The B.C. Civil Liberties Association gives tentative approval to the majority of recommendations contained in the first four study papers on the Law of Evidence recently issued by the Federal Law Reform Commission. Our final evaluation awaits the release of the remaining study papers. Our specific recommendations are as follows:

1. We agree with the proposal that the oath be abolished.
2. We agree with the limitations placed upon the admissibility of evidence of prior misconduct of the accused and other witnesses.
3. We agree with the protection given to victims of sexual offences.
4. We disagree with the proposal to eliminate the present protections concerning the testimony of spouses, although we agree that the present law requires reform.
5. We disagree with the suggestion that the trial judge should be given discretion to allow an investigating officer to remain in the courtroom while other witnesses are testifying.

Evidence provisions of the Criminal Code

The first four study papers on the law of evidence generally reflect a welcome concern for the rights of an accused, parties to a civil suit or witnesses. The study papers eliminate several aspects of the existing law, which were either misguided from the outset or had long outlived their justification. Therefore, the B.C. Civil Liberties Association gives tentative support to the majority of the proposals. We recognize that it is often necessary to balance the competing rights of the various participants in a trial and believe that in most instances the proposals demonstrate the sound judgment of the members of the project. We do, however disapprove of two of the proposals.

Our general support of the study papers must remain tentative until the remaining studies are issued. Several of the proposals are closely interrelated with subjects that have not yet been covered, and we have found it impossible to fully evaluate them in isolation. For example, the merit of the proposals concerning the competence of children and persons of defective mental capacity is dependent upon the rules concerning corroboration that have not yet been issued. We understand the impossibility of drafting a comprehensive code immediately and appreciate the opportunity to comment upon the completed study papers at this time. However, we strongly urge that the Project provide further opportunity for comment when all the study papers have been issued. Our specific comments are as follows:

Competence and compellability

We approve of the elimination of the oath. An oath forces a witness to state his or her religious convictions publicly and invites discrimination on religious grounds. We also do not object in principle to the rule making children and persons of defective mental capacity competent witnesses, although we believe that fairness to an accused requires that such testimony be corroborated.

We object, however, to the proposal that spouses be competent and compellable in all circumstances. The present rules on this subject often do not fulfil their purpose and sometimes do not make any sense at all. Clearly, reform is needed. However, we believe that the right of privacy requires that some protection be given to married persons. We find it repugnant that a spouse would be required to make confidential matters public. Recent divorce legislation does not constitute a rejection of the principle that marriage is a special and private relationship. Therefore, we suggest that the protection given to spouses be modified rather than abandoned. We also suggest that the protection be extended to common law relationships. Such an extension would avoid de facto discrimination against groups in which such relationships are the norm.

Manner of questioning witnesses

Generally, the proposals in this section are sensible and do infringe upon the civil liberties of any of the participants at a trial. We object strongly, however to the suggestion that the discretion given to the trial judge in section 5(3) to permit witnesses to remain in the courtroom would often be used to permit an investigating officer to remain. In almost all criminal cases involving more than one prosecution witness, the prosecution could allege that the presence of the officer was required, and there is great danger that the discretion would, in practice, become a rule that the investigator will nut be excluded. If the discretion in section 5(3) would often be used in this manner, as suggested in the comment to the section, we urge that the section be modified. The exclusion of the investigating officer will seldom be unfair to the prosecution, for his or her presence can be secured by railing him or her as the first witness.

Credibility

The reforms proposed in this paper eliminate several anomalies in the present law. We especially approve of the proposals in section 4, which are long overdue.

Character

We are concerned primarily with the proposal in section 3(l)(b) that an accused be prohibited from introducing evidence concerning the disposition of the victim of a sexual offence. An accused should be given wide powers to defend him or herself, and a fair hearing requires that he or she be prohibited from presenting relevant evidence only in exceptional circumstances. On the other hand, the present rules have the effect of discriminating against women by discouraging them from testifying about sexual offences. Thus, civil liberties arguments can be made both for and against the proposal. We believe that the interests of women outweigh those the accused in these circumstances and approve of the proposal.