Evidence Law

R v Pan and the Price of Fairness: An “Air of Reality” in A Complex Jury Trial

In R v Pan, the Supreme Court of Canada has addressed the scope of the “air of reality” test as it applies to included offences in jury trials. The majority has upheld the Ontario Court of Appeal’s verdict that Jennifer Pan should undergo a new trial regarding her initial first-degree murder charge, but maintained her conviction related to the attempted murder charge. Furthermore, the Court determined that the trial judge erred by failing to leave lesser included offences, such as second-degree murder or manslaughter, to the jury where there was a realistic possibility of conviction on those offences.

Who Decides What the Jury Decides? R v BF and the Air-of-Reality Threshold

On December 5, 2025, the Supreme Court of Canada released its decision in R v BF, restoring a conviction for attempted murder and rejecting the Court of Appeal for Ontario’s holding that the trial judge failed to instruct the jury sufficiently on a potential defence. In doing so, the SCC engaged with a fundamental question arising in the case: whether there was any air of reality to the theory that, rather than attempted murder, the accused was aiding a suicide attempt.

R v Kinamore: The Problem with Perfect Symmetry in Sexual Assault Trials

The Supreme Court of Canada recently released its decision in R v Kinamore, clarifying that a complainant's sexual inactivity amounts to sexual history under s. 276 of the Criminal Code. Evidence of one’s sexual inactivity is therefore presumptively inadmissible unless first vetted through a voir dire, a pre-trial hearing to determine admissibility. The Court further clarified that this requirement applies regardless of which party introduces the evidence.

APPEAL WATCH: Revisiting the admissibility of similar fact evidence in R v Chizanga

The Supreme Court of Canada (“SCC”) will soon hear the appeal of R v Chizanga, 2024 ONCA 545 [Chizanga], in which it will opine on the principles of admitting evidence of prior discreditable conduct [41405].  Building upon the seminal case of R v Handy, 2002 SCC 56 [Handy] which set out the principles for the admissibility of such evidence, this appeal […]

Solicitor-Client Privilege Presumption Upended In Sakab Saudi

Solicitor-client privilege remains a fundamental right which is only displaced where absolutely necessary. The court in Sakab Saudi Holding Company v Al Jabri, 2025 ONSC 35 [Sakab Saudi] upheld the presumption of solicitor-client privilege protection to a law firm’s trust ledger but found that the motion judge erred in extending that same presumption to the […]

R v Stevenson: SCC upholds conviction on Vetrovec testimony

The Supreme Court of Canada (“SCC”) has dismissed the appeal in R v Stevenson, 2024 SCC 41 [Stevenson], upholding a trial judge’s decision to convict based on the evidence of an unsavoury or Vetrovec witness. This case was heard by the SCC as of right from the Saskatchewan Court of Appeal (“SKCA”) 2024 SKCA 40 […]

Clarifying Corroborative Evidence and Hearsay: R v Charles

The Supreme Court of Canada (“SCC”) in R v Charles, 2024 SCC 29 [Charles] has clarified the approach to using corroborative evidence to establish the reliability of hearsay evidence. Moreau J, writing for the majority, allowed the appeal and ordered a new trial on the basis that an out-of-court statement by a witness at trial […]

R v Kruk: Bringing Sense Back to Common-Sense Assumptions

In R v Kruk, 2024 SCC 7 [Kruk], the Supreme Court of Canada (“SCC”) rejected the “rule against common-sense assumptions,” affirming the importance and necessity of trial judges’ common-sense reasoning to their credibility assessments. This decision is significant for two reasons: (1) it sets out the narrow role that myths and stereotypes as legal errors […]

APPEAL WATCH: Uneven Scrutiny and Twin Myth Safeguards – A Cry for Clarity 

Earlier in February of 2024, the Supreme Court of Canada (“SCC”) granted leave to hear the appeal of British Columbia Court of Appeal (“BCCA”) case R v Kinamore, 2023 BCCA 337 [Kinamore]. The appeal concerns the uneven scrutiny of competing evidence and the application of the s. 276 of Criminal Code, RSC 1985, c C-46 […]

APPEAL WATCH: SCC to Rule on Admissibility of Accuseds’ Criminal Records

The Supreme Court of Canada (“SCC”) will soon give direction to lower courts on how to assess the prejudicial and probative value of permitting an accused’s criminal record to be admitted as evidence. In R v Hussein, 2023 ONCA 253 [Hussein], the Court of Appeal for Ontario (“ONCA”) upheld the trial judge’s dismissal of the […]