Objections to Evidence

This document provides an overview of some of the more common forms of objections that can be used in court proceedings. It will help you to prepare for making and responding to objections during a civil trial. Note: if you are a victim of technology-facilitated gender-based violence (TFGBV), you will not have the right to make objections in criminal cases, as you are not considered a party to the proceeding. For more information on the differences between criminal and civil trial processes in the context of technology-facilitated gender-based violence, see Legal Protections for TFGBV: What Laws Apply to You?

This document is not meant to be a comprehensive guide to all of the legal rules regarding objections. You may need to consult with a lawyer or read additional legal materials about the laws of evidence to see what rules apply. For a list of legal resources available in your area, see Legal and Victim Service Supports and Resources. You can also consult the Canadian Judicial Council’s Civil Law Handbook for self-represented litigants.

An objection is when a party to litigation thinks that the other party is not following the rules of evidence or the rules of the court. In this situation, the first party can formally raise the issue with the judge who is hearing the matter and ask the judge for the appropriate remedy (for example, excluding inadmissible evidence). In some cases, the other party will have a lawyer. In others, the other party may not have a lawyer and they will be self-represented. If they do not have a lawyer, they will be the one introducing evidence to the court and asking the witnesses questions. You would make objections in the same way and on the same basis as you would if the other party had a lawyer. For simplicity, we describe either the lawyer for the other side or the person on the other side who is self-represented, as “the other party” in this document.

Objections can be made at court when witnesses are being questioned, or when a lawyer seeks to introduce evidence to the court at trial or other court hearings, such as an interim application hearing.

A lawyer or a self-represented litigant (i.e. someone who is representing themselves in court without a lawyer) can make an objection to the judge if they think that a rule of evidence or a court process is not being followed. For example, when someone asks a question that is not allowed to be asked, if the witness is saying something that is not allowed to be said, or if the evidence has not been properly entered into court. The objection can be about evidence that a party or a witness gives (either verbally or in an affidavit), about a question that a party or a lawyer asks a witness, or about documents entered as evidence. You can also object when the court process is not being followed. For example, if someone is trying to rely on an affidavit that was served outside of the timelines in the court rules, you could object.

In a courtroom, if you believe you have a good reason to make an objection, you should stand up in court to get the judge’s attention by properly addressing the judge (“Your Honour,” “My Lord,” or “My Lady,” depending on the court) followed by “I have an objection to this evidence because…” (see a list of common objections below) and explain what your objection is to the court.

If you are objecting to a question the other party asked a witness, make sure you make your objection before the witness answers the question.

If you receive a document before the hearing and you intend to object to it, you should inform the other side in advance that you will object to the document being admitted into evidence and explain the reasons for the objection (see, Objecting to Documents below).

Once you have made your objection, you can sit back down. The judge may ask the other party to respond to your objection and may ask you to respond to what the other party said.

If you are representing yourself, you may also be a witness at your own trial. In these circumstances, the other party may ask you objectionable questions at trial when you are being a witness, and you will need to object to them yourself and ask the judge for a ruling on the objection before you answer them.

Anytime you make an objection, it is important that the ruling on the objection be reflected in the record of the court proceedings. If the judge did not make a clear ruling on the objection, ask for clarification on what they ruled before moving on. Again, this will be helpful for you to have an accurate official court record if you have to appeal your case. The record of the court proceedings is the official accounting of the legal matter that is reviewed on appeal.

Once an objection is made, whoever made the objection is essentially asking the judge to decide whether the rules of the court are being followed.

If the judge agrees that the rules are not being followed, the question or evidence will not be allowed, and the judge will say the objection has been “sustained.” The document will not be admitted as evidence, the witness will not be allowed to answer the question, or the other party will be told by the judge to ask a different question or rephrase the question.

If the judge disagrees and thinks the rules have been followed, the question or evidence will be allowed, and the judge will say the objection has been “overruled.”.The document will be admitted as evidence, the witness will be allowed to answer the question, and/or the other party will be allowed to continue with their questioning

Both parties are allowed to make objections. You can make them yourself or the other party may make an objection to the questions you ask of witnesses or the evidence you try to introduce.

If you do not have a lawyer, it is important that you familiarize yourself with the grounds for objections, so that you know how to make an objection to the other side’s evidence. It is also important to know these rules to ensure that your evidence is admissible and to know how to respond if the other side objects to your evidence.

If the other party objects to something you are doing, you will need to explain to the judge why you think your evidence, or question to the witness, should be allowed.

Remember that even if the evidence is admitted, it does not mean that the judge or jury will believe it or think that it is important. If the evidence is admitted, the judge or jury will later decide how important or believable the evidence is. The courts refer to this as the evidence’s “weight.” If the evidence is given little or no weight, the judge will not rely on it much or at all when deciding the case. If evidence is given a lot of weight, then it will have more of an influence on the judge’s decision about the case.

One reason you would make an objection is if the other party is trying to introduce inadmissible evidence (i.e. evidence that is against the rules). The reason you would make this kind of objection is to have the judge decide if the document or witness’s answer should be admissible (i.e. counted as evidence in the case) or not.

A second reason to object is to stop the inappropriate questioning of a witness. You would make this type of objection when a witness is being asked a question that is against the rules, or if the witness is being treated in an abusive manner.

It is important to make objections to make sure that no evidence that is against the rules is admitted. It is also important to make objections because it may help you if you want to appeal your case if the judge does not reach the conclusion you want them to. If you did not object to improper evidence when you had a chance at trial, you may not be able to bring the issue up during an appeal.

You can make objections about questions asked to a witness, answers given by a witness, or documents or items being introduced as evidence to the court.

There must be a legal reason for your objection. You cannot object to anything you wish would not be admitted as evidence or anything you don’t like that is being asked or said. If you make an objection, you will have to explain why you are making it and there has to be a legally recognized reason to make it.

Below is a list of common, legally-recognized objections.

This section provides a list of some common objections. We have divided them into three sections: general objections (which apply to both documents and oral evidence), objections for questioning a witness, and objections to documents.

Objections: General

Character Evidence

If the other party tries to introduce evidence about someone’s character (i.e. whether they are a good person or not), you can object.

Character evidence is allowed if a person’s character is a specific issue at trial (for example, in a defamation case you have to provide evidence about a person’s reputation, so some character evidence might be relevant in that case) or if it is “similar fact evidence,” meaning evidence of a pattern of behaviour (for example, if the person has done nearly the exact same thing in the past in a similar factual situation). All character evidence, including similar fact evidence, must be relevant to a fact in issue in the case to be admissible.

Hearsay

If a witness makes a statement about what another person previously said, or if the other party tries to introduce a document that includes something another person previously said, you can object. This is called hearsay evidence.

The law regarding hearsay evidence is quite complicated. Whether or not something will be hearsay will depend on who said it and what purpose it is being used for. There are also several exceptions to the general rule that hearsay is inadmissible. For more information regarding hearsay, see: Submitting Evidence in Court.

Misstating Evidence or Misquoting Witnesses

If the other party misstates evidence or misquotes witnesses, you can object.

No Foundation

In some instances, the party will have to establish some facts about something (i.e. establish a foundation) before they can ask a witness a question about it or introduce evidence about it.

For example, if the other party wanted to ask a witness about an email that they think the witness sent, they might ask that witness, “Why did you write this email?” However, if there is no proof that the email address belongs to the witness or that the witness wrote the email, you could object because there is no foundation for that question. The other party would have to show evidence that the email address belonged to the witness and that they were the one to write the email before they could ask the witness why they sent the email.

Opinion

If a witness gives, or is asked to give, their opinion on something, you can object. Ordinary witnesses (i.e. witnesses that are not expert witnesses) should only testify about facts that they are personally aware of and not give opinions. For example, if the other side asks a witness how likely it is that the defendant would send harassing emails, you could object to this question on the basis that they are asking for the witness’s opinion.

There are some exceptions to this rule. In some cases, where the opinion is made by an ordinary person and the facts and opinion are intertwined, and the witness is the best person to make this opinion, it might be allowed. If an ordinary person is making a personal observation about something that is commonly known, that can also be acceptable (for example, how fast they think a car was going when they saw it go by).

Qualified experts with special knowledge of something are allowed to give opinions on things within their expertise. The courts have specific rules about expert evidence, which you will need to familiarize yourself with if you or the other side intends to rely on expert evidence.

Self-Serving Evidence

Self-serving evidence is not generally admissible. An example of this is a witness repeating her previous statements about an issue at the hearing to confirm her current testimony at trial. However, in some cases, if the evidence is reliable and necessary, it can be allowed. If a witness’s credibility has been made an issue (for example, if they are accused of lying about something), a previous statement can be allowed to show consistency, but not to show what was said was true. This applies to prior consistent statements and other out-of-court evidence that is fully self-serving.

Prejudicial

If evidence is prejudicial (e.g. it is misleading, confusing, unnecessarily time-consuming, or unfairly surprising), you can object. The court will balance the prejudicial effect of the evidence (i.e. something that could be improperly harmful to someone or something and creates bias, partiality, or pre-judges an issue or the case) against the probative value of the evidence (i.e. something that is relevant and would legitimately help the court understand an issue or the case).

Notice and Disclosure

It is important for both parties to be fair to each other. Some court rules require each party to disclose to the other party a list of witnesses they plan on questioning and the documents they plan to use as evidence. That way, both parties can be prepared and organized to argue their case. In some cases, if the other party has not shared evidence with you, you can object to the fact that the other party is using surprise evidence.

The courts have specific rules about disclosure (i.e. sharing evidence with the other side), which you’ll need to familiarize yourself with to make sure that you are in compliance and address instances of non-compliance by the other party.

Privilege

Privileged documents and communications are considered private and cannot be shared with the other party or the court (in most cases). Certain types of relationships are protected by privilege to allow people to have open communication in trusting relationships or situations. A judge may also find that privilege exists in a particular relationship on a “case by case” basis. If the other party asks you or a witness to share information that is protected by privilege, you can object.

For information about the various forms of privilege, see Submitting Evidence in Court.

Relevance

If the other party tries to introduce documents or asks a witness a question that is irrelevant to the case, you can object.

However, you and the other party may have different opinions on what is relevant to the case and both sides may need to explain to the judge why they think the question is relevant or irrelevant to the case. The judge will decide whether the question is relevant or not.

Objections: Questioning a Witness

Abusive, Hectoring, or Harassing

If you see that the other party is being extremely abusive, harassing, or cruel when asking a witness questions during cross-examination, you can object.

However, it is important to note that the other party is allowed to be quite aggressive in their questioning of witnesses. Their behaviour has to cross the line from vigorous and aggressive questioning (which is allowed) to abusive (which is not allowed).

Abusive behaviour may include demeaning, humiliating, or mocking the witness. The judge will determine whether the other party has crossed the line, but the other party’s behaviour will have to be extremely bad for the judge to agree with an objection to abusive, harassing, or vexatious questioning.

Challenging Credibility

If one party wants to challenge the credibility of a witness, they must provide the witness with evidence that challenges their credibility so that they can properly respond to it. If the witness was not asked about it during their cross-examination, then the evidence cannot be entered into court later. It is not fair to challenge a witness’s credibility with information they have not seen or after the cross-examination is over.

If the other party brings in this new evidence later, you can object to the evidence being introduced. The judge will then either refuse to admit the evidence, give it little or no weight, or allow it, but the witness will be given another opportunity to be questioned about the evidence.

Argumentative

If the other party asks the witness to agree or disagree with a position that the other party assumes is true (often because it matches the argument their side is making) or is trying to draw a conclusion that has not been proven as true, you can make an objection that this is argumentative.

This happens when the other party asks the witness to agree or disagree with a statement that is not a statement of fact. A question about a statement of fact could be, “Do you agree the phone was an iPhone 11?” An argumentative question on the same issue would be, “Do you expect the court to believe that they could afford an iPhone 11?”

Calls for a Legal Conclusion

If the other party asks a witness to make a legal conclusion (for example, whether they think someone broke the law), you can object.

The only person in the trial who is allowed to make decisions about legal issues is the judge.

Compound or Multiple Questions

If the other party asks a question that is multiple questions in one (compound) or asks multiple questions at the same time, you can object to this.

The other party may be allowed to ask the questions separately.

Confusing, Ambiguous, or Vague

If the other party asks a witness a question that is not clear or misleading, you can object to that question as confusing, ambiguous, or vague.

The other party may have an opportunity to ask a clearer question or rephrase their question to make it clear and more specific.

Improper Re-Examination

Re-examination can happen after cross-examination in a trial.

If new information comes up in cross-examination, the other party can ask that witness questions about that new information.

During a re-examination, if the other party asks questions about things that were not new from the cross-examination, or should have been reasonably asked during the direct examination, you can object.

Leading the Witness

Leading questions are always allowed in cross-examination, but are generally not allowed in examination-in-chief.

During the examination-in-chief (i.e. when one party is asking their own witness questions), if the other party asks their own witness a question that contains or suggests the answer (“leading” the witness to the answer), you can object. Leading questions are questions that suggest an answer, and can usually be answered “yes” or “no.”

For example: “Didn’t you hear James yelling threats?” is a leading question, as it suggests to the witness that James yelled threats.

An open-ended question, which is allowed, would be: “What did James say?” or “How did James seem when he said that?”

There are some exceptions to this rule. If the issue is not controversial, leading questions might be allowed. You will need to ask the judge permission to ask leading questions on undisputed facts before asking these types of questions. However, this is limited to truly uncontroversial points. For example, if the witness is the sister of the other party, then you could ask, “Are you James’s sister?” instead of, “What is your relationship to James?”

Leading questions may be allowed if the witness is an adverse witness (i.e. a witness whose interest does not match the side that is questioning them) or a hostile witness (i.e. a witness who may be antagonistic or confrontational to the side that is questioning them). You will need to ask the judge permission to ask an adverse or hostile witness questions. You will have to explain to the judge why you think that the witness is an adverse or hostile witness.

An adverse witness is someone who is going to provide evidence that will not help the case of the person who is questioning them. There is no precise definition for a hostile witness, but a hostile witness generally means a witness whose feelings about an aspect of your case are so strong that they would not provide truthful evidence.

Repetition

If the other party asks a question that the witness has already answered repeatedly, so much that it is wasting the court’s time or intimidating the witness, you can object to this.

However, lawyers are allowed to ask the same question more than once if the witness’s answer was unclear or did not fully answer the question.

Speculative

If the other party asks a witness a question that makes them guess or speculate about what might have happened, you can object.

Objecting to Documents

A document can be physical, such as a handwritten note, or electronic, such as an email (however, you will typically have to print out a physical copy of the electronic document to show in court).

Each court will have its own rules for the disclosure of documents (i.e. when both parties need to exchange the documents they want to rely on in court) that you should review.

If you receive a document before the hearing and you intend to object to it, you should inform the other side in advance that you will object to the document being admitted into evidence and explain the reasons for the objection. The other side might decide not to rely on that document if you have a good reason to object to it. If the other side still intends to rely on the document, you should raise the objection with the judge at the hearing.

If you or the other party objects to a document or other evidence at the trial or hearing, the judge may decide to have a voir dire, which is like a mini-hearing about whether to admit the document into evidence. The objecting party will speak first to explain the reasons they are objecting. The party seeking to have the evidence admitted then gets a turn to respond and the objecting party has a final chance to reply. The judge will then decide whether to admit or exclude the evidence.

Affidavits

An affidavit is a document that contains facts that a witness has sworn to be true. It is only supposed to contain facts that the person can swear to be true and should not include opinions, arguments, or speculation. You can object to all of the contents of the affidavit, certain statements in it, or any document attached to it.

You would rely on the same bases for objections listed above. For example, you could object that one of the statements is prejudicial or that a document contains hearsay or an opinion, or is speculative.

If the court agrees that certain sections of the affidavit are against the rules, the judge will order those sections to be stricken from the affidavit or rule against the entire affidavit being introduced.

Authenticity Not Established

When a document or item is brought to court to be used as evidence, generally it must be authenticated. The authenticity of documents should be raised as soon as possible, ideally before trial, as this avoids wasting time during the trial. If the issue can be resolved between the parties before the hearing in court, this is preferable. Not all documents need to be authenticated. In some cases, if both parties agree the document is authentic, it can be accepted as authentic without going through the steps of authentication. However, if there is a disagreement about the authenticity of the document and the other party has not proven it is authentic and they try to admit it, you can object.

If it has not gone through the proper steps of authentication, you can object.

For more information about authentication and digital evidence, see Authentication of Digital Evidence.

Best Evidence Rule

For most physical documents, the party seeking to introduce the document will be expected to provide the court with the original version. For example, if a party wants to rely on a letter, the court would want the original hand-written letter, not a photocopy.

If the original is missing, someone else has it, it is impossible to get, or it has been destroyed, a copy may be accepted by the court if the party provides a good explanation for why they cannot produce the original or why a copy is good evidence.

If it is not the original document or the party does not have a good reason to use a copy, you can object.

For electronic documents, because there is usually no true single, “original” document, the courts will instead want to know that the system it was saved on was functioning normally (i.e. was working as it usually would and not in a way that would impact the contents of the document. For example, it would not be working properly if it were not saving the document accurately because of a glitch in the system).

If you think the system was not functioning normally and the original document may have been altered, you can object.

The party who was trying to admit the document would then need to explain that the electronic system was working properly.

For more information about the Best Evidence Rule, see Authentication of Digital Evidence.

Hearsay: Business and Medical Records

If a document is being admitted to prove its contents (i.e. whatever is said in the document is true), it will be considered hearsay unless it falls under one of the exceptions to the hearsay rule, as discussed in Submitting Evidence in Court.

There are special rules for business and medical records when the document was made in the usual course of business. Documents are admissible when it is the usual course of business to record the information that is being presented to the court as evidence. If there is a dispute about the records, whoever keeps the records at the business will have to come to court to testify that the record is authentic.

Records from financial institutions, such as bank records, are presumptively admissible even if they contain hearsay. If the records are disputed, a bank manager or accountant will need to provide an affidavit or a statement in court that the record is authentic. If there is no dispute – for example, bank account records that both parties accept as accurate records – then they will not need this affidavit or statement. It is common for both parties to accept bank records as accurate.

Parol Evidence Rule

This rule applies to contracts. It says that only what is written in the contract is allowed as evidence. Nothing that was agreed to outside of the contract that would contradict it, such as a conversation about the deal, is admissible. If someone tries to bring in additional evidence about the contract, you can object to it.

However, there are exceptions to this rule and sometimes additional evidence is allowed. For example, if there is evidence of fraud, mistakes, or unclear sections, additional evidence may be allowed to resolve the matter.

Interim Applications

In family law trials, there are decisions that will need to be made by an interim application before trial. This will allow the court to make temporary orders on issues such as access times for the child, child support payments, and other critical issues that will need to be decided immediately and before the actual trial. The rules of evidence are slightly different for interim applications.

Exhibits at Trial

Whenever you introduce a document or an item as evidence in court, it must be designated as a numbered/lettered exhibit by the judge. It is important to pay attention to make sure that the judge numbers all documents and items. If they are not marked, they will not be considered part of the evidence of your trial. You should try to keep a list of all the exhibits and their numbers so you can refer back to them and you can be sure that they have been noted as evidence by the court.

When you are introducing evidence, you will want to ask the witness to identify the document and then ask the judge to mark the document as an exhibit. The judge will ask the other party if they object to it being entered as an exhibit and if they do not, the judge will say what exhibit number it is and the court clerk will confirm for the record what the exhibit it is and what identifier it has. If you do not do this, the exhibit will not be counted as evidence.

Sometimes the exhibit will be lettered rather than numbered. The important thing is to keep track of the items and the identifier given to them by the court.

Technology-Facilitated Gender-Based Violence (TFGBV) is part of a continuum of violence that can be both online and in-person. If you or someone you know is experiencing TFGBV, you are not alone. You can use sheltersafe.ca to find a shelter/transition house near you or call/text the Kids Help Phone to discuss options and create a safety plan. You don’t need to stay in a shelter to access free, confidential services and support.

We gratefully acknowledge Moira Aikenhead for providing expertise to update this toolkit and Suzie Dunn of The eQuality Project at the University of Ottawa for the creation of this information sheet.

Adapted with permission from BCSTH’s Technology Safety project, based on their resource Objections to Evidence.