obtained from the consultation process conducted by the author throughout Canada in 1976-77. That in turn was largely because Canadian law school courses on the law of evidence had not been based upon model codes of evidence as in American law schools. As a result, Canadian lawyers remained closely attached to the common law rules of evidence. Also, the Law Reform Commission of Ontario published its anti-codification views in June 1976.
Among the important advantages for the Canadian law of evidence lost, was the use of the case law and other analytical literature generated by the FRE. In the author's view, it would have been "a wealth of free legal technology" flowing across the border, for us to pick and choose from, without being bound to apply any of it.
Today, statutes such as the Canada Evidence Act (for federal proceedings), and the provincial Evidence Acts, still contain only a very few of the rules of evidence. The only significant statutory amendments since the failure of the Evidence Code, added the electronic records provisions, which are in 11 of the 14 Evidence Acts in Canada (ss. 31.1-31.8 of the Canada Evidence Act).
This article relates in detail the results of the extensive national consultation process that the author conducted for the federal Department of Justice.
For additional information, see author's paper entitled "Electronic Records as Evidence," available at: http://ssrn.com/abstract= 2438350.
Keywords: evidence code, codification, Canada Evidence Act, electronic records as evidence, consultation processes
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