EVIDENCE: EMMA CUNLIFFE
APRIL 2010
Prepared by: Kate Phipps
EVIDENCE: EMMA CUNLIFFE......
APRIL 2010......
Prepared by: Kate Phipps......
A.) Introduction & Foundational Approach......
I.) The Principled Approach: Sopinka et al......
THE PRINCIPLED APPROACH: Necessity & Reliability
Change from Rules to Principles......
The Principles that Enhance the Goals of Evidence....
Search for Truth Balancing Competing Objectives- Tension @ the SCC
Other Policy and Social Interest that have Influenced Foundational Principles
Search for Truth v. Confidentiality......
Search for Truth v. Fairness to Accused......
The Impact of the Charter on these principles:......
II.) The Foundational Approach......
Foundational Structure:......
1.) Materiality......
Primary v. Secondary Materiality......
2.) Relevance:......
Mythical Reasoning & Relevance......
3.) Exclusionary Rules......
4.) Discretion to Exclude......
Prejudicial Effect......
Probative Value......
Narrative......
B.) Information Gathering......
I.) Disclosure & Discovery......
Evidence & Currency......
Discovery in Civil Cases......
Seeking Discovery: rule 26, BCSC rules......
Examination for Discovery: Rule 27, BCSC rules......
Defence Disclosure:......
Crown Disclosure: Stinchcombe [1991, SCC]......
Crown Disclosure: O’Connor (1995, SCC)......
Crown Disclosure: McNeil (2009, SCC)......
Crown Disclosure: Trotta......
Evidence, Information Gathering & Aboriginal Rights & Title Litigation
S. 35(1)- Constitution Act......
Sparrow (1986, SCC)......
Van der Peet Trilogy (1996, SCC)......
Delgamuukw (1997, SCC)......
Mitchell v. MNR (2001, SCC)......
Paul v. BC (2003, SCC)......
Haida v. BC (2004, SCC)......
Benoit (FCA)......
III.) Evidence Law & Economics......
Galanter Article......
C.) Privilege......
General Policy Points......
Class v. Case-by-Case Privilege: R. v. Greene......
I.) Losing Privilege......
Waiver- Perron:......
Implied Waiver: Shirose:......
Inadvertent Disclosure of Privileged Information @ CL- Rumping
CL re: inadvertent disclosure relaxed: Descoteaux.....
Inadvertent Disclosure in civil context: Metcalfe......
Class Privileges, generally:......
I.) Class Privilege: Solicitor/Client Privilege......
Solicitor/Client Privilege- WIGMORE TEST- Descoteoux & Shirose
3.) Fees = Communications?—Miranda v. Richer......
3.) Tapes = Communications?—R. v. Murrary......
4.) Relating to that Purpose w/ in-house counsel- Shirose & Pritchard
4.) CMNS in furtherance of crime or fraud- Descoteoux; Goldman, Sachs; Blank
5.) Made in Confidence: Pritchard & Fink......
7.) Exceptions to @ client’s instance perm. Protected- R. v. Jack
Criminal Context: Innocence At Stake Exception: McClure Test as clarified in Brown
Safeguards in disclosure in Innocence at Stake Test: Brown
Problems with Innocence at Stake Test......
II.) Class Privilege: Litigation Privilege......
Litigation Privilege, Generally......
Litigation Privilege Test- Blank......
Blank v. Canada [2006] SCR- Review and add chart from handout
Difference between sol/cl and litigation privilege- Blank.
III.) Implied Undertaking Rule......
General......
Guidelines: Juman v. Doucette......
Implied Undertaking Rule to cover disclosed info in crim context? DP v. Wagg
IV.) Case-by-Case Privilege......
General & Burden of Proof Issues......
No New Class Privileges: Gruenke......
No New Class Privileges: MA v. Ryan......
Applying the Wigmore Criteria: MA v. Ryan......
Letourneau v. Clearbrook: Rare upholding of case by case privilege
D.) Expert Evidence......
I.) Controversy......
Controversy & Concerns w/ Expert Evidence......
Williams v. BC......
R. v. Mullins Johnson......
II.) The Mohan Test......
Burden of Proof, etc......
Mohan......
Mohan Test Disaggregated......
Relevance & Materiality......
Suitably Qualified Expert......
Probative Value (Benefits)......
Prejudicial Effect and other “costs”......
Novel Science......
Necessity- for non-novel science......
Other Exclusionary Rules Will Apply......
Hearsay May not Apply......
III.) Statutory Provisions & Procedure......
E.) Self-Incrimination......
I.) Charter Principles......
Section 7......
Section 10(b)......
Section 13......
CEA s.5 & BCEA s. 4......
II.) Consequences of Silence......
How extensive is the right?......
What of your silence Can/Can’t be used against you at trial?
III.) Rule Re: Confessions to a person in authority......
R. v. Oikle- Only applies if speaking to a person they KNOW is in authority
III.) Intersection btw s.7 Right to Silence & the CL......
Singh: 5/4 split. May more to a move to a more principled approach- see B(SA) below
Singh: How is section 7 different from Oikle?......
Singh: Right to Silence under s.7......
Principled Approach: B(SA) 2003, scc......
F.) Improperly Obtained Evidence......
I.) Charter Section 24......
Common Law......
Charter s. 24......
Notes on section 24......
Technicalities......
Theoretical Purposes......
II.) The Test......
The Test......
Grant......
Section 8- violation of privacy......
G.) Hearsay......
I.) Identifying Hearsay......
Rationale for excluding Hearsay (Khellawon)......
Defining Features of Hearsay......
Implied Statements......
Consequence of identifying Hearsay......
II.) The Principled Approach......
General......
Necessity......
Reliability......
III.) Principled Approach: Prior Inconsistent Statements..
General......
Applying the Principled Approach......
Applying to admit a PiS......
IV.) Hearsay in Aboriginal Rights & Title Claims......
Tsilhqot’in v. BC (2004, BCSC)......
Newman Article re: Tsilquot’in......
V.) Categorical Exceptions: Spontaneous Statements....
General:......
Statements of Present Physical Condition......
Statements of present Mental State......
Excited Utterances......
Statements of Present Sense Impression- Not OK in Canada Yet
VI: Other Categorical Exceptions......
Categorical Exceptions still in use......
Prior Testimony......
Prior Convictions......
Admissions of a party......
Declarations against interest by non-parties......
Declarations against penal interest......
Dying Declarations......
Declarations in the course of duty......
Statutory Direct Admissibility......
R. v. Griffin & Harris (SCC 2009)......
H.) Witnesses & Truthfulness......
I.) Prior Statements: Your Own Witness......
General Rules......
Hostile Witnesses (Common Law)......
Adverse Witness: 9(1) of CEA & 16(1) of BCEA (functionally equivalent)
What to do if your witness changes their statement on the stand?- 9(1) procedure
Written Statements- s.9(2) of CEA (no real provincial equivalent)- Milgaard, approved in McInroy
REMEMBER- IF IT’S YOUR OWN WITNESS, YOU MUST CROSS-FERENCE BACK TO HEARSAY IF YOU WANT TO ADMIT FOR TRUTH. THIS IS ONLY OK FOR CREDIBILITY. TJ WILL WARN A JURY NOT TO USE THE PIS CANNOT BE USED AS PROOF OF THE FACTS IT ASSERTS- (BEVAN)
II.) Prior Statements: Other Side’s Witness......
In Writing or Recorded- s.10(1)- Canada Evidence Act, s.13 BCEA
Oral & Unrecorded Statements- s.11 CEA, s.14 BCEA.
Uses of PiS......
III.) Character......
How A can place character at issue......
When Character comes into play…......
Criminal Code, s.666- applies to Accused......
S. 12, CEA/ s.15, BCEA......
Sexual Assault Character Evidence......
Third Party Character Evidence......
A.) Introduction & Foundational Approach
I.) The Principled Approach: Sopinka et al
THE PRINCIPLED APPROACH: Necessity & Reliability
- Courts should approach evidence lay by paying heed to the underlying policies that led to the creation of the rule of evidence & applying them to the circumstances of the particular case.
- Flexibility takes the place of Efficiency & Certainty- This is an acceptable cost to achieve substantive justice.
Change from Rules to Principles
- BEFORE: A series of bewildering and complicated inflexible rules.
- Ares v. Venner: First step towards reforming that body of rules through judiciary, NOT the legislature.
- Principled Approach in Various Areas of Evidence:
- 1990s- HEARSAY EXPLOSION- R. v. Khan- Statements by children to others re: sexual abuse admitted as hearsay. The court used a principled approach to accommodate the evidence. The Necessity/reliability test was propounded. Resulted in latitude for the receipt of hearsay evidence to get at the search for truth.
- Aboriginal law & evidence reform: Mitchell v. MNR- various forms of oral history are admissible in order to do justice in aboriginal claims cases when no other evidence would be available. Oral histories are useful when they are necessary and reliable.
- Expert Evidence: R. v. Mohan: Return to first principles before too readily admitting expert testimony. The evidence should not be admitted unless it was truly necessary and of sufficient reliability; novel science gets special scrutiny & has to be ESSENTIAL.
- Principle Against Self Incrimination: Protects against the use of self-incriminating testimony as well as fundamental safeguards like the presumption of innocence, derivative use immunity, right to not be compelled to testify, protection against unreliable confessions, the right to silence, and the right to counsel. S. 24(2) gives these rights teeth by allowing exclusion of evidence obtained in breach of charter.
The Principles that Enhance the Goals of Evidence
- The Search for Truth: To limit frailties of evidence (inherent weakness or that which comes from adversarial court system), many rules of evidence are concerned with ensuring the reliability or accuracy of the evidence that the court receives.
- Fair Trial for Accused: Rules of evidence can assist in striking an appropriate balance between the power of the state and the individual (ie, protection against self-incrimination, rules against character evidence, cross examination on prior convictions).
- Efficiency of the Trial Process: Relevance, for example, ensures that the court is not distracted by collateral matters
- Goals Outside of the Trial Process: Maintenance of relationships, settlement of disputes, privacy, etc, are often at stake. Privileged cmns, for example.
- Preserving the Integrity of the Administration of Justice: A good example is rules re: admissions to persons in authority. Voluntariness restrains the use of certain interrogation procedures by the police.
Search for Truth Balancing Competing Objectives- Tension @ the SCC
- R. v. Noel:
- F: Charged w/ 1st degree murder of a young girl. A made several incriminating statements to the police. Admitted to being brother’s accomplice at his brother’s trial, under oath. @ own trial, he denied participating and repudiated previous incriminating statements.
- I: Can he be cross-examined on prior incriminating statements?
- R: MAJ: Legitimate societal interest in not eviscerating constitutional protections under the charter. S.13 balances the right of the state to compel evidence, and the need for the state to prove its case without the compelled self-incriminating evidence of the accused. That trade-off is a critical feature of the administration of justice that courts are required to protect. Search for truth can’t be pursued at all costs or by all means
- DISSENT: The ultimate aim of any trial is to seek and ascertain the truth, and this must be the preponderant consideration. The best way to balance and alleviate the risks is to give the jury all information, but with a clear direction as to the limited use that they may make of it.
Other Policy and Social Interest that have Influenced Foundational Principles
- Wrongful Acquittals: Evidenced by greater flexibility in hearsay rules & child witness rules, particular for child sexual assault & abuse cases.
- Re-victimising Complainant: Eg- limits on ability to cross-examine and introduce evidence re: prior sexual activity
- Full Answer & Defence
- Concerns about the Wrongfully Convicted: Led to changes in rules re: similar fact evidence, etc. because trier of fact is likely to put a lot of weight on it.
Search for Truth v. Confidentiality
- M(A) v. Ryan: Privilege re: notes of interviews conducted by a psychiatrist in treating the P, a victim of sexual assault.
- R: The law’s increasing concern with sexual abuse and the effect upon its victims was a value at play. Individual’s right to privacy & equality before the law are Charter values that should inform the CL. If some form of privilege wasn’t recognized to protect confidential communications, it would victimize P by impairing her therapy and impeding recovery. This is balanced against the need to have disclosure of CMNS to prevent an unjust decision by the court. created a partial privilege.
Search for Truth v. Fairness to Accused
- Assessing Probative value v. Prejudicial effect necessary in many forms of evidence.
The Impact of the Charter on these principles:
- Only applies in a criminal case, but has substantial overlap with the principles above. Can inform the common law.
II.) The Foundational Approach
Foundational Structure:
- Is it Material? If yes…
- Is it Reliable? If yes…
- Does an exclusionary rule apply? If no or maybe…
- Weigh the prejudicial effect against probative value
1.) Materiality
- ASK: What is my opponent trying to prove? Is the thing sought to be proved a matter in issue?
- R. v. B(L.): Evidence that is not directed at a matter in issue is inadmissible because it is immaterial. By contrast, “[evidence] is material if it is directed at a matter in issue in the case”
- Will depend on context- if something is conceded, evidence speaking to the matter will be immaterial
Primary v. Secondary Materiality
- Primary Materiality: Relevant to a substantive piece of law, or arises from the pleaded cause of action, or procedural legal requirements
- Secondary Materiality: Speaks to witness credibility or reliability of other evidence. More closely regulated and more likely to be excluded due to legitimate concern about undue consumption of time and about unnecessarily complicating matters.
2.) Relevance:
- R. v. Corbett: Evidence is relevant where it has some tendency as a matter of logic an human experience to make the proposition for which it is advanced more likely than that proposition would appear to be in the absence of that evidence.
- ASK: “Does the evidence assist in proving the fact that my opponent is trying to prove?”
- Slight relevance is OK; there is no minimum probative value to be admissible. At this stage of the inquiry, basic principles of the law of evidence embody an inclusionary policy. In the absence of cogent evidence establishing that evidence is irrelevant, the fact that reasonable people may disagree about its relevance attests to the fact that unanimity in matters of common sense and human experience is unattainable. The tendency is to admit it because triers of fact are to render decisions according to their oaths and the consciences, and they should have all the information they consider of importance available to them. (Corbett);
Mythical Reasoning & Relevance
- Certain lines of reasoning may be impermissible when they are based on “myth.”
- R. v. Seaboyer
- R: Majority of the court identified as “twin myths” the beliefs that the past consensual sexual experiences of a complainant are relevant (1) to her credibility because they show her to be of discreditable character, or (2) to her readiness to consent to sex because she has shown herself to be the type to consent.
- R. v. Osolin
- R: Mythical lines of reasoning are inappropriate in assessing the relevance of questions asked of complainants during cross-examination.
- Thus far, much restraint has been exercised in declaring lines or reasoning to be myths
3.) Exclusionary Rules
- This is the focus of the majority of the rest of the course. Consider this AFTER the 1st two points.
4.) Discretion to Exclude
- Judges have the discretion to exclude relevant and material evidence where its probative value is outweighed by its prejudicial effects. A judge will determine the value of the evidence, based on both its reliability and the strength of the inferences it leads to, against the costs presented by such evidence. - Mohan- Does the value outweigh the costs???
- The discretion extends to the exclusion of statutorily admissible evidence- Potvin
- In the criminal context the prejudicial effect must substantially outweigh the probative value to exclude evidence presented by the defence- Seaboyer
Prejudicial Effect
- Any adverse cost associated with the presentation of evidence. Per Mohan, the Cost of the evidence.
- Can described both the distorting impact (risk the jury would give more weight to the evidence than it rationally deserves) that the evidence can have on the finding of fact, and the fairness in allowing the evidence to be permitted.
- FAIRNESS Ex- Potvin: It would be prejudicial for the Crown to rely on a rule that allows for the admission of a transcript of the former testimony of an unavailable Crown witness, where the Crown itself contributed to the unavailability of that witness.
- Can also include: undue consumption of time; unfair surprise depriving a party of the opportunity to respond; creation of distracting side issues; potential confusion to the trier of fact.
- Judge should consider whether proper instructions could remove the prejudice.
Probative Value
- A judge should consider the value of the evidence based on the strength of the inferences, the credibility of the evidence where it is testimony, and the reliability of the evidence.
- Essentially, a judge will consider the weight that the evidence rationally deserves. Per Mohan, the “Benefit” of the evidence.
Narrative
- Sometimes, immaterial/irrelevant information will be admitted because it is part of the narrative and helps present a clearer picture of what in fact occurred. When that occurs, the accused cannot seek to exclude crown evidence calling their narrative into question.
- R. v. Van (2009)
- F: Victim was shot and was in coma. Initially, police thought loan sharks came after him. When accused woke up, he said it was V, and not a loan shark, that shot him. At trial, a police officer (crown witness) said that he stopped investigating the loan sharks because he believed V was guilty. V advanced a defence that there was an improper police investigation.
- R: Although the PO’s statement was egregious, and the jury should have been instructed to disregard it, V would have been convicted on other evidence, so there was no need for a retrial despite the high level of prejudice. Jury should have been warned anyways.
- NOTE: This is an example of the narrative leading to distortion of evidence, and that convictions can still stand in certain circumstances.
B.) Information Gathering
I.) Disclosure & Discovery
Evidence & Currency
- Some academics say that a trial operates through a currency of information. Disclosure & discovery even the “economic” playing field to help the court get to the truth of a matter.
- At Play: The balance between the search for truth and the defence’s right to make a full and fair defence
Discovery in Civil Cases
- Pre-dates Stinchcombe
Seeking Discovery: rule 26, BCSC rules
- 26(1): May demand discovery of documents; counterparty must comply w/in 21 days. Relevance is broadly defined to include information that allows the counterparty to make their case.
- NOTE: the cost and complexity of civil discovery has been criticized and there are some proposals to limit discovery.
- NOTE: Definition or relevance has been NARROWED in the new BCSC rules to be “relevant to a material fact in the case, or make the existence of a fact more or less likely”
- 26(2): Must list privileged documents and provide general grounds for the privilege claim
- 26(7): A party seeking discovery has the right to inspect and copy documents
- 26(11): The court may order a non-party to discover documents.
- 26(13): A continuing obligation to make discovery applies if an original list is incomplete.
- 26(14): Failure to discover a document raises a PF rule against use of that document in court.
Examination for Discovery: Rule 27, BCSC rules
- 27(3): A party may examine for discovery any party who is adverse in interest (Parties; EEs)
- 27(4): A party whose EE is being examined can apply to substitute another person for the EE.
- 27(15): The examination shall be conducted before an official reporter, who is empowered to administer the oath.
- 27(16)-(19): Notice requirements; Can fix a time for examination; delver notice, etc etc
- 27(22): A person being examined is required to answer any relevant (broadly defined) question unless the answer is privileged, and to give the name and address of others who might reasonable be expected to know something regarding a matter in issue
- 27(24): If a person objects to answering a question, question and objections should be recorded, and the court may determine the validity of the objections.
- NOTE: Rules are changing! Limit in scope for examination for discovery; Limits time of examination to 7 hours for all adverse parties.
Defence Disclosure: