Introduction

Policy Considerations
  • Evidence = basic value of the justice system (e.g., secures other values like trial fairness)
  • Modified adversarial justice system requires evidentiary process (e.g., the truth—through evidence—emerges from the adversarial process)
  • Ethical responsibilities of a courtroom lawyer also guide evidence inclusion/exclusion—in crim not required to reveal evidence that hurts your case, but it is a fine line between not revealing and misleading (Meek v Fleming)
  • Residual discretion to exclude evidencejudges are able to exclude otherwise admissible evidence on the grounds that its prejudicial value outweighs its probative value
  • Shift from “pigeon holes” (statements of inadmissibility + exceptions) to the principled approach“There is wide agreement that the approach of general exclusion supplemented by categories of exceptions is bound to fail because of the impossibility of predicting in advance what evidence may be relevant in a particular case” (Seaboyer CB 110)
  • Development of overarching exclusionary discretion under the Charter (Seaboyer, Potvin, Corbett)
  • Increasing admissibility on the basis that better results emerge from inclusion with instruction rather than exclusion
  • Clash between three conflicting values: Truth finding, fairness and efficiency (and to some extent ‘access’ in civil proceedings)

The Sources and Goals of the Law of Evidence
Definition of Evidence / Black’s Law Dictionary: “All the means by which any alleged matter of fact ... is established or disproved”
Evidence law applies to the proof of facts that provided a basis for applying jurisdictional law, procedural law and remedial law.
BUT evidence is meant to be the servant, and not the master, of justice (Official Solicitor v. K [1965] HL)
Current Trajectory / “The law of evidence continues to develop in the direction of a principled approach in which the trial judge’s central task in determining admissibility is to balance the probative value of the evidence against its detrimental effects on the trial process”
Assessing Evidence /
  1. Relevance
  2. Materiality
  3. Admissibility
  4. Probative value

Relevance / Two particular considerations determine whether a piece of evidence is relevant:
(1)Factual Relevance (experience, empirical knowledge, belief, etc.)
TEST: Whether the evidence makes a fact in issue more or less likely to be true. “Does the evidence offered render the desired inference more probable than it would be without the evidence?” (Charles T. McCormick)
(2)Materiality [Legal Relevance] (facts that are legally significant)
TEST: Step 1: Review the elements of the offence or pleadings to identify material issues. Step 2: determine whether the evidence is directed at a fact in issue.
Reasons for Excluding Relevant and Material Evidence / Rationales for exclusion: theory that the evidence is inherently unreliable, or (conceding reliability) that another value is engaged, or efficiency is aided by exclusion
(1)admitting it would distort the fact finding function of the court (e.g., hearsay)
(2)admitting it would unnecessarily prolong a trial or confuse the issues (e.g., dissuadeefficiencyand truth-finding)
(3)admitting it would undermine some important value other than fact-finding (e.g., solicitor-client privilege)
(4)the evidence in which the evidence was acquired is inconsistent with the nature of the trial process (e.g., necessary to facilitate neutrality and impartiality of decision makers)
(5)evidence should be excluded where its probative value is outweighed by its prejudicial effect (e.g., weak similar fact evidence)
Test of Admissibility / Fundamental rule:
Everything that is relevant to a fact in issue is admissible unless there is a legal reason for excluding it.
(1)Is the evidence factually relevant—that is, does it tend to prove or disprove the fact for which it is tendered?
(2)Is the evidence legally relevant (material), that is, is the fact that the evidence tends to prove or disprove legally significant in establishing an element of the cause of an action, offence, or defence at issue?
(3)Is the evidence inadmissible on any ground of law or policy?
(4)Does the prejudicial effect of the evidence outweigh its probative value?
Four Factors to Determine Admissibility of Evidence / (1)the danger that the facts offered may unduly arouse the jury’s emotions of prejudice, hostility, or sympathy
(2)the probability that the proof and the answer evidence that it provokes may create a side-issue that will unduly distract the jury from the main issues
(3)the likelihood that the evidence will consume anundue amount of time
(4)the danger of unfair surprise to the opponent when, having no reasonable ground to anticipate this development of proof, he would be unprepared to meet it
Sources of the Law of Evidence / Main source: common law
  • much of modern day evidentiary rules come from the common law, and continue to evolve under the common law
(a)Criminal Code s 8(2): “criminal law of England that was in force in a province immediately before April 1, 1955 continues in force in the province except as altered, varied, modified or affected by this Act or any other Act of the Parliament of Canada”
Other sources:
  • statutes: Canada has little statute modification of the common law; statutes, however, continue to rely on or cannot be understood without help from the common law; statutory evidentiary rules are subject to the court’s general common law discretion to exclude evidence when its prejudicial effect outweighs the probative value (Corbett, Potvin)
(a)Canada Evidence Act s. 40 allows provincial evidence rules to apply except where they conflict with Acts of Parliament
  • aboriginal law: unless explicitly extinguished, aboriginal law applies (Sparrow)
  • Constitution Acts: evidence rules must comply with the constitution (Seaboyer, Swain, Daviault, Stone)
(a)Where evidence rules pertain to two private individuals, common law will be developed in accordance of Charter values (Hill)
(b)Constitution Act ss. 91 and 92 apply to rules of evidence as well as substantive law
(c)Charter specific
(i)express constitutional protection for some evidentiary principles in criminal proceedings (e.g., accused innocent until proven guilty; right to an impartial hearing; not compelled as a witness against oneself; right against self-incrimination)
(ii)s. 7 as a vehicle to constitutionalize evidentiary principles because liberty is always at stake in criminal proceedings
(iii)Charter protects important rights in the investigation of an offence (including right to not self-incriminate)
(iv)where evidence is obtained in a matter that infringed a Charter right, the Charter provides a remedy under s. 24
The Trial Process
Framework / primarily description of a criminal trial
trial = primarily narrative told through oral testimony through witnesses
real evidence (demonstrative evidence): either evidence of the offence (blood stained shirt) or aids (reports on blood type)
Chronology / (1)begins with an Information or Indictment (criminal), or Notice of Civil Claim (civil)
(2)disclosure (Crown has to disclose the full case in a criminal trial [Stinchcombe] or both parties disclose in a civil trial using Examination for Discovery) and motions (anticipated issues regarding the admissibility of evidence tends to arise in motions in a post-Charter world)
(3)Crown’s case (plaintiff’s case)
a)Opening Statement
b)Examination
Direct Examination (examination in chief)
Cross-Examination
Re-Examination
c)Voirdires
most common voir dire was whether a statement by the accused is admissible (not in front of a jury)reason why the shift to pre-trial motions as it is awkward and disruptive to send the
also voirdires to determine whether witnesses are competent to testify (conducted in front of jury)
d)Motions
most common = motion for a direct verdict of acquittal
(4)Defendant’s case
a)Opening statement (if not earlier)
b)Examination
c)Voirdires
(5)Judgement (judge) or verdict (jury)
(6)Sentencing (criminal) or costs (civil)
(7)Appeals
new evidence: must establish that it is a) highly probative, and b) not available at the time of the trial
Re-examination / Rule: a party cannot re-examine on anything that could have been raised in the examination in chief but may re-examine on matters raised in the cross-examination
*however, judges are increasingly flexible on this matter (but not to the point that the rule no longer exists)

Witnesses

General Rule: Parties must prove or disprove all facts via oral (viva voce) evidence of witnesses. Any object or document must be identified by a witness in order to be admissible.

Competence

Generally
Issue / Where / Ratio / Notes
Oath/Affirmation / s.14 CEA
s.20 BCEA
R v Walsh 1978 ONCA / Need a formal indication that the witness will be truthful. This can occur by an oath (traditional—swear to whatever God you believe in) OR a solemn affirmation.
Competence / R v Bannerman 1966 MBCA / A witness must understand both the nature and the consequence of the oath to be competent. / *Don’t need to have a religious understanding of “hell-fire”
R v Walsh 1978 ONCA / Don’t need to conduct an inquiry to ensure witness appreciates duty of telling the truth before allowing them to make an affirmation in every case.
R v DAI SCC 2012 / Competence is a threshold issue. Does the witness have the capacity to give evidence in court? This excludes worthless evidence at the outset.
Compellability / McGinty YKCA / General Rule: If you are competent you are also compellable, with perhaps an exception for spouses.
Spouses
Issue / Where / Ratio / Notes
Competence / Hawkins / At common-law, a spouse is an incompetent witness.
A court will not look into the motivation for the marriage to determine whether to apply this rule. / SURVIVING POLICY: to protect marital harmony.
UNDER THE ACT: spouses should have a choice of whether or not to testify, not compellable unless it says so.
s. 4(1) CEA / A spouse is a competent witness for the defence
ss. 4(2) & (4) CEA / For certain offences, a spouse is a competent AND compellable witness for the prosecution, w/o the consent of the accused.
s. 4(3) / A privilege that can be claimed once the spouse is on the stand—not to disclose communications that occurred during marriage.
s. 4(5) / Preserves common-law rule that stated a spouse was competent to testify where the crime was against the health/life of the spouse.
Exceptions / Salituro / Spouses who are separated w/o any reasonable possibility of reconciliation are competent witness’.
BUT doesn’t decide whether one such spouse is compellable. / POLICY: Need to protect individual freedom as well as the marriage bond, develop common-law in step w the charter. Equality.
Salituro / Divorced couples are competent witnesses against each other.
Children
Issue / Where / Ratio / Notes
Historically / R v Bannerman 1966 MBCA / Special rule pre-1987 for children, where child does not understand the nature of the oath, can still give testimony if intelligent, and understand duty of speaking the truth BUT corroboration requirement.
This meant children had to understand a “moral obligation” before being allowed to give testimony.
R v Fletcher 1982 SCC / For a child to take an oath, just need to know “whether the child has sufficient appreciation of the solemnity of the occasion and the added responsibility to tell the truth which is involved in taking the oath”.
R v Leonard 1990 ONCA / Where child cannot understand the added responsibility to tell the truth, they are only permitted to give unsworn evidence.
R v Khan SCC 1990 / For a child to give unsworn evidence under the CEA, must have (a) sufficient intelligence and (b) understanding of the duty to tell the truth.
B/c the evidence is unsworn, the amount the oath ‘gets a hold of their conscience’ is a matter a weight not admissibility.
Now / CEA s. 16.1 / (1)Presumed to have the capacity to testify
(2)Don’t take an oath or make solemn affirmation
(3)Receive evidence if they are able to understand and respond to questions
(4)If you want to challenge the child’s competence, you have the burden of satisfying the court that there is an issue as to the capacity of the proposed witness to understand and respond to questions
(5)If there is an issue of capacity, conduct an inquiry
(6)The court shall require child to promise to tell the truth
(7)But you can’t ask the child any questions regarding their understanding of the nature of the promise to the truth for the purposes of admissibility
(8)Child’s testimony has the same effect as if it were taken under oath
Khan / Once the requirements of the act are met, there is no difference between a child that is 5 and child that is 13.
R v DAI / Children only have to be able to communicate evidence and promise to tell the truth. There is no requirement that the children show an understanding of the nature of the obligation to tell the truth.
Primary source of evidence on voir dire to determine competence if challenged, is the wintess themselves as well as evidence of those close to witness or experts with personal contact. / POLICY:
-Conflict between bringing those to justice who exploit children/ mentally disabled VS fair trial and preventing wrongful convictions.
-Even with oath there is no guarantee people are telling the truth
-Cross-exam protects fairness
-Judge/jury are not obligated to believe.
-Fairness is adequately protected, and justice ensured by removing barriers for vulnerable to testify.
**NOTE once qualified as a witness, can ask anything you like on cross-exam**
Mental Disability
Issue / Where / Ratio / Notes
Now / CEA s. 16 / (1)For people 14 years and up whose capacity is challenged. Conduct inquiry before they give evidence to determine:
(a) Do they understand the nature of an oath or solemn affirmation?
(b)Can the communicate the evidence?
(2)If answer to both (a) and (b) is YES, then they give evidence under oath or solemn affirmation.
(3)If answer to (a) is NO but (b) is YES, then they can testify on a promise to tell the truth.
(4)If answer to (a) and (b) is NO, then they cannot testify
(5)The person who challenges the capacity has the burden of satisfying the court that there is an issue as to the capacity of the proposed witness to testify under oath or solemn affirmation.
R v DAI / A person whose mental capacity is challenged and who does not understand the nature of an oath or a solemn affirmation, but who can communicate the evidence, can testify on promising to tell the truth (s 16(3)) (DAI)
  • The burden is on the party challenging the mental capacity of the witness to satisfy the court that there is an issue as to capacity (s 16(5))
  • “communicate the evidence”: involves: - the capacity to observe, the capacity to recollect and the capacity to communicate (Marquard). It may be useful to inquire whether the W can differentiate between true and false everyday factual statements
  • “promise to tell the truth”: does not require any understanding of a moral or abstract duty to tell the truth (DAI). Only requirement is that the witness can communicate the evidence and makes the promise

Procedure: Examination of Witnesses

Issue / Where / Ratio / Notes
Examination in Chief /
  • No leading questions, needs to be in witnesses own words
  • Directing questions at relevant facts and relevant to credibility

Cross-Examination / All leading questions, things that cast doubt on witness’s credibility
Contradicting a Witness / Browne v Dunn (1893)—aff’mdMcNeill 2000 ONCA /
  • You must cross examine a witness you intend to contradict
  • Steps you have to take if you don’t do this: witness should be recalled, and if they can’t special instructions should be given to the jury—in assessing weight of evidence, should consider that the opposing witness was not called
/ Example: R v Dick
  • Inexperienced defence lawyer didn’t cross-examine complainant on her version of events
  • Put accused on stand who gave totally different version

Disputed or Unproven Facts / R v. Lyttle SCC 2004 /
  • Information short of admissible evidence may be put to the witness
  • But can’t recklessly put forward information the cross-examiner knows to be false
  • May pursue any hypothesis honestly advanced on the strength of reasonable inference, experience or intuition. What you genuinely think possible on known facts or reasonable assumptions.
  • Can’t assert or imply in order to mislead.

R v Shearing / The adversarial system allows wide latitude to cross examiners to resort to unproven assumptions and innuendo to crack untruthful witnesses.
Refreshing Memory / Lecture / Where a witness can no longer remember their testimony. Two ways:
(a)Present recollection revived
(b)Past recollection recorded
Present Recollection Revived / R v Fliss /
  • Can refresh memory before testifying or during
  • Stimulus can be anything even inadmissible hearsay b/c it is their testimony which becomes evidence not the stimulus, and their testimony can be cross-examined.

Past Recollection Recorded / R v Davey / You can testify from a record of their past recollection even if you can’t remember
TEST
  1. Must say you knew it to be true at the time
  2. you have to use the original record itself if it is procurable
  3. Must have been fresh at the time to be probably accurate
  4. Recorded in a reliable way

Accused’s Failure to Testify

Issue / Where / Ratio / Notes
Rule / s. 4(6) CEA / the failure of the accused to testify, or their spouse to testify, shall not be made the subject of comment by the judge or counsel for the prosecution /
  • does not apply to defence counsel may and often will emphasize that the accused is under no obligation to testify
  • does not apply to a co-accused who points out that the other accused did not testify
  • does not apply to judge-alone trials

What constitutes a “comment” / McConnell and Beer v The Queen SCC 1968 / Can explain to the jury they are legally not to consider a failure to testify, but can’t make prejudicial or adverse comments.
Significance / Noble SCC 1997 / Accused failure to testify cannot be taken as an adverse inference of guilt /
  • s. 11 of the Charter (c) A has the right to not be compelled as a witness in their own trial and (d) presumption of innocence.
  • Crown has burden of proof to prove case BRD w/o the accused’s help.

Remedial Instruction / Prokofiew / A TJ may make a remedial instruction to the jury that the A has the right to silence and this cannot be taken as evidence of guilt, where there is a realistic concern that the jury may place evidentiary value on an A’s decision not to testify
Exception / Vezeau / Where the A puts forward an alibi defence and does not provide the police the opportunity to investigate the truthfulness of this alibi before trial, if the A fails to testify, an adverse inference from the A’s failure to testify may be drawn /
  • Rationale: alibi evidence is easily fabricated

Document Production

Third Party Disclosure

Only applies in CRIMINAL PROCEEDING, where the question is whether or not the Crown must go get or disclose 3rd party documents to meet their Stinchcombe disclosure requirements.