Intro
Relevance

= a tendency to make the proposition for which it is tendered more probable than it would be without the evidence

FFBall relevant evidence is admissible unless barred by rule

Disclosure

StinchcombeCrown discloseall info to [A]; not reciprocal

Peruta total disclosure in a civil trial

Judge’s Role

Brouillard judge intervenes only insofar to ensure justice done/ seen to be done

(can Q, interrupt, call to order; > restraint when [A] testifies)

L(DO) should ensure child understands the Q and evidence given by child is clear/ unambiguous

(clarify/ rephrase; ask more Q’s; atmosphere)

Lawesdiscretion to comment on evidence during charge to help jury focus on critical issues; select/ summarize portions of evidence they consider relevant to EE(vetrovec warning; risk of relying of eye-wit); remind jury that despite his opinion, they’re sole arbitrators

Hart Judge has discretion to exclude people from courtroom when in interest of proper administration of justice (s 486(1))

Judicial Notice

Daley

(1) facts so notorious/ generally accepted as to not be the subject of debate among reasonable persons

(2) capable of immediate + accurate demonstration thru readily available sources of undisputed accuracy

BURDEN OF PROOF

Lifcus

StarrBARD much closer to AC than BOP

W(D)ASSESSING CREDIBILITY: (1) If you believe [A], acquit (2) If you do not, but are left with a RD, acquit (3) Even if [A] doesn't RARD, are you convinced BARD of [A]’s guilt?

MorinBARD standard applied to totality of evidence, not each piece; members of jury can arrive at a verdit thru diff routes; need not rely on same facts

PlewesMiller Error: things you choose not to accept, don’t take into account when arriving at your verdict – actually, consider ALL

Assessing Probative Value v Prejudicial Effect

Probative = make a fact in issue more/ less likely

Seaboyerjudge has discretion to exclude evidence when its prejudicial effect outweighs its probative value BUT the prejudice must substantially outweigh the probative value when it is [A]’s evidence

Direct v Circumstantial Evidence

D = eye-witness/ video

C = use a fact to draw an inference of another fact

Munoz cannot be a speculative inference – but must not isolate piece of evidence from rest in making determination for admissibility

Real Evidence

How to give it probative value:

(1) AUTHENTICATION

  • have someone verify video/ pic. Is what council says it is (taker; someone else present when it was taken; analyst)

(2) ASSOCIATE THE ITEM WITH [A]

  • Black constructive possession = documents in [A]’s possession admissible for non-hearsay purposes to prove [A]’s knowledge of their contents

Ex. VIDEOS/ PHOTOS:

  • Nikolosvski once established that not been altered and depicts scene of crime, admissible and relevant evidence
  • Authentication: (a) video/ photo is what it says it is (b) not fundamentally misleading; accurately represents events
  • Penneynon-continuous video 4 ID is fine, but not if depicting event itself. Prior to admission, BOP not altered.
  • Kinkead prejudicial if too inflammatory; long/ many

**if very prejudicial (inflammatory) must be necessary (probat)

Opinion Evidence – Experts and Non
Statutory Rules

Both Crown and Defence must disclose in advance – often months in advance and experts reports

Common knowledge

Graat1st see if evidence is relevant ID of handwriting, persons, things; apparent age; condition of person (death/ illness); emotional state; condition of things; value of something; estimates of speed/ distance NOT opinion on legal issue

Other exclusion rule? Prejudice > probative

General Rules For Experts

Presumptively inadmissible

NOVEL SCIENCE; EVALUATING SOUNDNESS: Super reliability

J(J-L) test

(1) can the theory/ technique be tested

(2) subject to peer review/ publication?

(3) known or potential rate of error

(4) generally accepted/ used?

SOCIAL SCIENCE:

Abbey recognized field; this experts qualifications; is data accurately recorded, stored; reasoning behind process explained; accepted methods; data collected independently of litigation?; honored boundaries of discipline;

THRESHOLD ADMISSIBILITY:

Mohan

(1) logically relevant – TO A LIVE ISSUE IN THE CASE?

(2) necessity in assisting trier of fact

(3) absence of exclusionary rule

(4) properly qualified expert  (White Burgess)

fulfill duty of: (a) impartiality (b) independent (c) unbiased

(5) if novel/ contested, must show reliability of science

(6) THEN CONSIDER PREJUDICE looking at relevance, necessity, reliability, bias (impartiality) bias only knocks it out in extreme

Necessity

TEST:

  • Perlettordinary people are unlikely to form a correct judgment about it, if unassisted by persons with special knowledge
  • Osmar jury can be told of problems with confessions in Mr. Big :. not sufficiently necessary
  • Seaboyer applies for defence experts

Scope

Abbeybefore admissibility, judge determines nature/ scope of expertise and ensures they use appropriate language and do go outside scope.(answer issue; outside expertise; legal answer)

Sekhoncannot overreach their scope limiting instruction

  • Answered the legal issue by saying unlikely the guy didn't know about the cocaine
  • Further, reliability issues with his anecdotal opinion

ULTIMATE ISSUE: (going beyond their scope)

  • can’t answer matter to be decided by trier
  • Can assist with deciding issues though

HYPOTHETICAL Q’S –to provide useful opinions that don't risk usurping (answering the legal question)

Foundation

Abbey Need to present evidence to make the expert opinion relevant (EX. If expert comes in to discuss battered women’s syndrome, prove [A] had this first)

Worrall if opinion is arrived at through experts own inquiry, so long as their science is sound, foundation met BUT if they are commenting on evidence obtained through council, council must prove that evidence

ID Evidence

Gonsalves

  • BADGES OF UNRELIABILITY – stranger; glimpse; dark; stress; timely description; vague; tainting; miss distinctive feature; unconfirmed; suggestion
  • PHOTO LINE-UP– same age/ race; sequential; not forced; recorded; neutral administrator (usually goes to weight)
  • Prior statement admissible; more reliable than in court ID

Hay

  • Where Crown relies on eye-witness, must caution jury of inherent frailties;
  • where Crown’s case relies solely on ID that would necessarily RARD, judge must direct an acquittal upon motion for directed verdict;
  • CANNOT instruct they can convict on it alone when 2 weak

Post Offence Conduct Evidence

Probative value depends on main issues (ID v Intent; SD; Intox.)

White v QueenLimiting instruction:alternative explanations

Peavoy can’t use flight to infer level of culpability;

R v White lack of hesitation could support level of culpability

POST OFFENCE CONDUCT THAT HELPS [A]:

  • SBC(1) Evidence must be relevant (2) prejudicial effect should not substantially outweigh probative value (3) not excluded by other rule **requires risk in giving evidence

Bad Character Evidence
Evidence of Habit

= evidence of how a person acted on another occasion can be a piece of circumstantial evidence for inferring how acted here

invariably or occasionally?

Belknap can be used to infer careful or Neg. action; might be substitute for recollection

Watson must be relevant to live issue in trial

Devgan for civil/ criminal trials; 3-4/ 100s not enough

B(L) if Crown wishes to lead habit, must ask if discredible- then similar fact rule applies and prob > prej.

General Inadmissibility for [A]

EXCEPTIONS: (s 12 too; but limited)

Handy(1) [A] opens door (2) admitted as similar fact evidence (3) [A] leads propensity evidence to suggest 3rd party

Cuadra(1) relevant to some other issue (2) here, probative > prejudicial + need limiting instruct.

^^ here, it was relevant to why he changed his story; said he saw [A] beat someone up so was scared.

**if defence creates an issue (why didn't girl come forward earlier) his propensity might be relevant (controlling behavior)

  • [A] Opening the Door

Handy (a) calling witnesses to speak of good character (b) cross examining Crown witness on [A]’s character (c) [A]’s testimony;If leads specific, Crown can too

Note: witnesses can only speak of his good character generally

  • Similar Fact Evidence

Arpevidence of propensity/ disposition is excluded WHY: (1) jury may find [A] is bad :. Likely to be guilty (2) may punish [A] for past misconduct (3) become confused by having attention deflected from main trial

Handy when it passes from general propensity to specific propensity, it might be admissible if probative value outweighs prejudicial effect

(1) proximity in time

(2) # of similar allegations

(3) potential for collusion – UNLESS CLEAR; ONLY GO 2 WEIGHT

^^but if there is an air – Crown will have to not on BOP

(4) distinctive featuressimilarities in: (a)nature of conduct (b) nature of circumstances

PREJUDICE: *also look @ credibility; if not

(A) moral prejudice – inflame reasonably capable of belief,

(B) reasoning prejudice – distract not admissible

DentINSTRUCT JURY: not general p (bad person) but could use it 4 specific (appears to engage in this conduct in these circumstances);

SIMILARITIES IN CRIME SCENE:

So similar, that strong inference they were committed by same A

Arp similar crime scenes; each w/ little evidence on [A]; mix evidence

Edwards look for trademark + significant similarities

USING SIMILAR FACT EVIDENCE TO HELP [A]:

(a) Similar crime occurs while [A] in custody:

  • Grant lower similarity standard because of Seaboyer; Use Badgerow(alternative suspect)and Arp(similar crime)

(b) bring complainants/ [V]’s propensity for violence:

  • Hankey can lead prior acts to show [A]’s state of mind (reason for SD; fearful based on past) OR to show [V] was initial aggressor BOTH open door for Crown

  • Alternative Suspect Evidence

Badgerow

  • must meet test of relevancy and have sufficientprobative value to justify reception (lower Seaboyer standard though)
  • prejudice = reasoning (distracts)
  • MUST BE sufficient be connection between 3rd party and crime
  • [A] shows some basis upon which a jury could acquit (air to RARD)
  • **When [A] introduces evidence that 3rd party has propensity to commit offence, door is opened for Crown to introduce similar evidence on [A]

CEA s 12 – past criminal record of [A]

Limited to the fact of conviction; no details; only comes in if [A] testifies; ** instruct to only use for credibility purposes

CORBETT APPLICATION judges balances: (1) similarity in offences (2) extent [A] focused on criminal record of witnesses (3) remoteness/ timing (4) nature of previous conviction (dishonesty?) prejudice = used for propensity evidence instead of credibility

Bad Character of Witnesses

Cullen s 12; bad past conduct; lifestyle

**can speak of bad character to attack credibility, but be cautious not to suggest they committed the crime or door opens

The Vetrovec Witness

Factors to weigh when deciding whether to declare as vetovec:

(1) Are they important to the case?

(2) Is there severe credibility issues?

(a) jail house informant automatically

(b) an accomplice (or potential) who gets a deal

(c) prior perjury conviction or dishonesty; inconsistency

INSTRUCTION TO JURY:

Murrin(1) draw attention to testimony requiring scrutiny (2) explain why scrutiny (3) can convict on evidence alone, would be dangerous (3) recommend search for corroborating E

CORROBORATING EVIDENCE: **if real evidence, do test

Khela (1) needs to be independent of witness (2) evidence needs to be material to case (3) should confirm part of witness’s story is dispute (that [A] and not vetrovec did it)

**no threshold to meet for corroborating evidence

Witness Testimony
Assessing Credibility and Reliability

FFBrule against oath helping = cannot present evidence solely to bolster credibility when it hasn't been attacked.

Parent

Factors for Assessing Credibility:

(1) ability to observe events, record in memory, report accurately (is testimony going beyond this ability?)

(2) external consistency (confirmatory)

(3) internal consistency

(4) common sense; plausible

(5)previously lie?

(6) motive to lie

(7) attitude/ demeanor

Perley ^^ also relate to reliability; can believe all, some, on none of testimony; inconsistencies in peripheral not detrimental

Ability to Testify

(1) Oath – Children s 16.1(1); 14+ with mental capacity s 16(1)

(2) communicate your evidence – understand Q & answer

** can’t ask B4 of their understanding of telling truth

s 11 – [A] cannot be compelled to testify

Leading Questions

Can’t ask your own witness

EXCPETIONS  preliminary; those agreed to by judge/ opposing council; if witness needs significant assistance (sign posts)

Cross Examination

*Matters relevant to material facts + credibility*

Lyttle cross permissible on unproven facts without evidentiary foundation so long as good faith basis; even on inadmissible evidence; only need a reasonable belief

IMPROPER:

R(AJ) argue w. [A]; personal opinion; asked [A] to comment on other witnesses’ testimony; lifestyle/ character

DUTY TO CROSS:

Brown v Dunnif council is going to challenge credibility of witness by calling contradictory evidence, witness must be given a chance to address this evidence.

McNeil

(a) recall witness; if opposing declines; regular instruction (believe all, some, none regardless of whether or not it’s been contradicted)

(b) when unavailable/ impractical, special instruction-less weight

Re-Examination

Sipesto explain/ clarify answers given in cross; no new topics

Crown Calling Rebuttal Evidence

Krause (1) must be something Crown couldn’t have reasonably expect (2) must be important to the case

use to prove/ disprove EE

COLLATERAL FACTS RULE – cannot introduce extrinsic evidence which contradicts witness on collateral issues

Statement Evidence
Prior Consistent Statements

REBUT AN ALLEGATION OF RECENT FABRICATION

Stirling show story same even before motive to fabricate

PART OF NARRATIVE– give reference without details

Dinardo not admissible for truth; facts/ timing of complaint; details not given limiting instruction

SPONTANEOUS EXCULPATORY DECLARATIONS

Edgar (1) spontaneous on arrest/ accusation (2) [A] testifies

Adopting a Prior Statement

Mccarrollbecomes part of witness’s evidence + admitted for its truth when:(1) witness acknowledges made the statement

(2) asserts his memory while testifying accords w. contents

Refreshing Memory – Wilks

1st try to probe; situate them back

*only do these if seemed to forgotten; not if changed story

PRESENT MEMORY REVIVED – (1) witness knows facts, has memory lapse on stand (2) knows report will refresh memory (3) given/ reads pertinent part (4) states memory now been refreshed (5) now testifies that he knows, without further aid

PAST RECOLLECTION RECORDED – (1) must have been recorded in a reliable wayaudio/ video/ signed statement (2) at time, must have been sufficiently fresh/ vivid to be probably accurate (3) must be able to say they were being truthful at the time; habit of being truthful likely n/a (4) original record itself is used (exception to hearsay – admitted for truth)

B(KB) witness can refresh memory B4 trial; goes to weight

Attacking’s Credibility of Own Witness

*Suspect feigning memory OR changed story*

S 9(2) MUST BE REDUCED TO WRITING or VIDEO/ AUDIO (1) make application (2) jury leave (3)allow judge to examine to clarify significant inconsistency (4) can prove statement by allowing witness to read (5) witness can adopt statement and opposing council can cross examine on its making OR if not, Council can prove statement by calling evidence (6) judge has discretion to allow cross examination

*here, trying to get them to adopt, but don't push too hard

LIMITED TO:

(a) facts of inconsistency (b) explanation for the change

JURY INSTRUCTION:

use for credibility issues only; not truth of its contents

Milgaard must be careful in allowing re-visits

S(CL) judge should look at circumstances surrounding making of statement (pressure; influence) .

s 9(1) Requires:INCONSISTENCY + ADVERSITY (hostile/ switched sides) + POSITIVE EVIDENCE TO NEUTRALIZE; allowed broader cross examinationto discredit/ neutralize

Cassibono reasonable explanation for switch is suff. Advers.

**can probably heavily suggest for them to adopt statement

Hearsay
What is hearsay?

= out-of court statement used for the truth of its contents

DANGERS no oath + no cross (perceived/ recall/ deceived)

ASK  What is the purpose for bringing it in; If it is for the fact that it was said, not hearsay BUT opposing should ask for clear articulation of relevance to case that the statement was made

JURY INSTRUCTION use of evidence; what it cant be used 4

WHY  (a) witness n/a (b) legitimately forgets (c) providing inconsistent testimony now Baldree Implied; same rule

*ALWAYS MAKE SURE IT IS NOT OTHERWISE INADMISSIBLE 1ST

Declarations against declarant’s interest

Demeterfinancial/ liberty; apprehend vulnerability not too remote Lucier cant be from accomplice to implicate another

Dying Declarations

Aziga(1) deceased had a settled, hopeless expectation of almost immediate death (showing hope fine) (2) statement about circumstances of death (3) would’ve been otherwise admissible (if [V] said in court) (4) offence involved [V] homicide

Declarations in the Course of duty

Larsen(1) an original entry (2) made contemporaneously (3) in the routine (4) of business (5) by a recorder with personal knowledge of the thing recorded as a result of doing/ observing (6) had a duty to make the record (7) no motive to misrepresent

Spontaneous Declarations

Bedingfield running outside, throat cut, yelling not suff.

Clark yelling immediately after being stabbed sufficient

State of Mind – Statements of intent

Panghaliexpressed naturally + no motive to fabricate

Starrnot to show state of mind of 3rd party – only declarant

**limited purpose – not for truth of contents

ex. woman upset before murder – showing she was upset is circumstantial of a fight

Oral History – AT cases

Van der Peet (1) ancestral practice/ custom/ tradition (2) integral to pre-contact society (3) reasonable continuity

Delgamuuk oral must be accommodated; equal footing hist.

Mitchell(1) useful (tends to prove fact relevant to issue in case) (2) must be reasonably reliable (3) probative > prejud.

Statutory Exception – Business Records

s 30 CEA – made in ordinary course of businessbank documents; NOT  those made for investigation/ inquiry or those which would be contrary to public policy Wilcoxnot suppose to keep record was on the fence of falling within s 30

The Principled Approach

(1) NECESSITY – To prove a fact in issue (Smith)

(a) witness unavailable (b) witness legit forgets (c) changes story (d) likely wont get this reliable of info again (ID)

(2) THRESHOLD RELIABILITY – whether circumstances surrounding the making of statement are reliable

KGB if highly coercive, likely not admissible

(1) Oath + warning (2) Presence (3) cross examination

Khelawoninherent trustworthiness: corroborating(special if vetrovec) spontaneous; logical flow of statement; probing/ leading Q’s **if corroborating is real evidence, do test

Smith motive to lie important

Khan credibility issue goes 2 weight + look 4 corrob

U(FJ) 2 stories so similar that reliable (dad; girl)

Note: if there able to cross, reliability doesn't have to be as good

*always look at prejudice and whether otherwise inadmissible

Admissions and Confessions
Formal Admissions

s 665 CC  allows [A] to admit any fact alleged against him