(1) Evidence – Sources, Objective and the Trial Context

Evidence and The Law of Evidence

- Evidence is the information the trier of facts use to resolve factual controversies

  • Never what the law is, always issues about the facts. One person says one thing, another says something else

- Evidence law determines what information can be considered, how it can be proved and the use to which it can be put

  • Can you use the criminal record to imply that they committed the crime or can it only be used to assess the credibility?
  • Includes: Rules of Process, Rules of Admissibility, Rules of Reasoning

- Role of evidence law: party asserting a cause of action, offence or defence must lead evidence to establish facts that support each element of substantive law

  • So law of evidence is concerned with the means of proof that can be put before the trier of fact at trial, the permissible uses that trier of fact can make of the proof and how the means of proof may be tested and presented
  • Core of evidence law: proof of facts to address substantive issues at trial

Objectives of Evidence Law

- Truth

- Fairness – to the accused, parties in an action, and to the witness

- Social and structural values

Evidence in a Nutshell

- RULE: Everything that is relevant to a fact in issue is admissible unless there is a legal reason for excluding it. (Seaboyer)

- Questions:

- (1) What does it mean for something to be relevant

- (2) What kinds of reasons justify the exclusion of relevant evidence

- (3) What is the significance of a piece of evidence being admitted

- Fundamental Principle: Nothing is to be received which is not logically probative of some matter requiring to be proved and everything which is thus probative should be received absent some other ground for its exclusion (R v Seaboyer)

Relevance and Materiality

- Relevance: Evidence is relevant if, as a matter of logic and experience the evidence tends to prove the proposition for which it is advanced (Factual Relevance)

  • Experience or cognition, matter of empirical knowledge or belief.
  • Test: Whether the evidence makes a fact in issue more or less likely to be true
  • Ex: Is the fact that he had an affair relevant to his killing wife, Galloway

- Materiality: Evidence is material if it is directed at a matter in issue in the case. Depends on the nature of an action, need to apply the facts to the law (Legal Relevance)

  • Proving the husband is having an affair may prove he is a bad person, but does it go to a material issue? Will it actually go to prove the proposition which you ultimately have to prove?

- R v Collins: Relevance is established at law if as a matter of logic and experience the evidence tends to prove the proposition for which it is advanced. The evidence is material if it is directed at a matter in issue in the case.

Grounds for excluding evidence

- (1) The potential to distort the fact finding process

  • Cause trier of fact to reason irrationally or inappropriately. Ex hearsay, character evidence

- (2) Unnecessary prolong a trial or confuse the issues

  • Credibility is relevant and material but it may unnecessarily complicate and prolong the issues. The fact that one person is a liar may be relevant and may be material at trial but it may not be worth getting into.

- (3) Undermine an important value other than fact-finding

  • Truth is an important value but respecting peoples Charter values and fairness are more important. Protection of privilege is another important value.

- (4) Probative value of the evidence outweighed by its prejudicial effect

  • Probative is how much does one fact prove another then compare this to some of the negative costs. Discretion on courts

- (5) The manner in which it is acquired or presented is inconsistent with the trial process

Weighing of Evidence

- Admissibility is about whether a piece of information can be included in the evidentiary matrix  can it come into the trial?

  • Judge determines admissibility

- Weight is concerned with, if a given piece of evidence is admissible, how much stock the evidence should be given.

  • Trier of fact determines what weight (significance) to attach to the evidence (if any)

- Admissibility is determined first, and then weight is determined.

Key Admissibility Questions

- Is the evidence relevant? Does it prove or disprove the fact for which it is tendered?

- Is the evidence material? Is the fact that the evidence tends to prove or disprove legally significant in establishing an element of the cause of action, or defence?

- Is the evidence subject to an exclusionary rule?

- Is the probative value of the evidence outweighed by its prejudicial effect?

Sources of Evidence Law

- (1) The Common law: Most important

- (2) Statues: rules modified by statute, but no one comprehensive statute

  • Canada Evidence Act
  • BC Evidence Act
  • CC, MVA

- (3) The Constitution: Section 52, 91, 92, 11, 7, 8, 9 ,10, 24

- (4) Aboriginal Law: Delgamuukw, Sparrow

  • The SCC has held that, in litigation to determine the scope of unextinguished aboriginal rights, the aboriginal source of evidence must be respected and balanced with other sources of admissible at common law
  • Oral histories passed down by elders are a valid source of evidence for the determination of aboriginal rights (Delgamuukw)

Trends in Evidence Law

- (1) The Purposive Approach

  • Why do we have these rules and exceptions? Look at the fundamental principles and then see if the rules meet those. Allow the exceptions because we feel the evidence is reliable and trustworthy
  • Moving away from pigeon hole and looking at what is the purpose of this rule, what is underlying it
  • Assessing admissibility based on things instead of exceptions
  • For example, hearsay could only be excluded based on exceptions, but now have the purposive approach where we look at the underlying purposes, necessity and reliability to decide if the evidence should be included
  • Similar fact, used to have categories of design or system, but this was moved to an area of general principle – DPP v Boardman
  • Moving from pigeon holes to expansion

- (2) Development of the Overarching Exclusionary Discretion

  • Prejudice versus probative, used to be much narrower discretion to exclude

- (3) Increased Admissibility

  • The modern jury is intelligent and will not be fooled by sympathies, frivolous stuff, we can trust them

Competing Goals

- Ideally the trial would determine facts accurately, inexpensively and expeditiously, fairly and without damaging social values.

- But these gaols are in conflict

- We have an adversary system: judge is neutral and passive, parties and counsel determine issues to be litigated, self-interest in parties most efficient way to get to the truth

The Trial Process

- Evidence can be put before the trier of fact through:

- (1) Witnesses

- (2) Exhibits

  • (a) Real Evidence: photos, surveillance, videos, documents
  • (b) Demonstrative Evidence: sketches of the scene, some photos, re-enactments
  • Help witnesses put evidence before the court and helps the jury to better understand
  • (c) Documentary evidence

- (3) Admissions

  • Parties can agree to certain things
  • Example is NCRMD, many of the facts go in through admission. Like the fact that they killed someone is admitted, so then the issue before trial is issues of mental stability
  • Sworn statements, unsworn statements

- (4) Judicial Notice

  • The court can take notice of things which are so notorious

Elements of a Criminal Trial

- (1) Crown’s Case

  • (a) Crown Opening
  • (b) Crown Witnesses
  • Direct Examination
  • Cross Examination
  • Re-direct: must be a matter that you could not have known or anticipated, must be a clarification. Only if a new issue emerges that could not have been anticipated in the course of cross-examination

- (2) Motion for Directed Verdict

  • The defence applies to say the Crown has not proven one of the essential elements
  • No evidence upon which the jury can convict, you didn’t prove something

- (3) Defence Case

  • (a) Defence opening
  • (b) Defence witnesses
  • Direct examination
  • Cross examination
  • Re-direct

- (4) Closing Addresses of Crown & Defence

- (5) Judge’s instructions to the jury

- (6) Jury Deliberations

- (7) Verdict

- (8) Sentencing

Summary: Key Concepts

- Relevance, probative value, potential prejudice

- Admissibility v weight

- Reasons for exclusions

- Objectives of the law of evidence

  • Truth, Fairness, Social and structural values

(2) Burden and Quantum of Proof

- Burden: Who has the obligation of satisfying the trier on the factual matters in issue

- Quantum or Standard of proof: The degree to which the party must convince the trier in order to discharge the burden. How much, to what level, and to what degree

Evidentiary and Persuasive Burdens

- Evidentiary burden: Must adduce or point to some relevant evidence capable of supporting a decision in the party’s favour. The burden the law sometimes puts on a party to show enough evidence to put the issue on the table

  • It is not about sufficient evidence but just some evidence, example is the air of reality test

- Persuasive burden: Is on the party who in law is required to establish the relevant facts to succeed. Civil on Plaintiff and Criminal on the Crown

  • It comes up in the judges instruction or charge to the “jury”
  • In Canada there are only 2 persuasive burdens: beyond a reasonable doubt in the criminal context and balance of probabilities in the civil litigation context

Criminal Proceeding: Presumptions and Burdens

- The Golden Thread: Throughout the web of the English Criminal law one golden thread is always seen

  • (1) Presumption of innocent
  • (2) Requirement for Proof beyond a Reasonable Doubt

- Section 11(d) of the Charter: Any person charged with an offence has the right to be presumed innocent until proven guilty according to the law in a fair and public hearing by an independent and impartial tribunal

- Presumptions: is a legal device enabling or requiring a trier of fact to reach a conclusion about a particular fact either where is no evidence about the facts, or where a legal rule states that the fact must be inferred

  • 2 types: those with basic facts and those without
  • Those with fact entail a conclusion to be drawn, can be permissive or mandatory
  • Rebuttable in 3 ways: raise reasonable doubt as to existence, may bring into question the truth of the presumed fact or may have legal or persuasive

Criminal Proceedings: Burden and Standard of Proof

- (1) Proof beyond a reasonable doubt

  • Persuasive is on the Crown, really high as to avoid wrongful convictions

- (2) Directed verdict of acquittal

- (3) Putting a defence in issue

(1) Proof Beyond a reasonable doubt

- What is proof beyond a reasonable doubt?

  • Is a common law doctrine, jury must be satisfied of something more than probable guilt, but need not be absolutely sure of guilt.
  • Lifchus: An explanation of the meaning of PBRD is an essential element of the instructions that must be given to a jury. It cannot be frivolous or based on sympathies. Absolute certainty is not required. It is not an imaginary doubt, has to be based on evidence or absence of evidence

- The Dos when explaining RD to a jury (Lifchus)

  • Intertwined with the presumption of innocence
  • Burden lies with the prosecution and never shifts to the accused
  • Not based on sympathy or prejudice
  • Based on reason and common sense
  • Logically connected to the evidence or the absence of evidence
  • Not a frivolous or imaginary doubt
  • Not absolute certainty, but more than probably guilty

- The Don’ts when explaining RD to a jury (Lifchus)

  • Trial judge should not say a reasonable doubt is an ordinary expression which has no special meaning in the criminal context
  • Should not say its decided the same way as other important decision in their everyday lives
  • Should not be described as being moral certainty
  • Below moral certainty but above balance of probabilities
  • May lead them to decide if they “feel” certain even though no evidence
  • Don’t use adjectives like serious doubt or substantial doubt or haunting doubt, no qualification of doubt other than with reasonable
  • Can convict if you are sure unless first given proper definition of reasonable doubt

- This is not a magical incantation that needs to be repeated word for word, just a suggested form.

  • If the charge, when read as a whole, makes it clear that the jury could not have been under any misapprehension as to the correct burden and standard of proof to apply, the verdict should not be disturbed.
  • However, if it is likely that the charge led the jury to misapprehend the standard of proof, the verdict will have to be set aside and a new trial directed

- Accused Testifies: A judge must also instruct the jury on the burden of proof of beyond a reasonable doubt when the accused takes the stand in his own defence - R v WD

  • First if you believe the evidence of the accused, obviously you must acquit
  • Second if you don’t believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit
  • The Crown has to prove that the accused is blatantly lying
  • Third even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of evidence you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
  • Just because you found that the person is lying doesn’t mean that they are guilty. Just because you reject the evidence does not mean you turn it against them.

- Is Credibility Central ( R v JHS)

  • Charge will likely survive appeal scrutiny if it is made clear that:
  • (1) The jury is not to simply choose between two versions of events
  • (2) That they must consider all the evidence when determining reasonable doubt
  • (3) Any reasonable doubt must be resolved in favour of the accused

- But prudence suggests best to follow WD

- R v Morin – Consider evidence as a whole, not in piecemeal fashion

  • Facts: Accused charged with first degree murder and said he didn’t do it, but if he did, he was insane at the time. General practice is you pick one defence and run it.
  • Law: Should not examine the evidence in a piecemeal fashion by reference to the criminal standard. Jury must consider the evidence as a whole and this requires them to examine each element of the offence or issue to be proved beyond a reasonable doubt.
  • Don’t apply RB to each piece of evidence, need to look at totality of the circumstances. The defence will try to break down each piece and explain and then reject. Want to evaluate everything individually. But then the Crown will say that don’t do this, look at the constellation of factors and put it together to get the PBRD
  • Ratio: Must examine each element of the offence, not each element of evidence

- Pre-Charge Conference: Happens before the closings and determines what instructions the judge is giving to the jury

(2) Motion for Directed Verdict of acquittal

- At the end of the Crowns case, the defence can make this motion before they state whether or not they are going to bring evidence. Ask the TJ to rule that the Crown has not discharged its evidentiary burden, not led evidence to prove each element of the offence

- Test: Is there some evidence on each of the elements on which a properly instructed jury could convict.

  • Judge is supposed to accept evidence on its face and assess whether some evidence exists that could support a verdict of guilty. Where there is admissible evidence before a court if believed by a properly charged jury acting reasonably would justify a conviction, the TJ is not justified in directing a verdict of acquittal

- Comes from Sheppard, old case

(3) Putting a Defence in Issue

- Judge is required to put to the jury all the defences that arise on the evidence of the case. Burden is on the accused based on air of reality

- Air of Reality Test: if a properly instructed jury acting reasonably could acquit the accused on the basis of the defence. Some evidence which can support the defence

  • Supposed to be a screening test to get rid of the frivolous or unjustified defences, PappaJohn
  • Judge has a positive duty to keep unfounded defences from jury, Cinous
  • Obligation of judge to inform of defences which have an air of reality even if they have not been raised by the defence. Also duty to keep away defences which lack any evidentiary basis.

- Judge must consider the totality of the evidence, not aimed at deciding the substantive merits of the defence. Judge does not make determinations about the credibility of witnesses, weight of evidence, make findings of fact, or draw determinate factual inferences.

- NOTE: there are some defences where the evidentiary burden of air of reality in on the accused AND the persuasive burden of balance of probabilities is on the accused

  • Automatism
  • Mental disorder
  • Intoxication akin to automatism
  • Officially induced error

Civil Proceedings

- Proof on a balance of probabilities

  • Less demanding then the beyond a reasonable doubt, Lifchus
  • More probable then not, Burden on the plaintiff

- Motion for a non-suit

  • D argues that the P has not led evidence capable of supporting one or more of the elements of the cause of action
  • The defendant can make a non-suit application, arguing that there is NO EVIDENCE sufficient for a finding of liability, and thus the case does not need to carry on. The plaintiff can defend this claim by showing that there is SOME evidence
  • Test: Court must consider whether assuming the evidence to be true, and adducing all the inferences of facts as in the exercise of a reasonable intelligent jury would be warranted in drawing from it, there is sufficient to support the issue
  • Avoidance of a non-suit only means that the P has established a case fit to go the trier of fact, it does not mean that the P will ultimately be successful in the action
  • BC Supreme Court Rule 12-5 — No Evidence and Insufficient Evidence Applications
  • No evidence application: (4) At the close of the plaintiff's case, the defendant may apply to have the action dismissed on the ground that there is no evidence to support the plaintiff's case.
  • Defendant need not elect whether to call evidence: (5) A defendant is entitled to apply under subrule (4) without being called on to elect whether or not to call evidence.
  • Insufficient evidence application: (6) At the close of the plaintiff's case, the defendant may apply to have the action dismissed on the ground that the evidence is insufficient to make out the plaintiff's case.
  • Defendant must elect not to call evidence: (7) Unless the court otherwise orders, an application under subrule (6) may be made only after the defendant has elected not to call evidence.

- Summary judgement – Rule 9-6