Making Use of a Diary or Journal at Trial

Cory Wilson is a criminal defence lawyer with significant trial experience. If you have been charged with a criminal offence, call today to schedule a free, no-obligation consultation. 

In rare circumstances, an application may be made by defence or the Crown to make use of a diary written by the accused, complainant or other witness. It isn’t a common occurrence, but in certain circumstances, may bear fruit.  

Diaries or journals kept by a person are often subject to the statutory provisions contained in the third-party records section of the Criminal Code at s. 278.1. The definition of what is a third-party record should be held in circumstances in which the diary or journal has possible relevance to one of the proceedings set out in s. 278.2 of the Criminal Code. 

See: R. v. Shearing [2002] S.C.J. No. 59 (SCC) 

In the case of diaries of a deceased person, the trier of fact must bear in mind that while the entries may cast light on the state of mind and attitude of the victim towards, in this case, her boyfriend and to the issue of motive, they are not admissible for the truth of their contents. 

See: R. v. Baltovitch 2004/Dec. 2 (O.C.A.) 

It is improper for a trial judge to say that the diary of the complainant provides minor corroboration of her testimony. 

See: R. v. C. (S.R.) (2004), 188 C.C.C. (3d) 239 at paras. 38-41 (PEISCAD) 

Where the accused has possession of portions of the diary of the complainant and wishes to cross-examine on entries that depict the accused in favorable terms contrary to her testimony that she hated him, such use is to be allowed. This is so even though the complainant says that these entries were falsely favorable because she knew he would read them. The privacy interest is significantly diminished because she knew he read them. R. v. R.S.B. [2005] O.J. No. 2845 (OCA). Though this case flies in the face of Binnie J.’s comments in Tessling that personal privacy can exist in circumstances where the privacy interest is not subjectively so seen by the person whose privacy right is being considered. This might be referred to as the “slippery slope” of losing privacy in this age.) 

See, also, R. v. D. (B.) 2016 ONCA 673 (O.C.A.) where on a charge of sex assault on his wife, his wife’s diary was introduced without edit by defence as a tactic. On appeal, the Court held that entries recording alleged abuse of the children ought to have been edited out. Moreover, there was no limiting instruction on the use that could be put to the narrative of the child abuse. While evidence of extrinsic misconduct may be admitted as part of the narrative for the events at issue or to establish motive or animus, in this case irrelevant evidence of extrinsic misconduct was admitted. This included the evidence of the accused’s alleged abusive conduct toward his young children. The inference arising from this evidence was that the accused was the type of person who acted inappropriately in a sexualized and aggressive manner toward his children, making it more likely that he would act improperly toward his wife, as she alleged. The evidence was irrelevant and its prejudicial effect was overriding. While the complainant’s diary was adduced at trial by the defence as a tactical decision, it was nonetheless incumbent on the trial judge to ensure that only relevant and material evidence was put before the jury, and that its probative value outweighed its prejudicial effect. The trial judge failed to undertake this inquiry. The trial judge failed to curb the prejudice to the accused arising from the evidence through a limiting instruction clearly cautioning the jury that the inadmissible evidence could not be used by it in its deliberations for any purpose. The jury was improperly left with the impression from the trial judge’s charge that all the evidence it heard was relevant and admissible.

Cory Wilson is a criminal defence lawyer based in Calgary. If you have been charged with a criminal offence or are a suspect in a criminal investigation, call today for a free, no obligation consultation.