Table of Contents
The Key rules 3
Admissability 3
Material Issue 3
Sources and goals of the law of evidence 4
4 Sources of Evidence: 4
Documents 4
Proof without evidence 4
Formal admissions 5
Criminal Proceeding 5
Civil Proceeding 7
Judicial Notice 7
Judicial Notice of Adjudicative Facts 8
Judicial Notice of Law 10
Witnesses 10
General Instructions about using witnesses 10
Memory 11
Affidavits 12
Competence & Compellability 13
Spouses 13
Oaths and affirmations 14
Children and adults with diminished mental capacity 15
Accused persons 16
Credibility 16
Relevancy, probative value, prejudicial effect 17
Relevance 17
Residual discretion 17
Striking the balance with residual discretion 18
Burden and quantum of proof 20
Civil trials 20
Criminal trials 20
Regulatory offences 22
Consitution / CHarter 22
Reverse onus provisions 22
Appeals 22
hearsay 24
overview of hearsay approach 24
Notes for exam 25
Hearsay Exceptions 25
Res geste 25
Statements against interest 26
Earlier testimony 27
Statements concerning bodily / mental condition 28
statements of intention 28
statements by parties 28
business records 29
Principled approach 29
prior inconsistent statements 30
Class exercise on hearsay 31
opinion evidence 33
Admissible lay opinion evidence 33
Expert opinion evidence - limits 33
Expert qualification: Angela campbell affidavit 36
Credibility 37
Limitations: against oath-helping 38
Permissable attacks to credibility 39
Collateral facts bar 40
Corroboration 40
character and related issues 41
How Accused puts character in issue 41
How to prove character 41
Accused 41
Character of Third Party Suspects 43
Character of victims 43
Critical Reflections on law of character 43
improperly obtained ev. & priv. against self-incrim. 45
Similar fact evidence 45
The Categorical approach (History) 45
principled approach to similar fact evidence 46
Handy Framework 46
Confessions 48
CL Confessions rule 48
Mr. Big Sting Operations 51
Self-Incrimination 52
First Principles: Charter and CEvA 53
Privilege and related issues 55
Case privilege 55
Solicitor-client privilege 55
Exceptions to solictor-client privilege 57
extensions to solicitor-client privilege 58
Spousal privilege 60
informer privilege 60
Public immunity privilege (not on exam) 61
Class exercise on privilege 61
Case-by-case privilege 62
Documents in the possession of 3rd parties 63
O’Connor Regime 64
Statutory regime 64
Retention, preservation & Spoliation 65
Spoliation in Criminal Litigation 65
Civil Context 65
The Key rules
Admissability
Evidence is admissible if it is relevant to a material issue and not subject to an exclusionary rule (specific rules or residual discretion). Once admitted, there is Q of weight.
Basic principles that underlie the rules of evidence:
o Procedural Fairness: if you have a fair process you are more likely to have a fair result
o Ask: what is fair here?
Access to Justice: evidence is important but expensive: lawyers to determine what is relevant, private investigators
Material Issue
Criminal Cases
- Step One: Look at the indictment; it sets out the charge against the A & tells you the facts the crown will have to prove – that tells you what the material issues are
o Assault: unwanted touching …. Look to the elements and then to the facts
§ Hitting of x with a shovel to the head
§ Who is the victim
§ Who is the defendant
§ What did they do
§ Where did they do it
§ How did they do it
- Step Two: crown must prove those facts beyond a reasonable doubt
o By tendering evidence
- Step Three: if crown falls short then the defense may seek a directed verdict of acquittal
o Defense may accept the evidence that the crown puts in and then argue that all of it even if believed is insufficient
o Defense may bring its own evidence
- Step four: Closing arguments
o How much should each peace of evidence weigh? Does it ground a finding of fact? This is a question of fact and is decided by the finder of fact.
Civil Cases
- Step one: allegations are set down in pleadings in BC notice of civil claim
o Must lay out every element of the cause of claim
o Allege the facts that speak to every element of the cause of action
o If you fail to do this the defense council can challenge this on cause of action
Sources and goals of the law of evidence
What do you need to prove (or not prove) in order to establish material facts?
- Admission Evidence: required only where the facts are disputed
- Judicial Notice: evidence is not required for a fact that is prima facie accepted
4 Sources of Evidence:
- Formal Admissions
- Judicial Notice
- Documents
- Witnesses
Documents
Parties are generally required to tender evidence through oral testimony of witnesses. Applies to facts directly observed by the witness.
Tendering physical or documentary ev: must be authenticated by a witness
- Documents don’t stand alone (unless formal admission or judicial notice)
- Authentication: verification by the witness that the thing is what it is alleged to be
o Process for authentication at trial: may have to use a series of witnesses. Preserving evidence for client / instructing them to do so. Chain of evidence, continuity of evidence.
Self-Authenticating Documents: exception to rule that documents need to be authenticated
- Inherent reliability of doc is such that don’t need someone to verify it
- Categories set out in CEVA and BCEVA
- Statement of fact recorded in a business record is self-authenticating and non-hearsay if the document is made in the usual course of business and was usual and ordinary course of business to make that record (e.g. a ledger) – see more in hearsay section
Proof without evidence
There are two situations where evidence is not required because you do not need to prove anything :
1. Formal admissions
2. Judicial Notice
Formal admissions
o In any proceeding a party may admit facts and this means the other party does not need to prove them
o Policy: efficiency, access to justice. But consider the fairness of the admission.
Criminal Proceeding
1. Admission: the guilty plea
By pleading guilty is admitting all of the facts necessary to establish the elements of the offence in the information or indictment (but nothing more).
E.g. Assault: if A pleads guilty they are admitting that they intentionally applied force to the complainant knowing or being reckless as to the complainants non-consent. But the accused is not admitting that any particular degree of force was used.
If anything more is needed for other purposes this must be proved
- CCC 724(3): (R v Gardiner) sentencing
o Nothing is admitted in the plea that goes to sentencing à crown must prove beyond reasonable doubt
- Plea is no guarantee on outcome on sentence
o Client must understand this
Consequences of pleading
- Benefits:
o Criminal justice system à utilitarian cost benefit
o Acceptance of responsibility à rehabilitation
o Certainty of outcome for the accused
o Relief for witnesses
- Costs: to the accused à waver of rights
Pleas must be legitimate and fair
- There is an ethical obligation to back down from a charge if the evidence is not there, the crown may be obligated to accept a plea that is less than their desired charge
R v T (R) 1992: a plea is valid according to the following factors:
1. Was the plea voluntarily?
2. Was the plea unequivocal?
3. Was the plea properly informed
4. Was justice done overall?
The procedure for entering pleas 606 cc
- Court must be satisfied that:
- Plea is made voluntarily
- A understands this is an admission of the elements of the offence
- Court is not bound by any agreement between defense and prosecutor
Withdrawal of a guilty plea
- Fairness, what is in the interest of justice
- Ethical Question
o Can the crown accept a plea where they know the evidence would not support a conviction on that charge?
o If the defense council believes that the client has a good defense can the defense allow their client to submit a guilty verdict?
Adgey: test for withdrawal of a guilty plea (750): A may change plea if can persuade a court that there are valid reasons to do so
Mahoney: A may not change his plea simply because a sentence was unexpected
- Plea made voluntarily with full understanding of the charge and consequences
- Where it is understood that the consequences may be a sentence imposed by the court
Lyons: just because you are dissatisfied with how things turned out later does not mean you can withdraw your plea!
2. Admission (narrower): admission of certain facts but not all
CCC s.655: allows A to admit facts short of pleading guilty to offence. where A is on trial for an indictable offence A or counsel may admit any fact alleged against A for the purpose of dispensing with proof thereof
- Should be treated with caution
- Can be made in writing or by oral statement
- Good council work to admit what is not at issue:
o Admit that the sexual assault happened, make the question about if that sexual assault was done to her by the accused
o Admit that you killed the man, but that it was done in self defense
R v Fong: A admitted facts, based on these admissions the judge determined he did not have to determine the competency of witnesses who would testify to these facts.
o Judge did not make an inquest into competency of young witnesses
o This decision was upheld on appeal.
3. Is the crown authorized to admit facts?
There is no provision in the CC authorizing the crown to admit facts
Pintar (other facts): It is assumed the crown can do so. Given the burden of proof is on the crown what does it mean for the crown to admit a fact?
4. There is no provision in the code authorizing the parties to file an agreed statement of facts and ask the court for a determination of the legal effect of those facts
Herbert (other facts): The facts relevant to A argument that his right to silence under s.7 had been violated were established in an agreed statement of fact
Civil Proceeding
Admissions of facts by parties are conclusive
- The process of admitting facts depends on the jurisdiction you are in
- Can be done by statement or by the failure to state something
- Written, oral, through letters prior to trial, through mechanisms under the rule of court for replies or failures to reply to authorize requests for admissions
Turner v Novak Generally an admission can be made by a statement in the pleading
- Facts: In this case a party that had admitted a fact, argued that it could not be treated as a finding of fact at trial
- Held: finding of fact
- Reasons: we give formal admissions because we want to dispense with those elements of an offence that are conclusive no matter what evidence is admitted
Formal admission may be made in a civil proceeding
A. By statement in the pleadings or by a failure to deliver pleadings
B. By an agreed statement of fact filed at the trial
C. By an oral statement made by counsel at trial or even counsel’s silence in the face of statements made to the trial judge by the opposing counsel with the intention that statements be relied on by the judge
D. By a letter written by a party’s solicitor prior to trial
E. By a reply or failure to reply to a request to admit facts
Likely: formal admissions in civil proceeding are no longer binding in a subsequent trial but could be introduced as an informal admission without having the admitting party having the usual right to contradict it.
Judicial Notice
“At its core the doctrine of judicial notice makes us pay attention to the concept of trial fairness and triggers a debate about the legitimacy of the judicial system” 754
Presumption: judges know nothing until proved the court. Judicial notice is an exception.
R v Spense
- What is the proper roll of efficiency in the legal system?
- Is there a distinction between rational decisions and legitimate ones in law?
- Is there any difference between a trial judge and an appeal judge with regard to the test for judicial notice?
- If a judge is convinced that judicial notice should be taken of a fact is that the end of the dispute?
- Is the recently introduced distinction between facts and inferences in cases a stable one?
- What is the correct interplay between judicial notice and the social framework of facts and expert evidence rules?
Judicial Notice of Adjudicative Facts
Allows a fact to be allowed into evidence without proof if the truth if the fact is super well known and just understood to be true
- Avoid the situation where the court on the evidence reaches a factual conclusion which contradicts a source that is indisputably correct
- The fact must be clearly uncontroversial and beyond reasonable dispute because the other side had no ability to challenge the facts once accepted under judicial notice
Morgan Test Newfoundland (Treasury Board) v NAPE upholding R v Find
Ø If facts are important and critical (dispositive) to the determination of the case the courts will apply the Morgan test more strictly. Courts do not want to accept facts that will bring an end to the dispute.
Ø If the facts are not strictly dispositive then the capacity for the court to accept the facts depends on the circumstances.
The threshold for judicial notice is strict. Facts must be:
- So notoriously or generally accepted as not to be the subject of debate among reasonable persons
- Capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy
R v Find “The purpose of judicial notice”
1. Dispense with unnecessary proof
2. Avoid situations where a court on the evidence reaches a factual conclusion which contradicts readily accessible sources of indisputable accuracy (this would make people question the court)